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Frye v. Blue Ridge Neuroscience Center3/12/2001
Plaintiff sued Defendants on November 25, 1998, alleging medical malpractice. Summonses were issued but never served on Defendants or returned to the court. Process was never reissued on the first Complaint. A voluntary non-suit was entered by the Trial Court on June 8, 1999. On November 22, 1999, Plaintiff refiled a similar lawsuit, process issued, and Defendants were served the next day. Defendants filed summary judgment motions claiming that the statute of limitations had run because Plaintiff failed to have process reissued on the first Complaint as required by Rule 3 of the Tenn. R. Civ. P. Plaintiff claimed compliance with Rule 3, and, therefore, that the second lawsuit was filed within the statute of limitations. The Trial Court denied the summary judgment motions after determining that Defendants had actual notice of the first lawsuit and thus the spirit of the rules had been complied with. The Trial Court granted Defendants' request for an interlocutory appeal. We granted this interlocutory appeal to decide whether Plaintiff can comply with Rule 3 of the Tenn. R. Civ. P. not by obtaining issuance of new process in his original lawsuit within the one year period provided for in Rule 3, but instead by voluntarily dismissing the first lawsuit and refiling a similar lawsuit with the issuance of process in the second lawsuit within the one year period. Our answer is "no." We reverse the decision of the Trial Court.
Interlocutory Appeal Pursuant to Rule 9, Tenn. R. App. P.; Judgment of the Law Court Reversed; Case Remanded
D. Michael Swiney, J., delivered the opinion of the court, in which Houston M. Goddard, P.J., and Charles D. Susano, Jr., J., joined.
OPINION
Background
The first Complaint in this medical malpractice action was filed on November 25, 1998, in the Law Court for Sullivan County, Tennessee. At that time Ernest J. Frye ("Plaintiff") was represented by counsel in Norton, Virginia. In the first Complaint, Plaintiff claimed Defendant Gregory N. Corradino, M.D. ("Defendant Corradino") was negligent in providing medical treatment after Plaintiff was in an automobile accident and suffered neck injuries. Although the date(s) of the alleged negligence are not specifically set forth in the Complaint, it is clear that any alleged negligence occurred on or before January 18, 1998. Plaintiff also sued Dr. Corradino's employer, Blue Ridge Neuroscience Center, P.C. ("Defendant Blue Ridge").
When the original Complaint was filed, summonses were issued and given to Plaintiff's counsel. The summonses were never returned to the court indicating whether or not service had been accomplished on either Defendant. It is undisputed that Defendants were never served with process and that process was never reissued. Neither Defendant made an appearance in the original lawsuit and no answers were filed. On February 26, 1999, counsel for Defendant Blue Ridge sent a proposed Notice of Voluntary Dismissal and a proposed Order of Voluntary Dismissal to Plaintiff's counsel. Defendant Blue Ridge was, therefore, aware of the lawsuit, as well as the court in which it was pending and the docket number. In the proposed notice, the certificate of service indicated that a copy of the notice and order were being sent to counsel for both Defendants. The proposed notice and order were not utilized by Plaintiff, who on June 7, 1999, filed a different Notice of Voluntary Dismissal and proposed Order. This notice did not contain a certificate of service. The Order granting the voluntary dismissal pursuant to Rule 41.01 of the Tenn. R. Civ. P. was entered by the Trial Court on June 8, 1999.
On November 22, 1999, Plaintiff, represented by different cou
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