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Thursday, August 06, 2020

New Health Care Liability Action Opinion: Denial of Motion to Strike Upheld on Appeal; Dismissal of the Case, However, Was Reversed

The Tennessee Court of Appeals has released its opinion in Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action. In these proceedings, the plaintiff filed a complaint against the defendants in January 2018. The Trial Court issued summonses the following day, and the plaintiff’s attorney took the summonses to serve through private process instead of through the local sheriff’s department. Service was subsequently completed on the defendants’ registered agent eighty-nine days after issuance of the summonses. The defendants filed an answer raising as an affirmative defense that the defendants had not been properly served with process pursuant to Tennessee Rule of Civil Procedure 4. The returns for the original summonses were not filed with the Trial Court until January 2019. The plaintiff filed a motion to strike the defendants’ affirmative defense alleging that the defendants had not sufficiently pled it pursuant to Tennessee Rule of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5), alleging intentional delay of process, insufficient service of process, and insufficient process. The Trial Court denied the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion to dismiss. The plaintiff appeals. Upon a review of the record, we affirm the Trial Court’s denial of the plaintiff’s motion to strike but reverse the Trial Court’s grant of the defendants’ motion to dismiss. 

Here is a link to the opinion:

NOTE: This is the correct decision as to the motion to dismiss.  Defendants, as movants of that motion, had the burden of proving that the delay in service was intentional under Rule 4.01(3),  Tenn. R. Civ. P., Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 12, which they failed to do.  This is where one must be mindful of one of the common law maxims of pleading: "affirmanti, non neganti, incumbit probatio–the burden of proof rests upon him who affirms, not upon him who denies."  City Nat’l Bank v. Barnes, 51 S.W.2d 503, 504 (Tenn. 1932). 

Further, service of a summons within the ninety-day window of it effectiveness suffices; to hold otherwise would be to require a court to look into any service effected in less than ninety days that might otherwise not be prompt, etcSee Tenn. R. Civ. P. 4.01, -.03; Fair v. Cochran, 418 S.W.3d 542, 546 (Tenn. 2013) ("[I]f [a plaintiff] establishes that [a defendant] was served within ninety days of [the issuance of the summons for that defendant], then [plaintiff's] lawsuit is not barred by the statute of limitations and may proceed.").  See also Holder v. Tennessee Judicial Selection Comm’n, 937 S.W.2d 877, 882 (Tenn. 1996) (noting that inferior courts in Tennessee must follow a "pronouncement of a superior court when it speaks directly on the matter before it, particularly when the superior court seeks to give guidance to the bench and bar" (emphasis added)); Barger v, Brock, 535 S.W.2d 337, 341 (Tenn. 1976) (noting same).  I am a little surprised that Fair, which is a SCOTN case, was not mentioned in this appeal.  

Additionally, it appears that the motion to strike should have been granted because the affirmative defense in question, Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 9–10, did not comply with Rule 8.03, Tenn. R. Civ. P., because it was mot supported by any pleaded facts.  Tenn. R. Civ. P. 8.03 (requiring, inter alia, facts to be pleaded in support of any affirmative defense); George v. Alexander, 931 S.W.2d 517, (Tenn. 1996) ("Rule 8.03 is a prophylactic rule of procedure that must be strictly adhered to if it is to achieve its purposes."  (Emphasis added.)).

While I admire the defense's zeal here, their argument was just wrong.  See Fair, 418 S.W.3d at 546.  I am glad the Tennessee Court of Appeals reached the correct result by reversing the dismissal of the case.  (I also think any affirmative defense concerning service of leading process can be disposed of upon remand via partial summary judgment.  See id.)

P.S.  For purposes of information, Fair was one of my cases.  Plaintiff's counsel was kind enough to let me help them with the appeal to SCOTN, which we won.  Id. at 543.

P.P.S.  For a case involving intentional delay of service of a summons, read Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App. 2008).  

Saturday, August 01, 2020

New Case on the Certification of Nonfinal Orders Under Rule 54 of the Tennessee Rules of Civil Procedure

The Tennessee Court of Appeals recently released its opinion in Blackburn v. McLean, No. M2019-00428-COA-R3-CV (Tenn. Ct. App. July 31, 2020).  The syllabus from the opinion reads:
This is a wrongful death healthcare liability action against two defendants, a hospital and an emergency room physician. Following extensive discovery and scheduling orders, the physician defendant filed a motion for summary judgment, and the hospital joined in the motion. The trial court granted each defendant partial summary judgment by dismissing 17 claims alleging the defendants breached standards of care. When the hospital filed its motion to summarily dismiss the remaining claims against it, the plaintiff filed a response and a motion to substitute his physician expert witness for a different expert witness. The defendants opposed the motion, and the trial court denied the motion to substitute the plaintiff’s expert witness. The court also summarily dismissed all remaining claims against the hospital, leaving only the claims against the emergency room physician for trial. Upon motion of the plaintiff, the court certified the summary dismissal of all claims against the hospital as a final judgment pursuant to Tenn. R. Civ. P. 54.02. This appeal followed. We have determined that the trial court erred in certifying the order as a final judgment under Tenn. R. Civ. P. 54.02 because, inter alia, any decision we make regarding the adjudicated claims against the hospital may encroach upon the unadjudicated claims to be tried against the emergency room physician. Moreover, there is no basis upon which to conclude that an injustice may result from the delay in awaiting adjudication of the entire case. Therefore, there is a just reason for delaying the expedited appeal of the summary dismissal of all claims against the hospital. Accordingly, we vacate the trial court’s order certifying the judgment as final under Rule 54.02 and remand for further proceedings. 
Here is a link to the opinion:

NOTE: There is a lot going on in this opinion.  However, the quick takeaway from it is that trial courts need to be careful when certifying nonfinal orders as final under Rule 54.02, Tenn. R. Civ. P.  The Tennessee Court of Appeals has been concentrating on this issue over the last few years because it has found in a number of cases that trial courts have erred in certifying nonfinal orders as final so that an appeal may be effected.  This is a good opinion to read to understand the current state of the law on this issue.