Evans v. Perkey

• Decision Date: 08 September 1982
• Citation: 647 S.W.2d 636
• Parties: Dr. Samuel B. EVANS, Plaintiff-Appellant, v. Nancy PERKEY and Gary Perkey, Defendants-Appellants, and Willey and Willey, Attorneys, Lorrie Willey and D.T. Willey, Individually, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 636

647 S.W.2d 636

Dr. Samuel B. EVANS, Plaintiff-Appellant, v. Nancy PERKEY and Gary Perkey, Defendants-Appellants, and Willey and Willey, Attorneys, Lorrie Willey and D.T. Willey, Individually, Defendants-Appellees.

Court of Appeals of Tennessee,

Eastern Section.

Sept. 8, 1982.

Permission to Appeal Denied by

Supreme Court Dec. 13, 1982.

Jonathan H. Burnett and Roy L. Aaron, of Hodges, Doughty & Carson and Paul D. Hogan, Jr., of Morton, Lewis, King & Krieg, Knoxville, for plaintiff-appellant Evans.

Rom Meares, of Meares & Meares, Maryville, Barry K. Maxwell and Donald F. Paine, of Egerton, McAfee, Armistead & Davis, Knoxville, for defendants-appellants Perkeys.

Charles Clifford, of Garner & Clifford, Maryville, for defendants-appellees Willeys.

OPINION

SANDERS, Judge.

These appeals are from a judgment of the trial court sustaining motions for summary judgment to an original complaint and also a counter complaint.

This litigation has its genesis in a suit filed by the Defendants-Appellants, Nancy Perkey and Gary Perkey, against the Plaintiff-Appellant, Dr. Samuel B. Evans, and Blount Memorial Hospital, Inc., for medical malpractice. The suit was filed on October 11, 1979, in the Circuit Court of Blount County by Defendants-Appellees, attorneys Lorrie Willie and D.T. Willey, practicing law under the firm name of Willey and Willey. The original suit alleged Dr. Evans and Blount Memorial Hospital, Inc., were guilty of medical malpractice resulting in the death of Kelly Ann Perkey to whom Nancy Perkey gave premature birth on January 2, 1979.

On August 8, 1980, the Perkeys and Willey and Willey, Attorneys, filed a notice of voluntary nonsuit in accordance with Rule 41.01 of Tennessee Rules of Civil Procedure. On August 29, 1980, an order was entered by the court dismissing the suit without prejudice.

On August 12, 1980, Dr. Evans filed suit in the circuit court against Mr. and Mrs. Perkey and Lorrie and D.T. Willey for malicious prosecution and abuse of process. The complaint alleged the action was instituted with improper intent and without probable cause and there was improper use of process with improper intent.

The Defendants, Lorrie Willey and D.T. Willey, filed a motion for summary judgment alleging there was no genuine issue as to any material fact and filed a number of supporting affidavits. The Perkeys filed an answer denying the allegations of malicious intent or lack of probable cause. They also relied upon advice of counsel. They then filed a motion for summary judgment alleging there was no genuine issue of any material facts.

On August 31, 1981, Perkeys filed a complaint and counter complaint against Dr. Evans and Blount Memorial Hospital, Inc., alleging again medical malpractice resulting in the death of their daughter, Kelly Ann Perkey.

Dr. Evans and Blount Memorial Hospital, Inc., each filed a motion for summary judgment. They each alleged the cause of action was barred by the statute of limitations in that the suit was brought more than one year after the alleged wrongful act as provided in T.C.A. § 29-16-116. They also alleged the suit was brought more than one year after the taking of the nonsuit and does not come within the savings statute of T.C.A. § 28-1-105. Dr. Evans, in his motion, also said Mr. and Mrs. Perkey failed to request or obtain leave of the court to set up or assert a counter claim as required by Rule 13.06, T.R.C.P. The hospital, in its motion, said also it is a governmental entity as defined in T.C.A. § 29-20-102 and it was not given written notice as required by T.C.A. § 29-20-301. It also relied upon T.C.A. § 29-20-305. It said the Counter Plaintiffs failed to apply for or obtain leave of the court to set up a counter claim by amendment as required by Rule 13.06, T.R.C.P. It also asserted the Cross Complainants are not entitled to make it a party to the cross complaint under the provisions of Rule 7.01 or 14.01, T.R.C.P. The case does not stand for a jury trial as to it under T.C.A. § 29-20-307 and the limit of its liability under T.C.A. § 29-20-311 and 29-20-403 is $20,000.

