                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 8, 2011 Session

       CHANDA KEITH v. REGAS REAL ESTATE COMPANY, ET AL.

                    Appeal from the Circuit Court for Knox County
                       No. 135010 Dale C. Workman, Judge




             No. E2011-00337-COA-R3-CV-FILED-DECEMBER 2, 2011




This is a negligence case in which Chanda Keith (“Ms. Keith”) filed suit against Regas Real
Estate Company (“Regas”) and LDB Corporation operating in Tennessee as Mr. Gatti’s
Incorporated formerly doing business as Mr. Gatti’s and/or Mr. Gatti’s, L.P. (“Mr. Gatti’s”).
The trial court dismissed the suit against Regas. Approximately ten years after the initial suit
was filed, the trial court dismissed the suit against Mr. Gatti’s without prejudice, finding that
Ms. Keith failed to comply with an order. One year later, Ms. Keith filed a new suit against
Regas and Mr. Gatti’s. The trial court dismissed both suits. Ms. Keith appeals. We affirm
the trial court relative to the dismissal of the suit against Regas but reverse the trial court
relative to the dismissal of the suit against Mr. Gatti’s. The case is remanded.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                Affirmed in Part, Reversed in Part; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Chanda Keith, Knoxville, Tennessee, Pro Se.

Gary M. Prince and Nathaniel C. Strand, Knoxville, Tennessee, for the appellee, LDB
Corporation operating in Tennessee as Mr. Gatti’s Incorporated f/d/b/a Mr. Gatti’s and/or
Mr. Gatti’s, L.P.

Jennifer T. McGinn and Benjamin W. Jones, Knoxville, Tennessee, for the appellee, Regas
Real Estate Company.
                                                 OPINION

                                           I. BACKGROUND

       On June 29, 1998, Ms. Keith was on Mr. Gatti’s premises when she fell in the parking
lot managed by Regas. According to Ms. Keith, as a result of her fall, she “received serious
and painful injuries, incurred medical expenses, [and] sustained significant pain[,]
suffering[,] emotional distress, [] permanent injury, [and] injury to her capacity to earn.”
Additionally, her mother, Joanne Keith, was “deprived of her valuable services and []
sustained a loss of income.”1 Ms. Keith filed suit against Mr. Gatti’s on June 29, 1999.
More than one year later, she filed an amended complaint against Mr. Gatti’s and Regas.

       In 2002, the court dismissed the case relative to Regas, finding that the suit was
untimely and that Regas “did not receive sufficient notice” of the lawsuit. In 2007, the court
entered an order acknowledging that Ms. Keith’s attorney was attempting to withdraw from
the case against Mr. Gatti’s. The court directed Ms. Keith to provide “written notice”
indicating that she hired a new attorney. The court cautioned that failure to comply with the
order within 60 days would result in dismissal of her case without prejudice. In 2009, the
court dismissed the case without prejudice, finding that she failed to comply with the 2007
order.

       In 2010, Ms. Keith filed a new complaint against Regas and Mr. Gatti’s, and they filed
motions to dismiss. Regas claimed that the 2002 order dismissing the case operated as an
adjudication on the merits pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure.
Mr. Gatti’s argued that the claim was barred by the statute of limitations and the doctrine of
laches. Mr. Gatti’s said that the “negligence and unreasonable delay in bringing th[e] lawsuit
and prosecuting the first lawsuit [] caused prejudice.” The court entered an order dismissing
the case against Mr. Gatti’s, finding that the case was barred by the statute of limitations and
the doctrine of laches. Two months later, the court entered a second order, finding that the
motions to dismiss filed by Mr. Gatti’s and Regas were well-taken. The court dismissed the
case against both Mr. Gatti’s and Regas, noting that the first order should operate as a
dismissal of the case against both defendants. This appeal followed.2




1
    Joanne Keith was initially joined as a plaintiff but has since been removed from the case.
2
 We acknowledge that the notice of appeal was prematurely filed because it was filed before the second
order, which, unlike the first order, resolved all claims in the lawsuit against both defendants. However, “[a]
prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the
appeal is taken and on the day thereof.” Tenn. R. App. P. 4(d).
                                                      -2-
                                         II. ISSUES

        Mr. Gatti’s raised a threshold issue for our consideration that we consolidate and
restate as follows:

       A. Whether the case should be dismissed because Ms. Keith failed to serve
       Mr. Gatti’s with a copy of the notice of appeal.

