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Counts v. Bryan7/13/2005
Dana Renee Counts sustained physical injuries in a vehicular accident with Jennifer Lynn Bryan on February 26, 1996. She commenced her first action against Ms. Bryan and her parents, Jerry and Geri Bryan, on September 27, 1996. The complaint was served and Defendants filed an answer. Seven months later, on April 16, 1997, Plaintiff voluntarily dismissed her action. She filed this action by filing a complaint on October 28, 1997.
The complaint in this action - the second action - provided the date of the accident; however, it made no reference to the previous action. The complaint, however, did not state the date the first action was commenced, when that action was voluntarily dismissed or that the statute of limitations was tolled by the Tennessee Saving Statute, Tenn. Code Ann. ยง 28-1-105. Thus, on the face of the second complaint it appeared that this action was filed more than one year after the accident in violation of the one-year statute of limitations for personal injury actions. Defendants filed an answer and asserted inter alia the affirmative defense of the statute of limitations. Plaintiff, however, did not amend the complaint to cure the deficiencies. Moreover, she did not introduce evidence during the trial to establish the timely commencement of the first action, the date of the voluntary dismissal, or the timely commencement of this action. After the parties had closed their proof, Defendants put the affirmative defense of the statute of limitations at issue by attempting to argue the defense to the jury. Plaintiff objected and the trial court sustained the objection. Defendant then made the Tenn. R. Civ. P. 50 motion, which the trial court took under advisement. Subsequent to the jury returning a verdict in favor of Plaintiff, the trial court elected to take judicial notice of two facts from the previous action: 1) the date the previous action was commenced, and 2) the date that action was voluntarily dismissed. With the benefit of these additional facts, the trial court determined that the second action did not violate the statute of limitations and denied Defendants' motion. Defendants appealed.
No genuine material factual disputes are presented. The issue presented hinges on the proper interpretation of law and its application to the facts of this case, thus they are questions of law. Memphis Publ'g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 74 (Tenn. 2002); Waller v. Bryan, 16 S.W.3d 770, 773 (Tenn. Ct. App. 1999). Therefore, the trial court's resolution of a question of law is not entitled to Tenn. R. App. P. 13(d)'s presumption of correctness on appeal. Accordingly, we will review the issues de novo and reach independent conclusions regarding them. King v. Pope, 91 S.W.3d 314, 318 (Tenn. 2002).
The dispositive issue is whether the trial court erred by taking judicial notice of two facts from the record of the trial court in the previous action between the parties.
Judicial notice is "a method of dispensing with the necessity for taking proof." State ex rel. Schmittou v. City of Nashville, 345 S.W.2d 874, 883 (Tenn. 1961). "Judicial notice is generally defined as a judge's utilization of knowledge other than that derived from formal evidentiary proof in the pending case." 1 J. Weinstein & M. Berger, Weinstein's Evidence, note 3, 200 at 200-02 (1991). The result of taking judicial notice of a fact is the establishment of the admission of that fact into evidence. Robert Banks, Jr. & Elizabeth T. Collins, Judicial Notice in Tennessee, 21 Mem. St. U. L. Rev. 431, 433 (1991).
Since 1990, Tenn. R. Evid. 201 has governed judicial notice of adjudicative facts. A judicially noticed fact must be one t
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