Civil Procedure

March 28, 2018

What Happens When Defendant Dies Before Suit is Filed?

When a potential personal injury defendant dies after an alleged tort, the survival statute will extend the running of the statute of limitations “for a maximum of six months from the date of the death of the tortfeasor or until a personal representative has been appointed.” The fact that a plaintiff may not have actually discovered the death of the potential defendant is not relevant to the tolling of the statute of limitations.

In Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018), plaintiff was injured in a car accident when defendant crossed the center line and struck her vehicle. The accident occurred on February 2, 2015. Defendant died on January 4, 2016, though plaintiff was unaware of this death. Plaintiff filed suit against defendant on February 2, 2016, and service was returned on February 26, 2016 with a note “indicating that [defendant] was deceased.” Plaintiff’s attorney, however, did not read the note at that time. On July 18, 2016, plaintiff called her attorney to check on the case, at which time the attorney saw the note indicating that defendant was deceased. On October 21, 2016, plaintiff petitioned the probate court to appoint an administrator ad litem, and plaintiff filed an amended complaint naming the administrator ad litem on October 31, 2016.

Defendant administrator filed a motion to dismiss, asserting that plaintiff’s complaint was not timely filed. The trial court granted the motion, and the Court of Appeals affirmed.

March 9, 2018

Waiver of Attorney-Client Privilege

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

When a plaintiff asserts the discovery rule as a response to a statute of limitations defense, some documents covered by the attorney-client privilege may become discoverable.

In Outpost Solar, LLC v. Henry, Henry & Underwood, P.C., No. M2016-00297-COA-R9-CV (Tenn. Ct. App. Dec. 29, 2017), “two companies brought suit against their former attorney for legal malpractice.” Defendant attorney moved for summary judgment based on the statute of limitations, and plaintiff “responded that it learned of its cause of action within one year of the assertion of the claim.” Defendant tried to use discovery requests to obtain communications between plaintiff and the new attorney, but plaintiff refused, asserting the attorney-client privilege. Defendant moved to compel production, which the trial court granted, “holding that the client impliedly waived attorney-client privilege in asserting that the client discovered the cause of action within the year preceding the assertion of the claim.”

The trial court appointed a special master “to determine whether any of the 151 documents which [plaintiff] had withheld from production as privileged were relevant to [defendant’s] statute of limitations defense.” The special master found that eight were relevant, and the trial court ordered that those eight documents be produced, noting that “plaintiffs put their privileged information at issue by pleading the discovery rule.” On appeal, the decision and process was affirmed.

March 8, 2018

ACTL White Paper on Attorney-Client Privilege

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

The American College of Trial Lawyers recently released on white paper on attorney-client privilege. The paper updates an earlier publication on the subject.

The paper is an excellent summary of the law in this area, and is especially helpful to those of us in smaller states that have a less established body of law in this field.

March 1, 2018

Rule 60.02 Motion Denied As Untimely

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

A Rule 60.02 motion to set aside the final judgment in a Tennessee wrongful death action was deemed untimely when filed almost twenty months after the order of dismissal.

In Hussey v. Woods, No. W2014-01235-SC-R11-CV (Tenn. Dec. 18, 2017), decedent and Ms. Harris had a long-term relationship but were never married, but Ms. Harris had a child during this time period in 2005. When sued for support by the Mississippi Department of Human Services, decedent “signed an agreement admitting that he was the natural father of the child[.]” In 2008, decedent “died after being detained and handcuffed by the manager of a Family Dollar store in Memphis.” Decedent’s mother, with whom he lived, contacted an attorney about filing a wrongful death suit. This first attorney met with both mother and Ms. Harris in December 2008, and Ms. Harris “signed an agreement retaining [the attorney] to represent Ms. Harris and [decedent’s] minor child in a wrongful death suit against the Family Dollar store.”

In July 2009, the first attorney sent a family representative a letter declining representation. In November 2009, decedent’s mother hired another firm and filed a wrongful death suit as next of kin. This suit settled in March 2010, and a consent order of dismissal with prejudice was entered. Ms. Harris was not told about this suit, but in December 2011 she filed a motion to set aside the judgment under Tennessee Rule of Civil Procedure 60.02 on behalf of the child, after having consulted with a legal aid attorney. In response to the motion, decedent’s mother argued that there were questions regarding the child’s paternity and that attempts to contact Ms. Harris had been unsuccessful.

