Day on Torts

March 30, 2023

Misrepresentation summary judgment affirmed where plaintiffs failed to comply with appellate procedure rules.

Where plaintiffs’ appellate brief failed to include appropriate citations to the record and failed to “even address the revised judgment from which they appealed,” summary judgment for defendants on claims of intentional and/or negligent misrepresentation was affirmed in a memorandum opinion.

In Smith v. Walker, No. W2022-00748-COA-R3-CV (Tenn. Ct. App. Mar. 28, 2023) (memorandum opinion), plaintiffs purchased a home from defendants, and soon after the purchase, plaintiffs discovered that the home was contaminated with mold. Plaintiffs filed suit for breach of contract, negligence, negligent misrepresentation, and intentional misrepresentation, but the trial court granted summary judgment for defendants based on the “as is” nature of the purchase agreement. Plaintiffs appealed the summary judgment order, and the Court of Appeals found that the trial court order “was deficient because it did not address each of the causes of action alleged by Buyers and included scant reasoning and explanation regarding its ruling….”

On remand, the trial court entered a new order granting summary judgment. In this more detailed order, the trial court addressed all of plaintiffs’ claims and explained the basis for summary judgment. The trial court noted that plaintiffs could not support their misrepresentation claims because they “failed to identify any ‘false information’ provided by [defendants],” and that plaintiffs “failed to present any credible proof that [defendants] represented to them that the home was ‘free from mold or other contaminants.’” The trial court also pointed out that the sales contract stated that plaintiffs had a duty “to inspect for mold or other contaminates,” and that plaintiffs had presented no proof that defendants knew about the mold.

March 23, 2023

No legal malpractice where plaintiff could not show that he was harmed by representation.

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

Where plaintiff could not show that he was harmed in any way by defendant attorney’s alleged legal malpractice, summary judgment on the malpractice claim was affirmed.

In a memorandum opinion in Sutton v. The Westmoreland Law Firm, No. M2021-01209-COA-R3-CV (Tenn. Ct. App. Mar. 21, 2023) (memorandum opinion), plaintiff consulted with and hired defendant attorney after receiving a detainer warrant from his apartment complex. When plaintiff met with defendant, they discussed a $1,000 retainer but did not discuss who was responsible for paying filing fees.

Defendant attorney filed an answer to the detainer warrant, and at plaintiff’s request, filed a counter-complaint alleging that the apartment had been unlivable due to a water leak. At the hearing on the matter, the attorney for the apartment complex admitted to an accounting error, and while the trial court granted possession to the complex, it refused any request for damages against plaintiff. Regarding plaintiff’s counter-complaint, the trial court informed plaintiff that the filing fee had not been paid and therefore dismissed the counter-complaint. After the hearing, plaintiff terminated his representation by defendant attorney.

March 18, 2023

Stats on Davidson County, Tennessee Tort Trials and Verdicts

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

Information is now available on the number of tort trials and jury verdicts in Davidson County, Tennessee for the fiscal year ending June 30, 2022.

There were 1883 tort cases filed in Davidson County (not including health care liability act cases) and 41 tort trials. Here is how that compares with prior years:

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Note that barely 2% of all filed cases are tried to judgment, a number which is generally consistent with past years. When your client asks you “what are the odds my case will go to trial” you can say that, on average 98% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

March 17, 2023

New Procedure and Evidence Blog

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

Don’t forget to check out my newest blog, Practical Procedure and Evidence. The blog addresses procedural issues at the trial and appellate level and the law of evidence.

I write about issues that are of interest to lawyers working in the trenches of civil trial law. The law of procedure and evidence are the rules of litigation “game,” and those who do not know or follow the rules are at an extreme disadvantage in the preparation and trial of civil cases. Conversely, those who know and use the rules can gain a fair, strategic advantage.

The blog already has 26 published posts with three more posts scheduled to appear in the coming days. Already published posts include spoliation of evidence, serving out-of-state defendants in motor vehicle cases, and a presumption of adequate consideration when a contract is in writing.

March 13, 2023

Defamation claim dismissed pursuant to Fair Credit Reporting Act.

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

Where plaintiff asserted a defamation claim based on his car insurance company putting an “at fault designation” on a federally regulated database, summary judgment for defendant insurance company was affirmed.

Seely v. GEICO Advantage Insurance Company, No. M2021-01263-COA-R3-CV (Tenn. Ct. App. Mar. 6, 2023) arose out of a dispute between an insured driver and his insurance company following a minor car accident. The insurance company determined that plaintiff driver was at fault, and it paid the claims from the injured party. Despite plaintiff’s assertion that the accident was caused by brake failure and his submission of receipts for brake work, GEICO put an “at fault designation” on plaintiff’s Comprehensive Loss Underwriting Exchange (CLUE) report. Plaintiff’s premiums were thereafter raised.

In his complaint, plaintiff asserted several causes of actions, including one for defamation. Plaintiff alleged that “[b]y filing an erroneous entry in Plaintiffs’ CLUE reports GEICO damaged not only their driving records but affected their creditworthiness and good names.” Defendant filed a motion to dismiss the defamation claim, which the trial court granted, and the Court of Appeals affirmed.

March 10, 2023

Plaintiff waived objection to discovery from testifying expert where objection was not made until expert deposition was in progress.

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

In an HCLA case discovery dispute, the Tennessee Court of Appeals ruled that plaintiff’s testifying experts’ “notes, drafts, and communications with counsel” were discoverable under the Tennessee Rules of Civil Procedure and that plaintiff had waived any claim that the requested items were privileged.

In Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), plaintiff filed a healthcare liability case against defendants based on injuries that occurred during plaintiff’s c-section. During the deposition of one of plaintiff’s testifying experts, the expert referenced an email sent to plaintiff’s counsel that included a bullet-point list as well as a page of handwritten notes, neither of which had been provided to defendants in response to defendants’ interrogatories, requests for production of documents, or requests accompanying the deposition notice. Defendants filed a motion to compel plaintiff to produce certain documents from her testifying experts, including “correspondence to and from her expert witnesses, draft reports of expert witnesses, and any similar materials.” Plaintiff responded that the documents were protected from discovery, but the trial court ultimately granted the motion to compel, which was affirmed (but modified) on appeal.

In its analysis, the Court initially clarified which Rules of Civil Procedure applied here. Because the experts at issue were identified as testifying experts, Rule 26.02(4)(A) applied to discovery related to these experts. Further, the Court ruled that Rule 26.02(3), which addresses discovery of trial preparation materials, applied, but it clarified that “the requirements of subdivision (3) are subject to those of subdivision (4) for discovery of expert witness information.”

March 4, 2023

Tennessee GTLA removes immunity for ordinary negligence only.

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

In a unanimous decision, the Tennessee Supreme Court has held that the Governmental Tort Liability Act (GTLA) “removes immunity only for ordinary negligence,” not for gross negligence or recklessness.

In Lawson v. Hawkins County, Tennessee, No. E2020-01529-SC-R11-CV (Tenn. Feb. 16, 2023), plaintiffs were the surviving spouse and child of a driver whose car flipped down a mountain after a portion of highway was washed out by a mudslide. The local 911 dispatch was alerted to the mudslide issue at 12:58 a.m., and a deputy arrived at the scene around 1:13 a.m. During subsequent calls to various government agencies, there was no discussion of closing the road. At 1:46 a.m., the deputy called 911 again and reported that decedent’s car had flipped down the mountain. The driver was trapped in his car for eleven hours and died before he could be reached. Shortly after decedent’s accident, another car also fell down the mountain, and only then did the deputy call for assistance to “block the road off.”

Plaintiffs filed this wrongful death suit, asserting that the “grossly negligent and reckless conduct” by defendant governmental entities caused decedent’s death. Defendants moved for judgment on the pleadings, arguing that the GTLA “provided immunity from suit for claims based on recklessness,” and the trial court agreed. The trial court ruled that the GTLA “gave defendants immunity from claims alleging recklessness and that the public-duty doctrine independently barred any claims based on negligence.” The Court of Appeals reversed dismissal. In its opinion, the Court of Appeals ruled that plaintiffs could pursue claims based on gross negligence and/or recklessness under the GTLA. The Supreme Court, however, disagreed with the Court of Appeals and reversed this ruling.

March 3, 2023

Tennessee statute of limitations is based on gravamen of complaint.

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

Where plaintiff’s claims against defendant county were based on intentional torts, a one-year statute of limitations applied.

In Anderson v. Lauderdale County, Tennessee, No. W2022-00332-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2023), plaintiff was pulled over by a sheriff’s deputy employed by defendant county. According to plaintiff, the deputy pointed a gun at plaintiff, chased him and called for backup when plaintiff tried to drive away, eventually tased plaintiff, and made false statements about plaintiff, causing him to be wrongfully charged with multiple crimes. Plaintiff further asserted that “a grand jury returned an indictment against [the deputy].”

Plaintiff filed this complaint against the deputy and defendant county more than one year after the incident, asserting that the county was liable for the deputy’s actions under Tenn. Code Ann. § 8-8-302 and -303. Plaintiff’s initial complaint listed several intentional torts, but his amended complaint removed the referral to any specific torts and instead alleged liability more generally. After plaintiff voluntarily dismissed the deputy, defendant county filed a motion to dismiss pursuant to the statute of limitations, which the trial court granted upon determining that a one-year statute of limitations applied. Dismissal was affirmed on appeal.

March 2, 2023

New Books Available – Appellate Standards of Review in Civil and Criminal Cases

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

I am happy to report that BirdDog Law is now offering two new books – Grading Papers – Civil and Grading Papers – Criminal. The books help lawyers quickly identify the applicable standard of review of multiple civil and criminal law issues.

Why does a trial lawyer care about appellate standards of review? Well, sometimes trial lawyers handle appeals. And, even if a trial lawyer never handles an appeal knowing the standard of review will help you advise your client on the appealability of an adverse decision and help you better pick your battles with our opponent and the trial judge.

And, using one of our Grading Papers books also gives you a leg up on legal research. How? If you find the standard of review in this book, the opinion (links included) will lead you to a discussion of the law on the subject. The latest law on the subject, because all opinions referenced are from January 1, 2022 or later (some TSC opinions that are cited are older).

February 27, 2023

TPPA Petition to Dismiss Does Not Survive Voluntary Dismissal.

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

A plaintiff may take a voluntary nonsuit even after the defendant has filed a petition to dismiss under the TPPA, and a petition to dismiss under the TPPA does not survive after voluntary dismissal by the plaintiff and is not considered a counterclaim.

In Flade v. City of Shelbyville, Tennessee, No. M2022-00553-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2023), plaintiff filed suit against several defendants asserting claims for libel, intentional interference with business, and intentional infliction of emotional distress. These claims were based on statements made by defendants about plaintiff through text messages and on social media regarding plaintiff’s role as the landlord of a duplex.

In response to the complaint, the two non-governmental defendants filed separate motions to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) and the Tennessee Public Participation Act (TPPA), Tennessee’s anti-SLAPP statute. While these motions were pending, plaintiff filed notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it held that “the TPPA was not excepted from the right to dismissal without prejudice under Rule 41.01.” On appeal, this ruling was affirmed.