                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE


                                                                             FILED
CAROLYN REQUE and PAUL REQUE                    )                       September 17, 1999
                                                )                        Cecil Crowson, Jr.
        Plaintiffs/Appellants,                  )        No. 01A01-9903-CV-00175
                                                )                      Appellate Court Clerk
                                                )
vs.                                             )       Appeal As Of Right From The
                                                )       FRANKLIN COUNTY
                                                )       CIRCUIT COURT
MONTEAGLE TRUCK PLAZA, INC.,                    )
JIMMY STILES, AND                               )
NETWORK HEALTH PLAN,                            )
                                                )
        Defendants/Appellees                    )       HON. JEFFREY F. STEWART




For the Appellants:                                             For the Appellees:

ANDREW L. BERKE                                                 RANDOLPH A. VEAZEY
Berke, Berke & Berke                                            JAMES R. TOMKINS
Chattanooga, Tennessee                                          Glasgow & Veazey
                                                                Nashville, Tennessee




AFFIRMED AND REMANDED                                                                   Swiney, J.




                                             OPINION


        This is an appeal from the final judgment of the Circuit Court of Franklin County, Chancellor

Jeffrey F. Stewart sitting by interchange, granting defendants’/appellees’ motion to dismiss for

failure of the plaintiffs/appellants to timely file their tort claims within the one-year statute of

limitations, Tenn. Code Ann. § 28-3-104. The Trial Court rejected plaintiffs’ argument that Tenn.

Code Ann. § 28-1-105,1 one of the Tennessee “saving statutes,” preserved their cause of action first


        1Tenn. Code Ann. § 28-1-105. New action after adverse decision - Contractual limitations
periods.
  (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 the plaintiff's
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 the plaintiff's representatives and privies, as the case may be,
filed in a Wisconsin state court, dismissed by the Wisconsin state court for lack of jurisdiction over

the defendants after the Tennessee statute of limitations had expired, and then filed in Tennessee.

The issue raised by plaintiffs is whether Tenn. Code Ann. § 28-1-105 operates to save a cause of

action first brought in a foreign state court, dismissed for lack of jurisdiction, and subsequently filed

in a Tennessee court within one year of the dismissal, but outside the one-year statute of limitations

of Tenn. Code Ann. § 28-3-104. For the reasons herein stated, we affirm the Trial Court’s dismissal

of the plaintiffs’ complaint.


                                                FACTS


        The plaintiffs, Wisconsin residents, on June 15, 1997 took their motorhome to a truck stop

in Franklin County, Tennessee to have repairs performed. While the motorhome was on the property

of defendant Monteagle Truck Plaza, Inc. (“Monteagle”), Ms. Reque entered the vehicle and began

to change clothes in a rear compartment. During this time an employee of Monteagle, defendant

Jimmy Stiles, moved the motorhome, which allegedly caused Ms. Reque to fall inside the vehicle

and sustain personal injuries. The claims of Mr. Reque are derivative thereof.

        On June 9, 1998, plaintiffs filed suit for damages relating to the above-referenced personal

injuries in the Circuit Court for Outagamie County, Wisconsin just six days before the one-year

anniversary of the incident at issue. On September 2, 1998, the Wisconsin Trial Court dismissed the

cause of action for lack of personal jurisdiction over the defendants.

        On October 2, 1998 plaintiffs filed suit for the same injuries in the Circuit Court for Franklin

County, Tennessee. By Order filed December 21, 1998, Chancellor Stewart held that the plaintiffs’

claims were barred by the one year statute of limitations and dismissed the plaintiffs’ suit, over the



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.
  (b) In the case of a contract which limits the time within which an action arising out of such
contract must be brought, if such action is commenced within the time as limited by the contract but
the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff's
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 the plaintiff's representatives or successors, as the case may
be, may, from time to time, commence a new action within one (1) year after the nonsuit, dismissal
without prejudice, reversal or arrest.

                                                   2
assertion by plaintiffs that the Tennessee savings statute, Tenn.Code Ann. § 28-1-105, preserved

their right to bring the action in the Tennessee court. Plaintiffs then appealed to this Court.


                                             DISCUSSION

        Our standard of review on appeal from a trial court’s grant of a motion to dismiss is de novo,

with no presumption of correctness as to the trial court’s legal conclusions, and all allegations of fact

in the complaint below are taken as true. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.

1997). There is no dispute concerning the facts material to the Trial Court’s holding.

        In support of their motion to dismiss, defendants cited to the Trial Court the cases of Elias

v. A & C Distributing Company, Inc., 588 S.W.2d 768 (Tenn. App. 1979), Sigler v. Youngblood

Truck Lines, 149 F.Supp. 61 (D.C. Tenn. 1957) and Graham v. Ferguson, 593 F.2d 764 (6th Cir.

1979). The Trial Court found, and we agree, that the holding in Elias controls under the facts of this

case.

