Civil Procedure

December 9, 2013

Suing the Wrong Defendant and Tennessee’s Relation Back Doctrine

The Court of Appeals clarified the requirements for an amended complaint to relate back to the filing date when the plaintiff mistakenly sues the wrong defendant.

In Ward v. Wilkinson Real Estate Advisors, Inc., No. E2013-01256-COA-R3-CV, (Tenn. Ct. App. Nov. 30, 2013) Plaintiff sued Glazers for a slip and fall about a week before the one year statute of limitations for personal injury cases expired. Plaintiff quickly found out that Glazers had nothing to do with the property where Plaintiff fell. The day after the statute of limitations expired, Plaintiff filed an amended complaint suing several others who we will collectively call the "Wilkinsons," who did own the property at issue, and served the amended complaint on Wilkinsons within two months. The trial court granted summary judgment to Wilkinsons based on the statute of limitations.

The Court of Appeals affirmed, with a concurring opinion by Judge Susano. The majority rejected Plaintiff’s contention that the amended complaint related back to the original filing based on Tenn. R. Civ. P. 15.03, which provides:

November 23, 2013

Deliberate But Erroneous Choices Do Not Constitute Excusable Neglect for a Motion for New Trial in Tennessee

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

What constitutes "excusable neglect" under Rule 59 of the Tennessee Rules of Civil Procedure?

Ms. Hayes, who goes by the stage name Shania Twang, entered into a written contract with Mr. Cunningham to perform in a musical show in Branson, Missouri. The show was to run a little over 5 months, and Shania Twang’s compensation was set at $1600.00 per week. However, after only one month, Mr. Cunningham canceled the show. Because she only received $3,066.00 in compensation, Ms. Twang sued Mr. Cunningham for breach of contract. Mr. Cunningham’s primary defense was he was not individually implicated in the contract as he was only an agent and the culpable party was SuperStars Live Concert, LLC. Following discovery and a pretrial conference, the case was set for trial.

Although there was no dispute that Mr. Cunningham was aware of the trial date, he chose not to attend. According to Mr. Cunningham, he did not appear because his counsel told him the case would turn on Missouri law and so his personal appearance was not absolutely necessary. However, Mr. Cunningham’s lawyer indicated his client did not appear at the trial because it conflicted with another show date and Mr. Cunningham had expressed he would be "ruined" if he missed the show. Given Mr. Cunningham’s position, the lawyer asked Mr. Cunningham to provide him evidence to support the defense. The evidence was never received and Mr. Cunningham quit returning his lawyer’s calls or emails. It should be noted that during the course of the case Mr. Cunningham and his lawyer had a tumultuous relationship resulting in multiple motions to withdraw.

August 5, 2012

Declarations Can Now Be Used in Lieu of Affidavits in Tennessee State Courts

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

Tennessee’s rules of civil procedure now permit the use of declarations in lieu of affidavits.

TRCP Rule 72 provides as follows:

Wherever these rules require or permit an affidavit or sworn declaration, an unsworn declaration made under penalty of perjury may be filed in lieu of an affidavit or sworn declaration. Such declaration must be signed and dated by the declarant and must state in substantially the following form: "I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct."

May 23, 2012

New Tennessee Opinion on Filing Proof Of Service of Summonses Increases Risk on Plaintiff’s Lawyers

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

The Tennessee Court of Appeals recently issued an opinion of interest to every Tennessee personal injury lawyer. The Court of Appeals held in a car accident case that a plaintiff who serves a summons by certified mail must file the return receipt “promptly.” The court did not say what “promptly” means. The failure to do resulted in dismissal of the case.

Plaintiff filed suit within the statute of limitations and had summons issued the same day. There was some dispute as to whether Plaintiff’s process server delivered the summons and complaint to Defendant within 90 days, but the Court of Appeals found that dispute immaterial. Instead, the Court of Appeals affirmed dismissal based on the statute of limitations because Plaintiff filed the returned summons and proof of service more than a year after it was issued.

