New Premises Liability Case: Summary Judgment for the Defense Upheld on Appeal; Sanctions for Spoliation of Evidence Not Warranted

The Tennessee Court of Appeals has released its opinion in Beasley v. Jae Nails Bar, LLC, No. M2022-01330-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2023). The syllabus from the slip opinion reads:

This is a premises liability action in which the plaintiff slipped and fell while she was walking to a pedicure station in a nail salon. Two principal issues are presented. First, the plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion for spoliation of evidence by finding that the defendant was not put on notice that a video recording from a surveillance camera in the nail salon was relevant to pending or reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by summarily dismissing her complaint on the basis that there was no proof that the defendant had created the allegedly hazardous condition in the nail salon or that the defendant had actual or constructive notice of the condition. We affirm.

Here is a link to the slip opinion: UNSIGNED-M2022-1330-COA-BEASLEY.pdf (tncourts.gov).

NOTE: In reverse order to that addressed by the court, this opinion offers a great analysis of the elements of a premises liability case and of what constitutes spoliation of evidence worthy of sanctions. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Complaint Upheld in Part and Reversed in Part Due to the Application of the Healthcare Operations Exception to the General Requirement That a HIPAA-compliant Authorization for the Release of Medical Records Be Included with the Presuit Notices Served on Potential Defendants

The Tennessee Court of Appeals has released its opinion in Christie v. Baptist Memorial Hospital, No. W2022-01296-COA-R3-CV (Tenn. Ct. App. Nov. 15. 2023). 

Plaintiffs appeal the dismissal of their health care liability claims against a hospital and two doctors who treated their daughter on the day of her birth and tragic death. The trial court reluctantly ruled that the plaintiffs failed to substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) and dismissed the claims as untimely. We conclude that the plaintiffs met their burden to show substantial compliance with section 29-26-121(a)(2)(E) as to the defendant hospital, but not the defendant doctors. We therefore affirm in part, reverse in part, and remand for further proceedings.

Here is a link to the slip opinion: ChristieLauraSOPN.pdf (tncourts.gov).

NOTE: This opinion does a good job of explaining the healthcare operations exception to the general requirement that presuit notice be accompanied by a HIPAA-complaint medical records authorization under Tenn. Code Ann. sec. 29-26-121. That exception is what saved the claim against the hospital because it allowed the Tennessee Court of Appeals to find that there had been substantial complaint with section 29-16-121(a)(2)(E). 

New Health Care Liability Action Opinion: Trial Court's Ruling Allowing Plaintiffs to Obtain Surveillance Videos Taken by Defense of a Plaintiff Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Locke v. Aston, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023). The syllabus from the slip opinion reads:

This is a health care liability action filed by a patient and her husband alleging serious injury as a result of surgery. The plaintiffs learned that the defendants had taken surveillance videos and sought discovery of those videos. The trial court allowed discovery of only the videos that the defendants intended to use at trial for impeachment purposes. The trial court gave the plaintiffs permission to seek an appeal under Tenn. R. Civ. P. 9. This Court granted the appeal. We affirm the trial court’s decision.

Here is a link to the opinion: Majority Opinion - M2022-01820-COA-R9-CV.pdf (tncourts.gov).

NOTE: While this is a health care liability action (f/k/a a medical malpractice case), this opinion offers a much-needed discussion of the discoverability of surveillance video taken in conjunction with a Tennessee state court lawsuit. This is one every lawyer who practices civil law in Tennessee must read. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to the Defense Reversed on Appeal Because There Are Genuine Issues of Material Fact as to When This Cause of Action Accrued, the Propriety of the Presuit Notice, and Causation and Damages

The Tennessee Court of Appeals released its opinion in Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023). The syllabus from the slip opinion reads:

In this health care liability action, the trial court granted summary judgment to the appellee surgeon based on the expiration of the statute of limitations and the appellant patient’s failure to show evidence of causation and damages. On appeal, we conclude that (1) there is a genuine dispute of material fact as to when the appellant’s cause of action accrued; (2) the trial court did not specifically rule on the propriety of appellant’s pre-suit notice; and (3) there are genuine disputes of material facts as to the causation and damages elements of the appellant’s claim. Accordingly, we reverse in part, vacate in part, and remand for further proceedings. 

Here is a link to the opinion: VilasJamesMiguelOPN.pdf (tncourts.gov).

NOTE: This is a great read because it offers excellent analysis of accrual of claims, presuit notice, and causation and damages in health care liability actions (f/k/a medical malpractice cases). 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Vicarious Liability Claims Against Hospital Upheld on Appeal Because the Alleged Agent, a Physician, Had Been Released by the Plaintiff's Conservator

The Tennesse Court of Appeals has released its opinion in Hamilton ex rel. McGill v. Methodist Healthcare Memphis Hospitals, No. W2022-00054-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2023). The opinion's syllabus reads:

This appeal arises from a health care liability action filed in circuit court by a conservator on behalf of a ward. After a three-week jury trial resulted in a mistrial, the conservator took a nonsuit. The conservator refiled the complaint against only one defendant hospital, asserting that it was vicariously liable for the actions of a doctor based on a theory of apparent agency. The defendant hospital moved for summary judgment on the basis that the conservator had entered into a consent agreement agreeing not to sue the doctor in the refiled suit if the doctor agreed to withdraw his motion for discretionary costs. According to the defendant hospital, this agreement releasing the alleged agent from liability extinguished the conservator’s right to pursue a vicarious liability claim against the principal. In response, the conservator took the position that the consent agreement was not binding because it was never approved by the probate court that appointed her. The circuit court granted summary judgment to the defendant hospital, finding that the order appointing the conservator authorized her to dispose of property, execute instruments, enter into contracts, pursue legal causes of action, and manage money, thereby authorizing her to enter into the consent agreement. The circuit court found nothing in the order of appointment, the relevant statutes, or caselaw that would impose a mandatory requirement for approval of the settlement by the probate court. Because the conservator had released the alleged agent from liability, the circuit court found that the conservator could not pursue vicarious liability claims against the defendant hospital. The conservator filed a motion to alter or amend, asking the circuit court to consider an “Advisory Opinion” of the probate court on the matter. The circuit court denied the motion, explaining that it respectfully disagreed with the Advisory Opinion of the probate court. The conservator appeals. We affirm and remand for further proceedings.

