Vanderbilt University filed a responsive pleading contending inter alia that “the named defendant, Vanderbilt 1

Bill Wilkerson Center, is not a legal entity.” In its Memorandum and Order, the trial court held that it “does not believe

that this misnomer is of importance and the Court in this order has added ‘The Vanderbilt University’ as the correct

party.”

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 7, 2005

MARTY KENDALL v. VANDERBILT BILL WILKERSON CENTER

 Appeal from the Circuit Court for Davidson County

No. 04C-8 Walter C. Kurtz, Judge

No. M2004-00993-COA-R3-CV - Filed June 13, 2005

Plaintiff appeals the dismissal of her lawsuit as being time barred. Plaintiff timely filed an action

for wrongful discharge of her employment. Summons was issued but never served on Defendant.

Plaintiff then took a voluntary dismissal but did not serve, nor attempt to serve, a copy of the notice

of voluntary dismissal, the order of dismissal or a copy of the initial complaint on Defendant as

required by Tenn. R. Civ. P. 41.01. Plaintiff filed this action to revive her claim of wrongful

discharge within one year of the voluntary dismissal of her first action but more than one year after

termination of her employment. Defendant filed a Motion to Dismiss contending that Plaintiff’s

claims were time barred, which the trial court granted. Plaintiff appealed. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G.CLEMENT,JR., J., delivered the opinion of the court, in which WILLIAM C.KOCH,JR.,P.J.,

M.S., and WILLIAM B. CAIN, J., joined.

James L. Harris, Nashville, Tennessee, for the appellant, Marty Kendall.

J. Davidson French, Nashville, Tennessee, for the appellee, Vanderbilt Bill Wilkerson Center.

OPINION

This is the second of two identical constructive discharge actions Marty Kendall, Plaintiff,

filed against Vanderbilt Bill Wilkerson Center, the named defendant. In each action Plaintiff 1

contends that she was constructively discharged by the Vanderbilt Bill WIlkerson Center on August

24, 2001. She presents two claims: (1) a retaliatory discharge claim under the Tennessee Public
Davidson County Circuit Court, Docket No. 02C-2352. 2

Davidson County Circuit Court, Docket No. 04C-8. 3

-2-

Protection Act, Tenn. Code Ann. § 50-1-304; and (2) a retaliatory discharge claim under the common

law of Tennessee. 

Plaintiff timely filed her first complaint on August 20, 2002. Summons was issued but not 2

served and no alias summons was requested or issued. Thus, the complaint filed in the first action

was never served on Defendant. On January 24, 2003, Plaintiff filed a Voluntary Notice of

Dismissal under Rule 41.01 and a proposed Order of Voluntary Dismissal. The order was entered

on January 31, 2003. Plaintiff filed this, her second action, on January 5, 2004, asserting the 3

identical claims of the first action. Summons was issued and served on Defendant along with the

complaint in the second action.

Defendant filed a Motion to Dismiss as its responsive pleading to the Complaint in the

second action. It contended that Plaintiff’s claims were barred by the applicable one-year statutes

of limitation, Tenn. Code Ann. §§ 4-21-311 and 28-3-104. The trial court held that Plaintiff “may

not rely on the complaint that was filed on August 20, 2002 to toll the running of the statute of

limitations” because she did not comply with Tenn. R. Civ. P. 3 or 41.01. Because the second

complaint was filed more than one year following termination of Plaintiff’s employment and the

applicable statutes of limitation were one year, the trial court dismissed the action as time barred.

Plaintiff appealed contending that the trial court’s application of Tenn. R. Civ. P. 3 and 41.01 was

error. 

No factual disputes are presented. The issue presented hinges on the proper interpretation

of the law to the undisputed facts of this case. Therefore, the trial court’s resolution of these issues

is not entitled to Tenn. R. App. P. 13(d)’s presumption of correctness on appeal. We will review the

issues de novo and reach our own independent conclusions regarding them. King v. Pope, 91 S.W.3d

314, 318 (Tenn. 2002). 

Tenn. R. Civ. P. 3 states in pertinent part:

If process remains unissued for 30 days or is not served within 30

days from issuance, regardless of the reason, the plaintiff cannot rely

upon the original commencement [of the action] to toll the running of

a statute of limitations unless the plaintiff continues the action by

obtaining issuance of new process within one year from issuance of

the previous process or, if no process is issued, within one year of the

filing of the complaint.

