Upcoming Civil Case Arguments at the Tennessee Supreme Court

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff's lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate.  The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D. 

In the second health care liability case, the Supreme Court will consider whether to change the standard for granting and denying motions for summary judgment. Summary judgment is a decision by a trial court before the case is heard, based on a determination that there is no material dispute about the case’s facts.

In this case, a couple sued a Memphis health care center for failing to provide treatment during the mother’s pregnancy that, while not injuring the mother or harming her unborn child, could lead to complications in future pregnancies. The Court will determine whether the trial court properly granted the defendant’s summary judgment on some of the issues in the case. Michelle Rye  v. Women’s Care Center of Memphis, MPLLC.  

Local Rule Changes in the 21st Judicial District

 The Judges in the Chancery and Circuit Courts for Williamson, Hickman, Perry and Lewis Counties have announced substantial changes to the local rules of court.  The changes were effective December 1, 2014.

Among other significant changes, the local rules  now require that one who objects to a motion filed by an opponent file written opposition to the motion. Rule 5.03(c).  Regular motions must be filed at least fourteen days before a hearing, and opposition to the motion filed and served at least 4 days before the hearing. 

A Website and a Unilateral Phone Call - No Personal Jurisdiction

           The Court of Appeals recently addressed the requirements of personal jurisdiction within the context of a misrepresentation case. In Wall Transportation, LLC v. Damiron Corp., No. M2014-00487-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2014), plaintiff was a Tennessee limited liability company and defendant was an Indiana corporation. Defendant had a website where it listed heavy-duty trucks for sale, and plaintiff located a truck on said website that it was interested in purchasing. Plaintiff called defendant’s Indiana location from Tennessee to inquire about the truck and was allegedly told certain things about its condition and mileage. Thereafter, plaintiff traveled to Indiana where he inspected the truck, negotiated a price, entered into a contract for sale, and took delivery of the truck.

            Several months later plaintiff filed suit in Robertson County, Tennessee alleging that defendant had made “false and fraudulent representations about the truck concerning its mileage, gear ratio, and the condition of the truck’s body[.]” Defendant made a special appearance for the sole purpose of filing a motion to dismiss for lack of personal jurisdiction under Tennessee Rule of Civil Procedure 12.02(2). The trial court granted this motion, finding specifically that defendant was an Indiana corporation, did not routinely do business in Tennessee, did not own property or have employees in Tennessee, did not direct advertising to Tennessee, did not purchase substantial amounts of materials from Tennessee, and did not routinely sell products to Tennessee customers. Further, the trial court found that all of the events related to the sale of the truck occurred in Indiana except for the initial phone call, which was initiated in Tennessee by plaintiff. Accordingly, the trial court held that defendant did not have the minimum contacts sufficient to establish personal jurisdiction.

            Based on the same facts cited by the trial court, the Court of Appeals affirmed the lack of personal jurisdiction finding. The Court explained that personal jurisdiction is based on the existence of minimum contacts, and that it can be established through either specific or general jurisdiction. Specific personal jurisdiction exists where a plaintiff can “show that the nonresident defendant has purposely established significant contact with the forum state and that the plaintiff’s cause of action arises out of or is related to those activities or contacts.” General personal jurisdiction requires a showing that the defendant had “continuous and systematic” contacts in the state. Here, neither requirements were met. The Court called defendant’s contacts with Tennessee “tenuous at best,” noting that it was not registered to do business in Tennessee and had no office, employees, vehicles, contact information, or bank accounts in Tennessee. Although defendant’s website could clearly be accessed from Tennessee, the Court specifically stated that “[t]he mere existence of a website is not a sufficient basis to support a finding that [defendant] could reasonably anticipate being haled into court [here].” (internal quotations omitted).

            According to the Court of Appeals, although the effects of the alleged misrepresentation were felt in Tennessee, the damages were sustained and able to be initially ascertained in Indiana. Plaintiff’s unilateral action in initiating the first phone call from Tennessee was not sufficient to bring defendant within the reach of Tennessee’s personal jurisdiction.

            In the current state of business affairs where almost all transactions have some online component, this case is a good reminder that it takes more than just access to a website to establish personal jurisdiction over a foreign defendant. When considering whether a misrepresentation suit can be maintained against an out-of-state party, this case offers valuable insight regarding the factors a court will examine and consider.

Offer of Judgment Cannot Be Revoked During 10-Day Window

The Tennessee Court of Appeals recently took up a civil procedure issue of first impression in the state. In McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), the issue presented was“[w]hether a Rule 68 offer of judgment may be revoked by the offeror within the ten-day time period for acceptance on the basis that the offeror ‘changed his mind.’” Following the weight of authority from federal and other state courts, the Court held that offers of judgment under Rule 68 are generally not revocable prior to the ten-day window expiring.

The McGinnis case arose from a car accident, and though no answer was ever filed, plaintiffs presented defendants with an offer of judgment for a specified amount or the policy limits of the applicable insurance policy. It was undisputed that the offer of judgment was made pursuant to Rule 68. There was some discrepancy between the date on the certificate of service and the date the offer was actually mailed, but defendants’ counsel received it on March 13, 2013. Counsel for both parties spoke two days later and agreed to forgo the deadline due to the postposed mailing. On that same day, however, plaintiff’s counsel faxed defendants’ counsel stating that the offer of judgment was revoked. The basis of this purported revocation was that the plaintiff had changed his mind. Subsequently, but on the same day and well within the ten-day time frame, defendants responded by fax that they accepted the offer of judgment in the amount of the policy limit. As there were no allegations of fraud or other good cause, the trial court found that the offer of judgment could not be revoked and thus granted a motion to enforce the judgment. The Court of Appeals affirmed.

In analyzing the issue, the Court determined that “the failure to include a provision allowing revocation [in Rule 68] is indicative of an intent not to allow revocation within the ten-day time period for acceptance.” The Court stated that adding a revocation provision would “deprive the offeree of the ten  days to consider the offer of judgment  the offeree was clearly intended to possess pursuant to Rule 68’s plain language.” The Court emphasized that the 10-day window was needed to give the offeree an appropriate amount of time to consider the offer, as rejecting such an offer subjects the offeree to certain risks. Allowing revocation would give the offeror the ability to force the offeree into a hasty decision.

Further, despite the fact that an accepted offer of judgment is interpreted under contract law, the Court found that contract law does not provide a basis for revoking a Rule 68 offer of judgment.  “While an accepted offer of judgment is enforced as any other contract, the offer itself is not a creature of contract; it is a mechanism created and governed by the Rules of Civil Procedure.” With this analysis, Tennessee fell in line with most state and federal courts in finding that Rule 68 offers of judgment are not revocable.

Because Tennessee’s Rule 68 allows either a plaintiff or defendant to make an offer of judgment, this is a vital case for all trial attorneys. An offer of judgment must be well thought out and carefully drafted, as once it is submitted to the opponent it cannot be revoked prior to the ten-day window expiring. Under the plain language of the rule as well as the guidance provided from other jurisdictions, this seems to be the correct result and the likely result that the Supreme Court would reach if it ever took up this issue. This holding, then, should govern practitioners’ behavior as they contemplate making offers of judgment in their cases.

Reasoning Required in Tennessee Trial Court's Summary Judgment Order

             In Potter’s Shopping Center, Inc. v. Szekely, No. M2014-00588-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2014), the Court of Appeals relied on the recent Tennessee Supreme Court decision of Smith v. UHS of Lakeside, Inc., 2014 WL 3429204 (Tenn. 2014) to hold the trial court to a higher standard when entering an order granting partial summary judgment.

            The Potter’s Shopping case involved the building of a house and a claim for unjust enrichment by the supplier of materials against the owners of the home. The trial court granted partial summary judgment to plaintiff as to liability, but in its order, the court failed to state any legal grounds for its decision. Citing the Supreme Court’s Smith opinion, the Court of Appeals found that the trial court had failed to comply with Tenn. R. Civ. P. 56.04 when it failed to cite any evidence or argument it had considered in granting summary judgment. The Court noted that appellate courts were sometimes more lenient on this issue when the reasoning for the summary judgment could be gleaned from the record. In the present case, however, the record contained no transcript of the hearing and no other indication of the legal basis for the summary judgment decision.

            Finding that the summary judgment issue “involve[d] questions of law that require analysis and explanation,” the Court vacated the order granting partial summary judgment and remanded the case.

            This case appears to be the first example of the Court of Appeals reviewing a summary judgment order under the more detailed analysis set out by the Supreme Court in Smith. It is an interesting illustration of the higher standard likely to be enforced in the future, reminding attorneys and courts alike that grants of summary judgment that are not supported by legal reasoning provided on the record will be vulnerable on appeal.

Orders on Motions for Summary Judgment - Rubber-Stamping Not Allowed

            This summer the Tennessee Supreme Court offered guidance on what a trial court must do when granting or denying a motion for summary judgment under Tenn. R. Civ. P. 56.04. Despite the longstanding practice of many courts to have a prevailing party draft and submit a proposed order, the Court emphatically expressed that the record must show that an order granting or denying summary judgment was the product of the trial court’s “independent judgment.”

               In Smith v. UHS of Lakeside, Inc., No. W2011-02405-SC-R11-CV (Tenn. July 15, 2014), plaintiff’s complaint listed multiple causes of action related to the alleged improper assessment and resulting delayed treatment of decedent. During lengthy pre-trial litigation, defendant moved for summary judgment as to all of plaintiff’s claims. After a hearing, the trial court ruled in favor of plaintiff on some claims and defendant on two claims. After orally announcing the direction of the ruling, the trial court stated: “As far as a basis for the ruling, I’m going to let [defendant’s counsel] make those…the motions in which you were successful, you’ll prepare the order and the rationale for the Court’s ruling.”

               Plaintiff later filed an amended complaint, and defendant again filed a motion for summary judgment as to all claims. This time the trial court granted defendant’s motion in total and stated, “I’m directing the defendant to prepare the order and to establish the rationale for the court’s ruling in quite specific detail[.]” Both orders submitted by defendant and signed and entered by the trial court were highly detailed, essentially adopting all of defendant’s arguments from its brief. After the entry of each order, plaintiff objected to the orders arguing that the orders contained rulings and findings that the trial court did not actually make.

               Plaintiff appealed, and the Court of Appeals vacated the orders granting summary judgment stating that “the trial court’s oral statements provide absolutely no basis for the trial court’s ruling.” The Tennessee Supreme Court affirmed this decision.

               Since 2007, Tenn. R. Civ. P. 56.04 has stated that “the trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be reflected in the court’s ruling.” Pursuant to this rule, then, stating the grounds for summary judgment is mandatory. In Smith, the Court noted that this rule change was adopted both to promote acceptance of and respect for the legal system and decision at hand, as well as to clarify the explanation of summary judgment rulings for appellate courts reviewing such decisions. When reviewing whether a trial court has complied with Rule 56.04, the Court noted that an appellate court should “take into consideration the fundamental importance of assuring that a trial court’s decision either to grant or deny a summary judgment is adequately explained and is the product of the trial court’s independent judgment.”

               While the Court expressly noted concerns regarding “the practice of courts adopting verbatim findings of fact, conclusions of law, and orders prepared by counsel for the prevailing party[,]” the Court ultimately determined that requesting and considering proposed orders prepared by a prevailing party was not inconsistent with Rule 56.04. Instead, the Court held that Rule 56.04 “requires the trial court upon granting or denying a motion for summary judgment to state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.” According to the Smith opinion, a trial court can state its grounds at the time it announces the decision on the record, in a subsequently filed memorandum or opinion, or in a letter provided to all parties and made part of the record (see note 28).

               In the present matter, the Court determined that the trial court had not stated its reasoning for granting summary judgment. The Court rejected defendant’s argument that because the trial court eventually signed and entered the orders, the reasoning contained therein should be imputed to the court. The Supreme Court called this a “reverse-engineered circumvention” of Rule 56.04 and thus affirmed the appellate court’s vacating of the orders.

               This case is important for attorneys to note as they move through pre-trial litigation. Pursuant to this decision, if you secure summary judgment for your client, you should ensure that at some point before proposed orders are submitted the court expressly states its reasoning for granting your motion. On the other hand, if you are on the losing end of a summary judgment motion, be aware that if the court fails to articulate its reasoning, the Smith case could be useful on appeal.

When is a Summons and Complaint "Unclaimed" Under Tennessee Law?

The Tennessee Court of Appeals recently issued an opinion dealing with a circumstance when service of process was designed “unclaimed” by the U.S. Postal Service. In Goodman v. Ocunmola, No. E2014-00045-COA-R3-CV (Tenn. Ct. App. Sept. 4, 2014), wife sued husband for divorce and served husband with a summons and complaint through the Tennessee Secretary of State because husband lived in Kentucky. The Postal Service attempted to deliver the summons and complaint, sent via certified mail, on three separate occasions before returning the certified mail as “unclaimed.” Wife moved for and was granted a default judgment when husband failed to appear and respond to the complaint.

About a month later, husband moved to set aside the default judgment entered against him, arguing that wife intentionally failed to include husband’s apartment number on the address label for the process server (i.e., the Postal Service), with the goal of obtaining a default judgment due to husband’s failure to respond to the complaint. Husband claimed he found out about the default judgment when he discovered a letter from wife’s attorney in the trash bin by his mailbox, which he assumed was thrown away because its address label also did not include husband’s apartment number. The trial court denied husband’s request to set aside the default judgment, and husband appealed.

