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Durbin v. Sumner County Regional Health Systems9/6/2001
6, the appellants filed suit against the Hospital and several individual nurses. Dr. Caldwell was not included as a defendant with the initial filing. The Hospital reserved the right to rely on comparative fault when it filed its answers, and subsequent amended answers. The appellants and the Hospital deposed Dr. Caldwell on July 28, 1997. On December 4, 1997, the Hospital amended its answer to "invoke the defense of comparative fault" citing the actions of Dr. Caldwell. This motion was granted by agreed order. On February 11, 1998, appellants moved to name Dr. Caldwell as a party to their complaint. Dr. Caldwell filed an answer which denied the allegations included in the amended complaint, and also argued that the appellants' amendment adding him as a party was time-barred. On June 4, 1999, Dr. Caldwell moved to dismiss the appellants' action against him because it was barred by the statute of limitations. The motion was continued indefinitely due to the death of the trial judge. On March 22, 2000, the appellants and the Hospital opposed Dr. Caldwell's motion to dismiss. The trial judge heard the motion on April 4, 2000, and reserved the right to issue a ruling after the hearing of the proof at trial. The Hospital and Dr. Caldwell both filed motions in limine to exclude evidence on several issues. At the pretrial conference held April 14, 2000, the appellants dismissed their claims against the individual nurses. The trial began April 18, 2000. The trial court granted both the Hospital's and Dr. Caldwell's motions in limine. On May 2, 2000, the jury returned a verdict in favor of the Hospital and Dr. Caldwell. The trial court then held that the appellants' claims against Dr. Caldwell were barred by the statute of limitations and entered an order to that effect on May 15, 2000. The appellants filed a motion for judgment notwithstanding the verdict and new trial on May 25, 2000. The Hospital and Dr. Caldwell filed motions for discretionary costs. The trial court denied the appellants' motion and granted the Hospital and Dr. Caldwell discretionary costs.
II. Dr. Caldwell's Motion to Dismiss
The appellants challenge the trial court's post-trial dismissal of Dr. Caldwell.
Because the notice of appeal did not specify the May 15, 2000 order, Dr. Caldwell first argues that appellants failed to timely appeal from the trial court's order granting the motion to dismiss. The appellants did, however, include the granting of the motion to dismiss in their motion for a new trial. Therefore, the issue was preserved. The trial court filed an order denying the appellants' motion for a new trial on July 27, 2000. This order is the beginning of the time for the appellants to file their appeal. The appellants' notice of appeal on August 17, 2000 was within the thirty day time limit. Therefore, we hold that the appeal includes the order dismissing Dr. Caldwell on statute of limitations grounds.
Turning to the merits of this issue, we note initially that there has been some confusion in the briefs submitted as to whether the motion should have been treated as a motion for summary judgment or a motion to dismiss. A motion to dismiss under Tenn. R. Civ. P. 12.02(6), failure to state a claim upon which relief can be granted, is converted to a motion for summary judgment if the trial judge considers matters outside the pleadings. Tenn. R. Civ. P. 12.02. This motion to dismiss is based on the expiration of the statute of limitations, Tenn. R. Civ. P. 8.03. The motion has not been converted to a motion for summary judgment, and we address it as a motion to dismiss.
The trial court stated "Based upon the record as a whole, the Court finds that there is no genuine issue of material fact
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