                                                                                                  02/22/2019
                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      January 16, 2019 Session

         SAMMIE L. BROOKINS ET AL. v. SAINT FRANCIS HOSPITAL
                        FOUNDATION ET AL.

                       Appeal from the Circuit Court for Shelby County
                         No. CT-002743-16 Mary L. Wagner, Judge
                          ___________________________________

                                 No. W2018-00255-COA-R3-CV
                             ___________________________________

After husband’s health care liability complaint was dismissed without prejudice for lack
of prosecution, husband and wife re-filed in reliance on the savings statute. The intended
defendant, who had neither been served nor named in connection with the first complaint,
was eventually named in an amended complaint after the second complaint had been
filed. The trial court later dismissed the action against the intended defendant, holding,
among other things, that the case was barred by the statute of limitations. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and ROBERT E. LEE DAVIES, SR. J., joined.

Sammie L. Brookins, and Deloris T. Brookins, Pro se.

Jonathan T. Martin, and Sara M. Garner, Memphis, Tennessee, for the appellee,
AMISUB (SFH), Inc. d/b/a St. Francis Hospital.

                                   MEMORANDUM OPINION1

                      BACKGROUND AND PROCEDURAL HISTORY

1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
       This appeal involves questions pertaining to the application of Tennessee’s
savings statute, Tennessee Code Annotated section 28-1-105. As much of the
background information pertaining to this case was detailed by this Court in a prior
opinion, see Brookins v. Tabor, No. W2017-00576-COA-R3-CV, 2018 WL 2106652
(Tenn. Ct. App. May 8, 2018) (“Brookins I”), we detail it only briefly here.

        Appellant Sammie Brookins originally initiated this case on January 29, 2015,
when he filed a health care liability complaint against a number of defendants asserting
negligence based on an alleged failed hip replacement, subsequent infection, and kidney
failure. Brookins I, at *1. Among the named defendants were Dr. John Fleenor and the
“St. Francis Hospital, Inc. Foundation.” Although all defendants other than Dr. Fleenor
and the “Foundation” were dismissed following a notice of voluntary non-suit, the trial
court dismissed the complaint against Dr. Fleenor and the “Foundation” in September of
2015 without prejudice “for lack of prosecution.” Id. There is no dispute that the
“Foundation” was not an entity in existence at the time legal proceedings were brought
by Mr. Brookins, and it should be noted that prior to the trial court’s dismissal for lack of
prosecution, a summons issued to the “Foundation” was returned “Not to Be Found.”
Mr. Brookins concedes he never issued an alias summons to the “Foundation” in
connection with this complaint.

        Mr. Brookins subsequently filed a second complaint for the same acts of
negligence on July 6, 2016, invoking the savings statute codified at Tennessee Code
Annotated section 28-1-105. Id. The complaint was filed against the same defendants as
the first action, including the “Foundation.” Id. AMISUB (SFH), Inc. d/b/a St. Francis
Hospital, who is the only appellee in this appeal, was again not named as a defendant in
this complaint. Unlike the first complaint from January 2015, for the first time Mr.
Brookins’ wife, Deloris Brookins, was named as a plaintiff in the second complaint,
asserting a claim for loss of consortium. Id. at *1, 8.

       Following the filing of the second complaint, multiple defendants moved to
dismiss the complaint on varying bases. Id. at *1. For his part, Dr. Fleenor contended
that the savings statute was not available to Mr. Brookins because the original complaint
had never been served upon him in accordance with Rule 3 of the Tennessee Rules of
Civil Procedure. Id. The trial court subsequently dismissed the complaint as to several
defendants, including Dr. Fleenor, and certified its orders of dismissal as final pursuant to
Rule 54.02 of the Tennessee Rules of Civil Procedure. The appeal in Brookins I
subsequently followed. Although neither the “Foundation” nor AMISUB (SFH), Inc.
were parties to that appeal, some of our prior discussion is instructive to the disposition of
the present appeal, as will be evident.

       In affirming the dismissal of the complaint against Dr. Fleenor, we specifically
noted as follows:

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   Assuming that the complaint filed on January 29, 2015, was filed within
the one-year statute of limitations as against all of the defendants, we
conclude Mr. Brookins’ claims against Dr. Fleenor as set forth in his 2016
complaint are barred because he failed to comply with the saving statute.
This is because Mr. Brookins did not serve Dr. Fleenor with process as
required by the saving statute, Tenn. Code Ann. § 28–1–105, set forth
above, upon which the plaintiffs expressly relied when they filed their
second complaint on July 6, 2016.

