Turner v. Aldor Co. of Nashville, Inc.

• Decision Date: 20 November 1991
• Citation: 827 S.W.2d 318
• Parties: Timothy W. TURNER, Plaintiff/Appellee, v. ALDOR COMPANY OF NASHVILLE, INC., Defendant, and Overhead Door Corporation and Indiana Corporation, a/k/a Dallas Corporation, Defendants/Appellants.
• Court: Tennessee Court of Appeals

Page 318

827 S.W.2d 318

Timothy W. TURNER, Plaintiff/Appellee, v. ALDOR COMPANY OF NASHVILLE, INC., Defendant and Overhead Door Corporation and Indiana Corporation, a/k/a Dallas Corporation, Defendants/Appellants.

Court of Appeals of Tennessee Middle Section, at Nashville.

Nov. 20, 1991.

Application for Permission to Appeal

Denied by Supreme Court

March 16, 1992.

John Philip Long, Nashville, for defendant Aldor Co.

Thomas Marion Pinckney, Nashville, for Overhead Door Corp.

W. Kennerly Burger, Murfreesboro, for Timothy Turner.

OPINION

KOCH, Judge.

This appeal concerns whether a plaintiff who refiles an action after taking a voluntary nonsuit may sue a party it did not sue in its original complaint but who had been impleaded as a third-party defendant. The defendant moved to dismiss on the ground that the claim was barred by the statute of limitations. After the Second Circuit Court for Davidson County denied the motion, the defendant filed an application for a Tenn.R.App.P. 9 appeal. We concur with the trial court's conclusion that this is a proper case for an interlocutory appeal. Since the application and the responses thereto set out the parties' respective positions and provide all the information necessary to decide the issues presented, we will proceed to the merits without further briefing or oral argument. ¹ We have determined that the plaintiff's negligence and strict liability claims against the new defendant are time-barred but that its warranty claims are not.

I.

Timothy W. Turner, an employee of the Sun Cool Window Tinting Company, was injured on August 15, 1988 when a glass panel fell from an overhead garage door causing a shard of broken glass to cut his neck and shoulder. The door had been manufactured by the Overhead Door Corporation ("Overhead") and had been installed by the Aldor Company of Nashville, Inc. ("Aldor"), one of Overhead's local distributors.

On July 6, 1989, Mr. Turner filed suit in the Circuit Court for Davidson County against Aldor and the realtor in control of the premises where he was injured. On August 14, 1989, Aldor filed a third-party complaint against Overhead. Mr. Turner did not file an independent action or seek to amend his complaint to state a claim directly against Overhead.

The case was originally set for trial on November 7, 1990. However, on November 5, 1990, Aldor filed a notice of voluntary nonsuit of its third-party complaint. Aldor's action prompted Mr. Turner to take a voluntary nonsuit of his original complaint. On January 24, 1991, Mr. Turner filed a new action against Aldor and Overhead in the United States District Court for the Middle District of Tennessee. This suit, however, was dismissed by agreement on March 14, 1991.

On March 19, 1991, Mr. Turner filed another suit against Aldor and Overhead in the Second Circuit Court for Davidson County. The complaint sought damages against both parties on the theories of strict liability, negligence, and breach of the implied warranties of merchantability and fitness for a particular purpose. Overhead moved to dismiss the complaint on the ground that it was barred by Tenn.Code Ann. § 28-3-104(a)(1) (Supp.1991). ² The trial court filed a memorandum opinion on July 2, 1991 denying the motion and, in orders filed on September 12 and 23, 1991, granted Overhead permission to apply to this court for an interlocutory appeal.

II.

This appeal involves another instance where a plaintiff, faced with the dismissal of its complaint, is seeking to use the savings statute and the relation back features of Tenn.R.Civ.P. 15.03 to deflect a statute of limitations defense. While we recognize that procedural rules should not be used to frustrate the consideration of claims on their merits, Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991); Stapp v. Andrews, 172 Tenn. 610, 614, 113 S.W.2d 749, 750 (1938), we also recognize that they should not be used to breathe life into claims that are plainly time barred. In this case, no procedural rule can insulate Mr. Turner from his failure to bring suit against Overhead within one year from the date of his injury.

A.

Mr. Turner's defense of the trial court's decision reflects a fundamental misunderstanding of third-party practice under Tenn.R.Civ.P. 14. ³ By its own terms, Tenn.R.Civ.P. 14 is not intended to permit a defendant to implead another person who is directly liable to the plaintiff but not to the defendant. 3 J. Moore & R. Freer, Moore's Federal Practice p 14.15 (2d ed. 1991) ("Moore's Federal Practice"). Its purpose is to enable the defendant to implead another person "who is or may be liable to him for all or part of the plaintiff's claim against him." Tenn.R.Civ.P. 14.01.

