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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).  

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