### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submitted on Brief

s, April 11, 2001 JAMES E. SWIGGETT v. CARL R. OGLE, JR., and J. MICHAEL K ERR

Direct Appeal from the Chancery Court for Johnson County No. 4702 Hon. C. Richard Johnson, Chancellor

FILED APRIL 30, 2001 No. E2000-01473-COA-R3-CV

In this action for

legal malpractice, the Trial Court ruled a prior suit filed by plaintiff and dismissed on the merits was res judicata to this action. We a

ffirm.
Tenn. R. App. P.3 Appeal as of Right; Judgmen

t of the Chancery

Court Affirmed.
H ERSCHEL P ICKENS F RANKS , J., delivered the opi nion of the court, i

n which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.
James E. Swiggett, Mountain City, Tennessee, pro se . Carl R. Ogle, Jr., J

efferson City, Te

nnessee, for App

ellees.

OPINION

Plaintiff filed the Complaint on October 22, 1999, charging defendants wi t h legal malpractice allegedly

occurring in

1992. Defendants filed a Motion to Dismiss on the grounds that the action was barred by the doctrine of res judicata and attached a copy of the Judgment dismissing the prior complaint essentially alleging the same c ause of action. That suit w as dismissed with prejudice on May 12, 1997. Also attached was a copy of a Court of Appeals Opinion affirming that action, James E. Swiggett v. Carl Ogle, Jr., and J. Michael Kerr, (Cou r t of Appeals Opinion filed March 27, 1998 at Knoxville.)

Responding to the Motion to Dismiss , the Hon. Jean A. S tanley, granted d

efendants-2-

summary judgment on the grounds that the action was barred by res judicata. The Judgment Ordered the plaintiff to pay the filing fees, court costs and the other related expenses in accordance withTennessee Code Annotated Section 41-21-807, and directed the Clerk, pursuant to T.C.A. §41- 21-812(a) that another claim by the plaintiff not be filed unt il all ord ered fees and expenses were paid in full. But the Order did not apply to any case excepted by T.C.A. §41-21-812(b).

Plaintiff then filed a Motion

to Alter or Amend which was overruled by the Hon. G. Richard Johnson, Chancellor, on May 18, 2000, and the order reaffirmed the

conditions set for

th in the Judgment. The plaintiff argues that the Trial Judge erred in dismissing his action because it was refiled within the time allow

ed under T.C.A. §28-1-105. This statu te is operational when an action is commenced within the original time limit, but is dismissed “upo n any ground not con cluded to plaintiff’s right of action . . .”. The statute allows for the action to be refiled within a year from the dismissal. Id. In this case the record establishes that plaintiff’s first action for legal malpractice was dismissed on the merits and a ffirmed by the Cour

t of Appeals. Accordingly, this code section has no application to the facts of this case. Moreover, the Trial Court correctly dismissed the action on the basis of res judicata

. Harrogate Corp. v. System Sales Corp., 915 S.W.2d 812 (Tenn. Ct. App. 1995). Finally, plaintiff argues that the cost requirements of T.C.A. §41-21-801 eq seq , were wrongfully

applied to him because he had not brought an action against t he State of Tennessee, a Stateagency or

its employees. Whi

le the statutes apply to actions brought by inmates against the State, its departments an

d employees, we f

ind nothing in this par

t to limit the applic

ation to such suits. T.C.A. §41-21-802 provides tha t thes e statutes apply “ to a claim brought b

y an inmate in general sessions or

trial level court

s of record in whi

ch an affidavit o

f inability to pay co

sts is filed with the claim by the

inmate.” We find

this issue to be witho

ut merit. We affirm the judgment of the T rial Court, and remand with the cost of the appeal assessed to James

E. Swiggett.

_________________________ H ERSCHEL P ICKENS F RANKS , J.