Civil Procedure

August 5, 2019

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

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.”

April 17, 2019

Rule 59.04 Motion Does Not to Save Medical Malpractice Case

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

A nurse who worked in an administrative capacity in the year preceding an incident underlying an HCLA claim may not be qualified to give expert testimony in the case. A Rule 59.04 motion did not cure the deficiency in the initial affidavit.

In Smith v. Methodist Hospitals of Memphis, No. W2018-00435-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2019), plaintiff filed an HCLA suit alleging that defendant hospital failed to provide him proper postsurgical care, necessitating a subsequent hospitalization and surgery. This case was originally filed in 1999 and had already been through one round of appeals, but the issue in this opinion was whether the trial court rightly granted summary judgment on the basis that neither of plaintiff’s identified expert witnesses were competent to testify, and then properly denied a motion to alter or amend the judgment.

March 14, 2019

Motion to Amend Must Be Considered Before Hearing Motion to Dismiss

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

Before granting a motion to dismiss, a trial court should fully consider a pending motion to amend the complaint.

In Grose v. Kustoff, No. W2017-01984-COA-R3-CV (Tenn. Ct. App. Jan. 17, 2019), plaintiffs filed a pro se legal malpractice claim against defendant attorney. Instead of filing an answer, defendant filed a motion to dismiss based on the statute of limitations. Plaintiffs followed by filing a motion to amend their complaint, and they attached their proposed amended complaint to the motion. The trial court granted defendant’s motion to dismiss, ruling that the claim was time-barred, but never specifically addressed the motion to amend in its ruling. Plaintiff appealed, and the Court of Appeals vacated the judgment.

The Court began by noting that because defendant had not filed a responsive pleading, plaintiffs were entitled to amend their complaint once as a matter of course without leave of the court pursuant to Tenn. R. Civ. P. 15.01. Because plaintiffs chose to file a motion to amend rather than simply filing their amended complaint, however, they could not rely on Rule 15.01 and did need leave of court to amend. In Tennessee, “even where leave of court is necessary to the filing of an amended pleading, the trial court must properly consider the motion pursuant to the liberal policy outlined by Rule 15.01.” (internal citation omitted).

March 1, 2019

No Evidence From Plaintiffs Leads to Summary Judgment for Defendant

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

Where a child was injured at school but her parents had no evidence that the school had breached a duty of care or that an action by a school employee caused the injury, summary judgment was affirmed.

In Webster v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2018-00106-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2019), plaintiffs were the parents of a six-year-old girl with autism. While at kindergarten, the girl injured her arm, and plaintiffs brought a negligence suit under the GTLA. Plaintiffs amended their complaint more than once, and each version alleged that the injury was caused by a lack of appropriate care in the classroom. More than two years after filing suit and “after all discovery had been completed,” plaintiffs filed a motion to amend their complaint again, this time seeking to add “allegations that [the child’s] injuries occurred on the playground and that Metro was negligent in allowing her on the playground and in failing to provide appropriate supervision.” The trial court denied the motion to amend and then granted defendant’s motion for summary judgment, finding that plaintiffs could not “demonstrate that an employee of the Metropolitan Government breached a duty of care owed to plaintiffs,” and that “plaintiffs failed to prove cause in fact or proximate cause.” The Court of Appeals affirmed.

February 25, 2019

Expert Required to Establish Case Against Water Distributor

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

The Court of Appeals recently held that “expert testimony is required to establish a water distributor’s applicable duty of care and breach of the same[.]”

In Tolliver v. Tellico Village Property Owners Assoc., Inc., No. E2018-00090-COA-R3-CV (Tenn. Ct. App. Jan. 7, 2019), plaintiffs were property owners whose house was damaged when a water pipeline broke. At the time of the damage a renter was living in the home, and the renter initiated this action, with plaintiff property owners joining later and asserting claims for negligence and breach of contract. Plaintiffs alleged that defendant homeowners association was negligent for “failing to properly maintain the water pipeline.” The renter consented to a judgment for defendants on his claims, leaving only the property owners as plaintiffs.

February 19, 2019

Motion to Set Aside Judgment Must Show a Meritorious Defense

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

When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.

In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.

February 18, 2019

Circuit Court Could Not Appoint Representative for Deceased Defendant

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

When an alleged tortfeasor in a car accident case died before suit was brought, and plaintiffs failed to have an administrator properly named before the statute of limitations on their claim expired, dismissal of the case as a whole was affirmed, including dismissal in favor of plaintiffs’ uninsured motorist insurance carrier.

In Owens v. Muenzel, No. E2018-00199-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2018), plaintiffs were involved in a car accident with another driver on May 11, 2015, and the other driver died on November 14, 2015. Plaintiffs were not aware of his death and filed a personal injury suit against him on March 30, 2016 in circuit court. The summons to the driver was returned with a notation stating that he was deceased. On April 12, 2016, plaintiffs served their uninsured motorist (UM) carrier in the action, who answered by asserting that plaintiffs had not complied with the conditions of their insurance policy.

The deceased driver did not have a personal representative (and no estate was ever opened for him), so plaintiffs petitioned the trial court to appoint an administrator ad litem pursuant to Tenn. Code Ann. § 30-1-109, which the court did. Later, in July 2017, the UM carrier moved for summary judgment on the basis that “(1) it could not be held liable as [plaintiffs’] [UM] carrier because [plaintiffs] failed to properly and timely bring an action against and serve with process either Deceased’s personal representative or properly appointed administrator ad litem prior to the running of the applicable statute of limitations and that (2) the order entered by the trial court appointing [an] administrator ad litem was void due to the circuit court lacking subject matter jurisdiction.” The circuit court ultimately agreed with both of these arguments, granting summary judgment to defendants, and the Court of Appeals affirmed.

January 15, 2019

Affirmative Defenses Not Waived By One-Day Delay of Answer

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

Where a defendant filed his answer to a legal malpractice claim thirty-one days after being served with process and amended his originally insufficient answer, the Court of Appeals ruled that he did not waive his affirmative defenses.

In Allen v. Ozment, No. W2017-00887-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2018), plaintiff filed a legal malpractice claim against defendant. The complaint was filed more than one year after the previous legal representation ended, and defendant was served a year and a half after the complaint was filed. Defendant filed an answer thirty-one days after being served, wherein he raised the affirmative defenses of insufficient service of process, insufficient process, and failure to state a claim. These affirmative defenses were not stated with the requisite specificity, but the trial court allowed defendant to file an amended answer with more specific affirmative defenses. Defendant filed a motion to dismiss, supported by a memorandum, and the trial court dismissed the claim as time-barred. Plaintiff appealed the dismissal, arguing that defendant had waived his affirmative defenses, but the Court of Appeals affirmed.