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Stone v. Bellsouth Telecommunications9/14/2000
Plaintiff nonsuited complaint for personal injuries approximately four years after suit was filed without having taken any action to prosecute the suit. Another complaint was filed within one year of the non-suit pursuant to T.C.A. § 28-1-105 and summons was issued the same day. The summons was not returned, and plaintiff, one day short of a year later, issued alias summones and service was effected. Defendant filed a motion to dismiss on the ground that the complaint was "time barred." The trial court, while finding that the suit was not time barred, dismissed the complaint on its merits for failure to diligently prosecute. Plaintiff has appealed. We reverse.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed
W. Frank Crawford, P.J., W.S., delivered the opinion of the court, in which Alan E. Highers, J. and David R. Farmer, J., joined.
MEMORANDUM OPINION
Plaintiff/appellant, Billy R. Stone, appeals the order of the trial court granting a motion to dismiss filed by defendant/appellee, Bellsouth Telecommunication, Inc.
The facts are not in dispute. On October 11, 1993, plaintiff filed a complaint alleging that on October 12, 1992, he tripped over a telephone line negligently placed by defendant. A voluntary non-suit was taken on the original complaint by order entered July 22, 1997. The case before us was filed on July 21, 1998, and summons was issued that day to the Sheriff of Hamilton County. However, the summons was not returned, and plaintiff issued alias summonses on July 20, 1999. The summonses were served by certified mail on August 5, 1999.
Defendant filed a motion to dismiss on the grounds that plaintiff's complaint was time barred. The trial court granted defendant's motion to dismiss the complaint. The order states:
The defendants' Motion to Dismiss the Complaint is granted. Although the Court does not believe that the case is barred by the Statute of Limitations, the Court is of the opinion that the plaintiff has not diligently prosecuted his claim, which is for an injury that allegedly occurred on October 12, 1992.
Accordingly, the Complaint is dismissed with prejudice. Costs are assessed to the plaintiff and sureties, for which execution may issue.
SO ORDERED, this the 25th day of October, 1999.
Plaintiff has appealed, and the only issue for review is whether the trial court erred in granting defendant's motion to dismiss.
Plaintiff asserts that the trial court erred in finding that he had not diligently prosecuted his personal injury claim. He asserts that the prior suit was voluntarily nonsuited and timely refiled pursuant to T.C.A. § 28-1-105 (Supp. 1999). He argues that any failure to prosecute must be based on actions taken in the suit before us. Defendant asserts that the entire history of the case, including plaintiff's failure to answer discovery requests associated with the original complaint, should be taken into consideration. We disagree.
The "savings statute" accords unto a plaintiff who files a second action within one year of the voluntary non-suit of his first suit the same procedural and substantive benefits which were available to the plaintiff in the first action. See Energy Saving Products, Inc. v. Carney, 737 S.W.2d 783 (Tenn. Ct. App. 1987). Since the plaintiff timely refiled his suit, his actions in prosecuting the suit should be judged in accordance with the properly filed complaint. We, by no means, condone the conduct of plaintiff's attorney in his prosecution of the complaint originally filed. By the same token, it appears that that case could have been moved forward more expeditiously
Page 1 2 Tennessee Personal Injury Attorneys
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