               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                         Assigned on Briefs November 18, 2005

              BRENDA WOODS, TAWANA POLK,
             JONATHAN JOY, AND CLIFTON POLK
                           v.
 CATHY N. JONES, ADMINISTRATOR OF ELECTIONS, HARDEMAN
 COUNTY ELECTION COMMISSION; YVONNE ALLEN, HARDEMAN
 COUNTY ELECTION COMMISSIONER; CARL GIBSON, HARDEMAN
    COUNTY ELECTION COMMISSIONER; THAREN E. HALEY,
HARDEMAN COUNTY ELECTION COMMISSIONER; JAMES E. HICKS,
  HARDEMAN COUNTY ELECTION COMMISSIONER; AND JANET
   WELLONS, HARDEMAN COUNTY ELECTION COMMISSIONER

                 An Appeal from the Chancery Court for Hardeman County
                      No. 15485     Allen W. Wallace, Special Judge


                   No. W2005-02070-COA-R3-CV - Filed February 8, 2006


This is an election contest. The plaintiffs were unsuccessful candidates for office in a municipal
election held on May 19, 2005. On June 3, 2005, they filed this election contest. The defendants
filed a motion to dismiss the lawsuit based on the special ten-day statute of limitations for election
contests, which is set out in T.C.A. § 2-17-105. The trial court granted the motion to dismiss. The
plaintiffs now appeal. We reverse, concluding that, pursuant to Tennessee Rule of Civil Procedure
6.01, intermediate Saturdays, Sundays, and legal holidays are excluded from the computation of the
time in which the plaintiff must file suit.


         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is
                                Reversed and Remanded

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

C. Michael Robbins, Memphis, Tennessee, for the appellants, Brenda Woods, Tawana Polk,
Jonathan Joy, and Clifton Polk.

W. Boyette Denton, Bolivar, Tennessee, for the appellees, Cathy N. Jones, Administrator of
Elections for the Hardeman County Election Commission, and Yvonne Allen, Carl Gibson, Tharen
E. Haley, James E. Hicks, and Janet Wellons, Hardeman County Election Commissioners.
                                             OPINION

        On Thursday, May 19, 2005, a municipal election was held in Hardeman County, Tennessee.
Plaintiff/Appellants Brenda Woods, Tawana Polk, Jonathan Joy, and Clifton Polk (“Plaintiffs”) were
unsuccessful candidates for office in that election. On Friday, June 3, 2005, the Plaintiffs filed the
instant lawsuit contesting the election, pursuant to Tennessee Code Annotated § 2-17-112. The
complaint named Appellee Cathy N. Jones, the Hardeman County Administrator of Elections, as a
defendant, as well as Appellees Yvonne Allen, Carl Gibson, Tharen E. Haley, James E. Hicks, and
Janet Wellons, all members of the Hardeman County Election Commission (“Defendants”). On July
15, 2005, the Tennessee Supreme Court entered an order designating Senior Judge Allen W. Wallace
to hear the case.

        On June 21, 2005, the Defendants filed a motion to dismiss the complaint based on the
special ten-day statute of limitations applicable to election contests set out in Tennessee Code
Annotated § 2-17-105. The statute provides simply that a “complaint contesting an election under
§ 2-17-101 shall be filed within ten (10) days after the election.” T.C.A. § 2-17-105 (2003).
Another Tennessee statute, Tennessee Code Annotated § 2-1-115, addresses the computation of time,
providing that the computation “shall be in accordance with § 1-3-102.” T.C.A. § 2-1-115 (2003).
The referenced statute, Section 1-3-102, applies generally to “any act provided by law,” and sets out
the method of computing the time:

       The time within which any act provided by law is to be done shall be computed by
       excluding the first day and including the last, unless the last day is a Saturday, a
       Sunday, or a legal holiday, and then it shall also be excluded.

T.C.A. § 1-3-102 (2003).

        In this case, the tenth day after the election was May 29, 2005, which was a Sunday. The
following day, Monday, May 30, was Memorial Day, a legal holiday. Under these circumstances,
the Defendants argued the last day on which the Plaintiffs could have filed suit would have been
Tuesday, May 31, 2005. Therefore, the Defendants maintained, the Plaintiffs’ June 3, 2005 petition
was untimely. The Plaintiffs, on the other hand, argued that under Rule 6.01 of the Tennessee Rules
of Civil Procedure, the intermediate Saturdays, Sundays, and holidays should have been excluded
from the computation of the ten-day time limit. Rule 6.01 provides:

               In computing any period of time prescribed or allowed by these rules, by
       order of court, or by any applicable statute, the date of the act, event or default after
       which the designated period begins to run is not to be included. The last day of the
       period so computed shall be included unless it is a Saturday, a Sunday, or a legal
       holiday, or, when the act to be done is the filing of a paper in court, a day on which
       weather or other conditions have made the office of the court clerk inaccessible, in
       which event the period runs until the end of the next day which is not one of the


                                                 -2-
       aforementioned days. When the period of time prescribed or allowed is less than
       eleven days, intermediate Saturdays, Sundays and legal holidays shall be excluded
       in the computation.

Tenn. R. Civ. P. 6.01 (2005) (emphasis added). Because the applicable statute of limitations is “less
than eleven days,” the Plaintiffs contend, intermediate Saturdays, Sundays, and holidays should have
been excluded from the computation. The Plaintiffs assert that if those days are excluded, namely,
May 21 (Saturday), 22 (Sunday), 28 (Saturday), 29 (Sunday), and 30 (Memorial Day), the lawsuit
was timely filed on the tenth day, June 3, 2005.

         On August 3, 2005, the trial court conducted a hearing on the Defendants’ motion to dismiss.
At the conclusion of the hearing, the trial court orally granted the motion. The trial court determined
that Tennessee statutes governed the issue, and that Rule 6.01 of the Tennessee Rules of Civil
Procedure did not affect the computation of time for the statute of limitations. On August 15, 2005,
the trial court entered an order consistent with its oral ruling. From that order, the Plaintiffs now
appeal.

        On appeal, the Plaintiffs make the same argument they made to the trial court, that their
complaint was timely filed under the computation method set out in both Section 1-3-102 and Rule
6.01. The facts in this case are undisputed, and the issue presented is a question of law, which we
review de novo with no presumption of correctness. Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 144
(Tenn. 2001).

        The Tennessee Supreme Court addressed the ten-day time limitation for election contests set
out in Section 2-17-105 in Forbes v. Bell, 816 S.W.2d 716 (Tenn. 1991). In Forbes, the plaintiffs
filed their complaint, as well as an amended complaint, within ten days after the August 1990
election. After the ten-day period had expired, the plaintiffs filed a motion to amend their complaint.
The proposed amendment to the complaint was substantive in nature. Forbes, 816 S.W.2d at 718.
The plaintiffs argued that the amendment should be permitted pursuant to Rule 15 of the Tennessee
Rules of Civil Procedure, which allows amendments “freely . . . when justice so requires.” Tenn.
R. Civ. P. 15.01. The trial court denied the plaintiffs’ motion to amend, and the plaintiffs appealed.
The Supreme Court affirmed the denial of the plaintiffs’ motion to amend the complaint, stating that
the ten-day time limitation in Section 2-17-105 is unambiguous and should be strictly applied,
regardless of the Tennessee Rules of Civil Procedure:

       This special statute of limitations [Section 2-17-105] has long been strictly applied
       in election contests, which are purely creatures of statute and were not recognized at
       common law or in equity. The proceedings in an election contest are said to be
       summary in nature, and the statutory prerequisites are considered jurisdictional.
       Hence, the court cannot review grounds for invalidating election results unless they
       have been filed within the statutory period, rules of practice in civil actions to the
       contrary notwithstanding.



                                                 -3-
Id. (emphasis added). Thus, the Court held that the ten-day time limitation in Section 2-17-105 was
jurisdictional and could not be expanded by filing an untimely amendment of the complaint,
regardless of the “relaxed pleading requirements of the Tennessee Rules of Civil Procedure.” The
Court added that a late amendment of the complaint could be permitted if the amendment sought
only to correct technical matters or to set out in more detail grounds alleged in the original
complaint. Under the facts in Forbes, however, the Court rejected the proposed amendment because
it sought to make substantive changes to the original and first amended complaints. Id.

