Day on Torts
A third complaint filed more than one year after dismissal of the original complaint did not fall within the savings statute and was time barred.
In Abdou v. Brown, No. 2023-01593-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024), plaintiff filed a complaint alleging several tort claims, including assault, battery, and trespass. This was the third complaint alleging these claims against the same defendant. The first complaint was filed in July 2017 and voluntarily dismissed in September 2019. The second complaint was filed in October 2019 and voluntarily dismissed in September 2022. This third complaint was filed in September 2023.
Defendant filed a motion to dismiss based on the statute of limitations. The trial court granted dismissal, and the Court of Appeals affirmed.
In order for a subsequent suit to be timely under the savings statute, “it must have been filed within one year of the date of dismissal of the original action.” (internal citation omitted). Because this third complaint was filed approximately four years after the first case was voluntarily dismissed, it was barred by the applicable statute of limitations and the savings statute did not apply.
Plaintiff argued that the savings statute should not be measured from the dismissal of the first complaint because his attorney dismissed that complaint without his knowledge. The Court ruled, though, that the propriety of that dismissal should have been appealed in that matter, so the issue was now waived.
Because the appeal was deemed frivolous, the Court stated that defendant should be awarded reasonable and necessary attorney’s fees and expenses incurred in the appeal, and dismissal of the complaint was affirmed.
This opinion was released three weeks after the case was assigned on briefs.