Articles Posted in Civil Procedure

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.

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:

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. 

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."