  Rule 3 of the Tennessee Rules of Civil Procedure explains what it
means to “commence” a civil action:

   All civil actions are commenced by filing a complaint with the clerk
   of the court. An action is commenced within the meaning of any
   statute of limitations upon such filing of a complaint, whether
   process be issued or not issued and whether process be returned
   served or unserved. If process remains unissued for 90 days or is not
   served within 90 days from issuance, regardless of the reason, the
   plaintiff cannot rely upon the original commencement to toll the
   running of a statute of limitations unless the plaintiff continues the
   action by obtaining issuance of new process within one year from
   issuance of the previous process or, if no process is issued, within
   one year of the filing of the complaint.


(Emphasis added.) Although process was issued for each of the defendants
when the January 2015 complaint was filed, there is no dispute that Dr.
Fleenor was not served with the complaint before the trial court dismissed it
for lack of prosecution on September 21, 2015. The record does not show,
and Mr. Brookins does not argue, that he continued the 2015 action against
Dr. Fleenor by obtaining issuance of new process within one year from
issuance of the previous process (that occurred on January 29, 2015) or
within one year of the filing of the complaint, as required by Tenn. Code
Ann. § 28–1–105(a).

       Our Supreme Court has addressed the saving statute in conjunction
with Rule 3 and has held that the “availability of the saving statute is
dependent upon a plaintiff’s compliance with Rule 3.” Frye v. Blue Ridge
Neuroscience Ctr., P.C., 70 S.W.3d 710, 716 (Tenn. 2002). In other words,
a plaintiff is not entitled to take advantage of the one-year tolling period of
the saving statute set out in Tenn. Code Ann. § 28–1–105(a) to avoid the
bar of the statute of limitations unless the plaintiff has “ ‘commenced [the
action] within the time limited by a rule or statute of limitation.’ ” Id.
                                     -3-
       (quoting Tenn. Code Ann. § 28–1–105(a) ); see also McNeary v. Baptist
       Mem'l Hosp., 360 S.W.3d 429, 439–40 (Tenn. Ct. App. 2011) (explaining
       that saving statute is only available to a plaintiff who has strictly complied
       with Rule 3’s requirement that the complaint has been filed and process has
       been served within specified period).

Id. at *6-7 (internal footnote omitted).

       Although we acknowledged in Brookins I that the “Foundation” was not at issue
therein, we opined that a similar analysis might apply:

       [W]e note that the record does not show that [the “Foundation”] was ever
       served with Mr. Brookins’ initial complaint that was filed in 2015. If Mr.
       Brookins’ action was not “commenced” against [the “Foundation”], as that
       term is used in Rule 3 of the Rules of Civil Procedure and Tenn. Code Ann.
       § 28-1-105, then the statute of limitations would have barred the plaintiffs’
       claims against [the “Foundation”] that were filed on July 6, 2016, for the
       same reasons that Mr. Brookins’ claims against Dr. Fleenor are barred.

Id. at *9 n.6.

      As it is, the “Foundation” was never the proper party to be sued. As we have
previously indicated, the “Foundation” was a non-existent entity at the time the
complaints in this matter were filed. Mr. Brookins, and his wife, actually intended to sue
AMISUB (SFH), Inc. d/b/a St. Francis Hospital (“the Hospital”). The present appeal
concerns the propriety of an action against this intended defendant.

       Prior to formally clarifying that they intended to proceed against the Hospital, the
Brookinses moved for a default judgment against the “Foundation” in April 2017.
However, the following month, on May 19, 2017, they filed an “Amended Complaint for
Medical Malprac[t]ice,” specifically naming the Hospital as a defendant. On June 20,
2017, the Hospital filed a motion to dismiss, arguing, among other things, that the case
was barred by the statute of limitations.

       In a set of orders entered in September 2017, the trial court addressed the filed
motion for default judgment, as well as the motion to dismiss. Whereas the motion for
default judgment against the “Foundation” was denied, the trial court granted the motion
to dismiss. On October 2, 2017, the Brookinses filed a motion to alter or amend the trial
court’s judgment. A hearing on the motion took place in December 2017, and the
following month, on January 18, 2018, the trial court entered an order wherein its prior
rulings were not disturbed. The Brookinses timely appealed to this Court.


                                           -4-
                                       ISSUES PRESENTED

        In their appellate brief, the Brookinses raise two issues for our review:

                1. Whether the trial court erred in failing to grant their original motion for
                   default judgment.
                2. Whether the trial court erred in denying their motion to alter or amend
                   judgment.

       For its part, the Hospital also interjects an additional issue: whether the trial court
erred in granting the motion to dismiss where, among other things, the complaint was
“filed well beyond the applicable statute of limitations.”

                                        STANDARD OF REVIEW

        “A trial court’s decision to deny a motion for default judgment is reviewed under
the abuse of discretion standard.” Carnett v. PNC Bank, NA, No. W2015-01677-COA-
R3-CV, 2016 WL 402495, at *4 (Tenn. Ct. App. Feb. 2, 2016) (citation omitted). This
same standard also governs our review of a trial court’s denial of a motion to alter or
amend judgment. See Robinson v. Currey, 153 S.W.3d 32, 38 (Tenn. Ct. App. 2004)
(citation omitted). Regarding motions to dismiss, “[w]e review the trial court’s decision
on a motion to dismiss de novo without a presumption of correctness.” Vandergriff v.
ParkRidge E. Hosp., 482 S.W.3d 545, 555 (Tenn. Ct. App. 2015) (citation omitted).

