Limitation of Actions

June 8, 2022

Discovery rule applied in HCLA case involving food service provider.

Where defendant was contracted to provide food services to a hospital, and decedent’s injury was allegedly a result of actions or omissions from the food service provider, the Court of Appeals affirmed the finding that the discovery rule applied and plaintiff’s pre-suit notice was timely even though it was sent more than one year after the injury, as nothing in the record indicated that plaintiff could have or should have discovered defendant’s identity earlier.

In Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV, 2022 WL 1657222 (Tenn. Ct. App. May 25, 2022), decedent was transported to a hospital emergency room and admitted due to complications with his PEG tube, through which he received nutrition. Decedent had an order that nothing be given to him by mouth, but on August 26, 2018, the morning after his admission, he was given a full breakfast tray. Decedent aspirated on the food, was found unresponsive, had multiple rounds of CPR performed, was transferred to a long-term care facility, and eventually died in February 2019.

On June 26, 2019, plaintiff, who was decedent’s son, sent pre-suit notice of his HCLA claim to the hospital where decedent was treated. On June 27, counsel for the hospital emailed plaintiff’s counsel and stated, “I don’t know much about this one but from what little I know this may be an issue with the dietary people. Dietary is contracted out to Sodexo (I think).” After further communication, counsel for the hospital stated that it was informing plaintiff pursuant to Tenn. Code Ann. § 29-26-121(5) that there might be another defendant because dietary services were contracted out.

May 18, 2022

Dismissal partially reversed based on fraudulent concealment.

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

Where plaintiffs averred that defendant home builders affirmatively told plaintiffs that the utility penetrations in the crawl space of the newly built home purchased by plaintiffs in August 2017 had been sealed with foam, and plaintiffs did not learn until January 2018 after an inspection by a mold remediation company that this statement was untrue, plaintiffs’ claims related to the damage allegedly caused by this failure to seal should not have been dismissed based on the statute of limitations, as plaintiff had put forth enough evidence from which a trier of fact could have found that the statute of limitations on these claims was tolled by fraudulent concealment.

In Simpkins v. John Maher Builders, Inc., No. M2021-00487-COA-R3-CV, 2022 WL 1404357 (Tenn. Ct. App. May 4, 2022), plaintiffs filed this pro se action that revolved around a newly built home they bought in August 2017 that had allegedly developed severe mold issues. Plaintiff asserted various claims against defendants, including breach of contract, fraud, intentional misrepresentation, and negligence, all of which the trial court dismissed as untimely pursuant to the three-year statute of limitations applicable to claims of injuries to real property. (Tenn. Code Ann. § 28-3-105.) On appeal, dismissal was partially reversed.

January 11, 2022

Legal Malpractice Claim Filed More than One Year after BPR Complaint was Untimely.

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

Where plaintiff had filed complaints with the Board of Professional Responsibility (BPR) complaining of the same allegations that allegedly supported her legal malpractice claim, and those BPR complaints were filed more than one year before the legal malpractice suit was filed, summary judgment based on the statute of limitations was affirmed.

In Jones v. Marshall, No. M2020-01627-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2021), plaintiff filed this pro se legal malpractice claim against defendant on December 20, 2019. Plaintiff had previously reported defendant to the BPR based on the same allegations in November 2018. Defendant filed a motion to dismiss, asserting that the BPR decisions on the matter “were res judicata and Plaintiff had failed to establish a prima facie case of legal malpractice.” Defendant filed a separate motion for summary judgment, asserting that the complaint was barred by the statute of limitations.

August 25, 2021

Legal malpractice claim dismissed as untimely.

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

Where plaintiff filed a legal malpractice action in federal court within the one-year statute of limitations, but then waited more than one year after dismissal of that federal case to file this claim for legal malpractice, dismissal based on the statute of limitations was affirmed. In Tolson v. Herbison, No. M2020-01362-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2021), plaintiff retained defendant to represent him in post-conviction matters related to plaintiff’s previous conviction for first-degree murder. The trial court denied post-conviction relief, which the Court of Appeals affirmed, and the Tennessee Supreme Court denied certiorari.

On May 23, 2013, plaintiff filed a complaint with the Tennessee Board of Professional Responsibility asserting that defendant failed to notify him of the denial of certiorari and failed to correspond with him, and that “as a result of [defendant’s] alleged errors, [plaintiff’s] writ of habeas corpus was denied as time-barred.” When plaintiff completed this complaint, he signed a disclaimer noting that legal malpractice claims are subject to a statute of limitations.

Plaintiff filed a legal malpractice claim in federal court on October 18, 2013, which the district court dismissed. The Sixth Circuit affirmed dismissal on October 6, 2016. Plaintiff then filed this case in Davidson County Circuit Court in July 2018, which the trial court dismissed as time-barred, and the Court of Appeals affirmed.

