New Health Care Liability Action Opinion: The Supreme Court of Tennessee Reverses the Court of Appeals of Tennessee and Holds That Grandmother Can Be a "Claimant" (as "Next Friend") for Her Grandchildren for Purposes of Authorizing Presuit Notices to Be Served under the Tennessee Health Care Liability Act

The Tennessee Supreme Court has released its opinion in Denson v. Methodist Medical Center of Oak Ridge, No. E2023-00027-SC-R11-CV (Tenn. Oct. 13, 2025). The syllabus from the slip opinion reads:

This case clarifies who may be “the claimant authorizing the notice” under the health care liability pre-suit notice statute, Tennessee Code Annotated section 29-26-121(a)(2)(B). Ashley Denson died after being admitted to the hospital. Her mother Bobbie Jo Denson took in Ashley’s two minor children and obtained legal custody of them. Bobbie Jo sent pre-suit notice to defendant health care providers identifying herself as the “claimant authorizing the notice” under Tennessee Code Annotated section 29-26-121(a)(2)(B). She subsequently filed suit on her own behalf and on behalf of the minor children, ultimately pursuing the claim solely on behalf of the minor children. Defendants filed motions to dismiss, arguing Bobbie Jo did not comply with pre-suit notice requirements because she did not identify the children as the claimants. The trial court denied defendants’ motions to dismiss but granted their motion for interlocutory appeal. The Court of Appeals reversed, finding Bobbie Jo did not comply with pre-suit notice requirements because the children were the claimants but not identified as such. We now reverse. Bobbie Jo Denson is “the claimant authorizing the notice” under Tennessee Code Annotated section 29-26 121(a)(2)(B), as minor children cannot authorize pre-suit notice and file suit on their own behalf. The judgment of the Court of Appeals is reversed, and the case is remanded to the circuit court.  

Here is a link to that opinion: <https://tinyurl.com/29c64mya>.

NOTE: This is a correct decision on so many levels, and I applaud our state's High Court for reaching the correct decision in this case. 

New Laws Effective in Tennessee as of July 1, 2025

Here is an abstract of the new laws that go into effect in Tennessee today, July 1, 2025, to wit: <https://tinyurl.com/5chndhen>.

New Health Care Liability Action Opinion: Summary Judgment for the Defense Affirmed Due to the Plaintiff's Expert Being Disqualified under the Locality Rule

The Tennessee Court of Appeals has released its opinion in Bowen v. Nelson, No. W2024-00749-COA-R3-CV (Tenn. Ct. App. May 27, 2025). The syllabus reads:

Plaintiff appeals the trial court’s decision to exclude the testimony of her proffered expert for failure to comply with the locality rule. Plaintiff also appeals the grant of summary of judgment based on the exclusion of that expert. Finding the trial court did not abuse its discretion in excluding the testimony, we affirm that ruling. Additionally, we affirm the trial court’s decision to grant summary judgment as the excluded testimony was the only evidence offered regarding the applicable standard of care.  

Here is a link to the slip opinion: BowenGladysClaireOPN.pdf.

NOTE: This opinion offers a good discussion of the locality rule that applies to expert witnesses in a health care liability action as codified in Tenn. Code Ann. sec. 29-26-115(a)(1). 

New Health Care Liability Action Opinion: Supreme Court of Tennessee Holds That Saving Statute Is Not Extended by 120 days in a Refiled Health Care Liability Action

This Supreme Court of Tennessee has released its opinion in Richards v. Vanderbilt University Medical Center, No. M2022-00597-SC-R11-CV (Tenn. Jan. 22, 2025). The syllabus from the slip opinion reads:

In this health care liability action, Clayton D. Richards asks us to consider whether the trial court erred in dismissing his complaint. Previously, Mr. Richards sued Vanderbilt University Medical Center alleging negligence. That lawsuit ended in a voluntary nonsuit. Mr. Richards refiled his complaint, which became the current action, over a year later. The trial court dismissed his complaint, holding that he had not complied with the terms of the saving statute, Tennessee Code Annotated section 28-1-105. On appeal, Mr. Richards argues that Tennessee Code Annotated section 29-26-121(c) offers him a 120-day extension of the one-year saving statute, making his lawsuit timely. We disagree and conclude that section 29-26-121(c) does not extend the saving statute. Thus, we affirm the trial court’s order granting Vanderbilt University Medical Center’s motion to dismiss.  

