Articles Posted in Civil Procedure

Where defendant in a negligence and premises liability case filed a motion for summary judgment just three days after filing her answer, and the trial court denied plaintiff’s motion for additional time to conduct discovery and granted summary judgment to defendant, that ruling was vacated on appeal.

In Graves v. Calloway, No. W2022-01536-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2023), plaintiff filed a negligence and premises liability claim against two defendants, including defendant homeowner, after he was injured when he fell off a ladder while accessing defendant’s attic to help her install squirrel traps. Defendant homeowner filed her answer, then filed a motion for summary judgment just three days later. Plaintiff filed a motion requesting more time to conduct discovery pursuant to Tennessee Rule of Civil Procedure 56.07, as well as a motion to amend. The trial court ultimately denied the motion for more time and granted summary judgment to defendant homeowner, but this ruling was vacated on appeal.

In its opinion, the Court of Appeals noted that the “Tennessee Supreme Court has held that after adequate time for discovery has been provided, summary judgment should be granted if the nonmoving party’s evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial.” (internal citation and quotation omitted). Rule 56.07 provides that a party opposing summary judgment can request more time in which to conduct discovery, and plaintiff in this case followed the mechanism set out by the Rule. Plaintiff’s counsel submitted an affidavit stating that he had had no opportunity to conduct discovery, and that he had written defendant’s attorney requesting dates for depositions, but the request had been denied.

Where defendants filed a motion to dismiss under the TPPA and plaintiff thereafter filed a voluntary dismissal of one of the defendants, but the trial court denied the voluntary dismissal, defendants did not have the right to automatically appeal the voluntary dismissal denial under the TPPA, as the TPPA petition was still pending.

In Kent v. Global Vision Baptist, Inc., No. M2023-00267-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2023), plaintiffs filed suit against defendant church and pastor for nuisance, trespass, and violation of local ordinances. The suit largely related to the church’s use of a tent as a structure. Defendants filed a petition to dismiss the complaint under the Tennessee Public Participation Act (“TPPA”). Thereafter, plaintiffs attempted to voluntarily dismiss the pastor without prejudice. At a hearing regarding the dismissal, the trial court denied the voluntary dismissal, and defendants argued that plaintiffs could only dismiss the pastor with prejudice. During the hearing, plaintiffs’ counsel allegedly orally agreed to a dismissal with prejudice, but then repudiated that agreement. Ultimately, the trial court denied dismissal of the pastor with or without prejudice.

Defendants filed this appeal under Tenn. Code Ann. § 20-17-106, a provision of the TPPA which “allows a party to immediately appeal a court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under the TPPA.” Plaintiffs argued that the Court of Appeals did not have jurisdiction under this statute, and the Court agreed.

My other blog is Practical Procedure and Evidence.  This is where I share new case law and practical tips on using the rules of procedure and evidence in your Tennessee law practice.

By way of example, today’s post addresses the issue of whether a plaintiff who is facing a motion to amend may amend his, her or its complaint without filing a motion to amend.  The answer is “yes,” so long as the plaintiff has not previously amended the complaint and no answer has been filed.  The post includes citations to the relevant case law.

There are 100 other posts similar to this one – posts the advise (or remind) you on a given issue of procedure or evidence and give you citations to the relevant case law.   Each post gives you a real head start on researching evidence and procedure issues.

According to the Tennessee Supreme Court, where an HCLA defendant did not assert in his answer that a non-party physician was the cause-in-fact of plaintiff’s injuries, the trial court did not err by excluding evidence supporting that allegation at trial, even when the defendant did not seek to prove that the other physician was negligent. Further, where plaintiff’s medical bills were discounted due to an insurance policy plaintiff purchased and paid for privately, the collateral source rule was not abrogated under Tenn. Code Ann. § 29-26-119, and plaintiff could use the “full, undiscounted medical bills to satisfy the burden of proving the reasonable value of medical expenses.”

In Crotty v. Flora, 676 S.W.3d 589 (Tenn. 2023), plaintiff filed an HCLA claim against defendant doctor, alleging that her ureter was perforated during a surgery performed by defendant. Five days after the surgery performed by defendant, plaintiff had to have a second surgery, which was performed by Dr. Wiatrak. Plaintiff’s ureter perforation was found during this second surgery.

Plaintiff did not name Dr. Wiatrak as a defendant in her HCLA case. When defendant filed his answer, he reserved the right to amend his answer to assert comparative fault allegations, but he never did so.

A disabled person’s conservator had the authority to enter into a consent agreement releasing the person’s HCLA claims against a doctor without approval from the probate court.

