                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                           January 3, 2001 Session

                MAHAMAD ZAHREDDINE, ET AL. v. LAN HEE CHOI

                          Appeal from the Circuit Court for Davidson County
                           No. 98C-1275    Hamilton V. Gayden, Jr., Judge


                       No. M2000-01281-COA-R9-CV - Filed January 24, 2001


This appeal involves the timeliness of a personal injury complaint. Two days before the expiration
of the statute of limitations, the plaintiffs’ lawyer placed an envelope containing a complaint and
summons in a commercial delivery service’s drop-off receptacle in Williamson County. Even
though the envelope bore the courthouse address of the Clerk of the Circuit Court for Davidson
County, the commercial delivery service delivered the envelope to a central governmental mail room
on the day the statute of limitations expired. However, the central mail room did not physically
deliver the envelope to the trial court clerk’s office until three days later. The defendant later filed
a motion for summary judgment in the Circuit Court for Davidson County, asserting that the
complaint was time-barred. The trial court denied the motion but granted the defendant permission
to pursue an interlocutory appeal. We have determined that the defendant is entitled to a judgment
as a matter of law because the plaintiffs’ complaint was not timely filed with the trial court clerk as
required by Tenn. R. Civ. P. 3.

      Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Samuel F. Anderson, Nashville, Tennessee, for the appellant, Lan Hee Choi.

Virginia Lee Story, Franklin, Tennessee, for the appellees, Mahamad Zahreddine, Lenah Zahreddine,
and Maggie Zahreddine.

                                                      OPINION

      On May 1, 1998,1 an automobile being driven by Mahamad Zahreddine on I-65 in Davidson
County was struck in the rear by a vehicle being driven by Lan Hee Choi. Mr. Zahreddine, his wife,
and one of their two small children were injured as a result of the collision. Thereafter, the

         1
         The Zahred dines’ orig inal compla int alleged th at the collision occurre d “on o r about A pril 30, 19 97.”
However, their amended complaint alleged that the collision occurred “on or about May 1, 1997.” Be cause this is a
summ ary judg ment, w e constru e the facts in th e light mo st favorab le to the no n-mo ving pa rty. Luther v. Compton, 5
S.W.3d 635, 639 (Tenn. 1999). Accordingly, this opinion is premised on the assumption that the collision occurred on
May 1, 1997.
Zahreddines retained Virginia Lee Story, a lawyer with offices in Franklin, to file a personal injury
suit against Ms. Choi. The record does not indicate when the Zahreddines retained Ms. Story.

      In late April 1998, Ms. Story prepared a personal injury complaint on behalf of the
Zahreddines using what must have been a standard personal injury complaint form.2 She or her
employees placed this complaint, and presumably a completed summons, in an envelope addressed
to:

                                   Ricky Rooker/Circuit Court Clerk
                                   Metro Courthouse/Rm 506/Public Square
                                   Nashville, Tn 37201

At approximately 4:45 PM on Wednesday, April 29, 1998, one of Ms. Story’s employees placed this
envelope in an Airborne Express drop-off box in Franklin, Tennessee. Airborne Express picked up
the envelope at 3:49 PM on Thursday, April 30, 1998. Rather than delivering the envelope to Mr.
Rooker at Room 506 in the Metropolitan Courthouse, Airborne Express delivered the envelope to
the central mail room for the Metropolitan Government of Nashville and Davidson County located
in the Stahlman Building. An employee in the central mail room signed for the envelope at 1:40 PM
on Friday, May 1, 1998. However, the envelope was not physically delivered to Mr. Rooker’s office
until Monday, May 4, 1998. It was stamped “filed” by the clerk’s office at 2:02 PM on May 4, 1998.

        Approximately one week later, Ms. Story filed an amended complaint changing the alleged
date of the collision from April 30, 1997 to May 1, 1997. Thereafter, recognizing the predicament
created by the filing date stamped on the complaint, Ms. Story also filed an affidavit of one of the
city’s mail room employees detailing when the envelope containing the complaint and summons had
been received by the mail room and physically delivered to the trial court clerk’s office.

