                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 18, 2005 Session

 HELEN RICHARDSON, INDIVIDUALLY AND ON BEHALF OF HER DAUGHTER
     AND HER MINOR CHILDREN, TRINA RICHARDSON, DECEASED
                                v.
   METHODIST HEALTHCARE MEMPHIS, U.T. MEDICAL GROUP,
    SHELBY COUNTY HEALTH CARE CORPORATION D/B/A THE
  REGIONAL MEDICAL CENTER, MICHAEL J. WASHINGTON, M.D.
  DAVID C. JERDEN, JR., M.D., CLARO F. DIAZ, M.D., ROBERT NEAL
 AGUILLARD, M.D., JOHN R. WICKMAN, M.D., DANIEL BROOKOFF,
   M.D., PATRICK K. MALONE, M.D., AND TRACIE WALKER, M.D.

                     An Appeal from the Circuit Court for Shelby County
                       No. CT-003646-02    Robert L. Childers, Judge



                     No. W2004-00773-COA-R9-CV - Filed June 30, 2005


This case involves the authority of the General Sessions Court to set aside its own judgment. The
plaintiff’s decedent died in January 2000. In January 2001, the plaintiff filed a medical malpractice
claim in the General Sessions Court against the defendants. In April 2001, the General Sessions
Court entered an order dismissing the case, without prejudice, for lack of prosecution. The General
Sessions Court later determined that the order dismissing for lack of prosecution was erroneously
entered. Consequently, in May 2001, the General Sessions Court entered a consent order setting
aside its April 2001order. In December 2001, the plaintiff voluntarily nonsuited the General
Sessions lawsuit, and the General Sessions Court entered a consent order of dismissal without
prejudice. In June 2002, the plaintiff refiled her lawsuit in the Circuit Court below. The defendants
filed motions for summary judgment based on the statute of limitations, claiming that the plaintiff
was required to refile her lawsuit within one year of the April 2001 General Sessions order,
dismissing for lack of prosecution. The defendants asserted that the General Sessions Court was
without authority to adjudicate the matter further after the April 2001 order of dismissal was entered.
The Circuit Court disagreed and denied the defendants’ motions for summary judgment. The
defendants were granted permission to file this interlocutory appeal. We reverse, concluding that
the General Sessions Court did not have the authority to set aside its April 2001 judgment.
Tenn. R. App. P. 9 Appeal by Permission; Judgment of the Circuit Court is Reversed and
Remanded

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Charles F. Morrow, Michael D. Fitzgerald, Memphis, Tennessee, for Appellant Patrick K. Malone,
M.D.

William D. Domico and Victoria Smith Rowe, Memphis, Tennessee, for Appellants Methodist
Healthcare Memphis, David C. Jerden, Jr., M.D., and Tracie Walker, M.D.

David M. Cook and Katherine M. Anderson, Memphis, Tennessee, for Appellant Claro F. Diaz,
M.D.

Teresa J. Sigmon and Claire M. Cissell, Memphis, Tennessee, for Appellant Shelby County Health
Care Corporation d/b/a The Regional Medical Center.

Michael L. Robb, Memphis, Tennessee, for Appellant Michael J. Washington, M.D.

Al H. Thomas, Regina Guy, and Joshua D. Thomas, Memphis, Tennessee, for Appellee Helen
Richardson, Individually and on Behalf of her Daughter and the Minor Children of Trina Richardson.

                                            OPINION

        Trina Richardson, the daughter of Plaintiff/Appellee Helen Richardson (“Richardson”), died
on January 19, 2000, allegedly due to negligent medical treatment. On January 19, 2001, Richardson
filed a medical malpractice lawsuit, individually and on behalf of her daughter and her daughter’s
children, in the General Sessions Court of Shelby County against the following named defendants:
Methodist Healthcare Memphis (“Methodist Healthcare”), University of Tennessee Medical Group
(“UTMG”), Shelby County Health Care Corporation d/b/a Regional Medical Center (“The Med”),
Claro F. Diaz, M.D. (“Dr. Diaz”), Patrick Malone, M.D. (Dr. Malone”), David Jerden, M.D. (“Dr.
Jerden”), Michael Washington, M.D. (“Dr. Washington”), Daniel Brookoff, M.D. (“Dr. Brookoff”),
Tracie Walker, M.D. (“Dr. Walker”), and John Wickman, M.D. (“Dr. Wickman”). At that time, the
individual defendants could not be located, so only the institutional defendants were served with
process.

