Civil Procedure

March 17, 2023

New Procedure and Evidence Blog

Don’t forget to check out my newest blog, Practical Procedure and Evidence. The blog addresses procedural issues at the trial and appellate level and the law of evidence.

I write about issues that are of interest to lawyers working in the trenches of civil trial law. The law of procedure and evidence are the rules of litigation “game,” and those who do not know or follow the rules are at an extreme disadvantage in the preparation and trial of civil cases. Conversely, those who know and use the rules can gain a fair, strategic advantage.

The blog already has 26 published posts with three more posts scheduled to appear in the coming days. Already published posts include spoliation of evidence, serving out-of-state defendants in motor vehicle cases, and a presumption of adequate consideration when a contract is in writing.

March 10, 2023

Plaintiff waived objection to discovery from testifying expert where objection was not made until expert deposition was in progress.

by The Law Offices of John Day, P.C.

In an HCLA case discovery dispute, the Tennessee Court of Appeals ruled that plaintiff’s testifying experts’ “notes, drafts, and communications with counsel” were discoverable under the Tennessee Rules of Civil Procedure and that plaintiff had waived any claim that the requested items were privileged.

In Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), plaintiff filed a healthcare liability case against defendants based on injuries that occurred during plaintiff’s c-section. During the deposition of one of plaintiff’s testifying experts, the expert referenced an email sent to plaintiff’s counsel that included a bullet-point list as well as a page of handwritten notes, neither of which had been provided to defendants in response to defendants’ interrogatories, requests for production of documents, or requests accompanying the deposition notice. Defendants filed a motion to compel plaintiff to produce certain documents from her testifying experts, including “correspondence to and from her expert witnesses, draft reports of expert witnesses, and any similar materials.” Plaintiff responded that the documents were protected from discovery, but the trial court ultimately granted the motion to compel, which was affirmed (but modified) on appeal.

In its analysis, the Court initially clarified which Rules of Civil Procedure applied here. Because the experts at issue were identified as testifying experts, Rule 26.02(4)(A) applied to discovery related to these experts. Further, the Court ruled that Rule 26.02(3), which addresses discovery of trial preparation materials, applied, but it clarified that “the requirements of subdivision (3) are subject to those of subdivision (4) for discovery of expert witness information.”

March 3, 2023

Tennessee statute of limitations is based on gravamen of complaint.

by The Law Offices of John Day, P.C.

Where plaintiff’s claims against defendant county were based on intentional torts, a one-year statute of limitations applied.

In Anderson v. Lauderdale County, Tennessee, No. W2022-00332-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2023), plaintiff was pulled over by a sheriff’s deputy employed by defendant county. According to plaintiff, the deputy pointed a gun at plaintiff, chased him and called for backup when plaintiff tried to drive away, eventually tased plaintiff, and made false statements about plaintiff, causing him to be wrongfully charged with multiple crimes. Plaintiff further asserted that “a grand jury returned an indictment against [the deputy].”

Plaintiff filed this complaint against the deputy and defendant county more than one year after the incident, asserting that the county was liable for the deputy’s actions under Tenn. Code Ann. § 8-8-302 and -303. Plaintiff’s initial complaint listed several intentional torts, but his amended complaint removed the referral to any specific torts and instead alleged liability more generally. After plaintiff voluntarily dismissed the deputy, defendant county filed a motion to dismiss pursuant to the statute of limitations, which the trial court granted upon determining that a one-year statute of limitations applied. Dismissal was affirmed on appeal.

February 27, 2023

TPPA Petition to Dismiss Does Not Survive Voluntary Dismissal.

by The Law Offices of John Day, P.C.

A plaintiff may take a voluntary nonsuit even after the defendant has filed a petition to dismiss under the TPPA, and a petition to dismiss under the TPPA does not survive after voluntary dismissal by the plaintiff and is not considered a counterclaim.

In Flade v. City of Shelbyville, Tennessee, No. M2022-00553-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2023), plaintiff filed suit against several defendants asserting claims for libel, intentional interference with business, and intentional infliction of emotional distress. These claims were based on statements made by defendants about plaintiff through text messages and on social media regarding plaintiff’s role as the landlord of a duplex.

In response to the complaint, the two non-governmental defendants filed separate motions to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) and the Tennessee Public Participation Act (TPPA), Tennessee’s anti-SLAPP statute. While these motions were pending, plaintiff filed notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it held that “the TPPA was not excepted from the right to dismissal without prejudice under Rule 41.01.” On appeal, this ruling was affirmed.

January 23, 2023

Misinterpretation of the law not deemed excusable neglect under Rule 6.02.

by The Law Offices of John Day, P.C.

