Seeking Reconsideration of Summary Judgment Motions in Tennessee

In Bilbo v. Ocoee Place Condominium Homeowners Ass’n, No. E2013-02532-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2014), plaintiffs filed suit alleging negligent construction of condos. Defendant HOA filed a motion for summary judgment stating that it did not own the property the condos were built on and that the HOA had no control over the construction of the condos. For the purposes of the summary judgment motion, plaintiffs agreed that defendant “had no decision-making authority,” “did not have any role whatsoever in the construction,” and “did not own the land…upon which the condominiums were constructed.”

Based on these facts, the trial court granted defendant summary judgment. Plaintiffs subsequently filed a motion to alter or amend the summary judgment pursuant to Tennessee Rules of Civil Procedure 54.02 and 60.02 claiming to have newly discovered evidence. The Court of Appeals affirmed the trial court’s grant of summary judgment.

When a motion is made to alter summary judgment based on additional evidence under Rule 54.02, a court should consider:

1) the movant’s efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant’s case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor.

Bilbo (citation omitted).  Here, plaintiffs supported their motion by offering evidence that the defendant HOA did own the land, supported by copies of certain deeds. The Court of Appeals pointed out, however, that plaintiffs provided no explanation as to why the deeds, which were public record, were not obtained prior to summary judgment ruling. The Court also noted that plaintiffs did not offer information regarding their attempts to obtain evidence to use in response to defendant’s motion.

Regarding plaintiffs’ Rule 60.02 motion to alter or amend, the Court of Appeals pointed out that this rule only applies to final judgments, and when plaintiffs filed their motion the summary judgment was not a final order. Further, plaintiffs’ brief stated that they sought relief “due to ‘a mistake of counsel,’” as counsel did not know that the affidavit submitted by defendant would be sufficient for summary judgment.  According to the Court, though, “counsel’s ignorance of the law or Rules does not justify Rule 60 relief.” Bilbo (citation omitted).

This case is an important reminder to be diligent in responding to summary judgment motions. A failure to find obtainable evidence or a mistake of counsel will not typically result in relief from an adverse ruling. 

Conversion of Motions to Dismiss Into Motions for Summary Judgment

           In Tennessee, trial judges are allowed to convert Rule 12 Motions to Dismiss into Motions for Summary Judgment, but this action “should be taken only in rare cases and with meticulous care.” Thomas v. Transp. Ins. Co., 532 S.W.2d 266 (Tenn. 1976).  The Court of Appeals recently overturned such a summary judgment in In Re Conservatorship of Starnes, No. W2013-02614-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2014), because the trial court did not permit proper discovery before granting a motion it had converted from a motion to dismiss into a motion for summary judgment.

            Petitioner in the Starnes case was a daughter who alleged that her father needed a conservator after his health declined following a stroke. Father filed a motion to dismiss, which the court declined to rule on until a guardian ad litem had been appointed. After appointment and his own discovery, the guardian ad litem filed a report finding that father did not need a conservator. Daughter filed an objection to this report, and father renewed his motion to dismiss. In an in-chambers conference with counsel, the trial judge determined that a physician should review father’s medical records, and the court chose a Dr. Golden to do so. After reviewing the records, Dr. Golden issued a report stating that father was “capable of making decisions directing his own affairs.” Daughter, on appeal, alleges that this report is not supported by an accompanying affidavit and relies largely on hearsay.

            In September 2013, the trial court held a hearing on father’s motion to dismiss. The next month the judge issued an opinion and order dismissing daughter’s conservatorship petition. The trial court concluded that daughter’s petition was “legally sufficient and adequately set[] forth the requisite requirements for a petition to appoint a conservator” pursuant to Rule 12.02(6), but then went on to acknowledge that it considered evidence outside the pleadings and thus converted the motion, sua sponte, to one for summary judgment pursuant to Rule 56.  Specifically, the court considered a copy of a doctor’s letter submitted by father, three affidavits submitted by father (two from doctors), the guardian ad litem report, and Dr. Golden’s report.

            In vacating the summary judgment, the Court of Appeals noted that when a motion to dismiss is converted to a summary judgment motion, “courts must use care not to violate the non-moving party’s right to both fair notice and a reasonable opportunity ‘to set forth specific facts showing that there is a genuine issue for trial.’” Here, daughter’s attorney had asked the court to allow limited discovery, specifically the depositions of the two doctors relied upon by father, to test their credibility and allow daughter to examine the accuracy of the reports the court was relying upon. According to the Court of Appeals, however, there was no evidence that the trial court even considered this request for discovery before granting the summary judgment. The Court of Appeals found that the trial judge should have allowed the requested depositions, as the court clearly stated that it relied upon the affidavits of the two doctors and the guardian ad litem had incorporated the doctors’ opinions into his report.  The Court accordingly vacated the summary judgment order and remanded with instructions to allow limited discovery.

            The discovery issue alone was sufficient to warrant remand, as “a trial court’s failure to permit a non-moving party the opportunity to pursue discovery in order to obtain materials made pertinent by a summary judgment motion, such as interrogatories and depositions, is reversible error.” On top of the discovery issue, though, the Court of Appeals found additional problems with the trial court’s decision. First, daughter had objected to the guardian ad litem report and moved for a new guardian ad litem, but the court never specifically ruled on this request or gave daughter an opportunity to explain her objections. Second, despite the trial court order stating that daughter had agreed to a physician reviewing father’s records, the record did not support any such agreement, and daughter’s lawyer never signed the order directing the review. Finally, the trial court never qualified Dr. Golden as an expert, so its reliance on his report raised concern.

            This case is a reminder that it is rarely appropriate for a court to sua sponte convert a motion to dismiss into a motion for summary judgment. In the rare cases where that does occur, the non-moving party should be allowed the opportunity to take discovery necessary to oppose the summary judgment motion. If pertinent discovery is not allowed, the Starnes case is a good example of how to present such an issue to the appellate court. 

Products Liability Statute of Repose and its Exceptions Held to be Constituational

The Tennessee Court of Appeals recently upheld the constitutionality of both the ten-year statute of repose under the Tennessee Products Liability Act (“TPLA”) and the exceptions thereunder for asbestos and silicone gel breast implant claims. In Adams v. Air Liquide America, L.P., No. M2013-02607-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2014), plaintiff filed a products liability claim related to injuries from silica exposure in his employment. Plaintiff was diagnosed with cancer in 2010, filed the claim in 2011, and it was undisputed that 1991 was the very latest time at which plaintiff could have first used or come into contact with defendants’ products. Defendants filed a motion for summary judgment on the grounds that the action was time-barred by the ten-year statute of repose found in Tenn. Code Ann. § 29-28-103(a), and the trial court granted the motion.

On appeal, plaintiff asserted that the statute of repose violated the Equal Protection Clause of the US Constitution and Section 8 of the Tennessee Constitution because it carved out exceptions for asbestos and silicone gel breast implant related injuries, but not silica-related claims. Plaintiff asserted that the classes of claims for which there are exceptions were similarly situated to silica-related claims because both have long latency periods. According to plaintiff, there was no rational basis for distinguishing between these claims.

This constitutional challenge was examined under the rational basis standard, meaning that “if any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld.” Adams (citing Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978)). In affirming the trial court’s summary judgment decision, the Court noted that “the statute of repose and its exceptions have been upheld under similar equal protection challenges[,]” including other challenges related to injuries with long latency periods. The Court essentially just adopted the reasoning of the trial court, quoting its conclusions that

silica and asbestos claims are not similarly situated by injury or class, asbestos has been classified as a toxic substance, whereas silica has not, silica has no similarity to silicone gel breast implants, and if silica-related claims and asbestos-related claims were similarly situated, the Tennessee General Assembly had a rational basis to distinguish between the two…silicosis is by its nature an occupational disease, whereas asbestosis is not so limited given the fact that it historically has been found in homes, schools and the like, in addition to the workplace (internal quotations omitted).