Here is a link to the opinion: HamiltonDianne2OPN.pdf (tncourts.gov).

NOTE: This opinion is correct and a reminder of why one does not release the agent if one wants to pursue a vicarious liability claim against the principal based on the agent's conduct. This opinion also offers a good discussion about the recent statutory changes affect settlements involving minors and the disabled. 

New Health Care Liability Action Opinion: Trial Court Reversed in Part as to the Sufficiency of the Presuit Notice Provided by Mother of Deceased on Behalf of the Deceased's Minor Children

The Tennessee Court of Appeals has released its opinion in Denson v. Methodist Medical Center of Oak Ridge, No. E2023-00027-COA-R9-CV (Tenn. Ct. App. Oct. 12, 2023). The syllabus reads:

This appeal arises from a health care liability action following the death of Ashley Denson from a cardiac event she suffered after being treated and released from Methodist Medical Center. Ms. Denson was unmarried and had two minor children at the time of her death. The statutorily-required pre-suit notice listed Ms. Denson’s mother, Bobbie J. Denson, as the claimant authorizing notice. The minor children were not identified anywhere in the notice. The subsequent complaint was filed by “ASHLEY DENSON, Deceased, by and through her Next Friend and Mother BOBBIE JO DENSON, and BOBBIE JO DENSON, Individually.” The body of the complaint lists, for the first time, Ashley Denson’s children, and states that Bobbie Denson “brings this action individually, and on behalf of Plaintiff, decedent’s surviving minor children … as Grandmother and Legal Guardian.” The defendants filed motions to dismiss, challenging Bobbie Denson’s standing to bring the action and contending that the pre-suit notice failed to comply with the requirements of the Tennessee Health Care Liability Act.[] The trial court initially granted the motions to dismiss but reversed course after the plaintiff filed a motion to reconsider. We hold that, although Grandmother has standing, the pre-suit notice does not comply with the requirements of the Tennessee Health Care Liability Act. The judgment of the trial court is ultimately affirmed in part and reversed in part.

(Footnote omitted.)

Here is a link the majority opinion: E2023-27 Maj..pdf (tncourts.gov).

Here is a link to Judge McClarty's partial dissent: E2023-27 Dis..pdf (tncourts.gov).

NOTE: Look for the plaintiff's counsel to ask the Tennessee Supreme Court for permission to appeal in this case. Given the importance of this issue of law, inter alia, I predict that permission to appeal will be granted by our High Court. Stay tuned. 

New Health Care Liability Action Opinion: Trial Court's Denial of a Protective Order Regarding What Was Said at a CANDOR Meeting Upheld on Appeal

The Tennessee Supreme Court has released its opinion in Catillo v. Rex, No. E2022-00322-COA-R9-CV (Tenn. Ct. App. Oct. 5, 2023). The syllabus reads:

The plaintiff filed this healthcare liability action against several healthcare providers following the death of her husband. We granted this interlocutory appeal in which the defendants request review of the trial court’s denial of their motion for a protective order to prohibit further inquiry into a meeting held between the defendant hospital and the decedent’s family. We affirm the trial court.

Here is a link to the slip opinion: Castillo v. Rex, M.D. Opinion UNSIGNED.pdf (tncourts.gov).

NOTE: This opinion does a great job of explaining why the quality improvement committee privilege does not apply in this situation. This is a must-read opinion for any lawyer who handles medical malpractice case (f/k/a medical malpractice cases) governed by Tennessee law.  

New Health Care Liability Action Opinion: Trial Court's Ruling Disallowing Defense from Attempting to Improperly Shift Blame to a Nonparty at Trial and Its Order Regarding the Applicaiton of Tennessee Code Annotated section 29-26-119 Upheld on Appeal

The Tennessee Supreme Court has released its highly anticipated opinion in Crotty v. Flora, No. M2021-01193-SC-R11-CV (Tenn. Sept. 29, 2023). The opinion's syllabus reads:

In this interlocutory appeal, the defendant physician in a health care liability action asks us to review two pretrial orders. In the first, the trial court excludes evidence that a nonparty physician was the cause-in-fact of the claimant’s injuries because the defendant never amended his answer to include that allegation, as required under Rule 8.03 of the Tennessee Rules of Civil Procedure as applied in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). Because he does not allege that the nonparty physician was negligent, the defendant asks us to modify our holding in George and reverse the trial court’s order. We respectfully decline to do so. In the second pretrial order on appeal, the trial court considered Tennessee Code Annotated section 29-26-119, a provision that partially abrogates the common law collateral source rule in health care liability actions. It held that section 29-26-119 does not abrogate the collateral source rule under the facts of this case. We agree with the trial court that the collateral source rule remains in effect in this case. We affirm both of the trial court’s pretrial rulings.

Here is a link to the majority slip opinion: 

CROTTY - Majority Opinion.pdf (tncourts.gov)

Here is a link to Justice Page's separate opinion, which concurred in part and dissented in part: 

CROTTY - Separate Opinion.pdf (tncourts.gov)

NOTE: This is a must-read opinion for any lawyer who handles health care liability actions (formerly called medical malpractice cases) governed by Tennessee substantive law. It reaffirms George, supra, and clarifies the application of the collateral source rule under the circumstances presented here. 

