Opinion
Appeal No. 02A01-9607-CV-00165.
June 30, 1998.
APPEAL FROM THE CIRCUIT COURT OF HAYWOOD COUNTY AT BROWNSVILLE, TENNESSEE, THE HONORABLE DICK JERMAN, JR., JUDGE, Haywood Circuit No. 2954.
FOR THE PLAINTIFF/APPELLEE: RICCO GATTI, JR., CHARLES H. RICHARDSON III, DIXIE WHITE ISHEE.
FOR THE DEFENDANTS/APPELLANTS: GARY K. SMITH, WILLIAM D. DOMICO, BRYANT C. WITT.
OPINION
This case involves an interlocutory appeal from an order by the trial court denying the Defendant's motion for Judgment on the Pleadings/Motion for Summary Judgment. We reverse.
Plaintiff Henry Collier filed suit against the Defendant/Appellant Methodist Haywood Park Hospital ("Hospital") on April 26, 1994. In his complaint, Collier alleged that he suffered personal injury as a result of negligent medical treatment by Hospital's medical staff. Hospital filed an answer on July 6, 1994. In the Answer, Hospital stated that Dr. Robert Lindsay, an independent contractor physician, treated Collier at the time of his injury. Based on that averment by the Hospital and pursuant to Tennessee Code Annotated § 20-1-119, Collier filed his Amended Complaint on October 6, 1994, which set forth equivalent allegations against Dr. Lindsay and Metro Emergency Group, P.C. ("Metro").
Dr. Lindsay and Metro filed a motion for summary judgment or for judgment on the pleadings, alleging that the Amended Complaint was filed beyond the one (1) year limitation set forth in Tennessee Code Annotated § 29-26-116, and beyond ninety days from the filing of the Answer as set forth in Tennessee Code Annotated § 20-1-119. The defendants requested that the cause of action against Dr. Lindsay and Metro be dismissed as untimely. The trial court denied the motion, but granted permission to seek an interlocutory appeal to this Court. This Court granted the defendants' application for interlocutory appeal.
Tennessee Code Annotated § 20-1-119 provides, in pertinent part:
(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in a original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the Plaintiff seeks recovery, and if the plaintiff's cause or causes of action against such person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging such person's fault, either:
(1) Amend the complaint to add such person as a defendant pursuant to Rule 15 of the Tennessee Rules of Civil Procedure and cause process to be issued for that person; or
(2) Institute a separate action against that person by filing a summons and complaint. . . .
. . . .
(c) This section shall neither shorten nor lengthen the applicable statute of limitations for any cause of action, other than as provided in subsection (a).
On appeal from the grant or denial of summary judgment, we review the trial court's decision de novo, with no presumption of correctness. Presley v. Bennett, 860 S.W.2d 857 (Tenn. 1993). Tennessee Code Annotated § 20-1-119 sets a ninety-day time limit for plaintiffs who wish to amend a complaint to add an additional defendant. Collier argues that although his amended complaint was filed outside the ninety-day limit, the complaint is saved by Tennessee Rule of Civil Procedure 6.05, which allows a three-day extension to the time limitation: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail three days shall be added to the prescribed period." With this three-day extension, Collier argues that the amended complaint is timely filed.
Defendants contend that this rule is inapplicable because it concerns the date of service, not the date of filing. They cite Halstead v. Niles-Bolton Assoc., No. 01-A01-9503-CV-00113, 1996 WL 50861 (Tenn.App. Feb. 9, 1996), in which the plaintiff filed suit against previously unnamed defendants ninety-one days after the answer of the original defendants was filed. Halstead argued that Tennessee Rule of Civil Procedure 6.05 allowed a three day extension to the applicable ninety-day period because he received the original defendant's answer by mail. This argument was rejected:
By its own terms, it does not apply in circumstances where a party is required to take some act within a prescribed period after the filing of a paper. Accordingly, Mr. Halstead can find no solace in Tenn. R. Civ. P. 6.05.
Halstead, at *2. Consequently, Tennessee Rule of Civil Procedure 6.05 only applies where a party "is required to do some act . . . within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail. . . ." It does not apply to situations in which a party must take some action after the filing of a notice or paper.
Accordingly, the decision of the trial court is reversed, and the amended complaint against the defendants Dr. Robert Lindsay and Metro Emergency Group, P.C. is dismissed with prejudice. Costs on appeal are assessed against Appellee, for which execution may issue, if necessary.
__________________________________________ HOLLY KIRBY LILLARD, J.
CONCUR:
__________________________________________ W. FRANK CRAWFORD, P.J., W.S.
__________________________________________ DAVID R. FARMER, J.
OPINION
The captioned prisoner confined in the punitive custody of the Tennessee Department of Correction filed in the Trial Court a "Petition for Declaratory Judgment," naming as defendants the Department, its Commissioner and W. G. Lachie, Legal Assistant. The latter individual is identified by the petition as a legal assistant to "the defendant."
