Articles Posted in Limitation of Actions

Where a pro se plaintiff knew about defendants’ alleged legal malpractice more than one year before he filed suit, summary judgment based on the statute of limitations was affirmed.

In Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023), plaintiff filed a legal malpractice claim against defendant attorneys based on their representation of him in an underlying divorce case, which included an order of protection against plaintiff. The order of protection was entered on May 30, 2017, and stated that plaintiff could no longer reside at a Tellico Plains residence, but the order was supposed to specify a different residence located in Sweetwater.

Beginning in June 2017, “Plaintiff informed Defendants on more than one occasion that the Circuit Court had erred in its May 30, 2017 amended of or protection by listing the incorrect address[.]” In August 2017, plaintiff was arrested due to his refusal to leave the Tellico Plains address, and he was incarcerated for six months. On March 5, 2018, plaintiff filed a pro se motion to alter or amend the order of protection by correcting the address, which was granted in April 2018.

Ordinarily and subject to several important exceptions, the statute of limitations in Tennessee personal injury cases is one year.    One exception to that rule is Tenn. Code Ann. § 28-3-104(a(2), which addresses situations where the civil defendant faced criminal charges as a result of a incident giving rise to the cause of action.  However, a new decision declares that where a defendant in a car accident case received a traffic citation for violation of a city code ordinance, the statute of limitations for filing a claim related to that accident was not extended under Tenn. Code Ann. § 28-3-104(a)(2).

In Glover v. Duckhorn, No. W2022-00697-COA-R3-CV (Tenn. Ct. App. May 2, 2023), plaintiff and defendant were involved in a car accident, and defendant received a traffic citation for violation of a city code ordinance for failure to maintain a safe lookout. No other citation was issued. One year and one day after the accident, plaintiff filed this personal injury action, and defendant filed a motion to dismiss based on the one-year statute of limitations. Plaintiff asserted that the limitations period was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2), but the trial court granted dismissal, and the Court of Appeals affirmed.

Personal injury suits are subject to a one-year statute of limitations under Tenn. Code Ann. § 28-3-104, but subsection (a)(2) extends the limitations period to two years under certain circumstances:

Where the trial court took judicial notice of items from the court case underlying a tort action for invasion of privacy, abuse of process, and intentional infliction of emotional distress, it did not convert the motion to dismiss to a motion for summary judgment and dismissal of the claims based on the statute of limitations was affirmed.

In Doe v. Rosdeutscher, No. M2022-00834-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff had filed an underlying HCLA suit. Plaintiff eventually took a voluntary nonsuit in that case, and following a motion by defendants in that case, the trial court assessed Rule 37 and Rule 11 sanctions against plaintiff’s counsel.

Plaintiff then filed this action against the defendants and the defendants’ attorneys from the previous HCLA case. In this case, plaintiff asserted claims for invasion of privacy, abuse of process, intentional or reckless infliction of emotional distress, and breach of contract based on the allegation that defendants “filed Plaintiff’s medical records in the healthcare liability action which included nude photographs of Plaintiff and details about her sexual and mental health history[.]” Defendants filed a motion to dismiss, which the trial court granted. The trial court also assessed damages against plaintiff and Rule 11 sanctions against plaintiff’s attorney. On appeal, these rulings were affirmed.

Where a patient left the hospital with known pressure ulcers and no wound treatment plan, the statute of limitations for his HCLA (health care liability act, formerly known as medical malpractice) claim related to those skin wounds began to run on the day he was discharged from the hospital.

In Jackson v. Vanderbilt University Medical Center, No. M2022-00476-COA-R3-CV, 2022 WL 16545403 (Tenn. Ct. App. Oct. 31, 2022), patient was hospitalized at defendant hospital from August 7-24, 2020. During his time there, he “began developing skin breakdowns and pressure ulcers[.]” When patient was discharged on August 24, 2020, he was told to follow up with his primary care physician, but on September 3, patient was taken to a wound treatment center. Patient was later treated at defendant’s trauma center.

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Where plaintiffs alleged that “church entities were negligent regarding the sexual abuse of minors” by a clergyman, and the allegations included claims of fraudulent concealment through an investigation that was actually a “whitewash,” dismissal based on the statute of limitations was reversed. Further, dismissal of plaintiffs’ claim for negligent infliction of emotional distress based on the entities disclosing plaintiffs’ names to the media was also reversed, as the Court concluded that defendants did have a duty to plaintiffs and the act of releasing plaintiffs’ names was sufficiently outrageous to sustain the tort claim.

