Canada v. Ace

IN THE COURT OF APPEALS OF TENNESSEE
RICHARD C. CANADA and wife ) C/A NO. 03A01-9606-CV-00182
SHARON CANADA, ) BRADLEY COUNTY CIRCUIT COURT
)
Plaintiffs-Appellants, )
)
)
v.
)
)
FILED
)
) September 23, 1996
)
ACE CODENT, ZAHN DENTAL COMPANY, ) Cecil Crowson, Jr.
INC., and HENRY SCHEIN, INC., ) Appellate C ourt Clerk
)
Defendants, )
)
)
and )
)
)
ACECODENT INCORPORATED, )
) HONORABLE EARLE G. MURPHY,
Defendant-Appellee. ) JUDGE
For Appellants For Appellee
JIMMY W. BILBO DAVID F. HENSLEY
Logan, Thompson, Miller, Bilbo, Milligan, Barry, Hensley
Thompson & Fisher, P.C. & Evans
Cleveland, Tennessee Chattanooga, Tennessee
OPINION
APPEAL DISMISSED
REMANDED Susano, J.
1
This products liability action was dismissed by the
trial court on motion of Acecodent Incorporated.1 The plaintiffs
appeal, presenting one narrow issue that raises the following
question:
Did the trial court err when it found that
Rule 15.03, Tenn. R. Civ. P., as amended
effective July 1, 1995, could not be given
retrospective application to insulate the
plaintiffs’ causes of action from Acecodent
Incorporated’s defense of the statute of
limitations?
Also before us is the motion of Acecodent Incorporated to dismiss
this appeal. That motion is predicated on the failure of the
appellants to serve a copy of their notice of appeal on the clerk
of this court as required by Rule 5(a), T.R.A.P. We will first
consider the motion to dismiss the appeal.
I
The appellants timely filed a notice of appeal with the
clerk of the trial court. They also timely served a copy of the
notice on the appellee, Acecodent Incorporated; however, they
failed to serve a copy of the notice on the clerk of this court
as required by Rule 5(a), T.R.A.P., which provides, in pertinent
part, as follows:
Not later than 7 days after filing notice of
appeal, the appellant in a civil action shall
serve a copy of the notice of appeal . . . on
1
The final judgment in this case as to Ace Codent and Acecodent
Incorporated was entered pursuant to Rule 54.02, Tenn. R. Civ. P. The case is
apparently proceeding at the trial level as to the other defendants.
2
the clerk of the appellate court designated
in the notice of appeal.
It is clear that an appellate court has the authority
to suspend Rule 5(a) as it pertains to the requirement that an
appellant serve a copy of the notice of appeal on the clerk of
the appellate court. That authority is found in Rule 2,
T.R.A.P.:
For good cause, including the interest of
expediting decision upon any matter, the
Supreme Court, Court of Appeals, or Court of
Criminal Appeals may suspend the requirements
or provisions of any of these rules in a
particular case on motion of a party or on
its motion and may order proceedings in
accordance with its discretion, except that
this rule shall not permit the extension of
time for filing a notice of appeal prescribed
in rule 4, an application for permission to
appeal prescribed in rule 11, or a petition
for review prescribed in rule 12.
See also G. F. Plunk Const. Co., Inc. v. Barrett Properties,
Inc., 640 S.W.2d 215, 216 (Tenn. 1982); but it is abundantly
clear that a precondition to a waiver under Rule 2 is a showing
of “good cause.” Id. at 217.
In the G. F. Plunk case, the appellant failed to serve
a copy of its notice of appeal on the clerk of the Court of
Appeals. It also failed to serve a copy on opposing counsel.
The operative facts before the court in G. F. Plunk were stated
by the Supreme Court as follows:
It is undisputed that neither opposing
counsel nor the clerk of the Court of Appeals
3
received a copy of appellant’s notice of
appeal. Counsel for appellant candidly
admits that neither he nor his secretary has
an independent recollection of having mailed
a copy of the notice of appeal to opposing
counsel and the clerk of the Court of
Appeals, but nevertheless believes that it
was done.
