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Reque v. Monteagle Truck Plaza9/20/1999
tion first filed in the courts of another state and subsequently dismissed for non-dispositive reasons. The Elias decision had been the law of Tennessee for five years when the legislature enacted Tenn. Code Ann. § 28-1-115, a "saving statute" that applies to suits first filed in federal court either in Tennessee or a foreign state. See Watson v. Funtown, Inc., No. 01A01-9110-CV-00387, 1992 WL 63417 (Tenn. App. M.S. at Nashville April 1, 1992).
Application of plaintiffs' position on this issue would make Tenn. Code Ann. § 28-1-115 unnecessary as plaintiffs argue that Tenn. Code Ann. § 28-1-105 applies as long as the law suit is first filed in any court within the applicable statute of limitations. The Tennessee Legislature did not agree with this position, and felt it necessary to enact Tenn. Code Ann. § 28-1-115, so as to apply a saving statute to suits first filed in any federal court.
The legislature declined to address the reasoning of Sigler v. Youngblood Truck Lines as adopted by Elias v. A & C Distributing Company, Inc. at that time, or when Tenn. Code Ann. § 28-1-105 was revised in 1985 and 1989. The 1985 revision specifically addressed a jurisdictional issue, while the 1989 amendment incorporated contractual limitation periods into the statute. The Tennessee Legislature has had both the power and the opportunity to revise Tenn. Code Ann. § 28-1-105 to make it applicable to a suit first filed in a state court of a state other than Tennessee. What the Tennessee Legislature has not had is the inclination to make this revision. As the Tennessee legislature has declined these opportunities to supersede the ruling of this Court in Elias by legislative enactment, it remains the law of Tennessee.
CONCLUSION
The Trial Court did not err in declining to apply Tenn. Code Ann. § 28-1-105 under the facts of this case in sustaining the defendants' motion to dismiss for failure of the plaintiffs to timely file their cause of action under Tenn. Code Ann. § 28-3-104. The judgment of the Trial Court is affirmed and the cause remanded for such further proceedings, if any, as may be required, consistent with this Opinion, and for collection of the costs below. Costs on appeal are adJudged against the appellant.
D. MICHAEL SWINEY, J.
CONCUR: HOUSTON M. GODDARD, P.J. HERSCHEL P. FRANKS, J.
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