We consolidate and restate Ms. Keith’s sole issue on appeal as follows:

       B. Whether the trial court erred in dismissing her case against Regas and Mr.
       Gatti’s.

                              III. STANDARD OF REVIEW

        A motion to dismiss for failure to state a claim upon which relief can be granted
“challenges the legal sufficiency of the complaint, not the strength of the plaintiff’s proof[;]
therefore, matters outside the pleadings should not be considered in deciding whether to grant
the motion.” Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn.
2002). In determining whether the trial court erred in granting the motion to dismiss, this
court “must construe the complaint liberally, presuming all factual allegations to be true and
giving the plaintiff the benefit of all reasonable inferences.” Id. The complaint “should not
be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set
of facts in support of [the] claim that would warrant relief.” Id. The trial court’s grant of the
motion to dismiss is subject to a de novo review with no presumption of correctness because
we are reviewing the trial court’s legal conclusion. Blackburn v. Blackburn, 270 S.W.3d 42,
47 (Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                     IV. DISCUSSION

                                               A.

      Mr. Gatti’s asserts that this court should dismiss the case because Ms. Keith failed to
provide it with a copy of the notice of appeal. Ms. Keith does not respond to this argument.

       Rule 5(a) of the Tennessee Rules of Appellate Procedure provides, in pertinent part,

       Not later than 7 days after filing the notice of appeal, the appellant in a civil
       action shall serve a copy of the notice of appeal on counsel of record for each
       party or, if a party is not represented by counsel, on the party. Proof of service

                                               -3-
        in the manner provided in Rule 20(e) shall be filed with the clerk of the trial
        court within 7 days after service. The appellant shall note on each copy served
        the date on which the notice of appeal was filed. Service shall be sufficient
        notwithstanding the death of a party or counsel.

Rule 5(a) is not jurisdictional and may be suspended, provided good cause for suspension of
the rule is present. Tenn. R. App. P. 2; G.F. Plunk Const. Co., Inc. v. Barrett Properties,
Inc., 640 S.W.2d 215, 217 (Tenn. 1982). This court may suspend the rule “in a particular
case on motion of a party or on [our] own motion and may order proceedings in accordance
with [our] discretion.” Tenn. R. App. P. 2.

        Here, Ms. Keith was pro se and had attempted to follow the rules for appealing the
trial court decision by filing a notice of appeal with the trial court clerk. Within two weeks
of the filing of the notice of appeal, the appellate court clerk notified Mr. Gatti’s that the
appeal had been docketed, thereby indirectly providing Mr. Gatti’s with notice that Ms. Keith
had filed a notice of appeal.3 See Tenn. R. App. P. 5(c). Mr. Gatti’s does not submit that it
was prejudiced by Ms. Keith’s failure to serve it with a copy of the notice of appeal. We
believe that given Ms. Keith’s status as a pro se litigant and the fact that Mr. Gatti’s received
notice of the appeal and was not prejudiced by Ms. Keith’s failure to comply with the rule,
suspension of the rule is appropriate in this case.

       In so holding, we recognize that pro se litigants “‘must follow the same procedural
and substantive law as the represented party.’” Edmundson v. Pratt, 945 S.W.2d 754, 755
(Tenn. Ct. App. 1996) (quoting Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct.
App. 1988)). However, we will not discount Ms. Keith’s status as a pro se litigant in
determining whether good cause is present for suspension of the rule implicated in this case.
We also recognize that the Tennessee Supreme Court has held that the absence of prejudice
was not a valid reason for suspending a somewhat similar rule. Lambert v. Home Federal
Sav. & Loan Ass’n., 481 S.W.2d 770, 771-72 (Tenn. 1972). In Lambert, the Court noted that
the rule at issue, the filing of the assignments of error, brief, and argument within the time
frame provided by the rules, was for the benefit of the Court, not the litigants. Id. at 772.
The Court stated that the rule was “directed at one of the most important objectives of this
Court: the prompt dispatch of judicial business.” Id. That same objective is not at issue here.
The portion of the rule not complied with, serving the notice of appeal on opposing counsel,
was intended for the benefit of the litigants, not the trial court. Ms. Keith’s failure to serve
Mr. Gatti’s with a copy of the notice of the appeal did not disrupt the filing of the appeal with
this court or the time limitations applicable to the furtherance of the expeditious nature of


3
 Likewise, the appellate court clerk also notified Regas that the appeal had been docketed after the notice
of appeal and the second order were filed.
                                                   -4-
appeals in this court. Once the notice of appeal was filed with the trial court, the trial court
clerk was tasked with notifying the appellate court clerk, who docketed the appeal in this
court and notified the parties that the appeal had been docketed. With all of the above
considerations in mind, we decline to dismiss this case because of Ms. Keith’s failure to
serve opposing counsel with a copy of the notice of appeal.

