Civil Procedure

May 31, 2023

Amended Complaint Removed Defendants From Suit.

Where plaintiff originally filed a health care liability suit under the GTLA against multiple defendants, but before any responsive pleading was filed plaintiff filed an amended complaint naming only the physician as a defendant, a subsequent notice and order of voluntary dismissal entered as to the defendants not named in the amended complaint were “of no legal effect.” The original defendants other than the physician were removed from the action through the filing of the amended complaint.

In Ingram v. Gallagher, — S.W.3d —, No. E2020-01222-SC-R11-CV (Tenn. May 17, 2023), plaintiff filed an HCLA suit against multiple defendants, including the physician and the hospital at which the physician worked. Because the hospital was a governmental entity, the GTLA applied to this case. After filing his original complaint but before any responsive pleading had been filed, plaintiff filed an amended complaint naming only the physician as a defendant. Five minutes after the amended complaint was filed, plaintiff filed a notice of voluntary dismissal as to the hospital and other defendants, and an order of voluntary dismissal was entered the following day.

When defendant physician filed his answer to the amended complaint, he raised as a defense that the complaint should be dismissed under the GTLA, as Tenn. Code Ann. § 29-20-310(b) required that since the physician was an employee of a governmental entity, the governmental entity must also be a party to the action. Subsequently, plaintiff “filed a motion to amend his complaint in an effort to reinstate [the hospital] as a defendant.” Plaintiff also “filed a motion to alter or amend the order dismissing [the hospital] as a defendant on the grounds that ‘[the hospital] was inadvertently dismissed in light of the affirmative defense assertation by a co-defendant…that [the hospital] is a necessary party to this action.’” The trial court denied the motion to alter or amend the dismissal order, but it eventually allowed plaintiff to amend his complaint after a second motion to amend was filed.

May 22, 2023

Tennessee GTLA case that includes non-governmental entity defendants can be heard by a jury.

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

Where a GTLA case involves both governmental and non-governmental defendants and a party demands a jury trial, the entire case is to be heard by the jury.

In Vandyke v. Cheek, No. M2022-00938-COA-R10-CV (Tenn. Ct. App. May 3, 2023), plaintiff filed suit after a car accident caused in part by a malfunctioning traffic light. Defendants in the case included Montgomery County and other governmental entities as well as the other driver, a non-governmental entity. Plaintiff requested a jury trial, and the governmental entities asked for the case to be severed so that the claims against the governmental entities would be heard in a bench trial. The trial court granted the motion, but in this extraordinary appeal, the Court of Appeals reversed the order severing the claims and remanded the case to be heard by a jury as a whole.

Before 1994, the GTLA provided that cases against governmental entities were to be heard “without the intervention of a jury,” and it provided that jury demands for claims against non-governmental entities could be severed and heard separately from claims against governmental parties. In 1994, however, the GTLA was amended.

May 12, 2023

Dismissal based on statute of limitations affirmed; court relied on judicial notice of court file

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

Where the trial court took judicial notice of items from the court case underlying a tort action for invasion of privacy, abuse of process, and intentional infliction of emotional distress, it did not convert the motion to dismiss to a motion for summary judgment and dismissal of the claims based on the statute of limitations was affirmed.

In Doe v. Rosdeutscher, No. M2022-00834-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff had filed an underlying HCLA suit. Plaintiff eventually took a voluntary nonsuit in that case, and following a motion by defendants in that case, the trial court assessed Rule 37 and Rule 11 sanctions against plaintiff’s counsel.

Plaintiff then filed this action against the defendants and the defendants’ attorneys from the previous HCLA case. In this case, plaintiff asserted claims for invasion of privacy, abuse of process, intentional or reckless infliction of emotional distress, and breach of contract based on the allegation that defendants “filed Plaintiff’s medical records in the healthcare liability action which included nude photographs of Plaintiff and details about her sexual and mental health history[.]” Defendants filed a motion to dismiss, which the trial court granted. The trial court also assessed damages against plaintiff and Rule 11 sanctions against plaintiff’s attorney. On appeal, these rulings were affirmed.

March 30, 2023

Misrepresentation summary judgment affirmed where plaintiffs failed to comply with appellate procedure rules.

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

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.

March 17, 2023

New Procedure and Evidence Blog

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

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.

March 10, 2023

Plaintiff waived objection to discovery from testifying expert where objection was not made until expert deposition was in progress.