Trial Court's Grant of Voluntary Dismissal in Face of Pending Motion to Dismiss Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Westfield Group Insurance v. Embry, No. M2022-01301-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2023). The syllabus reads:

In this appeal, a defendant asserts that the trial court erred when it granted the plaintiff’s motion to voluntarily dismiss its complaint while the defendant’s motion to dismiss and for attorneys’ fees was pending. We hold that a pending motion to dismiss does not preclude the plaintiff from voluntarily dismissing its case pursuant to Tenn. R. Civ. P. 41.01. Likewise, the defendant’s request for attorneys’ fees did not create a “vested right” preventing the plaintiff from voluntarily dismissing its case. The ruling of the trial court is affirmed.

Here is a link to the slip opinion: 

E-SIGNED-M2022-1301-COA-WESTFIELD GROUP INS..pdf (tncourts.gov).

NOTE: This opinion explains very well how the law on voluntary dismissals (nonsuits) work in Tennessee state-court civil actions. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment Upheld on Appeal Due to Plaintiffs' Failure to Proffer Sufficient Expert Testimony Regarding Informed Consent

The Tennesse Court of Appeals has released its opinion in Jarnagan v. Vanderbilt University Medical Center, No. M2022-01012-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023). The syllabus from the opinion reads:

The Plaintiff brought suit alleging the Defendants failed to obtain informed consent prior to conducting a medical procedure. The Defendants responded with a consent form signed by the Plaintiff detailing the potential side effects of the procedure of which the Plaintiff asserted he had not been informed, and they moved for summary judgment. The Plaintiff argued the consent form in the present case was inadequate to establish informed consent. The trial court granted summary judgment in favor of the Defendants. The Plaintiff appealed, challenging the validity of the signed consent form based on an alleged misrepresentation and his inability to read because of an eye condition, and arguing, therefore, that there is a material question of fact as to whether informed consent was obtained. We affirm the judgment of the trial court.

Here is a link to the slip opinion: UNSIGNED-M2022-01012-COA-JARNAGIN.pdf (tncourts.gov).

NOTE: This opinion is absolutely correct. 

Trial Court's Order Regarding Disbursement of Proceeds Reversed on Appeal Because Proceeds Were Personalty That Belonged to the Decedent's Estate and Not Wrongful Death Proceeds

The Tennessee Court of Appeals has released its opinion in Sanders v. Higgins, No. M2022-00892-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2023). The syllabus from the opinion reads:

This appeal involves the disbursement of settlement proceeds proffered by an insurance company in resolution of a claim against it. The plaintiff is the surviving spouse of the decedent, who was killed when she was struck by a vehicle while riding her bicycle. The plaintiff filed a wrongful death action against the vehicle’s driver and the driver’s parents, all of whom were subsequently dismissed from the lawsuit following a settlement unrelated to this appeal. Within the same action, the plaintiff asserted a claim against his and the decedent’s insurer for negligent misrepresentation and negligent failure to procure insurance. The insurer had previously paid a pre-suit settlement to the plaintiff related to uninsured/underinsured motorist coverage. In the complaint, the plaintiff alleged that the insurer had misrepresented additional coverage under an “umbrella policy,” leading the plaintiff and decedent to believe they were covered while failing to actually reinstate the umbrella policy when it had been temporarily cancelled months before the decedent’s death. The plaintiff and the insurer eventually reached a confidential settlement. To facilitate the release of claims by both the plaintiff and the decedent’s estate and upon the estate’s motion, the trial court entered an agreed order allowing the estate to intervene. The plaintiff then filed a motion to disburse the settlement proceeds to him, and the estate filed an intervening complaint and opposition to the plaintiff’s motion, asserting that the estate was entitled to one hundred percent of the settlement proceeds related to the umbrella policy claim. Following a hearing, the trial court entered an order granting the plaintiff’s motion to disburse the settlement proceeds to him upon finding that the cause of action against the insurer had not vested in the decedent prior to her death. The court subsequently denied the estate’s motion to alter or amend the judgment. The estate has appealed. Determining that the cause of action against the insurer was based in tort, rather than wrongful death, and accrued to the decedent at the time of her fatal injuries, we conclude that the right to the resulting settlement proceeds belongs to the decedent’s estate. We therefore reverse the trial court’s judgment and remand for entry of an order granting disbursal of the settlement funds to the estate.

Here is a link to the slip opinion: Majority Opinion - M2022-00892-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion does a good job of explaining the difference between wrongful death proceeds and tort proceeds as to how they are distributed, which is confusing to a lot of lawyers in my experience. 

New Health Care Liability Action: Upon Remand from SCOTN to Resolve Previously Pretermitted Issues, the Trial Court's Grant of Summary Judgment to Defendant Physician Upheld on Appeal

The Tennessee Court of Appeals, on remand from the Tennessee Supreme Court, has issued its opinion in Ingram v. Gallagher, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 18, 2023). The opinion's syllabus reads:

This is a health care liability case. George Gary Ingram ("Ingram") filed a health care liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among others, Dr. Michael Gallagher ("Dr. Gallagher") and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants," collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole defendant. He thus removed the other defendants, including Erlanger, from the lawsuit. Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer, Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiff's claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021 Tenn. App. LEXIS 283, 2021 WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court, holding that the Trial Court erred in denying Plaintiff's motion to revise the order of dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act ("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.

Here is a link to the opinion: TN Courts (link will take you to page where opinion can be viewed).

NOTE: This is not a surprising result because the defendant-physician's employer was not made a party-defendant as well, which is required under the GTLA. 

Further, this post is related to my May 18, 2023-post, to wit: Tony Duncan Law: New Health Care Liability Action Opinion: SCOTN Determines Amended Complaint Filed as of Matter of Right Under Rule 15 of the Tennessee Rules of Civil Procedure Is Determinative and Remands Case Back to COATN to Address Issues Previously Deemed Pretermitted (theduncanlawfirm.blogspot.com).