Id. at 216. While recognizing that an appellate court has the
authority under Rule 2, T.R.A.P., to waive the requirements of
service of the notice of appeal on opposing counsel and on the
clerk of the appellate court, the Supreme Court in G. F. Plunk
refused to do so and consequently affirmed the judgment of the
Court of Appeals dismissing the appeal. In so holding, the
Supreme Court opined that a “mere good faith belief that a
routine office chore has been timely performed” was insufficient
to show “good cause.” Id. at 218.
In the instant case, the appellants have totally failed
to present to us any “cause,” good, bad or otherwise, for their
failure to serve a copy of their notice of appeal on the clerk of
this court. In the absence of a showing of good cause, we do not
believe that we can or should invoke the provisions of Rule 2, to
absolve appellants of their obligation to fully comply with Rule
5(a), T.R.A.P.
The facts of the instant case are substantially the
same as those presented to us in the recent unreported case of
Cobb v. Beier, C/A No. 03A01-9602-CV-00051 (Tenn. App. July 3,
1996, at Knoxville, Franks, J.) We adhere to our decision in
Cobb; but would note, in passing, that the losing party in that
4
case filed an application for permission to appeal with the
Supreme Court on August 6, 1996. That application is still
pending.
We find that the appellee’s motion to dismiss the
appeal is well taken and accordingly dismiss this appeal.
II
We recognize that there may be further appellate review
in this case. This prompts us to examine the substantive issue
advanced by the appellants. Since the trial court ultimately
considered all of the affidavits filed by the parties, we will
treat the action of the trial court as one for summary judgment.
See Rule 12.02, Tenn. R. Civ. P. We are obliged to affirm the
trial court’s grant of summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Rule 56.03, Tenn.
R. Civ. P.
The original complaint in this case was filed on May
19, 1995. In it, the plaintiffs, now appellants, alleged that
the plaintiff Richard C. Canada2 suffered personal injuries on
May 21, 1994, as a result of a defective product manufactured and
distributed by a number of defendants, one of whom is identified
2
The plaintiff Sharon Canada is the wife of Richard C. Canada; her claim
is for loss of consortium.
5
in the original complaint as “Ace Codent.” Unbeknownst to the
plaintiffs at that time, the full legal name of the entity sought
to be sued in this case is Acecodent Incorporated.
On July 26, 1995, outside the applicable period of
limitations,3 the summons and a copy of the original complaint
were received at the corporate offices of Acecodent Incorporated.
On September 1, 1995, a motion to dismiss was filed
below, asserting that “Ace Codent” was a “non-entity” who “does
not legally exist and does not have the capacity to be sued.” In
apparent response to this motion, the plaintiffs, on September
13, 1995, filed an amended complaint to “correct[] the name of
the defendant, Ace Codent to Acecodent Incorporated.”
Thereafter, Acecodent Incorporated filed a motion to dismiss
based on the statute of limitations. It is supported in the
record by the affidavit of Jin Hwang, one of the owners of
Acecodent Incorporated. In her affidavit, Ms. Hwang asserts that
prior to July 26, 1995, the company “had no knowledge of . . .
the filing of a lawsuit by Richard and Sharon Canada.”
The plaintiffs attempted to controvert the Hwang
affidavit by filing the affidavit of their counsel, Jimmy W.
Bilbo. Mr. Bilbo’s affidavit recites that he spoke by telephone
with a woman at the offices of Acecodent Incorporated on May 18,
1995, within the one-year limitations period. He states that he
called to get the company’s name and address. His affidavit
continues:
3
T.C.A. § 28-3-104.
6
When I verified the name of the defendant
over the telephone to the representative at
the defendant office in Flushing, New York, I
spelled out the name Ace Codent as two words.
The representative/ agent of the defendant
verified that I had the name correct. For
that reason, the action was filed against Ace
Codent instead of Acecodent Incorporated.
Mr. Bilbo says that the person to whom he spoke asked him why he
needed to verify the name and address, and he “told her [he] was
filing a lawsuit against the company.”
The appellants concede in their brief that “[t]he
amended complaint was filed and served after the statute of
limitations had run on plaintiffs’ claim.” They argue, however,
that Rule 15.03, Tenn. R. Civ. P., as amended effective July 1,
1995, applies to their amended complaint (filed September 13,
1995) so that the filing of the amended complaint relates back to
the date of filing of the original complaint, thus saving their
claim against Acecodent Incorporated.
It is clear, and the appellants seem to concede, that
the wording of Rule 15.03 prior to July 1, 1995, precludes a
finding in this case that the amended complaint was timely filed.
