Chanda Keith v. Regas Real Estate Company

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 8, 2011 Session

CHANDA KEITH v. REGAS REAL ESTATE COMPANY, ET AL.

Appeal from the Circuit Court for Knox County

No. 135010 Dale C. Workman, Judge

No. E2011-00337-COA-R3-CV-FILED-DECEMBER 2, 2011

This is a negligence case in which Chanda Keith (“Ms. Keith”) filed suit against Regas Real

Estate Company (“Regas”) and LDB Corporation operating in Tennessee as Mr. Gatti’s

Incorporated formerly doing business as Mr. Gatti’s and/or Mr. Gatti’s, L.P. (“Mr. Gatti’s”).

The trial court dismissed the suit against Regas. Approximately ten years after the initial suit

was filed, the trial court dismissed the suit against Mr. Gatti’s without prejudice, finding that

Ms. Keith failed to comply with an order. One year later, Ms. Keith filed a new suit against

Regas and Mr. Gatti’s. The trial court dismissed both suits. Ms. Keith appeals. We affirm

the trial court relative to the dismissal of the suit against Regas but reverse the trial court

relative to the dismissal of the suit against Mr. Gatti’s. The case is remanded.

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

Affirmed in Part, Reversed in Part; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,

P.J., and C HARLES D. S USANO, J R., J., joined.

Chanda Keith, Knoxville, Tennessee, Pro Se.

Gary M. Prince and Nathaniel C. Strand, Knoxville, Tennessee, for the appellee, LDB

Corporation operating in Tennessee as Mr. Gatti’s Incorporated f/d/b/a Mr. Gatti’s and/or

Mr. Gatti’s, L.P.

Jennifer T. McGinn and Benjamin W. Jones, Knoxville, Tennessee, for the appellee, Regas

Real Estate Company.

OPINION

I. BACKGROUND

On June 29, 1998, Ms. Keith was on Mr. Gatti’s premises when she fell in the parking

lot managed by Regas. According to Ms. Keith, as a result of her fall, she “received serious

and painful injuries, incurred medical expenses, [and] sustained significant pain[,]

suffering[,] emotional distress, [] permanent injury, [and] injury to her capacity to earn.”

Additionally, her mother, Joanne Keith, was “deprived of her valuable services and []

sustained a loss of income.”1 Ms. Keith filed suit against Mr. Gatti’s on June 29, 1999.

More than one year later, she filed an amended complaint against Mr. Gatti’s and Regas.

In 2002, the court dismissed the case relative to Regas, finding that the suit was

untimely and that Regas “did not receive sufficient notice” of the lawsuit. In 2007, the court

entered an order acknowledging that Ms. Keith’s attorney was attempting to withdraw from

the case against Mr. Gatti’s. The court directed Ms. Keith to provide “written notice”

indicating that she hired a new attorney. The court cautioned that failure to comply with the

order within 60 days would result in dismissal of her case without prejudice. In 2009, the

court dismissed the case without prejudice, finding that she failed to comply with the 2007

order.

In 2010, Ms. Keith filed a new complaint against Regas and Mr. Gatti’s, and they filed

motions to dismiss. Regas claimed that the 2002 order dismissing the case operated as an

adjudication on the merits pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure.

Mr. Gatti’s argued that the claim was barred by the statute of limitations and the doctrine of

laches. Mr. Gatti’s said that the “negligence and unreasonable delay in bringing th[e] lawsuit

and prosecuting the first lawsuit [] caused prejudice.” The court entered an order dismissing

the case against Mr. Gatti’s, finding that the case was barred by the statute of limitations and

the doctrine of laches. Two months later, the court entered a second order, finding that the

motions to dismiss filed by Mr. Gatti’s and Regas were well-taken. The court dismissed the

case against both Mr. Gatti’s and Regas, noting that the first order should operate as a

dismissal of the case against both defendants. This appeal followed.2

1

Joanne Keith was initially joined as a plaintiff but has since been removed from the case.

2

We acknowledge that the notice of appeal was prematurely filed because it was filed before the second

order, which, unlike the first order, resolved all claims in the lawsuit against both defendants. However, “[a]

prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the

appeal is taken and on the day thereof.” Tenn. R. App. P. 4(d).

-2-

II. ISSUES

Mr. Gatti’s raised a threshold issue for our consideration that we consolidate and

restate as follows:

A. Whether the case should be dismissed because Ms. Keith failed to serve

Mr. Gatti’s with a copy of the notice of appeal.

