BERLINDA LANE, AND EDWARD L. MONTEDONICO, AS CHAPTER 7 TRUSTEE FOR THE ESTATE OF BERLINDA LANE v. JACOB L. DANIEL AND DANIEL J. LUND
Court: TN Court of Appeals

Attorneys:

James E. Bailey, III and R. Campbell Hillyer, Memphis, Tennessee, for the appellants, Edward L. Montedonico, as Chapter 7 Trustee for the Estate of Berlinda Lane.

Christopher L. Richardson, Nashville, Tennessee, for the appellee, Daniel J. Lund.

Dawn Davis Carson, Russell B. Jordan, and Hal S. Spragins, Jr., Memphis, Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company.

Judge: STAFFORD

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations. Accordingly, we reverse and remand.

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WALTON CUNNINGHAM ET AL. v. WILLIAMSON CNTY. HOSP. DIST. d/b/a WILLIAMSON MED. CTR. ET AL.
Court: TN Supreme Court

Attorneys:

Bryan Essay and James Charles Sperring, Nashville, Tennessee, for the appellants, Williamson Co. Hospital District d/b/a Williamson Medical Center, Karen Christopher, Charla Atkins, Camela McCullough, and Cary Ralph.

Elizabeth Sara Tipping, Johnathan H. Wardle, and Philip Norman Elbert, Nashville, Tennessee, for the appellees, Walton Cunningham and Phyllis Cunningham.

Arthur P. Brock and William J. Rieder, Chattanooga, Tennessee, for the Amicus Curiae, Chattanooga-Hamilton County Hospital Authority.

Judge: HOLDER

A husband and wife filed a claim against a county hospital alleging that the negligence of the hospital and its employees caused the death of their son. The claim was filed approximately fifteen months after their son’s death in accordance with the provisions of the Tennessee Medical Malpractice Act. See Tenn. Code Ann. § 29-26-121 (2012). The county hospital, a governmental entity, filed a motion to dismiss, arguing that the claim was filed outside the one-year statute of limitations of the Governmental Tort Liability Act (“GTLA”). Tenn. Code Ann. § 29-20-305(b) (2012). The couple responded that their complaint was timely filed because Tennessee Code Annotated section 29-26-121(c) extended the GTLA statute of limitations by 120 days. The trial court denied the hospital’s motion to dismiss but granted an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the Rule 9 application and affirmed the trial court’s denial of the hospital’s motion to dismiss. We granted the hospital permission to appeal. We hold that the 120-day extension provided by Tennessee Code Annotated section 29-26-121(c) does not apply to the plaintiffs’ claim brought under the GTLA. We therefore reverse the judgment of the trial court denying the hospital’s motion to dismiss and remand the case to the trial court for entry of an order dismissing Mr. and Mrs. Cunningham’s complaint.

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IN RE: BRIDGESTONE CORPORATION, ET AL.
Court: TN Court of Appeals

Attorneys:

Steve North, Madison, Tennessee; Richard L. Denney, Lydia JoAnn Barrett, Norman, Oklahoma; Robert L. Langdon, J. Kent Emison, Lexington, Missouri, counsel for the appellants, Nos. 05C-1552 (Torres), 05C-1555 (Rodriguez), 05C-1556 (Santin), 05C-1560 (Hernandez); Douglas S. Johnston, Jr., Nashville, Tennessee, counsel for the appellants, Nos. 05C-1561 (Rivera Ruiz), 05C-1570 (Crispo Valdiva).

Stephen A. Marcum, Huntsville, Tennessee; Gregory G. Garre, Roman Martinez, Washington, DC, for the appellee, Ford Motor Company.

A. Scott Ross, James F. Sanders, Nashville, Tennessee; Marc R. Brousseau, Denver, Colorado; Scott G. Edwards, Dallas, Texas; Craig A. Morgan, Austin, Texas; Warren E. Platt, Phoenix, Arizona, for the appellees, Bridgestone Corporation and Bridgestone/Firestone North American Tire, LLC.

Judge: COTTRELL

This appeal arises out of the second consolidated case to be tried in a number of related cases involving accidents that occurred in Mexico and allegedly were caused by defective tires and/or vehicles. The trial judge denied the plaintiffs’ motion that he recuse himself. The motion was based upon allegations of the appearance of bias or prejudice. Having reviewed the filings in this appeal under the required de novo standard of review, we affirm the trial court’s denial of the motion.
 

