                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                          Submitted on Briefs, April 11, 2001

  JAMES E. SWIGGETT v. CARL R. OGLE, JR., and J. MICHAEL KERR

                 Direct Appeal from the Chancery Court for Johnson County
                      No. 4702    Hon. C. Richard Johnson, Chancellor

                                        FILED APRIL 30, 2001

                                  No. E2000-01473-COA-R3-CV




In this action for legal malpractice, the Trial Court ruled a prior suit filed by plaintiff and dismissed
on the merits was res judicata to this action. We affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY , J., joined.


James E. Swiggett, Mountain City, Tennessee, pro se.

Carl R. Ogle, Jr., Jefferson City, Tennessee, for Appellees.



                                              OPINION


               Plaintiff filed the Complaint on October 22, 1999, charging defendants with legal
malpractice allegedly occurring in 1992. Defendants filed a Motion to Dismiss on the grounds that
the action was barred by the doctrine of res judicata and attached a copy of the Judgment dismissing
the prior complaint essentially alleging the same cause of action. That suit was dismissed with
prejudice on May 12, 1997. Also attached was a copy of a Court of Appeals Opinion affirming that
action, James E. Swiggett v. Carl Ogle, Jr., and J. Michael Kerr, (Court of Appeals Opinion filed
March 27, 1998 at Knoxville.)

                Responding to the Motion to Dismiss, the Hon. Jean A. Stanley, granted defendants
summary judgment on the grounds that the action was barred by res judicata. The Judgment
Ordered the plaintiff to pay the filing fees, court costs and the other related expenses in accordance
with Tennessee Code Annotated Section 41-21-807, and directed the Clerk, pursuant to T.C.A. §41-
21-812(a) that another claim by the plaintiff not be filed until all ordered fees and expenses were
paid in full. But the Order did not apply to any case excepted by T.C.A. §41-21-812(b).

              Plaintiff then filed a Motion to Alter or Amend which was overruled by the Hon. G.
Richard Johnson, Chancellor, on May 18, 2000, and the order reaffirmed the conditions set forth in
the Judgment.

                 The plaintiff argues that the Trial Judge erred in dismissing his action because it was
refiled within the time allowed under T.C.A. §28-1-105. This statute is operational when an action
is commenced within the original time limit, but is dismissed “upon any ground not concluded to
plaintiff’s right of action . . .”. The statute allows for the action to be refiled within a year from the
dismissal. Id. In this case the record establishes that plaintiff’s first action for legal malpractice was
dismissed on the merits and affirmed by the Court of Appeals. Accordingly, this code section has
no application to the facts of this case. Moreover, the Trial Court correctly dismissed the action on
the basis of res judicata. Harrogate Corp. v. System Sales Corp., 915 S.W.2d 812 (Tenn. Ct. App.
1995).

                Finally, plaintiff argues that the cost requirements of T.C.A. §41-21-801 eq seq, were
wrongfully applied to him because he had not brought an action against the State of Tennessee, a
State agency or its employees. While the statutes apply to actions brought by inmates against the
State, its departments and employees, we find nothing in this part to limit the application to such
suits. T.C.A. §41-21-802 provides that these statutes apply “to a claim brought by an inmate in
general sessions or trial level courts of record in which an affidavit of inability to pay costs is filed
with the claim by the inmate.” We find this issue to be without merit.

               We affirm the judgment of the Trial Court, and remand with the cost of the appeal
assessed to James E. Swiggett.



                                                         _________________________
                                                         HERSCHEL PICKENS FRANKS, J.




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