Larry Parrish v. Robert Marquis

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 30, 2002 Session
LARRY E. PARRISH, et al. v. ROBERT S. MARQUIS, et al.
Appeal from the Circuit Court for Knox County
No. 1-701-01 Dale C. Workman, Judge
FILED DECEMBER 30, 2002
No. E2002-01131-COA-R3-CV
In this appeal from the Circuit Court for Knox County the Appellants, Larry E. Parrish and Larry E.
Parrish, P.C., contend that the Trial Court erred in dismissing their cause of action upon grounds that
it was not timely filed under T.C.A. 28-1-105(a). We affirm the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Cause
Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS ,
J., and GARY R. WADE, SP .J., joined.
John J. Mulrooney, Memphis, Tennessee, for the Appellants, Larry E. Parrish and Larry E. Parrish,
P.C.
Deborah C. Stevens and Summer H. Stevens, Knoxville, Tennessee, for the Appellee, Ronald C.
Koksal
Frank Q. Vettori, Knoxville, Tennessee, for the Appellee, Robert S. Marquis
OPINION
On July 15, 1997, the Appellants filed a cause of action for malicious prosecution against the
Appellees, Robert S. Marquis and Ronald C. Koksal, in the Circuit Court for Shelby County. On
May 14, 1999, that Court granted the Appellees' motions for summary judgment and entered its order
dismissing the case with prejudice. Thereafter, Appellants appealed the dismissal to this Court.
As reflected in Larry E. Parrish, et al. v. Robert s. Marquis, et al., an unreported opinion of
this Court filed in Jackson on July 31, 2000, the Court of Appeals affirmed the judgment of the
Shelby County Circuit Court dismissing the Appellants’ case, although upon the alternative ground
of improper venue, and remanded the cause to the Circuit Court "for further proceedings consistent
with this opinion." On November 27, 2000, in compliance with our opinion and judgment, the
Circuit Court entered an order of dismissal without prejudice which provides as follows:
This cause is before the Court upon remand from the Court of Appeals; and it
appearing that by an Order entered December 2, 1997 this Court denied the
motions of all defendants to dismiss pursuant to Tenn. R. Civ. P 12.02(3) for
improper venue in the Shelby County Circuit Court; and it appearing that by an
Order entered November 12, 1998 this Court granted the motions of all
defendants for summary judgment pursuant to Tenn. R. Civ. P. 56 and dismissed
the plaintiffs' malicious prosecution claim; and it appearing that by an Opinion
and Judgment filed July 31, 2000 the Court of Appeals modified this Court's
Order entered November 12, 1998 from a summary judgment dismissal to a
dismissal for improper venue in the Shelby County Circuit Court, and, as
modified, affirmed this Court's dismissal of plaintiff's malicious prosecution
claim only on the alternative ground of improper venue; it is, therefore,
ORDERED, ADJUDGED AND DECREED that:
1. The plaintiffs' malicious prosecution claim is hereby dismissed
pursuant to Rule12.02(3) for improper venue in the Shelby County Circuit Court;
2. This dismissal is without prejudice; and
3. The costs of this cause are taxed against plaintiffs.
On November 8, 2001, the Appellants filed a new action for malicious prosecution against
the Appellees in the Circuit Court for Knox County. Thereafter, in April, 2002, the Court entered
orders granting motions for summary judgment filed by the Appellees on grounds that the
Appellants' new action was late filed under the savings statute set forth at T.C.A. 28-1-105(a)
because it was filed over one year after the Court of Appeals entered its opinion and judgment of
July 31, 2000.
The issue we address in this appeal is restated as follows:
Was the one year period allotted the Appellants for commencement of a new action under
T.C.A. 28-1-105(a) properly computed from the date of the judgment of the Court of Appeals which
affirmed, as modified, the Shelby County Circuit Court’s original order of dismissal or should such
one year period have been computed from the date of the Circuit Court’s order of dismissal entered
upon remand in compliance with the judgment of the Court of Appeals?
Other issues raised in this appeal are pretermitted by our conclusions set forth herein.
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The standard governing our review of a trial court's decision to grant a motion for summary
judgment is well settled. Because the trial court's judgment involves purely a question of law, it is
not entitled to a presumption of correctness. See Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995).
Our sole task in reviewing such a judgment is to determine whether the requirements of Rule 56 of
the Tennessee Rules of Civil Procedure have been met. See Mason v. Seaton, 942 S.W.2d 470
(Tenn. 1997).
As stated by the Supreme Court of this State in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993)
“Rule 56 comes into play only when there is no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law.” The facts relevant to the issue now before us are
not in dispute. It is, therefore, our duty to determine whether, as a matter of law, the Appellees are
entitled to the judgment granted by the Trial Court.