Tenn. R. Civ. P. 41.01 requires a plaintiff who files a notice of voluntary dismissal to serve

a copy of the notice on all parties. It further provides that if a defendant has not been served with
“We conclude that Tenn. R. Civ. P. 41.01 requires that a nonsuiting plaintiff, at the time of the nonsuit, serve

4

a copy of the notice of dismissal and a copy of the dismissed complaint on any defendant who has not been previously

served with a summons and complaint and that such service must comply with the requirements of Tenn. R. Civ. P. 5,

not with the requirements for service of process under Tenn. R. Civ. P. 4.” Boone v. Morris, 2004 WL 2254012, at *6.

-3-

the summons and complaint, the plaintiff must also serve a copy of the complaint on the defendant.

In such cases, however, the plaintiff need not obtain formal service of process on the defendant as

Tenn. R. Civ. P. 4 requires. Service pursuant to Tenn. R. Civ. P. 5.02 is sufficient. See Boone v.

4

Morris, No. M2002-0306-COA-R3-CV, 2004 WL 2254012, at *6 (Tenn. Ct. App. Oct. 6, 2004).

Tenn. R. Civ. P. 41.01 . . . requires “serving” a copy of the notice of dismissal on all

parties. In addition, it requires the plaintiff to “serve” a copy of the complaint on any

party who has not already been served with a summons and complaint. . . . [S]ervice

under Rule 5 is all that is required. . . . [D]elivery of the notice of dismissal and the

original complaint is intended to provide the defendants with notice of the original

action and its dismissal and notice that the plaintiff may commence another action

within one year; the purpose is not to require the defendant to appear and answer the

dismissed complaint. The Rules of Civil Procedure do not require that notices be

served like process; they serve different functions.

Boone, 2004 WL 2254012, at *6. 

The importance of a defendant being aware that a civil action has been filed and voluntarily

dismissed is also stated in the 1991 Advisory Commission Comment to Tenn. R. Civ. P. 41.01(1).

The Advisory Commission informs us that:

Rule 41.01(1) [was] amended to require service of both the written

notice of nonsuit and a copy of the complaint on other parties. Such

a requirement helps cure the injustice of a plaintiff filing a complaint

and summons under Rule 3 and immediately taking a nonsuit. If the

savings statute applies, the plaintiff would get the benefit of tolling

a statute of limitations without the defendant knowing of any

litigation. But see Lee v. Crenshaw, 562 F.2d 380 (6 Cir. 1976), 622 th

F.2d 202 (6 Cir. 1980), indicating that such a ploy would not stop th

the running of the statute of limitations.

A plaintiff who failed to comply with Tenn. R. Civ. P. 3 or 41.01 cannot rely on the filing

date of the original complaint for purposes of satisfying the applicable one-year statute of limitations.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 716-717 (Tenn. 2002). “[A]bsent

service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a

plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule

3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar

of the statute of limitations.” Id.
-4-

Plaintiff never served a copy of the Notice of Dismissal, the Order of Voluntary Dismissal

or the Complaint in the initial action on Defendant. Moreover, the record reveals that Plaintiff did

not even attempt to serve a copy of the notice or order with the complaint. As the trial court noted

in its Memorandum and Order, the certificate of service for the Notice of Dismissal and the Order

of Voluntary Dismissal stated: “I hereby certify that a copy of the foregoing document has not been

served upon the defendant and therefore notice is not necessary.” (emphasis added) 

Plaintiff’s claims, all of which are based upon an alleged constructive discharge on August

24, 2001, are subject to one-year statutes of limitations. Plaintiff filed the second of her two

identical actions on January 5, 2004, more than two years after her alleged constructive discharge.

Since Plaintiff did not satisfy the condition precedent required in Frye, she does not have the benefit

of the saving statute. Thus, her claims are time barred.

The judgment of the trial court is affirmed and this matter is remanded with costs of appeal

assessed against appellant, Marty Kendall.

___________________________________ 

FRANK G. CLEMENT, JR., JUDGE