The opinion
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
NATHANIEL LILLARD and wife ) Nov. 9, 1995
PELINDA LILLARD, )
) Cecil Crowson,
Plaintiffs/Appellants, ) Jr.
) Davidson Circuit Appellate Court Clerk
) No. 94C-2716
VS. )
) Appeal No.
) 01-A-01-9506-CV-00268
RICHARD H. PINCKLEY and )
COURIER PRINTING CO., INC., )
)
Defendants/Appellees. )
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE BARBARA N. HAYNES, JUDGE
For the Plaintiffs/Appellants: For the Defendants/Appellees:
Lionel R. Barrett, Jr. Brenda M. Dowdle
Nashville, Tennessee Lassiter, Tidwell & Hildebrand
Nashville, Tennessee
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the dismissal of a nine-year-old personal injury action
stemming from a collision between a truck and an automobile that was part of a
funeral procession. The driver of the automobile and his wife filed suit in the
Circuit Court for Davidson County against the owner and driver of the truck.
Following two non-suits, the plaintiffs filed their third complaint more than five
years after taking their first non-suit. The trial court granted the defendants’
motion for summary judgment based on the statute of limitations. The plaintiffs
assert on this appeal that the trial court’s decision is inconsistent with the “spirit”
of the savings statute as recently construed by the Tennessee Supreme Court. We
affirm the summary judgment and also find that this appeal is frivolous.
Accordingly, we remand the case for the determination of damages for a frivolous
appeal.
I.
Nathaniel Lillard was driving in a funeral procession on November 25, 1985
when his automobile was struck by a truck owned by Courier Printing Company
that was being driven by Richard H. Pinckley. Mr. Lillard and his wife were
injured in the collision, and their automobile was damaged. On November 25,
1986, Mr. Lillard and his wife filed suit against Courier Printing and Mr. Pinckley
seeking compensatory and punitive damages.
The Lillards filed a notice of voluntary dismissal on March 10, 1989, and
the trial court entered an order on March 22, 1989, dismissing their complaint
without prejudice and assessing the costs against them. The Lillards filed their
second complaint on March 12, 1990; however, their lawyer filed a second notice
of voluntary dismissal on August 20, 1993. The trial court entered an order
dismissing the complaint and taxing the costs on August 23, 1993.
The Lillards filed their third complaint against Courier Printing and Mr.
Pinckley on August 22, 1994. Courier Printing and Mr. Pinckley filed a properly
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supported motion for summary judgment asserting that the Lillards’ claim was
time-barred. The Lillards conceded that the existing judicial construction of the
savings statute supported the defendants’ motion but asserted that the Tennessee
Supreme Court had heard argument in a case that would overrule these
precedents.1 The trial court granted the summary judgment on April 11, 1995.
II.
We turn first to the brief filed on behalf of the Lillards. The brief itself
states that “[t]he Brief of the Plaintiffs/Appellants in this case is largely identical
to the Brief submitted to this Court in the Cronin case, which is pending before
the Tennessee Supreme Court.” The statement is sadly correct. In fact, the
argument section of the Lillards’ brief is essentially a verbatim copy of the brief
filed with the Eastern Section on Ms. Cronin’s behalf on December 28, 1993.
The Lillards’ lawyer played no role in the trial or appeal of Cronin v. Howe.
He is using other lawyers’ work in an unrelated case to advance the interests of his
clients in this case. While he made several cosmetic changes in the text of Ms.
Cronin’s brief, he did not remove references to Ms. Cronin2 or to the medical
malpractice statute of repose.3 He even mischaracterized his own clients’ claim
1
The Lillards were referring to Cronin v. Howe. The Eastern Section held that the savings
statute did not apply to medical malpractice actions that were nonsuited and refiled beyond the
three-year statute of repose for medical malpractice actions. Cronin v. Howe, App. No. 03-A-01-
9310-CV-00379, 19 T.A.M. 13-8 (Tenn. Ct. App. March 3, 1994). The Tennessee Supreme
Court granted Ms. Cronin’s application for permission to appeal on June 13, 1994 and heard oral
argument on January 3, 1995. On September 5, 1995, the Court held that the savings statute
permitted Ms. Cronin to voluntarily dismiss and then refile her complaint after the expiration of
the medical malpractice statute of repose. Cronin v. Howe, App. No. 03-S-01-9406-CV-00053,
slip op. at 10-11, 20 T.A.M. 37-3 (Tenn. Sept. 5, 1995) (For Publication).
2
The brief states on page 18 that “[i]n the instant case, Ms. Cronin filed the suit . . . well
within the statute of limitations and the statute of repose.”
3
The brief states on page seven that “[p]laintiffs Lillard cannot be denied their right to
a fair trial simply because their lawfully refiled cause of action fell outside the statute of repose.”
In addition, it cites to Tenn. Code Ann. § 29-26-116 (1980) on page eleven and argues on page
eighteen that “[t]he mere fact that the more restrictive medical malpractice statue of repose exists
does not necessarily indicate that the legislature intended to eliminate the rights of medical
malpractice patients.”
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as a “malpractice action." 4 Of course, neither Ms. Cronin nor the three-year
statute of repose for medical malpractice actions has anything to do with the
Lillards’ cause of action in this case.
Copying the work of another lawyer in an unrelated case is unacceptable.