         The record contains no information regarding the service of the original complaint. Ms.
Story apparently served the amended complaint on Ms. Choi and her insurance carrier by certified
mail; however, there is some question about whether the summons was also properly served. On
January 4, 1999, Ms. Choi’s lawyer filed an answer denying that Ms. Choi had been negligent but
failing to raise the statute of limitations as an affirmative defense. On August 26, 1999, Ms. Choi
requested the trial court’s permission to file an amended answer that included her statute of
limitations defense. Despite Ms. Story’s opposition to this motion on the ground that Tenn. R. Civ.
P. 8.03 required the statute of limitations defense to be raised in Ms. Choi’s original answer, the trial
court permitted Ms. Choi to file her amended answer, and, on October 11, 1999, Ms. Choi filed an
amended answer raising the statute of limitations defense.

       On February 29, 2000, Ms. Choi moved for a summary judgment on the ground that the
Zahreddines’ complaint was filed after the expiration of the statute of limitations. The Zahreddines
opposed the motion by arguing that Ms. Choi had not raised the defense in a timely manner and that
they had complied with Tenn. R. Civ. P. 3 because their complaint had been delivered to the


        2
          The complaint must have been used in other litigation because paragraph 11 identifies “Sharon L. Cleary”
rather than Lenah Zahreddine as Mr. Zahreddine’s wife.

                                                       -2-
Metropolitan Government’s central mail room in the Stahlman Building on May 1, 1998 – the day
the statute of limitations expired. On May 26, 2000, the trial court filed an order denying Ms. Choi’s
motion because “there exists certain genuine issues concerning material facts such that summary
judgment is not appropriate.” The trial court also permitted Ms. Choi to pursue an interlocutory
appeal to this court in accordance with Tenn. R. App. P. 9.3 We likewise granted Ms. Choi’s
interlocutory appeal on June 14, 2000.

                                               I.
                        THE PROPRIETY OF A SUMMARY JUDGMENT DISPOSITION

        We begin with the well-settled standards governing appellate review of summary judgments.
Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal
issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Tomlinson v. Kelley, 969 S.W.2d
402, 405 (Tenn. Ct. App. 1997). They are not, however, appropriate when genuine disputes
regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted
only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts,
support one conclusion. White v. Lawrence, 975 S.W.2d 525, 529-30 (Tenn. 1998); Shadrick v.
Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). A
summary judgment should not be granted if any reasonable doubt exists with regard to the inferences
to be drawn from the evidence. Chrisman v. Hill Home Dev., Inc., 978 S.W.2d 535, 538 (Tenn.
1998).

        Unlike other dispositions by a trial court without a jury, a trial court’s decision regarding a
summary judgment does not enjoy a presumption of correctness on appeal. Nelson v. Martin, 958
S.W.2d 643, 646 (Tenn. 1997); City of Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn.
1997). Accordingly, reviewing courts must make a fresh determination concerning whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). We must consider the evidence
in the light most favorable to the nonmoving party, and we must resolve all inferences in the
nonmoving party’s favor. Terry v. Niblack, 979 S.W.2d 583, 585 (Tenn. 1998); Robinson v. Omer,
952 S.W.2d 423, 426 (Tenn. 1997). When reviewing the evidence, we must determine first whether
factual disputes exist. If a factual dispute exists, we must then determine whether the disputed fact
is material to the claim or defense upon which the summary judgment is predicated and whether the
dispute creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank
Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

         We have conducted a fresh review of this record to determine whether Ms. Choi’s summary
judgment motion meets the requirements of Tenn. R. Civ. P. 56. Based on this record, we disagree
with the trial court’s conclusion that the record contains genuine, material factual disputes that
prevent the granting of a summary judgment motion. To the contrary, every material fact relating
to the timeliness of the Zahreddines’ complaint is undisputed. Accordingly, the trial court erred by
predicating its dismissal of Ms. Choi’s motion on the existence of material factual disputes. The


         3
           The trial court explained that “I’m not convinced you’re right or wrong. I just think it’s just not fair, so if you
want to g o up no w and r everse m e, I’ll let you d o that.”

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outcome of this case hinges on a single question of law – whether delivering a complaint and
summons to a central mail room unconnected with the clerk’s office amounts to “filing” for the
purpose of Tenn. R. Civ. P. 3.

