                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                  ______________________________________________          FILED
                                 CHESTER R. KELLY,
                                                                         September 29, 1998
                                    Plaintiff-Appellant,
                                                                          Cecil Crowson, Jr.
                                                                          Appellate C ourt Clerk
                             Vs.No. 02A01-9712-CV-00305
                              Haywood Circuit No. 3228
                              JERRY R. WOOTEN and
                            ANNONA MANUFACTURING,

                            Defendants-Appellees.
___________________________________________________________________________
                                     _

                 FROM THE HAYWOOD COUNTY CIRCUIT COURT
                   THE HONORABLE DICK JERMAN, JR., JUDGE




                    Donald D. Glenn; Waldrop & Hall, P.A. of Jackson
                               For Defendants-Appellees

                Charles H. Barnett, III and Douglas R. Bergeron of Jackson
                                 For Plaintiff-Appellant




                             REVERSED AND REMANDED

                                       Opinion filed:




                               W. FRANK CRAWFORD,
                               PRESIDING JUDGE, W.S.


                                        CONCUR:

                              ALAN E. HIGHERS, JUDGE

                           HERSCHEL P. FRANKS, JUDGE


   This interlocutory appeal involves the application of the Tennessee saving statute to a

                                     voluntary nonsuit.
  On August 19, 1994, plaintiff-appellant, Chester R. Kelly, was involved in an automobile

   accident with the vehicle driven by defendant-appellee, Jerry R. Wooten, and owned by

 defendant-appellee, Annona Manufacturing. Kelly sustained personal injuries and property

 damage in the accident, and on August 17, 1995, filed a suit against Wooten, Annona, and

  Houston General Insurance Company, Annona’s liability insurance carrier. Both Annona

  and Houston General are out-of-state corporations headquartered in Texas. Process was

   issued, and Kelly’s attorney attempted service of process on all defendants by sending a

certified letter with summons and complaint to Dan Duvall, a senior claims representative for

Houston General. This was the only attempt to serve the defendants, Wooten and Annona.

 Duvall received a copy of the Summons and Complaint via certified mail on September 20,

     1995, outside the 30-day period set out in Rule 4.03 of the Tennessee Rules of Civil

      Procedure.   Duvall returned the Summons and Complaint to Kelly, stating in an

 accompanying letter that he would not accept service.1 Duvall sent copies of this letter to

                          both Annona Manufacturing and Wooten.

 After receiving the letter from Duvall, Kelly took no further steps in pursuing his lawsuit

 until August 16, 1996. At that time, Kelly filed a Notice of Voluntary Dismissal with the

  Haywood County Circuit Court pursuant to Tenn. R. Civ. P. 41.01. Also, on August 16,

  1996, Kelly filed the instant suit in Haywood County Circuit Court naming only Jerry R.

   Wooten and Annona Manufacturing as defendants. Process was issued at that time and

                                served upon both defendants.2

       1
         The letter dated September 22, 1995, returned the Complaint and Summons to
Kelly’s attorney. Duvall stated his belief that Houston General could not be sued under
Tennessee law and that any further issuance of process should be directed to the registered
agent for Houston General. There apparently was some misunderstanding concerning service
of process on Wooten and Annona Manufacturing. The letter stated:

               In your letter you stated that I indicated I could receive service
               of the lawsuit for the named defendants. Your recollections of
               our conversations concerning this claim are incorrect. I have
               not ever nor will I agree to accept service for the defendants in
               this lawsuit. You will need to serve the named defendants
               directly.



       2
         The Appellees raised the contention at oral argument that process may not have been
issued in a timely manner. They point to a letter in the record from the Secretary of State for
Tennessee which lists the date of service as October 14, 1996. While it seems clear that the
Secretary of State did not serve the defendants until after the 30 days required by Tennessee

                                               2
  Wooten and Annona filed an answer and a Motion to Dismiss for Failure to State a Claim

   Upon Which Relief Can be Granted. The Motion to Dismiss rested on the ground that

Kelly’s suit was barred by the one-year statute of limitations. Several months later, Wooten

  and Annona filed an amended Motion for Partial Dismissal to apply to the personal injury

                                             case.

  After a hearing on the motion, the trial judge entered an order of dismissal of the personal

                                  injury claim which states:

   This cause came on to be heard and upon Defendant’s Motion to Dismiss and Amended
        Motion for Partial Dismissal, it appears unto this Honorable Court as follows:

1. That on or about August 17, 1995, Plaintiff filed a complaint against the Defendants Jerry
   Wooten, Annona Manufacturing and Houston General Insurance Company under cause
 number 3171. The Plaintiff attempted to serve all three Defendants on September 13, 1995
  by sending a certified letter with summons enclosed to Dan Duvall, an insurance adjuster
                          with Houston General Insurance Company.

