Articles Posted in Civil Procedure

Where plaintiffs filed tort claims related to a car accident, and those tort claims were not compulsory counterclaims in a previous action filed by defendant against plaintiffs based on the same accident, the ruling that plaintiffs’ claims were barred by the doctrine of res judicata was reversed.

In Albers v. Powers, No. M2021-00577-COA-R3-CV (Tenn. Ct. App. July 12, 2022), plaintiff wife and defendant were in a car accident. Defendant had previously filed a personal injury suit against plaintiff wife seeking damages related to the car accident. That suit was settled, and the trial court entered an Agreed Order of Dismissal which stated that “all claims asserted in this suit by Richard Powers against defendants, Lori Albers…are dismissed WITH PREJUDICE.”

Two weeks after this order was entered, plaintiffs filed the present action, asserting claims of negligence and loss of consortium. Defendant filed a motion to dismiss, arguing that the suit was barred by the doctrine of res judicata. The trial court agreed, dismissing plaintiffs’ claims, but the Court of Appeals reversed dismissal.

A lawyer who surreptitiously helped his client during a remote deposition was sanctioned by the court.  The lawyer was disqualified from the case and the plaintiff will be permitted to the right to play and highlight to the jury the recorded exchanges of [lawyer’s] witness-leading comments . . . .”  The court also referred to matter to the presiding judge of the district for review and possible further disciplinary action.

The decision may be viewed by clicking on the link.

Yesterday the Tennessee Supreme Court remanded a Davidson County Chancery Court case to the trial court to determine the amount of fees that should be awarded after a successful motion to dismiss for failure to state a claim upon which relief may be granted.   The statute at issue is Tenn. Code Ann. § 20-12-119(c)

In Donovan v. Hastings,  Plaintiff persuaded the trial court to dismiss the defendant’s counterclaim on a Rule 12.02(6) motion, but the trial judge awarded fees incurred only for time spent after the defendant filed an amended counterclaim, and not considering time invested in researching the issues after the original counterclaim was filed.  The Court of Appeals affirmed the trial judge in a 2-1 decision.  The Supreme Court reversed, interpreting the statute in such a way that fees incurred in gaining the dismissal (up to the statutory cap) were recoverable.  The amount of the fees to be awarded on remand will be based on the factors set forth in Tenn. Sup. Ct. R. 8, RPC 1.5(a).

There are fourteen civil and and eleven cases currently pending before the Tennessee Supreme Court.  You can find the current status of each of those cases by consulting this free resource, Cases Pending Before the Tennessee Supreme Court, on BirdDog Law.

Georgia’s Supreme Court has weighed in the so-called “apex doctrine,” which provides courts with a framework for determining whether good cause exists to forbid or limit the

deposition of a high-ranking corporate executive or high-level government official who lacks personal, unique knowledge of facts relevant to the litigation.  The court’s 39-page opinion discusses the factors Georgia courts should consider in such cases.

General Motors, LLC v. Buchanan is a wrongful death, products case involving a claim of a defect in a GM vehicle’s steering wheel angle sensor.  The plaintiffs sought to depose the current CEO of the company.  The company objected, and urged Georgia’s courts to adopt the apex doctrine. which the court generally described as include the following factors:

Where plaintiff died a few days before the complaint in her HCLA suit was filed, and the complaint was filed with her named as plaintiff, the complaint was a nullity that could not be corrected by amendment and dismissal of the case was affirmed.

In Owen v. Grinspun, No. M2021-00681-COA-R3-CV (Tenn. Ct. App. May 25, 2022), plaintiff wife had surgery in August 2019, and she later gave pre-suit notice to defendants of an HCLA claim based on injuries related to that surgery. After notice had been given, but a few days before the complaint was filed, plaintiff wife died. The complaint was nevertheless filed listing plaintiff wife as the sole plaintiff.

Defendants filed an answer and engaged in discovery. Plaintiff’s counsel thereafter filed a suggestion of plaintiff wife’s death on the record, and also filed a motion to substitute plaintiff’s husband as the plaintiff, which the trial court allowed. Later, however, defendants filed a motion to dismiss, asserting that “the original complaint was a nullity that did not serve to toll the statute of limitations and that the statute of limitations had now expired.” The trial court “reluctantly granted the motion” to dismiss, and this ruling was affirmed on appeal.

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Where plaintiff had previously gotten a default judgment as to defendant’s liability in a car accident case, and plaintiff had subsequently filed an amended complaint seeking increased damages but defendant was not served with the amended complaint, the Court of Appeals affirmed the ruling that the judgment based on the amended complaint was void and plaintiff had not proven “exceptional circumstances to deprive the defendant of Rule 60 relief.”