                                                              II.
   THE TIMELINESS OF MS. CHOI’S ASSERTION OF HER STATUTE OF LIMITATIONS DEFENSE

       Before we address the question of the timeliness of the Zahreddines’ complaint, we turn to
the manner in which Ms. Choi raised her statute of limitations defense. The Zahreddines argued
vigorously in the trial court that this defense was raised too late because it was not included in Ms.
Choi’s original answer filed on January 4, 1999. Over the Zahreddines’ objections, the trial court
permitted Ms. Choi to amend her answer to assert this defense.

       On this appeal, the Zahreddines have not challenged the trial court’s decision to permit Ms.
Choi to amend her complaint to assert her statute of limitations defense. Accordingly, pursuant to
Tenn. R. App. P. 13(b), this issue is beyond the scope of this appeal unless it fits within one of the
exceptions included in Tenn. R. App. P. 13(b) itself. Williams v. Tecumseh Prods. Co., 978 S.W.2d
932, 937 (Tenn. 1998); Nance v. Westside Hosp., 750 S.W.2d 740, 744 (Tenn. 1988). The parties
have neither briefed nor argued the propriety of the trial court’s decision to permit Ms. Choi to
amend her answer to assert a statute of limitations defense. Because we find none of the exceptional
circumstances mentioned in Tenn. R. App. P. 13(b) that would justify us taking up this question on
our own motion, we will not review the trial court’s decision to permit Ms. Choi to amend her
answer.4

                                                 III.
                            THE TIMELINESS OF THE ZAHREDDINES’ COMPLAINT

        The statute of limitations applicable to this case required the Zahreddines to commence their
action within one year after their cause of action accrued. Tenn. Code Ann. § 28-3-104(a)(1) (2000).
Because their cause of action accrued on May 1, 1997, the Zahreddines’ were required to commence
their action on or before May 1, 1998. Thus, our task is to determine whether the Zahreddines
properly “commenced” their action by causing it to be delivered to the Metropolitan Government’s
central mail room on May 1, 1998.

        The procedure for “commencing” a civil action is clearly delineated in Tenn. R. Civ. P. 3.
The rule succinctly states that “[a]ll civil actions are commenced by filing a complaint with the clerk
of the court.” A complaint is deemed “filed” when it is physically delivered to a proper person in

         4
           Were we to review the trial court’s decision to permit Ms. Choi to amend her complaint, we would be hard
pressed to conclude that the trial court abused its discretion. Tenn. R. Civ. P. 15.01 provide s that leave to amend should
be “freely given.” Accordingly, trial courts have the discretion to allow late statu te of limitation s defense s. Steed R ealty
v. Oeisi, 823 S.W.2d 195, 197 (Tenn. Ct. App . 1 9 91 ) . W e have frequently upheld trial courts who have permitted a
defend ant to assert a sta tute of limita tions defen se even th ough it w as not asserte d in its original pleading as required
by Tenn. R . Civ. P. 8.03 . See McEwen v. Brown Shoe Co, No. 02A01-9506-CH-00128, 1996 WL 515442, at *2 (Tenn.
Ct. App. Sept. 12, 1996) (No Tenn. R. App. P . 11 app lication filed); Denley v. Smith , Shelby Law No. 48, 1989 WL 738,
at *2 (Tenn. Ct. App. Jan. 9, 1989) (No Ten n. R. App. P. 11 application filed); Garthright v. First Tennessee Bank of
Mem phis, 728 S.W .2d 7 (T enn. Ct. A pp.198 6).

                                                              -4-
the clerk’s office. Rush v. Rush, 97 Tenn. 279, 283, 37 S.W. 13, 13 (1896). Recent cases have
repeatedly made the point that filing has been accomplished when the document is physically
delivered to an employee of the trial court clerk. Selvy v. Vinsant, No. 03A01-9903-CV-00081, 1999
WL 894435, at *3-4 (Tenn. Ct. App. Oct. 13, 1999) (No Tenn. R. App. P. 11 application filed);
Dunlap v. Ayers, No. 02A01-9801-CV-00025, 1999 WL 236514, at *7 (Tenn. Ct. App. Apr. 23,
1999) (No Tenn. R. App. P. 11 application filed); Fry v. Cermola, No. 03A01-9507-JV-00246, 1996
WL 30903, at *3 (Tenn. Ct. App. Jan. 29, 1996) (No Tenn. R. App. P. 11 application filed);
Gatlinburg v. Bell, No. 03A01-9412-CV-00431, 1995 WL 114186, at *3 (Tenn. Ct. App. Mar. 17,
1995) (No Tenn. R. App. P. 11 application filed).