The appellate record didn’t include a transcript or statement of the evidence, which the court initially noted had “frustrated” its review of husband’s appeal. As for the merits of the appeal, the court observed that Tenn. R. Civ. P. 4.05 states “the United States Postal Service notation that a properly addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of the defendant’s refusal to accept delivery.” Unfortunately for husband’s appeal, the limited record was basically reduced to the fact that after making three attempts to serve the summons and complaint, the Postal Service declared the certified mail as “unclaimed.” Contrary to husband’s suggestion that the lack of an apartment number inhibited service of process, the certified mail containing the summons and complaint was not found in a trash can near the mailbox (like the letter from wife’s attorney) or returned as undeliverable because the address was insufficient. Instead the notice contained the husband’s correct name and correct apartment complex address, and the “unclaimed” designation by the Postal Service was sufficient to effectuate proper service. Accordingly, the court of appeals held that the trial court did not abuse its discretion in denying husband’s motion to set aside the default judgment.


What Happens After A Default Judgment is Entered in Tennessee?

When a party pleads a prima facie cause of action and obtains a default judgment on liability, a damages inquiry should necessarily follow, and during the damages determination the trial court should not reconsider liability issues.

In Tennison Brothers, Inc. v. Thomas, No. W2013-01835-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2014), the Tennessee Court of Appeals held that a trial court erred when it refused to award damages to two parties who had already been granted default judgments on liability against a third party.   The case involved a decade-old business dispute over rights to a state permit to construct a billboard on two adjacent properties fronting Interstates 40 and 240 in Shelby County, Tennessee.

In July 2008, Tennison Brothers, Inc. sued Clear Channel Outdoor (CCO) and William Thomas for breach of contract, intentional interference with business relationships, and inducement to breach a contract and intentional interference with a contract. In September 2008, CCO asserted a cross-complaint against Thomas alleging similar causes of action as Tennison. Highlights from the ensuing four years of litigation according to the appellate opinion include:

-        Tennison files motion for default judgment against Thomas for failure to answer on December 5, 2008.

-        Thomas files answer to Tennison and to CCO on December 18, 2008.

-        Trial court denies Tennison’s motion for default judgment and allows Thomas more time to answer on January 7, 2009. (The opinion does not explain why the trial court allowed Thomas “more time to answer” after Thomas filed his answers.)

-        Thomas files motion to dismiss Tennison’s complaint and CCO’s cross-complaint on May 6, 2009.

-        Trial court denies Thomas’s motions to dismiss on November 20, 2009.

-        Also on November 20, 2009, the trial court enters an order striking Thomas’s answers as a discovery sanction under Tenn. R. Civ. P. 37.02. The court enters default judgments on liability against Thomas in favor of Tennison and CCO.

-        Trial court enters an order on April 16, 2010, setting a writ of inquiry to determine the amount of damages against Thomas.

-        Thomas files motion seeking recusal or disqualification of the chancellor on May 18, 2010.

-        Trial court denies Thomas’s motion for recusal on June 4, 2010. Trial court also grants Tennison’s second motion for sanctions against Thomas for failure to appear for his deposition and refusing to produce documents. Court rules that Thomas shall not be allowed to present proof related to or in defense of damages, but Thomas may only be allowed to cross-examine witnesses presented by other parties related to damages.

-        Thomas files motion to dismiss any claims for damages on July 2, 2010.

-        Tennison and CCO files briefs on damages on July 9, 2010.

-        Trial court enters order on December 1, 2010, setting writ of damage inquiry.

-        Thomas renews his motion to dismiss on January 25, 2011.

-        Tennison files motion to strike Thomas’s motions to dismiss on February 4, 2011.

-        Tennison files motion in opposition to Thomas’s motions to dismiss on February 17, 2011.

-        On November 2, 2011, the trial court enters an order re-setting the writ of inquiry.

-        Trial court denies Thomas’s motions to dismiss on December 6, 2011.

-        Thomas files motions to set aside the default judgments on January 10, 2012.

-        Trial court denies Thomas’s motions to set aside default judgments on July 6, 2012.

-        Case transferred to a different court based upon Thomas’s multiple motions for recusal and transfer. (Opinion does not provide specific date.)

-        Writ of damage inquiry held by new chancellor on January 7, 2013. During the damages determination, the new chancellor went outside of the pleadings to reconsider liability issues and thereafter ruled that Tennison and CCO had not proved that Thomas had breached a contract. Finding no actual breach, the chancellor held that Tennison’s and CCO’s other claims failed as well and refused to award any damages.

-        The trial court entered an order on its opinion on August 2, 2013, and Tennison and CCO appealed.

In finding that the trial court had erred during the damages inquiry by reconsidering liability issues, the court of appeals relied on long held Tennessee case law providing that so long as matters are sufficiently pled in the complaint a default judgment requires that the allegations be taken as true and determinative of liability. The appellate court reviewed the necessary elements for each of the causes of actions asserted by Tennison and CCO against Thomas and then compared the prima facie requirements to Tennison’s and CCO’s pleadings. The appellate court then found that Tennison and CCO had sufficiently pled each of their respective claims against Thomas under the applicable standard for default judgments and therefore ruled that Tennison and CCO were entitled to damages against Thomas. The case was remanded to the trial court for a damages determination, wherein Tennison and CCO can elect between treble damages and punitive damages.

This only makes sense.  If you fail or refuse to answer in a timely fashion and a default judgment is entered against you the right to contest liability should be gone.  There has to be some cost, some sanction for refusing to answer in a timely fashion.

Failure to Read a Motion is Not Excusable Neglect under Tennessee Law

Rule 60.02(1) of the Tennessee Rules of Civil Procedure allows the court to relieve a party from a final judgment or order on grounds of “mistake, inadvertence, surprise or excusable neglect.”  This is the rule that the plaintiffs attempted to rely on to set aside an order dismissing their case in Brown v. Juarez, No. E2013-00979-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2014).

In Brown, after about three years of inactivity in the case, the defendants filed a motion to dismiss the case for failure to prosecute.  The motion included a notice of hearing and a statement that the motion would be granted if there was no response.  Plaintiffs’ counsel received the motion but failed to file a response and did not appear at the hearing.  Plaintiffs’ counsel argued that the notice was crafted to conceal the hearing date.  The court was not persuaded by that argument.  Nor was the court persuaded by the argument that the plaintiffs’ failure to appear and to respond was due to “mistake, inadvertence, surprise or excusable neglect.” 

The court noted that an absence of willfulness does not equate to neglect that is excusable.  So, while the court found that plaintiffs’ counsel did not willfully fail to appear or respond to the motion, the court found that the neglect was not excusable because had plaintiffs’ counsel read the entire motion, he would have noticed the hearing date.  Thus, the court concluded that the plaintiffs failed to prove entitlement to relief under Rule 60.02 and upheld the dismissal.  

Read this decision and then explain to me how a case can sit around for three years with no activity.  To be sure, from time to time a plaintiff will require additional medical treatment and that will result in reduced activity in the case.  And active settlement negotiations may not be reflected in a court file.

But three years?  Ridiculous.  The court was right to dismiss this case, and the Court of Appeals was right to affirm the dismissal.  Plaintiffs and defendants have a right to have cases resolved, and if the plaintiff - or the plaintiff's lawyer - let's a case sit for three years it should be wiped off the books. 

Failure to Timely Appeal Results in Dismissal

 In Wright v. Dunlap, No. M2014-00238-COA-R3-CV (Tenn. Ct. App. April 30, 2014), a jury rendered a defense verdict in plaintiff’s car crash case. The trial court entered a judgment dismissing the case, and then Plaintiff’s case was dismissed on appeal because of her failure to take appropriate action within 30 days following entry of the trial court’s judgment.

After the entry of an adverse final judgment, Tennessee law requires that a notice of appeal be filed within 30 days from the entry of the judgment. However, there are various motions a party can file with the trial court that will extend the deadline to file the notice of appeal as long as the motions are filed within 30 days of the judgment. These motions are listed in Tenn. R. App. P. 4(b) and Tenn. R. Civ. P. 59.01. Once the trial court rules on the motion, the party then has 30 days from the entry of the order on the motion to file the notice of appeal.

The trial court’s judgment was entered on October 11, 2013. Plaintiff’s Rule 59 motion to alter or amend was filed more than thirty days later on November 15, 2013. Plaintiff argued on appeal that the Rule 59 motion was timely because a duplicate judgment virtually identical to the October 11, 2013 judgment was entered on October 22, 2013. However, the appellate court disagreed. Tennessee case law holds that where two substantially identical judgments are entered, the time for filing a notice of appeal or Rule 59 motion begins to run upon entry of the first judgment. Ball v. McDowell, 288 S.W.3d 833, 838 (Tenn. 2009). The later entry of a virtually identical judgment that doesn’t affect the parties’ substantive rights or obligations resolved by the first judgment does not extend the time for filing a Rule 59 motion or notice of appeal.

Furthermore, the appellate record indicated that plaintiff’s notice of appeal was not filed until February 3, 2014, more than 30 days after entry of the trial court’s order of December 30, 2013 dismissing plaintiff’s Rule 59 motion. The appellate court observed, however, that plaintiff did file a different notice of appeal on January 29, 2014, but that notice was not included in the record. Regardless, the appellate court dismissed plaintiff’s case because even if the notice of appeal was filed within 30 days after entry of the December 30, 2013 order, plaintiff’s prior Rule 59 motion was still untimely and thus did not extend the time period for filing her notice of appeal. 

In conclusion, the court of appeals reiterated (and warned) that the thirty day time limit for filing a notice of appeal is mandatory and jurisdiction and cannot be waived or extended by the court. 

This was a pro se appeal and demonstrates once again the danger of attempting to prosecute or defend a case without the benefit of a lawyer.

Tolling of Statute of Limitations Not Lost by Failure to Comply with Return of Process Rule

Although Rule 4.03 of the Tennessee Rules of Civil Procedure requires return of process within ninety days of its issuance, a plaintiff failing to comply with this standard may still keep his or her case alive under Rule 3. In the recent case of Monday v. Thomas the Tennessee Court of Appeals explored the interplay between Rules 3 and 4.03. A plaintiff in Monday had been hit by a truck driven by an individual, and plaintiffs alleged the truck was owned by three other individuals and/or two businesses. In total, the plaintiffs named and alleged fault against 6 defendants (the driver, three individual owners, and two business owners).

Plaintiffs filed suit within the appropriate one-year statute of limitations, and initially had six summonses issued in September 2010. In May 2011, the plaintiffs had four alias summons issued against the driver, two of the individual owners, and one of the business owners. In January 2012, another set of alias summonses was issued, this time to the driver, one of the individual owners and the business owner included in the 2011 summonses, and one of the individual owners who was not included in the 2011 summonses. Finally, in November 2012, process was issued to the individual owner who was included in the May 2011 summonses but excluded from those issued in January 2012.

Rule 4.03(1) of the Tennessee Rules of Civil Procedure requires that a summons, even if not served, be returned to the court within ninety days of issuance. Rule 3 provides that if process is not served within ninety days of being issued, plaintiffs cannot rely on their original filing to toll any statutes of limitation unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process.

The trial court concluded that plaintiffs had failed to comply with Tennessee Rules of Civil Procedure 3 and 4.03, and therefore granted defendantss ruling, The Court of Appeals, however,  held that if new process is issued within one year of issuance of the previous process, a plaintiff may rely upon the original commencement to toll the statute of limitations,to the extent that new process was issued within one year of issuance of the previous process with respect to any defendant in this case, the statute of limitations was tolled with respect to that defendant.

Although this holding seems to make Rule 4.03(1) essentially meaningless, it was likely the correct result. Rule 4.03(1)s ninety day return requirement is not tied to any explicit penalty, and the tolling allowed by Rule 3 if process is reissued within one year does not appear to be connected to the return of the previously unserved process. Plaintiffs in Tennessee, however, would be wise to continue heeding the ninety day provision in Rule 4.03(1) to avoid unnecessary confusion and motion practice.

The citation is M2012-01357-COA-R3-CV (Tenn Ct. App. May 5, 2014).

Nurse Practitioners Now Exempt From Subpoena to Trial

The Tennessee General Assembly has passed, and the Governor has signed, legislation adding nurse practitioners to the list of people who are ordinarily exempt from subpoena to trial.   Nurse practitioners are still subject to being subpoenaed to give a deposition.

Here are the other people who are exempt from subpoena to trial under T.C.A. Section 24-9-101(a):

  •  An officer of the United States;
  • An officer of Tennessee;
  • An officer of any Tennessee court or municipality;
  • The clerk of any court of record other than that in which the suit is pending;
  • A member of the Tennessee general assembly while in session, or clerk or officer thereof;
  • A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;
  • A jailer or keeper of a public prison in any county other than that in which the suit is pending; and
  •  A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided for producing records as required by law.




Preserving Timely Filings of Tort Actions in Tennessee General Sessions Court

The Tennessee Court of Appeals recently held that a General Sessions plaintiff cannot skip the procedure for filing unserved process to avoid letting the statute of limitations run.

