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Jefferson v. Captain D's Restaurant8/16/2000
In this personal injury action, plaintiff timely filed suit, which was subsequently dismissed for failure to prosecute. Another suit was commenced within one year of the first dismissal. This suit was voluntarily nonsuited at a later date. A third suit was commenced within one year of the voluntarily non-suit, but more than one year from the date of the first dismissal. The trial court granted summary judgment on the ground that the suit was barred by the statute of limitations. Plaintiff has appealed.
Tenn.R.App.R. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
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.
OPINION
Plaintiff/appellant, Walter Jefferson, appeals the order of the trial court granting summary judgment to defendant/appellee, Captain D's Restaurant a/k/a Shoney's Inc., and TPI Restaurants, Inc. (hereinafter Restaurant).
The facts are not in dispute. On June 5, 1992, plaintiff filed a complaint alleging that on July 18, 1991, while in defendant's restaurant, he slipped on a slippery substance which resulted in injury. On June 2, 1994, the trial court dismissed the case for failure to prosecute. Plaintiff filed a second complaint on September 23, 1994, with essentially the same allegations as the original complaint. A voluntary non-suit was taken on the second complaint by order entered June 23, 1997. The case before us was filed on June 17, 1998, almost four years after the dismissal of the first action on June 21, 1994. Defendant filed a motion for summary judgment on the grounds that the action was barred by the applicable statute of limitation. The trial court granted defendant's motion on August 19, 1999, and plaintiff appeals.
The only issue for review is whether the trial court erred in granting summary judgment to defendant.
A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence.
Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). In this case, there is no dispute concerning the pertinent data, and the only question is whether defendant is entitled to summary judgment as a matter of law. Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court's grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
Plaintiff contends that the trial court erred in granting the defendant's motion for summary judgment. He argues that a plaintiff has the right to two dismissal and two subsequent re-filings, if these dismissal are without prejudice, and if each re-filing is within one year of the most recent dismissal. Plaintiff concedes that case law exists contrary to his argument, but asserts that T.C.A. ยง 28-1-1-105 and Tenn. R. Civ. P. 41.01 have been misinterpreted.
Defendant c
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