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Morgan v. Superior Catering Services

Court of Appeals of Tennessee, Knoxville

April 7, 2015

MICHAEL MORGAN
v.
SUPERIOR CATERING SERVICES, ET AL.

Session Date October 29, 2014

Appeal from the Chancery Court for Hamilton County No. 08-0730 W. Frank Brown, Chancellor

Charles G. Taylor, Knoxville, Tennessee, for the appellants, Superior Catering Services, Connelly Dean Cofer, Lynda Cofer, and Dean's Coffee Service.

Harry F. Burnette and Donna J. Mikel, Chattanooga, Tennessee, for the appellee, Michael Morgan.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

This age discrimination action initially was filed in September 2008 by the plaintiff, Michael Morgan ("Morgan") against Superior Catering Services ("Superior").[1]At the time of the alleged discrimination in 2007, Superior existed as a proprietorship owned by Connelly Dean Cofer ("Dean") and his father-in-law. The business is not incorporated and operates out of an office in Chattanooga. At the same location, another proprietorship, owned by Dean and called "Dean's Coffee Service" ("DCS"), [2] is operated.[3] During the relevant period, Dean's wife, Lynda Cofer ("Lynda"), was an employee or agent of Superior and did not own any interest in the businesses.

In his complaint, Morgan, then age 60, alleged that he applied for a salaried position with Superior as a "route driver" on an established route. He contends he was encouraged instead to establish a new route as an independent contractor. The salaried route driver position was given to a younger employee. According to Morgan, when he interviewed at Superior, Dean informed him that the company would not hire route drivers over 45 years old, despite the applicant's years of relevant experience. Morgan asserts this statement constitutes direct evidence of age discrimination. No allegations were raised regarding Lynda.

After being served with the complaint, Dean hired attorney James D. Purple to defend Superior. Edward A. Love was their personal attorney, but Dean and Lynda believed Mr. Purple would be a better "business attorney" to represent Superior in the age discrimination case. On October 24, 2008, on behalf of Superior, Mr. Purple filed an answer to Morgan's complaint.

In November 2009, 14 months after Morgan's complaint was filed, it is alleged that Dean received a shotgun blast to the face during an attempted robbery.[4] Lynda later related that as a result of the incident, Dean suffered a stroke, loss of memory, loss of most of his eyesight, and loss of use of his right hand. He was in the hospital for five months and had to learn to walk and talk again. After the shooting, Dean was unable to return to work, could no longer drive an automobile, and was considered disabled. As a result of her husband's injuries and disability, along with her father's death, Lynda took over management of the businesses.

Approximately two years later, in September 2011, discovery depositions were scheduled in Morgan's lawsuit. It appears that because of his injuries, Dean had little memory of the events surrounding Morgan's claim. It therefore was stipulated that Dean was unable to testify. Since Lynda was not a defendant in the litigation, she was deposed as a witness.

At the deposition, Lynda related that she was the individual who decided not to hire Morgan. She testified as follows:

Q . . . [W]ere you the one that made the choice not to hire him?
A Yes.
Q And why did you not hire him?
A I did not hire him because I didn't think he was ambitious and I didn't think he would do a good job.
Q Okay. And upon what basis did you conclude that he was not ambitious?
A Because when he delivered to me from Hostess Cakes, he made several comments about trying to get out of work and filling in and not running a route, that it was easier than getting out there and running a route. I remembered that. I still remember it today.
Q Okay. What do you recall that he said?
A About trying to get out of work?
Q About whatever it is that you say you recall.
A I remember him telling me that he was just there filling in for somebody and he would rather do that than get out and run a route. It was easier. He can do as he pleases. . . .

Lynda signed the discovery responses "Lynda Cofer, Manager, Superior Catering Services."

Following that deposition, Dean and Lynda assert they heard nothing from Mr. Purple for almost two years. Due to the passage of time, they erroneously assumed that the lawsuit against Superior had been dismissed. Unbeknownst to the Cofers, the litigation was continuing without their knowledge, with the matter scheduled for trial in January 2013.

Morgan eventually filed two motions in limine. Relying on Lynda's deposition testimony, he argued that because of Dean's "severe health impairments, " Mr. Cofer should not be allowed to testify at trial. It further was asserted by Morgan that the jury should not be allowed to hear the reason for Dean's impairment or the details of the "robbery . . . and the injuries resulting therefrom." No objection to these motions in limine was filed by Mr. Purple, and he never informed his client, Superior, or the Cofers about them. The motions were granted by the trial court.