Tenn. Code Ann. § 16-15-902 requires a plaintiff in General Sessions court to return process within 60 days of issuance. § 16-15-902 does not explicitly state that a plaintiff must return the process if it is unserved. Under Tenn. Code Ann. § 16-15-710, however, a plaintiff who does return process as unserved must take action to rely on the original filing date for the statute of limitations. Once the plaintiff returns the process as unserved, the plaintiff has to either have process reissued within 9 months or refile the case within one year.

In Gates v. Perry, No. 2013-01992-COA - R9-CV (Tenn. Ct. App. March 26, 2014) the plaintiff never filed the unserved process with the court, and instead had a new warrant issued eighteen months later. The plaintiff argued that, since he never filed the unserved process, Tenn. Code Ann. § 16-15-710 was never triggered. The trial court agreed, and denied a motion to dismiss by the defendant.

The Court of Appeals reversed, explaining it “cannot accept the argument that our General Assembly intended to penalize a plaintiff who acts and reward a plaintiff who does nothing as concerns the return of unserved process.” The Court of Appeals held:

[I]f an unserved process is not returned unserved within 60 days of issuance, a plaintiff in general sessions court who wishes to rely on the original commencement as a bar to the running of the statute of limitations has nine months from the end of the 60 days from the issuance of the prior process to obtain new process or the plaintiff must recommence the action within one year after 60 days from the issuance of the initial process not served and not returned.

So in a nutshell, to rely on the original filing date to toll the statute of limitations, a General Sessions plaintiff must comply with § 16-15-902 by returning any unserved process within 60 days, and then comply with § 16-15-710 by either having process reissued within 9 months or by refiling the case within 1 year.

Tennessee's Prior Suit Pending Doctrine

The Tennessee Court of Appeals recently had the opportunity to discuss the doctrine of prior suit pending in a car wreck case, Farmers Insurance Exchange v. Shempert. The Shemperts filed suit for a wreck in which Mr. Shempert was injured and included his own uninsured motorist carrier, Farmers Insurance Exchange, as a defendant. After discovery in the first lawsuit, Farmers filed a separate declaratory judgment action seeking a ruling that the Shempert’s policy with Farmers provided no coverage for the wreck. The Shemperts filed a motion to dismiss the second case on the basis of the doctrine of prior suit pending.

The Court of Appeals explained that the doctrine of prior suit pending provides that an action is subject to being dismissed if a prior lawsuit involving the same parties and the same subject matter is pending. The first lawsuit must be pending in a court that has jurisdiction over the subject matter and the parties. 

The Court of Appeals found that the first lawsuit did include the issue of whether the Farmers policy provided coverage for the wreck, and that Farmers had raised coverage as a defense in the first lawsuit. Also, the court noted that the court in the first lawsuit had jurisdiction over the parties and the subject matter. Therefore, the court reversed the  entry of summary judgment for the insurer in the declaratory judgment  case and remanded it to the trial court to be dismissed.

The case number is W2013-01059-COA-R3-CV.  It was decided by the Western Section of the Tennessee Court of Appeals  on February 3, 2014.

Be Careful What You Ask For; You Just Might Get It

This case is ugly.  And when I say ugly, I mean ugly.  This case is so ugly that if it tried to sit in the sand a cat would come up and bury it.

This case started in Davidson County General Sessions Court. On May 6, 2010, plaintiff filed a negligence action again Davidson Transit Organization stemming from an accident she suffered while a passenger in a wheelchair on a DTO bus.   The general sessions warrant sought damages under $25,000. Shortly after filing the warrant, the plaintiff moved to have her case transferred to circuit court and that motion was granted. Less than two weeks after being transferred to Judge Brothers court, plaintiff moved to amend her complaint to identify a John Doe defendant and to substitute an amended complaint for the original complaint. In addition to adding the new party, the amended complaint increased the amount of damages sought. DTO opposed the motion and plaintiff’s motion was ultimately denied because the statute of limitations had passed as to the new party and the plaintiff did not demonstrate the amendment would relate back. 

Thereafter, the court conducted numerous case management conferences and the special master recommended a conservator be appointed for the plaintiff because a psychological evaluation had revealed she was incompetent. Ultimately, a conservator was substituted on February 19, 2013.   On March 5, 2013, nearly three years after the case was originally filed in general sessions court, DTO confessed judgment in the amount of $24,999.99, which was the damages sought in the original general sessions warrant. DTO deposited the judgment amount with the court on the same day, and Judge Brothers dismissed the case with prejudice. Plaintiff filed a motion to set aside or to alter or amend the judgment which was denied and plaintiff appealed alleging: (1) the trial court erred in failing to allow her to amend her complaint; and (2) the trial court erred in permitting the defendant to confess judgment.

On appeal, plaintiff did not identify any error in Judge Brothers’ denial of the motion to amend to add a party.  Instead, she made a “continuing jurisdiction” argument to claim Judge Brothers’ could have still increased the ad damnum to give the “Plaintiff her day in court”.   The Court of Appeals disagreed. While the rules allow a plaintiff who appeals or transfers a case from general sessions to circuit court to amend the ad damnum to increase the damages sought, the plaintiff actually has to make the proper motion and have it granted. In this case, plaintiff’s motion was one to name a new party in place of a John Doe defendant. And while the proposed amended complaint did have a new ad damnum, the motion to amend was denied because of the statute of limitations. Plaintiff could have filed another motion to amend to simply increase the ad damnum, but she never did despite the passage of three years. 

This case is correctly decided. While we do not know the reason plaintiff initially filed her case in general sessions court, the rumor is that it is done to quickly get a case filed before the statute of limitations runs. But lawyers who proceed in this fashion need to be mindful that they just might get what they asked for in writing:  i.e. a judgment for $24,999.99 even though the case is truly worth much more.

The case is McKissack v. Davidson Transit Organization, M2013-01224-COA-R3-CV (Feb. 11, 2014).

Deceased Pro Se Litigant's Lawyer-Spouse Cannot Represent Decedent Without Opening Estate

 In Dry v. Steele,  the Tennessee Court of Appeals grappled with a procedural nightmare, including three related lawsuits separate from the one actually on appeal – a medical malpractice case, an action for interference with service of process, and a malicious prosecution case.  Putting aside the morass of ancillary issues, the Court of Appeals’ holding was distinct: a notice of appeal on behalf of a deceased pro se litigant is ineffective if filed by someone who has not yet been officially appointed to represent the estate.

The plaintiff in the case on appeal was a lawyer who died two weeks after filing his own pro se lawsuit. The defendants filed a suggestion of death and served it at the plaintiff’s law firm address.  The decedent’s wife was also his law partner – and either the decedent’s co-counsel, co-plaintiff, or co-defendant in the other three related cases. The decedent’s wife did not file a motion to substitute a proper party for the decedent, and informed the trial court that she was not representing the decedent or his estate, but nonetheless asked that the case not be dismissed. The trial court dismissed the case under Tenn. R. Civ. P. 25.01(1).

That’s where the case went from complicated to just bewildering. After the judgment for dismissal was entered, the decedent’s wife filed a notice of appearance as counsel for the decedent. She then filed a notice of appeal within the thirty day window to do so under Tenn. R. App. P. 4(a).  After those thirty days had passed, however, the decedent’s wife had an estate opened for the decedent and was appointed administrator, then retained herself as counsel to represent the estate in the case.

The Court of Appeals ruled that the notice of appeal was not properly filed. At the time the decedent’s wife filed the notice of appearance as counsel, there was no estate open and no administrator had been appointed. Accordingly, the wife could not have been retained by anyone with the power to actually appoint counsel to represent the estate. The Court of Appeals concluded that the notice of appearance filed by the wife was ineffective, and therefore the wife did not have standing to file the notice of appeal. Because no one with proper standing filed a notice of appeal within the thirty day window of Tenn. R. App. P. 4(a), the Court of Appeals affirmed the dismissals.

Since the decedent’s wife was both spouse and lawyer, this case sets the bounds of precedent fairly well. Before filing a notice of appeal for a deceased pro se litigant, an estate must be opened and an administrator formally appointed. Neither the beneficiary of the pending lawsuit, nor any lawyer retained by the beneficiary, can effectively file a notice of appeal otherwise. 

The case number is No. E2013–00291–COA–R3–CV; the case was decided January 28, 2014.

Tennessee Court of Appeals Does Not Award Attorneys' Fees on Request to Admit Issue

This case is an example of when it is best to leave well enough alone. Along the tortured path of this case, the parties switched positions i.e, plaintiff became defendant and vice versa. To keep it simple, I am going to refer to Ms. Allain by her last name and the two doctors as simply "the doctors".  

While undergoing a procedure at Vanderbilt University Medical Center, Ms. Allain was told by the treating physician that a guide wire had been left in a vein leading to her heart. The treating physician opined the guide wire had been left during a prior procedure at Williamson Medical Center. Thereafter, Ms. Allain filed suit against Williamson Medical Center and the doctors. Several months after filing suit, Ms. Allain learned the guide wire was actually left by another Vanderbilt Medical Center physician. As such, she took a voluntary nonsuit against Williamson County Medical Center and the doctors. 

Rather than being satisfied with the dismissal of the case against them, the doctors waited exactly one year and then filed suit against Ms. Allain for malicious prosecution and abuse of process. Summary judgment was denied on the malicious prosecution case and the trial court denied interlocutory appeal. The Court of Appeals granted a Rule 10 application but ultimately affirmed the denial of the motion for summary judgment. Next, the Tennessee Supreme Court reached down and took the case. Ultimately, the Tennessee Supreme Court, in a case of first impression, ruled a voluntary nonsuit pursuant to Rule 41 of the Tennessee Rules of Civil Procedure is not a favorable termination on the merits for purposes of a malicious prosecution case. Therefore, the doctors could not prove an essential element of their case. The Tennessee Supreme Court remanded the case to the trial court with instructions to enter summary judgment in favor of Ms. Allain on the malicious prosecution case and for a final determination on the abuse of process case.  

Apparently, at this point, the doctors had enough of this mud wrestling contest and voluntary nonsuited their case against Ms. Allain. Ms. Allain then moved for attorney fees (as a discovery sanction), expenses and discretionary costs. After considering the motion, the trial court held that since the issue had been one of first impression in the Tennessee Supreme Court that the doctors had reasonable grounds to deny Ms. Allain's request for admission on the issue of whether the underlying action had been terminated on the merits. Nonetheless, the court awarded Ms. Allain $26,900 in attorney fees, expenses and discretionary costs. The doctors appealed.

On appeal, the Court of Appeals agreed that the doctors' response to the request for admission was done in good faith given case law that existed at the time the response was made. Given that finding, the Court of Appeals concluded it would be inconsistent to uphold the award of attorney fees as a discovery sanction pursuant to Tenn. R. Civ. P. 37.03(2).   While the attorney fees were reversed, the discretionary cost award of $2400.90 was upheld. And with that, this case appears to have finally been concluded.  

This decision is correctly decided.  The underlying legal issue was one of first impression, and the doctors had a right to deny the request while seeking appellate review to expand or at least define the law of whether a voluntary dismissal is a termination on the merits.  While I think the doctors lawsuit was ill-advised and mean-spirited, I don't think they should face financial sanctions for taking the position they did on the request to admit.  People should be allowed to push the envelope and develop new law without facing an obligation to pay the opponent's attorneys' fees.

Himmelfarb, M.D. v. Allain,  No. M2013-00455-COA-R3-CV  (Tenn. Ct App. Jan. 31, 2014).  


If You Tell The Judge You Want To Go Home, Don't Be Upset When He Lets you (And You Lose)

This case is a good illustration of a couple of points: (1) proceeding pro se is in a Tennessee personal injury case is dangerous business, and (2) judges at both the trial court and appellate level can be very patient folks.  

Plaintiff Jennifer Al-Athari was involved in a motor vehicle accident with a tractor-trailer driven by Mr. Gamboa who was an employee of Morgan Southern.  Mrs. Al-Athari and her husband filed suit against Mr. Gambo and Morgan Southern  After burning through two attorneys, the plaintiffs elected to proceed pro se.  Thereafter, things went awry. 

Judge Brothers entered a scheduling order which specified dates for medical proof.   Plaintiff failed to produce any medical proof, so Morgan Southern moved in limine to exclude any medical evidence at trial.  Plaintiffs did not appear at the hearing and the trial court granted the motion. In addition, shortly before the trial, Morgan Southern moved in limine to exclude settlement offers, liability insurance and any reference to Mr. Gamboa’s legal status in the United States or the process by which he was hired by Morgan Southern.  All of these motions in limine were also granted. 

One week prior to trial, the plaintiffs moved to continue the trial as Mrs. Al-Athari had not concluded her medical treatment.  The court denied this motion. On the day of trial, after some questions about their right to remain silent, plaintiffs appeared but told Judge Brothers they were not prepared to go forward and just wanted to go home.  Judge Brothers obliged and involuntarily dismissed the case without prejudice and explained to the plaintiffs that they had the right to re-file within one year.   Thereafter, plaintiffs filed a motion for reconsideration, a motion for new trial and a motion for judgment on the pleadings; all of which were denied.  Plaintiffs’ appeal followed. 