 2. That Dan Duvall did not receive the summons until September 20, 1995. On September
 22, 1995, Dan Duvall returned the summons to the Plaintiff, instructing him that he would
  not accept service. Dan Duvall carbon copied same to both Jerry R. Wooten and Annona
                               Manufacturing on same date.

   3. That on or about August 16, 1996, Plaintiff dismissed said action without prejudice.

4. That on or about August 16, 1996, Plaintiff refiled his action against the Defendants, Jerry
   Wooten and Annona Manufacturing under cause number 3228. Upon the filing of this
      complaint and summons, process was issued by the Court on August 16, 1996.

  5. The Defendants, in response to said complaint filed an answer, Motion to Dismiss and
                          Amended Motion for Partial Dismissal.

    6. That for good cause shown, it is hereby found that the Plaintiff failed to follow the
requirements of T.R.C.P. 3 and 4 and; therefore, is not provided the protection of T.C.A. 28-
1-105, otherwise known as the Savings Statute. The Amended Motion for Partial Dismissal
 is hereby GRANTED. Accordingly, all claims asserted by the Plaintiff for which there is a
                 one year statute of limitations are dismissed with prejudice.

Kelly was granted a Rule 9 Interlocutory Appeal, and the only issue for review is whether the

                  savings statute is applicable under the facts of this case.

‘[T]he construction of the statute [savings statute] and application of the law to the facts is a

 question of law.’ Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997)(quoting Beare

  Co. v. Tennessee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)). Therefore, the

issue before us is one of law, and our standard of review is de novo without any presumption

 of correctness. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996); Union



law had expired, there is no evidence in the record that Kelly played any part in the delay.

                                               3
               Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

 Kelly’s original complaint as to the personal injury claim was timely filed within the one-

 year statute of limitations, T.C.A. § 28-3-104 (1980 & 1997 Supp.). However, the second

 complaint, filed on August 16, 1996, fell well outside the time barrier. Therefore, Kelly’s

    suit will be time-barred unless he can rely on the savings statute to toll the statute of

                                           limitations.

                            The Tennessee savings statute provides:

 (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 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 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. Actions originally commenced in general sessions court and subsequently
 recommenced pursuant to this section in circuit or chancery court shall not be subject to the
         monetary jurisdictional limit originally imposed in the general sessions court.

                          T.C.A. § 28-1-105(a) (1980 & Supp. 1997).

The Tennessee savings statute is remedial in nature, and the courts in Tennessee have “long

  been committed to the view that the ‘savings statute’ . . . should be liberally construed in

  furtherance of its purpose and in order to bring cases within its spirit and fair intentions.”

Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995)(citing Kee v. Shelter Ins., 852 S.W.2d

   226, 228 (Tenn. 1993)). Further, “[t]he purpose of the Tennessee savings statute is to

 provide a diligent plaintiff an opportunity to renew a suit that is dismissed by any judgment

 or decree that does not conclude the plaintiff’s right of action.” Id. at 912 (citing Dukes v.

         Montgomery County Nursing Home, 639 S.W.2d 910, 913 (Tenn. 1982)).

     The Tennessee Supreme Court’s view of the saving statute was clearly described in

                              Nashville, C. & St. L. Ry. v. Bolton.

 The statute has not merely letter but a spirit. That spirit is manifested in the history of the
 statute. . . . It is that a plaintiff shall not be finally cast out by the force of any judgment or
  decree whatsoever, not concluding his right of action, without an opportunity to sue again
                                     within the brief period limited.

Sharp v. Richardson, 937 S.W.2d 846, 849 (Tenn. 1996) (quoting Nashville, C. & St. L. Ry.

          v. Bolton, 134 Tenn. 447, 455-6, 184 S.W. 9, 11 (1916))(emphasis added).

The savings statute takes on special significance when the plaintiff takes a voluntary nonsuit.

  The nonsuit serves as a dismissal not on the merits, and in such a situation, the courts of

 Tennessee have long held that as long as a plaintiff brings a second suit within a year of the


                                                 4
     voluntary nonsuit the savings statute will protect the plaintiff and confer “the same

  procedural and substantive benefits that were available to the plaintiff in the first action.”

