Monday, December 31, 2018
Friday, December 21, 2018
Dismissal of Plaintiffs' Lawsuit Upheld on Appeal Due to Their Failure to Properly Substitute a Representative of Deceased Tortfeasor Within the Time Prescribed by Applicable Law
The Tennessee Court of Appeals issued its opinion today in Owens v. Muenzel, No. E2018-00199-COA-R3-CV (Tenn. Ct. App. Dec. 21, 20180. The syllabus from the slip opinion reads as follows:
This appeal arises from an action for personal injuries incurred in a vehicle collision. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs, unaware of the death of the decedent, commenced this action and named him as a defendant. The plaintiffs also sued their uninsured/underinsured motorist insurance carrier. Upon learning of the death of the decedent, the plaintiffs moved for the trial court to appoint an administrator ad litem. The trial court eventually dismissed the matter in its entirety with prejudice upon finding, inter alia, that it did not possess subject matter jurisdiction to appoint an administrator ad litem and that the action was barred by the statute of limitations. We affirm.
Here is a link to the slip opinion:
NOTE: This opinion does a great job of outlining what must be done by a plaintiff to "revive" (although that term is not technically used now under current law, see generally Tenn. R. Civ. P. 25.01, https://www.tncourts.gov/rules/rules-civil-procedure/2501) a claim against a deceased tortfeaso so that claims asserted in a civil action do not become time-barred.
Sunday, December 16, 2018
Grant of Summary Judgment Overturned Because Trial Court Failed to Follow Rule 56.04, Tenn. R. Civ. P.
The Tennessee Court of Appeals recently released its opinion in Bertucelli v. Haehner, No. E2017-02068-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018). The syllabus from the slip opinion reads as follows:
Appellants appeal the trial court’s order granting Appellees’ motion for summary judgment “as to all remaining issues” asserted by Appellants in their complaint. In its order granting summary judgment, the trial court failed to state the legal grounds on which it granted summary judgment on the remaining claims as required by Tennessee Rule of Civil Procedure 56.04. In the absence of such grounds, this Court cannot make a meaningful review of the trial court’s decision. We, therefore, vacate the trial court’s final order and remand the case for further proceedings. Vacated and remanded.
Here is a link to the slip opinion:
http://www.tncourts.gov/sites/default/files/raymond_bertuccelli_et_al._v._carl_mark_haehner_et_al..pdf
Here is a link to Rule 56.04, Tenn. R. Civ. P.:
http://www.tncourts.gov/rules/rules-civil-procedure/5604
Plaintiff's Case Not Subject to Dismissal Due to Lost Return of Proof of Service of Process
The Tennessee Court of Appeals recently released its opinion in Hart v. Memphis Light Gas & Water Division, No. W2018-00254-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2018). The syllabus from the slip opinion reads as follows:
The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15- 902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee’s failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired. Affirmed and remanded.
Here is a link to the slip opinion:
NOTE: In my opinion, I think this case hinges upon the fact that the appellant-defendant's attorney admitted in court that her client had been served with leading process. Hart, No. W2018-00254-COA-R3-CV, slip op. at 2. And, I think it mattered that Plaintiff's prior counsel's credible testimony evinced that he had made a proper return of proof of service to the clerk's office. Id.
This opinion also cites one of my cases, Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), just like the one in my prior blog post. Always nice to be part of a solid opinion that is relied upon for years to come.
Thursday, December 13, 2018
Trial Court's Dismissal of Civil Action Upheld on Appeal Because Plaintiff Failed to Have Leading Process Reissued and Properly Served upon a Defendant
The Tennessee Court of Appeals recently issued its opinion in Middleton v. City of Millington, No. W2018-00338-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2018). The syllabus from the slip opinion reads as follows:
The trial court granted summary judgment to defendant city on the basis of the expiration of the statute of limitations. Specifically, the trial court ruled that plaintiff’s complaint was ineffective to toll the statute of limitations where service of process on the city clerk did not comply with Rule 4.04(8) of the Tennessee Rules of Civil Procedure and process was not reissued. Discerning no error, we affirm.
Here is a link to the slip opinion:
NOTE: This opinion cites one of my cases, Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013). Middleton, W2018-00338-COA-R3-CV, slip op. at 3. Both this opinion and Fair are must-reads if you practice on the civil side in Tennessee state courts because they stress the point that while filing a civil action within the applicable statute of limitations is vitally important, the service of leading process is also vitally important to prevent claims in a civil action from becoming time-barred.
What can a plaintiff do when insufficiency of service of process is pleaded as an affirmative defense like what was done in this case? Take a look at Rule 4.07 of the Tennessee Rules of Civil Procedure, which can be viewed at this link: http://www.tncourts.gov/rules/rules-civil-procedure/407.
Rule 4.07 has a cost-shifting provision that helps ensure that a defendant is properly before a Tennessee state court (much like the similar federal provision). It has some teeth.
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