Articles Posted in Civil Procedure

Where plaintiffs’ appellate brief failed to include appropriate citations to the record and failed to “even address the revised judgment from which they appealed,” summary judgment for defendants on claims of intentional and/or negligent misrepresentation was affirmed in a memorandum opinion.

In Smith v. Walker, No. W2022-00748-COA-R3-CV (Tenn. Ct. App. Mar. 28, 2023) (memorandum opinion), plaintiffs purchased a home from defendants, and soon after the purchase, plaintiffs discovered that the home was contaminated with mold. Plaintiffs filed suit for breach of contract, negligence, negligent misrepresentation, and intentional misrepresentation, but the trial court granted summary judgment for defendants based on the “as is” nature of the purchase agreement. Plaintiffs appealed the summary judgment order, and the Court of Appeals found that the trial court order “was deficient because it did not address each of the causes of action alleged by Buyers and included scant reasoning and explanation regarding its ruling….”

On remand, the trial court entered a new order granting summary judgment. In this more detailed order, the trial court addressed all of plaintiffs’ claims and explained the basis for summary judgment. The trial court noted that plaintiffs could not support their misrepresentation claims because they “failed to identify any ‘false information’ provided by [defendants],” and that plaintiffs “failed to present any credible proof that [defendants] represented to them that the home was ‘free from mold or other contaminants.’” The trial court also pointed out that the sales contract stated that plaintiffs had a duty “to inspect for mold or other contaminates,” and that plaintiffs had presented no proof that defendants knew about the mold.

Don’t forget to check out my newest blog, Practical Procedure and Evidence.  The blog addresses procedural issues at the trial and appellate level and the law of evidence.

I write about issues that are of interest to lawyers working in the trenches of civil trial law. The law of procedure and evidence are the rules of litigation “game,” and those who do not know or follow the rules are at an extreme disadvantage in the preparation and trial of civil cases.  Conversely, those who know and use the rules can gain a fair, strategic advantage.

The blog already has 26 published posts with three more posts scheduled to appear in the coming days.  Already published posts include spoliation of evidence, serving out-of-state defendants in motor vehicle cases, and a presumption of adequate consideration when a contract is in writing.

When a party failed to file a motion for substitution for more than a year after filing a notice of death, misinterpretation of the law did not constitute excusable neglect and dismissal was affirmed.

In Joshlin v. Halford, No. W2020-01643-COA-R3-CV (Tenn. Ct. App. Jan. 6, 2023), plaintiff husband and wife filed a healthcare liability action based on alleged negligence related to the treatment of husband’s broken hip. Husband died of unrelated causes in February 2014, and in March plaintiffs’ counsel filed a “Notice of Death.” In October 2014, opposing counsel sent plaintiffs’ counsel a letter stating that the case needed a new plaintiff. Eight months after this letter, defendants filed a motion to dismiss pursuant to Rule 25.01, which requires a party to file a motion for substitution within 90 days of a suggestion of death.

Plaintiff responded to the motion to dismiss three days later by filing a Motion for Substitution/Motion to Amend. Plaintiff argued that the substitution was not necessary because plaintiff wife was already a party to the matter and was also the “surviving plaintiff” under the wrongful death statutes. After several rounds of argument, the Court of Appeals eventually addressed this issue on interlocutory appeal, ruling that because plaintiff husband had died of unrelated causes, the action was eligible to be revived but did not pass automatically pursuant to the wrongful death statutes. Instead, plaintiffs needed to follow the Rule 25.01 procedure. The Court then remanded the case for the trial court to consider “whether Plaintiffs’ response to the motion to dismiss should be construed as a motion for enlargement of time, and if so, whether Plaintiff’s failure to act within the prescribed ninety-day period was the result of excusable neglect.” (internal citation omitted).

Where plaintiffs filed tort claims related to a car accident, and those tort claims were not compulsory counterclaims in a previous action filed by defendant against plaintiffs based on the same accident, the ruling that plaintiffs’ claims were barred by the doctrine of res judicata was reversed.

In Albers v. Powers, No. M2021-00577-COA-R3-CV (Tenn. Ct. App. July 12, 2022), plaintiff wife and defendant were in a car accident. Defendant had previously filed a personal injury suit against plaintiff wife seeking damages related to the car accident. That suit was settled, and the trial court entered an Agreed Order of Dismissal which stated that “all claims asserted in this suit by Richard Powers against defendants, Lori Albers…are dismissed WITH PREJUDICE.”

Two weeks after this order was entered, plaintiffs filed the present action, asserting claims of negligence and loss of consortium. Defendant filed a motion to dismiss, arguing that the suit was barred by the doctrine of res judicata. The trial court agreed, dismissing plaintiffs’ claims, but the Court of Appeals reversed dismissal.

A lawyer who surreptitiously helped his client during a remote deposition was sanctioned by the court.  The lawyer was disqualified from the case and the plaintiff will be permitted to the right to play and highlight to the jury the recorded exchanges of [lawyer’s] witness-leading comments . . . .”  The court also referred to matter to the presiding judge of the district for review and possible further disciplinary action.

The decision may be viewed by clicking on the link.