In Higgins v. McCord, No. M2021-00789-COA-R3-CV (Tenn. Ct. App. April 1, 2022), plaintiff filed this negligence suit against defendant after the two were involved in a car accident. Plaintiff’s initial complaint was filed in May 2009 and sought $1 million in compensatory damages and $1 million in punitive damages. Defendant was served with this complaint but never filed an answer or other responsive pleading, and a default judgment as to liability only was entered in December 2009.

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Where the trial court did not provide sufficient reasoning for its grant of summary judgment in a misrepresentation case, summary judgment was vacated and the case was remanded to the trial court.

In Smith v. Walker, No. W2021-00241-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2022), plaintiffs purchased a home from defendants. Shortly after the purchase, plaintiffs discovered the home was contaminated with mold, and they filed this action asserting claims for breach of contract, negligence, gross negligence, negligent misrepresentation, and intentional misrepresentation.

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Where the trial court did not provide sufficient reasoning in support of its dismissal of plaintiffs’ various HCLA and informed consent claims, summary judgment for defendants was vacated.

In Boyd v. Gibson, No. W2020-01305-COA-R3-CV, 2022 WL 95167 (Tenn. Ct. App. Jan. 10, 2022), plaintiff had been treated by defendant doctor for cancer (defendant’s employer was also a defendant). This treatment began in 2014 and included surgery. According to plaintiff, defendant told her that she would not benefit from chemotherapy or radiation, and defendant “did not explain to [plaintiff] the survival rates with chemo/radiation and more extensive rectal surgery…” After the September 2014 surgery, defendant referred plaintiff to an oncologist “without discussing chemo/radiation therapy or consulting a radiation oncologist.” In August 2017, plaintiff learned that her cancer and reoccurred and spread.

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Where plaintiff named the wrong defendant in a Tennessee premises liability suit, was informed that the named defendant did not own the property three weeks after the complaint was filed, but failed to take any corrective action for more than four months when she filed a “Motion to Correct Misnomer” in response to defendant’s motion for summary judgment, denial of plaintiff’s motion and the granting of summary judgment for defendant was affirmed. In Bodine v. Long John Silver’s LLC, No. M2021-00168-COA-R3-CV (Tenn. Ct. App. Jan. 14, 2022), plaintiff fell on what she alleged was a dangerous concrete structure in a Long John Silver’s parking lot. The fall occurred on February 25, 2019, and plaintiff filed this suit on February 24, 2020, against “Long John Silver’s, LLC, individually and d/b/a Long John Silver’s.” Three weeks after suit was filed, counsel for defendant emailed plaintiff and stated that JAK Foods, Inc. was the franchisee for this restaurant location, and defendant did not own, operate, or control the restaurant or have any employees there.

Defendant filed an answer in April 2020, then filed a motion for summary judgment on June 11, 2020, asserting that it owed no duty to plaintiff. On July 28, 2020, plaintiff filed a “Motion to Correct Misnomer,” seeking to substitute JAK Foods as defendant. Plaintiff argued that the substitution should relate back to the date of the original filing under Tennessee Rule of Civil Procedure 15.03, as JAK Foods had “received timely notice of the action and that it should have known that but for the mistake regarding its identity, the action would have been brought against it.” In October 2020, defendant asked that the motions be put on the docket, and after a December hearing, the trial court denied plaintiff’s motion and granted summary judgment to defendant. When plaintiff filed a motion to alter or amend, the trial court specifically noted that it “considered…the extreme lack of due diligence exhibited by the Plaintiff” and that “no additional due diligence was performed by Plaintiff from July 2020 to January 2021.” The trial court accordingly denied the motion to alter or amend, and the Court of Appeals affirmed.

In its analysis, the Court of Appeals first pointed out that plaintiff had failed to designate “the grant of summary judgment as an issue for review,” so that issue was waived. The only issue on appeal, then, was whether the trial court correctly denied plaintiff’s “Motion to Correct Misnomer.”

The parties in Djeneba Sidibe et al. v. Sutter Health, Case No. 3:12-cv-04854-LB, a civil antitrust case in federal court in San Francisco, are in a dispute over whether a case ready for trial should be tried virtually.  Plaintiff seeks an immediate virtual trial.  Defendant opposes it.

The joint submission by the parties on the issue includes arguments for and against virtual jury civil jury trials and a host of case law on the issue.  This 16-page letter , which includes an exhibit for remote and safety protocols for the trial, cost tens of thousands of dollars in lawyer time to prepare.

And you get the benefit of the work at no cost.

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