Trial Court's Exclusion of Evidence Regarding Medical Bills Due to Lack of Expert Proof of Their Being Necessary Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Holzmer v. Estate of James F. Walsh, Jr., No. M2022-00616-COA-R3-CV (Tenn. Ct. App. July 28, 2023). The syllabus reads:

This is an appeal from a jury verdict awarding damages to a plaintiff injured in a car accident. The plaintiff asserts that the trial court erred in excluding evidence of her medical bills. Because the plaintiff failed to present expert proof that her medical expenses were necessary, we find that the trial court did not abuse its discretion in excluding the bills. The jury verdict is affirmed.

Here is a link to the opinion: 

Majority Opinion M2022-00616-COA-R3-CV.pdf (tncourts.gov)

NOTE: Look for this one to be appealed to the Tennessee Supreme Court. Time will tell. 

Two New SCOTN Health Care Liability Action Opinions: Court of Appeals' Reversal of Trial Court's Dismissal of Vicarious Liability Claims Against the Principals Upheld on Appeal Due to Tennessee's Health Care Liability Act's Abrogation of the Common Law's Operation-of-law Exception

The Tennessee Supreme Court issued its opinions in Ultsch v. HTI Memorial Hosp. Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hosp., No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023). The syllabus from the majority slip opinions in Ultsch reads:

“When there is a conflict between the common law and a statute, the provision of the statute must prevail.” Graves v. Ill. Cent. R.R. Co., 148 S.W. 239, 242 (Tenn. 1912). That longstanding rule is the key to resolving this case, which pits a common-law rule governing vicarious liability claims against certain procedural provisions of Tennessee’s Health Care Liability Act. The defendant in this case moved to dismiss the plaintiff’s claims under the common-law rule. The trial court granted that motion, but the Court of Appeals reversed after concluding that application of the common-law rule would conflict with the Act. We agree that the Act necessarily implies an intent to abrogate the common-law rule in the circumstances of this case and affirm the Court of Appeals’ decision.

Ultsch, No. M2020-00341-SC-R11-CV, slip. op. at 1. 

The syllabus from Gardner reads the same. No. M2019-02237-SC-R11-CV, slip op. at 1. 

Here is the majority opinion in Ultsch: 

691fd502-7aa9-486c-a1b9-97092d595eb0.pdf (tncourts.gov)

Here is Justice Lee's opinion that concurs and dissents in part:  

ULTSCH-Separate Concur Opinion (J.Lee).pdf (tncourts.gov)

Here is Justices Page and Bivins's dissent: 

ULTSCH-Separate Dissent Opinion (J.Bivins).pdf (tncourts.gov)

Here is the majority opinion in Gardner: 

54eb201c-81d3-4f47-b239-aa6a1bdee20b.pdf (tncourts.gov)

Here is Justice Lee's opinion that concurs and dissents in part: 

GARDNER - Separate CONCUR IN PART Opinion (J.Lee).pdf (tncourts.gov)

Here is Justices Page and Bivins's dissent: 

GARDNER-Separate DISSENT Opinion (J.Bivins).pdf (tncourts.gov)

NOTE: These two decisions must be read by any lawyer who handles health care liability actions (f/k/a medical malpractice cases) governed by Tennessee substantive law because they will affect nearly every case of that sort, etc. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Refiled under the Saving Statute Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV (Tenn. Ct. App. July 11, 2023). The syllabus reads:

This appeal concerns a complaint for health care liability. Although Tennessee Code Annotated section 29-26-121(c) provides for an extension of the applicable statutes of limitations in health care liability actions when pre-suit notice is given, it also specifies that “[i]n no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any [health care] provider.” After a prior lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice and refiled in reliance on the Tennessee saving statute and an extension under Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with prejudice, however, holding, among other things, that Plaintiff could not utilize the statutory extension in his refiled action because he had already utilized a statutory extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court’s dismissal of Plaintiff’s lawsuit. 

Here is a link to the majority opinion: Majority Opinion 2022-597-COA.pdf (tncourts.gov).

Here is a link to Judge Stafford's separate opinion: Separate Opinion 2022-597-COA.pdf (tncourts.gov).

NOTE: This is a case I am involved in; while I was not involved in the trial court proceedings, the plaintiff's counsel was nice enough to let me help on appeal. Because of this, I will not comment further except to note that we will more than likely seek review by SCOTN on this issue. 

Trial Court's Grant of Summary Judgment to Defendant Upheld on Appeal Because Claim Was Not Extended Due to Defendant Being Cited for Violation of a Municipal Ordinance

The Tennessee Court of Appeals recently released its opinion in Glover v. Duckhorn, No. W2022-00697-COA-R3-CV (Tenn. Ct. App. May 2, 2023). The syllabus reads:

At issue is whether Tennessee Code Annotated § 28-3-104(a)(2) extends the statute of limitations for a personal injury action to two years when a traffic citation for the violation of Memphis City Code Ordinance § 11-16-3 for Failure to Maintain Safe Lookout is issued to the driver alleged to be at fault. Stated another way, is an exception created to the one-year statute of limitations for personal injuries if a person involved in an automobile accident receives a ticket for the violation of a municipal ordinance from that accident? The trial court ruled in the negative. We affirm.

Here is a link to the slip opinion: GloverEmmaOPN.pdf (tncourts.gov).

NOTE: This opinion makes clear that the violation of a municipal ordinance will not extend the one-year statute of limitations for personal injuries like the violation of a criminal statute will. This is a must-read opinion for any lawyer who handles personal-injury cases governed by Tennessee substantive law. 

New Laws Effective in Tennessee on January 1 and July 1, 2023

To wit:

January 1:     EffectiveRpt (tn.gov).

July 1:            EffectiveRpt (tn.gov)

NOTE: These abstracts are great ways to stay current on Tennessee law. 