The Appellants assert that, contrary to the conclusion of the Trial Court, their complaint was
timely filed under the savings statute set forth at T.C.A. 28-1-105(a) which states in pertinent part
as follows:
(a) 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 the plaintiff’s 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 the plaintiff’s 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.
As we have noted on prior occasion, “[t]he purpose of the savings statute, Tennesse Code
Annotated § 28-1-105(a), 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”. Turner
v. Aldor Co. of Nashville, Inc., 827 S.W.2d 318 (Tenn. Ct. App. 1991). In the instant case the
Appellants’ original lawsuit filed in the Circuit Court for Shelby County was dismissed for improper
venue and the Appellants were entitled to file a new action pursuant to T.C.A. 28-1-105(a). The
Appellants contend that the Trial Court erred in calculating the one year limitation under the statute
from the date of the Court of Appeals’ judgment of July 31, 2000, which affirmed, as modified, the
Circuit Court’s order dismissing the Appellants’ original action. They argue that their new action
was timely filed on November 8, 2001, because the one year allowed for filing a new action did not
begin to run until November 27, 2000, when the Shelby County Circuit Court entered its order of
dismissal upon remand. The Appellants contend that the Court of Appeals’ judgment entered on
July 31, 2000, did not constitute final adjudication of the case because it did not include language
providing for dismissal but, instead, ordered that the case be remanded for further action by the
Circuit Court. The Appellants maintain that upon remand the Shelby County Circuit Court was
reinvested with jurisdiction in the case and that until that court entered its judgment of dismissal on
November 27, 2000, there was no final adjudication.
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Although the Appellants assert that there are no Tennessee cases which specifically address
the issue raised in this case, they offer two cases as being sufficiently analogous to support their
position - Evans v. Perky, 647 S.W.2d 636 (Tenn. Ct. App.1982) and Nashville, C. & St. L. Ry. v.
Bolton, 184 S.W. 9 (Tenn. 1916).
The Appellants argue that the Evans case“is persuasive authority that the one year allowed
to file a new action under the savings statute commences on the date of the order that dismisses the
case.”
In Evans the issue before this Court was whether the one year allowed for filing a new action
under T.C.A. 28-1-105(a) ran from the date that the plaintiffs filed notice of nonsuit or from the date
the trial court entered its order approving the nonsuit. The defendants sought summary judgment,
arguing that the filing of notice of nonsuit was sufficient to dismiss the plaintiffs’ case and that no
further action was required of the trial court to trigger the one year limitation period under the
statute. We disagreed. We noted that T.R.C.P. 41 provides for nonsuit by either oral or written
notice, that the parties’ rights and privileges are the same whether the notice is oral or written and
that there is no reason to distinguish between the two forms of notice with respect to the “dignity and
posture” of each before the court. Citing several Tennessee cases, we then recognized the well
established rule of law that “A Court speaks only through its written judgments, duly entered upon
its minutes. Therefore, no oral pronouncement is of any effect unless and until made a part of a
written judgment duly entered.” In accordance with this rule, we concluded that the one year statute
of limitations in Evans ran from the date of the entry of the trial court’s order and not from the date
the nonsuit was filed. We construe our decision in Evans to mean that, because an oral notice of
nonsuit does not constitute “a judgment or decree” as is required under T.C.A. 28-1-105, neither will
a written notice of nonsuit constitute such “a judgment or decree” there being no basis for
distinguishing between the legal effect of the two forms of notice.
As does the case before us, Evans dealt with the proper computation of the one year time
limitation under T.C.A. 28-1-105(a). However, Evans is distinguishable from the present case in that
Evans involved the question of whether the judgment necessary to trigger the running of the one year
limitation under the statute was the notice of nonsuit or the entered judgment of the court. The
present matter involves the very different question of whether such “judgment or decree” was the
judgment entered by this Court or the subsequent order of the Circuit Court entered in compliance
with the judgment of this Court upon remand.
In the second of the two cases cited by the Appellants, Nashville, C. & L. Ry. v. Bolton,
supra, a judgment in favor of the plaintiff was reversed on appeal and the case was remanded to the
circuit court. The plaintiff then terminated the case by taking a voluntary nonsuit. Within one year
of the nonsuit the plaintiff commenced her action anew in the circuit court of another county. The
defendant asserted that the plaintiff should have commenced the new action within one year of the
date of the appellate judgment of reversal rather than within one year of the nonsuit. Our Supreme
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Court disagreed, holding that the one year to re-file the new action under the savings statute1 should
be computed from the date of the nonsuit. The Appellants argue that this case “is persuasive
authority that the one year allowed by the savings statute to refile an action following a appellate
decision and remand begins to run upon the date of termination of the action in the trial court
following remand.” We disagree.
