# FILED
March 29, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) CARRIE LOUISE PINSON, ) Shelby County Circuit Court ) No. 73514 T.D. Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9804-CV-00115 ) MICHAEL TATA , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Cour

t of Shelby County at M

emphis. Honorable James E. Swearengen, Judge

Gerald S. Green , Memphis, Tennessee Attorney for Plain

tiff/Appellant.
Warren D. McWhirter , McWHIRTER & WYATT, Memphis, Tennessee Attorney for Defendant/Appellee.

OPINION FILED: AFFIRMED AND REM ANDED FARMER, J. CRAWFORD, P.J., W

.S. : (Concurs) HIGHERS, J. (Concurs)

Plain tiff Carrie Louise Pinson appeals an order of the trial court granting a motionfor

summary judgment filed by Defendant Michael Tata. Be

cause we agree

that Ms. Pinson’s ca

use of action is barr

ed by the statute of

limitations, we aff

irm the ruling of the

trial court.

On July 25, 1992, Ms. Pinson and Mr. Tata wereinvolved in an auto mobile accident. Ms. Pinson filed a negligence action against Mr. Tata on July 23, 1993, seeking damages for injuries sustained as a result of the accident. Also on July 23, 1993, a summons was issued to Mr. Tata. After repeated attempts to serv e Mr. Tata wi th process, the summons was returned unserved on August 16, 1993. On Februa

ry 8, 1994, an alia

s su mmons was iss ued to Mr. Tata. Mr. Tata was served with the alias summons on February 14, 1994. On February 3, 1995, the trial court entered
an order quashing th

e alias summons and

dismissing Ms. Pinson’s complaint. Thereafter on October 26, 1995, Ms. Pinson filed a second negligence action against Mr. Tata, alleging the same facts as those contained in the original complaint. Mr. Tata subsequently filed a motion to quash, motion to dismiss, and an answer to Ms. Pinson’s second complaint. Additionally, Mr. Tata filed a motion for summary judgment. The trial court entered an order granting Mr. Tata’s motion for summary judgment and Ms. Pinson appeals.

M s. Pinson contends that the trial court erred in granting Mr. Tata’s motion fo r summary judgment. In suppor t of this position, Ms.

Pinson notes that the trial court dismissed her original complaint “without prejudice.” In its order of February 3, 1995, the trial court stated as follows:

This cause came on to be heard on January 20, 1995 upon

motion of defendant, Mic hael Tata, to qua

sh summons and dis

mis s complaint; upon memoranda submittedin the cause, upon argument of counsel; and upon the entire record in the cause, from all of which i t appea rs that the motion is well taken and should be granted. The Courtfinds that the plaintiff, Carrie Louise Pinson, faile

d to comply withrule3 of the Tennessee Rules of Civil Procedure and that thereforethis lawsuit should be dismissed. The Court is dismissing t his a ction without making a determination as to the plaintiff’s right or lack thereof

to bring further action in regard to this matter
. IT IS THER EFOR E, ORDERED, ADJUDGED AND DECREED that the motion of de fendant, Michae

l Tata, to quash summons and di smiss complaint is well taken and that the motion should be, and is hereby, granted and the summons is quashed andthe complaint is dismissed without prejudice
. The Courts costs shall be taxedto the plaintiff, for which execution m ay issue, if necessary. (emphasis added).Additiona lly, M s. Pinson notes that, under Tennessee’s savings statute, an action that has been

dismissed “not on the merits” may be recommenc

ed so long as it

is refiled within one year after the entry of the order dismissing the original complaint

. Ms. Pinson’s second complaint was filed on October 26, 1995, which is le

ss than one year a

fter February 3,

1995, the date

on which Ms. Pinson’s original complaint

was dismissed. Thus, Ms. Pinson argues that, under Tennessee’s savings statute, her second action was timely commenced.

Tennessee’s sa

vings statute provi

des in pertinent pa

rt as follows:
If the action is commenc

ed within the time limited by a ru le or statute of limitation , but the judgment or decree is rendered against the plaintiff upon any ground not conclud ing th e plaintiff’s rightof action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or the plaintiff’s repr

esentatives and p

rivies, as the ca

se ma y be, may, from time to time, commence a new action within one (1) year after th e reversal or arrest. Actions originally commenced in gener a l sessions co urt and subsequently r ecommenced pur

suant to this section in circuit or chancery court sha ll n ot be subject to the monetary jurisdictional limit originally imposed i n the general sessions court.

Tenn. Code Ann. § 28-1-105(a) ( S upp. 1998)(empha sis added). Under

its express langua

ge, this provision applies only “[i]f the action is commenced within the time limited by a ruleor statute of limitation.” Tenn. Code Ann. § 28-1-105(a) (Supp. 1998). Thus, in the instant c ase, we must first determine whether Ms. Pinson’ s original action w as commenced with

in the applicable r

ule or statute of limitations.

The rule governing commencement of actions isset forth in Rule 3 of the Tennessee Rules of Civil Procedure which, on the date that Ms. Pinson filed her original complaint, provided as follows:

All civil actions are commenced by filing a complaint and

summons with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing o f a complaint and summons, whether

process be issued or not issued and whether process be returned

served or unserved. If

process remains unis s ued for 30 days or if process is not served or is not returned1 This provision has been amended to eliminate the language regarding recommencement

of the action and to extend the reissuance period from six months to one year. See 1995 Advisory Comments to

T.R.C.P. 3. Currentl

y, Rule 3 provides a

s follows: All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. 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 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 issu

ed, within one yea

r of the filing of th

e complaint. T.R.C.P. 3. This amended version of Rule 3, however, may not be applied retrospectively to the case at bar. See Gregory v. McCulley , 912 S.W.2d 175, 177 n.3 (Tenn. App. 1995)(citing Yancy v. Yancy , 52 Tenn. (5 Heisk .) 353, 363-64 (Te

nn. 1871); Collier v. Memphis Lig ht, Gas & Water Div. , 657 S.W.2d 771, 775 (Tenn. App. 1983)).

within 30 days from issuance , regardless of the reason, the plaintiff cannotrely upon the original commence ment to toll therunning of a statute of limitations un less the plaintiff ei

ther: (1) continues the action by obtaining issuance of new process within 6 months from issuance of the previous proce

ss or, if no process iss ued, within 6 months from the fili ng of the complaint and summons, or (2) recommences the ac

tion within 1 year from issuance of the original process or, i

f no process issued, within 1 year from the filing of the original c

omplaint and summons.