This case is a reminder that the ten-year statute of repose for TPLA claims is strictly enforced in this state. Even for injuries that were not known about during that ten-year period, this statute can be fatal to claims against product manufacturers.

No Evidence of Constructive Notice Leads to Summary Judgment in Tennessee Premises Liability Case

In Hannah v. Sherwood Forest Rentals, LLC, No. E2014-00082-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2014), plaintiff filed a premises liability action against a cabin rental company and the cabin owners. Plaintiff, a guest at the cabin, alleged that she arrived at a rental cabin after dark, ascended the stairs to the front door, then later descended the same stairs to retrieve her luggage. On her way down the stairs, plaintiff fell and injured both feet and ankles when, according to plaintiff, “the bottom fell out” of one of the stairs. The next day, plaintiff and her family found that several stairs had “improperly seated nails fastening the top of the step” and that one of the stairs rocked forward when stepped on in a particular spot.

Defendants filed a motion for summary judgment, which the trial court granted on the basis that there was no genuine issue of material fact by which a reasonable jury could find that defendants had actual or constructive notice of any alleged dangerous condition. The Court of Appeals affirmed.

Defendants presented evidence that there had been no prior or subsequent reports of problems with the stairs; that the maintenance staff inspected the cabin at least monthly and had not seen a problem; that the housekeeping staff cleaned the cabin prior to plaintiff’s family checking in and did not see a problem with the stairs; and that the owners had not seen any problem with the stairs or received any report of such a problem during their frequent visits to the cabin.

Both courts determined that the evidence presented by defendants demonstrated that plaintiff could not prove actual or constructive notice of any allegedly dangerous condition. The Court of Appeals cited the basic tenets of premises liability law, noting that plaintiff did not show that defendants created the condition and therefore would have to prove that defendants had actual or constructive notice of the danger prior to plaintiff’s injury. Since no actual notice was shown from prior incidents or complaints, the Court noted that plaintiff “would be required to prove constructive notice by establishing that the condition existed for such a length of time or was of such a nature that [defendants], in the exercise of reasonable care, should have become aware of it.” In finding that plaintiff failed to meet that burden, the Court of Appeals relied not only on the evidence presented by defendant, but also on the fact that plaintiff’s own family had been in the cabin for 24 hours before her arrival and had not had a problem with the stairs.

This fairly simple premises liability case is a great reminder of the kind of evidence an attorney needs to be mindful of when assessing and filing such a claim. In the absence of proof that a defendant caused or actually knew about the dangerous condition, evidence regarding things like prior incidents, prior reports, and the frequency with which the area was inspected will be crucial to the success of a claim.

Court Torpedos 911-Related Negligence Claim

Under the Governmental Tort Liability Act (“GTLA”), governmental entities are immune from lawsuits that arise from the “exercise and discharge” of their functions. There are a very few, specific exceptions to the GTLA listed in the statute. Due to this statutory immunity, making a case for negligence against a government agency can be quite difficult.

In Estate of Quinn v. Henderson, No. E2013-02398-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2014), plaintiff brought a wrongful death suit against both the Blount County fire department and the Blount County 911 center. The action arose out of an incident wherein the deceased’s boyfriend had set fire to her attached garage while the deceased was in the home. The deceased called 911, who then dispatched the fire department. Upon arriving at the scene, however, the fire department could not immediately act. Instead, they followed fire department protocol and waited for the domestic violence situation to be secured by the police before fighting the fire and entering the home. The deceased was removed from the home after it was secured, but died two days later from smoke inhalation.

The trial court granted summary judgment for 911 and the fire department based on the GTLA, finding that the entities “were engaged in planning functions, such that their actions were immune pursuant to the [GTLA].” The trial court further based its decision on the public duty doctrine and comparative fault. The appellate court affirmed, though it based its decision on different reasons. Instead of finding that the entities were engaged in planning functions, the Court of Appeals determined that both 911 and the fire department retained immunity because both negated essential elements of plaintiff’s claims.