On appeal, the plaintiffs failed to articulate with specificity the alleged error, so the Court of Appeals reviewed each order of the trial court.  Below is a bullet-point summary:

1.    Motion in limine on medical proof – no error as deadline had been set by scheduling order pursuant to Rule 16.

2.    Motion in limine on insurance – no error as Tennessee Rule of Evidence 411 bars admission of insurance to prove negligence or other wrongful conduct.

3.    Motion in limine on settlement offer – no error as excluded by Tennessee Rule of Evidence 408 and also covered by Tennessee Rule of Civil Procedure 68 which prohibits evidence regarding offers of judgment.

4.    Motion in limine re: Mr. Gamboa – no error since plaintiffs had not pled a negligent entrustment or negligent hiring claim.

5.    Motion for Continuance – since the medical proof had been excluded, the status of the plaintiff’s medical treatment was no longer relevant.

6.    Dismissal of Complaint – The trial court did not abuse its discretion in dismissing the complaint pursuant to Tennessee Rule of Civil Procedure 41.02 as the plaintiffs expressly stated they were not prepared to go forward. 

Judge Brothers and Judge Cottrell are to be commended for their patience and for the extraordinary leeway they extended in this case.    

To those of you who want to represent yourself - please read this opinion and understand the perils of doing so.  The judges are quite lenient with people who attempt to proceed without a lawyer, but the rules of court exist for a reason and sooner or later judges will enforce them even against unrepresented party.

True, these folks had two lawyers and for whatever reason those lawyers were no longer involved in the case.  I have no idea whether that happened because of the quality of the case, the conduct of the plaintiffs, or the quality of the lawyers they hired.  I do suggest this, however:  hire an experienced lawyer, cooperate with that lawyer, and accept that lawyer's advice.  Put your time into finding the right lawyer and, if you do, you will be able to rest assured that you are getting good advice.  

Click on the link on our consumer website to learn what to look for when you want to hire a Tennessee personal injury or wrongful death lawyer.

Tennessee Court of Appeals Gives Guidance on Motions to Amend and Motions to Intervene

Do you need to file (or oppose) a motion to amend or a motion to intervene in Tennessee state court?  If so, start your research with this new case from the Eastern Section of the Tennessee Court of Appeals.

The appeal arises from the sale of residential real estate.   Plaintiff alleged fraud and negligent misrepresentation by the defendants for failing to disclose water drainage issues, water damage and basement flooding in the Tennessee Residential Disclosure form.  During discovery, the defendants moved for summary judgment claiming the plaintiff lacked standing to pursue the case.  Plaintiff opposed the motion and moved to amend her complaint.  In addition, the plaintiff’s sons moved to intervene.  The trial court denied the motion to amend and the motion to intervene and granted the defendants’ motion for summary judgment.   The court based the ruling on the plaintiff’s lack of standing.  The court also concluded the intervention would not correct the standing issue since the sons were not parties to the contract for the sale of the property.

Below are the key facts:

  • The contract dictated the warranty deed be made in the name of Earlene Singleton Gregory.
  • In plaintiff’s deposition, she testified she knew her sons’ names were on the deed but that she was also an owner of the property.
  • The deed was actually only in the name of the plaintiff’s three sons.
  • After defendants filed their motion, plaintiff submitted an affidavit stating the property was supposed to have been conveyed to her for the remainder of her life with the remainder been split equally between her sons.
  • Plaintiff’s sons all submitted similar documents regarding the intention of the parties at the time of the conveyance.

On the motion to amend issue, the Court of Appeals reviewed Tenn. R. Civ. P. 15.01 and the case law interpreting it.   As a starting point, the court noted the rule itself indicates “leave [to amend] shall be freely given when justice so requires” and a trial court’s discretion is tempered by this language.  While the rule should be construed liberally, the Court of Appeals noted six factors that militate against allowing an amendment:  (1) undue delay in seeking to amend; (2) repeated failures by the moving party to cure deficiencies in earlier amendments (3) lack of notice to the opposing party; (4) futility of the amendment; (5) bad faith or dilatory motive of the moving party; (6) undue prejudice to the opposing party (which the Court of Appeals found to be the most important of all the factors) If the trial court denies a motion to amend, a “reasoned explanation” must be given.

In this case, the trial court’s order suggested the basis for the denial was undue delay in that plaintiff waited to file her motion until one year after her deposition (when the issue was first suggested) and two months after the motion summary judgment was filed. The Court of Appeals found the plaintiff’s deposition testimony inconclusive on the issue of ownership and noted other documents supported the plaintiff’s belief that she was the owner of the property.   Moreover, the plaintiff moved to amend within 2 months of the defendant’s motion for summary judgment, which the Court of Appeals considered timely.

The only other factor discussed was undue prejudice, and the Court of Appeals quickly dismissed any notion that simply being forced to defend the claim could constitute the level of prejudice necessary to deny the motion to amend.  In conclusion on the issue, the Court of Appeals cited a litany of cases standing for the proposition that cases should be decided on their merits rather than technicalities.

As for the motion to intervene, the Court of Appeals concluded the sons should have been allowed to intervene under Tenn. R. Civ. P 24 because as owners of the property they clearly had an interest in the subject matter of the suit and they had not unnecessarily delayed in filing their motion to intervene.  

In short, the Court of Appeals concluded both the motion to amend and the motion to intervene should have been granted as it put the proper parties before the court and allowed the case to be decided on the merits.   

The case is Gregory v. Melhorn, No. E2012-02417-COA-R3-CV  ( Tenn. Ct. App. Dec. 27, 2013).

Tennessee Court of Appeals Explains How to Sue Someone Who Died After Causing Car Wreck

When someone is harmed by another person who dies before a lawsuit is filed, the injured party can still bring a claim for damages based on the wrongdoer’s conduct as long as certain steps are closely followed in Tennessee’s survival statute, Tenn. Code Ann. § 20-5-103.  

When the wrongdoer dies, Tennessee law tolls the statute of limitations for six months, resulting in the injured plaintiff having a total of eighteen months from the date of the injury to properly file suit (based on the standard one year for negligence claims (Tenn. Code Ann. § 28-3-104) plus the additional six months when the tortfeasor passes away (Tenn. Code Ann. § 28-1-110)). After the tortfeasor dies, he or she is no longer the proper party defendant, and instead the claim is filed against the personal representative of the deceased wrongdoer’s estate. If there is no personal representative, then the injured plaintiff must petition the court to appoint a person, called an administrator ad litem, to serve as the defendant in the lawsuit. Not following these steps can result in the plaintiff’s lawsuit being dismissed, as demonstrated in the case of Ferrell v. Milller and Ivey, No. M2013-00856-CO-R3-CV (Tenn. Ct. App. Nov. 27, 2013).

In Ferrell, the plaintiff sued the defendant spouses after the defendant husband fatally shot himself while driving an SUV that crashed into the plaintiff’s car injuring the plaintiff. The crash occurred on June 25, 2010, and the plaintiff filed his complaint on June 20, 2011, naming the deceased defendant husband and the defendant wife. The defendant wife filed an answer to the complaint on December 13, 2011, and highlighted the plaintiff’s failure to appoint and serve an administrator ad litem to preserve the claims against the deceased defendant husband. On December 20, 2011, the plaintiff finally moved the court to appoint an administrator ad litem to accept service of process on behalf of the deceased defendant husband. On March 19, 2012, the court appointed an administrator ad litem, but the plaintiff failed to amend the complaint to name the administrator as the party defendant.  

The court of appeals affirmed that the trial court’s decision to dismiss the plaintiff’s claims against the deceased defendant husband as time-barred. Simply put, the plaintiff failed to have an administrator ad litem appointed, substituted as the defendant, and served with process within the statutorily defined eighteen-month time limitations period. Because the plaintiff did not follow the steps set forth in Tennessee’s survival statute, his claims against the deceased husband were prohibited from going forward and lost completely. In addition, the court of appeals upheld the trial court’s dismissal of the plaintiff’s claims against the defendant wife for imputed negligence because claims based on the couple’s agency relationship were extinguished since the claim against the husband was time-barred. The court of appeals remanded the plaintiff’s request to amend his complaint to assert a negligent entrustment claim against the wife due to a lack of express findings in the record, noting the Tennessee Supreme Court ruled in 1993 that when a trial denies a motion to amend "it must give a reasonable explanation for his action. Henderson v. Bush Bros. & Co. 868 S.W. 2d 236, 238 (Tenn. 1993). 

The lesson: when suing a deceased wrongdoer, be sure to (1) act quickly to appoint an administrator ad litem if a personal representative has not already been appointed to represent the defendant’s estate, (2) name the deceased’s personal representative as the party defendant, not the deceased defendant, (3) and properly serve the personal representative.  

For more information about Tennessee law of negligent entrustment and Tennessee law of imputed negligence click on the links.

Put Away Your Checkbook: Rule 45 Does Not Authorize A Court To Hold Attorneys Personally Responsible For Costs Incurred In Producing Documents Pursuant To a Subpoena

Who should pick up the tab for costs incurred in responding to a subpoena to a non-party under Rule 45 of the Tennessee Rules of Civil Procedure?

This case arises from a probate matter. Five years after the decedent's estate had been closed for the second time, it was reopened again by a grandson, who believed a quarter of a million dollars in assets continued to be held in the decedent's Merrill Lynch accounts. The grandson was represented by Suzette Peyton and George Copple, Jr. Shortly after re-opening the estate, the attorneys issued a subpoena duces tecum to Merrill Lynch.   The subpoena sought several years worth of documents for the decedent's accounts and it also sought information related to accounts held by both the decedent's wife and son, both of whom were also deceased. 

For several months, the parties negotiated over the scope of the subpoena and the appropriate releases. Ultimately, the administrator filed a motion to enforce the subpoena. Merrill Lynch opposed the motion on several grounds but never sought an advancement of the reasonable costs associated with compliance as was permitted under the 2012 version of Tennessee Rule of Civil Procedure 45.07. Instead, in email communications, Merrill Lynch repeatedly sought assurances from the attorneys that its expenses associated with complying with the subpoena would be paid. After all was said and done, Merrill Lynch produced documents and sought expenses in the amount of $776.00. 

After the production, counsel for the grandson moved to withdraw which was permitted but the court held they would continue to be sureties for the costs to date including the $776.00 incurred by Merrill Lynch. As part of this hearing, the court specifically declined to find there was any agreement between Merrill Lynch and the attorneys for payment of the production costs. Instead, the court held the attorneys liable for the costs based upon "the record as a whole in this matter, including, but not limited to, Tennessee Rule of Civil Procedure 45".   The attorneys appealed the assessment of costs to them.

At the outset of its opinion, the Court of Appeals was careful to distinguish what was at issue.  Specifically, the costs assessed against the attorneys were not court costs, discretionary costs or a sanction related to discovery abuses. Instead, they were merely the costs related to a non-party's production of documents pursuant to a subpoena. While Rule 45.07 permits a trial court to condition the denial of a motion to quash or modify upon the advancement of the reasonable costs associated with compliance of the subpoena, the Court of Appeals concluded there was no authority in the rule to permit the assessment of the costs against the attorneys of the requesting party.

This is the right result. Merrill Lynch simply did not make the right request at the right time pursuant to Rule 45.

The case is In re Estate of McGinnis.  The opinion was authored by Judge Clement of the Tennessee Court of Appeals and was released on December 17, 2013.

Tennessee Court of Appeals Rules That Remittiturs Of 70% Or More Are Not Permitted

Remittiturs are court-ordered reductions in a jury verdict because the trial judge thought that the jury awarded too much money in compensatory or punitive damages.  They are a common sense, common law "tort reform" measure, designed to permit a judge who actually heard the evidence (or, in rare cases, the judges on an appellate court) to alter the amount of the jury's verdict.

This case arises from a collision between a motorcycle and a car. Following a jury trial, fault was allocated 40% to the motorcyclist and 60% to the defendant motorist. The total damages awarded were $317,000.00 which based on fault allocations was reduced to $190,000.00. Upon motion of the defendant, the trial court granted a remittitur finding the jury's awards for future pain and suffering and future loss of enjoyment of life were excessive. Accordingly, the court reduced those awards and approved a judgment for the motorcyclist in the amount of $54,192.10. The remittitur was accepted under protest and an appeal was taken.

Pursuant to T.C.A. 20-10-102, trial courts are statutorily authorized to grant a remittitur as necessary to cure an excessive jury verdict and avoid the expense of a new trial. When reviewing a trial court's grant of remittitur, Tennessee appellate courts will conduct a three-step review consisting of (1) the trial court's reasons for granting a remittitur; (2) the amount of the reduction to ensure it does not destroy the jury's verdict; (3) the evidence related to damages to assess whether the proof is consistent with the remittitur.

In this case, after reviewing the evidence adduced at trial related to future pain and suffering and future loss of enjoyment of life, the Court of Appeals concluded the award was excessive.   However, the court vacated the remittitur because it was so substantial as to destroy the jury's verdict. The trial court's reduction was 71.5%. And while the appellate courts are reluctant to establish a bright line rule, prior precedent generally established that remittiturs in excess of 70% are too great to maintain the integrity of the jury's verdict. Accordingly, the case was remanded for a new trial on damages only. (The original fault allocation, which gave 60% fault to the defendant and 40% percent to the plaintiff, will be applied after the  new trial.)