Trial Court's Dismissal of Tort Action Upheld on Appeal Because Plaintiff Did Not Timely Commence the Action Against the Personal Representative of the Deceased Tortfeasor's Estate Within the Applicable Statute of Limitations

The Tennesse Court of Appeals has released its opinion in McMickens v. Perryman, No. W2022-00445-COA-R3-CV (Tenn. Ct. App. May 31, 2023). The slip opinion reads: 

The plaintiff filed this personal injury action following an automobile accident in which the other driver died. The plaintiff originally named the defendant as “John Doe, as Administrator of the Estate of [the deceased driver].” The trial court dismissed the action on the basis that the plaintiff failed to timely commence the action against the personal representative of the estate within the applicable statute of limitations. We affirm and remand.

Here is a link to the opinion: IN THE COURT OF APPEALS OF TENNESSEE (tncourts.gov).

NOTE: As footnote 2 of the opinion points out, since this a memorandum opinion under Rule 10 of the Tennessee Court of Appeals, it shall not be published, and shall not be cited or relied on for any reason in any unrelated case. With this in mind, however, the authorities cited in this opinion may be cited and relied on in other cases. As a result, this is a cautionary tale of how important it is to properly commence a civil action against a tortfeasor who has died before the lawsuit is filed. 

Trial Court's Finding of No Fault by Governmental Entity Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Ware v. Metro Water Services, No. M2022-01114-COA-R3-CV (Tenn. Ct. App. May 30, 2021). The syllabus from the slip opinion reads:

Plaintiff sued for personal injuries under the Tennessee Governmental Tort Liability Act, alleging she had experienced a fall due to an unsecure water meter valve cover located in her sister’s yard. Following a bench trial, the trial court entered an order finding that Plaintiff had not met her burden of proof. Although Plaintiff appeals the dismissal of her case, we affirm the trial court’s judgment.

Here is a link to the opinion: Majority Opinion M2022-01114-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion offers a good discussion of circumstantial evidence, which makes it worth reading. Good stuff. 

Trial Court's Dismissal of Pro Se Legal Malpractice Claim as Being Barred by the Statute of Limitations Upheld on Appeal

The Tennessee Supreme Court has released its opinion in Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023). The syllabus from the slip opinion reads:

The pro se plaintiff appeals the trial court’s summary judgment dismissal of his legal malpractice action against his attorney and the attorney’s law firm. The trial court found that the action was barred by the applicable one-year statute of limitations. Because the plaintiff’s action accrued more than one year before he filed the lawsuit, we affirm.

Here is a link to the opinion: Bradley Garrett v William Weiss.pdf (tncourts.gov).

NOTE: This opinion addresses the standard of review for summary judgment when the movant has the burden of proof on the issue at trial (here, the defendant as to a defense based on the statute of limitations); accrual of legal malpractice actions under the discovery rule, and waiver of issues on appeal. This is a good read in my humble opinion because of these topics. 

New Case on Malicious Prosecution: Plaintiffs' Malicious Prosecution Claim Did Not Accrue Until Defendant's Time to File a Brief on Appeal Expired

The Tennessee Court of Appeals has issued its decision in Cordova v. Martin, No. M2021-01412-COA-R3-CV (Tenn. Ct. App. May 24, 2023). The syllabus from the slip opinion reads:

This is an action for malicious prosecution of an attorney’s fee claim. The plaintiffs contend that the trial court improperly granted summary judgment to the defendant under the oneyear statute of limitations in Tennessee Code Annotated § 28-3-104(a)(1). The court held that the plaintiffs’ cause of action accrued when the allegedly-malicious prosecution terminated, and it held that the prosecution terminated when the first court denied the defendant’s motion to alter or amend the judgment under Tennessee Rule of Civil Procedure 59.04. The plaintiffs contend that this is wrong because the defendant was a party to and participated in the appeal of those proceedings. They assert that the defendant’s action did not terminate until he exhausted his appellate remedies. We agree and hold that the defendant’s cause of action did not terminate until his time for filing an appellate brief expired. Thus, we reverse the decision of the trial court and remand with instructions to reinstate the complaint and for further proceedings consistent with this opinion.

Here is a link to the slip opinion: Majority Opinion M2021-01412-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion does a good job of explaining the accrual of these types of claims; it is a good read. 

New Health Care Liability Action Opinion: Defendant (Who Was a Healthcare Provider) Cannot Be Compelled to Provide Expert Opinion Testimony About Another Defendant Provider's Standard of Care or Deviation from Said Standard

The Tennessee Supreme Court has released its opinion in Borngne v. Chattanooga Hamilton County Hospital Authority, No. No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023). The syllabus from the slip opinion reads:

This appeal primarily concerns the compulsion of a physician’s deposition testimony in a health care liability action. In 2014, a child was born via cesarean section and suffered permanent brain damage and severely debilitating injuries. By and through her next friend and mother Brittany Borngne (“Plaintiff”), the child sued the doctor who delivered her and the certified nurse midwife who was initially in charge of the birthing process, among other defendants. The trial court dismissed all claims of direct negligence against the defendant physician but allowed the [P]laintiff to proceed against the physician on a vicarious liability theory as the midwife’s supervising physician. However, during his deposition prior to trial, the physician refused to opine on the midwife’s performance outside of his presence. The trial court declined to require the physician to do so, and after a trial, the jury found in favor of the defendants. The Court of Appeals, in a divided opinion, partially reversed the judgment. The intermediate court concluded, among other things, that the trial court committed reversible error in declining to order the physician to answer the questions at issue in his deposition and remanded for a new trial. After review, we hold that a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard. We therefore conclude that the trial court here properly declined to compel the defendant physician’s testimony. Accordingly, we reverse the decision of the Court of Appeals and affirm the trial court’s judgment.

Here is a link to the majority opinion: 

Majority Opinion E2020-00158-SC-R11-CV-Page.pdf (tncourts.gov).

Justice Campbell wrote a concurring opinion as to the judgment but not reasoning that was joined by Justice Kirby:

Separate Opinion E2020-00158-SC-R11-CV-Campbell.pdf (tncourts.gov).

