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Jefferson v. Captain D's Restaurant8/16/2000
ontends that while Tenn. R. Civ. P. Rule 41.01 gives a litigant the right to take two voluntary nonsuits, that right is subject to the provisions of any statute, namely T.C.A. 28-1-105. Defendant correctly relies on Payne v. Matthews, 633 S.W.2d 494 (1982), which states in part:
The Tennessee saving statute, formerly T.C.A. Sec. 28-106, now T.C.A. Sec. 28-1-105, has been considered several times by our courts. It has long been held that after the taking of any non-suit to the original action, any additional suits would have to be filed within one year of the first non-suit to be within the purview of T.C.A. Sec. 28-1-105. See, Reed. v. Cincinnati, N.O. & T.P. Railroad Co., 136 Tenn. 499, 190 S.W. 458 (1916). While many of these cases deal with consecutive voluntary nonsuits, it is clear from the wording of the statute that its scope is broader than that. T.C.A. Sec. 28-1-105 [now 28-1-105(a)] reads as follows:
28-1-105. New action after adverse decision. -- If the action is commenced within the time limited by a rule of statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his 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 his 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.
This Court has addressed the question of the possible conflict between T.C.A. Sec. 28-1-105 and Rule 41.01 of the Tennessee Rules of Civil Procedure in the case of Marie R. Ellison, et al v. Browning- Ferris, et al in a unreported opinion by Judge Summers, filed December 15, 1980. Judge Summers writes for the Court:
The next question to be answered by this court is whether Rule 41.01 of the Tennessee Rules of Civil Procedure enlarges the time in which a party can refile after a voluntary non-suit has been taken.
Rule 41.01 clearly states that a plaintiff shall have a right to take a voluntary non-suit or to dismiss an action without prejudict (sic) subject to the provisions of Rule 23.03, Rule 66, "except when a motion for summary judgment made by the adverse part is pending," and of any statute. Rule 41.01 limits the number of dismissals (nonsuits) that can be taken.
We must therefore hold that T.C.A. Sec. 28-1-105 addresses itself to time while Rule 41.01 of the Tennessee Rules of Civil Procedure addresses itself to the number of dismissals (nonsuits) that can be taken. There is no conflict between the statute and the rule. Payne v. Matthews, 633 S.W.2d at 495-96.
Clearly, the instant case was not timely filed. It was outside the one year period of limitations applicable to personal injury actions. See T.C.A. ยง 28-3-104 (1999 Supp.). Further, since it was filed more than one year after the dismissal for failure to prosecute on June 21, 1994, the plaintiff cannot rely on the savings statute to validate his complaint. Payne, at 145; Hunt v. Shaw, 946 S.W.2d 306, 307-308 (Tenn. Ct. App. 1996).
Accordingly, the order of the trial court granting summary judgment to the defendant is affirmed. Costs of appeal are assessed against appellant, Walter Jefferson.
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