Constitutionality of a Metro. Davidson County (Tenn.) Ordinance and the Presumption Thereunder Upheld on Appeal

The Tennessee Court of Appeals has upheld the presumption under Section 12.68.180 of The Code of The Metropolitan Government of Nashville and Davidson County, Tenn. in Metro. Gove't of Nashville and Davidson County, Tenn. v. Gelle, No. M2020-01360-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2022). The syllabus from the majority slip opinion reads:

The defendant appeals the trial court’s judgment finding that he violated a reckless driving city ordinance, Metropolitan Code . . . § 12.68.180, when he drove 65 miles per hour in a 45-mile-per-hour zone. During trial, Metropolitan Government of Nashville & Davidson County, Tennessee [] presented evidence regarding the defendant’s speed to support its allegation that the defendant was driving recklessly. Following proof of the defendant’s excessive speed, the trial court found that the defendant had failed to rebut the presumption created by ordinance that he was driving in such a way as to demonstrate “a wilful and wanton disregard for the safety of persons or property.” The defendant challenges the constitutionality of such ordinance, which provides a rebuttable presumption that the defendant was driving recklessly when driving at least fifteen miles per hour over the speed limit. However, the defendant’s issues concerning constitutionality of the ordinance were not properly raised or decided by the trial court, and upon our determination that the ordinance is not facially unconstitutional, we hold that the defendant has waived his issues regarding the constitutionality of the ordinance. Upon our review of the record, we affirm the trial court’s judgment that the defendant violated Metropolitan Code . . . § 12.68.180.

Here is a link to the majority slip opinion: 

https://www.tncourts.gov/sites/default/files/abdiqani.gelle_.opn_.pdf.

Here is a link to Judge McClarty's dissent: 

https://www.tncourts.gov/sites/default/files/abdiqani.gelle_.separateopn.pdf.

Here's a link the Metro Code: 

https://library.municode.com/tn/metro_government_of_nashville_and_davidson_county/codes/code_of_ordinances.

NOTE: Judge McClarty makes some very good points here in the dissent.  Because of that, I would not be surprised if the Tennessee Supreme Court doesn't take this one up on appeal.

Trial Court's Grant of Motion to Dismiss Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Mack v. Cable Equipment Services, Inc., No. W2020-00862-COA-R3-CV (Feb. 9, 2022). The syllabus from the slip opinion reads:

This appeal arises from litigation involving an incident that occurred in 2010. Suit was originally filed in 2011. After a voluntary nonsuit, the complaint was refiled in 2014. Years later, the plaintiffs moved to amend their complaint to add additional defendants. The trial court granted leave to amend but reserved ruling on whether the claims against the new parties would relate back to the date of the original complaint under the provisions of Tennessee Rule of Civil Procedure 15.03. The amended complaint was filed in 2018. The newly added defendants moved to dismiss on the basis that none of the elements required for relation back under Rule 15.03 had been shown to exist. After a hearing, the trial judge agreed and provided an oral ruling in favor of the defendants. Before a written order was entered to that effect, the plaintiffs filed a notice of voluntary nonsuit without prejudice. The trial court subsequently entered an order granting the defendants’ motion to dismiss. The trial court found that at that point in the proceeding, the allowance of a nonsuit was discretionary, and permitting a nonsuit after its oral ruling would have been unfairly prejudicial to the defendants. As such, it granted the motion to dismiss for failure to state a claim on the basis that the claims were barred by the statute of limitations and did not relate back to the filing of the original or refiled complaint. The plaintiffs filed motions to alter or amend or set aside the order, arguing that the trial court lost jurisdiction at the moment the plaintiffs filed their notice of nonsuit, and therefore, the order of dismissal was void. They also argued that the trial court impermissibly relied on facts that were not found within the amended complaint in resolving the motion to dismiss. The trial court denied both motions. The plaintiffs appeal. We affirm.

Here is a link to the opinion: 

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

NOTE:  There is a lot going on in this opinion. It deals with whether an amendment adding defendants relates back for purposes of defeating a defense based on the expiration of the statute of limitations, how motions to dismiss should be handled by trial courts, etc. This opinion also addresses the waiver of issues on appeal due to an appellant's failure to properly present them on appeal as required by the Tennessee Rules of Appellate Procedure (the acronym being "T.R.A.P." for a reason). This is a must-read opinion for any lawyer who practices in Tennessee state courts.  

Judgment of Dismissal in a Health Care Liability Action in Tennessee Claims Commission Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Cavaliere v. State, No. M2021-00038-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2022). The slip opinion reads:

This appeal arises from proceedings in the Tennessee Claims Commission and follows a trial concerning care received by the decedent while at the Tennessee State Veterans Home. The Claims Commission ultimately found that the claimants had failed to establish a health care liability claim and therefore dismissed the case. For the reasons stated herein, we affirm the judgment of dismissal.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/wanda.cavaliere.opn_.pdf.

NOTE: This decision emphasizes just how difficult health care liability actions (f/k/a/ medical malpractice cases) are in Tennessee—especially in the Claims Commission. In addition to the normal issues that arise in these types of cases, this one involves waiver of issues on appeal due to counsel's failure to follow the appellate rules. This decision also offers a good explanation of the standard of review on appeal from Claims Commission cases. This one is worth reading in my humble opinion.