Articles Posted in Civil Procedure

This case is ugly.  And when I say ugly, I mean ugly.  This case is so ugly that if it tried to sit in the sand a cat would come up and bury it.

This case started in Davidson County General Sessions Court. On May 6, 2010, plaintiff filed a negligence action again Davidson Transit Organization stemming from an accident she suffered while a passenger in a wheelchair on a DTO bus.   The general sessions warrant sought damages under $25,000. Shortly after filing the warrant, the plaintiff moved to have her case transferred to circuit court and that motion was granted. Less than two weeks after being transferred to Judge Brothers court, plaintiff moved to amend her complaint to identify a John Doe defendant and to substitute an amended complaint for the original complaint. In addition to adding the new party, the amended complaint increased the amount of damages sought. DTO opposed the motion and plaintiff’s motion was ultimately denied because the statute of limitations had passed as to the new party and the plaintiff did not demonstrate the amendment would relate back. 

Thereafter, the court conducted numerous case management conferences and the special master recommended a conservator be appointed for the plaintiff because a psychological evaluation had revealed she was incompetent. Ultimately, a conservator was substituted on February 19, 2013.   On March 5, 2013, nearly three years after the case was originally filed in general sessions court, DTO confessed judgment in the amount of $24,999.99, which was the damages sought in the original general sessions warrant. DTO deposited the judgment amount with the court on the same day, and Judge Brothers dismissed the case with prejudice. Plaintiff filed a motion to set aside or to alter or amend the judgment which was denied and plaintiff appealed alleging: (1) the trial court erred in failing to allow her to amend her complaint; and (2) the trial court erred in permitting the defendant to confess judgment.

 In Dry v. Steele,  the Tennessee Court of Appeals grappled with a procedural nightmare, including three related lawsuits separate from the one actually on appeal – a medical malpractice case, an action for interference with service of process, and a malicious prosecution case.  Putting aside the morass of ancillary issues, the Court of Appeals’ holding was distinct: a notice of appeal on behalf of a deceased pro se litigant is ineffective if filed by someone who has not yet been officially appointed to represent the estate.

The plaintiff in the case on appeal was a lawyer who died two weeks after filing his own pro se lawsuit. The defendants filed a suggestion of death and served it at the plaintiff’s law firm address.  The decedent’s wife was also his law partner – and either the decedent’s co-counsel, co-plaintiff, or co-defendant in the other three related cases. The decedent’s wife did not file a motion to substitute a proper party for the decedent, and informed the trial court that she was not representing the decedent or his estate, but nonetheless asked that the case not be dismissed. The trial court dismissed the case under Tenn. R. Civ. P. 25.01(1).

That’s where the case went from complicated to just bewildering. After the judgment for dismissal was entered, the decedent’s wife filed a notice of appearance as counsel for the decedent. She then filed a notice of appeal within the thirty day window to do so under Tenn. R. App. P. 4(a).  After those thirty days had passed, however, the decedent’s wife had an estate opened for the decedent and was appointed administrator, then retained herself as counsel to represent the estate in the case.

This case is an example of when it is best to leave well enough alone. Along the tortured path of this case, the parties switched positions i.e, plaintiff became defendant and vice versa. To keep it simple, I am going to refer to Ms. Allain by her last name and the two doctors as simply "the doctors".  

While undergoing a procedure at Vanderbilt University Medical Center, Ms. Allain was told by the treating physician that a guide wire had been left in a vein leading to her heart. The treating physician opined the guide wire had been left during a prior procedure at Williamson Medical Center. Thereafter, Ms. Allain filed suit against Williamson Medical Center and the doctors. Several months after filing suit, Ms. Allain learned the guide wire was actually left by another Vanderbilt Medical Center physician. As such, she took a voluntary nonsuit against Williamson County Medical Center and the doctors. 

Rather than being satisfied with the dismissal of the case against them, the doctors waited exactly one year and then filed suit against Ms. Allain for malicious prosecution and abuse of process. Summary judgment was denied on the malicious prosecution case and the trial court denied interlocutory appeal. The Court of Appeals granted a Rule 10 application but ultimately affirmed the denial of the motion for summary judgment. Next, the Tennessee Supreme Court reached down and took the case. Ultimately, the Tennessee Supreme Court, in a case of first impression, ruled a voluntary nonsuit pursuant to Rule 41 of the Tennessee Rules of Civil Procedure is not a favorable termination on the merits for purposes of a malicious prosecution case. Therefore, the doctors could not prove an essential element of their case. The Tennessee Supreme Court remanded the case to the trial court with instructions to enter summary judgment in favor of Ms. Allain on the malicious prosecution case and for a final determination on the abuse of process case.  

