Limitation of Actions

March 19, 2025

Legal malpractice claimed dismissed as time-barred.

A legal malpractice claim filed eighteen months after the Court of Appeals affirmed the underlying conviction was time-barred.

In Lee v. Richardson, No. M2024-01130-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2025), the Court of Appeals affirmed dismissal of a pro se legal malpractice complaint based on the statute of limitations. The plaintiff sued several defendant attorneys, all of whom had represented him during various stages of an underlying criminal case. The plaintiff asserted that the defendants failed to properly investigate or assert arguments that the criminal court did not have territorial jurisdiction of the kidnapping charge.

The trial court noted that the plaintiff had made this territorial jurisdiction argument at all levels of his criminal case, including the Court of Criminal Appeals, which rejected the argument and affirmed the plaintiff’s conviction. The Court also pointed out that the Court of Criminal Appeals affirmed the plaintiff’s conviction on November 10, 2022, and issued the mandate back to the trial court on January 26, 2023. The trial court accordingly found that the legal malpractice complaint filed in June 2024 was time-barred, and the Court of Appeals affirmed.

January 24, 2025

Municipal traffic ticket did not extend statute of limitations for car accident case.

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

Where the defendant in a car accident case received several citations for violations of city traffic laws, the statute of limitations was not extended to two years because the citations were civil in nature, not criminal.

In Sandridge v. Henderson, No. W2024-00242-COA-R10-CV (Tenn. Ct. App. Dec. 19, 2024), the plaintiff and defendant were involved in a car accident. In connection with the wreck, the defendant received citations for violating municipal traffic ordinances. These citations included “no driver’s license, failure to maintain proper control, and failure to show financial responsibility.”

The plaintiff filed this personal injury action more than one year after the accident. Although the statute of limitations for a personal injury claim is typically one year, the plaintiff asserted that the limitations period here was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2)(A) due to the traffic citations. The trial court agreed, ruling that the citations were criminal in nature and therefore triggered the extended statute of limitations. The Court of Appeals reversed this ruling.

September 5, 2024

Is discovery rule triggered by information received by plaintiff’s attorney?

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

Where plaintiff’s workers’ compensation attorney received documents that provided notice of a potential HCLA claim, that notice was not imputed to plaintiff because the HCLA claim was not within the scope of the attorney’s representation of plaintiff.

In Marc v. Eck, No. E2023-01643-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2024), plaintiff was represented by an attorney in a workers’ compensation matter. In preparation for mediation in that matter, the attorney was given voluminous medical records on November 10, 2020. Included in these records were files related to a back surgery defendant performed on plaintiff on August 2, 2019.

Plaintiff’s workers’ compensation attorney began reviewing the records on November 30, 2020. During this review, she found notes from the surgery indicating that defendant had operated on the wrong section of plaintiff’s spine. The attorney informed plaintiff of this discovery sometime between November 30 and December 4, 2020, which was plaintiff’s first notice that the surgery had been performed incorrectly.

April 8, 2024

The Duty to Inquire and Limitation of Actions

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

Tennessee court holds that publicly available information triggered the duty to inquire and claim being barred by the statute of limitations.

The Facts

In First Community Bank, N.A. v. First Tennessee Bank, N.A., No. E2022-00954-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2024), plaintiff bank purchased “approximately $135 million in asset-backed securities in the form of 11 notes issued by several collateralized debt obligations and a collateralized mortgage obligation,” including some purchased from defendant. All purchases were completed by 2007. By May 2008, plaintiff knew that the securities had lost significant value. The investment experienced continued losses, defaults, and downgrades in 2008 and 2009. Plaintiff eventually sold the securities, incurring an approximately $100 million loss.

January 23, 2024

Tennessee’s Discovery Rule Applied by the Court of Appeals

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

Where there was a question of fact regarding when plaintiff was put on notice of his potential HCLA claim, and plaintiff provided an expert affidavit in support of his claims, summary judgment based on the statute of limitations and a lack of proof on causation and damages was reversed.

In Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023), plaintiff had his appendix removed by defendant surgeon. At a follow up appointment on March 27, 2017, plaintiff was given a pathology report that stated that “no intact vermiform appendix is identified.” There was a disagreement between plaintiff and defendant regarding what defendant told plaintiff at the follow up appointment. Two weeks after the follow up appointment, plaintiff began experiencing pain and went to another hospital, where they discovered that his appendix had not been removed in the first surgery.