The Court of Appeals held that, in order for a plaintiff to rely upon the original filing date for the purpose of commencing suit under Tenn. R. Civ. P. 3, the plaintiff must “promptly” return proof of service under Tenn. R. Civ. P. . 4.03(1). Rule 4.03 states:

May 2, 2012

Article on T.C.A. Section 20-1-119 and the Mills Decision

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

T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations, the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations. The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the MIlls opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.

October 13, 2011

Twelve Steps To Avoid Summary Judgment on a Fact Issue

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

Tennessee summary judgment law changed on July 1, 2011 to allow the use of "put up or shut up" motions. (The law only applies to cases filed on or after July 1.) This change will increase the use of summary judgment motions in Tennessee and will probably result in an effort by defendants to file those motions earlier in the case.

Although there will be a constitutional challenge to this legislation, the constitutional issue will not reach the Tennessee Supreme Court for several years. In the meantime, lawyers opposing motions for summary judgment must work hard to marshal the facts necessary to create a genuine issue of material fact (if one can be legitimately created)..

TRCP 56.07 gives a lawyer opposing a motion for summary judgment the opportunity to ask for more time to complete discovery before a summary judgment hearing. Here are the twelve steps you should follow to (a) maximize your chances of putting your case in the posture of not needing to file a Rule 56.07 motion or (b) if a Rule 56.07 motion must be filed, increasing the likelihood that the motion will be granted.

July 25, 2011

Twombly and Iqbal Do Not Apply in Tennessee State Courts

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

The Tennessee Supreme Court has ruled that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009) do not apply to cases filed in Tennessee state courts. The extremely well-written opinion marshals the arguments against the application of the federal standard in state court proceedings and will be of benefit to lawyers around the nation who attempt to keep the federal standard out of state courts.

In Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV (Tenn. July 21, 2011), plaintiff filed a retaliatory discharge case against a Nashville not-for -profit organization. Defendant filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Habitat and amici curiae Tennessee Defense Lawyers Association and The Center for Individual Freedom asked the court to adopt the Twombly/Iqbal standard, which “retired” the notice pleading regime recognized in Conley v. Gibson, 355 U.S. 41 (1957), and followed for fifty years, in favor of a new “plausibility” standard.

Plaintiff argued that Tennessee should preserve its historic standard, which provides that a Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009). Plaintiff asked the Court to re-affirm Tennessee law which provided that "a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it must contain direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested . . . by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.” Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004).

July 14, 2011

Defense Lawyers Call for Changes to the Federal Rules of Civil Procedure

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

The authors of this article have called for substantial changes in the Federal Rules of Civil Procedure.

Included in their proposals is this call for shifting the cost of discovery:

In General. A party submitting a request for discovery is required to pay the

July 7, 2011

Nevada Supreme Court Affirms Sanction of Striking Liability Defense Because of Discovery Abuse

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

The Nevada Supreme Court has affirmed a trial judge order that struck a defendant’s ability to argue liability, limiting it to contesting compensatory damages.

In Bahena v. Goodyear, the trial judge struck the defendant’s answer as to liability after it failed to follow prior court orders concerning several discovery matters, including the failure to produce a witness for a deposition. The court agreed with the trial judge that "repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate." The Supreme Court explained that the trial judge "noted that the Bahena plaintiffs included a 14-year old who had been in a persistent vegetative state for the past two years together will the estates of three dead plaintiffs" and that "since the trial was scheduled to commence [shortly after the discovery deadline] Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated" because "there could have been open questions as to the authenticity of approximately 74,000 documents that were the subject" of a prior court order.

In affirming the trial judge’s decision, the Nevada Supreme Court noted that the trial judge had prepared nine pages of carefully written findings of fact an conclusions of law analyzing the relevant factors, concluding that the degree of willfulness by Goodyear was "extreme" and "totally untenable and unjustified" and that the "responses to [p]laintiff’s’ interrogatories are nothing short of appalling."

July 6, 2011

Kentucky Supreme Court Holds That Personal Injury Plaintiff Lost Privilege By Claiming Mental Injury

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

The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.

In Dudley v. Jefferson Circuit Court, 2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering. Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.

The court held that the records were discoverable, saying " Appellant’s claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."