November 20, 2017

Deadline for Filing Suit Not Extended Due to Temporary Guardianship

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

A temporary order granting a guardianship that had apparently expired by the time of the injury at issue does not meet the standard for proving that an injured party had been “adjudicated incompetent” for the purpose of tolling a statute of limitations.

In Caudill v. Clarksville Health System, GP, No. M2016-02532-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2017), the facts of the matter were not in dispute. Plaintiff and her sister had filed an “emergency petition for the appointment of a guardian for their father” in an Oklahoma court based on the father’s “dementia and mental illness.” On August 27, 2013, that petition was granted and an emergency order was entered finding that “irreparable harm would be done to Decedent if the petition were not granted.” The order was set for review on September 25, 2013, and on October 2, 2013, plaintiff and her sister appeared before the court. The minutes of that hearing indicate that “the emergency guardianship will remain in full force and effect until further orders of the court…,” but no order was ever entered after this hearing.

After these hearings, the father moved to Tennessee, where he was admitted to defendant hospital on March 19, 2014. He was discharged on March 24^th, and plaintiff alleged that he suffered sores and ulcers while in the hospital that eventually led to his death on May 24, 2014.

September 26, 2017

Default Judgment in Injury Case Requires Hearing on Damages

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

After obtaining a default judgment on claims for conversion and malicious prosecution, a plaintiff must “prove the extent of her claimed damages,” and defendant should be given “an opportunity to rebut her evidence or present evidence of his own on the question of damages for those claims before entering a final judgment.”

In Husk v. Thompson, No. M2016-01481-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), plaintiff and defendant had lived together before a contentious separation. Plaintiff was charged with domestic assault and ordered not to return to the shared apartment. Plaintiff continued paying her half of the rent for three months even though she was not living there. When defendant failed to pay his portion of the rent due for the apartment two months in a row, plaintiff paid the full amount. Further, there were issues regarding personal property.

Plaintiff filed this suit for conversion, unjust enrichment, and malicious prosecution. Defendant received notice of the suit and was then served at the sheriff’s office, but he did not file an answer. Plaintiff moved for a default judgment, and when defendant did not show up to the hearing, the default judgment was entered. On the day of the default judgment hearing, the trial court entered an order granting plaintiff $15,577.16 in damages.

Defendant appealed both the entry of default judgment and the damages awarded. The Court of Appeals first affirmed the entry of default judgment, noting that defendant “asserted that he failed to file a timely response because he ‘believed no action would be taken in the civil case’ until the criminal cases involving [plaintiff] were resolved.” The Court found that this argument was “equivalent to a claim of ignorance of the law,” and that “ignorance of the law is not excusable neglect or a proper ground for relief” from a default judgment. (internal citation and quotation omitted). In addition, the Court rejected defendant’s assertion that the judgment should be set aside because he did not receive notice of the motion for default. The Court noted that this was really a credibility issues, and that the trial court had decided against defendant. The Court further noted that “the fact that [defendant] received both the complaint and a copy of the default judgment calls into question the veracity of his claim that he did not receive the motion for default judgment.”

September 11, 2017

Tennessee Court Explains Duty to Supplement Discovery and Expert Testimony

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

A party’s failure to supplement its discovery responses or deposition testimony can result in a jury verdict for that party being vacated. For businesses, this duty to supplement may include the testimony of its employees.

In Collier v. Roussis, No. E2016-01591-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2017), a minor filed suit through his parents for birth injuries “allegedly suffered by plaintiff when his mother had an allergic reaction during labor.” The named defendants were the doctor treating the mother and the hospital where plaintiff was born. Much of the relevant testimony surrounded how and how often plaintiff’s mother’s blood pressure was being monitored, with the medical chart showing two blood pressure readings by a fetal monitor and one by defendant doctor. The trial court directed a verdict for defendants on one issue, and the jury returned a verdict that neither the doctor nor “the nurses employed by the Hospital were” negligent. Plaintiff appealed, citing multiple issues for review.

First, on an issue that ended up being dispositive of the appeal, plaintiff argued that “the trial court erred in allowing previously undisclosed testimony from the nurses, testimony which was inconsistent with the nurses’ earlier deposition testimony.” During their depositions, two nurses who worked for the hospital and treated plaintiff’s mother testified that they had no independent recollection beyond what was in the medical record. Mother’s file only indicated that her blood pressure was recorded three times during the relevant period. At trial, however, both of these nurses testified that counsel for the hospital had shown them pictures that plaintiff’s family took in the hospital room, and that those pictures had caused them to remember additional facts. Specifically, they both testified that the mother’s blood pressure was being monitored by a special machine. One stated that because the machine was in use the mother “was not hypotensive, or we would have treated that,” and another stated the nurses “were continuously glancing over at that…monitor to see what her blood pressure was.” Over plaintiff’s objection, the trial court allowed the new testimony, but the Court of Appeals ruled that this was error and the judgment should be vacated.