        In this appeal, the Plaintiffs acknowledge the statement in Forbes that the ten-day time
limitation for election contests is jurisdictional and cannot be expanded by the Tennessee Rules of
Civil Procedure. They argue, however, that the application of Rule 6.01 does not expand the
statutory ten-day time limitation, as did Rule 15 in Forbes; rather, Rule 6.01 defines the manner of
computing the time period and does not conflict with Tennessee Code Annotated § 2-17-105, § 2-1-
115, or § 1-3-102. Moreover, the Plaintiffs argue, Section 2-1-115 was rewritten in 1991, after
Forbes was decided, and now provides that the computation of time in an election contest should
be decided in accordance with Section 1-3-102. In contrast, at the time Forbes was decided, Section
2-1-115 provided:

       Notwithstanding the provisions of § 1-3-102 or any other law, for the purpose of
       computing time within which any act required by this title is to be done, the same
       shall be computed by excluding the first day and including the last, unless the last day
       is a Sunday or legal holiday in which cases such act will be due on the first previous
       day which is not a Sunday or legal holiday.

T.C.A. § 2-1-115 (1985) (emphasis added). Thus, under Section 2-1-115 at that time, the
computation for the time limitation in election contests was to be made “[n]otwithstanding the
provisions of § 1-3-102 or any other law.” In 1991, this language was replaced with the following
language: “The computation of time within which to do any act required by this title shall be in
accordance with 1-3-102.” T.C.A. § 2-1-115 (2003). Therefore, after the 1991 amendment of
Section 2-1-115, the computation of the time in which to file an election contest was to be done in
the same manner as for any other “act provided by law” under Section 1-3-102. See T.C.A. §1-3-102
(2003).

       In addition, Plaintiffs point out in 1999, Rule 6.01 was amended to provide that, “[w]hen the
period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays and
legal holidays shall be excluded in the computation.” Tenn. R. Civ. P. 6.01 (2005) (emphasis
added). Prior to this amendment, intermediate holidays were to be excluded in the computation of
time only when the period of time prescribed was less than seven days, and consequently Rule 6.01
was not applicable to an election contest. Therefore, the Plaintiffs argue, the amendments to both
Section 2-1-115 and Rule 6.01 render inapplicable the reasoning in Forbes.

        In response, the Defendants argue that the holding in Forbes forecloses the Plaintiffs’
reliance on Rule 6.01, because application of that Rule would impermissibly expand the ten-day


                                                 -4-
limitation set out in Section 2-17-105. Under Forbes, the ten-day time limitation is jurisdictional
and must be “strictly applied in election contests, which are purely creatures of statute . . . .” Forbes,
816 S.W.2d at 718. The Defendants point out that Forbes emphasized that an election contest must
be filed within ten days under the statute, notwithstanding “rules of practice in civil actions.” Id.
As the Court noted in Forbes, the Tennessee legislature has not only reaffirmed the time limitation
for filing an election contest, it has in fact tightened that limitation by reducing it in 1972 from
twenty days to ten days. Id. The Defendants claim that the pertinent provision in Rule 6.01,
amended to apply to eleven days rather than seven days, was amended in order to eliminate
confusion over whether the mailing of a five day notice creates an eight day period because of Rule
6.05. Thus, they contend, Rule 6.01 should not be applied in this case.

       The parties have not cited, nor have we found, any case that addresses the effect of the
amended laws on election contests. In cases decided subsequent to Forbes, however, Rule 6.01 has
been applied to other statutory time limitations and its application has been found not to be
inconsistent with Section 1-3-102.