That version of the Rule provided, in pertinent part, as follows:
An amendment changing the party against whom
a claim is asserted relates back . . . if,
within the period provided by law for
commencing the action against him, the party
to be brought in by amendment (1) has
received such notice of the institution of
the action that he will not be prejudiced in
maintaining his defense on the merits, and
(2) knew or should have known that, but for a
misnomer or other similar mistake concerning
the identity of the proper party, the action
7
would have been brought against him. Except
as above specified, nothing in this rule
shall be construed to extend any period of
limitations governing the time in which any
action may be brought.
(Emphasis added). This version of the Rule was addressed in the
Supreme Court case of Duke v. Replogle Enterprises, 891 S.W.2d
205 (Tenn. 1994). In Duke, a workers’ compensation action was
filed against “Replogle Enterprises, a/k/a Replogle Sawmill.” In
fact, the actual employer was Nathan Replogle, a sole proprietor,
doing business as Replogle Enterprises, Replogle Sawmill. The
original complaint was served on Nathan Replogle on February 4,
1992, the third day following the expiration of the one-year
statute of limitations. On March 10, 1992, the plaintiff filed a
motion to amend “to include the name of Nathan Replogle as a
defendant.” Id. The plaintiff there argued that the amended
complaint related back to the date of filing of the original
complaint. Despite the striking similarity in names, the Supreme
Court held that the suit against Mr. Replogle was time-barred.
In affirming the trial court’s dismissal of the plaintiff’s cause
of action, the Supreme Court pointed out that
[a]s Rule 15.03 now stands, had the service
of process on Nathan Replogle been served
before the expiration of statutory
limitations, the plaintiff’s amendment to add
the proper party-defendant would have related
back to the date of the original complaint
and the cause would not have been time
barred.
Id. at 207. (Emphasis in Duke opinion).
8
As far as the earlier version of Rule 15.03 is
concerned, Duke controls here. The fact that the appellants’
counsel advised an agent of Acecodent Incorporated, within the
period of limitations, that he “was filing a lawsuit against the
company,” does not satisfy the language of either version of Rule
15.03. The earlier version of the Rule provided an “escape”
clause if, and only if, two requirements4 were met and then only
if those requirements were met during the applicable period of
limitations. As pertinent here, it was incumbent upon the
appellants to show that Acecodent Incorporated had “received such
notice of the institution of the action that he will not be
prejudiced in maintaining his defense on the merits,” before the
limitations period expired. Rule 15.03, Tenn. R. Civ. P., before
the July 1, 1995, amendment. (Emphasis added). This is not the
same as showing the defendant knew that the plaintiffs intended
to file suit.
The appellants seem to recognize that the earlier
version of Rule 15.03 is of no help to them because they argue
that Rule 15.03, as amended effective July 1, 1995, applies to an
amended complaint filed after that date. Under the facts of this
case, we do not agree with the appellants’ contention.
It is true that Rule 15.03 was amended5 effective July
1, 1995, to avoid, at least during an expanded time frame, what
the Advisory Commission referred to as the “unfortunate result”
4
The two requirements were also carried over into the new version of
Rule 15.03.
5
The amendment “tacked on” to the statute of limitations an additional
120 days within which the requirements for relation back could be satisfied.
9
of those cases where, because of a misnomer, the correct
defendant is not required to defend on the merits. It is
likewise true that if the Rule as amended effective July 1, 1995,
applies to the amended complaint, it serves to “save” the
appellants’ cause of action from Acecodent Incorporated’s defense
of the statute of limitations because the amended complaint was
served within 120 days of the expiration of the statute of
limitations.
Significantly, the statute of limitations as to the
appellants’ claims against Acecodent Incorporated expired prior
to the effective date of the amendment to Rule 15.03. As
previously indicated, the appellants concede this in their brief.
Once a statute of limitations bars a claim under then-
existing law, it cannot be revived by subsequently enacted
legislation. Girdner v. Stephens, 48 Tenn. 280, 286 (Tenn.
1870). This proposition finds a constitutional basis in Article
I, Section 20, of the Tennessee Constitution:
. . . no retrospective law, or law impairing
the obligations of contracts, shall be made.