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JANE DOE v. KNOX COUNTY BOARD OF EDUCATION ET AL.
Court: TN Court of Appeals

Attorneys:

Andrew C. Clarke, Memphis, Tennessee, for the appellant, Jane Doe.

Susan E. Crabtree and Amy S. Hickerson, Knox County Law Director’s Office, Knoxville, Tennessee, for the appellee, Knox County Board of Education.

This action against David Higgins (“the Instructor”) and his employer, the Knox County Board of Education (“KCBE”), is based upon events that occurred while the plaintiff Jane Doe1 (“the Student”) was a freshman ROTC2 student at West High School in Knoxville. In simple terms, the Instructor allowed the Student and other female ROTC students to drink alcohol to the point of intoxication and, while they were intoxicated, he persuaded them to expose their breasts. The Student reported the episodes to the school and her parents when the Instructor’s demands escalated to the point that he repeatedly encouraged the Student to allow him to film her and others in a sexual “threesome.” The case went to trial. The claims against the Instructor were tried to a jury. The claims against KCBE pursuant to the Governmental Tort Liability Act (“the GTLA”) were heard simultaneously by the trial court. The jury awarded the Student damages against the Instructor in the amount of $65,000 for negligent infliction of emotional distress. It rejected the claim of intentional infliction of emotional distress. The portion of the court’s judgment pertaining to the claims against the Instructor is not at issue in this appeal. The trial court determined that KCBE was not liable for the Instructor’s actions because the court concluded he was acting outside the scope of his employment. The court further determined that there was no negligence upon which liability as to KCBE could be imposed. After the judgment was entered, the Student learned that the trial judge’s wife was a retired employee of KCBE. On that basis, the Student moved the court to recuse itself and award her a new trial. The court denied the Student’s post-trial motion. The Student appeals only as to the claims against KCBE. We affirm.

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NORTHLAND INSURANCE COMPANY v. MICHAEL BURTON AND DONALD BURTON d/b/a BURTON BROTHERS TRUCKING
Court: TN Court of Appeals

Attorneys:

B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Michael Burton and Donald Burton d/b/a Burton Brothers Trucking.

Samuel A. Baron, Nashville, Tennessee, for the appellee, Northland Insurance Company.

Judge: COTTRELL

Insurance Company provided Trucking Company with a general liability insurance policy that included the MCS-90 endorsement required by the Motor Carrier Act of 1980. A woman who was a passenger in the insured’s tractor made a claim against Insurance Company for injuries she sustained after the tractor turned over. Insurance Company paid the woman’s claim even though she had not filed a complaint or obtained a judgment against Trucking Company/Insured. Insurance Company then filed a complaint against Trucking Company seeking reimbursement for the amount it paid out. Trial court awarded Insurance Company reimbursement. We reverse because no judgment had been obtained against Trucking Company when Insurance Company paid the woman’s claim. The MCS-90 endorsement is not triggered unless an injured member of the public recovers a final judgment against a motor carrier/insured. Therefore, Insurance Company had no right of reimbursement.

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HARDEMAN COUNTY v. JUDY I. MCINTYRE, ET AL.
Court: TN Court of Appeals

Attorneys:

James I. Pentecost and Melissa K. Van Pelt, Jackson, Tennessee, for the appellants, Hardeman County, Tennessee and Hardeman County Emergency Medical Services.

David A. Stowers and Stephen L. Hale, Bolivar, Tennessee, for the appellees, Judy McIntyre and Billy McIntyre.

Jay G. Bush, Jackson, Tennessee, for the appellee, Judy I. McIntyre.

Judge: STAFFORD

This case concerns the liability for a collision involving a vehicle operated by one of the appellees and an ambulance operated by the appellant county. After a bench trial, the trial court awarded damages to appellee driver against the appellant. After a thorough review of the record, we reverse and remand.

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FRANCES G. RODGERS, ET AL. v. JOHN ADAM NOLL, III
Court: TN Court of Appeals

Attorneys:

Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, and M. Sue White, Seymour, Tennessee, for the appellant, Frances G. Rodgers, as next friend of minors Julia Amber Noll and Joshua Aidan Noll.

Brian H. Trammell and Amy V. Peters, Knoxville, Tennessee, for the appellee, John Adam Noll, III.