        An abbreviated statement of the facts in Elias shows the underlying cause as an automobile

accident in Davidson County, Tennessee on May 21, 1976; plaintiffs, residents of Illinois and

Canada, filed suit against the defendants, Tennessee residents, in the Circuit Court of Cook County,

Illinois on May 12, 1977; the complaint was dismissed by a final Order for lack of jurisdiction on

August 19, 1977; and suit was filed in the Circuit Court for Davidson County, Tennessee on April

17, 1978. Elias, 588 S.W.2d at 769.

        It was upon this procedural history that the defendants in Elias moved the Trial Court to

dismiss for plaintiffs’ failure to bring suit within the one-year statute of limitations for personal

injury actions. The Davidson County Trial Court denied the motion, finding that Tenn. Code Ann.

§ 28-106, the saving statute then in effect, applied to the original cause of action filed in Illinois, and

allowed the claims to survive the statute of limitations. On interlocutory appeal, the Middle Section

of this Court reversed the ruling of the Trial Court, and dismissed the plaintiffs’ cause of action.

        The Court of Appeals found that under these facts as stated above, Tennessee law determined

the respective rights of the parties. Elias, 588 S.W.2d at 771. After analyzing the meager Tennessee

authorities on the issue, the Court of Appeals quoted an opinion of the United States District Court

for the Eastern District of Tennessee as providing “useful and persuasive” reasoning on statutory

                                                    3
construction of the saving statute and its relationship to foreign-filed causes of action. Id., citing

Sigler v. Youngblood Truck Lines, 149 F.Supp. 61 (D.C. Tenn. 1957).

        The District Court in Sigler as relied upon by the Court of Appeals in Elias, held that the

Tennessee Saving Statute (§ 28-106) applied “‘. . . to actions commenced in Tennessee Courts only,

and that commencement of an action in a state other than Tennessee does not toll the Statute of

Limitations in this State.’” Sigler at 771.

        This Court in Elias then reached out to secondary authorities to further support the rule that

“. . . suits in a foreign state do not toll the Statute of Limitations in the state of original jurisdiction

unless the statute of that state specifically so provides,” and that the Tennessee statute does not so

provide. Id. at 772. The Tennessee Supreme Court denied certiorari by Order of September 4, 1979,

as did the United States Supreme Court, 444 U.S. 1075, 100 S.Ct. 1022, 62 L.Ed.2d 757 (U.S. Tenn.

Feb. 19, 1980). The Tennessee statute, Tenn. Code Ann. § 28-1-105, still does not specifically so

provide.

        To ascertain the general rule regarding application of the saving statute of one state to a cause

of action first filed in another state, the Court in Elias consulted Corpus Juris and American

Jurisprudence. While the parties have not chosen to cite to the updated information contained

therein, this Court will do so. In American Jurisprudence, the section discussing application of the

saving statute of one state when a suit was first filed in the state court of another state has not been

changed since the Elias decision. Thus, the general rule appears to remain, “[w]here the action is

regarded as controlled by the statute of limitations of the forum, it has usually been held that a

plaintiff invoking the savings statute of the forum may not rely upon a nonsuit in an earlier action

brought in another state.” 51 Am.Jur.2d Limitation of Actions § 306, Original action filed in another

state (1970 & Supp. 1999).

        More support for plaintiffs’ argument is found in the revised wording of Corpus Juris on the

subject. “It has been held both that a savings statute does [ ] and does not [ ] apply to an action first

commenced in another state.” 54 C.J.S. Limitations of Actions § 243 (former section 288c)(1987 and

Supp. 1999). The cases cited as supporting application of saving statutes to foreign-filed actions are

distinguished as federal courts decisions on an issue of first impression where there was no relevant



                                                     4
state court decision. Prince v. Leesona Corporation, Inc., 720 F.2d 1166, 1168 (10th Cir.

1983)(interpreting Kansas law)(“Absent compelling precedent from a state, we see no reason . . .

[for] holding such a statute inapplicable to actions originally filed in sister states” at 1169); Allen v.

Greyhound Lines, Inc., 656 F.2d 418, 419 (9th Cir. 1981)(interpreting Montana law by applying

California court rulings on California law). Although both federal courts applied reasoning along

the lines of the argument of the plaintiffs for extending coverage of the relevant saving statutes, the

difference is that Tennessee has established “compelling precedent” in the Elias decision.

        The decisions cited in Corpus Juris as declining application of saving statutes to foreign-filed

actions are a federal court citing, inter alia, Graham v. Ferguson, 593 F.2d 764 (6th Cir.

1979)(applying the Sigler v. Youngblood Truck Lines interpretation of the Tennessee saving statute),

in “following the majority of states which have addressed the issue,”2 and the Oklahoma Supreme

Court ruling that the Oklahoma saving statute term “[i]f any action be commenced within due time”

only applied to actions originally commenced in an Oklahoma forum.3 The general rule remains

as it was when addressed in Elias, “that suits in a foreign state do not toll the Statute of Limitations

in the state of original jurisdiction unless the statute of that state specifically so provides.” Elias at

772.

