Stephens v. Revco ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION FILED
February 10, 1998
PATRICIA STEPH ENS and husband, Cecil Crowson, Jr.
) C/A NO. 03A01-9708-CV-00351
Appellate C ourt Clerk
CHRIS STEPHENS, )
) LOUD ON CIR CUIT
Plaintiffs-Appellants, )
) HON . RUS SELL E. SIM MO NS, JR .,
v. ) JUDGE
)
REVCO DISCOUNT DRUG )
CEN TER S, INC ., ) AFFIRMED
) AND
Defendant-Appellee. ) REMANDED
JOHN P. NE WTON , JR., McGEHEE & NEW TON, Knoxv ille, for Plaintiffs-
Appellants.
BARRY K. MAXWELL and MARY JANE BORDEN , EGERTON, McAFEE,
ARMISTEA D & DAV IS, P.C., Knoxville, for Defendant-Appellee.
O P I N IO N
Franks, J.
In this action, the Trial Court granted summary judgment to defendant
on the b asis that th e cause of actio n was barred by the on e-year statu te of lim itations.
Plaintiffs have appealed.
The complaint complains of defendant’s pharmacist improperly filling a
prescription on the 22nd day of June, 1991 for plaintiff Patricia. The complaint was
filed on February 18, 1997, and the record establishes that virtually the same
complaint had previously been filed on June 10, 1992 and was voluntarily dismissed
on March 15, 1994, and again filed on February 18, 1995 and voluntarily dismissed on
March 4, 1996.
Plaintiffs insists that the cause of action sounds in contract, and hence,
the six-ye ar statute of limita tions is a pplicab le.
The Supreme Court has said “action” as used in the statutes of limitation
refers to and embodies concepts of subject matter and the nature of the action is not
determ ined by th e form of the c ompla int. Carney v. Smith, 437 S.W.2d 246 (Tenn.
1969). The rule is well established in this jurisdiction that the gravamen of the action,
rather than its d esignation a s an action in tort or contrac t, determines the applicab le
statute of limitations. This rule was recently applied by the Supreme Court in Mike v.
Po G roup, In c., 937 S.W.2d 796 (Tenn. 1996). The Court in that opinion at page 793,
said:
Since summary judgment was granted on the ground that the plaintiffs’
causes of action were barred by the one year statute of limitations, the
Court must determine which statute of limitations applies to the
plaintiffs’ suit, which depends upon the nature of the cause of action
alleged. The gravamen of a complaint and the injury alleged determine
which statute o f limitatio ns app lies. Vance v. Schulder, 547 S.W.2d
927, 931 (Tenn. 1977). To ascertain the gravamen of the action, the
Court m ust look to the ba sis for w hich da mage s are sou ght. Bland v.
Smith, 197 Tenn. 683 , 277 S.W.2d 37 7, 379 (1955).
The complaint in this cause alleges that defendant filled a prescription
for Cariso prodol fo r Patricia, and a fter taking th e prescription she becam e violently ill
and disco vered that “ penicillin w as placed in the bottle by the R evco pha rmacist in
error, rather than Carisoprodol, and taken by the plaintiff, proximately causing her
injury.” The co mplaint fu rther alleged that the defe ndant ow ed a duty of d ue care to
plaintiffs in fillin g the prescr iption, and th at it breached the duty of ca re “by acting in
a grossly negligent manner by giving penicillin to the plaintiff, rather than
Carisoprodol.” The complaint concludes that plaintiff “was physically injured and
suffered great pain and discomfort” and the plaintiff’s damages were “as a direct and
2
proxim ate cau se of th e defe ndant’ s gross n egligen ce.” 1
The sum and substa nce of pla intiffs’ com plaint alleges to rtious cond uct,
and wh en the rule th at the grava men of th e compla int determin es the applic able statute
of limitations is applied, it is clear that the Trial Judge acted properly in dismissing
this complaint on the grounds the one year statute of limitations barred the
maintenance of this action.
Accordingly, we affirm the judgment of the Trial Court and remand at
appellants’ c ost.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Charles D. Susano, Jr., J.
___________________________
Don T. McM urray, J.
1
The husband’s claim was for loss of consortium.
3