Dana Counts v. Jennifer Lynn Bryan, et al.

Defendants appeal the denial of a Tenn. R. Civ. P. 50 motion for directed verdict. This is Plaintiff's second action against Defendants to recover damages resulting from a personal injury accident. The first action was timely filed and voluntarily dismissed. This action, which is a separate, subsequent action, was commenced within one year of the voluntary dismissal; however, Plaintiff did not plead sufficient facts in the complaint to establish the timeliness of the commencement of the new action. Defendants affirmatively pled the statute of limitations defense in their answer; however, Plaintiff did not amend the complaint nor introduce evidence at trial to address the statute of limitations issue. Defendants put the affirmative defense at issue during closing arguments. The trial court took the motion under advisement, the trial proceeded and the jury returned a verdict in favor of Plaintiff. Thereafter, the trial court elected to take judicial notice of facts appearing in the record in the first action, the date the first action was commenced and the date of the voluntary dismissal, determined the second action was timely filed and denied Defendants' motion. We affirm.