August 9, 2021

Finding of conversion and fraudulent concealment affirmed where brother signed sister’s name on check

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

Where plaintiff’s brother surrendered an annuity fund, signed plaintiff’s name on the check from the fund, and deposited the funds in his own account, all without plaintiff’s consent or knowledge, the trial court’s verdict that defendant brother was liable for conversion was affirmed, as was the finding that the statute of limitations was tolled by defendant’s fraudulent concealment. In Pomeroy v. McGinnis, No. E2020-00960-COA-R3-CV (Tenn. Ct. App. July 16, 2021), plaintiff and defendant were brother and sister. When their mother sold her house and moved in with defendant, the proceeds from the sale were used to purchase an annuity. Plaintiff and defendant were named as co-owners and beneficiaries of the annuity, with the mother named as the annuitant (although the annuity never produced an income stream). The trial court found, based on the testimony of the parties, that the purpose of the annuity was to ensure that the mother would eventually qualify for Medicaid benefits.

In 2012, defendant submitted a form surrendering the annuity, and a check was made payable to plaintiff and defendant. Defendant signed both his own name and plaintiff’s name on the check, then deposited the proceeds into a joint account he shared with his then wife. When defendant and his wife were later divorcing in 2019, the annuity came to light, and the wife informed plaintiff that she had seen a check that appeared to have been endorsed by someone else on her behalf. Plaintiff alleged that she had no knowledge of the annuity, the surrender, or the check until these divorce proceedings in 2019, and accordingly filed this suit for conversion against defendant.

May 4, 2021

Traffic Citations: Their Impact on Statutes of Limitations in Tennessee Personal Injury and Wrongful Death Cases

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

My newest column it Tennessee Bar Journal: Traffic Citations: Their Impact on Statutes of Limitations in Personal Injury and Wrongful Death Cases.”

February 8, 2021

Statute of limitations extended to two years where defendant was given traffic citation after car accident.

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

Where plaintiff’s personal injury claim was based on a Tennessee car accident for which defendant was given a traffic citation for failure to exercise due care under Tenn. Code Ann. § 55-8-136, which is a Class C misdemeanor, the statute of limitations for plaintiff’s action was extended to two years pursuant to Tenn. Code Ann. § 28-3-104(a)(2).

In Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan. 28, 2021), plaintiff was injured in a car accident with defendant in September 2017. A state trooper issued defendant a traffic citation listing three violations, including “failure to exercise due care, pursuant to Tennessee Code Annotated § 55-8-136.” Defendant eventually paid a fine for this citation. In April 2019, which was more than one year after the accident, plaintiff filed this personal injury action, arguing that instead of being subject to the standard one-year statute of limitations for personal injury claims, the statute of limitations for this case was extended to two years by virtue of Tenn. Code Ann. § 28-3-104(a)(2). Defendant filed a motion for summary judgment based on the statute of limitations issue, but the trial court ruled in favor of plaintiff, and the Court of Appeals affirmed.

December 30, 2020

Tennessee “Discovery Rule” Applied to Vehicle Crash Case

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

Where plaintiff knew her husband was killed in a car accident with a firefighter but did not know all the details regarding how the accident occurred, the one-year statute of limitations began to run on the day of the crash and her GTLA suit that was filed more than one year after the accident was untimely.

In Durham v. Estate of Losleben, No. W2019-01623-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2020), the plaintiff’s husband was killed when his vehicle collided with one being driven by a firefighter. One year and 21 days after the accident, the plaintiff filed this case under Tennessee’s Governmental Tort Liability Act against the county that employed the firefighter, the fire department, and the estate of the firefighter, who was also killed in the accident.

Defendants moved to dismiss based on the statute of limitations. The trial court granted the motion, finding that the GTLA claim against the governmental entities was time-barred and that the estate was immune under the GTLA. The Court of Appeals affirmed this ruling.

May 6, 2020

Suing a Deceased Defendant in Tennessee

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

Where a plaintiff filed a personal injury action against the personal representative of the estate of the deceased tortfeasor, but the estate had already been closed and the statute of limitations had run by the time the plaintiff sought to extend the time to file correctly, dismissal based on untimeliness was affirmed.

In Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31. 2020), plaintiff was injured in a car accident allegedly caused by Nancy Craig on September 25, 2017. Nancy Craig died the following January, and her estate was opened with Defendant David Craig as her personal representative in February 2018. The estate was closed on July 13, 2018.

April 1, 2020

Statutes of Limitation and Repose Extended in Tennessee

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

The Tennessee Supreme Court has extended the deadlines for filing suit (both statutes of limitations and statutes of repose) because of the coronavirus and Covid-19.

By Court Order filed March 25, 2020, the Court said this:

Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through