Here is a link to the opinion: https://tinyurl.com/ywy8y8ux.

NOTE: For myriad reasons, this case is difficult to reconcile with Foster v. Chiles, 467 S.W.3d 911 (Tenn. 2015) <https://tinyurl.com/vamx2c4t>. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Action Upheld on Appeal Because a Certificate of Good Faith Was Not Filed with the Amended Complaint

The Tennessee Court of Appeals has released its opinion in Allen v. Dehner, No. M2023-01750-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2025). The syllabus from the majority opinion reads:

A husband and wife commenced this health care liability action by filing a complaint against a medical doctor and his practice. Along with their complaint, the couple filed a “Certificate of Good Faith” as required by Tennessee Code Annotated § 29-26-122(a), which requires certification that an expert has reviewed the available medical records “for the incident or incidents at issue” and that the expert believed there was “a good faith basis to maintain the action consistent with the requirements of § 29-26-115.” The original complaint alleged that the defendants caused severe permanent and physical injuries when they failed to properly diagnose and treat the husband’s cancer. After the husband died, the wife filed an amended complaint that alleged that the defendants’ negligence also caused the husband’s death. But the wife did not file a new certificate of good faith. For this reason, the defendants sought dismissal under Tennessee Code Annotated § 29-26-122(c). The trial court granted the motion, and this appeal followed. The issue is whether § 29-26-122(a) requires plaintiffs to file a new certificate of good faith with an amended complaint that alleges a new injury based on already-alleged negligent acts by existing defendants. In Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014) we held that a new certificate is required when adding new defendants to existing claims. And in Estate of Vickers v. Diversicare Leasing Corp., No. M2021-00894-COA-R3-CV, 2022 WL 2111850 (Tenn. Ct. App. June 13, 2022), we held that a new certificate is required when adding new allegations of negligence against existing defendants. Accordingly, we conclude that a new certificate is required when adding an injury based on existing claims against existing defendants. For this and other reasons, we affirm the trial court’s judgment in all respects.

The majority slip opinion is at this link: https://tinyurl.com/yc8dmcjr.

The partial concurring and dissenting opinion is at this link: https://tinyurl.com/yc67zdmm.

NOTE: Look for the plaintiff in this action to seek review by the Supreme Court of Tennessee via Rule 11 of the Tennessee Rules of Appellate Procedure. 

Trial Court's Grant of the Defense's Motion for Summary Judgment Upheld on Appeal Because of the Plaintiff's Untimely Response Thereto

The Tennessee Court of Appeals has released its opinion in Brecker v. Story, No. M2023-01640-COA-R3-CV (Tenn. Ct. App. Jan. 27. 2025).  The syllabus reads:

The plaintiff filed this lawsuit against his former attorney and her law firm, alleging legal malpractice and related claims. The defendants filed a motion for summary judgment, supported by the affidavit of the defendant-attorney and various other documents. Just days before the hearing on the motion for summary judgment, the plaintiff filed an untimely response to the motion for summary judgment along with voluminous exhibits. The defendants asked the trial court to disregard the late-filed exhibits and grant them summary judgment. The trial court found that the plaintiff’s response was untimely and deemed it stricken. In the absence of a response, the trial court also took the defendants’ statements of undisputed material facts as true. It then examined each of the causes of action asserted by the plaintiff and concluded that no genuine issues of material fact existed and that the defendants were entitled to judgment as a matter of law on all claims. The plaintiff appeals. We affirm and remand for further proceedings.

Here is a link to the slip opinion: Majority Opinion - M2023-01640-COA-R3-CV.pdf.

NOTE: This is a must-read decision for any lawyer who handles cases that are governed by the Tennessee Rules of Civil Procedure. 

