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Articles Posted in Limitation of Actions

Where plaintiff filed a legal malpractice action in federal court within the one-year statute of limitations, but then waited more than one year after dismissal of that federal case to file this claim for legal malpractice, dismissal based on the statute of limitations was affirmed. In Tolson v. Herbison, No. M2020-01362-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2021), plaintiff retained defendant to represent him in post-conviction matters related to plaintiff’s previous conviction for first-degree murder. The trial court denied post-conviction relief, which the Court of Appeals affirmed, and the Tennessee Supreme Court denied certiorari.

On May 23, 2013, plaintiff filed a complaint with the Tennessee Board of Professional Responsibility asserting that defendant failed to notify him of the denial of certiorari and failed to correspond with him, and that “as a result of [defendant’s] alleged errors, [plaintiff’s] writ of habeas corpus was denied as time-barred.” When plaintiff completed this complaint, he signed a disclaimer noting that legal malpractice claims are subject to a statute of limitations.

Plaintiff filed a legal malpractice claim in federal court on October 18, 2013, which the district court dismissed. The Sixth Circuit affirmed dismissal on October 6, 2016. Plaintiff then filed this case in Davidson County Circuit Court in July 2018, which the trial court dismissed as time-barred, and the Court of Appeals affirmed.

Where plaintiff’s brother surrendered an annuity fund, signed plaintiff’s name on the check from the fund, and deposited the funds in his own account, all without plaintiff’s consent or knowledge, the trial court’s verdict that defendant brother was liable for conversion was affirmed, as was the finding that the statute of limitations was tolled by defendant’s fraudulent concealment. In Pomeroy v. McGinnis, No. E2020-00960-COA-R3-CV (Tenn. Ct. App. July 16, 2021), plaintiff and defendant were brother and sister. When their mother sold her house and moved in with defendant, the proceeds from the sale were used to purchase an annuity. Plaintiff and defendant were named as co-owners and beneficiaries of the annuity, with the mother named as the annuitant (although the annuity never produced an income stream). The trial court found, based on the testimony of the parties, that the purpose of the annuity was to ensure that the mother would eventually qualify for Medicaid benefits.

In 2012, defendant submitted a form surrendering the annuity, and a check was made payable to plaintiff and defendant. Defendant signed both his own name and plaintiff’s name on the check, then deposited the proceeds into a joint account he shared with his then wife. When defendant and his wife were later divorcing in 2019, the annuity came to light, and the wife informed plaintiff that she had seen a check that appeared to have been endorsed by someone else on her behalf. Plaintiff alleged that she had no knowledge of the annuity, the surrender, or the check until these divorce proceedings in 2019, and accordingly filed this suit for conversion against defendant.

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Where plaintiff’s personal injury claim was based on a Tennessee car accident for which defendant was given a traffic citation for failure to exercise due care under Tenn. Code Ann. § 55-8-136, which is a Class C misdemeanor, the statute of limitations for plaintiff’s action was extended to two years pursuant to Tenn. Code Ann. § 28-3-104(a)(2).

In Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan. 28, 2021), plaintiff was injured in a car accident with defendant in September 2017. A state trooper issued defendant a traffic citation listing three violations, including “failure to exercise due care, pursuant to Tennessee Code Annotated § 55-8-136.” Defendant eventually paid a fine for this citation. In April 2019, which was more than one year after the accident, plaintiff filed this personal injury action, arguing that instead of being subject to the standard one-year statute of limitations for personal injury claims, the statute of limitations for this case was extended to two years by virtue of Tenn. Code Ann. § 28-3-104(a)(2). Defendant filed a motion for summary judgment based on the statute of limitations issue, but the trial court ruled in favor of plaintiff, and the Court of Appeals affirmed.

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Where plaintiff knew her husband was killed in a car accident with a firefighter but did not know all the details regarding how the accident occurred, the one-year statute of limitations began to run on the day of the crash and her GTLA suit that was filed more than one year after the accident was untimely.

In Durham v. Estate of Losleben, No. W2019-01623-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2020), the plaintiff’s husband was killed when his vehicle collided with one being driven by a firefighter. One year and 21 days after the accident, the plaintiff filed this case under Tennessee’s Governmental Tort Liability Act against the county that employed the firefighter, the fire department, and the estate of the firefighter, who was also killed in the accident.

Defendants moved to dismiss based on the statute of limitations. The trial court granted the motion, finding that the GTLA claim against the governmental entities was time-barred and that the estate was immune under the GTLA. The Court of Appeals affirmed this ruling.

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Where a plaintiff filed a personal injury action against the personal representative of the estate of the deceased tortfeasor, but the estate had already been closed and the statute of limitations had run by the time the plaintiff sought to extend the time to file correctly, dismissal based on untimeliness was affirmed.

In Algee v. Craig, No. W2019-00587-COA-R3-CV (Tenn. Ct. App. Mar. 31. 2020), plaintiff was injured in a car accident allegedly caused by Nancy Craig on September 25, 2017. Nancy Craig died the following January, and her estate was opened with Defendant David Craig as her personal representative in February 2018. The estate was closed on July 13, 2018.

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The Tennessee Supreme Court has extended the deadlines for filing suit (both statutes of limitations and statutes of repose) because of the coronavirus and Covid-19.

By Court Order filed March 25, 2020, the Court said this:

Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through

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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Where plaintiffs knew that a Tennessee judgment had to be renewed when it was ten years old, had not spoken with an attorney at the firm who previously represented them, and had not received any bills or communications about a renewal of the judgment, plaintiffs’ legal malpractice claim filed three years after the judgments needed to be renewed was time-barred.

In Rozen v. Wolff Ardis, P.C., No. W2019-00396-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2019), plaintiffs had been represented by defendant law firm in a 2003 case. In that case, plaintiffs were awarded judgments against two defendants who stole jewelry from plaintiffs’ business, but because those defendants were sent to prison, the judgments were not collected on at the time. When one of the two defendants filed for bankruptcy in 2006, defendant law firm represented plaintiffs to ensure that the judgment was not discharged. After that representation in 2006, plaintiffs “received a letter from Wolff Ardis stating that ‘this matter is completed’ and requesting that [plaintiffs] pay for the legal services performed for them.”

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In order to bring a direct claim against a plaintiff’s uninsured motorist insurance carrier, the plaintiff must have filed his initial complaint against the uninsured motorist (or “John Doe” if unknown) within the one-year statute of limitations.

In Fults v. MetLife Auto & Home Insurance Agency, Inc., No. M2018-00647-COA-R3-CV (Tenn. Ct. App. March 7, 2019), plaintiff was injured in a hit-and-run car accident on November 16, 2015, and the other driver was never identified. Plaintiff filed suit, naming his uninsured motorist carrier as defendant, on July 14, 2017. Defendant moved for dismissal, arguing that plaintiff’s claim was barred “on the ground that the complaint did not name or contain allegations against a “John Doe” driver, that no summons had been issued against “John Doe”…, and that the statute of limitations…would prevent John Doe from being named as a defendant.” Plaintiff moved to amend the complaint and add John Doe, but the trial court denied the motion to amend and granted the motion to dismiss. The Court of Appeals affirmed.

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