        The Zahreddines’ argument that the trial court clerk’s failure to stamp their complaint filed
on May 1, 1998 misses the point. While we have repeatedly noted that the failure to place a “filed”
stamp on a paper is not fatal, these decisions involve circumstances wherein the papers were actually
in the physical possession of an employee in the clerk’s office on or before the applicable filing
deadline. Dunlap v. Ayers, 1999 WL 236514, at *7; Fry v. Cermola, 1996 WL 30903, at *3;
Gatlinburg v. Bell, 1995 WL 114186, at *3. In this case, it is not the lack of a “filed” stamp that
imperils the Zahreddines’ complaint, it is the fact that the complaint was not physically placed in the
hands of the trial court clerk or one of his deputies on or before May 1, 1998.

        The Zahreddines argue that delivering their complaint to the Metropolitan central mail room
is tantamount to delivering it to the trial court clerk because the mail room employees should be
considered to be the clerk’s agents. However, the trial clerk’s affidavit stating that “[n]one of the
employees in the Metropolitan Mail room are employees of the Circuit Court Clerk” and that “[n]o
person that works in the Metropolitan Mail room is authorized to accept pleadings for the Circuit
Court Clerk” stands undisputed. Accordingly, there are simply no facts in the record upon which
a legal conclusion that the mail room employees are agents of the trial court clerk can be based.

         During oral argument, the Zahreddines’ lawyer urged the court to construe Tenn. R. Civ. P.
3 in light of the technological advances currently available for transmitting documents. She pointed
out that this court has held that a notice of appeal faxed rather than physically delivered to the clerk’s
office was timely filed. Love v. College Level Assessment Serv., No. 03A01-9411-CV-00414, 1995
WL 310039, at *2 (Tenn. Ct. App. May 22, 1995). The Zahreddines’ reliance on the Love decision
is misplaced for two reasons. First, our decision was reversed when the Tennessee Supreme Court
held that filing by facsimile was not permitted. Love v. College Level Assessment Serv., 928 S.W.2d
36, 38-39 (Tenn. 1996). Second, we noted in the Love case that the tendered document – the notice
of appeal – was physically in the clerk’s office before the statutory deadline. The problem that the
Zahreddines cannot overcome in this case is that their complaint was not physically delivered to the
trial court clerk’s office on or before May 1, 1998.

       Other courts faced with similar debacles have pointed out that plaintiffs have the burden of
monitoring the timely delivery and filing of their complaints. Schaffer v. Champion Home Builders
Co., 747 P. 2d 872, 874 (Mont. 1987). We agree. The Zahreddines decided to use a commercial
delivery service to deliver their complaint to the trial court clerk for filing. They chose this method
of delivery at their peril and were obligated to monitor the service’s performance to assure
themselves that their complaint had been timely filed in the manner required by Tenn. R. Civ. P. 3.
The Zahreddines’ complaint was not timely filed because it was not delivered to the physical

                                                   -5-
possession of the trial court clerk or one of his deputies on or before May 1, 1998. Accordingly, the
trial court should have granted Ms. Choi’s summary judgment motion and should have dismissed
the Zahreddines’ complaint.

                                                 IV.

         We reverse the order denying Ms. Choi’s summary judgment motion and remand the case
to the trial court with directions to enter an order dismissing the Zahreddines’ complaint against Ms.
Choi. We tax the costs of this appeal to Mahamad Zahreddine, Lenah Zahreddine, and Maggie
Zahreddine for which execution, if necessary, may issue.



                                                       ___________________________________
                                                       WILLIAM C. KOCH, JR., JUDGE




                                                 -6-