New Health Care Liability Action Opinion: Grant of Summary Judgment to the Defense Upheld on Appeal Due to the Statute of Repose Barring the Claims and the Exception to the Statute of Repose, Fraudulent Concealment, Did Not to Apply

The Tennessee Court of Appeals recently released its opinion in Estate of Rowe v. Wellmont Health System, No. E2024-00431-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2024). The syllabus from the slip opinion reads: 

Paul David Rowe was not informed of a radiology report, which revealed two masses in his kidneys indicative of renal cancer, for five years. Mr. Rowe passed away after suit was filed, but his wife, Sharon K. Rowe, both individually and as the administrator ad litem of his estate, (“Plaintiffs”) maintained a health care liability action against the allegedly negligent parties, Wellmont Health System d/b/a Wellmont Bristol Regional Medical Center (“Wellmont”), Carl W. Harris, Jr., D.O. (“Dr. Harris”), and Northeast Tennessee Emergency Physicians [] (collectively, “Defendants”) in the Circuit Court for Sullivan County (“the Trial Court”). Defendants filed two separate motions for summary judgment, arguing that the three-year statute of repose barred Plaintiffs’ action. Plaintiffs raised the defense of fraudulent concealment. The Trial Court granted the motions for summary judgment finding that Defendants had no actual knowledge until 2015 that Mr. Rowe had or might have had cancer in 2010, and therefore, had nothing to fraudulently conceal. Plaintiffs appealed. We affirm.

Here is a link to that opinion: Estate of Paul Rowe Et Al. v. Wellmont Health System Et Al. Opinion.pdf.

NOTE: This recent opinion on fraudulent concealment in the health-care-liability-action (f/k/a medical malpractice action) context is a must read for any lawyer who handles these types of cases where Tennessee substantive law applies. 

New SCOTN Opinion Declines to Recognize a Cause of Action for Wrongful Foreclosure, Offers an Analysis of Standing Under the United States and Tennessee Constitutions, Etc.

The Tennessee Supreme Court has issued its opinion in Case v. Wilmington National, N.A., No. E2021-00378-SC-R11-CV (Tenn. Nov. 14, 2024). The syllabus from the slip opinion reads:

Plaintiff Terry Case did not make his mortgage payments for several years. The real property which secured his loan was subsequently sold at a foreclosure sale following the postponement of a prior sale date. Mr. Case brought a claim for “wrongful foreclosure,” among others, alleging Defendants Wilmington Trust, N.A. and Wilson & Associates, PLLC violated the notice requirements in the applicable deed of trust by failing to provide him with written notice of the postponement. The trial court granted summary judgment to Defendants, and Mr. Case solely appealed the dismissal of his claim for “wrongful foreclosure.” The Court of Appeals reversed, finding that Defendants failed to satisfy their notice obligations under the deed of trust and that summary judgment on the claim for “wrongful foreclosure” was therefore inappropriate. Defendant Wilmington Trust applied for permission to appeal to this Court, and we granted review to determine (1) whether Tennessee recognizes a common law cause of action for “wrongful foreclosure,” and (2) whether the Fannie Mae/Freddie Mac Uniform Deed of Trust requires written notice of postponement in addition to oral announcement pursuant to section 35-5-101(f) of the Tennessee Code. We further instructed the parties to address whether Mr. Case satisfied the requirements for constitutional standing. We hold that Mr. Case has constitutional standing to bring his claim. However, we also hold that there is no common law cause of action for “wrongful foreclosure” in Tennessee. As a result, we reverse the judgment of the Court of Appeals and remand to the trial court for entry of an order consistent with this opinion. 

Here is a link to the majority opinion: 

Majority Opinion - E2021-00378-SC-R11-CV_0.pdf

Here is a link to Chief Justice Kirby's concurring opinion:

Separate Opinion - E2021-00378-SC-R11-CV.pdf

NOTE: While the wrongful foreclosure does not interest me that much, the discussion of standing under Tennessee's open courts provision of its constitution is very interesting and worth a read. 