Judge: SWINEY

Frances G. Rodgers, as next friend of minors Julia Amber Noll and Joshua Aidan Noll (“Plaintiff”) sued John Adam Noll (“Defendant”) for the alleged wrongful death of their mother, Lori Bible Noll (“Deceased”). During discovery, Defendant filed multiple motions alleging discovery violations. After a hearing the Trial Court entered its order on April 25, 2012, which, among other things, imposed sanctions for certain discovery violations and then dismissed Plaintiff’s case due to discovery violations. Plaintiff appeals to this Court. We find and hold that dismissal was too severe a sanction for the discovery violations found. We reverse the dismissal; remand to the Trial Court for a more appropriate award of sanctions; and affirm the remaining specific sanctions awarded by the Trial Court and the remainder of the Trial Court’s April 25, 2012 order.

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DAVEY MANN and wife, TERESA MANN v. ALPHA TAU OMEGA FRATERNITY, Inc., a non-profit organization, ET AL.
Court: TN Court of Appeals

Attorneys:

Gary K. Smith, J. Mark Benfield, Memphis, Tennessee, for the appellants, Davey Mann and wife, Teresa Mann

G. Coble Caperton, Mary L. Wagner, Memphis, Tennessee, for the appellee, Alpha Tau Omega Fraternity, Inc.

Judge: HIGHERS

Plaintiffs sued the defendant national fraternity, among others, following an automobile accident with an apparent fraternity pledge. The trial court granted summary judgment to the national fraternity finding that it owed no duty of care to Plaintiffs, and it denied Plaintiffs’ motion to amend to allege the national fraternity’s vicarious liability based upon a principal/agent relationship between the national fraternity and the local fraternity chapter and/or between the national fraternity and local fraternity chapter members/prospective members. For the following reasons, we reverse the trial court’s grant of summary judgment to the national fraternity as well as its denial of Plaintiffs’ motion to amend, and we remand for further proceedings consistent with this opinion.

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PEGGY DOBBINS, AS CONSERVATOR OF THE ESTATE OF FRANK BAILEY, JR. V. GERALD S. GREEN, ET AL.
Court: TN Court of Appeals

Attorneys:

Gerald S. Green, Memphis, Tennessee, Pro Se.

Julian T. Bolton and JoeDae L. Jenkins, Memphis, Tennessee, for the appellee, Peggy Dobbins.

Jay A. Ebelhar and Nolan Johnson, Memphis, Tennessee, for the appellee, CitiFinancial Services, Inc.

Douglas A. Black, Memphis, Tennessee, for the appellees, Regions Bank and Regions Financial Corporations.

James R. Newson, III, Memphis, Tennessee, for the appellees, Springleaf Financial Services, Inc. f/k/a American General Financial Services, Inc.

Michael G. McLaren and Courtney C. McLaren, Memphis, Tennessee, for the appellee, Fidelity & Deposit Company of Maryland.

Judge: STAFFORD

This is a Tennessee Rule of Civil Procedure 25.01 case. Following plaintiff’s death and the filing of a suggestion of death in the trial court, no motion to substitute party was made within the ninety day time period set out in Rule 25.01. The trial court determined that the failure to file a motion for substitution of party was not the result of excusable neglect and granted the Rule 25.01 motion to dismiss the lawsuit. The court subsequently also granted the plaintiff’s motion for voluntary dismissal under Tennessee Rule of Civil Procedure 41.01. We conclude that, in the absence of excusable neglect, failure to comply with Rule 25.01 requires mandatory dismissal of the case with prejudice and the lawsuit may not thereafter be revived by the filing of a motion for voluntary dismissal. Reversed and remanded.

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HILL BOREN, P.C. v. PATY, RYMER and ULIN, P.C. and JAMES ERIC HAMM
Court: TN Court of Appeals

Attorneys:

R. Sadler Bailey, Memphis, Tennessee, for the appellant, Hill Boren, P.C.

Selma Cash Paty, Chattanooga, Tennessee, for the appellee, Paty, Rymer & Ulin, P.C.

John W. Chandler, Jr., Chattanooga, TN, for the appellee, James Eric Hamm.

Judge: HIGHERS

This appeal involves a dispute over an attorney’s fee involving two law firms and their client. The parties originally entered into a contract whereby both law firms would jointly represent the client as a plaintiff in a personal injury suit. Two years later, the client discharged one of the law firms. The other firm continued to represent the client, and when the case settled over a year later, the remaining firm retained the entire contingency fee. The discharged firm sued the client and the other firm, alleging that it was entitled to a share of the contingency fee and asserting numerous causes of action. The defendants claimed that the discharged firm was limited to quantum meruit. The trial court granted summary judgment to the defendants on all claims. The plaintiff law firm appeals. We affirm.

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