Day on Torts
Tennessee Court of Appeals rules that Tennessee courts lose jurisdiction to reconsider dismissal when an aggrieved party fails to take proper action within the limited 30-day window after entry of final judgment.
In Hailey v. Wesley of the South, Inc., d/b/a Wesley at Dyersburg, No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013),the plaintiffs filed suit for wrongful death, medical negligence, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress stemming from the care and treatment of the decedent, Beatrice Jackson. Defendant filed a motion to dismiss citing the plaintiff’s failure to file a certificate of good faith within ninety days of the filing of the complaint, as then-required by Tenn. Code Ann. § 29-26-122 (note: current law requires contemporaneous filing of certificate of good faith in health care liability actions requiring expert testimony). Not finding any adequate basis for the plaintiff’s failure to comply with the certificate of good faith requirement, the circuit court granted the motion and on April 22, 2010, dismissed the entire case finding that all claims were for medical malpractice and required a certificate of good faith. A timeline of the ensuing procedural events is as follows:
- · May 21, 2010 – Plaintiff files first motion to alter or amend arguing that the court erred in finding that all of her claims arose from charges of medical malpractice.
- · May 21, 2010 – Plaintiff also files first notice of appeal.
- · July 19, 2010 – Plaintiff’s motion to alter or amend is heard and court orders parties to file memorandums on whether the Medical Malpractice Act governs the plaintiff’s claims.
- · August 3, 2010 – Defendant files a supplemental memorandum.
- · August 12, 2010 – After the plaintiff fails to file a memorandum, the court enters order denying the plaintiff’s motion to alter or amend.
- · August 23, 2010 – The trial judge and attorneys hold a conference call and plaintiff’s counsel claims to have authority that would convince the court to grant the plaintiff’s motion to alter or amend, resulting in the trial court instructing plaintiff’s counsel to immediately file a second motion to alter or amend along with the claimed convincing authority.
- · August 30, 2010 – Plaintiff files second motion to alter or amend
- · August 30, 2010 – Plaintiff also files a second amended complaint, without leave, attempting to assert new claims of negligence per se and violation of the Tennessee Adult Protection Act
- · September 8, 2010 – The trial court denies plaintiff’s second motion to alter or amend, noting that the plaintiff failed to argue any new authority other than to mention the Tennessee Adult Protection Act, which was not cited in the original complaint.
- · June 14, 2011 – The Court of Appeals orders the plaintiff to show cause as to why her appeal should not be dismissed for failure to timely file a notice of appeal, noting that the circuit court clerk’s only record of the notice of appeal was received by facsimile, which is not permitted under Tenn. R. Civ. P. 5A.02.
- · August 11, 2011 – Court of Appeals dismisses plaintiff’s appeal for lack of jurisdiction because the plaintiff provided no proof that the notice of appeal was mailed to the trial court clerk for filing, as the plaintiff had alleged.
- · August 30, 2011 – Court of Appeals denies the plaintiff’s petition for rehearing.
- · December 15, 2011 – Plaintiff files third motion to alter or amend in the trial court, based on the same purported new authority that would convince the trial court that the plaintiff’s claims were not governed by the Medical Malpractice Act.
- · May 9, 2012 – The trial court denies plaintiff’s third motion to alter or amend, ruling that the trial court lost all subject matter jurisdiction after the appeal without remand by the Court of Appeals.
- · June 8, 2012 – Plaintiff files second notice of appeal, prompting this appeal.
The main issues on appeal concerned: (1) whether the trial court correctly dismissed the plaintiff’s third motion to alter or amend for lack of subject matter jurisdiction; and (2) whether the Court of Appeals had subject matter jurisdiction to entertain the appeal.
Governing law holds that the date of entry of a final judgment in a civil case triggers the start of the thirty-day period in which the aggrieved party must file either a post-trial motion or a notice of appeal. Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009). A timely-filed motion to alter or amend tolls commencement of the thirty-day period for filing a notice of appeal until the trial court grants or denies the motion. Id. A trial court lacks subject matter jurisdiction to rule on a post-trial motion if it is not timely, while the appellate court similarly lacks subject matter jurisdiction if the notice of appeal is not timely.
The Hailey court found that the final, operative judgment occurred when the trial court dismissed the entire case on April 22, 2010. The first motion to alter or amend filed on May 21, 2010, was timely, as was the second motion to alter or amend filed at the instruction of the trial court on August 30, 2010. However, the Court of Appeals ruled that the third motion to alter or amend filed on December 15, 2011, did not timely follow an order affecting the plaintiff’s substantive rights. Thus, the third motion was an impermissible successive Rule 59 motion that did not toll the thirty-day appeal period. See Parks v. Mid-Atlantic Finance Co., Inc., 343 S.W.3d 792, 799 (Tenn. Ct. App. 2011) (“Because Rule 59 motions delay appeals and finality, successive Rule 59 motions are not allowed.”). An untimely post-trial motion meant that the trial court lacked subject matter jurisdiction to rule on the motion. Furthermore, the Court of Appeals lacked jurisdiction because the notice of appeal was not filed either within thirty days of the final judgment on April 22, 2010, or within thirty days of the trial court’s ruling on a timely filed motion to alter or amend. Accordingly, the plaintiff’s appeal was dismissed. The Court of Appeals also found the appeal frivolous and awarded the defendant fees and costs, including attorney fees.
Among the many lessons to take from Hailey are (1) make sure to understand when a final judgment has been entered in your case, (2) pay close attention to Tennessee’s procedural rules for filing and know which documents can be filed by facsimile, and (3) most obviously, after the entry of an adverse final judgment make certain that your notice of appeal is filed within thirty days thereafter or, if you choose to file a motion to alter or amend the judgment, within thirty days after the trial court rules on the motion.