                                                    B.

                                                1. Regas

        Ms. Keith argues that trial court should not have dismissed her case because she re-
filed the case within one year of the court’s dismissal of the case without prejudice. Regas
responds that the initial case filed against it was never filed within the applicable statute of
limitations or the time in which Ms. Keith could amend her pleadings. Regas argues that Ms.
Keith cannot use the saving statute to re-file the claim when it was never properly filed in the
first place. In the alternative, Regas alleges that dismissal was appropriate because the case
against it was originally dismissed with prejudice by order in 2002 and that the dismissal
became final 30 days after the 2009 order disposing of the entirety of the case, precluding an
appeal or the re-filing of the case pursuant to the saving statute.

       The suit against Mr. Gatti’s was originally filed on June 29, 1999, and the amended
complaint adding Regas as a defendant was filed in November 2000.4 Citing Rule 15.03 of
the Tennessee Rules of Civil Procedure, the trial court dismissed the case on May 6, 2002,
without specifying whether the dismissal was with prejudice.

       We believe the order of dismissal was not an appealable final judgment because the
claim against Mr. Gatti’s still remained and was not resolved until 2009. Tenn. R. App. P.
3(a). “A judgment that does not resolve all the claims between all the parties may
nevertheless be considered a final judgment if the trial court certifies it as final in
accordance” with Rule 54.02 of the Tennessee Rules of Civil Procedure. Shofner v. Shofner,
181 S.W.3d 703, 713 (Tenn. Ct. App. 2004). Absent this certification, “any order or other
form of decision, however designated, that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not terminate the action as to any of the
claims or the parties.” Tenn. R. Civ. P. 54.02. The trial court in this case did not certify the
judgment as final. Therefore, the 2002 order of dismissal was “not enforceable or
appealable” and was “subject to revision at any time before entry of a final judgment
adjudicating all the claims, rights, and liabilities of all parties.” Tenn. R. App. P. 3(a). The


4
 We are unable to read the file stamp, but the amended complaint reflects that it was submitted on November
21, 2000.
                                                   -5-
final judgment entered in 2009 did not purport to amend the 2002 dismissal. Thus, once all
of the issues were disposed of by the 2009 order, Ms. Keith was finally able to appeal the
2002 dismissal. See Fletcher v. White, No. E2009-01199-COA-R3-CV, 2010 WL 3715624,
at *3 (Tenn. Ct. App. Sep. 22, 2010) (holding that it was not until all claims were disposed
of that the plaintiffs could appeal an earlier grant of summary judgment), perm. app. denied
(Tenn. Feb. 17, 2011).

       However, Ms. Keith never appealed from the 2009 judgment. A notice of appeal
“must be filed with and received by the trial court within 30 days after the entry of the
judgment appealed from.” Tenn. R. App. P. 4(a). “The [30-day] time limit for filing a notice
of appeal is mandatory and jurisdictional in civil cases.” Albert v. Frye, 145 S.W.3d 526,
528 (Tenn. 2004) (emphasis added). We believe that Ms. Keith’s failure to appeal from the
2009 judgment precluded review of the trial court’s 2002 dismissal of the case against Regas
and any further action on the claim against Regas. Accordingly, we conclude that the trial
court did not err in dismissing the 2010 complaint relative to Regas because it was filed after
a judgment of dismissal had been entered and subsequently became final as to that claim.

                                        2. Mr. Gatti’s

        Ms. Keith argues that trial court erred in dismissing her case because she re-filed the
action within the applicable time limit given by the trial court. Mr. Gatti’s responds that
dismissal was appropriate because the case was re-filed beyond the time allotted in the saving
statute. Mr. Gatti’s asserts that the 2007 order effectively dismissed the case 60 days from
its entry because Ms. Keith failed to comply with the court’s directions. Mr. Gatti’s contends
that the trial court also dismissed the case based upon the doctrine of laches and that because
Ms. Keith did not raise any argument regarding the trial court’s dismissal on that ground, she
waived review of the issue, thereby leaving this court with the only option of upholding the
decision of the trial court.