The petition states the following facts:
On July 27, 1981, the prisoner was sentenced to 25 years confinement at 35% for unspecified criminal activity. (The 35% is doubtless the minimum length of incarceration before possible parole.)
On May 14, 1993, the prisoner escaped from custody.
On May 21, 1993, a disciplinary panel assessed the following punishment:
(a) For assault on employee: 30% extension of release or parole dates. (Presumably, the above 35% minimum incarceration was increased by 30% or 10.5% to 40.5% of the original 25 years sentence.)
(b) For escape: 10% extension on release date. (An addition of 3.5% to 44%.)
The prisoner applied to the Commissioner for a declaratory ruling upon the validity of the decision of the disciplinary panel and the defendant, Lachie, responded to the application by stating that a declaratory order was not appropriate.
Other allegations of the petition and its amendments are deemed irrelevant to the disposition of this appeal.
The prisoner filed the present suit seeking the following relief:
1. A declaration that the administrative policies of the defendants violate T.C.A. § 40-35-117(c) and the federal and state "prohibitions against ex post facto punishment."
2. Mandatory orders to "reinstate and recalculate" plaintiff's parole eligibility; to "expunge" the disciplinary record; to "determine plaintiff's conduct" within the policies and procedures in effect at the time of plaintiff's conviction.
3. Compensatory and punitive damages.
The defendants moved for summary judgment supported by affidavit of the Sentence Analyst of the Department stating that:
1. On December 16, 1974, defendant received two 15-year concurrent sentences for robbery, and was released to parole supervision on September 26, 1980.
2. On July 27, 1981, plaintiff received a 25-year sentence for aggravated rape, a 25-year sentence for aggravated kidnaping and a three to ten year sentence for auto larceny, the three sentences to run consecutively.
The plaintiff filed no sworn response to the above affidavit.
The Trial Court sustained defendants' motion for summary judgment, stating the following reasons:
Plaintiff was convicted of aggravated rape, a Class X offense in 1981. At the time of this conviction, T.C.A. § 40-28-301(a) provided "Notwithstanding any provision of the Tennessee Code Annotated to the contrary, the service of sentence, release eligibility and supervision while on release of a person convicted of a Class X felony shall be governed exclusively by the provisions of this section." T.C.A. § 40-28-301(h) provided, in part, "For a violation of any of the rules of the department of correction or the institution in which the person is incarcerated the commissioner of correction or his designee, may defer the release classification eligibility date so as to increase the total amount of time a prisoner must serve before becoming eligible for release classification status." Thus, at the time of Plaintiff's 1981 conviction, Plaintiff was on notice that a violation of any TDOC rule might result in his release eligibility date extension. Because the policy under which Plaintiff received his RED extension was in effect at the time of his escape, there was no ex post facto violation. California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed 2d 588 (1955); Reinholtz v. Bradley, No 01A01-9512-CH-00570 (Nov. 1, 1996).
The appellant's brief contains no "statement of the issues presented for review" as required by TRAP Rule 27(a)(4). However, said brief contains the following "arguments:"
I. Whether the Trial Court erred or acted contrary to law in granting summary judgment to appellees
II. Trial Court erred in failing to strike appellees' improperly filed motions, pleading and papers.
III. Whether the Trial Court erred in dismissing appellant's petition for declaratory judgment.
Appellant argues that the summary judgment in favor of defendants is erroneous or contrary to law. Authorities cited by appellant are inapplicable because defendants presented evidence which, if uncontradicted, entitled defendants to dismissal. Appellant offered no contradictory evidence. Therefore, the summary judgment in favor of defendants was not erroneous or contrary to law. TRCP Rule 56; Armes v. Hewlett, Tenn. App. 1992, 843 S.W.2d 427.
Appellant next argues that the Trial Court erred in failing to rule upon his numerous motions to strike defendant's pleadings. Any such failure of the Trial Court was justified by the lack of merit in the motions to strike, and the result reached.
Finally, appellant argues that the Trial Court erred in dismissing his suit for declaratory judgment. T.C.A. § 40-35-117(c) declares:
(c) For all persons who committed crimes prior to July 1, 1982, prior law shall apply and remain in full force and effect in every respect, including, but not limited to, sentencing, parole and probation. [Acts 1989, ch. 591, § 6.]
All of the above sentences were received prior to July 1, 1982, but there is no showing that said sentences, or the parole or probation thereon have deviated from the provisions of T.C.A. § 40-35-117.
Appellant next argues that Department Policy 502.02 was applicable to his parole but was changed by an undesignated and unquoted policy on August 7, 1986, and by a further, quoted, policy on February 15, 1989, which required escape to be punished by delay of parole eligibility or sentence expiration, whichever is less.
There is no showing that the expiration of appellant's sentences has been delayed.
For the foregoing reasons, appellant's third argument is found to be without merit.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the appellant. The cause is remanded to the Trial Court for necessary further proceedings.
AFFIRMED AND REMANDED
________________________________ HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________ BEN H. CANTRELL, JUDGE
_____________________________ WILLIAM C. KOCH, JR., JUDGE