New Health Care Liability Action Opinion: Summary Judgment for the Defense Upheld on Appeal Because Plaintiff's Expert Proof Was Insufficient to Create a Genuine Issue of Material Fact

The Tennessee Court of Appeals has released its decision in Dickerson v. United Medical Transportation, LLC, No.  No. W2023-01084-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2024). The opinion's syllabus reads:

After suffering an injury, patient alleged that in-patient facility was negligent in failing to inform medical transportation company of his physical limitations prior to his discharge from the facility. In response to the facility’s summary judgment motion, patient relied on the testimony of an “expert in passenger ground transportation.” The trial court found that issues of fact remained as to patient’s ambulation needs, but granted summary judgment as to standard of care and breach because patient’s expert was not competent to testify under the Tennessee Health Care Liability Act, and the common knowledge exception did not apply. Finding no reversible error, we affirm.

Here is a link to the slip opinion: DickersonRobertOPN.pdf.

NOTE: This opinion reminds one of the general need for expert testimony for one to prevail in a health care liability action. 

Claim Against the State Barred Because Sovereign Immunity Has Not Been Removed for Gross Negligence.

The Tennessee Court of Appeals has released its decision in Gordon v. State, No. W2023-01012-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2024). The syllabus from the slip opinion reads:

The State appeals a judgment against it for an injury caused by the gross negligence of its employees in the creation or maintenance of a dangerous condition on state-owned property. Because we conclude that the Tennessee Claims Commission lacks subject matter jurisdiction over claims for gross negligence, we reverse.

Here is a link to that opinion: GordonTannaOPN.pdf (tncourts.gov).

NOTE: This is a must-read opinion for any lawyer who is handling a case before the Tennessee Claims Commission (especially where Tennessee's Recreational Use Statute is in play). 

Dismissal of Plaintiff's Third Lawsuit Upheld on Appeal Because It Was Not Timely Filed under the Saving Statute; Appeal Held to Be Frivolous

The Tennessee Court of Appeals has issued its opinion in Abdou v. Brown, No. M2023-01593-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024). The syllabus reads:

This appeal arises from a civil action that was commenced and voluntarily dismissed without prejudice twice before the plaintiff refiled the same action for a third time. The defendants responded to the third filing by moving to dismiss on the ground that the third action was filed outside of the applicable statute of limitations. Relying on the authority in Payne v. Matthews, 633 S.W.2d 494 (Tenn. Ct. App. 1982), the trial court agreed with the defendants and dismissed the action with prejudice. The plaintiff appeals. We affirm. In their brief, the defendants/appellees ask this court to award them their attorney’s fees and expenses incurred in defending this appeal, contending that the appeal is frivolous. Finding that the appeal is devoid of merit and, therefore, frivolous, we remand this matter to the trial court to award the defendants/appellees their reasonable and necessary attorney’s fees and expenses incurred in defending this frivolous appeal.

Here is a link to that slip opinion: Majority Opinion - M2023-01593-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion explains the interaction between the saving statute and Rule 41 of the Tennessee Rules of Civil Procedure. It also explains when an appeal is frivolous. Being familiar with this opinion will keep a lawyer out of trouble in my humble opinion. 

Summary Judgment for the Defense Upheld on Appeal: Plaintiff Failed to Rebut Defendant's Motion for Summary Judgment

The Tennessee Court of Appeals has released its opinion in Brooks v. Whaley Construction, LLC, No. E2023-00711-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024). The syllabus from the slip opinion reads:

This is an appeal from a premises liability claim brought against a construction company. The plaintiff tripped over a cut signpost while walking along a highway in Blount County, Tennessee. The plaintiff alleged that the defendant construction company caused, created, or had knowledge of the signpost and had a duty to the plaintiff. Following a motion for summary judgment by the construction company, the trial court determined that that construction company was not responsible for the signpost and thus owed the plaintiff no duty of care. The plaintiff appealed to this Court. Discerning no reversible error, we affirm. 

Here is a link to that opinion: E2023-00711 Opinion.pdf (tncourts.gov).

NOTE: This opinion does, among other things, a good job of setting out what must be done by a defendant or a plaintiff who moves for summary judgment. A good read in my humble opinion. 