                                  Cronin, 906 S.W.2d at 913.

With the above well-established rules of interpretation of the savings statute in mind, we now

     turn to the determinative issue of the case -- was the original action commenced in

 accordance with Tennessee law. Tenn. R. Civ. P. 3 governs commencement of an action.

   Old Hickory Eng’r. & Mach. Co. v. Henry, 937 S.W.2d 782 (Tenn. 1996); Gregory v.

 McCulley, 912 S.W.2d 175, 177 (Tenn. App. 1995). Commencement of an action requires

  the filing of a complaint.3 Old Hickory Eng’r. & Mach. Co., 937 S.W.2d at 784. We are

    well aware that the version of Rule 3 in effect at the time of the origination of this suit

required both filing of a complaint and summons. Kelly complied with both requirements.

     Kelly’s only failure involved mistakenly sending the summons to the wrong party.

 Wooten and Annona assert that the applicability of the savings statute depends upon actual

     notice to the defendants. We agree. Further, they insist that by serving an improper

defendant and waiting nearly a year to issue process for the correct parties, Kelly did not act

                          diligently in providing notice of the action.

   However, in the present case we find that Wooten and Annona had actual notice of the

 pending suit. We rely on the Tennessee Supreme Court’s decision in the case of Henley v.

 Cobb, 916 S.W.2d 915 (Tenn. 1996). Although Henley dealt with the filing of a lawsuit in

 an improper venue, the Court’s analysis of the savings statute’s notice requirement appears

 applicable to the case at bar. Negligence of the party filing the lawsuit was declared not to

have an effect on application of the savings statute.4 Id. at 917. The Court in Henley stated:

       3
        Tenn. R. Civ. P. 3 was amended in 1992 to require the filing of a complaint and
summons in order to “commence” an action. This provision remained in effect until 1997
when the summons requirement was deleted. The Tennessee Supreme Court dealt with the
version of Rule 3 requiring the filing of both complaint and summons in Old Hickory Eng’r
and Mach. Co.. The Court stated that “[a]n action is commenced by filing a complaint.”
Old Hickory Eng’r & Mach. Co., 937 S.W.2d at 784. The Court did not address the
requirement of filing a summons.
       4
         The appellees rely on the case of Moran v. Weinberger, 149 Tenn. 537, 260 S.W.
966 (1924). The Moran Court expressed that “the [saving] statute is remedial, and is to be
liberally construed, but protection against laches, negligence, or other fault of the plaintiff
was no part of its purpose.” Moran, 149 Tenn. at 543, 260 S.W. at 967. The Henley Court
expressly stated that Moran’s quoted language above was dicta, and “to our knowledge no
Tennessee appellate court has ever held that a party is not entitled to invoke the statute
because of its fault in suffering the adverse judgment.” Henley, 916 S.W.2d at 917.

                                                5
  If, then, the negligence of the party in suffering the adverse judgment is not the test of the
  saving statute’s applicability, but has been merely mentioned in dicta, what is the test? A
    closer reading of our cases reveals that notice to the party affected is the true test of the
[saving] statute’s applicability. . . . [T]he crucial consideration was not the technical form of
          the first action, but the fact that the defendant actually had notice of it. . . .

    Id. (citing Burns v. People’s Tel. & Tel. Co., 161 Tenn. 382, 33 S.W.2d 76 (1930)).

On September 22, 1995, Dan Duvall, a senior claims adjuster for Houston General, mailed a

   letter to Kelly’s attorney. This letter was in response to the receipt of a summons and

   complaint in the original action. Duvall copied the letter to both Wooten and Annona

 Manufacturing. We find that appellees received actual notice of Kelly’s suit in the letter

Duvall sent to Kelly’s attorney on September 22, 1995. In this letter Duvall declared: “This

 will acknowledge receipt of your September 13, 1995 letter with which you transmitted the

   Summons and Complaint in Civil Action No. 3171, styled Chester R. Kelly v. Jerry R.

    Wooten, Annona Manufacturing, and Houston General Insurance Company, which is

  currently pending in the Circuit Court of Haywood County, Tennessee.” It can hardly be

argued that Wooten and Annona Manufacturing did not have notice that a suit against them

was pending. In fact, both parties had notice not only that an action was pending, but in what

county and what court the action was brought. The parties even had the docket number of the

                                              case.

 Because both defendants had actual notice of Kelly’s claims against them, we cannot agree

 that the plaintiff’s failure to issue process on the correct parties precludes application of the

savings statute. Kelly filed a nonsuit within a year of initiating the action, and subsequently

                            refiled his suit within the time allowed.