We consolidate and restate Ms. Keith’s sole issue on appeal as follows:

B. Whether the trial court erred in dismissing her case against Regas and Mr.

Gatti’s.

III. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim upon which relief can be granted

“challenges the legal sufficiency of the complaint, not the strength of the plaintiff’s proof[;]

therefore, matters outside the pleadings should not be considered in deciding whether to grant

the motion.” Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn.

2002). In determining whether the trial court erred in granting the motion to dismiss, this

court “must construe the complaint liberally, presuming all factual allegations to be true and

giving the plaintiff the benefit of all reasonable inferences.” Id. The complaint “should not

be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set

of facts in support of [the] claim that would warrant relief.” Id. The trial court’s grant of the

motion to dismiss is subject to a de novo review with no presumption of correctness because

we are reviewing the trial court’s legal conclusion. Blackburn v. Blackburn, 270 S.W.3d 42,

47 (Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

IV. DISCUSSION

A.

Mr. Gatti’s asserts that this court should dismiss the case because Ms. Keith failed to

provide it with a copy of the notice of appeal. Ms. Keith does not respond to this argument.

Rule 5(a) of the Tennessee Rules of Appellate Procedure provides, in pertinent part,

Not later than 7 days after filing the notice of appeal, the appellant in a civil

action shall serve a copy of the notice of appeal on counsel of record for each

party or, if a party is not represented by counsel, on the party. Proof of service

-3-

in the manner provided in Rule 20(e) shall be filed with the clerk of the trial

court within 7 days after service. The appellant shall note on each copy served

the date on which the notice of appeal was filed. Service shall be sufficient

notwithstanding the death of a party or counsel.

Rule 5(a) is not jurisdictional and may be suspended, provided good cause for suspension of

the rule is present. Tenn. R. App. P. 2; G.F. Plunk Const. Co., Inc. v. Barrett Properties,

Inc., 640 S.W.2d 215, 217 (Tenn. 1982). This court may suspend the rule “in a particular

case on motion of a party or on [our] own motion and may order proceedings in accordance

with [our] discretion.” Tenn. R. App. P. 2.

Here, Ms. Keith was pro se and had attempted to follow the rules for appealing the

trial court decision by filing a notice of appeal with the trial court clerk. Within two weeks

of the filing of the notice of appeal, the appellate court clerk notified Mr. Gatti’s that the

appeal had been docketed, thereby indirectly providing Mr. Gatti’s with notice that Ms. Keith

had filed a notice of appeal.3 See Tenn. R. App. P. 5(c). Mr. Gatti’s does not submit that it

was prejudiced by Ms. Keith’s failure to serve it with a copy of the notice of appeal. We

believe that given Ms. Keith’s status as a pro se litigant and the fact that Mr. Gatti’s received

notice of the appeal and was not prejudiced by Ms. Keith’s failure to comply with the rule,

suspension of the rule is appropriate in this case.

In so holding, we recognize that pro se litigants “‘must follow the same procedural

and substantive law as the represented party.’” Edmundson v. Pratt, 945 S.W.2d 754, 755

(Tenn. Ct. App. 1996) (quoting Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct.

App. 1988)). However, we will not discount Ms. Keith’s status as a pro se litigant in

determining whether good cause is present for suspension of the rule implicated in this case.

We also recognize that the Tennessee Supreme Court has held that the absence of prejudice

was not a valid reason for suspending a somewhat similar rule. Lambert v. Home Federal

Sav. & Loan Ass’n., 481 S.W.2d 770, 771-72 (Tenn. 1972). In Lambert, the Court noted that

the rule at issue, the filing of the assignments of error, brief, and argument within the time

frame provided by the rules, was for the benefit of the Court, not the litigants. Id. at 772.

The Court stated that the rule was “directed at one of the most important objectives of this

Court: the prompt dispatch of judicial business.” Id. That same objective is not at issue here.

The portion of the rule not complied with, serving the notice of appeal on opposing counsel,

was intended for the benefit of the litigants, not the trial court. Ms. Keith’s failure to serve

Mr. Gatti’s with a copy of the notice of the appeal did not disrupt the filing of the appeal with

this court or the time limitations applicable to the furtherance of the expeditious nature of

3

Likewise, the appellate court clerk also notified Regas that the appeal had been docketed after the notice

of appeal and the second order were filed.

-4-

appeals in this court. Once the notice of appeal was filed with the trial court, the trial court

clerk was tasked with notifying the appellate court clerk, who docketed the appeal in this

court and notified the parties that the appeal had been docketed. With all of the above

considerations in mind, we decline to dismiss this case because of Ms. Keith’s failure to

serve opposing counsel with a copy of the notice of appeal.