July 31, 2017

Serving Rule 11 Motion on Opposing Counsel Not Considered “Process” for Abuse of Process Claim

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

In Montpelier v. Moncier, No. E2016-00246-COA-R3-CV (Tenn. Ct. App. June 1, 2017), the Tennessee Court of Appeals affirmed dismissal of an abuse of process claim.

The background of this case was fairly unique, as it involved attorneys suing another attorney due to defendant attorney’s actions in an underlying case. Plaintiff attorneys had removed the underlying case to federal court and filed a notice of removal with the state court. Within 24 hours after the notice of removal was filed, defendant attorney served a Rule 11 motion on plaintiffs in the state court case. The Rule 11 motion, however, was never filed with the court, but only served on plaintiffs.*

Plaintiffs filed this abuse of process claim based on the Rule 11 motion served by defendant. Plaintiffs asserted that defendant was using Rule 11 improperly to attempt to fee-shift and that he committed an “intentional abuse of process” by refusing “to file the Rule 11 motions until he first determines how the underlying ‘offending’ pleading is decided.” Plaintiffs argued that defendant used his Rule 11 motion as an “open-ended threat of obtaining money from his adversaries and their attorneys unless they withdrew facts and claims,” and that he “primarily sought to increase the burden and expense of litigation[.]” Further, plaintiffs argued that the proper place for defendant to have filed this particular Rule 11 motion was federal court, but that defendant could not comply with the proper filing because he was disbarred from the federal court.

July 12, 2017

Jury Verdict For Defendant Affirmed in Brentwood Car Wreck Case

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

In Higgs v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017), the Court of Appeals affirmed a jury verdict for defendant in a car accident case.

Plaintiff and defendant were involved in a two-car accident in Brentwood. “The accident occurred as Defendant was making a left-hand turn across Plaintiff’s lane of traffic to enter a gas station when the front of Plaintiff’s vehicle collided with the rear quadrant of the passenger’s side of Defendant’s vehicle.” Plaintiff alleged in her complaint that the accident was due to defendant’s failure to yield, failure to keep a proper lookout, failure to keep his car under control, and turning without making sure it was safe to do so. Further, plaintiff cited four statutes that she alleged defendant violated, asserting that defendant had thus committed negligence per se.

The jury returned a verdict finding plaintiff 75% at fault and defendant 25% at fault, and judgment was thus entered for defendant. Plaintiff moved for a new trial, which the trial court denied, and this appeal followed. On appeal, plaintiff presented two issues, one dealing with the exclusion of certain testimony from a police officer and one dealing with potential juror misconduct.

During the trial, but while the jury was not present, the investigating officer who plaintiff planned to call as a witness was questioned. The officer testified that “he had no independent recollection of the accident other than what was written in his police report and the police report did not indicate that Defendant had crossed a double-yellow line when he made his left turn to cross Plaintiff’s lane of traffic.” The officer further testified that defendant was not issued a citation after the accident. Despite these admissions, the officer stated that he was familiar with the area and that “there was a double-yellow line” where the accident occurred, that the double-yellow line would indicate “a continuation of a median,” and that it was illegal to turn across a median.

July 11, 2017

Forum Non Conveniens in Tennessee Personal Injury Cases

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

In J. Alexander’s Holdings, LLC v. Republic Services, Inc., No. M2016-01526-COA-R3-CV (Tenn. Ct. App. May 12, 2017), the Court of Appeals affirmed dismissal based on the ground of forum non conveniens.

Plaintiff restaurant had contracted with defendant for waste removal at some of its locations. The incident from which this case arose happened at a restaurant in Livonia, Michigan, where “in the process of retrieving the dumpster” at plaintiff’s restaurant location a driver for defendant allegedly hit the restaurant and caused damage. Total damages? $13,800 (plus attorneys’ fees and costs).

Plaintiff filed its complaint in the Davidson County General Sessions Court in Tennessee for breach of contract and negligence. Defendant moved for dismissal based on improper venue, which the sessions court granted. Plaintiff appealed to the circuit court, where the case was eventually dismissed based on improper venue and forum non conveniens. This appeal followed.