Harmless Error Doctrine Extends to Rule 12.02(6) Motion

The Tennessee Court of Appeals recently released an opinion that provides a compelling insight into the sticky wicket of civil procedure. The facts of the case involve an otherwise pedestrian dispute between homeowners and their contracted buyer on one hand and an HOA on the other.  The ruling, however, ultimately touches on the joinder doctrine and the relation back rule, the harmless error doctrine, the admissibility of evidence at the summary judgment stage, pleading rules, and consideration for contracts to forbear bringing suit.

Civil litigation practitioners should read the entire opinion, paying particular attention to the Court of Appeals’ description of how Tenn. R. Civ. P. 15.03 applies to obviate a statute of limitations defense.  Additionally, readers should note the pronouncement by the court that the harmless error doctrine extends to Tenn. R. Civ. P. 12.02(6) motions to dismiss. This is evidently an issue of first impression in Tennessee law.  The Court of Appeals decreed this new rule as follows:

Nevertheless, we agree that premature dismissal under Rule 12.02(6) is harmless error if, at the time of the trial court’s ruling, (1) there was a pending motion for summary judgment, (2) the non-moving party had a full and fair opportunity to respond, and (3) summary judgment is appropriate as a matter of law.

Tolliver v. Tellico Village Prop. Owners Assoc., No E2018-0090-COA-R3-CV, at p.12 (Tenn. Ct. App. Jan. 7, 2019).

The upshot of this ruling is essentially that, if a trial court errs in granting a Rule 12 motion to dismiss, but a grant of a pending summary judgment motion would have been appropriate, then the dismissal will be upheld under Tennessee’s long-standing “right result/wrong reason” rule.

Given the many issues of civil procedure addressed in this opinion, it will be interesting to see if the parties choose to ask the Tennessee Supreme Court to grant permission to appeal.

Court of Appeals Clarifies Procedure for Petitions to Modify Custody

In Tennessee, an order is generally “final” thirty days after it has been entered.  Where child custody matters are concerned, however, the trial courts retain “exclusive and continuing jurisdiction.”  This has often resulted in confusion with respect to the proper procedure when one parent wants to ask the court to modify custody, because there is a statutory requirement that a parent petition the court to make a change and file with the petition a new proposed parenting plan. If a court is under the impression that it is already exercising continuing jurisdiction, sometimes the formalities of the petition process are overlooked, and this has resulted in confusion among parents and lawyers alike. 

The Court of Appeals’ recent opinion in Freeman v. Freeman should provide some much-needed clarity. The Court in Freeman explains that, once the case is closed after a final order (a concept that has a particular legal meaning), a trial court cannot act unless a parent files a petition to change custody or otherwise makes a motion to alter the judgment. However, if the parent petitioning the court fails to file the proposed parenting plan required by the statute, this does not mean that the court lacks jurisdiction to rule on the parent’s request. 

While this opinion is helpful, it doesn’t clear all questions in the area. For example, it is often difficult even for experienced lawyers to determine whether an order is truly “final,” and it is still unclear whether a Rule 60 motion can be used to bypass the petition process. Further, the lack of a penalty for failure to file a proposed parenting plan could incentivize petitioners to shortcut the process.  The best advice is still to read procedural rules carefully and follow them to the letter. 

“Final” Doesn’t Mean Last When It Comes to Court Orders

In Tennessee, a “final order” is not necessarily the last order that a court enters at the trial level, and that’s an important point to know when considering whether a litigant has a right to appeal.

Generally in Tennessee, parties in civil trial matters are fortunate to have the absolute right to an appeal after the trial court issues its final order. Under Tenn. R. App. P. 4, the entry of the final order sets the  30-day clock running on the time to file an appeal.  Unfortunately, it is not always easy to determine what constitutes a “final order.”

Under Tenn. R. App. P. 3, any order that “adjudicates fewer that all the claims” among all the parties is not a final order.  In common parlance, attorneys refer to this as an order leaving nothing to be done except execute on the judgment. Unfortunately, it is sometimes surprisingly difficult to determine when there is “nothing to be done.” A recent Tennessee Court of Appeals case illustrates this conundrum.