Tenn.R.Civ.P. 14 does not require the existence of any type of legal relationship between the plaintiff and the third-party defendant. The third-party defendant's liability to the defendant may be based on an entirely different theory than the defendant's liability to the plaintiff. Since a plaintiff may choose to sue one or more defendants without joining others, Arcon Corp. v. Liberty Mut. Ins. Co., 591 F.Supp. 15, 17 (M.D.Tenn.1983), it is irrelevant that the plaintiff has no claim against the third-party defendant or has chosen not to assert one. Moore's Federal Practice p 14.10.

Once the defendant has impleaded a third-party defendant, Tenn.R.Civ.P. 14 permits, but does not require, the plaintiff to assert what is commonly known as an "upsloping claim" against the third-party defendant. ⁴ Moore's Federal Practice p 14.16. An upsloping claim is considered as an original complaint and may take the form of an amendment to the original complaint or a new pleading.

No matter what form the plaintiff's upsloping claim takes, it is subject to the applicable statute of limitations. Moore's Federal Practice p 14.09, at 14-65; 6 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1459, at 450 (1990). The filing of the third-party complaint does not toll the running of the statute of limitations on the plaintiff's claim against the third-party defendant. Straub v. Desa Indus., Inc., 88 F.R.D. 6, 9 (M.D.Penn.1980); Frankel v. Back, 37 F.R.D. 545, 547 (E.D.Penn.1965); Vincent v. Litchfield Farms, Inc., 21 Conn.App. 524, 574 A.2d 834, 835 (1990). Thus, the plaintiff cannot file a new pleading or amend its complaint to state a claim against the third-party defendant when the statute of limitations has already run on its claim. Monarch Indus. Corp. v. American Motorists Ins. Co., 276 F.Supp. 972, 981 (S.D.N.Y.1967); Silva v. Home Indem. Co., 416 A.2d 664, 668-69 (R.I.1980).

The statute of limitations applicable to Mr. Turner's negligence and strict liability claims expired on August 15, 1989. Mr. Turner did not sue Overhead in federal court until January 24, 1991 and did not file his suit in state court until March 19, 1991. Since these suits were filed between seventeen and nineteen months after the expiration of the statute of limitations, the negligence and strict liability claims contained therein are time barred unless they were somehow preserved by the savings statute or by the relation back features of Tenn.R.Civ.P. 15.03.

B.

The purpose of the savings statute, Tenn.Code Ann. § 28-1-105(a) (Supp.1991), is to provide a diligent plaintiff with an opportunity to renew its suit if its complaint is dismissed by any judgment or decree that does not conclude its right of action. Nashville, C. & St. L. Ry. v. Bolton, 134 Tenn. 447, 455, 184 S.W. 9, 11 (1915). While the statute should be construed liberally, Dukes v. Montgomery County Nursing Home, 639 S.W.2d 910, 912-13 (Tenn.1982); Balsinger v. Gass, 214 Tenn. 343, 346, 379 S.W.2d 800, 802 (1964), it should not be used to insulate a plaintiff from its own laches, negligence, or other similar fault. Moran v. Weinberger, 149 Tenn. 537, 543, 260 S.W. 966, 967 (1924).

The savings statute applies only when the new complaint and the original complaint "are substantially for the same cause of action." Hughes v. Brown, 88 Tenn. 578, 584, 13 S.W. 286, 287 (1890). There must be an identity of the parties in order for the new and original complaints to be substantially the same. Goss v. Hutchins, 751 S.W.2d 821, 825 (Tenn.1988); Moran v. Weinberger, 149 Tenn. at 546, 260 S.W. at 968; Hughes v. Brown, 88 Tenn. at 584, 13 S.W. at 287.

Mr. Turner's second complaint in state court is not substantially similar to his original state complaint because it involved different parties. The savings statute is not applicable to the claims in a renewed complaint against a party not named as a defendant in the original complaint. Overhead was not named as a defendant in Mr. Turner's original complaint. Overhead was not named as a defendant in Mr. Turner's original state complaint. Accordingly, the trial court's reliance on Tenn.Code Ann. § 28-1-105(a) to deny Overhead's motion to dismiss was misplaced.

C.

We turn next to the application of Tenn.R.Civ.P. 15.03's relation back features to this case. In order for a party to take advantage of Tenn.R.Civ.P. 15.03, it must show

(1) that the claim arises out of the same conduct, transaction, or occurrence set forth in its original complaint;

(2) that the new defendant had notice that the plaintiff had filed suit before the running of the applicable statute of limitations; and

(3) that the defendant knew or should have known that the plaintiff would have named it as a defendant had it not been for a misnomer or other similar mistake.

See Tenn.R.Civ.P. 15.03. Mr. Turner has satisfied the first relation back requirement but has not satisfied the remaining two.

Overhead was not served with Aldor's third-party complaint until August 22, 1989, eight days after the one-year statute of limitations applicable to negligence and strict liability claims had expired. Mr. Turner offered no other proof that Overhead knew of these claims by other means. Thus, the only conclusion to be drawn is that Overhead did not...