Day on Torts
Where plaintiff named the wrong defendant in a Tennessee premises liability suit, was informed that the named defendant did not own the property three weeks after the complaint was filed, but failed to take any corrective action for more than four months when she filed a “Motion to Correct Misnomer” in response to defendant’s motion for summary judgment, denial of plaintiff’s motion and the granting of summary judgment for defendant was affirmed. In Bodine v. Long John Silver’s LLC, No. M2021-00168-COA-R3-CV (Tenn. Ct. App. Jan. 14, 2022), plaintiff fell on what she alleged was a dangerous concrete structure in a Long John Silver’s parking lot. The fall occurred on February 25, 2019, and plaintiff filed this suit on February 24, 2020, against “Long John Silver’s, LLC, individually and d/b/a Long John Silver’s.” Three weeks after suit was filed, counsel for defendant emailed plaintiff and stated that JAK Foods, Inc. was the franchisee for this restaurant location, and defendant did not own, operate, or control the restaurant or have any employees there.
Defendant filed an answer in April 2020, then filed a motion for summary judgment on June 11, 2020, asserting that it owed no duty to plaintiff. On July 28, 2020, plaintiff filed a “Motion to Correct Misnomer,” seeking to substitute JAK Foods as defendant. Plaintiff argued that the substitution should relate back to the date of the original filing under Tennessee Rule of Civil Procedure 15.03, as JAK Foods had “received timely notice of the action and that it should have known that but for the mistake regarding its identity, the action would have been brought against it.” In October 2020, defendant asked that the motions be put on the docket, and after a December hearing, the trial court denied plaintiff’s motion and granted summary judgment to defendant. When plaintiff filed a motion to alter or amend, the trial court specifically noted that it “considered…the extreme lack of due diligence exhibited by the Plaintiff” and that “no additional due diligence was performed by Plaintiff from July 2020 to January 2021.” The trial court accordingly denied the motion to alter or amend, and the Court of Appeals affirmed.
In its analysis, the Court of Appeals first pointed out that plaintiff had failed to designate “the grant of summary judgment as an issue for review,” so that issue was waived. The only issue on appeal, then, was whether the trial court correctly denied plaintiff’s “Motion to Correct Misnomer.”
The Court began by looking to Rule 15.01, which provides that “once a defendant answers a complaint, the complaint may be amended only by written consent of the defendant or by leave of the trial court.” When considering whether to grant leave to amend, several potential considerations have been identified, including “undue delay.” (internal citation omitted). “While delay alone is an insufficient basis for denying leave to amend, unexplained delay coupled with other factors may constitute ‘undue delay’ within the meaning of the Rules…” (internal citation omitted). Here, the trial court considered plaintiff’s delay and “extreme lack of due diligence” when making its decision, which the Court of Appeals agreed were appropriate considerations.
The Court of Appeals listed several reasons for affirming the denial of plaintiff’s motion. First, plaintiff titled the motion as a “Motion to Correct Misnomer,” and she did not seek an agreement with defendant or leave of the trial court to amend her complaint. The Court therefore agreed with the trial court that “a proper motion to amend was not before the court.” Further, plaintiff “never offered a sufficient reason for the delay” in this case, as the evidence showed that defendant informed her that JAK Foods was the proper defendant in March 2020, but plaintiff’s motion to name JAK Foods was not filed until July 2020, more than four months later. In fact, plaintiff did not file this motion until the day defendant’s motion for summary judgment was set to be heard.
Plaintiff asserted that “her delay in naming the correct party was due in large part to COVID-19 restrictions” because depositions were difficult at that time, but the Court pointed out that “plaintiff did not need to take a deposition to know that she sued the wrong entity.” The email from defendant, as well as defendant’s answer, pointed out that defendant was the incorrect party. Plaintiff also argued that Rule 15.03 would allow relation back in this case, but the Court stated that “Rule 15.03 is not the issue…because the trial court concluded that, based on the procedural posture of the case, Plaintiff had not properly sought leave to amend her Complaint to add the correct party.” For all of those reasons, the trial court’s denial of plaintiff’s motion was affirmed.
This case shows the importance of timeliness and attention to the Rules of Civil Procedure when an incorrect party has been named as a defendant.
My dad, a lawyer with a general practice in a town of 897 people in Central Wisconsin, told me in 1978 that civil procedure would be the most important class I would take in law school. I thought he was crazy, especially when the first topic addressed by the professor was the “law of the case” doctrine (which the last section of the textbook). I thought the professor was crazy, too.
I wrong. About both of them. And about the important of the rules of civil procedure.
NOTE: This opinion was released approximately four months after oral arguments in this case.