Civil Procedure

February 19, 2019

Motion to Set Aside Judgment Must Show a Meritorious Defense

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.

October 29, 2018

White Paper: Attorney – Client Privilege

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

The American College of Trial Lawyers has released its latest white paper on the law of attorney-client privilege.

Titled “Attorney-Client Privilege Update: Current and Recurring Issues,” the 50-page paper was compiled by the College’s Attorney-Client Relationships Committee, led by Joe Arellano of Portland, Oregon. The paper summarizes the law of attorney-client privilege, supporting its conclusions with citations to over 100 court decisions from around the nation.

Here is the Table of Contents:

October 9, 2018

Refusal to Give Requested Jury Instructions Was Not Error

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

Where the trial court refused to give special jury instructions requested by plaintiff in a premises liability case, but the relevant issues were sufficiently covered in instructions that basically mirrored the Tennessee Civil Pattern Jury Instructions, the trial court did not err and the jury verdict for defendant was affirmed.

In Creech v. RMRTN Chatt, LLC, No. W2017-01541-COA-R3-CV (Tenn. Ct. App. Sept. 11, 2018), plaintiff was contracted to do HVAC work on a building owned by defendant when a roof-access ladder he was using detached from the building and fell. Plaintiff brought this premises liability suit, alleging that defendant “failed to properly inspect and maintain its ladder in good condition,” but defendant argued during a jury trial that plaintiff “was familiar with the store and its roof-access ladder,” that it had performed proper inspections of the ladder, and that plaintiff’s actions “were the proximate and legal cause of his injury.” After a six-day trial, the jury returned a verdict for defendant.

October 2, 2018

No Response to Statement of Undisputed Material Facts Results in Loss

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

In a case based on an altercation that occurred while a worker was attempting to recover an unreturned cable modem, defendant cable company filed a motion for summary judgment with supporting proof that the worker was an independent contractor of a separate entity. Because plaintiff failed to respond to defendant’s statement of undisputed material facts, summary judgment was granted and affirmed.

In Mack v. Comcast Corporation, No. W2017-02326-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2018), plaintiff had an unreturned Comcast cable modem at his house, and a worker attempted to retrieve it. During this attempted retrieval, there was an altercation, and the worker was injured. Plaintiff was arrested, his mug shot was published and he lost his job, but the criminal charges were eventually dismissed. Plaintiff brought this case alleging various causes of action against several defendants, including Comcast.

September 28, 2018

No Duty to Help Plaintiff With Service of Process

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

When a sheriff’s deputy delivered service of process to an office employee at a front desk, that employee and clinic had no duty to assist plaintiff in ensuring that process was served in the proper manner.

In Koczera v. Steele, No. E2017-02056-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2018), plaintiff had previously filed an HCLA claim against a Dr. O’Connor. When a sheriff’s deputy arrived at the office to serve Dr. O’Connor, defendant Steele was at the front desk, and the deputy handed her the papers and said they were for Dr. O’Connor. Steele gave the papers to Dr. Pearson, who then gave them to Dr. O’Connor, and upon motion by Dr. O’Connor, he was dismissed from the HCLA suit due to insufficient service of process.

This negligence suit followed, wherein plaintiff alleged that defendants Steele, Dr. Pearson, and the clinic in which they worked were liable for “prevent[ing] the doctor from being served with process in the healthcare liability action.” The trial court granted summary judgment to defendants, finding that no duty existed, and the Court of Appeals affirmed.

September 24, 2018

Court Requires Production of Pre-suit Expert Statement Supporting Certificate of Good Faith

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

When a defendant files a motion “requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith” pursuant to Tenn. Code Ann. Section 29-26-122 of the HCLA, that motion does not have to be raised as part of a motion for summary judgment or motion for discretionary costs.

In Jones v. Hargreaves, No. M2017-01271-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff filed an HCLA complaint accompanied by a certificate of good faith signed by his counsel. Defendant doctor filed a motion for summary judgment, supported by his own affidavit. Plaintiff never responded to the motion for summary judgment, and plaintiff’s counsel moved to withdraw before the hearing. The motion was eventually granted, with plaintiff never filing a response.

After summary judgment, defendant “filed a motion pursuant to section 29-26-122(d)(2) to compel [plaintiff] to produce the expert’s signed written statement relied upon in executing the certificate of good faith filed with the complaint and requesting the court to determine if [plaintiff’s] attorneys complied with [the statute] in executing and filing the certificate of good faith.” Plaintiff’s former counsel responded to this motion, asserting that he did comply with the statute but that he “decided not to pursue the case due to the lack of a permanent injury and the expense of pursuing this matter with lack of significant damages.”

September 21, 2018

Nuisance and Trespass Claims Dismissed

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

Where a pipe could be altered but the expense to do so would be “considerable” and there were no indications that any alterations were intended, a nuisance claim based on the pipe was considered to be a permanent nuisance, meaning that the statute of limitations was three years “from the time of the creation of the nuisance.” In addition, where a trespass claim involved complicated questions regarding water runoff and flow patterns and plaintiffs did not have a competent expert witness to testify as to causation, summary judgment for the defendant was appropriate.

In Ray v. Neff, No. M2016-02217-COA-R3-CV (Tenn. Ct. App. July 20, 2018), plaintiffs filed a claim for nuisance and trespass related to their adjacent neighbors’ installation of a pipe on their property. Plaintiffs claimed that the pipe was first placed in 2008, and that after extensive flooding in 2010, “changes to the pipe…modified the course of a creek” and caused water to flow directly towards their home, causing property damage.

September 20, 2018

Denial of Motion to Revise (Alter or Amend) Reversed

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

Where plaintiffs had attempted to communicate with a second expert and eventually obtained an affidavit from him, the Court of Appeals ruled that the trial court should have granted plaintiffs’ motion to alter or amend.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-COA-R3-CV (Tenn. Ct. App. June 29, 2018), plaintiffs filed an HCLA claim after decedent died shortly after being incarcerated at the Hickman County jail. Decedent was arrested at a traffic stop and found to be in possession of drugs. She “started experiencing symptoms of narcotic withdrawals” and requested medical treatment. She was treated at the jail by Nurse Cloud, was later found unresponsive in her cell, and died the next day. Nurse Cloud was an employee of defendant, and the jail had a contract with defendant for medical care.

Both plaintiffs and defendant filed motions for summary judgment in this case. The trial court ultimately granted defendant’s motion for summary judgment based on plaintiffs’ inability to prove causation. The trial court ruled that the expert relied upon by plaintiff was not competent to give causation testimony under Tennessee law, and that there was thus no genuine issue of material fact. One month after this ruling, plaintiffs submitted a Motion to Revise (which the trial court and Court of Appeals determined was actually a Rule 59 Motion to Alter or Amend), supported by declarations from a new expert witness. The trial court denied the motion, but the Court of Appeals reversed this ruling.