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Sunday, November 07, 2021

Death of a Party in a Pending Civil Action: Trial Court's Dismissal of Plaintiff's Claim Upheld on Appeal Because Counsel Failed to Properly Revive the Suit Within the Time Allotted by Law and Trial Court Found No Reason to Enlarge Time for a Revivor to Be Effected

The Tennessee Court of Appeals has released its opinion in Mead v. Tucker, No. M2020-01512-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2021).  The syllabus from the slip opinion reads:

In this personal injury negligence action, the defendant died while the litigation was pending. The plaintiff failed to file a motion for substitution of party within ninety days of the original defendant’s death being suggested on the record. Over a month later, the plaintiff moved the trial court to enlarge the time to substitute the parties pursuant to Tennessee Rule of Civil Procedure 6.02(2). The trial court denied the motion for an enlargement of time. Because the trial court did not abuse its discretion, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/mead._deric.j._opn.pdf.

NOTE: This case reminds one of how important it is to properly revive a case against a deceased party and that an enlargement of time to do that is not always granted after the time to act has expired.  

Friday, November 05, 2021

New Case on Service of Leading Process: Trial Court's Dismissal of Plaintiff's Lawsuit Due to Counsel's Intentional Delay in Effecting Service Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Bridges v. Roth, No. W2020-01508-COA-R3-CV (Tenn. Ct. App. Nov. 5. 2011).  The syllabus reads:  

This appeal involves a Tennessee Rule of Civil Procedure 4.01(3) summons issue. The trial court granted defendant’s motion to dismiss after finding that plaintiff intentionally delayed the issuance of the summons for the complaint in contradiction to Rule 4.01(3) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm. 

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/bridgesrubyopn.pdf.

NOTE: This opinion accentuates the fact that filing a complaint on time is 1(a) and effecting service of leading process os 1(b).  Both are so important.  

Sunday, October 31, 2021

New Tennessee Claims Commission Case: Summary Judgment for the State Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021).  The syllabus from the slip opinion reads:

This appeal arises from an action before the Tennessee Claims Commission for personal injuries filed on behalf of a minor child who broke her arm when she fell from playground equipment at Tims Ford State Park. The complaint asserted claims for negligence, gross negligence, and gross negligence per se. It alleged that the State was negligent by failing to adequately maintain its property, and by failing to discover, rectify, and/or warn against a dangerous condition, and allowing park visitors “to use the playground which did not have a safe surface area.” The State denied liability under Tenn. Code Ann. § 9-8- 307(a)(1)(C), insisting it had no notice of any dangerous condition; it also raised the “Recreational Use Statute,” Tenn. Code Ann. §§ 70-7-101 to -105, as an affirmative defense. Following discovery, the State filed a motion for summary judgment, which the claims commissioner granted. The commissioner found the State was entitled to judgment as a matter of law on two grounds. The commissioner found that Tenn. Code Ann. § 70-7- 102 of the Recreational Use Statute provided immunity to the State as a landowner against premises-liability claims and that the gross negligence exception under the statute, Tenn. Code Ann. § 70-7-104(a)(1), did not apply. The commissioner also held that the claimants failed to show that notice of the alleged dangerous condition had been provided to the State, which is an essential element of the Claims Commission Act. The plaintiffs appeal one issue, asserting a genuine issue of material fact existed concerning whether the State’s failure to maintain the playground was gross negligence. We affirm the Commissioner’s decision on both grounds. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/victory.rachel.opn_.pdf

NOTE: This opinion is an all-too-common reminder of the harsh effects of the Tennessee Recreational Use Statute [hereinafter Act] because it provides immunity to landowners and leaves persons who have been injured due to negligence uncompensated.  See Victory v. State, No. M2020-01610-COA-R3-CV, slip. op., passim (Tenn. Ct. App. Oct. 29, 2021).

This opinion also offers up a good explanation of gross negligence under the Act. Id. at 4.   

Lastly, the opinion reminds us of an important point regarding appellate practice, to wit:

     The State also argues that we should affirm the Commissioner’s decision because the Commissioner provided two independent grounds for summary judgment, and Plaintiffs appealed only one. “Tennessee law . . . provide[s] that where a trial court provides more than one separate and independent ground for its judgment and a party fails to appeal one or more of the independent grounds, we must affirm the judgment of the trial court on the ground that was not challenged on appeal.” Buckley v. Elephant Sanctuary in Tennessee, Inc., No. M2020-00804-COA-R10-CV, 2021 WL 2450456, at *12 (Tenn. Ct. App. June 16, 2021) (citations omitted)[, perm. app. denied (Tenn. Oct. 14, 2021)]. 

     In addition to finding insufficient evidence of gross negligence, the Commissioner determined that Plaintiffs failed to establish an essential element of their claim under § 9- 8-307(a)(1)(C) of the Claims Commission Act because there was no evidence that the proper state official had been given notice of the playground’s condition. Plaintiff did not appeal this finding. Accordingly, we are compelled to affirm the Commissioner on this ground as well. 

