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Where plaintiff failed to file a transcript or a Rule 24 statement of the evidence with the appellate court, the “facts found by the trial court [were] conclusive on appeal” and the ruling for defendant school system was affirming in this GTLA case.

In Johnson v. Millington Municipal Schools, No. W2019-01547-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2020), plaintiffs filed a GTLA case against defendant school district alleging that defendant “breached its duty to protect [plaintiff student], who was injured in a fight on school grounds.” The fight at issue took place after school in the car pick-up line. At trial, there was conflicting evidence regarding whether plaintiff student got into her sister’s car before the fight began, whether a male student was involved in the fight, whether plaintiff’s mother had previously warned a school counselor that her daughter had been bullied by the other girls involved in the fight, and who instigated the fight. Additionally, there was testimony from several school employees regarding how close they were to where the fight began, as well as what occurred once the fight was broken up.

In its final order, the trial court found that plaintiff student had already gotten into her sister’s car but then exited it and “physically confronted” two girls who had said expletives to her. The court also found that there were teachers present in the area watching the students, that there was a sheriff’s deputy in the area, and that plaintiff’s mother had not given the school prior warning about issues between the girls. Based on these findings, the trial court ruled that plaintiffs “failed to meet their burden to show that [defendant] was negligent.”

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Where plaintiffs tried to certify a class in a food poisoning case that included all persons who ate at defendant restaurant during a certain time period that became sick due to either ingesting contaminated well water and/or coming into contact with sick employees, as well as these customers “spouses parents children or guardians” who also became infected, the Court of Appeals affirmed the denial of class certification based on the failure to prove commonality, typicality, and adequacy of representation.

In Rogers v. Adventure House LLC, No. E2019-01422-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2020), plaintiffs became sick after eating at defendant restaurant. Plaintiffs then brought this suit, which “arose form approximately 102 events of food poisoning or illness purportedly related to numerous patrons who dined at or visited [defendant restaurant].” The restaurant, the restaurant owners, and the owner of the property on which the restaurant and well were located were named as defendants. Plaintiffs alleged that patrons became sick after consuming contaminated well water and/or interacting with infected restaurant employees. Plaintiffs also alleged that family members of people who visited the restaurant were infected.

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Tennessee’s Governor has extended authority for remote notarization and remote witnessing of documents, subject to compliance with certain procedures, through Sept. 30. The order also encourages users of these tools to make preparations to implement best practices for a safe return to in-person transactions beginning Oct. 1.

Recall too that under the Tennessee Rules of Civil Procedure declarations may be used in lieu of affidavits.

The Texas Supreme Court has announced a rule change to permit courts to authorize electronic service of a summons and complaint when traditional efforts to serve have been unsuccessful. Before approving electronic service, a court must consider if evidence shows the defendant uses a social media profile frequently enough that it would be “reasonably effective” to give them notice of the suit.

The comment to the new rule says as follows:

Amended Rule 106(b)(2) clarifies that a court may, in proper circumstances, permit service of citation electronically by social media, email, or other technology. In determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology. Other clarifying and stylistic changes have been made.

When summary judgment in a previous suit was based on the statute of limitations, a malicious prosecution action cannot be based on that previous suit.

In Horizon Trades, Inc. v. Givens, No. M2019-01876-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2020), defendant was the attorney for Shermane Stuart in a previous action wherein Ms. Stuart filed a claim for breach of contract against Horizon Trades. Horizon Trades filed a motion for summary judgment in that action, and it asserted multiple grounds in its motion. The trial court ruled that although plaintiff had purported to file a breach of contract claim, the claim was actually for “conversion and/or damages to her personal property,” and that the three-year statute of limitations actually applied. The trial court accordingly granted Horizon Trades summary judgment based on the previous suit being untimely. In its ruling, the trial court specifically found that there was “no viable breach of contract claim,” but it did state in its order that even if there were a contract claim, the Statute of Frauds would have barred such a claim based on the value of the property at issue.

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Where plaintiff did not serve defendants until 89 days after summonses were issued, but defendants failed to present evidence that the delay was intentional, the Court of Appeals reversed dismissal of the case.

In Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020), plaintiff filed an HCLA claim against defendants on January 31, 2018. Summonses were issued the following day, and plaintiff’s attorney opted to serve the summonses by private process rather than through the sheriff’s department. On May 1, 2018, eighty-nine days after the summonses were issued, plaintiff’s attorney personally served them on defendants through their registered agent. Defendants filed an answer in June 2018, which included the affirmative defense that they had not been properly served. Plaintiff did not file the returns of summonses with the trial court until January 4, 2019.

Plaintiff filed a “Motion to Dismiss or Strike Insufficiency of Service of Process or Insufficiency of Process Defense,” arguing that service was proper because it was completed within 90 days, or that in the alternative, defendants had waived the service of process argument. Defendants filed a motion to dismiss based on the assertion that service was “not ‘contemporaneously with’ or ‘soon after’ the summonses were issued,” and that “nothing but the intentional decision not to serve the summonses and Complaint explains the delay in service of the Complaint.”

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Here is an excellent decision supporting the right of a party to take depositions by remote video despite an objection raised by the opposing party.

The court’s order references many of the issues that arise during remote video depositions and thus is a great resource for lawyers who are unfamiliar with such issues.

Where plaintiff fell and broke her hip in a grocery store due to her shopping cart missing a wheel, yet she mostly recovered from the injury, a jury verdict of approximately $90,000 in medical expenses and the maximum allowable amount of $750,000 in noneconomic damages was affirmed.

In Wortham v. Kroger Limited Partnership I, No. W2019-00496-COA-R3-CV (Tenn. Ct. App. July 16, 2020), plaintiff, an 88-year-old woman, went to defendant grocery store with her adult daughter. The daughter retrieved a shopping cart from the vestibule for plaintiff’s use, and plaintiff proceeded to shop for around thirty minutes. Near the end of her shopping trip, plaintiff turned her cart to the right and it tipped over, causing her to fall. After plaintiff fell, it was discovered that the shopping cart was missing one wheel, and despite searching the property, the missing wheel and/or parts that would have held the wheel in place were not found. Plaintiff broke a bone and injured her hip in the fall, and she required surgery. She spent time four days in the hospital and fourteen days in a rehabilitation center, and despite doing well, she testified that the she still had some pain and had lost much of her independence due to the fall.

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