New Health Care Liability Action Opinion: Summary Judgment for the Defense Reversed on Appeal Due to Lack of Imputation of Knowledge to Plaintiff's Attorney and the Discovery Rule

The Tennessee Court of Appeals released its opinion today in Mark v. Eck, No. E2023-01643-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2024). The syllabus reads: 

This appeal concerns the discovery rule. Dr. Jason C. Eck, D.O. (“Defendant”) performed spinal surgery on Keetly Marc (“Plaintiff”). On November 10, 2020, Plaintiff’s counsel, who then was representing Plaintiff only in a workers’ compensation case, received information through discovery reflecting that Plaintiff’s surgery was performed at the wrong level. Counsel reviewed the material on November 30, 2020, and informed Plaintiff by December 4, 2020. On November 24, 2021, Plaintiff sent pre-suit notice. On March 30, 2022, Plaintiff sued Defendant in the Circuit Court for Hamilton County (“the Trial Court”) alleging health care liability. Defendant filed a motion for summary judgment asserting the statute of limitations. The Trial Court granted summary judgment to Defendant. Plaintiff appeals. We hold that Plaintiff cannot be charged with constructive notice based on her attorney’s November 10, 2020, receipt of the relevant information because counsel was then representing Plaintiff only in a workers’ compensation case, and a potential health care liability claim was beyond the scope of her representation. Thus, the knowledge obtained by Plaintiff’s counsel on November 10, 2020, may not be imputed to Plaintiff. Plaintiff was made aware of the relevant information at some point from November 30, 2020, through December 4, 2020, meaning her lawsuit against Defendant was timely filed. We reverse the Trial Court’s judgment and remand for this case to proceed.

Here is the slip opinion: Keetly Marc v. Jason Eck, D.O. Opinion.pdf (tncourts.gov).

NOTE: Look for the defendant to seek review of this decision by the Tennessee Supreme Court. 

Summary Judgment Reversed on Appeal Because Movant Supplied an Altered Memorandum Opinion to the Trial Court in Support of That Motion

The Tennesse Court of Appeals just issued its opinion in Giro v. Wilburn, No. E2023-01541-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2024). The syllabus from the slip opinion reads: 

This appeal concerns service of process and the statute of limitations. Vicki Ann Giro (“Giro”) sued Kaleb Wilburn (“Wilburn”) in the Circuit Court for Knox County (“the Trial Court”) for injuries Giro sustained in a car accident with Wilburn. Giro failed to timely serve the summons in compliance with Tenn. R. Civ. P. 3 and failed to issue new process before the statute of limitations expired. Giro filed a motion for enlargement of time. In opposition to Giro’s motion, the Trial Court was furnished with an altered copy of Hollis ex rel. Nicole N. v. Sanchez, No. M2022-01190-COA-R3-CV, 2023 WL 5920145 (Tenn. Ct. App. Sept. 12, 2023), no appl. perm. appeal filed. The altered copy of Hollis retains the heading “MEMORANDUM OPINION” but omits Footnote 1 stating that, as a memorandum opinion, Hollis is not to be cited or relied on in any unrelated case pursuant to Tenn. Ct. App. R. 10. The Trial Court, which had been furnished on Wilburn’s behalf with the altered copy missing the explanatory footnote, relied heavily on Hollis to deny Giro’s motion for enlargement of time. We therefore vacate the judgment of the Trial Court and remand for the Trial Court to exercise its discretion on whether to grant Giro’s motion for enlargement of time without considering Hollis or any other opinion designated by this Court as a memorandum opinion.

Here is a link to the opinion: Giro vs. Giro Memorandum Opinion (unsigned).pdf (tncourts.gov).

NOTE: It is not a win if you have to cheat. My two cents' worth. 