Id. at 5. 

Monday, October 25, 2021

New Health Care Liability Action Opinion: Trial Court's Striking of Affirmative Defense Because a Certificate of Good Faith Was Not Filed to Support the Defense Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Hanson v. Levan, No. E2020-01581-COA-R9-CV (Tenn. Ct. App. Oct. 25, 2021).  The syllabus form the slip opinion reads:

In this healthcare liability action, the plaintiff sued several medical professionals and facilities. Following an amended complaint, which had removed multiple parties from the action, the remaining defendants filed their answer to the amended complaint that included allegations of comparative fault against a doctor that the plaintiff had removed as a party to the action in the amended complaint. The defendants did not file a certificate of good faith in compliance with Tennessee Code Annotated § 29-26-122, which is required when a defendant alleges comparative fault against a “non-party.” Following a motion by the plaintiff, the trial court entered an order striking the defendants’ allegations of comparative fault. The trial court further found that the defendants had not demonstrated good cause to support an extension of time to file a certificate of good faith. Discerning no error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/brett_hanson_et_al._v._sarah_j._levan_et_al._0.pdf.

NOTE: This is the correct result under Tenn. Code Ann. sec. 29-26-122.  

Wednesday, September 29, 2021

New Case on Waiver of Affirmative Defenses and Summary Judgment: Trial Court's Grant of Summary Judgment Upheld on Appeal

The Tennessee Court of Appeals issued its opinion in F & M Bank v. Fleming, No. M2020-01086-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2021).  The syllabus from the slip opinion reads:

Appellant debtor appeals the trial court’s decision to find certain affirmative defenses waived, to deny his motion to continue the summary judgment hearing in order to conduct discovery, and to grant summary judgment to the defendant bank. Discerning no reversible error, we affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/f__m_bankv.fleming.opn_.pdf.

NOTE: This opinion is a one that every trial lawyer in Tennessee must read because it addresses waiver of affirmative defenses, motions filed under Rule 56.07 of the Tennessee Rules of Civil Procedure seeking additional time to respond to motions for summary judgment, and summary judgments in general.  Keep this one handy.       

Wednesday, September 15, 2021

Trial Court's Denial of Directed Verdict to Insuror in Declaratory Judgment Action Reversed on Appeal

The Tennessee Court of Appeals has recently released its decision Tennessee Farmers Mutual Insurance Co. v. Simmons, No. E2020-00791-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2021).  The syllabus from the slip opinion reads:

In the underlying declaratory judgment action, an insurance company sought a judgment that an automobile insurance policy issued to a mechanic does not provide coverage for an accident involving the mechanic. After examining the mechanic under oath, the insurance company moved for summary judgment, arguing that the policy contained a business purpose exclusion for accidents occurring while road testing a vehicle, which the mechanic stated he was doing at the time the accident occurred. The mechanic responded with an affidavit asserting that he was driving the vehicle for personal errands. The trial court denied the motion, finding that there was a genuine issue of material fact as to the mechanic’s purpose for driving the vehicle. At trial, the mechanic testified that he was running personal errands at the time of the accident but offered no explanation for his contradictory sworn statements. Following the close of proof, the insurance company renewed its argument regarding the policy’s exclusion and moved for a directed verdict. The trial court denied the motion and submitted the matter to a jury, which found that the exclusion did not preclude coverage of the accident. On appeal, the insurance company contends that the trial court erred by not applying the cancellation rule. We agree and hold that if the rule had been applied, no genuine issue existed for the jury to consider with respect to the mechanic’s business purpose at the time the accident occurred. Thus, the trial court should have directed a verdict in favor of the insurance company. The judgment of the trial court approving the jury verdict is vacated and the case is remanded.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/e2020-791_tn_ins._v._simmons.pdf.

NOTE: This opinion offers a good discussion of Tennessee insurance policies, the cancellation rule, etc.  It is worth reading in my humble opinion.  


Friday, August 27, 2021

New Tennessee Claims Commission Case: Dismissal of Claim Upheld on Appeal

The Tennessee Court of Appeals recently released its decision in Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021).  The syllabus from the slip opinion reads:

Following a car accident involving an employee of the State of Tennessee, Irene Howard . . . sought damages against the State based on alleged injuries arising from the accident.  The claim was denied by the Division of Claims and Risk Management . . . , and Claimant thereafter appealed to the Claims Commission . . . .  Because Claimant failed to appeal the DCRM’s decision within ninety days, however, the Commission concluded it lacked jurisdiction over the case and dismissed the appeal. We affirm. 

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/howard.irene_.opn_.pdf.

NOTE: This opinion offers a good discussion on filing claims in Tennessee Claims Commission and the  procedure associated with doing that.  A must read for one who handles claims against the State of Tennessee.