Justice Lee wrote a concurring opinion that takes issue with Justice Campbell's concurring in judgment opinion that was joined by Justice Kirby:

Separate Opinion E2020-00158-SC-R11-CV-Lee.pdf (tncourts.gov).

Here is Justice Kirby's opinion that also concurs with the results but not the reasoning of the majority opinion:

Separate Opinion E2020-00158-SC-R11-CV-Kirby.pdf (tncourts.gov).

NOTE: This decision relates to my July 1, 2021-post, to wit: 

Tony Duncan Law: New Health Care Liability Action Opinion: New Trial Ordered Due to Trial Court Errors as to Expert Witness Testimony and Premajority Medical Expenses (theduncanlawfirm.blogspot.com).

This decision is a rarity in Tennessee SCOTN jurisprudence due to the number of opinions released by the justices. All are must-read opinions for any lawyer who handles Tennessee health care liability actions. 

New Health Care Liability Action Opinion: SCOTN Determines Amended Complaint Filed as of Matter of Right Under Rule 15 of the Tennessee Rules of Civil Procedure Is Determinative and Remands Case Back to COATN to Address Issues Previously Deemed Pretermitted

The Tennessee Supreme Court has issued its decision in Ingram v. Gallagher, No. E2020-01222-SC-R11-CV (Tenn. May 17, 2023). The slip opinion's syllabus reads:

The issue before us is whether the voluntary dismissal of a defendant in a multi-defendant case that is governed by the Governmental Tort Liability Act (“GTLA”) may be set aside and the claim against the dismissed defendant reinstated on the motion of a plaintiff pursuant to Tennessee Rule of Civil Procedure 54.02. The plaintiff in this case initiated a healthcare liability action against a physician, a hospital, and two other defendants. Before any responsive pleading was filed by any defendant, the plaintiff filed an amended complaint, naming only the physician as a defendant. The plaintiff subsequently filed a notice of voluntary dismissal that dismissed all of the defendants except the physician, and the trial court entered an order of voluntary dismissal the following day. In his answer to the amended complaint, the physician argued that the lawsuit should be dismissed under the GTLA because the hospital, which was his employer and a governmental entity, was not a defendant. The plaintiff subsequently filed a motion to alter or amend in which he sought to set aside the trial court’s order voluntarily dismissing the hospital from the action. The trial court denied the motion to alter or amend. The trial court later dismissed the hospital from the action with prejudice and granted a motion for summary judgment filed by the physician. The Court of Appeals reversed, concluding that the trial court erred in denying the plaintiff’s motion to alter or amend the order of voluntary dismissal. Upon our review of this case, we do not reach the question of whether the voluntary dismissal order could be altered or amended pursuant to Rule 54.02. Because the plaintiff removed the hospital from the lawsuit when he filed his amended complaint, the plaintiff’s notice of voluntary dismissal and the trial court’s order of voluntary dismissal were of no legal effect. Accordingly, there was no valid order of voluntary dismissal to alter or amend. As a result, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for consideration of the issues it deemed pretermitted as moot.

Here is a link to the opinion:

NOTE: This post is related to my June 20, 2021-post, to wit: Tony Duncan Law: New Health Care Liability Action Opinion: Trial Court's Denial of Motion to Revise Interlocutory Order Reversed on Appeal (theduncanlawfirm.blogspot.com). SCOTN got this one correct in my humble opinion. 

New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to Defense Reversed on Appeal Because Standard-of-Care Expert Was Qualified to Testify, Etc.

The Tennessee Court of Appeals released its opinion in Owens v. Vanderbilt University Medical Center, No. M2021-01273-COA-R3-CV (Tenn. Ct. App. May 18, 2023). The syllabus from the slip opinion reads: 

A patient brought a health care liability action against a hospital after she developed a pressure wound during her hospital stay. The hospital moved for summary judgment on the ground that the patient’s standard of care expert was not competent to testify under the Health Care Liability Act. Alternatively, it sought to narrow the remaining claims through a partial summary judgment. The trial court disqualified the expert witness and granted the hospital summary judgment on all claims. The court’s decision was based, in part, on grounds not raised in the hospital’s motion for summary judgment. Because we conclude that the expert was competent to testify and the trial court erred in ruling on additional grounds not raised by the movant, we vacate the judgment in part.

Here is a link to the opinion: 

Majority Opinion 2021-1273-COA.pdf (tncourts.gov)

NOTE: This opinion offers a good discussion of expert-witness qualifications in a health care liability action (f/k/a medical malpractice case) and summary-judgment practice under Tennessee law. 

New Health Care Liability Action Opinion: Trial Court's Dismissal Reversed on Appeal; Plaintiff Allowed to Conduct Limited Discovery to Determine Whether Defendants Were Prejudiced by a Medical Records Authorization That Did Not Comply with HIPAA

The Tennessee Court of Appeals has released its opinion in Hayward v. Chattanooga-Hamilton County Hosp. Auth., No. E2022-00488-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2023). The syllabus reads:

This health care liability action was brought against a hospital and a physician. The plaintiff sent pre-suit notice to three1 potential defendants prior to initiating the action. The trial court found, however, that the plaintiff failed to include as part of the pre-suit notice a HIPAA-compliant medical authorization because one of the six core elements was incorrect on the authorization. Following a motion to dismiss filed pursuant to Tenn. R. Civ. P. 12.02(6), the trial court granted the motion and dismissed the action against the defendant hospital due to noncompliance with Tenn. Code Ann. § 29-26-121. The plaintiff argues, among other things, that he should have been allowed to conduct limited discovery in order to determine whether the defendant hospital had been prejudiced by his failure to provide a HIPAA-compliant medical authorization. We vacate the trial court’s grant of the motion to dismiss and hold that the plaintiff should have been permitted to conduct limited discovery regarding whether prejudice existed for the trial court to consider in its determination of whether the plaintiff substantially complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121.

