Payne v. Matthews
| Citation | 633 S.W.2d 494 |
| Parties | Aubrey L. PAYNE, Plaintiff-Appellant, v. William T. MATTHEWS, Defendant-Appellee. |
| Decision Date | 26 February 1982 |
| Court | Tennessee Court of Appeals |
Lewis K. Garrison, Memphis, for plaintiff-appellant.
Max D. Lucas, Jr. of the law firm of Kirkpatrick, Lucas & Kirkpatrick, Memphis, for defendant-appellee.
Plaintiff is appealing from an order of the trial judge of the Circuit Court of Shelby County, dismissing his suit for personal injuries and property damage, by granting defendant's motion for summary judgment. The suit so dismissed was the third suit for the same cause of action filed by the plaintiff. Defendant's motion for summary judgment was sustained on the grounds that plaintiff's most recent suit was barred by the statute of limitations. The issue presented by this appeal is whether or not Rule 41.01 T.R.C.P. in any way affects the time in which a plaintiff can refile after a non-merits dismissal has been taken. We hold that it does not.
The facts, which are not in dispute, are these: Plaintiff and defendant were involved in an accident in Shelby County on September 7, 1972. Plaintiff's first suit, seeking damages for personal injuries and property damage, was filed on February 22, 1973. No further action was taken in this case, and the trial court dismissed it on its own motion for want of prosecution. The dismissal took place in either October or November of 1978, but the order of dismissal was not entered until March 13, 1979.
In the meantime, plaintiff filed his second suit on November 29, 1978, well within one year of the date of dismissal. During the course of the trial of the cause, the plaintiff moved for and was granted a voluntary nonsuit. An order of voluntary nonsuit was entered October 16, 1980. The case under consideration was filed October 28, 1980, clearly more than one year after the date of entry of the order of dismissal for want of prosecution of the first action, namely, March 13, 1979. Defendant then filed a motion for summary judgment on the grounds that the action was barred by T.C.A. Sec. 28-3-104 and Sec. 28-3-105.
It is plaintiff's contention that the dismissal of this lawsuit by the trial court is in contradiction to Rule 41 T.R.C.P., which bars a cause of action only on the taking of a third voluntary dismissal. It is plaintiff's assertion that, even if he is held accountable for the trial court's dismissal for want of prosecution, he should be entitled to pursue this third filing to its conclusion on the merits, since he has taken only one voluntary nonsuit.
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 nonsuit to the original action, any additional suits would have to be filed within one year of the first nonsuit 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 the 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 reads as follows:
28-1-105. New action after adverse decision.-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 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 full meaning and intent of this statute was spelled out by Justice Holmes of our Supreme Court in the case of Balsinger v. Gass, 214 Tenn. 343, 379 S.W.2d 800, 805 (1964), when he said:
Under T.C.A. Sec. 28-106, all actions which may be brought by virtue...
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FREEMAN v. CSX Transp. INC.
...Court, they are inconclusive dismissals. Balsinger v. Gass, 214 Tenn. 343, 353, 379 S.W.2d 800, 805 (1964); see also Payne v. Matthew, 633 S.W.2d 494, 496 (Tenn. Ct. App. 1982). While the distinction between the two may be relevant to an analysis under Tenn. R. Civ. P. 41.01, discussed in m......
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Holiday v. Shoney's South
...Thus, the trial court granted Shoney's motion to dismiss Ms. Holiday's second circuit court complaint. See Payne v. Matthews, 633 S.W.2d 494, 495-96 (Tenn. Ct. App. 1982). 2 By the time of the hearing on Ms. Holiday's motion to set aside the March 1994 non-suit, Judge Chandler had retired a......
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Greenwood v. Nat'l Dentex Corp.
...before an action is barred, affects the time in which a party can refile a case following a voluntary dismissal. Payne v. Matthews, 633 S.W. 2d 494, 495 (Tenn. Ct. App.1982). Ultimately, this Court determined that the saving statute addresses the relevant time period in which a party can re......
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Abshure v. Upshaw, No. W2008-01486-COA-R3-CV (Tenn. App. 3/17/2009)
...merits, it is well-settled that Rule 41.01 is subject to the time limitations contained in the savings statute. Payne v. Matthews, 633 S.W.2d 494, 496 (Tenn. Ct. App. 1982). Thus, despite the provision in Rule 41.01 that a plaintiff might twice voluntarily dismiss an action without prejudic......