Tennessee Anti-SLAPP Opinion: Supreme Court of Tennessee Holds That a Petitioner Was a Limited-purpose Public Figure, That He Failed to Establish Actual Malice on Respondent's Part, and That Appellee Preserved Her Claim for Attorney's Fees

The Tennesse Supreme Court has issued its opinion in Charles v. McQueen, M2021-00878-SC-R11-CV (Tenn. July 3, 2024). The syllabus from the slip opinion reads:

Ordinarily, a plaintiff asserting a defamation claim must prove that the defendant made a false statement and did so negligently. If the plaintiff is a public figure, however, he must prove that the statement was made with actual malice. This is a steep hill to climb, so determining whether the plaintiff is a public figure is a crucial inquiry in any defamation case. This case is no exception. The plaintiff here, Bill Charles, assisted with the development of the Durham Farms community in Hendersonville, Tennessee, and is president of its homeowners’ association. Charles brought defamation and false light claims against Donna McQueen, a Durham Farms resident who posted a Google review that was critical of him. McQueen sought dismissal of Charles’s claims under the Tennessee Public Participation Act, arguing that Charles could not establish a prima facie case for his claims because he could not prove actual malice. The trial court agreed with McQueen and dismissed the claims. The Court of Appeals reversed in part. It agreed with McQueen that Charles had to prove actual malice to prevail on his false light claim and had failed to do so. But it held that Charles is not a public figure and therefore need not prove actual malice for his defamation claim. We disagree with the Court of Appeals on that score. We hold that Charles is a limited-purpose public figure given the voluntary and prominent role he played in a controversy concerning changes to the Durham Farms development plan. We further hold that Charles failed to establish a prima facie case of actual malice. Finally, we reject Charles’s argument that McQueen waived her request for appellate attorney’s fees by failing to list it as an issue in her Court of Appeals brief. We reverse the Court of Appeals in part and affirm in part, and we remand for further proceedings.

Here is a link to that opinion: Majority Opinion - M2021-00878-SC-R11-CV.pdf (tncourts.gov).

NOTE: This opinion explains the law of defamation and when someone is a public figure, Tennessee's Anti-SLAPP Statute (the Tennessee Public Participation Act), and practice on appeal before Tennessee state courts. A must-read decision in my humble opinion. 

New Laws Effective in Tennessee in 2024

Below are two links to lists of new laws that went into effect in Tennessee this year on January 1 and July 1, respectively, to wit:

January 1, 2024: EffectiveRpt (tn.gov); and

July 1, 2024: EffectiveRpt (tn.gov).

NOTE: These two links help one stay current. 

SCOTN Rejects "Preemption Rule" That Would Prohibit Direct Negligent Claims Against a Principal When Vicarious Liability as to an Agent Has Been Admitted by Principal; SCOTN Also Holds That Claims for Negligent Activities May Be Pleaded in the Same Action Along with Premises Liability Claims

The Tennessee Supreme Court has released its opinion in Binns v. Trader Joe's East, Inc., No. M2022-01033-SC-R11-CV (Tenn. Apr. 8, 2024). The syllabus form the slip opinion reads: 

This interlocutory appeal involves an alleged slip and fall incident that occurred at the defendant’s grocery store. The plaintiff’s amended complaint included allegations of vicarious liability, premises liability, negligent training, and negligent supervision against the defendant. In an attempt to dismiss the plaintiff’s negligent training and supervision claims, the defendant filed a motion for partial judgment on the pleadings and asserted two alternative arguments, both of which the trial court rejected. First, the trial court rejected the defendant’s argument that courts must dismiss “negligent activity” claims, such as claims for negligent training and supervision, when asserted concurrently with a premises liability theory of recovery. Second, the trial court rejected the defendant’s argument that the plaintiff’s direct negligence claims were no longer legally viable due to the defendant admitting it was vicariously liable for the conduct of its employee, commonly referred to as the “preemption rule.” After denying the defendant’s motion, the trial court granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals denied the defendant’s application. The defendant then appealed to this Court, and we granted review. We hold that the preemption rule is incompatible with Tennessee’s system of comparative fault and decline to adopt it. In addition, we decline to adopt the rule proposed by the defendant pertaining to “negligent activity” claims asserted alongside premises liability claims. As a result, we affirm the trial court’s order denying the defendant’s motion for partial judgment on the pleadings and remand to the trial court for further proceedings.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-01033-SC-R11-CV.pdf

NOTE: This is a must-read case for any lawyer who handles tort cases governed by Tennessee substantive law that have to do with agency and premises liability. 