Extensive pretrial depositions were taken and the court, upon consideration of the entire record, found the "complaint and cross complaint" was barred by the one-year statute of limitations as set out in T.C.A. § 29-26-116 and 28-3-104. He also found the suit was not refiled in accordance with the requirements of T.C.A. § 28-1-105. Upon making this finding the court stated he found it unnecessary to rule on the remaining grounds of the motions by Dr. Evans and the hospital to dismiss and sustained the motion for summary judgment.

The Perkeys then moved orally to withdraw their motion for summary judgment and set up their action against Dr. Evans as a counter claim in accordance with Rule 13.06, T.R.C.P., but this motion was overruled. The court also sustained a motion for summary judgment as to Lorrie Willey and Dolores T. Willey and dismissed the suit as to them. Dr. Evans took a nonsuit as to the Perkeys, leaving nothing pending for determination by the court.

Mr. and Mrs. Perkey have appealed from the action of the court in dismissing their complaint and counter complaint and Dr. Evans has appealed from the action of the court in sustaining the motion for summary judgment in favor of Lorrie and Dolores T. Willey. Mr. and Mrs. Perkey have presented the following issues for review:

"I. What act or event designates the date of commencement for the one year period prescribed by the Tennessee Savings Statute, T.C.A. § 28-1-105?

"II. Should the trial court have allowed the plaintiffs' motion to set up their claim as an omitted counterclaim, pursuant to Rule 13.06 and Rule 15.01, Tennessee Rules of Civil Procedure ?"

The real question for determination on the first issue is whether the one-year statute of limitations for reinstituting a suit under the savings clause of T.C.A. § 28-1-105 starts from the day notice is given under Rule 41.01, T.R.C.P., that a nonsuit is taken or the day when an order of the court is entered dismissing the suit without prejudice. Rule 41.01 of Tennessee Rules of Civil Procedure provides:

"VOLUNTARY DISMISSAL--EFFECT THEREOF.--

(1) Subject to the provisions of Rule 23.03 or Rule 66 and of any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause; or by an oral notice of dismissal made in open court during the trial of a cause; or in jury trials at any time before the jury retires to consider its verdict and prior to the ruling of the court sustaining a motion for a directed verdict. If a counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff's motion to dismiss, the defendant may elect to proceed on such counterclaim in the capacity of a plaintiff."

On August 8, 1980, the Perkeys and their attorneys filed the following notice:

"NOTICE OF VOLUNTARY NONSUIT

"The Plaintiff's do hereby notify the defendants in this cause that they are exercising their right to take a voluntary non-suit in accordance with the Tennessee Rules of Civil Procedure Rule 41.01 and that as of this date the action is dismissed.

"This 8th day of August, 1980.

/s/ "Nancy Perkey

NANCY PERKEY

/s/ "Gary Perkey

GARY PERKEY

/s/ "Willey & Willey

Willey & Willey, Attorneys

for Plaintiffs"

On August 29 the following order was entered by the court:

"ORDER

"In this cause came the Plaintiffs, by and through their attorneys, and filed a notice of non-suit in the above styled cause on the 8th day of August in accordance with Rule 41.01, Tennessee Rules of Civil Procedure.

"THEREFORE, IT IS ORDERED that this cause be dismissed without prejudice to the Plaintiffs and that the costs of this cause be taxed to the Plaintiffs for which execution may issue if necessary, the Plaintiffs reside at Route 2, Grey Ridge Road, Maryville, Tennessee.

                "This 29  day of Aug. , 1980
                     ---         ------
                            E
                             N
                              T
                               E
                                R: /s/ J. H. Jarvis
                                   ----------------
                                      JUDGE"
                

T.C.A. § 28-1-105 provides:

"NEW ACTION AFTER ADVERSE DECISION.--

If the action is commenced within the time limited by a rule or statute of limitations, 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."

The complaint and counter complaint was filed on Monday, August 31, 1981, which is considerably more than one year after the filing of the original notice of nonsuit on August 8, 1980, and two days beyond a year from the filing of the order entered August 29. However, August 29, 1981, fell on Saturday. Rule 6.01, T.R.C.P., provides:

"In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday."

The end result is that the complaint was filed within one year, as extended, from the entry of the court order.

Both the right to take a nonsuit without prejudice and the right to refile the suit within one year from the dismissal have been provided for in our statutes in this jurisdiction for more than a century. However, prior to the adoption of the ...