The case is Adams v. Leamon, a November 25, 2013 decision of the Tennessee Court of Appeals (Eastern Section).


Tennessee Standard for Reversal of a Verdict Based on a Bad Jury Instruction

 An important component of any jury trial is the instructions that will be given to the jury about the law that applies to the particular case, how to analyze the evidence, and how to assess the credibility of witnesses. To avoid appeals on the basis of erroneous jury instructions, the best practice is for the parties to agree on the instructions given if at all possible.

When a party takes issue with a particular instruction and wishes to appeal on that basis, he or she faces an uphill battle in overturning the jury verdict in Tennessee. Under our Rules of Appellate Procedure, a jury verdict will only be reversed based on a trial court’s error in giving a jury instruction, failing to give a jury instruction, or giving an erroneous instruction if the error more probably than not affected the verdict or would result in prejudice to the judicial process. Tenn. R. A. P. 36(b).

Recently, in  Land v. Dixon, the Court of Appeals reiterated this standard. On appeal, the plaintiffs complained that the trial court erred in giving a comparative fault instruction to the jury because of allegations that the plaintiffs were at fault in a professional negligence case. The plaintiffs argued that under Tennessee law plaintiffs cannot be at fault in professional negligence actions.  (That is, shall we say, an imaginative argument.)

The Court of Appeals declined to decide whether plaintiffs can be comparatively at fault in professional negligence cases, and instead relied on Rule 36(b) of the Tennessee Rules of Appellate Procedure to dispose of the issue. The court found that the Jury never even reached the issue of plaintiffs’ alleged fault because the Jury returned a defense verdict finding the defendants 0% at fault. The Jury would only have reached the issue of plaintiffs’ negligence had they assigned some fault to the defendants. Therefore, the Court of Appeals held that the jury instruction on comparative fault did not affect the judgment and therefore was not grounds for reversal.    



Tennessee Supreme Court Reconciles Federal Rules on Voluntary Dismissal with Tennessee's Three-Dismissal Rule

The Tennessee Supreme Court recently ruled that two voluntary dismissals – one in a California state court and one in a Tennessee federal court – do not preclude a plaintiff from re-filing an action based on the same claims in a Tennessee state court.

In Cooper v. Glasser, the court analyzed Rule 41 (a)(1)(B) of the Federal Rules of Civil Procedure and Rule 41.01(2) of the Tennessee Rules of Civil Procedure.

The federal Rule 41 provides that a plaintiff’s notice of dismissal is “without prejudice” unless the plaintiff previously dismissed any action (federal or state) based on the same claims.

Tennessee’s Rule 41 (the “three-dismissal rule”) is unique in the Nation and provides that a voluntary dismissal by a plaintiff is on the merits if the plaintiff has twice dismissed any action in any court (federal or state) based on the same claims.

These rules are in conflict – in federal court, a plaintiff can only dismiss and re-file a case one time. (Remember too that one has to get court permission to voluntarily dismiss a case in federal court.)  However, in Tennessee state court, a plaintiff can dismiss and refile a case two times.

In Cooper, the plaintiff originally filed the case in a California state court and then voluntarily dismissed the case. The plaintiff re-filed in federal court in Tennessee and the federal court exercised supplemental jurisdiction over plaintiff’s state law claims. The plaintiff again dismissed the case, and attempted to re-file in a Tennessee state court. The trial court granted summary judgment to the defendant finding that the federal rule controlled, and the Court of Appeals affirmed. 

The Tennessee Supreme Court reversed the case relying on the U.S. Supreme Court’s holding in Semtek International Inc. v. Lockheed Martin Corp., in which the Court held that a federal district court exercising diversity jurisdiction should apply the claim-preclusion law of the state in which the federal court sits. Conversely, in federal question cases, the federal rules control. 

The Tennessee Supreme Court acknowledged that Semtek did not directly address whether federal or state claim-preclusion law controls supplemental state law claims filed in federal court. However, the court found that supplemental state law claims are more akin to diversity cases then federal question cases because they require the federal courts to apply and interpret substantive state law. 

Thus, the Tennessee Supreme Court held that the dismissal of the supplemental state law claims in federal court did not preclude the re-filing of the claims in a Tennessee state court under Tenn. R. Civ. P. 41.01(2) since that dismissal was the second dismissal of the claims. However, the court noted that a plaintiff who twice dismisses supplemental state law claims in a federal court will be barred from bringing the same claims in the same federal court.

Confused?  I am.  This stuff is complicated and is extremely fact intensive.  Do not take a voluntary dismissal of any claim without doing your own research and determining exactly what right, if any, to re-file you will have if you decide to do so.  And, if you are a lay person who is trying to decide whether or not to dismiss a claim but may want to re-file it, do not do so without consulting a lawyer first.  This case must be read in conjunction with Tennessee's saving statute to get a full understanding of what rights survive.  And, if you have a lawsuit pending in another state, all of this means absolutely nothing to you and your out-of-state case.

Suing the Wrong Defendant and Tennessee's Relation Back Doctrine

The Court of Appeals clarified the requirements for an amended complaint to relate back to the filing date when the plaintiff mistakenly sues the wrong defendant. 

In Ward v. Wilkinson Real Estate Advisors, Inc., No. E2013-01256-COA-R3-CV, (Tenn. Ct. App. Nov. 30, 2013) Plaintiff sued Glazers for a slip and fall about a week before the one year statute of limitations for personal injury cases expired. Plaintiff quickly found out that Glazers had nothing to do with the property where Plaintiff fell. The day after the statute of limitations expired, Plaintiff filed an amended complaint suing several others who we will collectively call the  "Wilkinsons," who did own the property at issue, and served the amended complaint on Wilkinsons within two months. The trial court granted summary judgment to Wilkinsons based on the statute of limitations.

The Court of Appeals affirmed, with a concurring opinion by Judge Susano. The majority rejected Plaintiff’s contention that the amended complaint related back to the original filing based on Tenn. R. Civ. P. 15.03, which provides:

Whenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party or the naming of the party by or against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

(Emphasis in majority opinion.) 

The majority explained that Rule 15.03 has two separate requirements that must occur within 120 days: (1) notice to the new defendant to avoid prejudice in defending the case; and (2) knowledge that they would have been sued but for a mistaken identity. The majority held that Plaintiff satisfied the notice requirement, but could not satisfy the knowledge requirement because Wilkinsons were not aware of the complaint at all “prior to receiving formal notice of the amended complaint.”

In his concurring opinion, Judge Susano elaborated on why Plaintiff could not satisfy the knowledge requirement. Judge Susano explained that the language of Rule 15.03 indicates that the new defendant must have known or had reason to know of the mistaken identity prior to filing of the amendment. Because Wilkinsons were unaware of the lawsuit at all until they were served with the amended complaint, Plaintiff could not establish any reason why Wilkinsons should have known of the misnomer in the original complaint.

As far as I can tell, this is new law. It certainly is not based on any prior Tennessee opinion addressing Rule 15.03, and a peek through Federal Practice and Procedure reveals no similar explanation of the knowledge requirement. The Court of Appeals appears to have broken new ground in Ward without acknowledging it.

So what should a plaintiff do if he or she realizes a mistaken identity problem after the statute of limitations has expired, but within 120 days of filing the original complaint? Do everything reasonable to communicate to the new defendants about the complaint and the mistake before filing an amended complaint. Send letters, faxes, call, or email or whatever can be backed up in an affidavit in response to a summary judgment motion if need be. But do it all before filing the amended complaint, or else the safety net of Rule 15.03 will have a gaping hole in it.

Deliberate But Erroneous Choices Do Not Constitute Excusable Neglect for a Motion for New Trial in Tennessee

What constitutes "excusable neglect" under Rule 59 of the Tennessee Rules of Civil Procedure?

Ms. Hayes, who goes by the stage name Shania Twang, entered into a written contract with Mr. Cunningham to perform in a musical show in Branson, Missouri. The show was to run a little over 5 months, and Shania Twang's compensation was set at $1600.00 per week. However, after only one month, Mr. Cunningham canceled the show. Because she only received $3,066.00 in compensation, Ms. Twang sued Mr. Cunningham for breach of contract. Mr. Cunningham's primary defense was he was not individually implicated in the contract as he was only an agent and the culpable party was SuperStars Live Concert, LLC. Following discovery and a pretrial conference, the case was set for trial.

Although there was no dispute that Mr. Cunningham was aware of the trial date, he chose not to attend. According to Mr. Cunningham, he did not appear because his counsel told him the case would turn on Missouri law and so his personal appearance was not absolutely necessary. However, Mr. Cunningham's lawyer indicated his client did not appear at the trial because it conflicted with another show date and Mr. Cunningham had expressed he would be "ruined" if he missed the show. Given Mr. Cunningham's position, the lawyer asked Mr. Cunningham to provide him evidence to support the defense. The evidence was never received and Mr. Cunningham quit returning his lawyer's calls or emails. It should be noted that during the course of the case Mr. Cunningham and his lawyer had a tumultuous relationship resulting in multiple motions to withdraw. 

Perhaps not surprisingly, Mr. Cunningham lost at trial. Thereafter, he hired new counsel who filed a motion for new trial. After reviewing the record, the court of appeals found that Mr. Cunningham and his lawyer made deliberate decisions about how to proceed given the conflict between the trial date and the show date. Moreover, despite requests from counsel, Mr. Cunningham failed to produce any evidence that he was merely an agent during the contract negotiations. Thus, the court of appeals concluded Mr. Cunningham's conduct in not attending the trial and in failing to provide exculpatory evidence to his lawyer was willful, and such a finding prevented the judgment from being set aside based on excusable neglect.

My only criticism of the opinion is it should have directed the appellants to that wonderful song by the real Shania -  "That Don't Impress Me Much."  Other than the failure to take advantage of the opportunity to do so, Judge Andy Bennett and his colleagues did what they had to do under these unusual facts.

The case is Haynes v. Cunningham, M2012-02582-COA-R3-CV (Tenn. Ct. App.  Nov. 19, 2013).

Declarations Can Now Be Used in Lieu of Affidavits in Tennessee State Courts

Tennessee's rules of civil procedure now permit the use of declarations in lieu of affidavits.

TRCP Rule 72 provides as follows:

Wherever these rules require or permit an affidavit or sworn declaration, an unsworn declaration made under penalty of perjury may be filed in lieu of an affidavit or sworn declaration. Such declaration must be signed and dated by the declarant and must state in substantially the following form: "I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct." 

Tennessee has also adopted the Uniform Unsworn Foreign Declarations Act.  The Act, codified at T.C.A. Sec. 24-9-310 et seq, governs the admissibility of declarations made by someone on foreign soil.

The use of a declaration avoids the need to have a notary present at the time the witness gives written testimony.  Notice that Rule 72 permits the use of declarations rather than affidavits when filing or responding to motions for summary judgment.


New Tennessee Opinion on Filing Proof Of Service of Summonses Increases Risk on Plaintiff's Lawyers

The Tennessee Court of Appeals recently issued an opinion of interest to every Tennessee personal injury lawyer.  The Court of Appeals held in a car accident case that a plaintiff who serves a summons by certified mail must file the return receipt “promptly.” The court did not say what “promptly” means.  The failure to do resulted in dismissal of the case.

Plaintiff filed suit within the statute of limitations and had summons issued the same day. There was some dispute as to whether Plaintiff’s process server delivered the summons and complaint to Defendant within 90 days, but the Court of Appeals found that dispute immaterial. Instead, the Court of Appeals affirmed dismissal based on the statute of limitations because Plaintiff filed the returned summons and proof of service more than a year after it was issued.

The Court of Appeals held that, in order for a plaintiff to rely upon the original filing date for the purpose of commencing suit under Tenn. R. Civ. P. 3, the plaintiff must “promptly” return proof of service under Tenn. R. Civ. P. . 4.03(1).  Rule 4.03 states:

Summons; Return. – (1) The person serving the summons shall promptly make proof of service to the court and shall identify the person served and shall describe the manner of service. If a summons is not served within 90 days after its issuance, it shall be returned stating the reasons for failure to serve.  The plaintiff may obtain new summonses from time to time, as provided in Rule 3, if any prior summons has been returned unserved or if any prior summons has not been served within 90 days of issuance.

(2) When process is served by mail, the original summons, endorsed as below; an affidavit of the person making service setting forth the person’s compliance with the requirements of this rule; and, the return receipt shall be sent to and filed by the clerk.  The person making service shall endorse over his or her signature on the original summons the date of mailing a certified copy of the summons and a copy of the complaint to the defendant and the date of receipt  of return receipt from the defendant.  If  the return receipt is signed by the defendant, or by person designated by Rule 4.04 or by statute, service on the defendant shall be complete.  If not, service by mail may be attempted again or other methods authorized by these rules or by statute may be used.

In Faulks v. Crowder, 99 S.W.3d 116, 123 (Tenn. Ct. App. 2002), the Court of Appeals previously held that service by mail requires an affidavit be filed under Tenn. R. Civ. P. 4.03(2) “within a reasonable time in order for process to be effective.”  The Court of Appeals in Faulks affirmed dismissal because the plaintiff did not file an affidavit establishing service of process for more than a year and nine months after service on the defendants was delivered by certified mail.