In Brooks v. Woody, a suit filed in 2012 was dismissed via an order signed February 24, 2017 and entered March 9, 2017.  The order reserved the taxing of costs for a later date. In other words, the court waited to decide which parties had to pay court costs. The plaintiff did not file a notice of appeal within 30 days, and the right to appeal was lost. The Tennessee Court of Appeals explained matters this way:

The Tennessee Supreme Court has held that “when consecutive
‘final’ judgments are entered, a subsequent entry of judgment operates as
the final judgment only if the subsequent judgment affects the parties’
substantive rights or obligations settled by the first judgment.”

This is a somewhat roundabout way of saying that assessing court costs doesn’t count as a claim between the parties that has to be decided before the matter is ripe for an appeal. (While the Court didn’t mention it, it is important to note that if one party had to pay the other party’s attorneys fees, that would “count” as a claim that has to be adjudicated before appeal.)

The lesson here is that it can be hard to know what counts as a final order and litigants should be mindful of details. More importantly, when in doubt, they should file the notice of appeal anyway and take advantage of Tenn. R. App. P. 4(d), which provides that if you file a notice of appeal before there is actually a final judgment, it will be deemed to be filed at the right time when a final judgment eventually occurs.

New Rule Brings Electronic Filing to Tennessee Appellate Process

The long-awaited electronic filing process for Tennessee’s state appellate courts has inched one step closer to reality. A transitional rule from the Tennessee Supreme Court which went into effect July 9, 2018 establishes a voluntary filing process until the Court adopts e-filing on a permanent basis.  Here are some highlights of the new system:

  • Tennessee attorneys must first register with the appellate court clerk for access to the system, and registration constitutes consent for e-service of any filed documents.
  • With a few exceptions listed in the Rule, a registered user may e-file any document that would otherwise be filed on paper under the Tennessee Rules of Appellate Procedure, the Rules of the Tennessee Court of Appeals, and the Rules of the Tennessee Court of Criminal Appeals.
  • The courts may elect to distribute orders, opinions, judgments, and other documents through the system.
  • As long as a document is filed by 11:59 pm (in the time zone of the assigned Grand Division), it will be timely filed.
  • Maximum word counts for briefs apply, and formatting requirements (such as font, size, and pagination) will be enforced.

Read more about the new process in Chapter 4 of the Tennessee handbook on appellate practice, published by the Nashville Bar Association and edited by DPBC’s Donald Capparella and Candi Henry.

When Your Civil Suit Intersects with a Criminal Prosecution

A version of this article originally appeared as the Monthly Spotlight Article in the Tennessee Tort Law Letter.  DPBC attorneys Donald Capparella, Tyler Chance Yarbro, and Elizabeth Sitgreaves serve as editors. To learn about subscribing click here.

If you are a tort law practitioner, then it is not unusual to have a criminal case pending alongside a tort case you are handling. This intersection of the areas of law requires careful attention on behalf of the practitioner. read more

Better Late than Never for this Intervenor

The recent Tennessee Court of Appeals case National Public Auction Company, LLC v. Cam Out, Inc . offers helpful analysis of what constitutes “timely application” under Tenn. R. Civ. P. 24.01 to be able to intervene in a pending lawsuit.

Background

This appeal involves a procedural issue that arose following the entry of a judgment. The underlying case involves the sale of vehicle inventory between an auction company and a dealer, and also the sale of a recreational vehicle from that inventory to an individual, William Anthony Hollin. The background of the case is complex, involving claims of breach of contract, misrepresentation, conversion, fraud in the inducement, violations of the Tennessee Consumer Protection Act, and violations of the duty of an auctioneer. There were related replevin and bankruptcy actions, as well as claims filed by secured creditors. read more


  • NEWS ARCHIVES

Dodson Parker Behm and Capparella PC
1310 Sixth Avenue North
Nashville, TN 37208

Ph. 615-254-2291 | Directions

Terms of Use
Copyright Policy


The information found on this website is not intended as legal advice. You should not act on any information contained within the website without consulting legal counsel regarding your particular situation.

We’re proud to call Nashville’s Historic Germantown Neighborhood our home.
You’ll find us here 7:30 am – 5:00 pm weekdays.

Privacy Policy