Day on Torts
A temporary order granting a guardianship that had apparently expired by the time of the injury at issue does not meet the standard for proving that an injured party had been “adjudicated incompetent” for the purpose of tolling a statute of limitations.
In Caudill v. Clarksville Health System, GP, No. M2016-02532-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2017), the facts of the matter were not in dispute. Plaintiff and her sister had filed an “emergency petition for the appointment of a guardian for their father” in an Oklahoma court based on the father’s “dementia and mental illness.” On August 27, 2013, that petition was granted and an emergency order was entered finding that “irreparable harm would be done to Decedent if the petition were not granted.” The order was set for review on September 25, 2013, and on October 2, 2013, plaintiff and her sister appeared before the court. The minutes of that hearing indicate that “the emergency guardianship will remain in full force and effect until further orders of the court…,” but no order was ever entered after this hearing.
After these hearings, the father moved to Tennessee, where he was admitted to defendant hospital on March 19, 2014. He was discharged on March 24th, and plaintiff alleged that he suffered sores and ulcers while in the hospital that eventually led to his death on May 24, 2014.
Plaintiff gave pre-suit notice of an HCLA suit to defendant on May 15th and 19th, 2015, more than a year after the father’s discharge but less than a year after his death, and then filed a complaint. Plaintiff asserted that the temporary order showed that the father had been “adjudicated incompetent” and that the deadline for filing suit was extended. The trial court granted defendant’s motion for summary judgment, finding that an extension of time to file was suit was not appropriate and that the complaint was thus untimely. Summary judgment was affirmed on appeal.
The parties agreed that the sole issue here was whether the deadline for filing suit should be extended given father’s alleged incompetence. Plaintiff pointed to Tenn. Code Ann. § 28-1-106 (c), which stated:
If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person or such person’s representatives or privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular case of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.*
(internal citation and quotation omitted). Plaintiff asserted that the Oklahoma order satisfied this statute and showed that the father had been “adjudicated incompetent.” The Court of Appeals, however, rejected this argument.
Regarding the Oklahoma order, the Court pointed out that it was “entered ex parte and was temporary, with a review hearing set to occur…” The Court agreed with the trial court’s determination that “[b]ecause of the temporary nature of this order, …it was insufficient to show that Decedent was adjudicated incompetent at the time Decedent’s cause of action accrued.” The Court reasoned:
Even assuming that an ex parte order of guardianship could serve as an adjudication of incompetence, the subject order by its very terms is emergency in nature and extends only until the September 25, 2013 review hearing date. Indeed, under Oklahoma statutory law, the guardianship court has jurisdiction to appoint a permanent guardian only after the service of notice in a proceeding seeking the appointment of a guardian. …Here, it is undisputed that the emergency guardianship order entered on August 27, 2013, was entered ex parte, without notice to all parties entitled to such notice. Consequently, it appears that this order was merely temporary in nature and required further judicial review after notice to remain in effect. As such, this order, standing alone, is insufficient to show that the Decedent was adjudicated incompetent at the time of the accrual of his cause of action on or around March 24, 2014, or thereafter, for purposes of tolling the applicable statute of limitations.
After the trial court’s grant of summary judgment, plaintiff filed a motion to alter or amend the judgment, attaching the minutes from the October hearing wherein the guardianship was purportedly extended. The Court of Appeals affirmed the denial of this motion, finding that plaintiff had failed to show that the minutes should be properly considered in conjunction with the motion to alter or amend.
Rule 59 motions “should be granted …when previously unavailable evidence becomes available[.]” (internal citation omitted). Here, the Court pointed out that the motion did not identify any efforts plaintiff had gone to before the motion for summary judgment was decided to try to obtain the minutes, and that the motion did not “explain the reason that Appellant was unable to obtain copies of the minutes from the October 2, 2013 hearing prior to the hearing on [defendant’s] summary judgment motion.” The Court pointed out that the minutes were created “nearly three years prior to the [summary judgment] hearing,” and that plaintiff was at the October hearing and was thus aware of its existence. Based on these factors, the Court ruled that allowing plaintiff to rely on the October minutes would “result in unfair prejudice to [defendant],” as the Court had previously held that “where information was clearly available to a litigant prior to the judgment, allowing a litigant to rely on that evidence in a motion to alter or amend would result in unfair prejudice to the party opposing the motion to alter or amend.” (internal citation and quotation omitted).
Because plaintiff had not met the burden of proving that the father had been adjudicated incompetent, the statute of limitations was not tolled and summary judgment for defendant was affirmed.
This case contains two important reminders. First, Tenn. Code Ann. § 28-1-106 has been interpreted very strictly to require a judicial determination of incompetency at the time of an injury for purposes of extending the deadline for filing suit. Arguing that an ex parte order that has apparently expired should satisfy the statute would be very difficult, if not impossible. Second, it is imperative to present all relevant evidence in opposition to a summary judgment motion inh a timely fashion. Here, the minutes might have been enough to establish incompetency, but plaintiff was not allowed to rely on them because they were not presented to the court until after summary judgment had been granted. Rule 59 motions are subject to limited uses under the rule itself and the case law interpreting the rule.
*Note: This subsection was amended yet again in 2016.