Check out Practical Procedure and Evidence for a post about a fight over the meaning of “double spacing” in the local rules for the United States District Court for the Western District of Tennessee.
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Statute Extending Statute of Limitations Does Not Extend Time for Service of Process
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.
Are You Reading Practical Procedure and Evidence?
About eight months ago I started another blog, Practical Procedure and Evidence. I blog about issues relating to civil and appellate procedure and evidence that impact civil trial lawyers in Tennessee.
Here are some recent posts:
Summary judgment for car accident defendant reversed.
Where a car accident plaintiff responded to a motion for summary judgment by relying on his own deposition testimony and defendant’s interrogatory responses, the Court found that he had created a genuine issue of material fact.
In Arnold v. Malchow, No. M2022-00907-COA-R3-CV (Tenn. Ct. App. Aug. 9, 2023), a pro se plaintiff brought a negligence claim against defendant driver and defendant underinsured motorist insurance company based on a car accident. The trial court granted summary judgment to defendants, finding that plaintiff’s response to the summary judgment motion was insufficient and relied only on inadmissible facts. On appeal, summary judgment was reversed.
Defendant’s statement of undisputed material facts stated that plaintiff did not see anything other than “something white” and that plaintiff did not see defendant driving her car before the accident. While plaintiff’s response to these facts included reliance on several inadmissible sources, he also relied on defendant’s interrogatory responses and his own deposition, both of which were admissible evidence.
Summary judgment overturned in car accident case.
Where there were questions of fact regarding how much mud was on a road and whether defendants were the cause of the mud, the Court of Appeal reversed summary judgment for defendant trucking company in a car accident negligence case.
In Sullivan v. Carden, No. E2022-01234-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2023), plaintiff had a car accident when he allegedly hit a patch of frozen mud on a rural road. Plaintiff filed this negligence action against defendant trucking company and its owner, asserting that “his accident was caused by Defendants’ failure to remove excessive mud they had deposited onto the rural road he drove on.”
Defendants were running a logging operation in the area. The access road to the logging site was gravel, and only the logging equipment touched the mud/dirt rather than the gravel. Two days before the accident, the logging equipment was loaded onto trailers and driven to another site. Plaintiff argued that defendants’ actions caused mud on the road to the extent that it created an unreasonably dangerous condition. Plaintiff had a witness who stated that he had taken photos of frozen mud on the road at the site of the accident, that he had seen mud streaming from the logging site, and that he had seen another driver slip on the mud.
Summary judgment affirmed in Tennesssee informed consent case.
Where plaintiff signed an informed consent document and failed to present any expert testimony regarding the sufficiency or circumstances of the document, summary judgment for defendant on plaintiff’s informed consent HCLA claim was affirmed.
In Jarnagin v. Vanderbilt University Medical Center, No. M2022-01012-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff met with defendant doctor about a possible procedure related to potential kidney cancer. Plaintiff asserted that during that meeting, the doctor said the only possible side effect was infection at the insertion site, yet the doctor asserted that she went through all of the possible side effects. The notes from the visit supported the doctor’s testimony, and defendants produced an informed consent form signed by plaintiff on the day of the visit that listed the potential side effects of the procedure. Plaintiff stated that he did not specifically remember signing the document, but that the doctor’s assistant had asked him to sign paperwork that explained what the doctor had discussed with him.
After the procedure, plaintiff suffered a complication and later filed this HCLA informed consent action. Defendants moved for summary judgment on the basis of the signed informed consent document, which the trial court granted, finding that the only expert testimony presented by plaintiff did not address the sufficiency or circumstances of the signed document. Summary judgment was affirmed on appeal.
Statutory immunity provisions related to health care powers of attorney did not prevent inquiry into whether decedent had mental capacity to execute power of attorney.