Regarding the fire department, plaintiff claimed negligence because the first firefighter to arrive at the scene did not assist or rescue plaintiff, but instead waited for police to arrive, and that the response time (due to waiting for the scene to be secured) was unreasonable. The fire department presented evidence, however, that it acted appropriately and complied with the standard of care. Stating that “[t]he threshold question is whether immunity has been removed because the injury was caused by the negligent act or omission of a governmental employee acting within the scope of his or her employment,” the Court held that “[a]bsent a finding of negligence, governmental immunity still applies.” Accordingly, the Court found that the fire department did not breach its duty of care and the trial court rightly dismissed the claims against it. Likewise, regarding plaintiff’s claims that the 911 operator did not handle the call appropriately, did not communicate information to the fire department correctly, and should have stayed on the phone with the deceased, the Court determined that 911 had negated essential elements of plaintiff’s claims. First, 911 showed that the operator acted in accordance with procedures. Second, even if the operator had breached a duty, 911 showed that the alleged acts of negligence were not the cause in fact of the deceased’s injuries. As with the fire department, the Court of Appeals upheld summary judgment in favor of 911, although on different grounds from the trial court’s decision.

This case is a great reminder of the many challenges encountered when bringing a negligence claim against a governmental entity. Both the trial court and the Court of Appeals agreed that immunity was retained here, and since they based their decisions on different grounds, these courts illustrated that there are multiple ways government agencies are protected by the GTLA. While it is often still worthwhile and necessary to bring suit against such agencies, an attorney should carefully study the facts and keep in mind the provisions of the GTLA  (and the case law interpreting it) when filing such a case.

Nuanced Determination Required to Distinguish Health Care Liability Claims from Ordinary Tort Claims

 

            Not all claims brought against health care providers fall under the Tennessee Health Care Liability Act (THCLA), and a recent case from the Tennessee Court of Appeals gives crucial guidance on how to distinguish THCLA claims from ordinary, non-statutory tort claims. In Ellithorpe v. Weismark, No. M2014-00279-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), plaintiffs were parents of a minor child. Plaintiffs had lost custody pursuant to a juvenile court order, but plaintiffs alleged that the order required them to be informed of and allowed to participate in any counseling offered to the minor child. In their complaint, plaintiffs alleged that defendant social worker had provided counseling to minor child in violation of the court order. They asserted claims for negligence, negligence per se, and intentional infliction of emotional distress against the defendant.

            Defendant moved to dismiss the complaint in its entirety, arguing that it fell under the THCLA and that plaintiffs had indisputably not followed the statute’s procedural requirements. The trial court granted the motion, finding that “the THCLA was ‘very broad’ and encompassed this claim because it related to the provision of health care services by a health care professional.” The Court of Appeals, however, reversed this dismissal, stating that the trial court had not used the proper analysis to determine whether the claims fell within the THCLA.

            In determining the proper analysis, the Court first pointed to the Tennessee Supreme Court’s opinion in Gunter v. Laboratory Corp. of America, 121 S.W.3d 636 (Tenn. 2003). There, the Supreme Court indicated that the “crucial question” was whether the claim “constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional.” Later, though, the Supreme Court reexamined the analysis recommended by Gunter. In Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), the Supreme Court noted that “all cases involving health or medical care do not automatically qualify as health care liability claims.” The Estate of French Court “somewhat abandoned the broad ‘gravamen of the complaint’ test outlined in Gunter, in favor of ‘a more nuanced approach’ in which the trial court must examine the claims individually to determine whether they sound in ordinary negligence or health care liability.” Instead of broadly characterizing the complaint, this analysis depended on factual inquiries to appropriately categorize the individual claims.

            Based on the Estate of French case, the Court of Appeals in Ellithorpe outlined five factors that should be considered in determining whether a claim falls under the THCLA or another form of liability:

(1) whether a patient-physician relationship exists between the plaintiff and the defendant medical provider; (2) whether the alleged acts of negligence relate to a specific patient or to an entire group of people; (3) whether expert testimony is required to establish the standard of care; (4) whether the alleged negligence involves the provision of routine care; and (5) whether

the alleged negligent acts or omissions were properly classified as administrative, ministerial, or routine, rather than medical or professional.

