Articles Posted in Civil Procedure

Although Rule 4.03 of the Tennessee Rules of Civil Procedure requires return of process within ninety days of its issuance, a plaintiff failing to comply with this standard may still keep his or her case alive under Rule 3. In the recent case of Monday v. Thomas,  the Tennessee Court of Appeals explored the interplay between Rules 3 and 4.03. A plaintiff in Monday had been hit by a truck driven by an individual, and plaintiffs alleged the truck was owned by three other individuals and/or two businesses. In total, the plaintiffs named and alleged fault against 6 defendants (the driver, three individual owners, and two business owners).

Plaintiffs filed suit within the appropriate one-year statute of limitations, and initially had six summonses issued in September 2010. In May 2011, the plaintiffs had four alias summons issued against the driver, two of the individual owners, and one of the business owners. In January 2012, another set of alias summonses was issued, this time to the driver, one of the individual owners and the business owner included in the 2011 summonses, and one of the individual owners who was not included in the 2011 summonses. Finally, in November 2012, process was issued to the individual owner who was included in the May 2011 summonses but excluded from those issued in January 2012.

Rule 4.03(1) of the Tennessee Rules of Civil Procedure requires that a summons, even if not served, be returned to the court within ninety days of issuance. Rule 3 provides that if process is not served within ninety days of being issued, plaintiffs cannot rely on their original filing to toll any statutes of limitation “unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process.”

The Tennessee General Assembly has passed, and the Governor has signed, legislation adding nurse practitioners to the list of people who are ordinarily exempt from subpoena to trial.   Nurse practitioners are still subject to being subpoenaed to give a deposition.

Here are the other people who are exempt from subpoena to trial under T.C.A. Section 24-9-101(a):

•  An officer of the United States;
• An officer of Tennessee;
• An officer of any Tennessee court or municipality;
• The clerk of any court of record other than that in which the suit is pending;
• A member of the Tennessee general assembly while in session, or clerk or officer thereof;
• A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;
• A jailer or keeper of a public prison in any county other than that in which the suit is pending; and
•  A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided for producing records as required by law.

The Tennessee Court of Appeals recently held that a General Sessions plaintiff cannot skip the procedure for filing unserved process to avoid letting the statute of limitations run.

Tenn. Code Ann. § 16-15-902 requires a plaintiff in General Sessions court to return process within 60 days of issuance. § 16-15-902 does not explicitly state that a plaintiff must return the process if it is unserved. Under Tenn. Code Ann. § 16-15-710, however, a plaintiff who does return process as unserved must take action to rely on the original filing date for the statute of limitations. Once the plaintiff returns the process as unserved, the plaintiff has to either have process reissued within 9 months or refile the case within one year.

In Gates v. Perry, No. 2013-01992-COA – R9-CV (Tenn. Ct. App. March 26, 2014) the plaintiff never filed the unserved process with the court, and instead had a new warrant issued eighteen months later. The plaintiff argued that, since he never filed the unserved process, Tenn. Code Ann. § 16-15-710 was never triggered. The trial court agreed, and denied a motion to dismiss by the defendant.

The Tennessee Court of Appeals recently had the opportunity to discuss the doctrine of prior suit pending in a car wreck case, Farmers Insurance Exchange v. Shempert. The Shemperts filed suit for a wreck in which Mr. Shempert was injured and included his own uninsured motorist carrier, Farmers Insurance Exchange, as a defendant. After discovery in the first lawsuit, Farmers filed a separate declaratory judgment action seeking a ruling that the Shempert’s policy with Farmers provided no coverage for the wreck. The Shemperts filed a motion to dismiss the second case on the basis of the doctrine of prior suit pending.

The Court of Appeals explained that the doctrine of prior suit pending provides that an action is subject to being dismissed if a prior lawsuit involving the same parties and the same subject matter is pending. The first lawsuit must be pending in a court that has jurisdiction over the subject matter and the parties. 

The Court of Appeals found that the first lawsuit did include the issue of whether the Farmers policy provided coverage for the wreck, and that Farmers had raised coverage as a defense in the first lawsuit. Also, the court noted that the court in the first lawsuit had jurisdiction over the parties and the subject matter. Therefore, the court reversed the  entry of summary judgment for the insurer in the declaratory judgment  case and remanded it to the trial court to be dismissed.

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: