                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             October 2, 2000 Session


   E.L. BILLINGSLEY AND ONEIDA FARMS, INC. v. ALVIN D. ESCUE


                   Direct Appeal from the Circuit Court for Knox County
                   No. 1-550-99    Hon. Dale C. Workman, Circuit Judge

                                     FILED NOVEMBER 17, 2000

                                No. E2000-00463-COA-R3-CV




The Trial Judge granted defendant summary judgment on grounds the action was time-barred. We
affirm.


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


HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD,
P.J., and D. MICHAEL SWINEY , J., joined.


Charles A. Wagner, III and W. Turner Boone, Knoxville, Tennessee, for Appellants, E.L. Billingsley
and Oneida Farms, Inc.

W. Morris Kizer, Knoxville, Tennessee, for Appellee, Alvin D. Escue.



                                           OPINION



                Plaintiffs’ Malicious Prosecution action, was dismissed by the Trial Judge on the
grounds that it was time-barred by Tennessee Code Annotated §28-3-104(a)(1).

               On April 1, 1998, Escue and Oneida Wood Products, Inc. brought an action,
including E.L. Billingsley and Oneida Farms, Inc., as defendants, on the basis of alleged violations
of the Federal Racketeer Influenced and Corrupt Organizations Act.

              Defendants in that case moved for or a more definite statement, and an Agreed Order
was entered, which provided that Escue and Oneida Wood would file an amended complaint.

                On August 6, 1998, Escue and Oneida Wood filed a Case Statement which stated that
most of Escue’s claims were derivative and the amended Complaint would eliminate Escue as a
party. On the same date Oneida Wood filed the Plaintiff’s Amended and Restated Complaint which
did not list Escue’s name in the caption, and stated that it “is filed pursuant to the Agree Order on
Motions for Case Statement and/or More Definite Statement entered in this matter.” Escue was not
named as a plaintiff in the Amended and Restated Complaint and sought no relief therein.
                Billingsley and Oneida Farms filed a motion for additional time on August 19, 1998.
By letter dated August 27, 1998, counsel for Billingsley stated to Escue’s counsel that “Your
Amended and Restated Complaint makes clear that Alvin Escue is abandoning his claims against
the defendants. Therefore, it is appropriate for you to file a Stipulation of Dismissal on Alvin
Escue’s behalf.” On September 3, 1998, Escue filed a Notice of Dismissal pursuant to Rule 41(a)(1)
of the Federal Rules of Civil Procedure.

              Then on August 30, 1999, Billingsley and Oneida Farms filed the present malicious
prosecution action against Escue, and on motion of Escue the Trial Judge entered an Order of
Dismissal.

               An action for malicious prosecution must be commenced within one year after the
cause of action accrued. Tennessee Code Annotated § 28-3-104(a)(1) (Supp. 1999). A cause of
action for malicious prosecution accrues when the other elements of the offense are present, and
when the malicious suit is terminated in the defendant’s favor. Christian v. Lapidus, 833 S.W.2d
71, 73 (Tenn. 1992); Rosen v. Levy, 120 Tenn. 642, 648, 113 S.W. 1042, 1044 (1908).

                The crucial element in play in this action is that the prior action was terminated in
favor of the plaintiff. Christian, at p.73. In Christian, the Tennessee Supreme Court held that the
abandonment of a civil action satisfies the third element, “final and favorable termination,” so as to
commence the running of the one-year statute of limitations. Id. at 74.

               The Christian Court makes clear that an amended complaint supersedes the original
complaint, rendering the original complaint of no legal effect. Accordingly, Christian controls the
present case. The original complaint in the Federal action was filed on April 1, 1998, and in August
of 1998, Oneida Wood Products filed the Plaintiff’s Amended and Restated Complaint. The
attorney who was counsel to both Escue and Oneida Wood, does not state that he was signing solely
on behalf of Wood. The Amended Complaint does not incorporate or refer back to the original
complaint, and has the effect of superceding the original, rendering it of no legal effect.

               In accord with Christian, the legal effect of the Amended Complaint was to remove


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Escue from the lawsuit and constituted an abandonment by Escue of his RICO claims against
Billingsley and Oneida Farms. As such, the statute of limitations began to run from the time of
abandonment, or the filing of the Amended Complaint, and not the subsequent filing of the Rule 41
notice of dismissal.

                While appellants argue strenuously that their time did not begin running until Escue
filed his notice of dismsisal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, the
language of Rule 41(a)(1) is permissive in that it does not state that it is the only way to voluntarily
dismiss an action. Appellants argue, however, that it is the only method, citing Oglala Sioux Tribe
v. Homestake Mining Co., 722 F.2d 1407 (8th Cir. 1983). Appellants’ reliance on that case is
misplaced. In that case, the Court noted that the Oglaga Sioux Tribe did nothing to obtain a
dismissal under Rule 41, nor did they give any type of notice that they did not intend to be a party
to that prior litigation. 722 F.2d at 1413-1414. Therefore, the Court found, the Oglala Sioux
remained a party throughout the litigation and were bound by res judicata. Id. at 1414.

               In this case, not only was Escue’s intention clear, but the amended complaint that was
filed had the effect of removing him from the lawsuit, and as Christian recognized an amended
complaint could have the effect of dismissing an action by rendering the first complaint of no legal
effect.

                Appellants reliance on Lynch v. New Deal Delivery Service, Inc., 974 F. Supp. 441
(D.N.J. 1997) is equally unavailing. In Lynch, the Plaintiff attempted to “withdraw” one of her
counts by way of a footnote in the argument section of her brief in opposition to summary judgment.
The Court held that she could not voluntarily dismiss a claim in this manner. Id. at 455. Appellants
in this case contend that according to this holding in Lynch, “The short remark on page 16 of the
Case Statement was also not sufficient to dismiss Escue from the RICO Action under Rule 41(a).”

              The Trial Court did not base its decision on this remark, but he found that the
amended complaint superceded the original complaint, thus constituting an abandonment, the basis
of which was established by Christian.

                Further, appellants argue that Escue is equitably and judicially estopped from
claiming that he voluntarily dismissed his Rico Action at any time before September 3, 1998 when
he filed his notice of dismissal pursuant to the Federal Rules. We note that estoppel was not raised
by the parties at the trial level, and the issue of estoppel may not be raised for the first time on
appeal. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). However, appellants argue
that while they did not use the term “estoppel”, the substance of their argument included estoppel.
We find no support for this contention in the record. Their position in the Trial Court was that a
dismissal must conform to the exact language of Rule 41 and there is no other way for a party to
voluntarily end his action. Moreover, Escue made his position clear to appellants at the time of the
filing of the Amended Complaint, and there was no change in position to mislead appellants so as
to create an estoppel.

                For the foregoing reasons, we affirm the judgment of the Trial Court and assess cost

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of the appeal to E.L. Billingsley and Oneida Farms, Inc.



                                                     _________________________
                                                     HERSCHEL PICKENS FRANKS , J.




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