Civil Procedure

December 20, 2019

Motion for Substitution Needed After Death of Plaintiff

Where a plaintiff filed a Tennessee health care liability (medical malpractice) action and died of unrelated causes while the suit was pending, the cause of action did not automatically pass to his wife. Instead, the suit was “eligible to be revived” and a motion for substitution of party should have been filed within 90 days of the filing of the suggestion of death pursuant to Rule 25.01.

In Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019), plaintiff filed a medical malpractice suit against defendants, and his wife was a co-plaintiff asserting loss of consortium claims. While the suit was pending, plaintiff died from causes unrelated to the alleged malpractice. In March 2014, plaintiffs’ counsel filed a notice of death in the HCLA suit, and an estate was opened for decedent in May 2014. In October 2014 defense counsel sent plaintiff a letter stating that “a suggestion of death and a new plaintiff” were needed, but plaintiff responded by sending a copy of the notice of death previously filed.

In June and July 2015, defendants filed motions to dismiss based on plaintiffs’ “failure to timely substitute a proper party for [decedent].” The trial court denied the motion, ruling that the cause of action automatically passed to the wife, and that since she was already a plaintiff, there was no need to do a party substitution. The Court of Appeals reversed this decision.

December 16, 2019

Car Accident Suit Against Deceased Defendant Dismissed as Untimely

by The Law Offices of John Day, P.C.

Where a tortfeasor died before suit was filed and “no personal representive was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action,” dismissal of the Tennessee personal injury suit was affirmed.

In Khah v. Capley, No. M2018-02189-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2019), plaintiff was injured in a car accident allegedly caused by defendant on May 12, 2016. Defendant died 18 days after the accident, but on May 11, 2017, plaintiff filed this suit in the general sessions court, being unaware of defendant’s death. The sheriff’s office returned the civil warrant with a note saying “per Father, Jonathan Capley is deceased as of last year.” In March 2018, plaintiff had an alias warrant issued, which was returned noting that defendant was “deceased as of last May 2016.”

November 20, 2019

Utilities Commission Had No Jurisdiction Over Negligence Suit

by The Law Offices of John Day, P.C.

When a plaintiff brought a negligence action against two public utility companies for damages allegedly done to her real property when the gas was turned off and waters pipes subsequently froze and burst, the trial court erred by holding that the Tennessee Public Utility Commission (TPUC) had exclusive jurisdiction of the claim. In Jetter v. Piedmont Natural Gas Company, Inc., No. M2019-00206-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2019), plaintiff owned an unoccupied residence which was “damaged when frozen water pipes ruptured during the winter after gas service to the property was terminated.” Plaintiff filed this negligence suit, alleging that defendant public utility companies failed to provide her with proper notice of their actions and failed to “take proper steps to reconnect the service.” In her complaint, plaintiff cited certain TPUC rules that were allegedly violated by defendants.

Defendants filed a motion to dismiss, arguing that the TPUC “had exclusive and original jurisdiction over the claims at issue.” According to defendants, the TPUC rules cited by plaintiff in her complaint could only be enforced by the TPUC. Defendants also argued that the administrative remedy set up by the TPUC rules was not exhausted by plaintiff before she filed this suit.

The trial court agreed with defendant and dismissed the case, but the Court of Appeals reversed. Continue reading

October 5, 2019

Tennessee Supreme Court Overturns Application of Judicial Estoppel

by The Law Offices of John Day, P.C.

Where a plaintiff had previously signed a marital dissolution agreement that stated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”

September 27, 2019

Plaintiff’s Damages Not Limited By Amount Specified in Complaint

by The Law Offices of John Day, P.C.

Where 23 months had passed between the filing of the complaint and the conversion of a truck, and where plaintiff sought “such other relief as he may be entitled to” in his ad damnum clause, the trial court did not err by awarding him a sum much larger than the amount specified in his complaint.

In Parker v. Clayton, No. M2017-02556-COA-R3-CV (Tenn. Ct. App. Sept. 10, 2019), plaintiff filed a conversion claim related to his former friend taking possession of his truck. According to plaintiff, he and defendant had been friends for many years. When plaintiff was preparing to have surgery, he had to take time away from his work as a commercial truck driver. Around this time, defendant asked plaintiff for help getting his CDL. Plaintiff believed defendant already had some knowledge about operating a truck, so he offered to have defendant essentially work under him for a period of time with plaintiff’s former trucking employer, and plaintiff and defendant would split the profits made. To facilitate this arrangement, however, plaintiff had to add defendant’s name to his truck’s title. The title was changed to reflect both plaintiff and defendant as owners, and the transfer was noted as a gift by the clerk. According to plaintiff, the truck was to be titled back to plaintiff alone once defendant obtained his CDL. Plaintiff and defendant also opened a joint account in which money from their employer could be deposited and divided. Sometime during this time period, plaintiff took his RV to defendant’s property and began living there with defendant’s permission.