New SCOTN Case: Trial Court's Decision Denying Arbitration in a Nursing Home Case Reversed on Appeal Because the Attorney-in-Fact Was Authorized to Sign Arbitration Agreement

The Tennessee Supreme Court has released its opinion in Williams v. Smyrna Residential, LLC, No. M2021-00927-SC-R11-CV (Tenn. Feb. 16, 2024). The syllabus from the majority opinion reads: 

Granville Williams, Jr., died while residing at an assisted-living facility. The central question in this appeal is whether his son’s ensuing wrongful-death action against the facility must be arbitrated. To answer that question, we must resolve two subsidiary issues—first, whether the attorney-in-fact who signed the arbitration agreement as Williams’s representative had authority to do so and, second, whether Williams’s son and other wrongful-death beneficiaries who were not parties to the arbitration agreement nevertheless are bound by it. We hold that signing an optional arbitration agreement—that is, one that is not a condition of admission to a health care facility—is not a “health care decision” within the meaning of the Durable Power of Attorney for Health Care Act. The durable power of attorney that gave Williams’s attorney-in-fact authority to act for him in “all claims and litigation matters” thus provided authority to enter the optional arbitration agreement even though it did not specifically grant authority to make health care decisions. We further hold that Williams’s son is bound by the arbitration agreement because his wrongful-death claims are derivative of his father’s claims. Because we conclude that the claims in this action are subject to arbitration, we reverse the Court of Appeals’ contrary decision and remand to the trial court.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2021-00927-SC-R11-CV.pdf.

Here is a link to Justice Lee's dissent:

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion-%20M2021-00927-SC-R11-CV.pdf.

Here is Chief Justice Kirby's opinion joining Justice Lee's dissent:

https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%20%282%29%20-M2021-00927-SC-R11-CV.pdf.

NOTE: This opinion reverses the one from the Tennessee Court of Appeals in this same case that was released on April 8, 2022, which is the subject of my blog post from April 9, 2022, to wit:

http://theduncanlawfirm.blogspot.com/2022/04/trial-courts-denial-of-defendants.html.

Grant of Summary Judgment Reversed on Appeal Because the Issue It Was Based on Was Not Raised in the Motion

The Tennessee Court of Appeals has released its opinion in Bakker v. Chattanooga-Hamilton County Hospital Authority, No. E2022-00872-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2024). The syllabus from the slip opinion reads: 

The trial court granted summary judgment in favor of the defendant hospital in this premises liability case, finding that the defendant had no notice of the alleged dangerous or defective condition on its premises. The plaintiff has appealed. Following our review, we determine that the plaintiff was not provided notice and a reasonable opportunity to respond to all issues to be considered by the trial court at the summary judgment stage. Accordingly, we vacate the trial court's grant of summary judgment.

Here is the link to the opinion: 

Bakker, M.D. v. Chattanooga Hamilton Hospital Authority.pdf (tncourts.gov)

NOTE: This is an excellent opinion that addresses when a trial court grants summary judgment on an issue not raised in the motion seeking same and why that is error. This is a must-read opinin for any lawyer who handles civil actions in Tennessee state courts. 

New Health Care Liability Action: Trial Court's Imposition of Sanctions for Discovery Abuse Upheld on Appeal but Case Is Remanded to Calculate Amount of Sanctions under Applicable Law

The Tennessee Court of Appeals has released its opinion in Salas v. Rosdeutscher, Nos. M2021-00449-COA-R3-CV; M2022-00130-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2024). The syllabus reads:

Plaintiff’s attorneys appeal the trial court’s imposition of sanctions against them in the amount of $68,617.28 and the denial of their second motion to disqualify the trial court judge. We affirm the trial court’s discretionary decision to impose sanctions, but we vacate the amount of sanctions awarded and remand for the trial court to calculate the reasonable amount of monetary sanctions in keeping with the procedures and considerations outlined in this opinion. We have determined that Plaintiff’s attorneys’ issue regarding the trial court’s denial of their second motion to recuse is moot. Finally, we decline to award attorney’s fees on appeal.

Here is a link to the slip opinion: Majority Opinion - M2021-00449-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion is a good reminder why a lawyer should never misrepresent matters to a court.