In this case, the majority concluded that proof of personal service under Rule 4.03(1) also must be returned “promptly.” The majority noted that Rule 4.03(1) actually uses the word “promptly,” while Rule 4.03(2) does not include anything about the timing of filing proof of service. Based on this, the majority stated that proof of personal service under Rule 4.03(1) “arguably contains an even more stringent requirement than section (2).”

Judge Susano dissented.   He acknowledged that Rule 4.03(1) mandates a plaintiff “promptly make proof of service to the court,” and agreed with the majority that the plaintiff in this case did not do so by filing proof of service more than a year after the summons was issued. However, Judge Susano noted that Rule 4.03(1) does not expressly or implicitly say that the consequence of failing to “promptly” file proof of service is a determination that the lawsuit was never commenced under Rule 3. He explained that Tennessee law is clear that commencement of an action is accomplished only when a complaint is filed and process is served. Judge Susano stated that, to the extent that Faulks, “by analogy, can be read to mean otherwise and to support the majority’s conclusion, I disassociate myself from the holding in Faulks.”

What is the reasonably prudent plaintiff's lawyer to do?  Have an office procedure in place that provides for the prompt filing of summonses and have employees follow it.  While it seems crazy that the penalty for failure to file a summons can result in the complete dismissal of a case even though the defendant acknowledges timely receipt of the summons and complaint, this risk now exists.  I cannot  reconcile this decision with the notion that the rules of civil procedure are in place to ensure the just, speedy and inexpensive resolution of civil actions, 

The case is Cristy Irene Fair v. Stephen Lynn Cochran, No. E2011-00831-COA-R3-CV (Tenn. Ct. App. March 30, 2012).   If a Rule 11 application for permission to appeal is filed in this case I believe it will be granted.

Article on T.C.A. Section 20-1-119 and the Mills Decision

T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations,  the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations.  The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the  MIlls  opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.  

My thoughts about the impact of Mills are summarized in the conclusion to the article:

At the end of the day, Mills is not a catastrophic development in Tennessee tort law. Rather, it is just another decision that places a burden on plaintiff’s counsel to develop a strategy and employ tactics to attempt to avoid the risk of an empty chair at trial. The biggest hazard faced by plaintiffs occurs when the wrongdoers have a business or insurance coverage reason to collude with one another to create an empty chair.

I hope that this article will be a help to Tennessee lawyers who have questions with the statute. Tort lawyers will find additional guidance on the entire field of Tennessee comparative fault law in a book I wrote 15 years ago with Donald Capparella.  John Wood was added as an additional author in a later edition.  Tennessee Law of Comparative Fault is available for purchase from Thomson Reuters.

Twelve Steps To Avoid Summary Judgment on a Fact Issue

Tennessee summary judgment law changed on July 1, 2011 to allow the use of "put up or shut up" motions.  (The law only applies to cases filed on or after July 1.)   This change will increase the use of summary judgment motions in Tennessee and will probably result in an effort by defendants to file those motions earlier in the case.

Although there will be a constitutional challenge to this legislation, the constitutional issue will not reach the Tennessee Supreme Court for several years.  In the meantime, lawyers opposing motions for summary judgment must work hard to marshal the facts necessary to create a genuine issue of material fact (if one can be legitimately created)..

TRCP 56.07 gives a lawyer opposing a motion for summary judgment the opportunity to ask for more time to complete discovery before a summary judgment hearing.  Here are the twelve steps you should follow to (a)  maximize your chances of putting your case in the  posture of not needing to file a Rule 56.07 motion or (b) if a Rule 56.07 motion must be filed, increasing the likelihood that the motion will be granted.

1. Serve discovery with  your complaint.  There is rarely a tactical reason not to serve discovery with a complaint.  The only exception to this rule  that I can think of is that the plaintiff comes to you so late that you only have time to file the complaint before the statute of limitations expires.  But, unless you can articulate this or some other good reason not to serve discovery with the complaint, do it.  If you can't serve discovery with the complaint, serve the discovery within fifteen days of the service of the complaint.

2. Follow-up on tardy discovery responses.  If your opponent has not responded to discovery within the time period required by the rules, follow-up and get an agreement about when discovery will be answered.  Confirm the agreement in writing.  If an agreement cannot be reached, promptly file a motion to compel and set the motion for a hearing.  If your opponent seeks to avoid the hearing and promises to respond to discovery, make sure any agreement reached is in writing.

3. Promptly identify who you want to depose and send a letter to your opponent requesting deposition dates for those deponents.  If your don't get a timely response, send deposition notices.  Then, when your opponent complains about the dates you have selected, use your judgment to either re-set the depositions to accommodate your opponent or push forward.  In any event document what you have done and  why your have done it.  Some lawyers (like this one) often serve deposition notices with the complaint and then typically work with opposing counsel to set a date convenient for all concerned.  Exactly what you do is not as important as doing it on a timely basis and documenting your efforts.

4.  If you get written discovery responses that are insufficient, promptly send a "good faith" letter discussing the deficiencies and asking for complete responses.  Give a deadline for a response to your letter.  if the information is not forthcoming, file a motion to compel.  If your opponent asks for more time to respond and you agree to give it, confirm your agreement in writing, stating the reason why you are giving an extension.

5. Analyze the discovery responses and deposition testimony and determine whether any additional discovery in necessary.  If written discovery is necessary, do it.  If you need depositions, request those depositions in writing.

6.  Seek a scheduling order that has sufficient time to complete discovery before a deadline for filing summary judgment motions.  Leave sufficient time for court reporters to complete deposition transcripts.  Use care not to serve discovery or take depositions so late that it is impossible under the scheduling order  to do follow-up discovery.

7.  Pay attention to discovery deadlines, deadlines for disclosing and deposing experts, and deadlines for filing motions for summary judgment.  Review your file well in advance of these deadlines to determine if additional discovery is necessary.  If it is impossible to meet a deadline, file a motion to extend the deadline before the deadline passes and explain why you need more time.

8.  If at any time in this process you get hit with a motion for summary judgment, immediately evaluate your file and determine the state of discovery.  For example, do you have written discovery that is past due?  If so, write a letter and say you need a response immediately.  Is written discovery outstanding but not due?  Write a letter saying that you need timely, complete responses.  Do you have a request for deposition dates outstanding?  Notice the depositions before the hearing.  Do you have a "good faith" letter that has been ignored?  File a motion to compel.

9.  After doing the file review and taking the action suggested in No. 8, write your opponent and ask if the hearing on the motion for summary judgment can be postponed until the discovery is complete.  Identify with reasonable particularity what discovery you need to finish.  Give your opponent a short deadline within which to respond to your request.

10.  If your opponent agrees to delay the hearing, submit an agreed order postponing the hearing.

11.  If your opponent will not agree to postpone the hearing, file a Rule 56.07 motion if you believe that you need additional discovery to create a genuine issue of material fact and you believe that the additional discovery will likely help you create a genuine issue.  This motion  must be accompanied by an affidavit setting forth what discovery is necessary and why it is necessary.  Reference and attach your letters and emails that demonstrate your attempts to do discovery and explain how the defense has failed or refused to cooperate in that effort.  

12.  File your Rule 56.07 motion and attempt to have it set for a hearing  before the hearing date for the motion for summary judgment.  If that is not possible, have it set for the same day and include a request for an extension of time to respond to the summary judgment motion under TRCP 6.02. Argue  that you in good faith submitted an appropriate Rule 56.07 motion and that, if that motion is denied for whatever reason, you should have a reasonable time to respond to the Rule 56 motion itself.  Depending on who your trial judge is, you may wish to file whatever response you can to the Rule 56 motion but continue to maintain that you should be permitted to have more time to respond because of the reasons stated above.

Following these twelve steps should decrease the need to file a Rule 56.07 motion or help you win the motion if one is necessary.  

Twombly and Iqbal Do Not Apply in Tennessee State Courts

The Tennessee Supreme Court has ruled that  Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009) do not apply to cases filed in Tennessee state courts.  The extremely well-written opinion marshals the arguments against the application of the federal standard in state court proceedings and will be of benefit to lawyers around the nation who attempt to keep the federal standard out of state courts.

In Webb v. Nashville Area Habitat for Humanity, Inc.,  No. M2009-01552-SC-R11-CV (Tenn. July 21, 2011), plaintiff filed a retaliatory discharge case against a Nashville not-for -profit organization. Defendant filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted.  Habitat and amici curiae Tennessee Defense Lawyers Association and The Center for Individual Freedom asked the court  to adopt the Twombly/Iqbal standard, which “retired” the notice pleading regime recognized in Conley v. Gibson, 355 U.S. 41 (1957), and followed for fifty years, in favor of a new “plausibility” standard.  

Plaintiff argued that Tennessee should preserve its historic standard, which provides that a  Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009).  Plaintiff asked the Court to re-affirm Tennessee law which provided that "a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it must contain direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested . . . by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.”  Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004).

A unanimous Tennessee Supreme Court, speaking through Justice Sharon Lee, declined to adopt the new plausibility standard now used in the federal courts.    The Court gave the following reasons for its decision:

  1. The Twombly and Iqbal decisions reflect a significant and substantial departure from the United States Supreme Court’s prior interpretations of Fed. R. Civ. P. 8 and the seventy-year history of a liberal notice pleading standard as envisioned by the Federal Rules of Civil Procedure.  The result of this change has been a loss of clarity, stability, and predictability in federal pleadings practice.
  2. The plausibility pleading standard incorporates an evaluation and determination of likelihood of success on the merits – a judicial weighing of the facts pleaded to see if they “plausibly” present a claim for relief – at the earliest stage of the proceedings, before a sworn denial is even required.   Such "fact-weighing and merits-based determination aspect of the Twombly/Iqbal standard is at odds with the well-established principle in Tennessee that a Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence."  
  3. The  tests formulated by Twombly and Iqbal in attempting to guide courts that must now determine the plausibility of a claim on the pleading alone are problematic and "has granted virtually unbridled discretion to district judges."  Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 24 (2010)
  4. There is a  possibility that the Twombly/Iqbal standard requiring a demonstration of plausibility at the pre-discovery phase of the case results in the disproportionate dismissal of certain types of potentially meritorious claims that require discovery to be proven, including actions for violations of civil rights, employment discrimination, antitrust, and conspiracy.   Justice Lee wrote that "although it may still be too soon to fully gauge the impact of the new plausibility standard, it is at least arguable that it has operated to deny access to justice in the federal courts to possibly meritorious claimants for civil rights violations and employment discrimination." 
  5. Neither Habitat nor amici curiae in the present case  presented evidence showing that the policy concerns cited by the Court in Twombly and Iqbal are present in Tennessee to the extent they exist in the federal judicial system.
 The Court summarized its views with the following language:
it must be remembered that we are addressing the standard in assessing the sufficiency of a single document filed at the very beginning of a case – the complaint.  Our motion-to-dismiss jurisprudence reflects the principle that this stage of the proceedings is particularly ill-suited for an evaluation of the likelihood of success on the merits or of the weight of the facts pleaded, or as a docket-clearing mechanism. Rule 8.01 has not been amended and still only requires “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.” We decline to reinterpret Rule 8 to require a pleader to demonstrate “plausibility” and continue to adhere to the well established standards set forth in section 1 of this opinion.
As mentioned above, this 20-page opinion does a wonderful job explaining why the federal standard of review of motions to dismiss for failure to state a claim should not be adopted by a state court.  Hopefully, this opinion can be used by my colleagues around the country as they attempt to limit the damage done by Twombly/Iqbal to cases that must be filed in federal court.

Defense Lawyers Call for Changes to the Federal Rules of Civil Procedure

The authors of this article have called for substantial changes in the Federal Rules of Civil Procedure.

Included in their proposals is this call for shifting the cost of discovery:

In General. A party submitting a request for discovery is required to pay the 
reasonable costs incurred by the party responding to a discovery request. 
(1) Such costs include the costs of preserving, collecting, reviewing, and producing electronic and paper documents, producing witnesses for deposition and responding to interrogatories.
(2) Each party is responsible for its own costs related to responding to Disclosure  Requirements under Rule 26. 
(3) Non parties responding to Subpoenas under Rule 45 shall be entitled to recovery of reasonable costs associated with compliance with the subpoena.
(4) The costs described in subsection (1) and (3) above shall be considered Taxable Costs under Rule 54(d).

Section 1 of this proposal is ridiculous and yet another effort by monied interests to make sure that that those with less economic power cannot challenge those with more economic power.  I hope that this proposal will be seen for what it is - an unabashed effort to close the doors of the courthouse to all of those who dare challenge the rich and powerful in this country.

Nevada Supreme Court Affirms Sanction of Striking Liability Defense Because of Discovery Abuse

 The Nevada Supreme Court has affirmed a trial judge order that struck a defendant's ability to argue liability, limiting it to contesting compensatory damages.


In Bahena v. Goodyear,  the trial judge struck the defendant's answer as to liability after it failed to follow prior court orders concerning several discovery matters, including the failure to produce a witness for a deposition. The court agreed with the trial judge that "repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate."  The Supreme Court explained that the trial judge "noted that the Bahena plaintiffs included a 14-year old who had been in a persistent vegetative state for the past two years together will the estates of three dead plaintiffs"  and that "since the trial was scheduled to commence [shortly after the discovery deadline] Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated"  because "there could have been open questions as to the authenticity of approximately 74,000 documents that were the subject" of a prior court order.