        Plaintiffs urge this Court to extend the application of Tenn. Code Ann. § 28-1-105 to suits

filed in foreign states by ignoring the compelling precedent of what plaintiffs refer to as the

“anomalous decision” of Elias. The cases cited by plaintiffs in an unpersuasive attempt to establish

such anomalistic character of the Elias decision are all distinguished as addressing the application

of Tenn. Code Ann. § 28-1-105 and its predecessor statutes to causes of action originally filed in

Tennessee courts, without a single citation to controlling authority addressing an original cause of

action filed in a foreign state court.

        The principal authority cited by plaintiffs for overruling the precedent set by Elias is Henley

v. Cobb, 916 S.W.2d 915 (Tenn. 1996). Plaintiffs argue that “the principle issue in this case is . .

. notice,” asserting that Henley supports the proposition that the Tennessee Supreme Court has



                    2
                        King v. Nashua Corp., 763 F.2d 332 (8th Cir. 1985).
                    3
                        Herron v. Miller, 220 P. 36 (Okla. 1923).

                                                    5
“altered the framework under which a court analyzes cases re-filed under the savings statute.” Once

again, Henley is dealing with a cause of action originally commenced in a Tennessee court, nonsuited

and then re-filed in a second Tennessee forum. Henley at 916. Henley is clearly distinguished as

analyzing issues when a suit has been commenced in a Tennessee court, but filed in the wrong

county.

          Notice of a suit filed in Wisconsin, or any of the other several states, in no way commences

a civil cause of action under T.R.Civ.P. Rule 3 so as to invoke the privileges of Tenn. Code Ann. §

28-1-105 to “save” a cause of action from the bar imposed by Tenn. Code Ann. § 28-3-104. “It is

obvious that the words, ‘If the action is commenced within the time limited by a rule or statute of

limitations * * *’ . . . have reference to actions commenced in Tennessee courts only.” Elias at 771,

quoting Sigler v. Youngblood Truck Lines, 149 F.Supp. at 66. Because plaintiffs did not commence

a cause of action in a Tennessee or federal court until October 2, 1998 when suit was brought in the

Circuit Court for Franklin County, Tennessee, the statutory bar under Tenn. Code Ann. § 28-3-104

controls.

          Public policy, as evidenced by the actions of the Tennessee legislature, does not support

extension of Tenn. Code Ann. § 28-1-105 to a cause of action first filed in the courts of another state

and subsequently dismissed for non-dispositive reasons. The Elias decision had been the law of

Tennessee for five years when the legislature enacted Tenn. Code Ann. § 28-1-115,4 a “saving

statute” that applies to suits first filed in federal court either in Tennessee or a foreign state. See

Watson v. Funtown, Inc., No. 01A01-9110-CV-00387, 1992 WL 63417 (Tenn. App. M.S. at

Nashville April 1, 1992).

          Application of plaintiffs’ position on this issue would make Tenn. Code Ann. § 28-1-115

unnecessary as plaintiffs argue that Tenn. Code Ann. § 28-1-105 applies as long as the law suit is

first filed in any court within the applicable statute of limitations. The Tennessee Legislature did not

agree with this position, and felt it necessary to enact Tenn. Code Ann. § 28-1-115, so as to apply




                     4
                     Tenn. Code Ann. § 28-1-115. Dismissed federal court actions.
    Notwithstanding any applicable statute of limitation to the contrary, any party filing an action
   in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year
   from the date of such dismissal to timely file such action in an appropriate state court.

                                                   6
a saving statute to suits first filed in any federal court.

        The legislature declined to address the reasoning of Sigler v. Youngblood Truck Lines as

adopted by Elias v. A & C Distributing Company, Inc. at that time, or when Tenn. Code Ann. § 28-1-

105 was revised in 1985 and 1989. The 1985 revision specifically addressed a jurisdictional issue,

while the 1989 amendment incorporated contractual limitation periods into the statute. The

Tennessee Legislature has had both the power and the opportunity to revise Tenn. Code Ann. § 28-1-

105 to make it applicable to a suit first filed in a state court of a state other than Tennessee. What

the Tennessee Legislature has not had is the inclination to make this revision. As the Tennessee

legislature has declined these opportunities to supersede the ruling of this Court in Elias by

legislative enactment, it remains the law of Tennessee.


                                            CONCLUSION


        The Trial Court did not err in declining to apply Tenn. Code Ann. § 28-1-105 under the facts

of this case in sustaining the defendants’ motion to dismiss for failure of the plaintiffs to timely file

their cause of action under Tenn. Code Ann. § 28-3-104. The judgment of the Trial Court is

affirmed and the cause remanded for such further proceedings, if any, as may be required, consistent

with this Opinion, and for collection of the costs below. Costs on appeal are adjudged against the

appellant.




                                                                ______________________________
                                                                D. MICHAEL SWINEY, J.




CONCUR:




______________________________
HOUSTON M. GODDARD, P.J.




                                                    7
______________________________
HERSCHEL P. FRANKS, J.




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