Edgar Foster, Individually and on Behalf of Wife, and Stanley Turner v. St. Joseph Hospital, Mahir R. Awdeh, M.D., Raj. C. Dave, M.D.Edgar Foster, Individually and on Behalf of Wife, and Stanley Turner v. St. Joseph Hospital, Mahir R. Awdeh, M.D., Raj. C. Dave, M.D.
Robert L. Green, Memphis, for the appellee St. Joseph Hospital.
Buckner P. Wellford, John H. Dotson, and Marcy L. Dodds, Memphis, for thе appellees Mahir R. Awdeh, M.D., and Raj C. Dave, M.D.
OPINION
HOLLY M. KIRBY, J., delivered the opinion of the Court, in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.
This is a wrongful death case. The decedent was survived by her husband and two brothers. The husband gave his power of attorney to his grand-nephew. The grand-nephew filed a wrongful death lawsuit, alleging medical malpractice which resulted in the decedent‘s death. The grand-nephew voluntarily dismissed the claim. The grand-nephew refiled the aсtion within one year of the nonsuit but beyond the expiration of the original statute of limitations. In the second action, the decedent‘s husband was added as a plaintiff. The defendants filed motions for summary judgment, arguing that the second lawsuit was time barred. The trial court granted the motion, holding that because the grand-nephew was not a proper party plaintiff under the Tennessee wrongful death statute, the first lawsuit was a nullity and did not toll thе statute of limitations. We reverse, holding that the original lawsuit was not void, but merely voidable, and that the second lawsuit was timely filed under the savings statute.
On February 20, 1997, Mattie Foster (“Mrs. Foster“) was admitted to Defen-
After Mrs. Foster‘s death, on May 26, 1997, Mr. Foster gave general power of attorney to his grand-nephew, Plaintiff/Appellant Stanley Turner (“Mr. Turner“). On February 20, 1998, a lawsuit was filed in the United States District Court for the Western District of Tennessee by “Stanley Turner, individually and on behalf of the heirs of Mattie Foster, deceased” against the Defendants,2 alleging that Mrs. Foster‘s death resulted from their medical malpractice. Mr. Foster was not named as a party plaintiff, and the complaint was never amended to add Mr. Foster as a party. No objection was made as to Mr. Turner‘s capacity to file the lawsuit. On October 9, 1998, the federal action was voluntarily dismissed.
On August 5, 1999, within one year of the voluntary dismissal of the federal lawsuit but over two yeаrs after Mrs. Foster‘s death, the instant lawsuit was filed in Tennessee state court by “Edgar Foster individually, and on behalf of his wife, and Stanley Turner individually and on behalf of the heirs of Mattie Foster deceased.”3 The second lawsuit was filed against the same defendants, and again alleged medical malpractice resulting in Mrs. Foster‘s death.
On September 29, 1999, a Mississippi state court appointed Mr. Turner the administrator of Mrs. Foster‘s estate. Among Mrs. Foster‘s assets, the order identified a “potential wrongful death claim.”
The Hospital, Dr. Awdeh and Dr. Dave each filed essentially identical motions for summary judgment on the grounds that the statute of limitations had expired on the claim. Though the first complaint had been filed within the statute of limitations, the Defendants argued that because Mr. Turner was not a proper party plaintiff under the wrongful death statute, the action had not been properly “commenced” for purposes of tolling the statute of limitations under the Tennessee savings statute. Since the Plaintiffs therefore could not
The trial court granted the Defendants’ motion for summary judgment, holding “that neither the savings statute nor the doctrine of relation back, as set forth in Rule 15 and Rule 17 of the Tennessee Rules of Civil Procedure, can save any cause of action for the wrongful death of Mattie Foster.” First, explaining that under the savings statute the two complaints must be substantially similar, the trial court noted the addition of Mr. Foster to the second complaint and the differences in the “factual assertions . . . [a]nd, to a certain extent, the theories of liability.” Second, the trial court held “that the original filing in federal court was annulled because the named plaintiff . . . wаs not a proper party plaintiff [under the wrongful death statute] as the complaint was styled and framed in the pleadings” and that “the second filing . . . does not cure the defect in the style of the case . . . or in the body of the complaint as it is written.” The trial court noted further that “there has been no effort even now to amend this [second] complaint by asserting that Stanley Turner is the personal representative of the estate of Mattie Foster.” From that order, Mr. Turner and Mr. Foster now appeal.
On appeal, Mr. Turner and Mr. Foster argue that the savings statute is applicable. They note first that Tennessee courts are liberal in permitting the addition or substitution of a proper party for an improper party plaintiff under Rules 15 and 17 of the Tennessee Rules of Civil Procedure, even when the statute of limitations would bar the filing of a new suit. Next they argue that, regardless of whether Mr. Turner was the proper party plaintiff to institute the first action, the first action was not a nullity under Tennessee law, and the lawsuit was therefore “commenced” within the meaning of the savings statute. Finally, they argue that, despite any difference between the first and second complaints, the savings statute applies because the two actions arise out of the same conduct, transaction оr occurrence.