         In Sanders v. Traver, 109 S.W.3d 282 (Tenn. 2003), the plaintiff filed a wrongful death
action, to which a one-year statute of limitations applied. The plaintiff’s decedent died on May 28,
1999, and the one-year anniversary of her death fell on a Sunday. The next day, May 29, was
Memorial Day, a legal holiday. The wrongful death lawsuit was filed on the following day, Tuesday,
May 30, 2000. Sanders, 109 S.W.3d at 283. The defendant governmental entity filed a motion to
dismiss, claiming that the action should have been filed within twelve months pursuant to the one-
year Government Tort Liability Act (“GTLA”) statute of limitations, Tennessee Code Annotated §
29-20-305(b). The GTLA statute of limitations did not specify a method for computing the time.
The trial court granted the motion to dismiss, concluding that the GTLA “supercedes and takes
precedent over all other statutory provisions and that no special counting of the Statute of
Limitations is set forth under said Act.” Id. The plaintiffs appealed. The Court of Appeals reversed
the trial court’s decision, holding that Rule 6.01 applied to the computation of time, and that the Rule
was not inconsistent with the GTLA. Id. at 283-84. On appeal to the Tennessee Supreme Court, the
defendants argued that the twelve-month time limitation set out in the GTLA was statutory and could
not be expanded by Rule 6.01. The defendants contended that, because the government consented
to be sued under the GTLA, such consent did not extend beyond the twelve-month period. The
Supreme Court rejected that argument, reasoning that “Rule 6.01 does not extend the time but merely
defines how the twelve-month statutory period is to be computed.” Id. at 284. The Court observed
that “[t]he GTLA does not require courts to ignore applicable rules of civil procedure. . . . [T]here
is a fundamental difference between a savings statute, which effectively extends the twelve-month
GTLA statute of limitations, and Rule 6.01, which merely defines the statutory period.” Id. at 285.
It noted that Rule 6.01 was consistent with the computation method set out in Section 1-3-102, and
that the Compiler’s Notes to Section 1-3-102 stated that the section “may be superseded in part by
. . . Tenn. R. Civ. P. 6.01.” Id. (quoting T.C.A. § 1-3-102 Compiler’s Notes). The Court concluded
that the application of both Rule 6.01 and Section 1-3-102 only defines the statutory period, but does
not extend it. Id.; see also Smith v. Hose, No. 03A01-9501-CV-0006, 1995 WL 371675, at *1-*2
(Tenn. Ct. App. June 21, 1995) (construing the one-year time limitation for personal injuries in


                                                   -5-
T.C.A. § 28-3-104 in accordance with Rule 6.01 and stating that the rule is consistent with Section
1-3-102).

        We recognize the continued force of the admonition in Forbes that the special statute of
limitations for election contests in Section 2-17-105 is jurisdictional in nature and must be strictly
applied. However, since the Forbes decision, the pertinent statutes have changed in significant
respects. At the time that Forbes was before the Court, Section 2-1-115 stated that its description
of the method for computing the time period applied “[n]otwithstanding the provisions of § 1-3-102
or any other law . . . .” After the Forbes decision, the statute was amended to state the opposite,
directing that the computation of time be done “in accordance with [§] 1-3-102.” Moreover, at the
time of the Forbes decision, Rule 6.01 of the Tennessee Rules of Civil Procedure applied only to
time periods of less than seven days, and would not have been applicable to a ten-day statute of
limitations. Consequently, the method of computing time in Rule 6.01 was not considered. After
Forbes, Rule 6.01 was made applicable to time periods of less than eleven days. The Tennessee
Supreme Court in Sanders recognized that Section 1-3-102 “may be superseded in part by . . . Tenn.
R. Civ. P. 6.01.” Sanders, 109 S.W.3d at 285. Rule 6.01 states that it should be applied “[i]n
computing any period of time prescribed or allowed by these rules . . . or by any applicable statute.”
Tenn. R. Civ. P. 6.01 (2005). All of this, taken together, indicates that the time limitation in Section
2-17-105 should be computed by reference to Section 1-3-102 and Rule 6.01, which are “nearly
identical.” Id.

         Moreover, Forbes involved an issue not presented in the instant case. The Court in Forbes
held that the plaintiff could not amend the substance of her complaint after the ten-day statute of
limitations had expired, because such an amendment would effectively extend the ten-day time
limitation. In contrast, in this case, the method of computing the ten-day limitation is at issue. The
Sanders Court made it clear that “Rule 6.01 does not extend the time but merely defines how the .
. . statutory period is to be computed.” Sanders, 109 S.W.3d at 284. Reconciling Forbes and
Sanders, while the special statute of limitations for election contests is jurisdictional and must be
strictly applied, the method of computing the time period may be defined by Rule 6.01. Therefore,
as in Sanders, we conclude that Rule 6.01 should have been applied in this case, and that the trial
court erred in dismissing the Plaintiffs’ lawsuit as untimely.

        The decision of the trial court is reversed and the cause is remanded for further proceedings
not inconsistent with this Opinion. Costs on appeal are to be taxed equally to Defendant/Appellees
Cathy N. Jones, Administrator of Elections for the Hardeman County Election Commission, and
Yvonne Allen, Carl Gibson, Tharen E. Haley, James E. Hicks, and Janet Wellons, Hardeman County
Election Commissioners, for which execution may issue, if necessary.



                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE



                                                  -6-