        On April 23, 2001, the General Sessions Court entered an order dismissing the lawsuit for
lack of prosecution. Apparently, at the time this order was entered, the General Sessions Court was
unaware that the individual defendants had not yet been served; consequently, entry of the April 23,
2001 order of dismissal was in error. On May 8, 2001, the General Sessions Court entered a consent
order, by agreement of the institutional defendants, setting aside the order of dismissal. Between
October 10 and December 11, 2001, the individual defendants were served with process. On


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December 14, 2001, Richardson voluntarily nonsuited her General Sessions lawsuit, and the General
Sessions Court entered a consent order of dismissal without prejudice.

        On June 26, 2002, Richardson filed this action in the Circuit Court below. In the complaint,
Richardson averred that the General Sessions lawsuit had been nonsuited on December 4, 2001,1
again asserting medical malpractice claims against the same defendants, arising out of Richardson’s
death,2 and that the lawsuit was timely because it was filed within one year of that date under the
Tennessee Savings Statute.3 The defendants filed motions for summary judgment based on the
statute of limitations, arguing that Richardson was required to refile the lawsuit within one year of
April 23, 2001, the date of the order of dismissal for lack of prosecution entered by the General
Sessions Court. The defendants argued that the General Sessions Court was without authority to set
aside its judgment, even though the parties had agreed to the order setting aside the judgment.
Therefore, the defendants maintained, the May 8 and December 14, 2001 orders of the General
Sessions Court, though consensual, were void.

        On February 13, 2002, the Circuit Court conducted a hearing on the defendants’ motions for
summary judgment. At the conclusion of the hearing, the Circuit Court denied the defendants’
motions for summary judgment. The Circuit Court reasoned that it would favor “substance over
form and say that the General Sessions judge, having realized his error, corrected that error . . . . I
think under these circumstances the statute was [tolled] by pointing out to the General Sessions judge
the error in granting a judgment without the case being at issue. . . .” On February 27, 2004, the
Circuit Court entered a written order consistent with its oral ruling.

       On the same day that the Circuit Court entered its written order, this Court filed its opinion
in Caldwell v. Wood, No. W2003-00303-COA-R3-CV, 2004 WL 370299 (Tenn. Ct. App. Feb. 27,
2004), holding that the General Sessions Court did not have the authority to set aside its own


        1
             It was actually nonsuited on December 14, 2001.

        2
          Robert Neal Aguillard, M.D. (“Dr. Aguillard”), named in the Circuit Court complaint below, was not named
as a defendant in the General Sessions Court action.

         3
          Under the Tennessee Savings Statute, Tennessee Code Annotated § 28-1-105, a plaintiff has one year in which
to bring an action. That 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 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, 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.

Tenn. Code Ann. § 28-1-105 (2000).



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judgment. On March 5, 2004, the defendants filed a motion asking the Circuit Court to reconsider
its ruling in light of Caldwell or, in the alternative, to grant the defendants permission to file an
interlocutory appeal. On March 12, 2004, the Circuit Court held a hearing on the defendants’
motion. The motion for reconsideration was denied, but the defendants’ motion for permission to
file an interlocutory appeal was granted.4 This Court subsequently granted the defendants’ request
for permission to file an interlocutory appeal.

         On appeal, the defendants argue that the trial court erred in denying their motions for
summary judgment, again asserting that the plaintiffs’ claim is time-barred. We review the trial
court’s denial of summary judgment de novo, with no presumption of correctness. Johnson v.
LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 342 (Tenn. 2002). The evidence must be viewed
in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all
reasonable inferences. Id.

        The defendants again cite Caldwell, supra, in support of their position in this appeal. In
Caldwell, the General Sessions Court had entered a default judgment against the defendant on July
12, 2002. Over two weeks later, the defendant filed a motion to set aside the default judgment based
on excusable neglect and surprise. On August 27, 2002, the General Sessions Court granted the
motion and set the default judgment aside on those bases. Caldwell, 2004 WL 370299, at *1. The
plaintiffs appealed to the Circuit Court, arguing that the General Sessions Court did not have the
authority to set aside its own judgment. Consequently, the plaintiffs asserted, the August 27, 2002
General Sessions Court order was void. The Circuit Court agreed and reversed the order of the
General Sessions Court setting aside its order. Id. at *1. The Circuit Court further held that, because
ten days had elapsed after the July 12, 2002 order without appeal to the Circuit Court, the jurisdiction
of the General Sessions Court had ended and the July 12 default judgment order had become final.
Id. The defendants then appealed. The appellate court agreed with the decision of the Circuit Court,
holding that the General Sessions Court was without statutory authority to set aside its own
judgment. Id. at *2–*3. The appellate court reasoned that Tennessee Code Annotated § 16-15-727,
which authorizes the General Sessions Court to “correct” its own judgments, does not authorize the
General Sessions Court to set aside its judgment.5 Therefore, the appellate court affirmed the
Circuit Court’s decision to reverse the General Sessions Court’s order setting aside its own
judgment. Id. at *3.