This case is a good illustration of a couple of points: (1) proceeding pro se is in a Tennessee personal injury case is dangerous business, and (2) judges at both the trial court and appellate level can be very patient folks.  

Plaintiff Jennifer Al-Athari was involved in a motor vehicle accident with a tractor-trailer driven by Mr. Gamboa who was an employee of Morgan Southern.  Mrs. Al-Athari and her husband filed suit against Mr. Gambo and Morgan Southern  After burning through two attorneys, the plaintiffs elected to proceed pro se.  Thereafter, things went awry. 

Judge Brothers entered a scheduling order which specified dates for medical proof.   Plaintiff failed to produce any medical proof, so Morgan Southern moved in limine to exclude any medical evidence at trial.  Plaintiffs did not appear at the hearing and the trial court granted the motion. In addition, shortly before the trial, Morgan Southern moved in limine to exclude settlement offers, liability insurance and any reference to Mr. Gamboa’s legal status in the United States or the process by which he was hired by Morgan Southern.  All of these motions in limine were also granted. 

Do you need to file (or oppose) a motion to amend or a motion to intervene in Tennessee state court?  If so, start your research with this new case from the Eastern Section of the Tennessee Court of Appeals.

The appeal arises from the sale of residential real estate.   Plaintiff alleged fraud and negligent misrepresentation by the defendants for failing to disclose water drainage issues, water damage and basement flooding in the Tennessee Residential Disclosure form.  During discovery, the defendants moved for summary judgment claiming the plaintiff lacked standing to pursue the case.  Plaintiff opposed the motion and moved to amend her complaint.  In addition, the plaintiff’s sons moved to intervene.  The trial court denied the motion to amend and the motion to intervene and granted the defendants’ motion for summary judgment.   The court based the ruling on the plaintiff’s lack of standing.  The court also concluded the intervention would not correct the standing issue since the sons were not parties to the contract for the sale of the property.

Below are the key facts:

Who should pick up the tab for costs incurred in responding to a subpoena to a non-party under Rule 45 of the Tennessee Rules of Civil Procedure?

This case arises from a probate matter. Five years after the decedent’s estate had been closed for the second time, it was reopened again by a grandson, who believed a quarter of a million dollars in assets continued to be held in the decedent’s Merrill Lynch accounts. The grandson was represented by Suzette Peyton and George Copple, Jr. Shortly after re-opening the estate, the attorneys issued a subpoena duces tecum to Merrill Lynch.   The subpoena sought several years worth of documents for the decedent’s accounts and it also sought information related to accounts held by both the decedent’s wife and son, both of whom were also deceased. 

For several months, the parties negotiated over the scope of the subpoena and the appropriate releases. Ultimately, the administrator filed a motion to enforce the subpoena. Merrill Lynch opposed the motion on several grounds but never sought an advancement of the reasonable costs associated with compliance as was permitted under the 2012 version of Tennessee Rule of Civil Procedure 45.07. Instead, in email communications, Merrill Lynch repeatedly sought assurances from the attorneys that its expenses associated with complying with the subpoena would be paid. After all was said and done, Merrill Lynch produced documents and sought expenses in the amount of $776.00. 

 An important component of any jury trial is the instructions that will be given to the jury about the law that applies to the particular case, how to analyze the evidence, and how to assess the credibility of witnesses. To avoid appeals on the basis of erroneous jury instructions, the best practice is for the parties to agree on the instructions given if at all possible.

When a party takes issue with a particular instruction and wishes to appeal on that basis, he or she faces an uphill battle in overturning the jury verdict in Tennessee. Under our Rules of Appellate Procedure, a jury verdict will only be reversed based on a trial court’s error in giving a jury instruction, failing to give a jury instruction, or giving an erroneous instruction if the error more probably than not affected the verdict or would result in prejudice to the judicial process. Tenn. R. A. P. 36(b).

Recently, in  Land v. Dixon, the Court of Appeals reiterated this standard. On appeal, the plaintiffs complained that the trial court erred in giving a comparative fault instruction to the jury because of allegations that the plaintiffs were at fault in a professional negligence case. The plaintiffs argued that under Tennessee law plaintiffs cannot be at fault in professional negligence actions.  (That is, shall we say, an imaginative argument.)

The Tennessee Supreme Court recently ruled that two voluntary dismissals – one in a California state court and one in a Tennessee federal court – do not preclude a plaintiff from re-filing an action based on the same claims in a Tennessee state court.

In Cooper v. Glasser, the court analyzed Rule 41 (a)(1)(B) of the Federal Rules of Civil Procedure and Rule 41.01(2) of the Tennessee Rules of Civil Procedure.

The federal Rule 41 provides that a plaintiff’s notice of dismissal is “without prejudice” unless the plaintiff previously dismissed any action (federal or state) based on the same claims.