In January 2013, Morgan moved to amend his complaint, asking the court to allow him to add Dean and Lynda personally as additional defendants to the lawsuit, together with Dean's Coffee Service. Despite the fact that the one-year statute of limitations for age discrimination had expired, Mr. Purple did not object to the amended complaint, and the court allowed Dean, Lynda, and DCS ("the New Defendants") to be added. The court directed that the "Defendant [sic] shall be served with the Amended Complaint after this Order is entered."

Morgan thereafter attempted to serve the New Defendants by delivering summonses on May 6, 2013, to Superior's attorney, "Jim Purple Esq." at his office. Nowhere on the summonses served was there any notation that Mr. Purple was the agent or attorney for the New Defendants, or that he had authority to accept service of process for them. None of the New Defendants were ever notified that the litigation was still active and that they had been added as parties. Dean[5] and Lynda were never served personally with process.

Mr. Purple initially did not answer the amended complaint, and Morgan's counsel filed a motion for default, alleging that the May 6, 2013 service on Mr. Purple was valid service on the New Defendants. Thereafter, two months later, Mr. Purple filed an answer to the amended complaint on behalf of Superior and also on behalf of the New Defendants. No objection was raised to the improper service on the New Defendants. Mr. Purple again did not advise the New Defendants that they had been named parties in the litigation, and he did not tell them that he was filing an answer on their behalf.

At a pretrial conference, despite the fact that Lynda was not an owner of the businesses at the time of the alleged discrimination, Mr. Purple also agreed without objection to a jury instruction that charged the jury as follows:

There are four Defendants in this case. Two are businesses and two are business owners. For purposes of this lawsuit, the four Defendants are to be treated as one. If you find that one of the Defendants is liable, then all of the Defendants are liable.

In the subsequent pretrial order, the trial court directed the parties to mediate on the afternoon before the scheduled trial date of July 23, 2013. Thereafter, just four days before trial, Mr. Purple spoke with Lynda for the first time in almost two years and she learned that the lawsuit was still pending. At a meeting in Mr. Purple's office on Sunday evening, July 21, 2013, Lynda was told to attend the mediation scheduled for the next day and to appear for trial the following day if the mediation was not successful. It was at this time she learned that she and her husband, together with DCS, had been added as additional defendants to the litigation without their knowledge or consent. Mr. Purple further informed her that because Dean had been found to be incompetent, her husband could not attend the trial.

Understandably, Lynda left the meeting extremely upset. Following her attendance at the unsuccessful mediation, Lynda and Dean called their personal attorney, Mr. Love, to request his help. According to the attorney, Dean was crying and begging for Mr. Love to appear in court with them the following morning to get the case postponed. Mr. Love agreed to appear with the New Defendants and explain their situation to the court. No transcript is available for the pretrial meeting because Mr. Purple neglected to hire a court reporter.[6] However, according to Mr. Love, he advised the trial court of Dean's incompetency and asked that a guardian ad litem be appointed to protect Mr. Cofer's interests. He also requested the court allow a continuance.

The court denied Mr. Love's motions and the trial began as scheduled. Mr. Purple continued to serve as the attorney for Superior and represented the New Defendants in a de facto capacity, as the added defendants were forced to proceed without their own attorney.

Despite asserting that Mr. Cofer was not competent to testify, Morgan related the alleged hearsay statements made by Dean to the jury. Dean, meanwhile, was denied the opportunity to come into court to refute the statements. No objection was raised to the improper hearsay testimony by Mr. Purple.

Additionally, Morgan moved to exclude defense witness Larry Fisher because Mr. Purple had not filed either a witness list or an exhibit list as required by the scheduling order. Morgan's motion was granted in part, with the trial court ruling as follows:

THE COURT: Well, let me make several comments. One this is a terrible position to be in as a trial judge. Second, the local rules require that all witnesses, their names, addresses, et cetera, et cetera, be listed and that Witness List be filed ten business days before trial. Morgan's did this back in January. The Defendant has not done that. . . . Therefore, I think the most equitable thing is to allow Mr. Fisher to testify but he is ...

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