B.

1. Regas

Ms. Keith argues that trial court should not have dismissed her case because she re-

filed the case within one year of the court’s dismissal of the case without prejudice. Regas

responds that the initial case filed against it was never filed within the applicable statute of

limitations or the time in which Ms. Keith could amend her pleadings. Regas argues that Ms.

Keith cannot use the saving statute to re-file the claim when it was never properly filed in the

first place. In the alternative, Regas alleges that dismissal was appropriate because the case

against it was originally dismissed with prejudice by order in 2002 and that the dismissal

became final 30 days after the 2009 order disposing of the entirety of the case, precluding an

appeal or the re-filing of the case pursuant to the saving statute.

The suit against Mr. Gatti’s was originally filed on June 29, 1999, and the amended

complaint adding Regas as a defendant was filed in November 2000.4 Citing Rule 15.03 of

the Tennessee Rules of Civil Procedure, the trial court dismissed the case on May 6, 2002,

without specifying whether the dismissal was with prejudice.

We believe the order of dismissal was not an appealable final judgment because the

claim against Mr. Gatti’s still remained and was not resolved until 2009. Tenn. R. App. P.

3(a). “A judgment that does not resolve all the claims between all the parties may

nevertheless be considered a final judgment if the trial court certifies it as final in

accordance” with Rule 54.02 of the Tennessee Rules of Civil Procedure. Shofner v. Shofner,

181 S.W.3d 703, 713 (Tenn. Ct. App. 2004). Absent this certification, “any order or other

form of decision, however designated, that adjudicates fewer than all the claims or the rights

and liabilities of fewer than all the parties shall not terminate the action as to any of the

claims or the parties.” Tenn. R. Civ. P. 54.02. The trial court in this case did not certify the

judgment as final. Therefore, the 2002 order of dismissal was “not enforceable or

appealable” and was “subject to revision at any time before entry of a final judgment

adjudicating all the claims, rights, and liabilities of all parties.” Tenn. R. App. P. 3(a). The

4

We are unable to read the file stamp, but the amended complaint reflects that it was submitted on November

21, 2000.

-5-

final judgment entered in 2009 did not purport to amend the 2002 dismissal. Thus, once all

of the issues were disposed of by the 2009 order, Ms. Keith was finally able to appeal the

2002 dismissal. See Fletcher v. White, No. E2009-01199-COA-R3-CV, 2010 WL 3715624,

at *3 (Tenn. Ct. App. Sep. 22, 2010) (holding that it was not until all claims were disposed

of that the plaintiffs could appeal an earlier grant of summary judgment), perm. app. denied

(Tenn. Feb. 17, 2011).

However, Ms. Keith never appealed from the 2009 judgment. A notice of appeal

“must be filed with and received by the trial court within 30 days after the entry of the

judgment appealed from.” Tenn. R. App. P. 4(a). “The [30-day] time limit for filing a notice

of appeal is mandatory and jurisdictional in civil cases.” Albert v. Frye, 145 S.W.3d 526,

528 (Tenn. 2004) (emphasis added). We believe that Ms. Keith’s failure to appeal from the

2009 judgment precluded review of the trial court’s 2002 dismissal of the case against Regas

and any further action on the claim against Regas. Accordingly, we conclude that the trial

court did not err in dismissing the 2010 complaint relative to Regas because it was filed after

a judgment of dismissal had been entered and subsequently became final as to that claim.

2. Mr. Gatti’s

Ms. Keith argues that trial court erred in dismissing her case because she re-filed the

action within the applicable time limit given by the trial court. Mr. Gatti’s responds that

dismissal was appropriate because the case was re-filed beyond the time allotted in the saving

statute. Mr. Gatti’s asserts that the 2007 order effectively dismissed the case 60 days from

its entry because Ms. Keith failed to comply with the court’s directions. Mr. Gatti’s contends

that the trial court also dismissed the case based upon the doctrine of laches and that because

Ms. Keith did not raise any argument regarding the trial court’s dismissal on that ground, she

waived review of the issue, thereby leaving this court with the only option of upholding the

decision of the trial court.