        Relative to Mr. Gatti’s waiver argument, we acknowledge that Ms. Keith’s brief is
short and lacking in legal argument. However, the issues before us do not require a lengthy
legal analysis. Both issues implicate the time for filing the complaint and proceeding with
litigation, issues briefly discussed by Ms. Keith when she stated that the case should not be
dismissed because she complied with the time limits for re-filing the case. We believe her
argument is applicable and sufficient to merit review of the trial court’s dismissal of the case
based upon the statute of limitations and the doctrine of laches.

       Actions for personal injuries must be commenced within one year after the cause of
action accrued. Tenn. Code Ann. § 28-3-104(a)(1). The injury occurred on June 29, 1998,
and Ms. Keith filed her first complaint on June 29, 1999, within the one-year limitation

                                              -6-
applicable to such actions. While many years of protracted litigation ensued, the action
against Mr. Gatti’s was not dismissed until July 16, 2009. While the 2007 order instructed
Ms. Keith that her case would be dismissed in 60 days for failure to comply with the order,
the case was not dismissed until 2009, when the trial court entered an order dismissing the
case. Tenn. R. App. P. 3(a). By order of the court, the 2009 order of dismissal was entered
without prejudice. The new complaint was filed within one year of the dismissal of the case
without prejudice. Thus, the saving statute codified in Tennessee Code Annotated section
28-1-105 and entitled as “New Actions” is applicable. The saving statute provides, in
pertinent part,

       (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.

Tenn. Code Ann. § 28-1-105(a). We conclude that the statute of limitations did not bar the
filing of the new action because the second complaint was filed within one year of the
dismissal of the case without prejudice.

       We must now determine whether the doctrine of laches barred the filing of the second
complaint. Mr. Gatti’s asserts that they have endured over 12 years of litigation arising from
an injury that occurred in 1998. They argue that if forced to proceed with the case, they will
suffer prejudice and injury resulting from the loss of memory, evidence, and witnesses.

        “‘The defense of laches is based [up]on the doctrine of equitable estoppel, and is only
applied where the party invoking it has been prejudiced by the delay.”’ Brown v. Ogle, 46
S.W.3d 721, 726 (Tenn. Ct. App. 2000) (quoting Freeman v. Martin Robowash, Inc., 457
S.W.2d 606, 611 (Tenn. Ct. App. 1970)). Thus, the doctrine of laches “requires more than
mere delay.” Dennis Joslin Co., LLC v. Johnson, 138 S.W.3d 197, 200 (Tenn. Ct. App.
2003). “It requires an unreasonable delay that prejudices the party seeking to employ laches
as a defense, and it depends on the facts and circumstances of each individual case.” Id.
(citing Brister v. Estate of Brubaker, 336 S.W.2d 326, 332 (Tenn. Ct. App. 1960)). “The
courts are reluctant to sustain the defense of laches, and in a case where the delay in filing
the suit can be reasonably explained or justified, such a defense will not be heard.” Freeman,
457 S.W.2d at 611. “[A]pplication of the doctrine . . . lies within the discretion of the trial
court.” Brown, 46 S.W.3d at 727.



                                              -7-
        Mr. Gatti’s alleged in its motion to dismiss that Ms. Keith’s “negligence and
unreasonabl[e] delay in bringing this lawsuit and prosecuting the first lawsuit has caused
prejudice [] because there will be a loss of evidence, death of witnesses, and failure of
memory resulting in the obstruction of facts and uncertain ascertainment of truth.” However,
Mr. Gatti’s did not plead any specific facts in support of the general assertion of prejudice.
In Brown, this court upheld the application of the doctrine of laches, citing the death of a
witness, the loss of documents, and the loss of memory in support of the trial court’s
decision. Unlike the defendant in Brown, Mr. Gatti’s has not provided any examples of
actual prejudice that would occur if the suit were to proceed. Accordingly, we conclude that
the trial court erred in applying the doctrine of laches. We reverse the decision of the trial
court relative to the dismissal of the case against Mr. Gatti’s and remand the case for
proceedings consistent with this opinion.

                                    V. CONCLUSION

        The judgment of the trial court is affirmed in part and reversed in part, and the case
is remanded for such further proceedings as may be necessary. Exercising our discretion, we
tax the costs on appeal one half to Chanda Keith and one half to LDB Corporation operating
in Tennessee as Mr. Gatti’s Incorporated doing business as Mr. Gatti’s.




                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




                                             -8-