It evinces disrespect for one’s client, for this court, and, more importantly, for the
law itself. It also calls into serious question whether the lawyer is competently
and zealously representing his or her client. We would normally strike the brief
and direct its author to submit a new one more consistent with the type of work we
expect from the members of the bar of this court. However, we see no need to
require rebriefing in this case because this appeal is patently frivolous.
III.
The General Assembly recognized very early in our state’s history that
diligent plaintiffs should have an opportunity to renew lawsuits that were
dismissed for any reason not concluding their right of action. Today, Tenn. Code
Ann. § 28-1-105(a) (Supp. 1995) provides, in part:
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.
This statute, now commonly referred to as the “savings statute,” is considered
remedial and, thus, is construed liberally to preserve the rights of diligent
plaintiffs. Kee v. Shelter Ins. Co., 852 S.W.2d 226, 228 (Tenn. 1993); Dukes v.
Montgomery County Nursing Home, 639 S.W.2d 910, 912-13 (Tenn. 1982). It has
never been construed, however, to insulate plaintiffs from their own laches,
4
The brief states on page 15 that “the instant case encompasses a malpractice action under
Tennessee’s Medial [sic] Malpractice Review Board and Claims Act of 1975.” (Boldface
type in the original brief).
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negligence, or other similar fault. Moran v. Weinberger, 149 Tenn. 537, 543, 260
S.W. 966, 967 (1924).
The savings statute is not open-ended. By its own terms, it provides a
plaintiff with one year within which to refile its action after it has been concluded.
The one-year period is the maximum amount of time permitted by the savings
statute, and it cannot be extended by successive voluntary dismissals. Turner v.
N. C. & St. L. Ry., 199 Tenn. 137, 141, 285 S.W.2d 122, 124 (1955); Bennett v.
Town & Country Ford, Inc., 816 S.W.2d 52, 54 (Tenn. Ct. App. 1991). This court
held over fifteen years ago that the savings statute would not preserve a third suit
for the same cause of action filed more than one year after the second dismissal
of the suit. Payne v. Matthews, 633 S.W.2d 494, 496 (Tenn. Ct. App. 1982).
The Lillards’ lawyer acknowledged in the trial court that the holding of
Payne v. Matthews would require the dismissal of the Lillards’ third complaint.
He asserted, however, that the Tennessee Supreme Court would overrule Payne
v. Matthews when it decided Cronin v. Howe. The trial court was apparently not
swayed by the lawyer’s prediction and determined that the summary judgment was
appropriate based on the undisputed facts of the case.
The predictions of the demise of Payne v. Matthews proved to be premature.
Ms. Cronin had refiled her complaint within one year after her voluntary
dismissal. Accordingly, Cronin v. Howe involved the relationship between the
savings statute and the medical malpractice statute of repose, not the time within
which a complaint must be refiled after a voluntary dismissal. The Tennessee
Supreme Court held:
[A] plaintiff who voluntarily non-suits the initial action
may rely upon the savings statute and refile within one
year of the non-suit, even if the non-suit and the refiling
occur beyond the three-year statute of repose.
Cronin v. Howe, supra, slip op. at 10-11. Nothing in the Court’s decision states
or even implies that the holding of Payne v. Matthews is no longer valid or that
plaintiffs could extend the time for refiling their complaints by taking successive
voluntary nonsuits.
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Payne v. Matthews is consistent with the traditional understanding of both
the letter and the “spirit” of the savings statute. The statute’s purpose is simply
to give deserving plaintiffs a “brief period” within which to refile their suit after
it has been concluded inconclusively. Nashville, C. & St. L. Ry. v. Bolton, 134
Tenn. 447, 455, 184 S.W. 9, 11 (1916), and this “brief period” cannot be extended
by successive voluntary dismissals. Turner v. N. C. & St. L. Ry., 199 Tenn. at 141,
285 S.W.2d at 124. The Lillards’ opportunity to refile their suit expired on March
22, 1990 - one year after the entry of the order granting their first voluntary
dismissal.5 Thus, their third complaint filed on August 22, 1994, came too late.
IV.
We affirm the summary judgment and also find that this appeal is frivolous.6
Its outcome is clearly controlled by Payne v. Matthews, and the Tennessee
Supreme Court’s decision in Cronin v. Howe has no bearing on the continuing
validity of Payne v. Matthews. Accordingly, we award damages for a frivolous
appeal to Courier Printing and Mr. Pinckley, including all their costs and expenses
on this appeal. We remand the case to the trial court for the assessment of these
damages, and we also tax the costs jointly and severally to Nathaniel and Pelinda
Lillard for which execution, if necessary, may issue.
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WILLIAM C. KOCH, JR., JUDGE
CONCUR:
__________________________________
5
The Tennessee Supreme Court stated in Rickets v. Sexton, 533 S.W.2d 293, 294 (Tenn.
1976) that the filing of a notice of voluntary dismissal was all that was required to take a
voluntary nonsuit. However, this court later held that the savings statute begins to run from the
date of the entry of the order dismissing the suit without prejudice, not from the date of the filing
of the notice. Evans v. Perkey, 647 S.W.2d 636, 640-41 (Tenn. Ct. App. 1982).
6
A frivolous appeal is one that is devoid of merit or that has little prospect of succeeding.
Industrial Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). Tenn. Code Ann.
§ 27-1-122 (1980) empowers this court to award reasonable damages, including attorneys fees,
for filing a frivolous appeal upon the motion of a party or upon the court's own motion.
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HENRY F. TODD, P.J., M.S.
__________________________________
BEN H. CANTRELL, JUDGE