A motion for summary judgment should be granted when the movant demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
At the outset, we must set forth the pertinent statutes. Tennessee‘s wrongful death statute provides: “The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abatе or be extinguished . . . .”
Tennessee‘s savings statute,
Because Tennessee law favors the resolution of disputes on their merits, the savings statute must be given a broad and liberal construction. Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996). The purpose behind the savings statute is ” ‘to aid the courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of our laws of рrocedure.’ ” Id. at 917 (quoting Gen. Accident Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 285 (1962)). To determine whether the savings statute is applicable, the court must ascertain whether the defendant had notice: “[N]otice to the party affected is the true test of the statute‘s applicability. . . . ‘The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.’ ” Id. at 917-18 (quoting Burns v. People‘s Tel. & Tel. Co., 161 Tenn. 382, 33 S.W.2d 76, 78 (1930)). Thus, the savings statute is only applicable when the original complaint and the new complaint allege substantially the same cause of action, which includes identity of the parties. See Turner v. Aldor Co. of Nashville, 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991). It is not necessary that the two complaints be identical, only that the allegations arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 784-85 (Tenn. Ct. App. 1987) (holding that the savings statute was applicable to the second complaint, which had been amended to add a new claim, because the claim arose out of the same conduct, transaction, or occurrence alleged in the original action and the plaintiff, therefore, could have added the claim to the first action under
We first address whether the original action was “commenced” within the meaning of the savings statute.
[T]he filing of a petition tolls the statute of limitations as to the transaction or occurrence upon which the pleading is based. In this case, however, McAdams had no authority to file any claim in a representative capacity at the time that her original pleading was filed. . . . We hold that her filing of such a petition was a nullity insofar as [Texas’ rule regarding relation back of amendments or supplements to pleadings] is concerned and consequently did not toll the statute of limitations. Therefore, her claim that she subsequently asserted in her proper capacity as administratrix appointed by a Texas court did not relate back to that petition . . . [and] her claim was barred by the applicable statute of limitations.
Id. at 293. Thus, under McAdams, the original petition, filed by the decedent‘s mother before she was appointed administratrix by a Texas court, was a nullity which did not toll the statute of limitations.
In a case with facts somewhat similar to those in McAdams, the Tennessee Supreme Court has indicated a willingness to givе plaintiffs more leeway when attempting to determine the proper party to file a wrongful death suit. In Chapman v. King, 572 S.W.2d 925 (Tenn. 1978), the plaintiff parents brought a wrongful death suit against a motorist who allegedly ran over and killed their adult daughter. Id. at 926. Though the suit was filed within the statute of limitations, like the McAdams plaintiff, the Chapman plaintiffs did not have standing to bring the suit.
On appeal, the Tennessee Supreme Court noted its “liberality” in permitting a proper party plaintiff to be added or sub-
No doubt the reаson for this liberal policy in wrongful death cases has been the fact that the cause of action is not changed by the substitution of the proper party plaintiff for the improper plaintiff and that such a substitution does not prejudice the defendant who has had notice from the beginning of the suit, of the nature of the cause of action and that it was being pressed against him.
Id. at 928 (internal citations omitted). Thus, although the statute of limitations had expired when the Chapman plaintiffs filed their motion to substitute the proper party plaintiff, the supreme court permitted the amendment under Rule 17.01 because the substitution of the parties did not change the cause of action or prejudice the defendants. See
In light of the Tennessee Supreme Court‘s avowed liberality in permitting the substitution of a proper party plaintiff for an improper party plaintiff, even after the statute of limitations has passed, we must conclude that it was error for the trial court in this case to find that the original lawsuit was a nullity. Clearly, under Chapman, if the Defendants had sought to have the lawsuit dismissed on the grounds that Mr. Turner was not the proper party plaintiff, Mr. Turner would have had an opportunity to substitute the proper party plaintiff. Under these cirсumstances, the claim by Mr. Turner was not void but, rather, merely voidable. The Defendants cite no caselaw from Tennessee indicating that Mr. Turner could not have prosecuted the claim to its conclusion absent an objection by the Defendants. Consequently, we must hold that the original lawsuit filed by Mr. Turner in federal court “commenced” the action within the meaning of the savings statute.
If the original federal lawsuit commenced the aсtion, we must determine
Given the Tennessee Supreme Court‘s stated liberality in Chapman toward plaintiffs sometimes struggling to name the proper party plaintiff in a wrongful death action, as well as the purpose behind the savings statute, we must hold that the savings statute is applicable in this case. Despite the defects of the pleadings in the instant case, from the time they received service of process in the first action, the Defendants have been on notice that they would have to defend themselves against allegations of medical malpractice arising out of Mrs. Foster‘s death. With the addition of Mr. Foster in the second action, the defect in naming the proper party plaintiff was cured with no prejudice to the Defendants. Since the savings statute was applicable, the Plaintiffs’ claim is not time-barred, and we find that the trial court erred in dismissing the complaint.
Accordingly, the decision of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this Opinion. Costs of this appeal are taxed against the Defendants/Appellees St. Joseph Hospital, Dr. Mahir Awdeh and Dr.
Notes
Whenever the claim or defense asserted in amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party or the naming of the party by or against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification or commencement by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.