Where an arbitration agreement had been signed by a decedent’s attorney in fact upon the decedent’s admission into a nursing home, and on a motion to compel arbitration filed by the nursing home the trial court considered evidence on whether the decedent had the mental capacity to execute the power of attorney for healthcare, the Tennessee Supreme Court affirmed the trial court’s consideration of such evidence. The Supreme Court held that the immunity provisions in Durable Power of Attorney for Health Care Act and the Health Care Decisions Act did not bar the trial court from considering evidence of the decedent’s mental capacity.
In Welch v. Oaktree Health and Rehabilitation Center LLC d/b/a Christian Care Centers of Memphis, No. W2020-00917-SC-R11-CV, — S.W.3d — (Tenn. Aug. 31, 2023), plaintiff was decedent’s brother and brought this wrongful death claim against defendant nursing home. Decedent had been diagnosed with down syndrome when he was born, and he could not read and had difficulty understanding instructions. In connection with an eye surgery in 2012, plaintiff had helped decedent scratch his name on a durable power of attorney for healthcare (“POA”). Plaintiff had printed and filled out the POA.
In the subsequent years, plaintiff used the POA several times when assisting decedent with obtaining healthcare. In 2016, plaintiff had decedent admitted to defendant nursing home. Plaintiff filled out several documents in connection with the admission, including an optional arbitration agreement, on behalf of decedent. It was uncontested that plaintiff would have shown defendant the POA during the admission process.
Defendant waived appellate arguments by failing to renew motion for directed verdict or file motion for new trial.
Where defendant moved for a directed verdict after the close of plaintiff’s proof but failed to renew the motion at the close of all proof, and did not file a post-trial motion seeking a new trial, defendant waived review of the denial of the motion for directed verdict as well as review of the sufficiency of the evidence.
In Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff purchased a home at auction and later brought this claim against defendant, who marketed and facilitated the auction. Plaintiff alleged that defendant knew the home had mold issues and failed to disclose them, and defendant misrepresented the number of acres sold with the home. In addition to contract claims, plaintiff asserted a claim for reckless misrepresentation.
At the end of plaintiff’s proof, defendant moved for a directed verdict, which the trial court denied. Defendant failed to renew its motion at the close of its own proof, and the jury returned a verdict for plaintiff. Defendant did not file a post-trial motion for a new trial, but appealed asserting that the trial court erred in denying the motion for directed verdict and that the evidence was not sufficient to support the jury’s finding. The Court of Appeals ruled that defendant had waived both of these arguments and affirmed the jury’s verdict.
Tort proceeds belonged to decedent’s estate rather than surviving spouse.
After decedent was killed when hit by a vehicle while riding her bicycle, her surviving spouse brought claims against various parties, including a claim against decedent’s insurance provider for negligent misrepresentation and negligent failure to procure insurance. Because these claims were based in tort rather than wrongful death, the Court of Appeals ruled that they accrued to the decedent at the time of her fatal injuries and the settlement proceeds should have been distributed to her estate, not to her surviving spouse.
In Sanders v. Higgins, No. M2022-00892-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2023), plaintiff was the surviving spouse of decedent, who was killed when she was hit by a vehicle while riding her bicycle. Plaintiff brought various claims against several defendants, but the one at issue in this appeal was a claim for negligent misrepresentation and negligent failure to procure insurance against decedent’s insurance company. According to plaintiff, the insurer had misrepresented to plaintiff and decedent that an umbrella policy had been reinstated, and plaintiff did not learn until after decedent’s death that the policy reinstatement never occurred.
The parties reached a settlement on the negligence claims, and the trial court ordered disbursement of the settlement proceeds to plaintiff as surviving spouse. The trial court ruled that the settlement proceeds were compensatory damages to plaintiff, “encompassing the amount of coverage [plaintiff] would have received as a result of the Decedent’s death had an umbrella policy been in place.” Decedent’s estate appealed this ruling, arguing that the tort claim proceeds should have been distributed to the estate. On appeal, the trial court was reversed.