Articles Posted in Civil Procedure

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.

Where a premises liability defendant failed to file an answer and first participated in the case seven years after it was commenced, denial of his motion to set aside the default judgment was affirmed.

In Crutcher v. Ellis, No. M2023-00283-COA-R3-CV (Tenn. Ct. App. June 4, 2024), plaintiff was shot at point-blank range in a nightclub. Plaintiff filed this premises liability case against several defendants in 2015, but the only defendant at issue in this appeal was the owner and operator of the nightclub.

Defendant failed to respond to the complaint, and plaintiff obtained a default judgment. Defendant made no appearance whatsoever in the case until February 2022, when he appeared at the hearing on plaintiff’s motion to set a date to determine damages. The damages hearing was set for August 2, 2022. Defendant filed a motion for continuance the day before that hearing, which was denied.

Plaintiffs’ claim for tortious interference with a business relationship based on an email written by defendant abated upon defendant’s death.

In Stockdale v. Helper, No. M2022-00846-COA-R3-CV (Tenn. Ct. App. May 8, 2024), plaintiffs worked as employees of a police department. After a department investigation, defendant District Attorney wrote an email to the city manager stating that she would not be able to prosecute cases based solely on investigations done by plaintiffs. Based on this email, the city manager terminated plaintiffs.

After filing a federal suit in which the federal court declined to exercise jurisdiction over the state claims, plaintiffs filed this case. Plaintiffs asserted claims for (1) tortious interference with a business relationship and prospective business relationships and (2) official oppression under a negligence per se theory. The trial court dismissed the claims, ruling that defendant was entitled to absolute immunity and qualified immunity. Plaintiffs filed an appeal, and defendant died while the appeal was pending. Defendant’s personal representative was substituted into the case, and the personal representative argued that the claims abated upon defendant’s death.

When a process server gave the HCLA summons and complaint to a hospital employee, insufficient service resulted in dismissal of the case.

In Roberts v. Hinkle, No. W2022-01714-COA-R3-CV (Tenn. Ct. App. April 9, 2024), plaintiff filed an HCLA suit against defendant doctor related to an allegedly negligent surgery. Defendant raised the affirmative defense of insufficient service of process in his answer. Later, he filed a motion to dismiss based on insufficient service of process and the statute of limitations. The trial court granted the motion, dismissing the case, and the Court of Appeals affirmed.

Tennessee Rule of Civil Procedure 4.04 lays out the proper process for service of a lawsuit in Tennessee. “Although personal service of process is the preferred method of service upon an individual defendant, service may also be had upon an agent authorized by appointment or by law to receive service on behalf of the defendant.” (internal citation and quotation omitted).

Where defendant in a negligence and premises liability case filed a motion for summary judgment just three days after filing her answer, and the trial court denied plaintiff’s motion for additional time to conduct discovery and granted summary judgment to defendant, that ruling was vacated on appeal.

In Graves v. Calloway, No. W2022-01536-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2023), plaintiff filed a negligence and premises liability claim against two defendants, including defendant homeowner, after he was injured when he fell off a ladder while accessing defendant’s attic to help her install squirrel traps. Defendant homeowner filed her answer, then filed a motion for summary judgment just three days later. Plaintiff filed a motion requesting more time to conduct discovery pursuant to Tennessee Rule of Civil Procedure 56.07, as well as a motion to amend. The trial court ultimately denied the motion for more time and granted summary judgment to defendant homeowner, but this ruling was vacated on appeal.

In its opinion, the Court of Appeals noted that the “Tennessee Supreme Court has held that after adequate time for discovery has been provided, summary judgment should be granted if the nonmoving party’s evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial.” (internal citation and quotation omitted). Rule 56.07 provides that a party opposing summary judgment can request more time in which to conduct discovery, and plaintiff in this case followed the mechanism set out by the Rule. Plaintiff’s counsel submitted an affidavit stating that he had had no opportunity to conduct discovery, and that he had written defendant’s attorney requesting dates for depositions, but the request had been denied.

Where defendants filed a motion to dismiss under the TPPA and plaintiff thereafter filed a voluntary dismissal of one of the defendants, but the trial court denied the voluntary dismissal, defendants did not have the right to automatically appeal the voluntary dismissal denial under the TPPA, as the TPPA petition was still pending.

In Kent v. Global Vision Baptist, Inc., No. M2023-00267-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2023), plaintiffs filed suit against defendant church and pastor for nuisance, trespass, and violation of local ordinances. The suit largely related to the church’s use of a tent as a structure. Defendants filed a petition to dismiss the complaint under the Tennessee Public Participation Act (“TPPA”). Thereafter, plaintiffs attempted to voluntarily dismiss the pastor without prejudice. At a hearing regarding the dismissal, the trial court denied the voluntary dismissal, and defendants argued that plaintiffs could only dismiss the pastor with prejudice. During the hearing, plaintiffs’ counsel allegedly orally agreed to a dismissal with prejudice, but then repudiated that agreement. Ultimately, the trial court denied dismissal of the pastor with or without prejudice.

Defendants filed this appeal under Tenn. Code Ann. § 20-17-106, a provision of the TPPA which “allows a party to immediately appeal a court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under the TPPA.” Plaintiffs argued that the Court of Appeals did not have jurisdiction under this statute, and the Court agreed.

My other blog is Practical Procedure and Evidence.  This is where I share new case law and practical tips on using the rules of procedure and evidence in your Tennessee law practice.

By way of example, today’s post addresses the issue of whether a plaintiff who is facing a motion to amend may amend his, her or its complaint without filing a motion to amend.  The answer is “yes,” so long as the plaintiff has not previously amended the complaint and no answer has been filed.  The post includes citations to the relevant case law.

There are 100 other posts similar to this one – posts the advise (or remind) you on a given issue of procedure or evidence and give you citations to the relevant case law.   Each post gives you a real head start on researching evidence and procedure issues.