 In affirming the trial judge's decision, the Nevada Supreme Court noted that the trial judge had prepared nine pages of carefully written findings of fact an conclusions of law analyzing the relevant factors, concluding that the degree of willfulness by Goodyear was "extreme" and "totally untenable and unjustified" and that the "responses to [p]laintiff's' interrogatories are nothing short of appalling."

The decision is reported at 235 P.3d 592 (Nev. 2010).

Kentucky Supreme Court Holds That Personal Injury Plaintiff Lost Privilege By Claiming Mental Injury

The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.

In Dudley v. Jefferson Circuit Court,  2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering.  Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.

The court held that the records were discoverable, saying " Appellant's claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."

One would think that the a protective order should be issued to prevent defendants from sharing the plaintiff's records with those who have no part in the litigation.  However, I think the court did the right thing by ordering the production of the records in this case.

Practice tip:  before asserting a claim of mental or emotional injury, ask your client whether they have a mental health history and help them understand that asserting a claim will likely open that history up for evaluation by the defendant.  I firmly believe that rarely should a plaintiff be troubled by that because  I think there are two types of people:  people who have been to counseling and people who are going to go to counseling.  That being said, some folks have what they believe to be deep, dark secrets that they do not want to come out no matter what the cost.  If your client is one of those people, a claim of emotional injury may have to be dropped.

Personal Injury Claims and Bankruptcy Petitions

What happens when a personal injury plaintiff files a bankruptcy petition?  What happens if that plaintiff fails to disclose in the bankruptcy petition that he has a personal injury claim that has not yet been filed?    How does a bankruptcy court discharge affect the plaintiff's rights to later file his personal injury claim?

The Tennessee Court of Appeals recently addressed these issues in the case of Reynolds v. Tognetti, No. W2010-00320-COA-R3-CV  (Tenn. Ct. App.  Mar.4, 2011).  When the defendants learned that the now debt-discharged plaintiff was pursuing a tort claim for injuries received before he filed the bankruptcy petition, they filed a motion for summary judgment seeking dismissal of the claim on the theory of judicial estoppel.

Plaintiff responded to this motion by (1) petitioning the bankruptcy court to re-open the bankruptcy and (2) filing a motion to amend the complaint to add the bankruptcy trustee as a party plaintiff.  The trustee then moved to intervene or be substituted as a party plaintiff.  

The trial court granted the motion for summary judgment and dismissed the case.  The trial judge did not rule on the motions that had been filed by the plaintiff and trustee.

Here is a brief summary on the view of Tennessee courts on this issue:

The judicial doctrines of standing and judicial estoppel are distinct concepts. A
plaintiff may lack standing because the right to pursue the pre-petition cause of action rests exclusively with the bankruptcy trustee. A plaintiff may also be judicially estopped from pursuing the cause of action where his earlier statement wilfully misled the court and was not made inadvertently or through mistake. Because the application of either doctrine may yield the same result in a case involving the omission of an asset from a bankruptcy petition, courts may be tempted to apply the two doctrines interchangeably. However, importantly, before finding that judicial estoppel applies in a given case, a trial court must make a finding that the plaintiff’s previous statement was not made inadvertently or through mistake, Sartain v. Dixie Coal & Iron, 266 S.W. at 318, and was instead a wilfully false statement of fact, D.M.Rose & Co. v. Snyder, 206 S.W.2d at 906. Thus, it is entirely possible that a plaintiff may lack standing by virtue of his omission, but may not be judicially estopped where his omission was inadvertent. In such cases, standing may still lie with the bankruptcy trustee. See Gordon v. Draughn, No. M2008-02224-COA-R10-CV, 2009 WL 1704470, at *5-7 (Tenn. Ct. App. June 16, 2009).

The Court then ruled that the trial judge erred in granting summary judgment without first ruling on the motion to determine whether the trustee should have been substituted a the real party in interest.

This case is a little odd from a procedural standpoint (there are some other issues not addressed above) but the opinion has a nice summary of the law in this area.

Important Decision on Removal of Tort Cases to Federal Court

The U.S. Court of Appeals for the Second Circuit has ruled that the 30-day period  for removing a case to federal court does not begin to run until "the plaintiff serves the defendant with a paper that explicitly identified the amount of damages sought."

Moltner sued Starbucks in state court in New York but did not state the amount of damages he sought. Moltner's lawyer later sent a three million dollar demand letter to Starbucks.  Starbucks filed a petition to remove the case to federal court more than 30 days after it received the complaint but less than 30 days after receiving the $3 million demand.   The Second Circuit permitted the removal, rejecting the argument that Starbucks should have deduced from reading the complaint that the case sought damages in excess of the jurisdictional amount of the federal courts.

Here is the opinion in Moltner v. Starbucks Coffee Company, No. 09-4943 (2nd Cir. Nov. 2, 2010).


Iqual and Twombly Impact Pleading Standards Under FRCP Rule 8

FDCC Quarterly,  a publication of the Federation of Defense and Corporate Counsel, has published an article on the impact of the relatively recent decisions of United States Supreme Court in Iqual and Twombly.  

This is how the authors summarize the holdings of the two decisions:  

Together, Iqbal and Twombly held that, to comply with the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must allege well-pleaded factual allegations (and not legal conclusions or bare recitations of the elements of a cause of action) that if presumed true 'plausibly give rise to an entitlement to relief.' Iqbal made clear this test should apply to all civil complaints.  [Footnotes omitted.]

The 27-page article explores the decisions in some detail and then discusses the case law that have interpreted them.  You have free access to the entire article, titled "Iqbal and Twombly –Reinvigorating the Substance of Rule 8," by clicking  here.   I note that the authors did not mention that Rule 8 addresses affirmative defenses and not just complaints and thus one would assume that Iqual and Twombly would apply equal to answers that set forth affirmative defenses.

Private Investigator Privilege

A lawyer called me the other day and asked me if a lawyer's communications with his or her private investigator are privileged under Tennessee law.   The answer is "yes," as provided in T.C.A. § 24-1-209:

Communication between an attorney and a private detective or investigator hired by such attorney, while acting in their respective professional capacities shall be privileged communications.

Rule Change in State Court - Service of Pleadings and Papers By Electronic Mail

Effective July 1, 2010 a party to a litigation may serve papers in Adobe PDF format via electronic mail to the attorney's email address.  The process is a little more cumbersome than it need be, but it is a step-forward toward increasing the efficiency of law practice and reducing cost.

The rule change is a modification to Rule 5.02 of the Tennessee Rules of Civil Procedure.  View this rule change (and the other changes to the Tennessee Rules of Civil Procedure) here

Note:  the amendments proposed to Rules 3, 4 and 26 have not been adopted.

New Local Rules in Memphis

The judges in Shelby County have adopted new local rules of court.  Here is a copy.

Court Imposes Sanctions for Failure To Follow Rules Concerning Citation to the Record

Yesterday I discussed a portion of the opinion S.C. Johnson and Son, Inc. v. Morris,   Appeal No. 2008AP1647  (Wis. Ct. App. Div. II Dec. 2, 2009)  concerning the assertion of the Fifth Amendment in civil litigation.  I wanted to bring to your attention a footnote (Footnote 1) that addressed  the failure of counsel to follow court rules for  writing appellate briefs.  Tennessee appellate courts have rules similar to that of Wisconsin and I have seen several recent opinions chastizing lawyers for failure to follow those rules.


We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by WIS. STAT.RULE 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.
Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.


Court Erred in Ordering Release of Medical Records

The Ohio Court of Appeals has ruled that a trial judge committed error by ordering production of a personal injury plaintiff's medical records without first doing an in camera review to determine if the records should have been turned over to the defendant.

The opinion is interesting to Tennessee lawyers and should be persuasive in Tennessee even though the physician-patient privilege is statutory in Ohio.

Under Ohio law, "the filing of any civil action waives the physician-patient privilege as to any communication (including a medical record) that relates causally or historically to the injuries at issue in the action. Natl. City Bank v. Rainer (Aug. 12, 1999), 10th Dist. No. 98AP-1170; Ward v. Johnson's Indus. Caterers, Inc. (June 25, 1998), 10th Dist. No. 97APE11-1531."

The Court explained what should happen when the parties disagree about the scope of discovery of medical records:

We acknowledge that there are many methods for obtaining medical records and determining their relevance before requiring their disclosure in discovery. See, e.g., Natl. City (identifying multiple ways in which a trial court may protect privileged medical records from disclosure); Folmar at ¶25 (directing the trial court to order that disputed records be transmitted under seal for the court's in-camera review). See also Penwell at ¶9 (recognizing "that circumstances may arise wherein the need for an in camera inspection is obviated because the discoverability of the material is apparent from the nature of the action, scope of the request, and a tailored order for disclosure"). In the end, we intend no intrusion upon a trial court's authority to determine the most appropriate method for protecting privileged medical records in a given case. A trial court may not, however, simply ignore the requirements of R.C. 2317.02(B).

Thus, the Court of Appeals ordered that the judge review the records and determine whether they were causally or historically to the injuries at issue in the action.

This is a common-sense result, and the same rule should apply in Tennessee.  Personal injury plaintiffs should not be required to reveal their entire medical history to complete strangers simply because they file a lawsuit.  Instead, discovery of past medical history should be limited to that causally or historically to the injuries at issue in the action.

The case is Mason v. Booker, No. 09AP-500 (Ohio App. 10th District November 24, 2009).


Defendant's Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

What do you do when a party to a lawsuit intentionally refuses to follow the rules?  One judge in Washington State knew what to do: the judge struck the defendant's answer, entered judgment for $8,000,000, and awarded attorneys' fees.  Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details.  The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña's request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

[Footnotes omitted.]

Here are some highlights from the opinion of the Washington Supreme Court:


A corporation must search all of its departments, not just its legal department, when a party requests information about other claims during discovery. Here Hyundai searched only its legal department. Hyundai's counsel told the trial court that in response to request for production 20, Hyundai's search "was limited to the records of the Hyundai legal department" and that "no effort was made to search beyond the legal department, as this would have taken an extensive computer search." CP at 5319. As the trial court correctly found, "[t]here is no legal basis for limiting a search for documents in response to a discovery request to those documents available in the corporate legal department. ... Hyundai had the obligation to diligently respond to Magaña's discovery requests about other similar incidents. It failed to do so by using its legal department as a shield. The trial court also found "Hyundai had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff's requests. Hyundai is a sophisticated multinational corporation, experienced in litigation." Id. Hyundai willfully and deliberately failed to comply with Magaña's discovery requests since Magaña's initial requests in 2000 and continued to do so.


Magaña's ability to prepare for trial was substantially prejudiced because of Hyundai's egregious actions during discovery. The Court of Appeals substituted its own discretion for the trial court's, which is inconsistent with the abuse of discretion standard. The record supports the findings of the trial court that Magaña was prejudiced in preparing for trial.


The record fully supports the trial court's other conclusions: there was no agreement between the parties to limit discovery,Hyundai's definition of "claims" was too narrow because Magaña's discovery request was broad, and the seats in the Hyundai Elantra were similar to the seats in the Hyundai Accent. These findings of fact also support the conclusion Hyundai willfully violated the discovery rules.


[Footnotes omitted.]

The case is Magana v. Hyundia Motor America, No.80922-4.(Wash. Nov. 25, 2009).  Read the opinion here.  Regular readers will recall that a Minnesota trial judge recently awarded millions of dollars in sanctions against a defendant railroad company and a Vermont trial judge recently awarded sanctions against a lawyer for the Roman Catholic Diocese when its lawyer violated a motion in limine.


Rule of the Week - T.R.C.P. 43.04

Winning pre-trial motions means that you have to get relevant data before the Court in the right way. Following the right procedure is not only the way you win motions you should win but is also the way you create a record for a possible appeal.  

Rule 43.04 of the Tennessee Rules of Civil Procedure tells lawyers how to create a proper record when filing a motion on a matter to be considered by the court.  The rule is well-written and self-explanatory. 

When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:

(1) All or part of any deposition taken pursuant to Rules 30 or 31 shall be accompanied by an original or photocopy of the certification of the officer taking the deposition.

(2) All or part of any interrogatory answers or objections thereto obtained pursuant to Rule 33 and all or part of any response or objection to a Rule 36 request for admission shall be accompanied by the original signature of the responding party or attorney, or a photocopy thereof.

(3) Any document obtained pursuant to a Rule 34 request for production of documents shall be accompanied by a copy of the request for production and either a copy of the response thereto or a certificate of authenticity from the party or attorney presenting the document to the court.

The submitting party shall also include the title page of the foregoing documents showing the complete caption for the action as required by Rule 10.01. The submission shall include all relevant definitions provided in the original document.

In ruling on any motion, the court shall consider only those documents and other materials that have been filed with the court as provided herein or that have been presented to the court in accordance with Rules 43.01 or 43.02, or matters that have been stipulated by the parties.

