Civil Procedure

April 1, 2020

Dismissal based on intentional delay of service of process affirmed.

Where a plaintiff knew how to properly serve a defendant yet chose to delay service of process until after the statute of limitations on his claims had run, summary judgment for defendant was affirmed.

In Fuller v. Allianz Life Insurance Company of North America, No. E2018-02267-COA-R3-CV (Tenn. Ct. App. Feb. 19, 2020), plaintiff filed suit against defendant and Community National Bank in 2015. In that suit, plaintiff initially sent a summons for defendant to CT Corporation System, but CT Corporation informed plaintiff by letter that it was not authorized to accept service for defendant. Plaintiff then successfully served defendant’s general counsel. This first suit was eventually nonsuited, and plaintiff filed second suits against defendant and Community National Bank separately. For the suit against defendant, which was originally filed in August 2017, plaintiff again sent a summons to CT Corporation, who responded by letter in November 2017 that it was not authorized to accept service. “Plaintiff’s counsel did not attempt to properly serve defendant until March 20, 2018, when he returned the unserved summons, and obtained and mailed a second summons to defendant’s general counsel.”

March 26, 2020

Who Decides the What Issue Is Subject to Arbitration: A Judge or Arbitrator?

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

It is, as the Second District Court of Appeals of Florida said, a “rather arcane”issue: who decides whether a dispute is subject to an arbitration provision – a judge or an arbitrator. Under the facts presented, the appellate court concluded that because the contract (a clickwrap agreement on AirBNB’s website) “did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability” the issue was one for the judge.

The case is Doe v. Natt and AirBNB, Inc., Case No. 2D19-1383 (Fla. Ct. App. March 25, 2019). The court reached a result different than several other intermediate appellate courts in Florida and thus is likely to go up on appeal.

March 25, 2020

Tennessee Considers Extent of Specific Personal Jurisdiction

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

Under what circumstances can a Tennessee court insist that an out-of-state defendant submit to the jurisdiction of a Tennessee state court? The Tennessee Supreme Court is facing this issue in Crouch Railway Consulting, LLC v. LS Energy Fabrication, LLC.

The case arose when the plaintiff, a Tennessee civil engineering company, filed an action for breach of contract and unjust enrichment against a Texas energy company (referred to in the opinions as “Lonestar” in Williamson County Chancery Court, alleging that the Texas company breached its contract with the Tennessee company by failing to pay for engineering and planning services. Lonestar filed a Tenn. R. Civ. P. 12.02(2) motion to dismiss for lack of personal jurisdiction. The trial court granted the motion, determining that the minimum contacts test had not been satisfied because the Lonestar did not target Tennessee. Additionally, the trial court determined that it would be unfair and unreasonable to require the Lonestar to litigate the dispute in Tennessee.

March 12, 2020

Denial of Motion to Alter or Amend Reinstated by Supreme Court

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

The Tennessee Supreme Court recently reversed a Court of Appeals opinion and reinstated a trial court’s refusal to grant a motion to alter or amend. The trial court had granted defendant’s summary judgment motion based on plaintiff’s HCLA expert being unqualified to testify as to causation and plaintiff not obtaining a second expert affidavit until after summary judgment was granted.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-SC-R11-CV (Tenn. Jan. 28, 2020), plaintiff filed an HCLA suit after decedent died while in Hickman County jail. Decedent had been arrested on possession of illegal drugs, and while incarcerated, she began suffering drug withdrawal symptoms. She was treated by an R.N. in the jail’s medical unit then sent back to her cell. Later that night, she was found dead on the floor of her cell.

Plaintiff filed suit and identified a “physician who was board-certified in neurology and psychiatry” as her expert, and defendant filed a motion for summary judgment asserting that plaintiff could not prove causation because her expert was not qualified to testify as to causation under the HCLA. The trial court heard oral arguments on the motion on November 2, 2015, denied a motion for partial summary judgment by plaintiff in January 2016, and finally issued an order granting summary judgment to defendant in April 2016. The trial court “held that Plaintiffs’ sole expert witness on causation…was not competent to provide testimony under Tennessee Code Annotated § 29-26-115.”

February 28, 2020

Day on Torts Nugget: Service on Companies That Have Not Appointed A Registered Agent in Tennessee.

