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Scales v. H.G. Hillrealty Co., LLC

Court of Appeals of Tennessee, Nashville

January 30, 2018

MARY L. SCALES
v.
H.G. HILLREALTY CO., LLC, ET AL.

          Session December 5, 2017

         Appeal from the Circuit Court for Davidson County No. 14C5154 Kelvin D. Jones, Judge

         A customer slipped and fell at a grocery store and sued four different entities that owned and/or operated the store. When two of the defendants filed a motion to compel the plaintiff to respond to discovery responses, the plaintiff voluntarily dismissed these defendants from the action. Then, in response to an answer to an amended complaint in which another defendant asserted the comparative fault of the dismissed defendants, the plaintiff filed a second amended complaint adding the dismissed defendants back in as named defendants pursuant to Tenn. Code Ann. § 20-1-119. The newly added defendants filed a motion to dismiss, which the trial court granted. The plaintiff appealed, and we reverse the trial court's judgment. We hold that the statute permitted the plaintiff to add the formerly dismissed defendants back into the lawsuit.

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

          H. Anthony Duncan, Nashville, Tennessee, for the appellant, Mary L. Scales.

          Behnaz Sulkowski and Julie Bhattacharya Peak, Brentwood, Tennessee, for the appellees, H.G. Hill Realty Co., LLC and Hill Center at Belle Meade, LLC.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         This case involves the interpretation of Tenn. Code Ann. § 20-1-119 and its application to H.G. Hill Realty Co., LLC and Hill Center at Belle Meade, LLC (together, "the Hill Defendants"), entities that were initially named as defendants, then dismissed voluntarily, and finally added back to the lawsuit as defendants. The trial court concluded that the statute did not permit the plaintiff to add the Hill Defendants back in as comparative tortfeasors, which we believe was error.

         According to the complaint she filed on December 4, 2014, Mary L. Scales slipped and fell on February 19, 2014, at a Publix supermarket located on Harding Pike in Nashville, Tennessee. Ms. Scales asserted that a Publix employee was pushing a shopping cart containing her groceries out of an elevator and into the parking garage when she slipped on an unsecured mat that was on the ground right outside the elevator and fell, sustaining injuries. Ms. Scales alleged that the shopping cart as well as the unsecured mat caused her to trip. She was taken by ambulance to a nearby hospital where she was treated for a head injury. Ms. Scales asserted claims for ordinary negligence, premises liability, and negligence per se against Publix Super Markets, Inc. and Publix Tennessee, LLC (together, "Publix") and claims for premises liability and negligence per se against the Hill Defendants.

         Publix filed an answer on January 8, 2015, in which it asserted, inter alia, "the comparative fault of or attributable to the co-defendants as an affirmative defense." The Hill Defendants filed an answer on January 15, 2015, in which they asserted as an affirmative defense the comparative fault of Publix. The Hill Defendants served discovery upon Ms. Scales in January and filed a motion to compel her to respond to the discovery in April 2015. Ms. Scales then filed a notice of voluntary dismissal without prejudice of the Hill Defendants and Publix Super Markets, Inc. The trial court issued an order granting the voluntary dismissal of these defendants without prejudice on May 29, 2015.

         Ms. Scales sought leave to file an amended complaint on August 15, 2016, to "clean things up a little" by clarifying that only one defendant remained in the lawsuit, Publix Tennessee, LLC. The trial court granted Ms. Scales' motion, and Ms. Scales filed her amended complaint on September 26, 2016. Publix filed its answer to the amended complaint on September 30, 2016, and, as before, Publix asserted as an affirmative defense the comparative fault of the Hill Defendants.

         Ms. Scales then filed a second amended complaint on October 5, 2016, in which she named as defendants Publix Tennessee, LLC and the Hill Defendants. Ms. Scales specified in this complaint that the Hill Defendants were "being made parties to this civil action pursuant to Tenn. Code Ann. § 20-1-119" based on allegations Publix made in its answer to her amended complaint asserting the comparative fault of the Hill Defendants. A summons was issued to each of the Hill Defendants on October 5, 2016. Publix and the Hill Defendants filed answers to the second amended complaint. The Hill Defendants then filed a motion to dismiss the second amended complaint in January 2017.

         The basis of the Hill Defendants' motion to dismiss was that Ms. Scales' second amended complaint was barred by the one-year statute of limitations and her failure to satisfy the requirements of Tenn. Code Ann. § 20-1-119. ...


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