How do you  make such a filing?  Title it "Plaintiff's Notice of Filing In Opposition to Defendant Holy Grail Insurance Company's Motion for Summary Judgment."   The opening sentence should read as follows:  " Plaintiff, Snow White, pursuant to Rule 43 of the Tennessee Rules of Civil Procedure, submits the following documents in opposition to the  Defendant Queen's Motion for Summary Judgment."   Then, list and describe each document and attach the documents to the Notice.  Here is an example:

  1. Affidavit of Snow White.  (Exhibit A)
  2. Affidavit of Grumpy. (Exhibit B).
  3. Selected excerpts of the April 1, 2009 Deposition of the Queen.  (Exhibit C)
  4. Statement of Counsel Certifying Authenticity of Documents Produced by  Queen and Documents.  (Exhibit D).

You will save yourself a lot of heartache if each page of each exhibit is marked seperately in the lower right hand corner like this:  Exhibit A, 1 of 4, 2 of 4, 3 of 4, 4 of 4, Exhibit B 1 of 20, 2 of 20 etc. In that way you will know exactly what you marked as an exhibit and can be sure you have a complete set of what you filed.

Finally,  file the Notice and exhibits with the Clerk of Court.

One last note.  You no longer have to file a complete copy of the deposition to use a portion of the deposition in support of or opposition to a motion.  Instead, follow subsection (3) of the rule.







Rule of the Week - T.R.C.P. 7.02 (Motions)

Rule 7.02 of the Tennessee Rules of Civil Procedure governs motions.  It is important for what it does not say.  Here is the text of the rule: 

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

 (2)The rules applicable to captions, signing, and other matters form of pleadings apply to all motions and other papers provided for by these rules. 

Do you see what is missing?  Many local rules mandate that a motion requiring that an issue of law be decided be accompanied by a memorandum of law.  But there is nothing in Rule 7, or any local rule that I am aware of, that prohibits a motion and a memorandum of law being contained in the same document.

Why do I care?  The use of two documents means that there are  two documents that must be kept up with during the hearing.  It requires a duplication of a caption, a certificate of service, and one or two paragraphs of other information.  It is totally unnecessary  So, why not combine the two?

Here is how it can work?  The title of the document would be "Defendant Deep Pockets, LLC's Motion to Compel and Memorandum of Law."  The opening sentence would read "Defendant Deep Pockets, LLC respectfully moves for an Order compelling the Plaintiff to answer interrogatories and produce documents. 

The next section of the document would be designated "Grounds for Motion" and would set forth in particularity the grounds for the motion.  In the example, the grounds would be that discovery was served on Plaintiff on June 1, 2009, was due July 5, 2009, and that no response had been received.  This section would also detail the efforts made to resolve the matter before court intervention was sought.  

The next section would be designated "Applicable Law.".  The following section would be the "Argument" section, where the law was applied to the facts as set forth in the grounds for the motion.  The last section, "Relief Sought," sets forth in particularity the relief sought by the motion.

The filing of one document will save time, money and paper.  Let me know if you like the idea.



Rule of the Week - T.R.C.P 8.03

There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure.  For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense.  Here is the text of the rule:

In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation.  {Emphasis added.}

Why is this important?  A defendant cannot simply say "there was insufficiency of service of process" or "I allege the comparative fault of Smith."  No, the defendant must go further and set forth the facts that support that defense.   Of course,  the allegations of those facts can be changed via amendment under Rule 15, but the initial pleading raising the defense must include facts.  If not, the court should strike the affirmative defense Rule 12.06 as insufficient.  

A new decision of the Tennessee Court of Appeals makes it clear that Rule 8.03 means what it says.  Allgood v. Gateway Health Systems,  No. MC-CC-CV-MA-06-391 (Tenn. Ct. App. Sept. 22, 2009) did not let a defendant who asserted an insufficiency of process that was bare of any facts use that defense to seek dismissal of the case after the plaintiff could not longer cure the deficiency.

The Allgood  decision will be addressed in more detail in the November issue of the Tennessee Trial Law Report.   Click here to subscribe.

Tennessee Supreme Court Issues Proposed Rules for Public Comment

The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence.  The Order asking for public comment can be viewed here.  

I serve on the Court's Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.  

Significant proposed changes to the rules of civil procedure  include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits.  The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.


Rule of the Week - T.R.C.P. 37.03(1)

Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery.  Here is the text of the rule:


A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.

As you can see, the default sanction for failure to supplement or amend is a bar to the use of the evidence.  

This rule is particularly effective when your opponent fails to give complete answers to expert witness interrogatories.  Judges should prohibit a party who fails to disclose opinions of an expert or the bases for those opinions from testifying to those matters at trial.  

It can also be used when your opponent fails to disclose a fact witness or fails to turn over documents that were covered by a Rule 34 document request.

Of course, if you do a shoddy job of answering expert interrogatories you will have a hard time complaining about the incomplete answers of your opponent.  But, if you follow the rule, the judge should require your opponent to do the same, and should enforce the default sanction.

Sometimes a person who intentionally or carelessly does a poor job answering expert witness interrogatories will say that the movant could have learned the additional information if he or she had taken the expert's deposition.  That's right: the argument is that it is the movant's fault for not spending thousands of dollars to get information that was supposed to be provided by answers to expert witness interrogatories.  Your response to that argument is that you have no duty to spend your time and money to determine if your opponent has followed the rules of procedure and that you had a right to rely on the interrogatory answers in determining what the expert was going to say at trial.

If you decide not to depose your opponent's experts, this language in a letter to your adversary after you receive answers to the  expert witness interrogatory will help you with your trial judge.

I have your answers to expert witness interrogatories.  I assume that the answers are complete and that I have been provided with all information required under Rule 26.  If the answers are incomplete in any way, or if supplementation of the answers is required by Rule 26.05, please do so as soon as possible.

Based on your answers, I have elected not to depose your experts.  However, please be advised that in the event that your expert attempts to testify to any substantive matter not included in your answers to expert witness interrogatories I will ask the Court to exclude such testimony under Rule 37.03(1).

This rule is relatively new and judges in some areas of the state need to be educated about it.  Lawyers should not be permitted to sandbag opponents by giving shoddy expert witness disclosures or withholding documents.  




Scehduling Orders: Deadlines for Alleging Fault Against Nonparties

        Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff’s lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action.

       Plaintiff’s lawyers have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of at-fault defendants and the development of evidence against those defendants. 

       Defense lawyers also have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of other at-fault parties, including those who are not a party to the action. 

Continue Reading...

Iqbal / Twombly: The Death of Notice Pleading

If you don't understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ.  

This seminar, exclusively for plaintiff's lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice.  Also discussed will be AAJ's response to these cases and the steps that are being taken to help the judicial system understand the adverse impact that these decisions have on access to justice.

The teleseminar will be held on Thursday the 17th of September at 1:00 CDT.  It will last 90 minutes. Go to the AAJ website to register.

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

         One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

          I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

       Thus, because a plaintiff ordinarily has the burden of proof on liability, causation, and damages, plaintiff will have to disclose expert witnesses on these issues first. However, to the extent that the defendant asserts an affirmative defense (and thus assumes the burden of proof on that issue) the defendant has will have to disclose expert(s) on the affirmative defense at the same time the plaintiff discloses experts.

Continue Reading...

Objections to Form of the Question at Depositions (With a Discussion About Objections to Leading Questions)

"All objections, except those as to the form of the question, are reserved."  This sentence, or one substantially similar to it, may be found at the beginning of every deposition.  But what are objections to the form of the question?

Evan Shaeffer at The Trial Practice Tips Weblog shared a list of objections to form in a recent post.  The post lists seven different objections - vague, compound, argumentative, asked and answered, assumes facts not in evidence, misstates the evidence, leading, lacks a questions, lacks foundation - and gives examples of several of the objections.   It is a handy list that you may wish to keep as a part of your materials on the law of depositions.  Of course, you can always come back to this site and find the link under the  "Civil Procedure" category or by using the "Search" function.

Many people get upset when you object to leading at a deposition.  And they should, assuming that they are taking the deposition of a party opponent or another person that they would be allowed to lead at trial.  The law permits those witnesses to be lead during depositions.  But the deposition of a co-party or a third-party witness is different.  Why?  Because they would not be able to lead that witness at trial (unless they are cross-examining that witness).

But why, you might ask, would you care?  It is just a discovery deposition.

This is why.  Except as to expert witnesses, there is no such thing as a discovery deposition in Tennessee absent an agreement of the parties.  Outside of these limited circumstances, every deposition can be used at trial under the situations described in the rules of civil procedure and the rules of evidence.  Here are the relevant rules that should give you pause for concern.

Rule 32.01(3) pf the Tennessee Rules of Civil Procedure provides that "the deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that the witness is “unavailable” as defined by Tennessee Rule of Evidence 804(a)."

Rule 804(a) of the Tennessee Rules of Evidence states that unavailability includes those situation where the declarant

(1) Is exempted by ruling of the court on the grounds of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) Demonstrates a lack of memory of the subject matter of the declarant's statement; or

(4) Is unable to be present or to testify at the hearing because of the declarant's death or then existing physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process; or

(6) For depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing. .

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

You never know if that non-party witness may be dead by the time of trial.  Or will have moved out of the subpoena power of the court.  Or suffers effects from a debilitating stroke.  Thus, a judgment call has to be made whether to allow your opponent to lead  non-party witnesses during direct examination at depositions or whether you will lodge an objection to the form of the question for leading. 

How do you do it?  "Objection, leading."  Response:  "This is a discovery deposition.  Don't be a jerk."  Reply:  "Will you agree that I have a standing objection to every leading question you ask?  If, so, I will be happy to not interfere with your questions and object to every leading question." Sur-reply:  "Sure, jerk."   

Does Error of Counsel Justify Setting Aside a Default Judgment?

Not in the Seventh Circuit, it doesn't.   In Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc.,  No 08-1967 (7th Cir. June 29, 2009) the Court of Appeals for the Seventh Circuit refused to vacate a default judgment under Rule 60(b)(6).

The Court ruled as follows:

[W]e drew a clear line in United States v. 7108 West Grand Avenue, 15 F.3d 632, 634 (7th Cir. 1994) when we said that “[t]he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds.” The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. See id. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances. See Williams, 890 F.2d at 996. Hinterlong’s actions, even with BMF’s purported diligence, do not fall within the exceptions to the rule and do not rise to the level of  'exceptional' to warrant such 'extraordinary' relief.

BMF’s beef is against Hinterlong, not the court’s ruling on the case. Deception of a client becomes the liability of the client’s attorney and not the client’s opponent. See  Tolliver, 786 F.2d at 319 (“Holding the client responsible for the lawyer’s deeds ensures that both clients and lawyers take care to comply. If the lawyer’s neglect protected the client from ill consequences, neglect would become all too common.”). Since clients must be held accountable for their attorney’s actions, it does not matter where the actions fall between 'mere negligence' and 'gross misconduct.' See 7108 West Grand Avenue, 15 F.3d at 635. 'Malpractice, gross or otherwise, may be a good reason to recover from the lawyer but does not justify prolonging litigation against the original adversary.'  Id. at 633. See United States v. Di Mucci, 879 F.2d 1488, 1496 (7th Cir. 1989) ('It seems clear to us that the law in this circuit is that an attorney’s conduct must be imputed to his client in any context.') (emphasis in original).

Hinterlong was given lots of opportunities to file an answer on behalf of his client but failed to do so.  He apparently was not truthfully representing the status of the case to his client.

To be sure, this case has some outrageous facts.  But there is language here that could come back to haunt the lawyer who fails to answer a complaint because he or she thinks the judge will give them more time if the plaintiff lawyer files a motion for a default. 



Article about Requirements for Pleading Facts in Complaints

Last fall I wrote about the new standard for pleading in federal court announced in Bell Atlantic Corp. v. Twombly,  550 U.S. 544 (2007).    Now, a new article by Andrée Sophia Blumstein appearing in the July 2008 edition of the Tennessee Bar Journal studies Twombly in more detail and comments on the decision in Ashcroft v. Iqbal,  129 S.Ct. 1937; 2009 U.S. Lexis 3472 (May 18, 2009), a recent decision that sheds more light on Twombly.

Andrée  explains that in Twombly  the United States Supreme Court held that 

to survive a motion to dismiss a complaint must contain 'enough facts to state a claim to relief that is plausible' and must suggest a 'right to relief above a speculative level.'  'Labels and conclusions,'naked assertion[s]' without ' further factual enhancement,'  or  'a formulaic recitation' of the elements of a cause of action will not survive a motion to dismiss.

She goes on to explain the impact of Iqbal on the way plaintiffs must draft a complaint:

Iqbal removes all doubt as to the applicability of the Twombly pleading standard: it applies in all federal civil cases.   Courts, such as the Sixth Circuit, that have inclined towards limiting Twombly to expensive, complex cases involving massive discovery can no longer do so.

[Footnotes omitted.]

You might being saying to yourself, "those decisions mean nothing to me.  I practice in state court."  Well, one Tennessee appellate court  "has already given Twombly a most favorable nod, finding it 'consistent with Tennessee law and therefore recogniz[ing] its applicability.'"  Hermosa Holdings Inc. v. Mid-Tennessee Bone and Joint Clinic P.C., Tenn. Ct. App. No. M2008-00597-COA-R3-CV (March 16, 2009).

I encourage you to read Andrée's article to learn more about this important issue.