            Because the trial court here appeared to dismiss the claims based on the gravamen of the complaint and did not engage in the proper nuanced consideration of the allegations, the Court reversed the dismissal and remanded with instructions to consider the factors above.

            This is an important case that synthesizes previous Tennessee decisions and gives some clear factors to consider when determining whether a claim sounds in ordinary negligence or health care liability. While some number of complaints that assert liability against a health care provider will include claims falling under both ordinary tort law and the THCLA, and thus will likely already meet the procedural requirements of the THCLA, this case could be especially helpful in a situation where either the pre-suit notice or certificate of good faith was found to be insufficient. Pursuant to the analysis here, a complaint should not be dismissed in total simply because it is generally a health care claim. Instead, a trial court should undergo a fact specific inquiry, categorizing each claim as falling under the THCLA or another theory of liability. In a sticky situation where the THCLA claims are likely to fail, then, a practitioner could potentially use the reasoning in this case to argue for at least some of the claims asserted to stand. 

Offer of Judgment Cannot Be Revoked During 10-Day Window

The Tennessee Court of Appeals recently took up a civil procedure issue of first impression in the state. In McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), the issue presented was“[w]hether a Rule 68 offer of judgment may be revoked by the offeror within the ten-day time period for acceptance on the basis that the offeror ‘changed his mind.’” Following the weight of authority from federal and other state courts, the Court held that offers of judgment under Rule 68 are generally not revocable prior to the ten-day window expiring.

The McGinnis case arose from a car accident, and though no answer was ever filed, plaintiffs presented defendants with an offer of judgment for a specified amount or the policy limits of the applicable insurance policy. It was undisputed that the offer of judgment was made pursuant to Rule 68. There was some discrepancy between the date on the certificate of service and the date the offer was actually mailed, but defendants’ counsel received it on March 13, 2013. Counsel for both parties spoke two days later and agreed to forgo the deadline due to the postposed mailing. On that same day, however, plaintiff’s counsel faxed defendants’ counsel stating that the offer of judgment was revoked. The basis of this purported revocation was that the plaintiff had changed his mind. Subsequently, but on the same day and well within the ten-day time frame, defendants responded by fax that they accepted the offer of judgment in the amount of the policy limit. As there were no allegations of fraud or other good cause, the trial court found that the offer of judgment could not be revoked and thus granted a motion to enforce the judgment. The Court of Appeals affirmed.

In analyzing the issue, the Court determined that “the failure to include a provision allowing revocation [in Rule 68] is indicative of an intent not to allow revocation within the ten-day time period for acceptance.” The Court stated that adding a revocation provision would “deprive the offeree of the ten  days to consider the offer of judgment  the offeree was clearly intended to possess pursuant to Rule 68’s plain language.” The Court emphasized that the 10-day window was needed to give the offeree an appropriate amount of time to consider the offer, as rejecting such an offer subjects the offeree to certain risks. Allowing revocation would give the offeror the ability to force the offeree into a hasty decision.

Further, despite the fact that an accepted offer of judgment is interpreted under contract law, the Court found that contract law does not provide a basis for revoking a Rule 68 offer of judgment.  “While an accepted offer of judgment is enforced as any other contract, the offer itself is not a creature of contract; it is a mechanism created and governed by the Rules of Civil Procedure.” With this analysis, Tennessee fell in line with most state and federal courts in finding that Rule 68 offers of judgment are not revocable.

Because Tennessee’s Rule 68 allows either a plaintiff or defendant to make an offer of judgment, this is a vital case for all trial attorneys. An offer of judgment must be well thought out and carefully drafted, as once it is submitted to the opponent it cannot be revoked prior to the ten-day window expiring. Under the plain language of the rule as well as the guidance provided from other jurisdictions, this seems to be the correct result and the likely result that the Supreme Court would reach if it ever took up this issue. This holding, then, should govern practitioners’ behavior as they contemplate making offers of judgment in their cases.