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

Sometimes companies that do business or cause harm in Tennessee have not registered to do business in Tennessee or have not appointed a registered agent in the state. If you want to sue them in a civil action (but not a worker’s compensation action), on whom to you serve the summons and complaint?

For “for profit” corporations, the answer is found in Tenn. Code Ann. Sec. 48-15-104 (b) :

Whenever a domestic or foreign corporation authorized to do business in this state fails to appoint or maintain a registered agent in this state, whenever its registered agent cannot be found with reasonable diligence, whenever a foreign corporation shall transact business or conduct affairs in this state without first procuring a certificate of authority to do so from the secretary of state, or whenever the certificate of authority of a foreign corporation shall have been withdrawn or revoked, then the secretary of state shall be an agent of such corporation upon whom any such process, notice or demand may be served. (Emphasis added.)

February 18, 2020

Day on Torts Nugget: Standards for Motions to Amend Pleadings in Tennessee

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

Motions to amend a complaint or answer are a routine part of trial practice in Tennessee state court.

Here is a recent statement on the law of motions to amend:

Trial courts have broad authority to decide motions to amend pleadings and will not be reversed absent an abuse of discretion. Hawkins v. Hart, 86 S.W.3d 522, 532 (Tenn.Ct.App.2001). Under the abuse of discretion standard, an appellate court cannot substitute its judgment for that of the trial court. Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn.2006). Numerous factors guide a trial court’s discretionary decision whether to allow a late-filed amendment. Some of these include undue delay, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments and futility of the amendments. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn.Ct.App.1979).

February 14, 2020

Footnote Points Out Issue With Amending Pleadings

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

Rule 15 of the Tennessee Rules of Civil Procedure allows complaints and answers to be amended under the conditions set forth in the rule, but amendments do not make the statements in the original pleading disappear.

In Lanier v. Bane, No. M2000-03199-COA-R3CV, 2004 WL 1268956, at *2 (Tenn. Ct. App. June 8, 2004), Lanier pleaded that his host driver was drunk and caused a one-car accident, resulting in the death of Bane and injuries to Lanier. In his amended complaint, Lanier materially changed those allegations and said his host driver was not drunk. Bane’s estate defended by asserting that Lanier was partially at fault by voluntarily becoming a passenger in a vehicle driven by one he knew to be intoxicated.

In Footnote 1 of the Court of Appeals opinion affirming a 50% finding of fault on Lanier for contributing to his own injuries, the court noted as follows: “How Mr. Lanier came to “un-know” in his amended complaint that which he knew well in the original complaint about his host driver’s intoxication makes for interesting reading.”

February 13, 2020

Day on Torts Nugget: Reliance on the Savings Statute after a Voluntary Dismissal

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

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit in state to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,

February 3, 2020

Day on Torts Nugget: Discovery Rule May be Used to Add Vicarious Liability Defendant

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

Occasionally, a plaintiff does not learn until after more than one-year after an event that the person who caused plaintiff’s injuries and losses was working in the course and scope of employment at the time of the incident. How can a plaintiff add the employer as a party defendant and avoid a statute of limitations defense?

First, persuade the lawyer for the individual defendant to allege the fault of the nonparty employer. The decision in Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998) held that Tenn.Code Ann. Sec. 20-1-119 applied to such an allegation and thus a plaintiff could take advantage of the statute’s 90-day window to add the employer as a party defendant and avoid a statute of limitations defense.

Second, move to amend the complaint to add the employer to the case and argue that suit was timely filed because of application of the discovery rule. The rule does not just apply to health care liability actions – -the Tennessee Supreme Court extended the discovery rule to “all tort actions predicated on negligence, strict liability, or misrepresentation.” Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 904 (Tenn. Ct. App. 1992) (citation omitted).

January 27, 2020

Day on Torts Nugget – Amending A Complaint After A Defendant Alleges Fault of a Nonparty

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

A defendant sued within the statute of limitations states in its answer or amended answer that a person not a party to the lawsuit negligently contributed to cause plaintiff’s injuries. Plaintiff decides to sue the nonparty, and rely on Tenn. Code Ann. §20-1-119 to avoid a statute of limitations defense.

How does a plaintiff add the nonparty as a party defendant?

The answer depends on whether the case is in state court or federal court. In state court, plaintiff has an absolute right to amend under Tenn. R. Civ. Pro. 15.01. In relevant part, it provides ” [f]or amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.”