September 26, 2019

Tennessee Court Offers Insight on Judicial Estoppel

by The Law Offices of John Day, P.C.

Where a plaintiff had previously signed a marital dissolution agreement that sated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”

September 9, 2019

No Motion for New Trial? Issues Waived.

by The Law Offices of John Day, P.C.

Where plaintiffs failed to file any post-trial motions, most of the issues they tried to raise on appeal were waived.

In Smith v. Benihana National Corp., No. W2018-00992-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2019), plaintiffs filed suit on behalf of decedent’s family members after decedent died while dining at a Benihana restaurant. Plaintiffs essentially alleged that defendant knew that decedent was allergic to seafood, and that they were negligent in preparing his food and allowing seafood particles to be present and/or in allowing him to inhale seafood particles through steam at the restaurant.

This case had a long procedural history, but it was finally tried in front of a jury who returned a verdict for defendant, finding that the restaurant was not liable for decedent’s death. Plaintiffs did not file any post-trial motions, but did appeal the case.

August 5, 2019

No Continuance for HCLA Plaintiff Who Did Not Have Expert Affidavit After Eight Months

by The Law Offices of John Day, P.C.

Where plaintiff’s expert witness in an HCLA case unexpectedly decided to no longer provide testimony soon before plaintiff’s response to a motion for summary judgment was due, and plaintiff sought to continue the motion and hold a hearing on possible witness tampering, the trial court erred by granting summary judgment to some defendants. For defendants not affected by the allegedly tampered-with witness, however, summary judgment was affirmed due to the plaintiff’s failure to obtain an expert affidavit in the eight months the case was pending.

In Stubblefield v. Morristown-Hamblen Hospital Association, No. E2017-00994-COA-R3-CV (Tenn. Ct. App. June 11, 2019), plaintiff filed an HCLA claim related to allegedly negligent post-operative care after a cardiac catheterization. Plaintiff named as defendants the hospital, the nurse who treated her overnight after her surgery, a physician group, and the physician who was first paged when a complication was discovered and who ordered treatment for plaintiff without actually going to the hospital to see her.

June 24, 2019

Sanctions Affirmed in Tennessee Slander Case

by The Law Offices of John Day, P.C.

Where a plaintiff continued to pursue a defamation case even after depositions revealed that the allegedly defamatory statements were only made to two of plaintiffs’ friends and the statements did not change their opinion of plaintiff, Rule 11 sanctions against plaintiff were affirmed.

In McMillin v. Realty Executives Associates, Inc., No. E2018-00769-COA-R3-CV (Tenn. Ct. App. April 12, 2019), plaintiff asked two of his friends to contact a realtor and set up a showing of a home that was part of plaintiff’s mother’s estate. During the showing, the realtor stated that utilities had been turned off due to plaintiff removing money from the estate, that the potential buyers might not want to become involved with plaintiff because he had sued several people, that the house had plumbing issues, and that plaintiff had replaced expensive appliances with cheaper ones. Based on these statements, plaintiff brought this pro se defamation suit.

April 24, 2019

Claims Commissioner Must Make Conclusions of Law For Each Theory of Negligence

by The Law Offices of John Day, P.C.

Where the Claims Commissioner’s ruling for defendant on a negligence suit did not include conclusions of law regarding both of plaintiffs’ theories, the order of dismissal was deemed deficient and was vacated by the Court of Appeals.

In Kim v. State, No. W2018-00762-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2019), plaintiffs filed a negligence claim after their six-year-old son fell from a fifth-floor balcony at a state-owned hotel. Plaintiffs were guests of the hotel as part of a church group, and while checking out, the son became separated from his parents. The son went upstairs to the room that plaintiffs had been staying in, and despite having already been cleaned, the door to the room was ajar. The son entered the room, went onto the balcony, climbed on top of the railing, and ultimately fell, sustaining major injuries. Testimony at trial established that it was both hotel and industry policy for a housekeeper to ensure that the door to a hotel room was locked after it had been cleaned, and it was undisputed that the son could not have gained access to the room if it had been locked. It was further established that the housekeeper who cleaned this particular room “had previously been reprimanded for neglecting to secure a room after cleaning it.”