Plaintiff sent pre-suit notice of his HCLA claim to defendant on March 1, 2018, and filed his complaint on August 6, 2018. Defendant moved for summary judgment, which the trial court granted on two grounds. The trial court ruled that the claim was barred by the statute of limitations and that plaintiff had not provided sufficient proof of causation or damages. On appeal, the trial court’s rulings were reversed in part, vacated in part, and the case was remanded.

December 22, 2023

Two-year statute of limitations did not apply where driver was cited for municipal code violation.

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

Where defendant received a citation for violating a Tennessee municipal ordinance in a car accident, the one-year statute of limitations applied. The limitations period was not extended to two years under Tenn. Code Ann. § 28-3-104(a)(2) because the municipal code violation was not a criminal charge or criminal prosecution.

In Peterson v. Carey, No. E2022-01656-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2023), plaintiff was injured when he was in a car accident while riding as a passenger in defendant’s vehicle. After the accident, defendant received a citation for violating a municipal code, which carried a maximum fine of $50.

Plaintiff filed this action more than one year after the date of the accident, and after an initial appeal and remand, the trial court considered plaintiff’s argument that the statute of limitations was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2). The trial court ruled that the two-year extension did not apply here because the code violation was civil in nature rather than criminal, and it therefore granted summary judgment to defendant. On appeal, this ruling was affirmed.

November 29, 2023

Statute Extending Statute of Limitations Does Not Extend Time for Service of Process

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

Where a car accident plaintiff filed suit, had service issued but not served, and then failed to have new process issued within one year from the issuance of the first service, the plaintiff could not rely on the fact that defendant received a traffic citation in the accident to extend the time within which service was required to be issued.

In Briars v. Irving, No. W2022-01159-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2023), plaintiff and defendant were involved in a car accident, and defendant was given a citation for crossing the center line of the roadway. Plaintiff filed suit within the one-year statute of limitations and had service issued on July 2, 2020, but that summons was not served. A new summons for defendant was not issued until September 3, 2021. After being served, defendant moved to dismiss, which the trial court granted and the Court of Appeals affirmed.

Tenn. R. Civ. P. 3 states that when process is issued but not served, a plaintiff must “continue the action by obtaining issuance of new process within one year from issuance of the previous process.” Here, plaintiff did not have the new process issued until well beyond one-year after the first, unserved process was issued.

July 10, 2023

Legal malpractice claim barred by statute of limitations.

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

Where a pro se plaintiff knew about defendants’ alleged legal malpractice more than one year before he filed suit, summary judgment based on the statute of limitations was affirmed.

In Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023), plaintiff filed a legal malpractice claim against defendant attorneys based on their representation of him in an underlying divorce case, which included an order of protection against plaintiff. The order of protection was entered on May 30, 2017, and stated that plaintiff could no longer reside at a Tellico Plains residence, but the order was supposed to specify a different residence located in Sweetwater.

Beginning in June 2017, “Plaintiff informed Defendants on more than one occasion that the Circuit Court had erred in its May 30, 2017 amended of or protection by listing the incorrect address[.]” In August 2017, plaintiff was arrested due to his refusal to leave the Tellico Plains address, and he was incarcerated for six months. On March 5, 2018, plaintiff filed a pro se motion to alter or amend the order of protection by correcting the address, which was granted in April 2018.

May 23, 2023

City ordinance violation does not extend Tennessee’s typical one-year personal injury statute of limitations.

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

Ordinarily and subject to several important exceptions, the statute of limitations in Tennessee personal injury cases is one year. One exception to that rule is Tenn. Code Ann. § 28-3-104(a(2), which addresses situations where the civil defendant faced criminal charges as a result of a incident giving rise to the cause of action. However, a new decision declares that where a defendant in a car accident case received a traffic citation for violation of a city code ordinance, the statute of limitations for filing a claim related to that accident was not extended under Tenn. Code Ann. § 28-3-104(a)(2).

In Glover v. Duckhorn, No. W2022-00697-COA-R3-CV (Tenn. Ct. App. May 2, 2023), plaintiff and defendant were involved in a car accident, and defendant received a traffic citation for violation of a city code ordinance for failure to maintain a safe lookout. No other citation was issued. One year and one day after the accident, plaintiff filed this personal injury action, and defendant filed a motion to dismiss based on the one-year statute of limitations. Plaintiff asserted that the limitations period was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2), but the trial court granted dismissal, and the Court of Appeals affirmed.

Personal injury suits are subject to a one-year statute of limitations under Tenn. Code Ann. § 28-3-104, but subsection (a)(2) extends the limitations period to two years under certain circumstances:

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.