Here is a link to the slip opinion: E2022-00488.pdf (tncourts.gov)

NOTE: Look for the defense to ask the Tennessee Supreme Court to review this case (via Tenn. R. App. P. 11), which is virtually guaranteed. Itis noteworthy to point out that this case cites HIPAA's health care operations exception in support of its holding (which allows the disclosure of a patient's protected health information without a signed disclosure. As a result, this is a must-read opinion for any lawyer who handles health care liability actions under Tennessee substantive law. 

New Health Care Liability Action Opinion: Trial Court's Denial of Dismissal with Prejudice of Complaint for Failure to File a Certificate of Good Faith Upheld on Appeal Due to the Application of the Common Knowledge Exception to the General Requirement of Expert Testimony to Prove Elements of Such a Claim

The Tennessee Court of Appeals has issued its opinion in Mears v. Nashville Center for Rehabilitation and Healing, LLC, No. M2022-00490-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023). The syllabus from the opinion reads:

Plaintiff alleges she was injured from a fall at a skilled nursing facility while using a defective shower chair with a broken lock and torn netting. The circuit court concluded the Plaintiff did not need to file a certificate of good faith under the Tennessee Health Care Liability Act because the common knowledge exception is applicable and the complaint’s negligence allegations do not require expert testimony. The nursing facility appeals, arguing expert testimony is required to establish both the standard of care and proximate causation; therefore, a certificate of good faith must be filed. Because the allegations set forth in the complaint do not require expert testimony to maintain the Plaintiff’s claim, we affirm the circuit court’s judgment.

Here is a link to the slip opinion: Majority Opinion 2022-490-COA.pdf (tncourts.gov).

NOTE: This is a health care liability action (HCLA), formerly known as a "medical malpractice case." The plaintiff failed to serve the defendant with the required presuit notice under Tennessee Code Annotated section 29-26-121, which required that the suit be dismissed without prejudice. (It is noteworthy that the opinion makes no mention of when the complaint was filed relative to the date of the alleged injury, which matters; that was not an issue in this appeal, however, and as a result I will not address it here.) Plaintiff also did not file a certificate of good faith (CGF) with the complaint as is generally required under section 29-26-122. Under -122m the defense sought dismissal with prejudice due to the lack of a CGF. A CGF is only required, however, when expert testimony under section 29-26-115 is required; one is not required when a case falls within the common knowledge exception (CKE) to the general requirement of expert testimony to prove the elements of a HCLA (under section 29-16-115(a)). This opinion does an excellent job of describing when the CKE applies in a HCLA. Here is an excerpt from the opinion, which is pure gold, to wit: 

Accordingly, Ms. Mears’s negligence claim can be established by lay testimony alone. Like an electrical circuit sending current to illuminate a light, the bulb in Ms. Mears’s case has turned on as a result of current flowing all the way through standard of care, breach, and proximate causation, without need of expert testimony. Though expert testimony in connection with damages may make the bulb burn brighter through increased damages, it has been illuminated already. It has been illuminated already through setting forth a claim which can be supported by lay testimony, thereby demonstrating her claim possesses some merit and is non-frivolous.

Mears, supra, slip op. at 13 (emphasis added).

This, again, is an excellent opinion on the CKE in a HCLA.

New Health Care Liability Action: Trial Court's Dismissal Upheld on Appeal Due to Plaintiffs' Counsels' Failure to Send Presuit Notice to Employer as Required by Tennessee's Governmental Tort Liability Act, Etc.

The Tennessee Court of Appeals has released its decision in Fisher, v. Smith, W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023). The syllabus from the slip opinion reads:

This appeal arises from a health care liability action. The plaintiffs filed their complaint against a physician and a surgical practice after the expiration of the statute of limitations, relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c). However, the physician was not employed by the surgical practice during the treatment at issue but was employed by a governmental entity that was not named as a defendant. Both the physician and the surgical practice filed motions to dismiss, which were ultimately treated as motions for summary judgment due to consideration of matters outside the pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental Tort Liability Act, the trial court found that the plaintiffs had to sue the governmental entity in order to sue the physician individually. The court found that the motion for leave to amend the complaint was futile because the statute of limitations had run as to any claim against the governmental entity. The court explained that any claim against the governmental entity would be time-barred even if it related back to the date of the filing of the complaint. The court further explained that the plaintiffs relied on the 120-day extension contained in section 29-26-121(c) when they filed their complaint and that the extension did not apply to any potential claim against the governmental entity because they failed to provide presuit notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend their complaint despite being explicitly informed before filing their complaint who the physician did and did not work for. Additionally, the court found that the surgical practice was not involved in the treatment at issue and did not employ the physician or any of the medical providers involved. Thus, the court found that the surgical practice negated an essential element of the plaintiffs’ claim against it and demonstrated the evidence was insufficient to establish such a claim. Accordingly, the court granted the defendants’ motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute parties. The plaintiffs appeal. We affirm.

Here is a link to the slip opinion: FisherKimberlyDETALOPN.pdf (tncourts.gov).

NOTE: This opinion is correct as a matter of law. Further, it offers a good explanation of presuit notice in Tennessee health care liability actions, motions seeking dismissal or summary judgment, amendments of complaints, and waiver of issues on appeal. It is a good read for any lawyer who handles these types of cases governed by Tennessee law. 

Also, I have no idea why Plaintiffs' counsel did not send presuit notice to the correct employer once they were notified of its existence as required by Tenn. Code Ann. sec. 29-26-121(a)(5).

New Health Care Liability Action Opinion: Trial Court's Grant of Motion to Compel Upheld on Appeal as Modified; Expert's Draft Reports, Notes, Communicaitons with Counsel, Etc., Are Discoverable

The Tennesse Court of Appeals has issued its opinion in Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023). The syllabus from the slip opinion reads: 

In this health care liability action, the trial court granted the defendants’ motions to compel the plaintiff to produce expert witness materials despite the plaintiff’s claim of the work product doctrine. The trial court subsequently denied the plaintiff’s motion for interlocutory appeal. Upon the plaintiff’s application, this Court granted leave for an extraordinary appeal. Determining that the plaintiff has waived any privilege or protection for specific materials requested by the defendants, including expert witnesses’ notes, draft reports, and communications with counsel, we affirm the trial court’s grant of the defendants’ motions to compel, inclusive of the trial court’s proviso allowing the plaintiff to present specific materials for review if she believes they contain mental impressions of her counsel. However, also determining the trial court’s order to be overly broad, we modify the language of the order to more closely track the language of Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and the defendants’ specific requests.

