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.
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.”
The Legislature has approved the following changes to the Tennessee Rules of Civil Procedure:
Click to access order_adopting_rules_amendments_to_adm2019-01444_eff_07-01-2020.pdf
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.
Here is a sample of a protocol for remote depositions from the SDNY.
Click to access RWL%20Lehrburger%20Sample%20Remote%20Deposition%20Protocol.pdf
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.
Where a middle school student was injured when he tripped on his backpack strap, beginning a chain of events that knocked down a chair that was stacked on top of a table and injured his hand, summary judgment was affirmed based the lack of a dangerous condition and the injury not being foreseeable.
In Landry v. Sumner County Board of Education, No. M2019-01696-COA-R3-CV (Tenn. Ct. App. June 30, 2020), plaintiff was an 11-year-old student sitting with friends in his school cafeteria as he waited for the bell to ring to begin the school day. At this school, the chairs were always placed upside down on the top of the tables the day before so the custodians could clean. In the mornings, the kids would take down a chair to sit. On this particular morning, plaintiff’s backpack strap had unknowingly become wrapped around the leg of his chair. When plaintiff stood to leave, he tripped on the strap. As he fell, he pushed his chair away, and that chair hit a chair that was still upside down on a table. The upside down chair fell and hit plaintiff’s hand, severing the tip of one of his fingers.
Where plaintiff slipped on ice in a hotel parking lot during a snowstorm, summary judgment for defendant hotel was affirmed.
In Chittenden v. BRE/LQ Properties, LLC, No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020), plaintiff checked into defendant hotel during a snowfall that had already produced two inches of snow on the ground. It was still snowing when plaintiff went to his hotel room. When plaintiff left his room fifteen minutes later, it was still snowing, and he slipped in the parking lot. Plaintiff brought this premises liability action, and the trial court granted summary judgment, which was affirmed on appeal.