In Hamilton v. Methodist Healthcare Memphis Hospitals, No. W2022-00054-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2023), plaintiff filed an HCLA suit as conservator on behalf of a disabled 24-year-old patient. In the original suit, plaintiff conservator named multiple defendants, including a doctor and defendant hospital. All claims against the hospital were based on its vicarious liability for the actions of the doctor.

At the end of a jury trial, the jury was unable to come to a unanimous verdict, and plaintiff conservator was granted a mistrial. The conservator thereafter entered into a consent agreement with the doctor whereby she agreed not to name the doctor as a defendant in any subsequent suit in exchange for the doctor not pursuing discretionary costs related to him being voluntarily dismissed from the original suit. The same day the consent agreement was signed, plaintiff refiled the HCLA claim against the hospital, naming the hospital as the sole defendant and alleging that it was vicariously liable for the actions of the doctor.

Plaintiff’s argument that defendant was equitably estopped from asserting a statute of limitations defense based on vague statements by defendant’s insurance carrier adjuster that a limitations defense would not be raised and that there was no rush in providing releases was rejected.

In Barrett v. Garton, No. M2022-01064-COA-R3-CV (Tenn. Ct. App. Oct. 6, 2023), plaintiff was injured in a car accident with defendant. Plaintiff filed suit within the one-year statute of limitations, but she failed to have service issued at the time of the filing or within one year thereafter. Defendant accordingly moved for summary judgment based on the statute of limitations, which the trial court granted after rejecting plaintiff’s argument that defendant should be equitably estopped from asserting a statute of limitations defense. This ruling was affirmed on appeal.

Tenn. R. Civ. P. 3 states that filing a complaint commences an action, “but if no process is issued upon the filing of the complaint, the plaintiff must issue process within one year from the filing of the complaint to rely on the filing of the complaint to toll the statute of limitations.” It was undisputed that plaintiff had failed to have process issued within a year of filing her complaint, but she argued that defendant should be equitably estopped from asserting a timeliness defense based on statements made by defendant’s insurance carrier.

My other blog, Practical Procedure and Evidence, has an updated post discussing the law of damages for frivolous appeal.  The post includes citations to cases where damages for frivolous appeal appeal have been granted and denied in the last four months.

Writing a brief on appeal?  Save yourself at least thirty minutes of research time checking out this blog post.


Where defendant moved for a directed verdict after the close of plaintiff’s proof but failed to renew the motion at the close of all proof, and did not file a post-trial motion seeking a new trial, defendant waived review of the denial of the motion for directed verdict as well as review of the sufficiency of the evidence.

In Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff purchased a home at auction and later brought this claim against defendant, who marketed and facilitated the auction. Plaintiff alleged that defendant knew the home had mold issues and failed to disclose them, and defendant misrepresented the number of acres sold with the home. In addition to contract claims, plaintiff asserted a claim for reckless misrepresentation.

At the end of plaintiff’s proof, defendant moved for a directed verdict, which the trial court denied. Defendant failed to renew its motion at the close of its own proof, and the jury returned a verdict for plaintiff. Defendant did not file a post-trial motion for a new trial, but appealed asserting that the trial court erred in denying the motion for directed verdict and that the evidence was not sufficient to support the jury’s finding. The Court of Appeals ruled that defendant had waived both of these arguments and affirmed the jury’s verdict.

Where “application of the operation-of-law exception would bar a vicarious liability claim that is timely filed within the [HCLA’s] extended statute of limitations solely because the statute of limitations had expired for any claims against the principal’s agents, the exception must give way to the [HCLA].”

In two nearly identical opinions, the Tennessee Supreme Court addressed the interplay between claims for vicarious liability, common law exceptions to the ability to assert vicarious liability claims, and the HCLA. In Ultsch v. HTI Memorial Hospital Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023), the Supreme Court held that a vicarious liability claim filed within the 120-day extension of the statute of limitations could proceed against a principal, even when the relevant agents were not named as defendants, were not given pre-suit notice and thus not subject to an extended statute of limitations, and were barred from being sued by the statute of limitations at the point the complaint was filed against the principal.

In both cases, the plaintiff sent pre-suit notice to the hospital at which they were treated, but did not send pre-suit notices to any agents of said hospitals. The statute of limitations as to claims against the hospitals were extended 120-days pursuant to the HCLA, and the plaintiffs filed their vicarious liability claims against the hospitals beyond the one-year mark but before the 120-day extension had run.

The Tennessee General Assembly has modified Tenn. Code Ann. Section 20-1-119 to make it clear that the plaintiff gets the benefits of the statute even if the fault allegations against a nonparty are made by a uninsured/underinsured motorist insurer.  The new legislation, Public Chapter No. 294, states as follows:

Section 1. Tennessee Code Annotated, Section 20-1-119(a), is amended by

redesignating the current language as subdivision (a)(1) and adding the following new

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