The Supreme Court has stated that “retrospective” laws are
generally defined, from a legal standpoint,
as those which take away or impair vested
rights acquired under existing laws or create
a new obligation, impose a new duty, or
attach a new disability in respect of
transactions or considerations already
passed.
10
Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978).
In the Girdner case, the Supreme Court set forth the
controlling proposition in the instant case:
It has long been the law in Tennessee that
when a cause of action is barred by a statute
of limitation, in force at the time the right
to sue arose, and until the time of
limitation expired, that the right to rely
upon the statute as a defense is a vested
right that can not be disturbed by subsequent
legislation.
Girdner, 48 Tenn. at 286. See also Henderson v. Ford, 488 S.W.2d
720, 722 (Tenn. 1972); Collier v. Memphis Light, Gas & Water
Div., 657 S.W.2d 771, 775 (Tenn. App. 1983); Morford v. Yong Kyun
Cho, 732 S.W.2d 617, 620 (Tenn. App. 1987); Buckner v. GAF Corp.,
495 F. Supp. 351, 353 (E.D. Tenn. 1979).
The appellants are correct that the July 1, 1995,
amendment to Rule 15.03 is “remedial or procedural in nature.”
Cf. Kee v. Shelter Insurance, 852 S.W.2d 226, 228 (Tenn. 1993).
Generally, “[s]uch statutes apply retrospectively, not only to
causes of action arising before such acts become law, but also to
all suits pending when the legislation takes effect, unless the
legislature indicates a contrary intention or immediate
application would produce an unjust result.” Id. See also
Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976). However,
this proposition is subject to still another exception that is
critical in this case:
11
. . . retrospective application of a remedial
or procedural statute is constitutionally
forbidden if it takes away a vested right or
impairs contractual obligations.
Kee, 852 S.W.2d at 228. (Emphasis added).
When the one-year anniversary of the appellants’ causes
of action passed into history without a suit being filed
specifically naming Acecodent Incorporated as a defendant, that
entity acquired a vested right in the defense of the applicable
one-year statute of limitation. It cannot thereafter be
constitutionally deprived of that vested right by the amendment
to Rule 15.03.
There are no disputed material facts in this case. The
facts before us show that the appellee, Acecodent Incorporated,
is entitled to summary judgment. The trial court was correct in
granting same. Assuming, for the purpose of argument, that this
appeal is properly before us, we find and hold that the
appellants’ single issue on appeal is without merit.
The appeal in this case is hereby dismissed. Costs of
the appeal are taxed to the appellants. This case is remanded
for the collection of costs assessed below, pursuant to
applicable law.
_________________________________
Charles D. Susano, Jr., J.
12
CONCUR:
_____________________________
Houston M. Goddard, J.
_____________________________
Don T. McMurray, J.
I N THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTI ON
FILED
September 23, 1996
Cecil Crowson, Jr.
RI CHARD C. CANADA a nd wi f e ) Appellate C ourt Clerk
SHARON CANADA )
)
Pl a i nt i f f s - Appe l l a nt s )
)
)
v. )
)
)
ACE CODENT, ZAHN DENTAL COM PANY, ) BRADLEY COUNTY
I NC. , a nd HENRY SCHEI N, I NC. ) 03A01- 9606- CV- 00182
)
)
De f e nda nt s )
)
)
a nd )
)
)
ACECODENT I NCORPORATED )
)
De f e nda nt - Appe l l e e )
CONCURRI NG OPI NI ON
Al t hough I di s s e nt e d i n t he c a s e of Cobb v. Br i e r ,
c i t e d i n t he ma j or i t y o pi ni on, whi c h wa s t he f i r s t t i me , t o my
k n o wl e d ge , t ha t t hi s Cour t ha d di s mi s s e d a n a ppe a l f or f a i l ur e t o
f i l e a c opy of t he not i c e of a ppe a l wi t h t he Appe l l a t e Cour t
Cl e r k , I r e c ogni z e t ha t Cobb, unl e s s ove r t ur ne d by t he
Le g i s l a t ur e o r t he Supr e me Cour t , i s t he s e t t l e d l a w a s t o t he
q u e s t i o n.
14
I a l s o c onc ur i n t he ma j or i t y' s t r e a t me nt of t he me r i t s
o f t h e a ppe a l .
_______________________________
Hous t on M Godda r d, P. J .
.
15