Articles Posted in Civil Procedure

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).

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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