Keith Johnson v. Fortunes Untold, Inc., D/B/A Easy Money Pawn Shop ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
July 8, 1998
KEIT H JO HNS ON, e t ux, et al., Cecil Crowson, Jr.
) C/A NO. 03A01-9710-CV-00464
Appellate C ourt Clerk
)
Plaintiffs-Appellants, ) BLOU NT CIR CUIT
)
v. ) HON. W. DALE YOUNG,
) JUDGE
FORT UNE S UN TOLD , INC., d/b/a )
EAS Y M ONE Y PA WN SHO P, et al., ) AFFIRMED
) AND
Defendants-Appellees. ) REMANDED
KEVIN W . SHEPHER D, SHEPH ERD & W HITE, P.A., Maryville, for Plaintiffs-
Appellan ts Lance D enault and Dina D enault.
ROCKFORDE D. KING and WESLEY L. HATMAKER, EGERTON, McAFEE,
ARMISTEA D & DAV IS, P.C., Knoxville, for Defendant-Appellee Fortunes Untold,
Inc., d/b/a Easy Money Pawn Shop.
WILLIAM A . YOUNG, O’NEIL, PAR KER & W ILLIAMSON, Knoxville, for
Defendant-Appellee Finchum Construction Company, Inc.
LINDA J. HAMILTON MO WLES, LEWIS, KING, KRIEG, WALDROP &
CATRON , P.C., Knoxville, for Defendant-Appellee Hackney Petroleum, Inc.
O P I N IO N
Franks, J.
The Trial dismissed plaintiffs’ causes of action for personal injury on
the basis that th e statute of lim itations had ru n before th e action w as properly bro ught,
pursuant to Rule 3, T.R.C.P.
The genesis of this case was an accident which occurred on May 2,
1996. Plaintiff Dina Denault was leaving the premises of Defendant Easy Money
Pawn Shop in Blou nt Cou nty, and w hile bac king, he r car fell i nto an e xpose d trench .
Defend ant Finchu m Con struction Co mpany had opened th e excava tion while
installing utilities for Defendant Ha ckney Petroleum, Inc. Also present in the car were
Dena ult’s min or son J acob, A ngela J ohnso n and J ohnso n’s three minor c hildren .
On May 2, 1997, these parties filed a complaint against the three
defendants for personal injury and for damage to the car. Although the complaint was
filed on M ay 2, 1997, the summo ns was n ot filed until M ay 5, 1997. T he defen dants
moved for either a Summary Judgment or a Judgment on the Pleadings, claiming that
the statute of limitations for personal injuries had expired. The Trial Court granted
Defendants’ motions and dismissed the plaintiffs’ personal injury claims. The
children’s claims were not dismissed because their minority tolled the statue of
limitations.
The parties agree that the personal injury claims are governed by T.C.A.
§ 28-3-10 4, which p rovides tha t all actions for p ersonal injury m ust be brou ght within
one year of the accrual of the cause of action. In this case, the accident occurred on
May 2, 1996, and the complaint was filed on May 2, 1997, but no summons was filed
until May 5.
At the time T.R.C.P . 3 provided in pertinent p art:
All civil actions are commenced by filing a Complaint and
Summons with the Clerk of the Court. An action is commenced
within the meaning of any statute of limitations upon such filing
of a Complaint and Summons, whether process be issued or not
issued, a nd wh ether pr ocess b e return ed serv ed or un served . . .
It is undisputed that plaintiffs did not file a sum mons with the C lerk
within on e year of the ac cident. Thu s, the person al injury action w as not prop erly
“commenced” within the meaning of the statute. We have considered this issue
previously in Carey v. Bourne, 1997 WL 585750 (Tenn.App.). In Carey, the plaintiff
filed suit for malpractice. The one year statute of limitations began to run on May 26,
1994 and the plaintiff filed a complaint on May 3, 1995 but did not file a summons
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until May 30 . The cou rt held that the m ere filing of the comp laint was “in sufficient to
commence a cause of action under Rule 3 . . .” Id. at *4. The court in interpreting the
same version of Rule 3 at issue in this case, said:
[T]he action was commenced on May 30, 1995, the date the
amended complaint and summons were filed . . . Therefore, the
action is barre d by the one yea r statute of lim itations applica ble to
medical malpractice claims.
Id. at *5. The result in Carey and the holding of the Trial Judge in this case are
consistent with the plain language of Rule 3 which was in effect at the time this action
was filed.
Plaintiffs argue that Rule 3 was repealed by implication when Rule 4.07
was enacted. This issue was not raised at trial, and generally, issues not raised at trial
canno t be raise d for th e first tim e on ap peal. State Dept. Of Human Services v.
Defriece, 937 S.W.2d 95 4, 960 (Tenn. A pp. 1996); B & B Dist. Co. v. Metropolitan
Nashville , 667 S.W.2d 751 (Tenn. App. 1983). Moreover, there is a presumption
agains t repeal b y implicati on, Jenkins v. L oudon C ounty, 736 S.W.2d 603 (Tenn.
1987) .
For the foregoing reasons, we affirm the judgment of the Trial Court and
remand a t appellants’ c ost.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Don T. McM urray, J.
___________________________
William H. Inman, Sr.J.
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