        Similarly, in Jackson Energy Auth. v. Diamond, No. W2004-01090-COA-R3-CV, 2005 WL
123499 (Tenn. Ct. App. Jan. 20, 2005), the General Sessions Court entered a judgment in favor of
the plaintiff on July 28, 2003. On August 1, 2003, the defendant filed a petition to rehear, seeking


         4
         The defendants who are represented on appeal are Dr. Malone, Dr. Jerden, Dr. W alker, Dr. Diaz, Dr.
W ashington, Methodist Healthcare, and The Med.

         5
           Effective July 1, 2004, Section 16-15-727 was amended to provide that Tennessee Rule of Civil Procedure
60 is applicable to General Sessions Courts, giving the General Sessions Courts the same authority to set aside judgments
as courts of record. See Tenn. Code Ann. § 16-15-727 (Supp. 2004). This amended statute, however, is not applicable
in the instant case.

                                                          -4-
to have the judgment set aside. On August 6, 2003, the General Sessions Court denied the petition
to rehear. On August 18, 2003, the defendant filed a notice of appeal for de novo review to the
Circuit Court. The Circuit Court dismissed the appeal because it was filed more than ten days after
the original order was entered on July 28, 2003. Jackson Energy Auth., 2005 WL 123499, at *2.
The appellate court affirmed that decision. The court reasoned that, under the holding in Caldwell,
a General Sessions Court does not have the authority to set aside its own judgments. Therefore, the
petition to rehear did not toll the running of the ten-day statute of limitations, because the General
Sessions Court was without authority to grant the relief sought. Id. at *4.

        Clearly, the reasoning in Caldwell and Jackson Energy Authority is applicable here. In this
case, the General Sessions Court entered an order dismissing the action on April 23, 2001. On May
8, 2001, the General Sessions Court attempted to set aside its April 23 order because all of the
defendants had not been served with process. However, after the General Sessions Court entered
the order dismissing the case, for lack of prosecution, the General Sessions Court was without
jurisdiction to act further, and its subsequent orders were void. See Caldwell, 2004 WL 370299, at
*2–*3 (quoting Travelers Indem. Co. v. Callis, 481 S.W.2d 384, 385 (Tenn. 1972) (“When a . . .
General Sessions Court renders judgment in a case and adjourns, the court is at an end, and the court
has no further power over it except what the statutes give.”)). Therefore, the one-year time period
under the savings statute for Richardson to refile her lawsuit began to run on the date the General
Sessions order of dismissal for lack of prosecution was entered, on April 23, 2001. See Tenn. Code
Ann. § 28-1-105 (2000). Consequently, the lawsuit below, filed on June 26, 2002, was time-barred.

        Richardson argues that the April 23, 2001 General Sessions order was entered by mistake,
a mistake that was acknowledged by the defendants who signed the consent order to set the April
order aside. It would be unfair, Richardson argues, for the parties who signed the consent order to
now claim that the action is barred by the statute of limitations. However, the General Sessions
Court was without jurisdiction to act after the April 23, 2001 order of dismissal was entered. It is
well settled that parties cannot confer subject matter jurisdiction on a court by consent where
jurisdiction did not exist. First Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 135,
140–41 (Tenn. Ct. App. 2001); see also Jones v. State, No. E2004-00780-COA-R3-CV, 2005 WL
589816, at *3 (Tenn. Ct. App. Mar. 14, 2005); Rogers v. State, No. M2003-00215-COA-R3-CV,
2003 WL 22146120, at *1 (Tenn. Ct. App. Sept. 18, 2003). Consequently, the plaintiffs’ lawsuit in
the Circuit Court below must be dismissed.

         The decision of the trial court is reversed, and the cause is remanded for entry of an order of
dismissal. Costs on appeal are to be taxed to Appellee Helen Richardson, for which execution may
issue, if necessary.



                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE



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