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Frazier v. East Tennessee Baptist Hospital9/26/2000
ers has failed to show that the Board and its individual members knew that but for Rainey Brothers' mistake, they would have been named as parties to the actions to which they were later added by the second amended complaints. Furthermore, Rainey Brothers has failed to show that the failure to name these defendants in the original complaints resulted from a mistake concerning their identity. The defendants must remain those named in the original pleadings.
Our review of the Rule in question and the foregoing authority addressing it, convinces us that there are two types of amendments that may relate back. The first is one where the claim asserted is not a new cause of action, but rather arose out of the occurrence set forth or attempted to be set forth in the original pleading. The second, which Ms. Frazier asserts is controlling, addresses changing of a party defendant. It is clear to us that in the case at bar there was no "misnomer or other similar mistake."
While it is true that the original complaint transposed some words in the proper name of Baptist Hospital, no objection was made as to this in the answer filed by the Hospital, which specifically states in the caption the correct name--Baptist Hospital of East Tennessee, Inc. Thus, the Hospital made a general appearance using its correct name. Moreover, the amended complaint again used the incorrect name for the Hospital, but the motion to dismiss again uses the correct name. Accordingly, we find no "misnomer or mistake concerning" identity, which would enable Ms. Frazier to claim the benefits of the Rule 15.03.
For the foregoing reasons the judgment of the Trial Court is affirmed and the case remanded for collection of costs below. Costs of appeal are adjudged against Ms. Frazier, as Administratrix, and her surety.
APPENDIX
28-1-105. New action after adverse decision - Contractual limitations periods.--(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. Actions originally commenced in general sessions court and subsequently recommenced pursuant to this section in circuit or chancery court shall not be subject to the monetary jurisdictional limit originally imposed in the general sessions court.
15.03 Relation Back of Amendments.--Whenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party or the naming of the party by or against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
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