                                            DISCUSSION

       Having considered the raised issues in this case, we discern no error on the part of
the trial court. First, we observe that the motion for default judgment was pursued
against the “Foundation,” which is a non-existent entity; considering this alone, there is
no reason to disturb the trial court’s ruling denying the motion for default judgment.
Indeed, after they had filed their motion for default, the Brookinses filed their “Amended
Complaint for Medical Malprac[t]ice” wherein they named the Hospital, their intended
defendant, as opposed to the “Foundation.” The remaining question, of course, is
whether the ultimate dismissal of their action was proper. Namely, was their action
against the Hospital timely asserted?

      We are of the opinion that the trial court appropriately dismissed the case.2 When
Mr. Brookins re-filed his complaint in July 2016, he expressly relied upon the savings
        2
         In addition to our discussion herein, there are certainly further timeliness concerns with respect
to Ms. Brookins’ consortium claim specifically, as she was not a named plaintiff in the original
complaint. Moreover, inasmuch as Mr. Brookins’ claims are barred pursuant to our discussion, so too
must the consortium claim. See Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. Ct. App. 1989) (“Despite
being a separate claim from that of an injured spouse for other damages, loss of consortium is also a
                                                   -5-
statute codified at Tennessee Code Annotated section 28-1-105. Of course, even the re-
filed complaint did not name the Hospital, but rather, the “Foundation,” who was
previously named in the first complaint. The Hospital was not named until the
“Amended Complaint for Medical Malprac[t]ice,” filed May 19, 2017. The argument
from Mr. Brookins appears to be that this Amended Complaint from May 2017 merely
corrected a misnomer and properly relates back to his original filing. Even assuming Mr.
Brookins’ prior efforts to sue the “Foundation” as opposed to the Hospital were not of
any material consequence, there is still a fundamental problem with the timeliness of the
suit.

        A problem exists because the July 2016 re-filing was itself untimely. Although
the July 2016 re-filing was within one year of the trial court’s non-prejudicial dismissal
of the “Foundation” in September 2015, the savings statute was not available to Mr.
Brookins. As we noted in the first appeal of this case involving Dr. Fleenor, a plaintiff is
not entitled to take advantage of the one-year tolling period of the savings statute unless
the plaintiff commenced the action within the time limited by a rule or statute of
limitation. Brookins I, at *7. This, of course, makes the requirements of Rule 3 of the
Tennessee Rules of Civil Procedure exceedingly relevant. In part, that rule provides that
“[a]n action is commenced within the meaning of any statute of limitations upon such
filing of a complaint, whether process be issued or not issued and whether process be
returned served or unserved.” Tenn. R. Civ. P. 3. However, the rule also provides that

        [i]f process remains unissued for 90 days or is not served within 90 days
        from issuance, regardless of the reason, the plaintiff cannot rely upon the
        original commencement to toll the running of a statute of limitations unless
        the plaintiff continues the action by obtaining issuance of new process
        within one year from issuance of the previous process or, if no process is
        issued, within one year of the filing of the complaint.
Id.

       Here, the process that issued to the “Foundation” in connection with the first
complaint was returned unserved in February 2015, and Mr. Brookins admits that no alias
summons issued in connection with the first complaint. New process ultimately issued
with respect to the “Foundation,” but this was not until the complaint was re-filed in July
2016, which was, of course, well over a year after the issuance and nonservice of the
original process. Inasmuch as the first process that issued was not served and Mr.
Brookins never obtained issuance of new process within one year from the issuance of

derivative claim in that the physical injuries or incapacities of one’s spouse give rise to and establish the
claim.”); see also Greene v. Titi, No. M2008-02788-COA-R3-CV, 2010 WL 98884, at *10 (Tenn. Ct.
App. Jan. 11, 2010) (“As the trial court noted, Mrs. Greene’s loss of consortium claim against TPA is
derivative of Mr. Greene’s negligence claim. Therefore, because TPA has successfully negated an
essential element of the negligence claim, the trial court was correct in holding that the loss of consortium
claim fails as a matter of law.”).
                                                   -6-
the previous process, he was not able to rely on his original commencement to toll the
statute of limitations, therefore clearly making the July 2016 re-filing untimely.

                                  CONCLUSION

      The trial court’s judgment is hereby affirmed. Other arguments raised by the
Hospital in support of dismissal are pretermitted.


                                               _________________________________
                                               ARNOLD B. GOLDIN, JUDGE




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