Relative to Mr. Gatti’s waiver argument, we acknowledge that Ms. Keith’s brief is

short and lacking in legal argument. However, the issues before us do not require a lengthy

legal analysis. Both issues implicate the time for filing the complaint and proceeding with

litigation, issues briefly discussed by Ms. Keith when she stated that the case should not be

dismissed because she complied with the time limits for re-filing the case. We believe her

argument is applicable and sufficient to merit review of the trial court’s dismissal of the case

based upon the statute of limitations and the doctrine of laches.

Actions for personal injuries must be commenced within one year after the cause of

action accrued. Tenn. Code Ann. § 28-3-104(a)(1). The injury occurred on June 29, 1998,

and Ms. Keith filed her first complaint on June 29, 1999, within the one-year limitation

-6-

applicable to such actions. While many years of protracted litigation ensued, the action

against Mr. Gatti’s was not dismissed until July 16, 2009. While the 2007 order instructed

Ms. Keith that her case would be dismissed in 60 days for failure to comply with the order,

the case was not dismissed until 2009, when the trial court entered an order dismissing the

case. Tenn. R. App. P. 3(a). By order of the court, the 2009 order of dismissal was entered

without prejudice. The new complaint was filed within one year of the dismissal of the case

without prejudice. Thus, the saving statute codified in Tennessee Code Annotated section

28-1-105 and entitled as “New Actions” is applicable. The saving statute provides, in

pertinent part,

(a) If the action is commenced within the time limited by a rule or statute of

limitation, but the judgment or decree is rendered against the plaintiff upon any

ground not concluding the plaintiff’s right of 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 representatives and privies, as the case

may be, may, from time to time, commence a new action within one (1) year

after the reversal or arrest.

Tenn. Code Ann. § 28-1-105(a). We conclude that the statute of limitations did not bar the

filing of the new action because the second complaint was filed within one year of the

dismissal of the case without prejudice.

We must now determine whether the doctrine of laches barred the filing of the second

complaint. Mr. Gatti’s asserts that they have endured over 12 years of litigation arising from

an injury that occurred in 1998. They argue that if forced to proceed with the case, they will

suffer prejudice and injury resulting from the loss of memory, evidence, and witnesses.

“‘The defense of laches is based [up]on the doctrine of equitable estoppel, and is only

applied where the party invoking it has been prejudiced by the delay.”’ Brown v. Ogle, 46

S.W.3d 721, 726 (Tenn. Ct. App. 2000) (quoting Freeman v. Martin Robowash, Inc., 457

S.W.2d 606, 611 (Tenn. Ct. App. 1970)). Thus, the doctrine of laches “requires more than

mere delay.” Dennis Joslin Co., LLC v. Johnson, 138 S.W.3d 197, 200 (Tenn. Ct. App.

2003). “It requires an unreasonable delay that prejudices the party seeking to employ laches

as a defense, and it depends on the facts and circumstances of each individual case.” Id.

(citing Brister v. Estate of Brubaker, 336 S.W.2d 326, 332 (Tenn. Ct. App. 1960)). “The

courts are reluctant to sustain the defense of laches, and in a case where the delay in filing

the suit can be reasonably explained or justified, such a defense will not be heard.” Freeman,

457 S.W.2d at 611. “[A]pplication of the doctrine . . . lies within the discretion of the trial

court.” Brown, 46 S.W.3d at 727.

-7-

Mr. Gatti’s alleged in its motion to dismiss that Ms. Keith’s “negligence and

unreasonabl[e] delay in bringing this lawsuit and prosecuting the first lawsuit has caused

prejudice [] because there will be a loss of evidence, death of witnesses, and failure of

memory resulting in the obstruction of facts and uncertain ascertainment of truth.” However,

Mr. Gatti’s did not plead any specific facts in support of the general assertion of prejudice.

In Brown, this court upheld the application of the doctrine of laches, citing the death of a

witness, the loss of documents, and the loss of memory in support of the trial court’s

decision. Unlike the defendant in Brown, Mr. Gatti’s has not provided any examples of

actual prejudice that would occur if the suit were to proceed. Accordingly, we conclude that

the trial court erred in applying the doctrine of laches. We reverse the decision of the trial

court relative to the dismissal of the case against Mr. Gatti’s and remand the case for

proceedings consistent with this opinion.

V. CONCLUSION

The judgment of the trial court is affirmed in part and reversed in part, and the case

is remanded for such further proceedings as may be necessary. Exercising our discretion, we

tax the costs on appeal one half to Chanda Keith and one half to LDB Corporation operating

in Tennessee as Mr. Gatti’s Incorporated doing business as Mr. Gatti’s.

______________________________________

JOHN W. McCLARTY, JUDGE

-8-