When a party failed to file a motion for substitution for more than a year after filing a notice of death, misinterpretation of the law did not constitute excusable neglect and dismissal was affirmed.

In Joshlin v. Halford, No. W2020-01643-COA-R3-CV (Tenn. Ct. App. Jan. 6, 2023), plaintiff husband and wife filed a healthcare liability action based on alleged negligence related to the treatment of husband’s broken hip. Husband died of unrelated causes in February 2014, and in March plaintiffs’ counsel filed a “Notice of Death.” In October 2014, opposing counsel sent plaintiffs’ counsel a letter stating that the case needed a new plaintiff. Eight months after this letter, defendants filed a motion to dismiss pursuant to Rule 25.01, which requires a party to file a motion for substitution within 90 days of a suggestion of death.

Plaintiff responded to the motion to dismiss three days later by filing a Motion for Substitution/Motion to Amend. Plaintiff argued that the substitution was not necessary because plaintiff wife was already a party to the matter and was also the “surviving plaintiff” under the wrongful death statutes. After several rounds of argument, the Court of Appeals eventually addressed this issue on interlocutory appeal, ruling that because plaintiff husband had died of unrelated causes, the action was eligible to be revived but did not pass automatically pursuant to the wrongful death statutes. Instead, plaintiffs needed to follow the Rule 25.01 procedure. The Court then remanded the case for the trial court to consider “whether Plaintiffs’ response to the motion to dismiss should be construed as a motion for enlargement of time, and if so, whether Plaintiff’s failure to act within the prescribed ninety-day period was the result of excusable neglect.” (internal citation omitted).

December 12, 2022

Bench trial verdict for plaintiff in truck wreck case based largely on credibility affirmed.

by The Law Offices of John Day, P.C.

Where the trial court found plaintiff 25% at fault and defendant 75% at fault in a negligence case related to a crash between a car and tractor trailer, the Court of Appeals affirmed the verdict for plaintiff.

In Kindred v. Townsend, No. W2021-01481-COA-R3-CV (Tenn. Ct. App Dec. 7, 2022), plaintiff filed this negligence suit against defendant and defendant’s employer based on a motor vehicle accident. Defendant was driving a tractor trailer while employed by defendant employer, and she turned left at an intersection. There was contradictory testimony regarding whether the traffic light was giving a green turn signal, a yellow turn signal, or a permissive green light when defendant began her turn. Plaintiff was approaching from the opposite direction and was not yet to the intersection when the light for her lane turned green. She proceeded through the light without slowing down, and her car and defendant’s tractor trailer collided.

December 8, 2022

TPPA Petition to Dismiss Could Not Be Filed After Plaintiff Took Voluntary Dismissal.

by The Law Offices of John Day, P.C.

Where plaintiff filed a notice of voluntary dismissal in his defamation case before defendants filed their petition to dismiss under the TPPA, the trial court erred by granting defendants’ petition for dismissal and awarding them attorneys’ fees and sanctions after plaintiff’s nonsuit.

In Adamson v. Grove, No. M2020-01651-COA-R3-CV, 2022 WL 17334223 (Tenn. Ct. App. Nov. 30, 2022), plaintiff filed a complaint against defendants asserting claims for defamation, invasion of privacy, and intentional interference with business relations. Six weeks after filing the complaint and prior to defendants filing an answer or other pleading, plaintiff filed a notice of voluntary dismissal pursuant to Rule 41.01, and the trial court entered an order dismissing the case without prejudice four days later.

More than two weeks after the order of dismissal was entered, defendants filed a “combined motion to alter or amend and petition to dismiss with prejudice pursuant to the Tennessee Public Participation Act” (TPPA). Defendants asserted that the TPPA applied to this action, that the TPPA gave defendants 60 days from receipt of the complaint to file their petition for dismissal, and that defendants had a vested right to seek dismissal with prejudice and sanctions under the TPPA. After several replies and responses, the trial court ultimately agreed with defendants and granted the petition for dismissal with prejudice. The trial court also awarded defendants $15,000 in attorney fees and $24,000 in sanctions. These rulings were reversed and vacated on appeal.

July 22, 2022

Res judicata dismissal of tort claims reversed.

by The Law Offices of John Day, P.C.

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.

July 13, 2022

Lawyer Sanctioned for Misconduct During Deposition

by The Law Offices of John Day, P.C.

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.

June 28, 2022

Tennessee Supreme Court Releases Opinion on Attorney Fee Awards After Motion to Dismiss

by The Law Offices of John Day, P.C.

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.