Health Care Liability Claim under GTLA Entitled to 120-Day Extension of Statute of Limitations

 In Harper v. Bradley County, No. E2014-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014), the Tennessee Supreme Court clarified one aspect of the interplay between the Health Care Liability Act (“HCLA”) and the Governmental Tort Liability Act (“GTLA”). The Court held that under the current version of the HCLA, health care liability actions against governmental entities are entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c).

To reach its decision, the Court relied heavily on Cunningham v. Williamson County Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013). In that case, the Tennessee Supreme Court found that the 120-day extension did not apply to medical malpractice claims arising under the GTLA. The Cunningham Court noted that “in the absence of specific statutory language permitting extension of the GTLA statute of limitations, …statutory provisions inconsistent with the GTLA may not extend the applicable statute of limitations period.” Despite its holding, the Supreme Court pointed out in a footnote that the legislature amended the HCLA in 2011 to modify the definition of “health care liability action” to include “claims against the state or a political subdivision thereof.”

 In the Harper case, the plaintiff’s claim arose after the effective date of the 2011 amendments. Thus, the Court of Appeals was tasked with determining whether the 2011 language change required a different outcome regarding applicability of the 120-day extension. The Court noted that the 2011 language changes “for the first time, expressly brings governmental entities…within the ambit of the HCLA.” Accordingly, the Court held that “the 2011 amendment, now codified at Tenn. Code Ann. § 29-26-101, clearly expresses a legislative intent to extend the statute of limitations in GTLA cases where the plaintiff has met the procedural requirements of the HCLA.”

Because this is the first case addressing this issue under the 2011 amendment language, this is an important case for attorneys to be aware of. While the Tennessee Supreme Court has yet to hold that medical malpractice cases arising under the GTLA are entitled to the 120-day extension, the Harper case is currently the highest authority addressing the question under current legislation.   

I predict that the Tennessee Supreme Court will affirm this decision. 

The "Made-Whole" Doctrine in Tennessee

My law review article, "'Made-Whole" Made Fair:  A Proposal to Modify Subrogation in Tennessee Tort Actions," is among the top ten down loads in its category on the Social Science Research Network.

Here is an abstract of the article:

This Article proposes the adoption of the “Modified Made-Whole Doctrine Proposal." Part I begins by explaining the roots of the law of subrogation rights and its current jurisprudential inconsistencies. It also explores the relationship between such subrogation rights and the made-whole doctrine in the context of Tennessee tort law as well as how this doctrine would be applied in Tennessee today. Part II briefly outlines some of the general questions regarding Tennessee’s current application of the made-whole doctrine, particularly the unresolved issues surrounding the impact of comparative fault on subrogation rights. These are questions which the author’s suggested Proposal is designed to directly address. The detailed framework of this Proposal, including its five fundamental Principles and their underpinning rules, are set forth at length in Part III. Finally, Part IV concludes by analyzing the practical application of this Proposal throughout the various stages of the litigation process and offers guidance to judges, attorneys, and litigants alike as to how such subrogation disputes can be equitably resolved. In sum, the Modified Made-Whole Doctrine Proposal is meant to provide for the efficient, just application of the made-whole doctrine to subrogation interests with respect to Tennessee’s law of comparative fault.

Click on the link above for free access to the article.  The article is published in the inaugural edition of the Belmont Law Review beginning at page 71.

 

 

Tennessee Law of Civil Trial - Book Review

Jason Lee has reviewed my book, Tennessee Law of Civil Trial, on his Tennessee Defense Litigation blog.

Some highlights:

The way I would characterize this book is it is a practical guide to the ins and outs of trial practice.  There are citations to case law throughout the book that can be used to prepare for issues that may come up at trial. 

 I mainly recommend this book to newer attorneys or those who do not have the opportunity to go to trial very often.

I also think this book is appropriate for more experienced attorneys to use in order to remind of important concepts leading up to trial.

Once again, John Day has added another valuable resource for practitioners of law in Tennessee.

Click on the link to order your copy of Tennessee Law of Civil Trial.  A free copy of Chapter 1 (Scheduling Orders) may be down-loaded by clicking on the link.

Thanks for your kind words, Jason.

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