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

In an HCLA case discovery dispute, the Tennessee Court of Appeals ruled that plaintiff’s testifying experts’ “notes, drafts, and communications with counsel” were discoverable under the Tennessee Rules of Civil Procedure and that plaintiff had waived any claim that the requested items were privileged.

In Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), plaintiff filed a healthcare liability case against defendants based on injuries that occurred during plaintiff’s c-section. During the deposition of one of plaintiff’s testifying experts, the expert referenced an email sent to plaintiff’s counsel that included a bullet-point list as well as a page of handwritten notes, neither of which had been provided to defendants in response to defendants’ interrogatories, requests for production of documents, or requests accompanying the deposition notice. Defendants filed a motion to compel plaintiff to produce certain documents from her testifying experts, including “correspondence to and from her expert witnesses, draft reports of expert witnesses, and any similar materials.” Plaintiff responded that the documents were protected from discovery, but the trial court ultimately granted the motion to compel, which was affirmed (but modified) on appeal.

In its analysis, the Court initially clarified which Rules of Civil Procedure applied here. Because the experts at issue were identified as testifying experts, Rule 26.02(4)(A) applied to discovery related to these experts. Further, the Court ruled that Rule 26.02(3), which addresses discovery of trial preparation materials, applied, but it clarified that “the requirements of subdivision (3) are subject to those of subdivision (4) for discovery of expert witness information.”

March 3, 2023

Tennessee statute of limitations is based on gravamen of complaint.

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

Where plaintiff’s claims against defendant county were based on intentional torts, a one-year statute of limitations applied.

In Anderson v. Lauderdale County, Tennessee, No. W2022-00332-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2023), plaintiff was pulled over by a sheriff’s deputy employed by defendant county. According to plaintiff, the deputy pointed a gun at plaintiff, chased him and called for backup when plaintiff tried to drive away, eventually tased plaintiff, and made false statements about plaintiff, causing him to be wrongfully charged with multiple crimes. Plaintiff further asserted that “a grand jury returned an indictment against [the deputy].”

Plaintiff filed this complaint against the deputy and defendant county more than one year after the incident, asserting that the county was liable for the deputy’s actions under Tenn. Code Ann. § 8-8-302 and -303. Plaintiff’s initial complaint listed several intentional torts, but his amended complaint removed the referral to any specific torts and instead alleged liability more generally. After plaintiff voluntarily dismissed the deputy, defendant county filed a motion to dismiss pursuant to the statute of limitations, which the trial court granted upon determining that a one-year statute of limitations applied. Dismissal was affirmed on appeal.

February 27, 2023

TPPA Petition to Dismiss Does Not Survive Voluntary Dismissal.

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

A plaintiff may take a voluntary nonsuit even after the defendant has filed a petition to dismiss under the TPPA, and a petition to dismiss under the TPPA does not survive after voluntary dismissal by the plaintiff and is not considered a counterclaim.

In Flade v. City of Shelbyville, Tennessee, No. M2022-00553-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2023), plaintiff filed suit against several defendants asserting claims for libel, intentional interference with business, and intentional infliction of emotional distress. These claims were based on statements made by defendants about plaintiff through text messages and on social media regarding plaintiff’s role as the landlord of a duplex.

In response to the complaint, the two non-governmental defendants filed separate motions to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) and the Tennessee Public Participation Act (TPPA), Tennessee’s anti-SLAPP statute. While these motions were pending, plaintiff filed notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it held that “the TPPA was not excepted from the right to dismissal without prejudice under Rule 41.01.” On appeal, this ruling was affirmed.

January 23, 2023

Misinterpretation of the law not deemed excusable neglect under Rule 6.02.

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

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).

December 12, 2022

Bench trial verdict for plaintiff in truck wreck case based largely on credibility affirmed.

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

Where the trial court found plaintiff 25% at fault and defendant 75% at fault in a negligence case related to a crash between a car and tractor trailer, the Court of Appeals affirmed the verdict for plaintiff.

In Kindred v. Townsend, No. W2021-01481-COA-R3-CV (Tenn. Ct. App Dec. 7, 2022), plaintiff filed this negligence suit against defendant and defendant’s employer based on a motor vehicle accident. Defendant was driving a tractor trailer while employed by defendant employer, and she turned left at an intersection. There was contradictory testimony regarding whether the traffic light was giving a green turn signal, a yellow turn signal, or a permissive green light when defendant began her turn. Plaintiff was approaching from the opposite direction and was not yet to the intersection when the light for her lane turned green. She proceeded through the light without slowing down, and her car and defendant’s tractor trailer collided.