442 S.W.3d 245
Tenn. Ct. App.2014Background
- Julia Kay Byrge presented to Parkwest on Sept. 25, 2009, deteriorated, and died Oct. 4, 2009. Her next of kin, Bobby J. Byrge, filed a health-care-liability suit.
- Byrge filed a First Complaint on Dec. 10, 2010 and sent a pre-suit notice to Parkwest on Sept. 20, 2010 with a medical authorization. Byrge later admitted the authorization was not HIPAA-compliant and expired before it was sent. The First Complaint did not state compliance with Tenn. Code Ann. § 29-26-121 or include required documentation.
- Parkwest moved to dismiss the First Complaint; before the motion was decided Byrge voluntarily nonsuited the First Complaint on Aug. 9, 2011. Parkwest’s limitations defense was not resolved in that proceeding.
- Byrge filed a Second Complaint on May 4, 2012 (within one year of the voluntary dismissal). Parkwest moved to dismiss the Second Complaint as time-barred. The trial court dismissed, finding the First Complaint was not timely because Byrge failed to comply with Tenn. Code Ann. § 29-26-121 and thus could not invoke the savings statute, Tenn. Code Ann. § 28-1-105.
- On appeal, the Court of Appeals affirmed: Byrge’s failure to comply with § 29-26-121 meant he did not obtain the 120-day tolling extension; his First Complaint therefore was untimely and § 28-1-105 could not save the Second Complaint. The dismissal was affirmed and costs assessed to Byrge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Parkwest waive the statute-of-limitations defense in the first suit? | Parkwest did not plead limitations in the first suit, so it waived the defense under Tenn. R. Civ. P. 8.03. | Parkwest could raise the defense by motion or amendment per Tenn. R. Civ. P. 12.08; dismissal motion preserved the defense. | Court: No waiver; Parkwest’s defense was not forfeited. |
| Could the trial court examine the first suit when deciding the second suit’s timeliness? | Nonsuit and refiling rights under Tenn. R. Civ. P. 41.01 and the savings statute permit refiling within one year of dismissal. | Court must assess whether the first suit was itself timely; savings statute applies only if first action was timely. | Court: It was proper to look to the first suit’s timeliness. |
| Did Byrge comply with Tenn. Code Ann. § 29-26-121 to obtain the 120‑day extension of the limitations period? | Byrge argued he relied on his filings and nonsuit; any deficiencies do not automatically bar refiling. | Byrge admitted the notice/authorization was deficient and did not satisfy § 29-26-121; thus no tolling. | Court: Byrge failed to comply; no 120‑day extension was obtained; First Complaint was untimely. |
| Could the court excuse noncompliance with § 29-26-121 for extraordinary cause and thus save the suit? | Byrge offered a clerical-error explanation and pointed to Myers for limitation on dismissal consequences. | Parkwest argued Byrge made no showing of extraordinary cause during the dismissal-motion hearing. | Court: No extraordinary cause shown; trial court did not abuse discretion in refusing to excuse noncompliance; dismissal affirmed. |
Key Cases Cited
- Steed Realty v. Oveisi, 823 S.W.2d 195 (Tenn. Ct. App. 1991) (limitations is an affirmative defense that may be waived if not timely raised)
- Denny v. Webb, 281 S.W.2d 698 (Tenn. 1955) (limitations waived if not properly pleaded)
- Nunnelly v. Southern Iron Co., 29 S.W. 361 (Tenn. 1895) (court discretion to permit late pleading of limitations)
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (procedures for challenging compliance with §§ 29-26-121 and 29-26-122; burden shifting and standards of review)
- Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010) (de novo review for legal questions)
- Lind v. Beaman Dodge, Inc., 356 S.W.3d 889 (Tenn. 2011) (accept allegations in complaint when reviewing legal sufficiency)
- Starr v. Hill, 353 S.W.3d 478 (Tenn. 2011) (mixed question review of extraordinary cause determinations)
- Wright ex rel. Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011) (standards for abuse of discretion review)
- Wilson v. State, 367 S.W.3d 229 (Tenn. 2012) (abuse of discretion defined for Tennessee courts)