T.R.C.P. 3 (emphasis a

dded). 1 In the instant case, the original summons issued to Mr. Tata was returned unserved. Thus, in order for Ms. Pinson to rely on the filing date of her originalcomplaint for purposes of the statute of limitations, Ms. Pinson

was required to e

ither (1) obtain

new process within six months of the issuance of the original process or (2) refile the action within one year of the date that the original process was issued. Although an alias summons was issued to Mr. Tata on February 8, 1994, this was more than six months after the issuan

ce of the origina

l summons on July 23, 1993. Additionally, while Ms. Pinson did file a second complaint on October 26, 1995, th is recommencement

of the action did not occur within one year of July 23, 1993, the date on which the original process was issued. Thus , because Ms. Pinson did not comply with the requirements of Rule 3, we conclude th

at she may not rely

on the filing date of her original complaint for purposes of determining wheth

er her action wa

s filed within

the appli cable statute of limitations. Accordingly, the relevant date for purposes of the sta

tute of limitations is Octo

ber 26, 1995, the d

ate on which Ms. Pinson filed her second complaint.In order to be timely, an action for personal injurie

s must be commenced within one year of the date on which the cause of action accrued. See Tenn. Code Ann. § 28-3-104(a)(1) (Supp. 1998). In the instant case, Ms. Pinson’s cause of action accrued on July 25, 19 92, the date of the automobile

accident. Ms. Pinson’s second complaint, however, was filed more than one year after this date on October 2

6, 1995. Thus,

Ms. Pinson’s action was not commenced within the applica

ble statute of limita tions. Consequently, we conclude that Tennessee’s savings statute has no application to the case at bar.

In Little v. Francesc

hini , 688 S.W.2d 91 (Tenn. App. 1985), we were presented with facts strikingly similar to those o f the case at bar. The plaintiff filed a personal injury action on September

13, 1982, within the one year statute of limitations. See id. at 92. Because pr ocess was notserved on the defendant, however, this action was dismissed by voluntary non-suit on February 20, 1984. See id. Also on February 20, 198 4 , the plaintiff filed a second complaint, alleging the same facts

as those contained in the original complaint. See id. The defendant subsequently filed
a motion to dismiss the plaintiff’s claim as untimely, which was granted by the trial court. See id. On appeal, this court noted that new process had not been reissued

within six months of the issuance of the original process. See id. at 93. We further noted that the action had not been recommenced within on e year of the issuance of the initial unserved process. See id. Concluding that the plaintiff’s action had not

been “commence

d within the time

limited by a rule or statute of limitation,”
we held that the savin

gs statute was inapplicable and thus affirmed the trial court’s dismissal of the plaintiff’s claim. Id. at

93-94. See also Federal Deposit Ins. Corp. v. Cureton , 842 F.2d 887, 892 (6th Cir. 1988)(holding that, pursuant to our ruling in Little , the filing date of the plaintiff’s original complaint “died” for purposes of the statute of limitations because the p laintiff h ad not complied with the requirements of Rule 3).

M ore recently, in Gregory v. McCulley , 912 S.W.2d 175 (Tenn. App. 1995), the plaintiffs filed an action against the defendant on June 11, 199 3, seeking da mages for injuries sustained as a

result of an automobile accident that occurred on July 3, 1992. See id. at 176. After the original process issued to the defendant was returned

unserved, the plaintiffs obtained issuance of an alias summons on November 30, 1993 and a second alia s summons on March 25 , 1994, both of which were also returned unserved. See id. Consequently, on December 20, 1994, the plaintiffsfiled a second complain t against the defe

ndant. See id. Thereafter, th e plaintiffs volunt

arily dismissed their first complaint. See id. The defendant then filed a motion to dismiss the plaintiffs’ secondcomplaint, arguin g that it was not file

d within the one yea

r statute of limitat

ions applicable to personal injury actions. See id. The trial court denied the defendant’s motion to dismiss. See id. On appeal, we followed the reasoning set forth in Little and Cureton , holding as follows :

The Gregorys neither

obta ined the issuance

of new process within six mon ths of the issuance of the March 25, 1994 summons nor recommenced the

ir action within

one year of the issuance of the initial process on June 11, 1993. Having failed to avail themselves of eith er of the avenues provided in Tenn. R. Civ. P. 3, they ar e prohibited from

relying on the filing of their ori ginal complaint to to

ll the running of the statute of limitations. Tenn. Code Ann. § 28-1-105 is not available to th

em becau se their original action was never properly commenced within the time permitted by the statute of limitations.

Id. at 178.

Consistent with the foregoing authority, we find that Tennesse e’s savings statute

is inapplicable

to the case at bar. Additionally, because Ms. Pinson’s second complaint was not filed within one year of the date on whic h her cause of a

ction accrued,

we conclude that

this action is untimely. Accordingly, we affirm the order of the trial court granting Mr. Tata’s motion for

summary judgment. Costs on appeal are assessed to Ms. Pinson, for which execution m

ay issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)______________________________

HIGHERS, J. (Concu

rs)