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§42.1 Applicability to Counterclaims and Crossclaims

The Case: Federal Deposit Insurance Corp. v. Hooper , 700 F. Supp. 915 (M.D. Tenn. 1988).

The Basic Facts: Third party defendant moved to dismiss on ground that claim was time barred by statute of limitations.

The Bottom Line:

  • "The parties agree that the three year limitations period of Tennessee Code Annotated § 28-3-105 applies to the Hoopers' claims against Anderson. The parties also agree, for purposes of this motion only, that the Hoopers' claims accrued no later than December, 1983. The Hoopers' action against Anderson therefore would be barred but for the intervention of Tennessee Code Annotated § 28-1-114(a)." 700 F.Supp at 916
  • "Section 28-1-114 provides:
    28-1-114. Counterclaim or Third party complaint. - (a) A counterclaim or third party complaint or cross-claim is not barred by the applicable statute of limitations or any statutory limitation of time, however characterized, if it was not barred at the time the claims asserted in the complaint were interposed.

    (b) If a nonsuit is taken as to the original civil action, any counterclaim, cross-claim or third party complaint arising from such action shall not be terminated but may proceed as an original civil action. However, if a counterclaim, cross-claim or third party complaint is filed as a civil action as permitted by this subsection and such action does not proceed to an adjudication on the merits of such claim, the defendant shall have the right to file a counterclaim, cross-claim or third party complaint within the time allowed for the filing of a responsive pleading only if the original action is reinstituted pursuant to § 28-1-105.

    (c) Any counterclaim, cross-claim, or third party complaint arising from an action or suit originally commenced in general sessions court and subsequently recommenced as an original action or as a counterclaim, cross-claim or third party complaint pursuant to this section in circuit or chancery court according to the provisions of § 28-1-105, shall not be subject to the monetary jurisdictional limit originally imposed in general sessions court."
    Id.
  • "The Hoopers contend that § 28-1-114(a) preserved their claims against Anderson because the FDIC initiated this suit in federal court within three years of December, 1983. Anderson argues that the legislative history and statutory context of § 28-1-114(a) demonstrate that the Tennessee Legislature did not intend for it to produce the result the Hoopers seek." Id.
  • "The Tennessee General Assembly originally passed § 28-1-114(a) in 1978 as part of Senate Bill No. 1699. See 1978 Tenn. Pub.Acts (Adj.S.), ch. 758, § 1. Before then a defendant would be barred from bringing a counterclaim or third-party claim when the statute of limitations on her claim expired before she could respond to the original complaint. See, e.g., Brown v. Hipshire, 553 S.W.2d 570 (Tenn.1977) . Representative Bussard, who sponsored Senate Bill No. 1699 in the House, indicated that the bill would remedy this problem.
    REPRESENTATIVE BUSSARD: Mr. Speaker and Members of the House, this bill just allows that if a suit is filed on the last day of the statute of limitations, 917 a tort case or otherwise, it allows the person who is sued to bring any counterclaim that's involved in that same matter and it doesn't allow the statute of limitations to bar the counterclaim.

    REPRESENTATIVE ASHFORD: Representative Bussard, how long does a person have to file this third-party counterclaim after the statute has run on the original claim?

    REPRESENTATIVE BUSSARD: Representative Ashford, within the time allowed for a responsive pleading, which would be thirty days.

    House Tape H-98, Mar. 3, 1978 (on file in the Tennessee State Library and Archives)."
    Id. at 916-17.
  • "Anderson cites this exchange and asserts that § 28-1-114(a) extended the statute of limitations on the Hoopers' third-party complaint no farther than the deadline for a responsive pleading." Id. at 917.
  • "Anderson's argument contradicts the unambiguous language of the statute. Section 28-1-114(a) provides simply that a third-party complaint to which it applies 'is not barred.' Section 28-1-114(a) does not set a deadline before which the complaint must be filed. The comments of Representative Bussard meanwhile were made in regard to Senate Bill No. 1699 in its entirety. This bill contained the predecessor to § 28-1-114(b) as well as to § 28-1-114(a). Section 28-1-114(b) does expressly preserve only those claims asserted 'within the time allowed for the filing of a responsive pleading.' Representative Bussard's statements therefore are ambiguous. But the language of § 28-1-114(a) is not. This Court will not read into § 28-1-114(a) a limitation that is not there. Cf. Golden v. Bekins Van Lines, Co., slip op. (Tenn.Ct. App. May 18, 1984) (LEXIS, States library, Tenn. file) (because limitations period on counterclaim had not expired when original complaint was filed, counterclaim filed three months after original complaint not barred under § 28-1-114(a))." Id.
  • "Anderson asserts that this Court's holding eliminates any check against bringing stale third-party claims. Section 28-1-114(a) does not apply, however, unless the third-party complaint 'was not barred at the time the claims asserted in the complaint were interposed.' And a third-party plaintiff must obtain leave of court to serve a third-party complaint not filed within ten days after serving the original answer. See Fed. R. Civ. P. 14(a); Tenn. R. Civ. P. 14.01. The Hoopers obtained leave to file their complaint against Anderson and the other third-party defendants. See FDIC v. Hooper, No. 3-86-0785 (M.D.Tenn. Feb. 27, 1987) (agreed order granting leave to file third-party complaints)." Id.
  • "Third-party defendant Anderson's motion for summary judgment is denied. Anderson seeks to graft onto § 28-1-114(a) a limitation that the Tennessee Legislature imposed on § 28-1-114(b) only. This Court will not second-guess the decision of the Tennessee Legislature. And, at least until a Tennessee court holds otherwise, this Court will assume that the Legislature meant what it said." Id.

Recent Cases: 

Moorhead v. Allman, No. M2009-01822-COA-R3-CV, 2011 WL 676017 (Tenn. Ct. App. Feb. 24, 2011) (a cross-claim is not barred under any statute of limitations if it was timely at the time the complaint against the defendant/counter-plaintiff was filed).

Daniels v. Wray , No. M2008-01781-COA-R3-CV, 2009 WL 1438247 (Tenn. Ct. App. May 21, 2009) (reversing trial court's denial of defendant's motion to amend to include counterclaim for personal injuries finding decision was based on trial court's determination that statute of limitations had run, that the statute of limitations is not a factor in considering whether to allow amendments, and recognizing that Tenn. Code Ann. § 28-1-114 permits counterclaims outside of statute of limitations where original complaint was timely filed); Cross v. McCurry, 859 S.W.2d 349 (Tenn. Ct. App. 1993), perm. appeal denied, (Aug. 2, 1993) (applying Tenn. Code Ann. § 28-1-114 finding counterclaim and crossclaim not barred where asserted outside of the applicable statute of limitations).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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