                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                         January 20, 2009 Session

              O’RANE M. CORNISH, SR. v. MARK CALDWELL, ET AL.

                        Direct Appeal from the Circuit Court for Shelby County
                            No. CT-002268-07     Karen R. Williams, Judge



                       No. W2008-00600-COA-R3-CV - Filed February 19, 2009


This is an action for wrongful death and loss of consortium. The trial court dismissed the action
upon determining it was filed beyond the one-year statutory limitations period. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which HOLLY M. KIRBY , J. and
J. STEVEN STAFFORD , J., joined.

O’Rane M. Cornish, Sr., Pro se.

Bradford D. Box and Spencer R. Barnes, Jackson, Tennessee, for the appellee Mark Caldwell.

                                        MEMORANDUM OPINION1

        On April 30, 2007, Plaintiff/Appellant O’Rane M. Cornish (Mr. Cornish) filed a complaint
for wrongful death and loss of consortium against Defendant/Appellee Mark Caldwell (Mr.
Caldwell) in the Circuit Court for Shelby County.2 Acting pro se, Mr. Cornish asserted that on May
20, 2005, his wife, Aldith S. Townsend Cornish (Mrs. Cornish), was killed instantly in a motor
vehicle accident when the vehicle in which she was traveling as a passenger collided with a vehicle
operated by Mr. Caldwell. Mr. Cornish asserted the accident was proximately caused by the


        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
        “M EM ORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
        reason in any unrelated case.
        2
          Although Mr. Cornish’s complaint names “Mark Caldwell, et al.” as Defendants, it alleges wrongdoing only
on the part of M ark Caldwell.
negligence of Mr. Caldwell. He further asserted damages arising from loss of consortium. Mr.
Cornish prayed for damages in the amount of $1,250,560 and demanded a jury trial. In June 2007,
Mr. Caldwell filed a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02. Mr.
Caldwell asserted Mr. Cornish’s action was barred by the one-year statute of limitations provided
by Tennessee Code Annotated § 28-3-104 where it was not filed within one-year of the date of the
accident and death of Mrs. Cornish. Mr. Caldwell also filed an answer asserting the statute of
limitations, denying allegations of negligence, and asserting several defenses, including the doctrine
of comparative fault.

         In July 2007, Mr. Cornish filed a motion in opposition to Mr. Caldwell’s motion to dismiss.
In his motion, Mr. Cornish acknowledged that, “all things being equal or normal[,]” the statutory
limitations period would have expired on May 20, 2006. He asserted, however, that his complaint
was delayed by “external influences over which he had no control, the nefarious acts/actions of
individual(s) currently unknown [who] deliberately, willfully with fraudulent intent prevented [him]
from the exercise of his rights[.]” Mr. Cornish asserted he was incarcerated in Louisiana from 1995
through April 2006 and was not informed of his wife’s death until August 2005; that Mrs. Cornish’s
death certificate “was villainously falsified to show his wife as ‘Divorced’ and name of Spouse as
‘N/A’, as part of a nefarious scheme”; and that he would not have had standing to file a cause of
action until March 15, 2007, when, following a petition and complaint filed on May 23, 2006, the
chancellor ordered Mrs. Cornish’s death certificate to be corrected. Mr. Cornish asserted his cause
of action was tolled until the chancellor’s order on May 23, 2006. Following a hearing in September
2007, the trial court dismissed Mr. Cornish’s action by order entered in January 2008. Mr. Cornish
filed a timely notice of appeal to this Court. Following several extensions of time, oral argument on
the matter was heard in January 2009.

                                           Issue Presented

        The issue presented on appeal by Mr. Cornish, as we perceive and re-word it, is whether the
trial court erred by granting Mr. Caldwell’s motion to dismiss in light of the extenuating
circumstances presented by this case.

                                         Standard of Review

         A Rule 12.02(6) motion to dismiss challenges only the legal sufficiency of the complaint
itself, and not the strength of the plaintiff's proof. Trau-Med of America, Inc. v. Allstate Ins. Co., 71
S.W.3d 691, 696 (Tenn. 2002) (citations omitted). The court must construe the complaint liberally,
presuming all facts as alleged by plaintiff to be true and “giving the plaintiff the benefit of all
reasonable inferences.” It is well-settled that the trial court should not dismiss the complaint for
failure to state a claim unless it appears that the plaintiff can prove no facts in support of the claim
that would warrant relief. Id. “Great specificity in the pleadings is ordinarily not required to survive
a motion to dismiss; it is enough that the complaint set forth a short and plain statement of the claim
showing that the pleader is entitled to relief.” Id. (citations omitted). We review the trial court’s



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award of a Rule 12.02(6) motion to dismiss de novo, with no presumption of correctness. Id. at 697.

         In this case, because the trial court considered evidence beyond the pleadings, we will review
the trial court’s judgment as an award of summary judgment. See Adams TV of Memphis v. Comcorp
of Tenn., 969 S.W.2d 917, 920 (Tenn. Ct. App. 1997). Summary judgment is appropriate only when
the moving party can demonstrate that there are no disputed issues of material fact, and that it is
entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn. 1993). We review an award of summary judgment de novo, with no presumption of
correctness afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.
2002).

                                              Analysis

        Mr. Cornish does not dispute that a wrongful death action generally is subject to a one-year
statutory limitations period. Mr. Cornish argues that the limitations period should be tolled,
however, because he did not have knowledge of his wife’s death until August 2005, and because he
would not have had standing until March 15, 2007, when Mrs. Cornish’s death certificate was
corrected pursuant to an order entered in chancery court. We must disagree with Mr. Cornish’s
argument for two reasons. First, even assuming Mr. Cornish could not have discovered his wife’s
death until August 2005, the one-year limitations period would have begun to run upon discovery.
Mr. Cornish’s complaint, filed April 30, 2007, clearly was filed beyond one year following the
asserted date of discovery.

        Second, Mr. Cornish draws the legal conclusion that he lacked standing until the trial court
issued its order in March 2007, but offers no law in support of his position that an error on a death
certificate regarding marital status tolls the statute of limitations. We can think of nothing that
would have prevented Mr. Cornish from filing his wrongful death action when he filed his petition
to correct Mrs. Cornish’s death certificate in chancery court. We note, moreover, that Mr. Cornish
did not file his complaint and petition in chancery court until May 23, 2006, more than one year after
the unfortunate accident resulting in the death of Mrs. Cornish. We are not insensitive to Mr.
Cornish’s assertion regarding the error on Mrs. Cornish’s death certificate. However, Mr. Cornish
clearly and undisputedly knew the cause of his wife’s death no later than August 2005, and the death
certificate clearly would have been subject to subpoena and correction in a timely-filed lawsuit.

                                               Holding

       In light of the foregoing, we affirm the judgment of the trial court dismissing Mr. Cornish’s
action where it was filed beyond the statute of limitations period. Costs of this appeal are taxed to
the Appellant, O’Rane M. Cornish, Sr.


                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE


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