Day on Torts
Where the plaintiff filed suit against the wrong corporate defendant and had no proof that the correct defendant had notice of the suit within the time constraints mandated by Tennessee Rule of Civil Procedure 15.03, the trial court should not have granted the plaintiff’s motion to amend and allowed the claim against the new defendant to relate back to the filing of the complaint.
In Coleman v. CBL & Associates, Inc., No. W2025-01080-COA-R9-CV (Tenn. Ct. App. April 1, 2026), the plaintiff had a car accident due to a sinkhole in the parking lot of a mall. The plaintiff filed a premises liability suit against CBL & Associates, Inc. (“Associates”), who he alleged owned the mall. In Associates’ answer, it denied owning the mall.
After the plaintiff had conducted written discovery, Associates filed a motion for summary judgment. Associates argued that it did not own the mall, but that the mall was actually owned by Old Hickory Mall Venture II, LLC. The plaintiff responded that Old Hickory Mall Venture was an alter ego of Associates, but on the morning of the summary judgment hearing, Associates noted for the first time the existence of a Delaware-based corporation, CBL & Associates Properties, Inc. (“Properties”). Associates argued that all references to CBL at the mall or on the mall website were to Properties, not Associates. Based on this information, the trial court granted summary judgment to Associates.
The plaintiff then filed a motion to alter of amend, seeking to set aside the judgment and name Properties as a defendant. The plaintiff argued that the two companies shared a registered agent, an office address, and that the President of Properties was also the Vice President of Associates. The plaintiff asserted that the claim against Properties should therefore relate back to the filing of the original complaint. The trial court granted the plaintiff’s motion, but it also granted Associates and Properties’ motion for an interlocutory appeal. In this opinion, the Court of Appeals reversed the trial court’s ruling.
Tennessee Rule of Civil Procedure 15.03 governs the relation back of an amendment changing the party against whom a claim is asserted. Based on the Rule and existing case law, the Court explained that to determine whether the plaintiff’s amendment naming Properties as a defendant related back to the filing of the original complaint, the Court would look to:
1) whether Plaintiffs’ amended complaint arose out of the same conduct, transaction, or occurrence set forth in their original complaint; 2) whether CBL Properties had notice of Plaintiffs’ lawsuit within the one-year statute of limitations for personal injury or within 120 days of the commencement of the action; and 3) whether CBL Properties knew or should have known that, but for a mistake or misnomer concerning its identity, the action would have been brought against it.
The parties agreed that the first requirement was met, so the Court’s analysis focused on the second requirement.
The plaintiff argued that Michael Lebovitz was both the Vice President and Treasurer of Associates, as well as the President of Properties, and that this commonality showed that Properties had notice of the claim within the Rule’s time limits. While the Court was not convinced that the plaintiff had produced sufficient proof of Lebovitz’s position at Properties, it found that even if he was the President at Properties, the plaintiff had not met his burden. Lebovitz’s first recorded interaction with the case was his verification of Associates’ interrogatory responses. This verification, however, was signed after the statute of limitations had run and more than 120 days after the complaint was filed. The notarization thus did not meet the time requirements of Rule 15.03. The Court wrote that the plaintiff had provided “no evidence of any such communication, whether formal or informal, whereby Lebovitz or any agent of [Properties] received actual notice of Plaintiffs’ lawsuit within the requisite period.”
The plaintiff also argued that the fact that Associates and Properties shared an office and address provided support for finding notice of the suit, but the Court rejected this argument. The Court noted that “Tennessee law recognizes corporate separateness” and has “consistently given substantial weight to the presumption of corporate separateness.” (internal citation omitted). The sharing of an office and address was therefore not enough to show that Properties had notice of the suit.
Finally, the plaintiff asserted that Properties had notice because Properties and Associates had the same registered agent. The Court also rejected this argument, stating that the “fact that Defendants shared an agent for service of process does not mean that the agent’s knowledge concerning Plaintiffs’ lawsuit against [Associates] is imputed to [Properties], a separate entity,” especially when the registered agent was a third party.
While the plaintiff argued that summary judgment “based on Plaintiffs’ honest mistake as to the property owner’s identity [was] unduly harsh and constitute[d] a manifest injustice,” the Court wrote that “notice is a critical element involved in determining whether amendments to pleadings relate back.” (internal citation omitted). Because the statute of limitations had run and the plaintiff could not show that Properties had the notice required by Rule 15.03, the granting of the motion to alter or amend was reversed, and summary judgment for Associates was reinstated.
This opinion was published four months after the case was assigned on briefs.