FREEMAN v. CSX Transp. INC.
| Decision Date | 07 April 2011 |
| Docket Number | No. M2010-01833-COA-R9-CV,M2010-01833-COA-R9-CV |
| Parties | PATSY FREEMAN, Personal Representative and Administratrix of the Estate of John R. Freeman, Deceased v. CSX TRANSPORTATION, INC., et al. |
| Court | Tennessee Court of Appeals |
PATSY FREEMAN, Personal Representative and Administratrix of the Estate of John R. Freeman, Deceased
v.
CSX TRANSPORTATION, INC., et al.
No. M2010-01833-COA-R9-CV
COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED:February 15, 2011
Filed April 7, 2011
In this interlocutory appeal, we are asked to determine: (1) whether the Tennessee savings statute, Tenn. Code Ann. § 28-1-105(a), may be invoked twice within the one-year savings period to save otherwise untimely actions; and (2) whether the Appellee acted with the diligence and good faith necessary to invoke the protection of the savings statute. We conclude that Appellee's suit was properly brought within the protection of the Tennessee savings statute. Consequently, we affirm the judgment of the trial court.
Tenn. R. App. P. 9. Interlocutory Appeal; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.
John W. Baker, Jr., and Emily L. Herman-Thompson, Knoxville, Tennessee, James W. Purcell, Augusta, Georgia, and Robert M. Anspach, Toledo, Ohio, for the appellants, CSX Transportation, Inc., a Florida Corporation, and Mike E. Martin, a Tennessee resident.
John W. Chandler, Jr., and Pamela R. O'Dwyer, Chattanooga, Tennessee, for the appellee, Patsy Freeman.
E. Todd Presnell and Marc E. Williams, Nashville, Tennessee, for the amicus curiae, DRI-The Voice of the Defense Bar and Tennessee Defense Lawyers Association.
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This is a Tenn. R. App. P. 9 appeal from the trial court's denial of Appellants' request for a dismissal pursuant to Tenn. R. Civ. P. 12.04. This is the second appeal in this case, which has yet to have a trial. In reciting the following relevant facts, we rely on this Court's previous opinion, Freeman v. CSX Transportation, Inc., No. M2009-02403-COA-R3-CV, 2010 Tenn. App. LEXIS 691 (Tenn. Ct. App. Nov. 3, 2010) perm. app. pending, and the subsequent litigation between the parties.
This case arises from a collision in Bedford County, on April 22, 2003, between a vehicle operated by the decedent, John R. Freeman, and a train owned and operated by the Defendant/Appellant, CSX Transportation, Inc. ("CSX"). Id. at 2-3. The train was conducted by Defendant/Appellant, Mike E. Martin. Id. at *3. Mr. Freeman died as a result of injuries sustained in the collision. Id. His mother, Patsy Freeman, was subsequently appointed administratrix of his estate. Id.
On April 12, 2004, acting in her individual capacity and as administratrix of her son's estate, Patsy Freeman ("Plaintiff" or "Appellee") filed suit in Rutherford County Circuit Court. Id. The complaint alleged that CSX and Mr. Martin acted negligently and violated certain railroad safety statutes, and that these acts and violations resulted in the wrongful death of Mr. Freeman. Id. At all times relevant to this action, Plaintiff and Defendant CSX resided in Coffee County and Defendant Martin resided in Rutherford County. Id.
Over the next five years the parties litigated the case in the Rutherford County Circuit Court. Id. at *4. At a hearing on March 30, 2009, the trial court granted partial summary judgment to CSX on several of Plaintiff's claims. Id. At this same hearing, Plaintiff voluntarily dismissed all of her claims against Mr. Martin. Id. An order dismissing Mr. Martin from the suit was entered on April 6, 2009. Id.
The remaining claims against CSX went to trial on April 27, 2009, and a jury was empaneled to hear the case. Id. The next day, before the trial began, Plaintiff filed a notice of voluntary nonsuit as to her remaining claims against CSX. Id. On July 24, 2009, the Rutherford County Circuit Court entered the order of voluntary dismissal of Plaintiff's remaining claims. Id.
Following the entry of the order of voluntary dismissal, the Rutherford County Circuit Court assessed discretionary costs in the amount of $34,098.27 against Patsy Freeman as personal representative and in her individual capacity. Id. at *4-7. She appealed to this Court, asserting that the Rutherford County Circuit Court lacked subject matter jurisdiction
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to assess discretionary costs against her in her individual capacity. In Freeman v. CSX Transportation, Inc., No. M2009-02403-COA-R3-CV, 2010 Tenn. App. LEXIS 691 (Tenn. Ct. App. Nov. 3, 2010) perm. app. pending, a divided panel determined that the Rutherford County Circuit Court had subject matter jurisdiction and affirmed the award of discretionary costs. Id. at *15, 24.
