Civil Procedure

September 27, 2019

Plaintiff’s Damages Not Limited By Amount Specified in Complaint

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.”

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.