Here is a link to the opinion: E2021-1308.pdf (tncourts.gov).

Here is Judge Swiney's concurring opinion: E2021-1308 Separate Opinion.pdf (tncourts.gov).

NOTE: This opinion concerns the scope of pretrial discovery, privilege logs, and waiver relating to expert witnesses. Any lawyer who is dealing with such pretrial discovery issues should read this opinion. 

New SCOTN Opinion: Dismissal of Complaint Due to the Fact that Governmental Immunity Is Removed for "Negligent" Employee Conduct but Not "Reckless" Conduct Upheld on Appeal

The Tennesse Supreme Court has released its opinion in Lawson v. Hawkins County, No. E2020-01529-SC-R11-CV (Tenn. Feb. 16, 2023). The syllabus reads:

Governmental entities generally are immune from suit. But the Governmental Tort Liability Act removes immunity for certain injuries caused by the negligent acts of an employee. In this case, we consider whether the term “negligent” in the Act’s removal provision is limited to ordinary negligence or instead also encompasses gross negligence or recklessness. We hold that the Act removes immunity only for ordinary negligence. Because the Court of Appeals held to the contrary, we reverse the decision below and remand for further proceedings.

Here is a link to the slip opinion: 

0fdbd31a-edd1-44c4-a8ac-21567adf393a.pdf (tncourts.gov).

Justice Kirby's concurring opinion is at this link:

LAWSON - Separate Opinion.pdf (tncourts.gov).

NOTE: This opinion is a must-read one for any lawyer who handles claims under Tennessee's Governmental Tort Liability Act. 

The previous opinion from the Tennessee Court of Appeals can be found at this link:

Tony Duncan Law: New Case on the Tennessee Governmental Tort Liability Act: Liability Based on Negligence, Gross Negligence, Recklessness, and Exceptions to the Public Duty Doctrine Save the Day; Trial Court's Dismissal Reversed on Appeal (theduncanlawfirm.blogspot.com).

Summary Judgment for Defense Reversed on Appeal in Premises Liability (Wrongful Death) Case on the Issue of Duty, Etc.

The Tennessee Court of Appeals has released its decision in Estate of Smith v. Highland Cove Apartments, M2021-01215-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2023). The slip opinion reads:

This is negligence and wrongful death action brought be the decedent’s estate and the surviving spouse against the apartment complex owner and management company where the accident occurred. The decedent died from profound injuries he sustained when he fell while attempting to remove tree branches that blocked the only path his disabled stepson used for ingress and egress to his apartment. The complaint asserted claims for negligence based on premise liability, negligence per se, and wrongful death. Upon the motion of the defendants, the trial court summarily dismissed all claims based on the finding that the defendants did not owe the decedent a duty of care because the accident was not foreseeable. The court also dismissed the surviving spouse's independent claim for loss of consortium. Plaintiffs appealed. We find that sufficient facts exist from which a trier of fact could reach a different conclusion than that found by the trial judge on the issues of foreseeability and duty. Accordingly, we reserve the decision to dismiss the wrongful death claim. We nevertheless affirm the dismissal of the spouse’s independent claim for loss of consortium because it does not represent a claim for damages separate from the wrongful death action. Rather, “a claim for consortium. . .embodies one component of the decedent's pecuniary value of life.” Kline v. Eyrich, 69 S.W.3d 197, 207 (Tenn. 2002). Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion.

Here is a link to the slip opinion:

Majority Opinion 2021-1215-COA.pdf (tncourts.gov)

NOTE: This opinion offers up a good summary of the current state of Tennessee law on premises liability, summary judgment, and wrongful death. If you are a practitioner who has to deal with these areas of substantive law, then you need to read this opinion. 

Trial Court's Dismissal of Health Care Liability Action Upheld on Appeal Because Substitution of Deceased Plaintiff Was Not Timely Effected and Time to Substitute Could Not Be Enlarged Because No Excusable Neglect Was Shown to Exist

The Tennessee Court of Appeals has released its decision in Joshlin v. Halford, No. W2020-01643-COA-R3-CV (Tenn. Ct. App. Jan. 6, 2023). The syllabus from the slip opinion reads:

This appeal involves a failure to timely move for substitution of parties after the death of one of the two plaintiffs. In a previous appeal, this Court directed the trial court, on remand, to determine whether the plaintiff’s response to a motion to dismiss should be construed as a motion for enlargement of time pursuant to Tennessee Rule of Civil Procedure 6.02, and if so, to determine whether the plaintiff’s failure to timely move for substitution of the parties pursuant to Tennessee Rule of Civil Procedure 25.01 was the result of excusable neglect. On remand, the trial court determined that the plaintiff’s filing should be construed as a motion for an enlargement of time. However, the trial court also found that the plaintiff failed to timely move for substitution due to counsel’s misinterpretation of the law, which, the trial court concluded, did not constitute excusable neglect. As such, the trial court granted the defendants’ motion to dismiss for failure to timely substitute parties. The plaintiff appeals. We affirm and remand for further proceedings.

Here is a link to the opinion: TN Courts (scroll down; slip opinion may not be accessible via a smart phone or tablet due to a quirk in the system right now). 

NOTE: This appellate decision is another iteration of the case discussed in my blog post from Nov. 7, 2019, which can be found here:

 http://theduncanlawfirm.blogspot.com/2019/11/new-case-on-proper-way-to-maintain-suit.html.