In the meantime, on August 19, 2009, Plaintiff refiled her action in the Circuit Court of Davidson County against the same defendants, CSX and Mr. Martin.1 Id. at *5. Because the statute of limitations period had expired, Plaintiff's complaint necessarily invoked the Tennessee savings statute found at Tenn. Code Ann. § 28-1-105(a).2 Plaintiff asserted that CSX maintained an office in Davidson County and could be found through its registered agent for service of process there. Defendants filed a motion to dismiss, asserting that the common county rule localized venue and subject matter jurisdiction to two counties, Coffee County, where Plaintiff and CSX both reside, or Bedford County, where the accident occurred.3 Id. at *5-6. Plaintiff subsequently conceded that Defendants were correct and, as a result, the Davidson County Circuit Court granted the motion to dismiss. Id. The trial court entered an order dismissing Plaintiff's claims without prejudice on March 25, 2010.
Plaintiff then filed the instant suit in Bedford County Circuit Court on March 29, 2010. As is relevant on appeal, Defendants' answer asserted that Plaintiff's claims were time barred. Defendants filed an application pursuant to Tenn. R. Civ. P. 12.04 for a hearing on their affirmative defenses. Specifically, Defendants argued that the Tennessee savings statute, Tenn. Code Ann. § 28-1-105(a), did not permit multiple refilings of otherwise untimely actions and that Plaintiff had not acted with the diligence and good faith necessary to invoke the savings statute. Plaintiff responded that the savings statute permitted at least two refilings within one year of the first non-merits dismissal, that her alleged lack of diligence and good faith did not preclude such refilings, and that, in any event, she and her counsel had acted with diligence and good faith in pursuing her claims.
Following briefing and argument on July 21, 2010, the Bedford County Circuit Court denied Defendants' motion, by order entered August 17, 2010. On August 23, 2010, the trial court entered an order granting Defendants' application for interlocutory appeal pursuant to
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Rule 9 the Tennessee Rules of Appellate Procedure. In concluding that interlocutory appeal was warranted, the trial court's order stated as follows:
As this is a case of first impression, there is a need to develop a uniform body of law regarding the interpretation of the Tennessee savings statute found at Tenn. Code Ann. § 28-1-105. No other Tennessee courts to date have been asked to determine if refiling a complaint after the expiration of the statute of limitation following a voluntary non-suit in an improper forum/venue is appropriate in a second and third forum/venue even if the second and third refilings occur within one [] year of the voluntary non-suit. The issue to be resolved is whether Tenn. Code Ann. § 28-1-105 permits more than one refiling to save an otherwise untimely cause of action. Further at issue is whether Plaintiff acted with diligence and good faith under § 281-105 by refiling her cause of action in Davidson County, which all parties agree did not have subject matter jurisdiction.
On September 30, 2010, this Court granted Defendants' Rule 9 application.
We restate Defendants/Appellants' issues as follows:
(1) Whether the Tennessee savings statute, Tenn. Code Ann. § 28-1-1 05(a), may be invoked twice within the one year savings period to save otherwise untimely actions.
(2) Whether Plaintiff/Appellee acted with the diligence and good faith necessary to invoke Tenn. Code Ann. § 28-1-105(a).
Additionally, Appellee has requested that, if we determine her cause of action was not saved by the savings statute, we give such an interpretation prospective effect only.
A. May the Tennessee savings statute, Tenn. Code Ann. § 28-1-105(a), be invoked twice within the one year savings period to save otherwise untimely actions.
At the outset, we find it useful to set out the relevant dates upon which this case turns, and they are restated as follows:
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(1) April 22, 2003 - Accident occurs
(2) April 12, 2004 - First complaint filed in Rutherford County
(3) April 22, 2004 - One-year statute of limitations expires
(4) April 6, 2009 - Order of voluntary nonsuit entered in Rutherford County as to claims against Defendant Martin4
(5) July 24, 2009 - Order of voluntary nonsuit entered in Rutherford County as to remaining claims against Defendant CSX5
(6) August 19, 2009 - Second complaint filed in Davidson County
(7) March 25, 2010 - Davidson County case dismissed without prejudice
(8) March 29, 2010 - Third complaint filed in Bedford County
With these dates in mind, we turn next to the applicable Tennessee savings statute, which states as follows:
If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff's 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 the plaintiff's 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. Actions originally commenced in general...
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