Articles Posted in Civil Procedure

Plaintiff’s argument that defendant was equitably estopped from asserting a statute of limitations defense based on vague statements by defendant’s insurance carrier adjuster that a limitations defense would not be raised and that there was no rush in providing releases was rejected.

In Barrett v. Garton, No. M2022-01064-COA-R3-CV (Tenn. Ct. App. Oct. 6, 2023), plaintiff was injured in a car accident with defendant. Plaintiff filed suit within the one-year statute of limitations, but she failed to have service issued at the time of the filing or within one year thereafter. Defendant accordingly moved for summary judgment based on the statute of limitations, which the trial court granted after rejecting plaintiff’s argument that defendant should be equitably estopped from asserting a statute of limitations defense. This ruling was affirmed on appeal.

Tenn. R. Civ. P. 3 states that filing a complaint commences an action, “but if no process is issued upon the filing of the complaint, the plaintiff must issue process within one year from the filing of the complaint to rely on the filing of the complaint to toll the statute of limitations.” It was undisputed that plaintiff had failed to have process issued within a year of filing her complaint, but she argued that defendant should be equitably estopped from asserting a timeliness defense based on statements made by defendant’s insurance carrier.

My other blog, Practical Procedure and Evidence, has an updated post discussing the law of damages for frivolous appeal.  The post includes citations to cases where damages for frivolous appeal appeal have been granted and denied in the last four months.

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Where defendant moved for a directed verdict after the close of plaintiff’s proof but failed to renew the motion at the close of all proof, and did not file a post-trial motion seeking a new trial, defendant waived review of the denial of the motion for directed verdict as well as review of the sufficiency of the evidence.

In Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff purchased a home at auction and later brought this claim against defendant, who marketed and facilitated the auction. Plaintiff alleged that defendant knew the home had mold issues and failed to disclose them, and defendant misrepresented the number of acres sold with the home. In addition to contract claims, plaintiff asserted a claim for reckless misrepresentation.

At the end of plaintiff’s proof, defendant moved for a directed verdict, which the trial court denied. Defendant failed to renew its motion at the close of its own proof, and the jury returned a verdict for plaintiff. Defendant did not file a post-trial motion for a new trial, but appealed asserting that the trial court erred in denying the motion for directed verdict and that the evidence was not sufficient to support the jury’s finding. The Court of Appeals ruled that defendant had waived both of these arguments and affirmed the jury’s verdict.

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Practical Procedure is a blog about, well, practical procedure and evidence issues for trial lawyers.  I have several sources for the issues I discuss on the blog.

First, if I see something in a new Tennessee Court of Appeals or Supreme Court opinion that I think will be helpful to Tennessee lawyers I write up a summary and post it to the blog.

Where plaintiff was in a car accident when she was four years old, and her parents filed a personal injury suit purporting to represent her once she turned 18, the trial court properly granted summary judgment based on the statute of limitations. The parents, who were not attorneys, could not represent plaintiff, and by the time the motion to dismiss had been filed more than one year had passed since plaintiff turned 18, so any claim was time-barred.

In McCall v. United Parcel Service, No. M2022-01112-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff was in a car accident when she was four, and after she turned 18, her mother and father filed this personal injury action on her behalf. Plaintiff did not sign the complaint, and neither parent was an attorney. Defendant filed a motion to dismiss based on the one-year statute of limitations. At the hearing, the mother stated that plaintiff had been on an IEP in school but “had never been adjudicated incompetent or disabled.” The trial court granted dismissal, and the Court of Appeals affirmed.

On appeal, the Court first analyzed whether it would consider certain post-judgment facts submitted by plaintiff. Tenn. R. App. P. 14 provides that “the consideration of post-judgment facts that are ‘unrelated to the merits and not genuinely disputed’ may be ‘necessary to keep the record up to date.’” Post-judgment facts that “could be disputed in the trial court or from which different conclusions could be drawn” should not be considered. (internal citation omitted). The facts presented by plaintiff included a school psychoeducational evaluation, an IEP, a psychologist evaluation, and letters of guardianship and letters of conservatorship dated after the order of dismissal was entered. The Court of Appeals declined to consider any of this evidence, finding that the school evaluation and IEP “existed at the time of the trial court’s ruling” and that the psychologist evaluation and letters were “offered to establish [plaintiff’s] competency, which is a disputed issue in this case,” so did not qualify as being “unrelated to the merits and not genuinely disputed.