Civil Procedure

January 22, 2020

Defense Claims Counsel Interfered With Ex Parte Interviews of Health Care Providers

An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.

January 20, 2020

Day on Torts Nugget – Amending Complaint While a Motion to Dismiss is Pending

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

Does a plaintiff have the right to amend a complaint while a motion to dismiss is pending and no answer has been filed?

Yes. Rule 15.01 of the Tennessee Rules of Civil Procedure provides a party may amend its pleading “once as a matter of course at any time before a responsive pleading is served[.]” A motion to dismiss is not a responsive pleading and under Rule 15.01 the plaintiff has an absolute right to file an amended complaint. Grose v. Kustoff, 2017-01984-COA-R3-CV, 2019 WL 244469 , at * 4 (Tenn. Ct. App. Jan. 17, 2019); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion to dismiss is not a responsive pleading for purposes of Rule 15.01). No motion to amend is necessary because the right to amend is granted in Rule 15.01 itself.

Indeed, some courts have held that a plaintiff who files a motion to amend under such circumstances loses the right to argue that the complaint is automatically amended by the filing of a motion and then leave of court is necessary to amend. See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3 (Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL 3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage of its right to amend without leave of the court, this Court cannot correct that choice on appeal).

January 17, 2020

Tennessee Court Adopts Revisions to Civil Procedure Rules

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

The Tennessee Supreme Court has adopted proposed amendments to several rules of civil procedure.

Rules 5 and 5B have been amended to account for changes in the court system given the expansion of e-filing across the state.

Rule 33 has been amended in the hope of eliminating gamesmanship in answering interrogatories.

December 20, 2019

Motion for Substitution Needed After Death of Plaintiff

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

Where a plaintiff filed a Tennessee health care liability (medical malpractice) action and died of unrelated causes while the suit was pending, the cause of action did not automatically pass to his wife. Instead, the suit was “eligible to be revived” and a motion for substitution of party should have been filed within 90 days of the filing of the suggestion of death pursuant to Rule 25.01.

In Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019), plaintiff filed a medical malpractice suit against defendants, and his wife was a co-plaintiff asserting loss of consortium claims. While the suit was pending, plaintiff died from causes unrelated to the alleged malpractice. In March 2014, plaintiffs’ counsel filed a notice of death in the HCLA suit, and an estate was opened for decedent in May 2014. In October 2014 defense counsel sent plaintiff a letter stating that “a suggestion of death and a new plaintiff” were needed, but plaintiff responded by sending a copy of the notice of death previously filed.

In June and July 2015, defendants filed motions to dismiss based on plaintiffs’ “failure to timely substitute a proper party for [decedent].” The trial court denied the motion, ruling that the cause of action automatically passed to the wife, and that since she was already a plaintiff, there was no need to do a party substitution. The Court of Appeals reversed this decision.

December 16, 2019

Car Accident Suit Against Deceased Defendant Dismissed as Untimely

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

Where a tortfeasor died before suit was filed and “no personal representive was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action,” dismissal of the Tennessee personal injury suit was affirmed.

In Khah v. Capley, No. M2018-02189-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2019), plaintiff was injured in a car accident allegedly caused by defendant on May 12, 2016. Defendant died 18 days after the accident, but on May 11, 2017, plaintiff filed this suit in the general sessions court, being unaware of defendant’s death. The sheriff’s office returned the civil warrant with a note saying “per Father, Jonathan Capley is deceased as of last year.” In March 2018, plaintiff had an alias warrant issued, which was returned noting that defendant was “deceased as of last May 2016.”

November 20, 2019

Utilities Commission Had No Jurisdiction Over Negligence Suit

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

When a plaintiff brought a negligence action against two public utility companies for damages allegedly done to her real property when the gas was turned off and waters pipes subsequently froze and burst, the trial court erred by holding that the Tennessee Public Utility Commission (TPUC) had exclusive jurisdiction of the claim. In Jetter v. Piedmont Natural Gas Company, Inc., No. M2019-00206-COA-R3-CV (Tenn. Ct. App. Oct. 14, 2019), plaintiff owned an unoccupied residence which was “damaged when frozen water pipes ruptured during the winter after gas service to the property was terminated.” Plaintiff filed this negligence suit, alleging that defendant public utility companies failed to provide her with proper notice of their actions and failed to “take proper steps to reconnect the service.” In her complaint, plaintiff cited certain TPUC rules that were allegedly violated by defendants.

Defendants filed a motion to dismiss, arguing that the TPUC “had exclusive and original jurisdiction over the claims at issue.” According to defendants, the TPUC rules cited by plaintiff in her complaint could only be enforced by the TPUC. Defendants also argued that the administrative remedy set up by the TPUC rules was not exhausted by plaintiff before she filed this suit.

The trial court agreed with defendant and dismissed the case, but the Court of Appeals reversed. Continue reading

October 5, 2019

Tennessee Supreme Court Overturns Application of Judicial Estoppel

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

Where a plaintiff had previously signed a marital dissolution agreement that stated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”

September 27, 2019

Plaintiff’s Damages Not Limited By Amount Specified in Complaint

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

Where 23 months had passed between the filing of the complaint and the conversion of a truck, and where plaintiff sought “such other relief as he may be entitled to” in his ad damnum clause, the trial court did not err by awarding him a sum much larger than the amount specified in his complaint.

In Parker v. Clayton, No. M2017-02556-COA-R3-CV (Tenn. Ct. App. Sept. 10, 2019), plaintiff filed a conversion claim related to his former friend taking possession of his truck. According to plaintiff, he and defendant had been friends for many years. When plaintiff was preparing to have surgery, he had to take time away from his work as a commercial truck driver. Around this time, defendant asked plaintiff for help getting his CDL. Plaintiff believed defendant already had some knowledge about operating a truck, so he offered to have defendant essentially work under him for a period of time with plaintiff’s former trucking employer, and plaintiff and defendant would split the profits made. To facilitate this arrangement, however, plaintiff had to add defendant’s name to his truck’s title. The title was changed to reflect both plaintiff and defendant as owners, and the transfer was noted as a gift by the clerk. According to plaintiff, the truck was to be titled back to plaintiff alone once defendant obtained his CDL. Plaintiff and defendant also opened a joint account in which money from their employer could be deposited and divided. Sometime during this time period, plaintiff took his RV to defendant’s property and began living there with defendant’s permission.

September 26, 2019

Tennessee Court Offers Insight on Judicial Estoppel

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

Where a plaintiff had previously signed a marital dissolution agreement that sated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”

September 9, 2019

No Motion for New Trial? Issues Waived.

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

Where plaintiffs failed to file any post-trial motions, most of the issues they tried to raise on appeal were waived.

In Smith v. Benihana National Corp., No. W2018-00992-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2019), plaintiffs filed suit on behalf of decedent’s family members after decedent died while dining at a Benihana restaurant. Plaintiffs essentially alleged that defendant knew that decedent was allergic to seafood, and that they were negligent in preparing his food and allowing seafood particles to be present and/or in allowing him to inhale seafood particles through steam at the restaurant.

This case had a long procedural history, but it was finally tried in front of a jury who returned a verdict for defendant, finding that the restaurant was not liable for decedent’s death. Plaintiffs did not file any post-trial motions, but did appeal the case.