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Articles Posted in Civil Procedure

Sometimes companies that do business or cause harm in Tennessee have not registered to do business in Tennessee or have not appointed a registered agent in the state.  If you want to sue them in a civil action (but not a worker’s compensation action), on whom to you serve the summons and complaint?

For “for profit” corporations, the answer is found in Tenn. Code Ann. Sec. 48-15-104 (b) :

Whenever a domestic or foreign corporation authorized to do business in this state fails to appoint or maintain a registered agent in this state, whenever its registered agent cannot be found with reasonable diligence, whenever a foreign corporation shall transact business or conduct affairs in this state without first procuring a certificate of authority to do so from the secretary of state, or whenever the certificate of authority of a foreign corporation shall have been withdrawn or revoked, then the secretary of state shall be an agent of such corporation upon whom any such process, notice or demand may be served.  (Emphasis added.)

Motions to amend a complaint or answer are a routine part of trial practice in Tennessee state court.

Here is a recent statement on the law of motions to amend:

Trial courts have broad authority to decide motions to amend pleadings and will not be reversed absent an abuse of discretion. Hawkins v. Hart, 86 S.W.3d 522, 532 (Tenn.Ct.App.2001). Under the abuse of discretion standard, an appellate court cannot substitute its judgment for that of the trial court. Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn.2006). Numerous factors guide a trial court’s discretionary decision whether to allow a late-filed amendment. Some of these include undue delay, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments and futility of the amendments. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn.Ct.App.1979).

Rule 15 of the Tennessee Rules of Civil Procedure allows complaints and answers to be amended under the conditions set forth in the rule, but amendments do not make the statements in the original pleading disappear.

In Lanier v. Bane, No. M2000-03199-COA-R3CV, 2004 WL 1268956, at *2 (Tenn. Ct. App. June 8, 2004), Lanier pleaded that his host driver was drunk and caused a one-car accident, resulting in the death of Bane and injuries to Lanier.  In his amended complaint, Lanier materially changed those allegations and said his host driver was not drunk.  Bane’s estate defended by asserting that Lanier was partially at fault by voluntarily becoming a passenger in a vehicle driven by one he knew to be intoxicated.

In Footnote 1 of the Court of Appeals opinion affirming a 50% finding of fault on Lanier for contributing to his own injuries, the court noted as follows: “How Mr. Lanier came to “un-know” in his amended complaint that which he knew well in the original complaint about his host driver’s intoxication makes for interesting reading.”

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit  in state  to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,

Occasionally, a plaintiff does not learn until after more than one-year after an event that the person who caused plaintiff’s injuries and losses was working in the course and scope of employment at the time of the incident.  How can a plaintiff add the employer as a party defendant and avoid a statute of limitations defense?

First, persuade the lawyer for the individual defendant to allege the fault of the nonparty employer.  The decision in Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998) held that Tenn.Code Ann. Sec. 20-1-119 applied to such an allegation and thus a plaintiff could take advantage of the statute’s 90-day window to add the employer as a party defendant and avoid a statute of limitations defense.

Second, move to amend the complaint to add the employer to the case and argue that suit was timely filed because of application of the discovery rule.  The rule does not just apply to health care liability actions – -the Tennessee Supreme Court extended the discovery rule to “all tort actions predicated on negligence, strict liability, or misrepresentation.” Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 904 (Tenn. Ct. App. 1992) (citation omitted).

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A defendant sued within the statute of limitations states in its answer or amended answer that a person not a party to the lawsuit negligently contributed to cause plaintiff’s injuries.  Plaintiff decides to sue the nonparty, and rely on Tenn. Code Ann. §20-1-119 to avoid a statute of limitations defense.

How does a plaintiff add the nonparty as a party defendant?

The answer depends on whether the case is in state court or federal court.   In state court, plaintiff has an absolute right to amend under Tenn. R. Civ. Pro. 15.01.  In relevant part, it provides ” [f]or amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.”

An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.

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Does a plaintiff have the right to amend a complaint while a motion to dismiss is pending and no answer has been filed?

Yes.  Rule 15.01 of the Tennessee Rules of Civil Procedure provides a party may amend its pleading “once as a matter of course at any time before a responsive pleading is served[.]” A motion to dismiss is not a responsive pleading and under Rule 15.01 the plaintiff has an absolute right to file an amended complaint.  Grose v. Kustoff, 2017-01984-COA-R3-CV,  2019 WL 244469 , at * 4  (Tenn. Ct. App. Jan. 17,  2019); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion to dismiss is not a responsive pleading for purposes of Rule 15.01).  No motion to amend is necessary because the right to amend is granted in Rule 15.01 itself.

Indeed, some courts have held that a plaintiff who files a motion to amend under such circumstances loses the right to argue that the complaint is automatically amended by the filing of a motion and then leave of court is necessary to amend.  See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3 (Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL 3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage of its right to amend without leave of the court, this Court cannot correct that choice on appeal)

The Tennessee Supreme Court has adopted proposed amendments to several rules of civil procedure.

Rules 5 and 5B have been amended to account for changes in the court system given the expansion of e-filing across the state.

Rule 33 has been amended in the hope of eliminating gamesmanship in answering interrogatories.

Where a plaintiff filed a Tennessee health care liability (medical malpractice) action and died of unrelated causes while the suit was pending, the cause of action did not automatically pass to his wife. Instead, the suit was “eligible to be revived” and a motion for substitution of party should have been filed within 90 days of the filing of the suggestion of death pursuant to Rule 25.01.

In Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019), plaintiff filed a medical malpractice suit against defendants, and his wife was a co-plaintiff asserting loss of consortium claims.  While the suit was pending, plaintiff died from causes unrelated to the alleged malpractice. In March 2014, plaintiffs’ counsel filed a notice of death in the HCLA suit, and an estate was opened for decedent in May 2014. In October 2014 defense counsel sent plaintiff a letter stating that “a suggestion of death and a new plaintiff” were needed, but plaintiff responded by sending a copy of the notice of death previously filed.

In June and July 2015, defendants filed motions to dismiss based on plaintiffs’ “failure to timely substitute a proper party for [decedent].” The trial court denied the motion, ruling that the cause of action automatically passed to the wife, and that since she was already a plaintiff, there was no need to do a party substitution. The Court of Appeals reversed this decision.

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