We find a crucial distinction between the present matter and Nashville C. & L, Ry. in that the
latter case involved a reversal which did not mandate dismissal of the plaintiff’s cause of action in
the trial court. Instead, the case was remanded to the trial court where the plaintiff had the choice of
continuing prosecution of her case or taking a voluntary nonsuit. The Supreme Court found that
such a reversal with remand was not the sort of reversal which would begin the one year limitation
period for filing a new action under the saving statute and noted as follows at page 11:
[T]he judgment itself must be one that brings to a rest or conclusion the action as
then pitched and prosecuted, whether by dismissal, arrest, or reversal. A reversal
with remand is not such a conclusion. It is but a temporary check in the progress
of the same suit.
Although the Court states that reversal with remand is not the conclusion of a cause of action
which is required under the savings statute, it is evident from the facts that the Court is not referring
to a remand for dismissal, as in the present case, but rather to a remand which allows continuation
of the same suit in the trial court from which it was appealed. The critical question is whether the
judgment “ brings to a rest or conclusion the action as then pitched or prosecuted” or does it merely
effect “a temporary check in the progress of the same suit.”
It is our determination that the judgment and opinion entered by this Court on July 31, 2000,
concluded the Appellants’ cause of action “as then pitched or prosecuted.” Although our judgment
did not specifically order dismissal of the Appellants’ case, that was its necessary effect.
Furthermore, the order of the Shelby County Circuit Court did specifically order dismissal of the
Appellants’ case and, upon affirmation of that order, the element of dismissal became an implicit
part of our judgment. Although we did not agree with the grounds upon which the Circuit Court
based its decision and affirmed on the alternate grounds of improper venue, nevertheless we did
affirm the Circuit Court decision to the extent that it dismissed the Appellants’ case. Upon such
affirmation, the Appellants’ case as then prosecuted was effectively terminated.
The Appellants’ argument that our judgment was not a final adjudication because we
remanded the case for further proceedings is without merit. The sole reason for remand specified
in our judgment was so that the Trial Court could institute “further proceedings consistent with our
opinion.” (emphasis added) Subsequent to our determination that the Trial Court was not the proper
venue for the Appellants’ case and that the case was properly dismissed, the Trial Court was without
1
The savings statute under review by the Court in Nashville, C. & St.L. Ry. was then set forth at section 4446
of Sha nnon ’s Cod e. In all asp ects pe rtinent to the present case it enco mpa ssed T .C.A. 28-1 -105 (a).
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authority to take any action which would have allowed the Appellants to continue their case in that
court. It is well settled that “ inferior courts must abide the orders, decrees and precedents of higher
courts. The slightest deviation from this rigid rule would disrupt and destroy the sanctity of the
judicial process” Barger v. Brock, 535 S.W.2d 337 (Tenn. 1976). In J.N. Moore v. Chattanooga
Electric Railway Company et al. 109 S.W. 497 (Tenn. 1907) the plaintiff contended that a judgment
of the United States Circuit Court of Appeals was not final because the act establishing that court
provided that cases determined by the Court on appeal, and in which it had rendered a final decision,
should be remanded to the district or circuit court “for further proceedings to be taken in pursuance
of such determination.” Our Supreme Court noted the limited authority of the district or circuit
court upon remand at page 501:
The judge of the Circuit Court cannot open the case when it is remanded. He
cannot in any way modify the judgment of the higher court. He has no judicial
function to exercise in the matter. He cannot exercise any discretion. All that can
be done is to execute the judgment of the appellate court, and this is merely a
ministerial act.(citations omitted)
Finally, we note the following statement from 51 American Jurisprudence, Limitation of
Actions, Section 299:
For the purposes of a savings statute, a court action that is reversed and remanded
for the obligatory ministerial act of dismissal is terminated on the date of the
reversal, rather than on the date of the dismissal in the lower court.
Although in the instant case this Court’s judgment of July 31, 2000, affirmed, rather than
reversed, the order of the Circuit Court, the result was dismissal of the Appellants’ case and the order
entered by the Circuit Court consistent with such judgment upon remand was merely an “obligatory
ministerial act.” The one year allotted to the Appellants for commencing a new action began when
our judgement was entered on July 31, 2000.
For the foregoing reasons we affirm the judgment of the Trial Court and remand for
collection of costs below. Costs of appeal are adjudged against Larry E. Parrish, Larry E. Parrish,
P.C. and their surety.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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