In Doe v. Woodland Presbyterian, No. W2021-00353-COA-R3-CV, 2022 WL 1837455 (Tenn. Ct. App. June 3, 2022), the three plaintiffs were former members or attendees of Woodland Presbyterian Church, and all three alleged that former paster Stanford had sexually assaulted them in the 1990s when they were minors. Plaintiffs filed this suit in May 2020 against Stanford and several church entities, asserting claims for negligence and negligent infliction of emotional distress. (The claims against Stanford were not at issue on appeal). Plaintiffs asserted, among other things, that church leaders knew Stanford was having young boys spend the night at his home, that defendants “failed to have policies in place that would prevent Pastor Stanford from being alone with minors on church-owned property,” and that defendants failed to have proper policies and training. Further, plaintiffs alleged that when the current pastor was contacted about the abuse allegations in June 2019, he stated that he believed the allegations because he had heard similar stories, and that the situation had been “fully investigated.” Plaintiffs asserted that they later learned that this alleged investigation was a ”whitewash” and attempt to cover up the abuse.

Defendants filed motions to dismiss, which the trial court granted, finding that the claims were barred by the statute of limitations. The trial court noted that plaintiffs were minors when the abuse occurred, and that they “would have had at least a year from the time that they turned 18 to…pursue their claims,” but that such time period had long since passed. The trial court ruled that because plaintiffs knew what happened when they were minors, reported it then, and “knew what investigation was or was not done then,” the statute of limitations began to run when they turned 18. In addition, as to two defendants, the trial court found that it lacked personal jurisdiction over them. On appeal, the ruling regarding personal jurisdiction was affirmed, but dismissal based on the statute of limitations was reversed.

Where defendant was contracted to provide food services to a hospital, and decedent’s injury was allegedly a result of actions or omissions from the food service provider, the Court of Appeals affirmed the finding that the discovery rule applied and plaintiff’s pre-suit notice was timely even though it was sent more than one year after the injury, as nothing in the record indicated that plaintiff could have or should have discovered defendant’s identity earlier.

In Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV, 2022 WL 1657222 (Tenn. Ct. App. May 25, 2022), decedent was transported to a hospital emergency room and admitted due to complications with his PEG tube, through which he received nutrition. Decedent had an order that nothing be given to him by mouth, but on August 26, 2018, the morning after his admission, he was given a full breakfast tray. Decedent aspirated on the food, was found unresponsive, had multiple rounds of CPR performed, was transferred to a long-term care facility, and eventually died in February 2019.

On June 26, 2019, plaintiff, who was decedent’s son, sent pre-suit notice of his HCLA claim to the hospital where decedent was treated. On June 27, counsel for the hospital emailed plaintiff’s counsel and stated, “I don’t know much about this one but from what little I know this may be an issue with the dietary people. Dietary is contracted out to Sodexo (I think).” After further communication, counsel for the hospital stated that it was informing plaintiff pursuant to Tenn. Code Ann. § 29-26-121(5) that there might be another defendant because dietary services were contracted out.

Where plaintiffs averred that defendant home builders affirmatively told plaintiffs that the utility penetrations in the crawl space of the newly built home purchased by plaintiffs in August 2017 had been sealed with foam, and plaintiffs did not learn until January 2018 after an inspection by a mold remediation company that this statement was untrue, plaintiffs’ claims related to the damage allegedly caused by this failure to seal should not have been dismissed based on the statute of limitations, as plaintiff had put forth enough evidence from which a trier of fact could have found that the statute of limitations on these claims was tolled by fraudulent concealment.

In Simpkins v. John Maher Builders, Inc., No. M2021-00487-COA-R3-CV, 2022 WL 1404357 (Tenn. Ct. App. May 4, 2022), plaintiffs filed this pro se action that revolved around a newly built home they bought in August 2017 that had allegedly developed severe mold issues. Plaintiff asserted various claims against defendants, including breach of contract, fraud, intentional misrepresentation, and negligence, all of which the trial court dismissed as untimely pursuant to the three-year statute of limitations applicable to claims of injuries to real property. (Tenn. Code Ann. § 28-3-105.) On appeal, dismissal was partially reversed.

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Where plaintiff had filed complaints with the Board of Professional Responsibility (BPR) complaining of the same allegations that allegedly supported her legal malpractice claim, and those BPR complaints were filed more than one year before the legal malpractice suit was filed, summary judgment based on the statute of limitations was affirmed.

In Jones v. Marshall, No. M2020-01627-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2021), plaintiff filed this pro se legal malpractice claim against defendant on December 20, 2019. Plaintiff had previously reported defendant to the BPR based on the same allegations in November 2018. Defendant filed a motion to dismiss, asserting that the BPR decisions on the matter “were res judicata and Plaintiff had failed to establish a prima facie case of legal malpractice.” Defendant filed a separate motion for summary judgment, asserting that the complaint was barred by the statute of limitations.

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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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