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

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 . *2 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 *3 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.