 Kelly also urges this Court to find that the filing of his lawsuit satisfies Tenn. R. Civ. P. 3.

                       The 1995 version of Rule 3 provides as follows:

  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 and whether
process be returned served or unserved. If process remains unissued for thirty (30) days or is
not served or is not returned withing thirty (30) days from issuance, regardless of the reason,
the plaintiff cannot rely upon the original commencement to toll the running of the statute of
  limitations unless the plaintiff continues the action by obtaining issuance of new process
 within one (1) year from issuance of the previous process or, if no process is issued, within
                     one year of the filing of the complaint and summons.

                                       Tenn. R. Civ. P. 3.

Kelly timely filed his original lawsuit on August 17, 1995, well within the one-year statute of


                                                6
limitations provided by Tennessee law. Service of process on the out-of-state defendants was

  attempted; however, Kelly mistakenly served the wrong party. Therefore, under Tenn. R.

   Civ. P. 3, in effect at the time, Kelly had until August 16, 1996 to reissue process upon

Wooten and Annona. On August 16, 1996, Kelly dismissed the original complaint and filed

 a new complaint with the Haywood County Circuit Court. Both complaints stated the same

 cause of action. The only difference was that Houston General was dropped as a defendant.

  Wooten and Annona urge this Court to disregard Kelly’s claim that the filing of the new

lawsuit and issuance of process constituted issuance of “new process” under Rule 3. Further,

they urge us to conclude that Kelly did not have the “option of filing a new lawsuit.” Instead,

   they contend that Kelly could only fall under the protection of Rule 3 if he obtain new

                                 process on the original claim.

  We respectfully disagree with these assertions. Kelly filed a lawsuit on August 16, 1996

essentially identical to his original suit. Process was issued at that time.5 To declare that the

issuance of process on August 16, 1996 does not fall under Rule 3 would be to approve form

 over substance. In Henley v. Cobb, 916 S.W.2d 915 (Tenn. 1996) our Supreme Court said:

  Within recent years our Court, as well as the Courts of last resort in other States, has paid
more attention to the basic and intrinsic rights of the parties than it has to form, doing justice
between the parties in administering the spirit of the law instead of the cold letter of the law. .
                                               ..

 916 S.W.2d at 916-917 (quoting General Accident Fire & Life Assur. Corp. v. Kirkland,

 210 Tenn. 39, 43, 356 S.W.2d 283, 285 (Tenn. 1962)). Relying on the spirit of Rule 3, we

   hold that Kelly’s second lawsuit, filed on August 16, 1996, is not time barred and may

                                            proceed.

     Finally, Wooten and Annona correctly state that Tenn. R. Civ. P. 41.01 requires the

 nonsuiting party to serve the opposing party with the complaint. They further suggest that

 failure to serve the complaint on the Appellees renders Kelly’s nonsuit void. We disagree.

 Wooten and Annona cite no case law, and we can find none, that supports their conclusion.

 Instead, we look to the Advisory Commission Comments from 1991.6 “Such a requirement

       5
        As stated earlier in this opinion, Wooten and Annona raised the contention at oral
argument that process was not issued on August 16, 1996. However, the record is
inconclusive to that assertion.
       6
        T.R.C.P. was revised in 1991 to require written notice of the nonsuit and service of a
copy of the complaint on the other parties.

                                                7
   helps cure the injustice of a plaintiff filing a complaint and summons under Rule 3 and

immediately taking a nonsuit. If the saving statute applies, the plaintiff would get the benefit

of tolling a statute of limitations without the defendant knowing of any litigation.” Tenn. R.

             Civ. P., 41.01, Advisory Committee Comment to 1991 amendment.

 It appears that notice is the primary reason for the 1991 added requirements of Rule 41.01.

 Since we have previously determined that both defendants had actual notice of the lawsuit

 against them, we hold that while Kelly may have technically violated the cold letter of the

                             rule defendants were not prejudiced.

    The judgment of the trial court is reversed, and this case is remanded for such further

  proceedings as may be necessary. Costs of the appeal are assessed against the appellees.

                          _________________________________
                               W. FRANK CRAWFORD,
                               PRESIDING JUDGE, W.S.
                                      CONCUR:

                        ____________________________________
                             ALAN E. HIGHERS, JUDGE

                            ____________________________________
                            HERSCHEL P. FRANKS, JUDGE




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