                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                September 9, 2015 Session

        CIRCLE C CONSTRUCTION, LLC v. D. SEAN NILSEN ET AL.

           Appeal by Permission from the Court of Appeals, Middle Section
                         Circuit Court for Davidson County
                   No. 13C1465    Hamilton V. Gayden, Jr., Judge
                         ______________________________

                No. M2013-02330-SC-R11-CV – Filed March 7, 2016
                     ____________________________________

HOLLY KIRBY, J., concurring in part and dissenting in part.

       I must respectfully dissent from the majority‟s conclusion in this case that the
lawsuit refiled by Plaintiff Circle C Construction is timely under the savings statute,
Tennessee Code Annotated § 28-1-105(a).

       I disagree with the majority‟s assertion that the tolling agreement in this case
“reflects the parties‟ intent that Circle C. . . retained the right to refile [the lawsuit] under
the savings statute.” After reviewing the recital provisions in the agreement, the majority
finds an “absence of any evidence of contrary intention.” Surprisingly, the majority
refers only in passing to binding language in the operative provisions of the tolling
agreement (“If Plaintiff desires to assert claims for professional negligence, it must do so
on or before the Termination Date.”). This language was emphasized by the Court of
Appeals as demonstrating that the parties intended to preclude Circle C from re-filing its
lawsuit after the contractual Termination Date. Circle C Constr., LLC v. Nilsen, No.
M2013-02330-COA-R3-CV, 2014 WL 3763937, at *3 (Tenn. Ct. App. July 29, 2014)
(“The language of the last sentence of paragraph one is mandatory and does not contain
any exceptions.”). I agree with the Court of Appeals that this language is important to
any analysis of the parties‟ intent when they entered into the tolling agreement.

        Looking at the tolling agreement overall, I would find that it is ambiguous, that the
language does not demonstrate definitively that the parties even considered the savings
statute at the time they entered into the agreement. However, I agree with the majority
that any such agreement should be construed in light of the remedial purpose of the
savings statute and that parties who wish to preclude a plaintiff from re-filing its lawsuit
under the savings statute must say so explicitly. In light of this, even though I disagree
with much of the majority‟s analysis on the interpretation of the tolling agreement, I
agree with its ultimate conclusion that the agreement should be interpreted as not
preventing Circle C from re-filing under the savings statute.

        The primary issue, however, is whether the savings statute even applies in this
case. Section 28-1-105(a) states that a plaintiff may refile its lawsuit under the savings
statute “[i]f the action is commenced within the time limited by a rule or statute of
limitation.” Tenn. Code Ann. § 28-1-105(a) (emphasis added). To avoid the effect of
this language, the majority resorts to euphemizing, concluding that the savings statute
applies to Circle C‟s refiled lawsuit because the subject tolling agreement merely “paused
and extended the applicable statute of limitations.”1 The majority cites no authority for
this reasoning.

        The tolling agreement in this case sets a firm Filing Deadline of 120 days after the
Sixth Circuit Court of Appeals files its opinion in the related lawsuit. Respectfully, the
majority‟s use of euphemisms such as “pause” and “extend” does not change the fact that
this is a contractual substitute for the statutory limitations period. The Court of Appeals
held: “In this case, the applicable time limitation is established by contract, not by „rule
or statute of limitation.‟” Circle C Constr., 2014 WL 3763937, at *5. I agree.

        The majority gives no hint of how its construction of the savings statute might
play out for other agreements that contractually alter the deadline by which the plaintiff
must file its lawsuit. What about an agreement that simply sets a date by which the
plaintiff must file its lawsuit? If the date falls after the statutory limitations period has
expired, will we say that it also “pauses” or “extends” the limitations period so that the
savings statute applies? If the date falls before the statutory limitations period has
expired, will the Court employ another euphemism and hold that this merely
“compresses” the limitations period? In other words, at what point is a contractual
deadline to file suit no longer a “time limited by a rule or statute of limitation” within the
meaning of the savings statute?

        The majority opinion compounds the difficulty in understanding its reasoning by
relying on Somerfield v. Hailey, Sykes & Sharp a 1994 Court of Appeals decision. See
Somerfield v. Hailey, Sykes & Sharp, No. 03A01-9208-CV-00292, 1994 WL 17905, at
*1 (Tenn. Ct. App. Jan. 25, 1994). Somerfield has similar facts and presents a similar
issue as presented in the case at bar. In Somerfield, the Court of Appeals rejected the
defendant‟s assertion that the plaintiff could not re-file his lawsuit under the savings
statute, apparently on the basis that the plaintiff‟s claims arose in tort instead of in
contract. Id. at *1 (“In the case at bar, however, the suit is not upon a contract, but in tort,
and given the fact that the Saving Statute is remedial and should be liberally construed,
we [a]re disinclined to further limit its salutary provisions.” (internal citation omitted)).

        1
         Similarly, to bolster its interpretation, the majority repeatedly refers to the contractual Filing
Deadline as the “extended statute of limitations established by the tolling agreement.”

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       It is unclear whether the majority seeks to rely on the reasoning in Somerfield. To
the extent that it does, I must note that the language of Section 28-1-105(a) does not
reference the nature of the underlying claim at all. It says that a plaintiff may benefit of
the savings statute only “[i]f the action”—without specifying the type of action—“is
commenced within the time limited by a rule or statute of limitation.” Tenn. Code Ann.
§ 28-1-105(a) (emphasis added). Under the savings statute, then, what matters is the
origin of the limitation on the time for commencing the lawsuit, not the nature of the
underlying lawsuit. So, to the extent that the majority relies on Somerfield, its reasoning
does not hold water.

        I note that Tennessee‟s savings statute appears to be an anomaly; while many
states have a savings statute, I have not found one that restricts its applicability to time
deadlines affixed by a rule or statute of limitation. Our legislature may want to consider
amending Tennessee‟s savings statute to more closely resemble savings statutes in our
sister states. Until the legislature enacts such an amendment, however, I feel that the
Court should apply the savings statute as it is written. The majority in this case does not.

       For these reasons, I agree with the holding of the trial court and the Court of
Appeals below, that the savings statute does not apply to save Circle C‟s refiled lawsuit
and the lawsuit is barred by the time deadline in the parties‟ agreement. Therefore, I
respectfully dissent from the majority opinion.




                                                 ____________________________
                                                 HOLLY KIRBY, JUSTICE




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