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.
New Standards for Determining Stock Value for Dissenting Shareholders
The Tennessee Supreme Court has endorsed new methods for determining the value of stock for dissenting shareholders, clarifying that there is no single required approach to determining stock value under Tennessee law.
The case of Athlon Sports, Inc. v. Dugan, concerned minority stockholders who were forced out during a company merger. The stockholders sued for the value of their business interests. The trial court held that Tennessee case law required use of the “Delaware Block” method of valuing stock. Upon reviewing the case, the Tennessee Supreme Court determined that the Delaware Block method, which other jurisdictions have criticized as outdated, is not the only allowable method of valuation and that trial courts may use a variety of methods to establish value.
Read the Court’s press release regarding the case (with links to the unanimous opinion) here.
U.S. Supreme Court Ruling Requires Warrants for Location Information Collected by Cell Phone Carriers
As smart phones have become prevalent in society, questions about how privacy law applies to phone data have become more frequent. Often, apps will make records of very specific geographic locations and gather other information that many people consider to be personal. But that collected data doesn’t stay on the phone; it is sent to the various businesses that provide the apps and through the cell phone companies. Where privacy law is concerned, this means that there have been questions about when police have the right to collect private cell phone data from cell phone carriers. Police have argued that since the information is in the possession of a third party–not the person’s own phone–it should not be considered private. The U.S Supreme Court recently weighed in to provide additional guidance in the area of cell phone privacy law.
The United States Supreme Court recently ruled that a person’s physical location information stored by cellular devices cannot generally be retrieved by police without a warrant. The 5-4 opinion in Carpenter v. United States overturns the opinion from the Sixth Circuit Court of Appeals and establishes that the Fourth Amendment protection from unreasonable searches extends to the data that cell phone carriers collect.
The majority opinion issued by Chief Justice John Roberts is here.
Have you had your “Paycheck Checkup”?
The most recent tax reform laws could have a significant impact on filers who have itemized their deductions in the past. (Many people have historically itemized their deductions to take advantage of mortgage interest deductions and deductions for donations to charity.)
People who’ve itemized deductions on past tax returns should consider doing a “paycheck checkup.” You can use the updated IRS Withholding Calculator to help determine if the right amount of money is being held from your paycheck so that you can minimize surprises at tax time. This is especially important due to tax law changes like:
• A cap on deductions for state and local taxes.
• Limits to the deduction for home mortgage interest in certain cases.
• Elimination of deductions for employee business expenses, tax preparation fees and investment expenses.
You can find out more at IRS.gov/taxreform.
Did you know the IRS is on YouTube? Here are some YouTube videos that discuss some of the tax law changes:
• Paycheck Checkup (ASL)
• Do I Need to Fill Out a New W-4? ( Spanish | ASL )
• IRS Withholding Calculator Tips
Tennessee Survival Statute Still Confuses Practitioners
What do you do when a defendant dies before suit has been filed? The recent Tennessee Court of Appeals opinion in Putnam v. Leach reminds practitioners that the survival statute and the discovery rule are not the same thing.
On February 2, 2015, Julia Putnam was injured in a motor vehicle accident with Bryane Litsinberger. Exactly one year later, Ms. Putnam and her husband filed suit against Mr. Litsinberger, alleging that his negligence caused the accident. On February 26, 2016, the summons was returned to the Putnams’ attorney with a note that Mr. Litsinberger had passed away on January 4, 2016. However, the Putnams claimed that they did not discover this until the following July, when their attorney noticed the note. On October 21, the Putnams petitioned the probate court to appoint an administrator ad litem to receive process for the lawsuit, which was done that day. Several days later, on October 31, the plaintiffs filed an amended complaint naming the administrator ad litem of the estate, John W. Leach, as the defendant. Mr. Leach moved to dismiss, arguing that the Putnams had not commenced the lawsuit within the applicable one-year statute of limitations. The Putnams argued that the statute of limitations did not commence until after they had discovered Mr. Litsinberger’s death. The trial court disagreed, granting the motion to dismiss. The Putnams appealed.
The Court began by addressing the Putnam’s argument that under the discovery rule, the one-year statute of limitations did not begin to run until after the plaintiffs had discovered Mr. Litsinberger’s death. The Court took issue with this claim, noting that the discovery rule exists to help plaintiffs suffering from “latent” injuries by tolling the statute of limitations “until the plaintiff knows, or reasonably should know, enough information concerning his or her injuries.” In this situation, Ms. Putnam was aware of her injuries from the moment they occurred, so the discovery rule was inapplicable and the statute of limitations began running on the day of the accident.
Next, the court turned to the Tennessee survival statute, T.C.A. § 20-5-103, which provides that where a plaintiff has a cause of action against a defendant and the defendant passes away, the plaintiff must name the personal representative of the estate as the defendant. Where, as here, there is no personal representative, the plaintiff must petition the probate court to appoint an administrator ad litem. The statute further provides that when a potential defendant dies, the applicable statute of limitations is tolled for six months. Here, the Court found that the six month tolling period ended on July 4, 2016, giving the plaintiffs until August 2 to meet their deadline. However, the plaintiffs waited until late October to petition for an administrator ad litem, even though they had discovered Mr. Litsinberger’s death in mid-July. Since the plaintiffs failed to file a complaint against the appropriate party – the administrator ad litem—by August 2, the Court found that the suit was time-barred.
Vicarious Liability Issue Decided, Concludes 12 Years of Litigation
The opinion in Beard v. Branson was published over thirteen years after the wrongful death at issue in the case. While this is a long post, it is a fascinating glimpse into the hurdles a layperson can face in navigating the healthcare system. read more
More Guidance from COA on the Scope of Healthcare Liability Claims
Whenever any kind of injury claim arises in a medical setting, or involves a health care provider, expect a motion to dismiss claiming that the case is one governed by the Tennessee Health Care Liability Act. While the parameters of what falls under the restrictive healthcare liability law (or what we still sometimes refer to as medical malpractice cases) seem to have expanded in recent years, a recent Tennessee Court of Appeals opinion provides some guidance on where the line is drawn… read more
Extraordinary Cause Excuses Non-Compliance
Courts are not quick to find that extraordinary cause should excuse compliance with the pre-suit notice requirements in a medical malpractice lawsuit, so lawyers take notice when the appellate courts give guidance on when exceptions will apply.