JAMES MICHAEL ADLER et al.
CITY OF JOHNSON CITY et al.
Session October 30, 2014.
Appeal from the Circuit Court for Washington County No. 23764 Walter C. Kurtz, Senior Judge
James Michael Adler and Kim Kidner Adler filed this action against Johnson City and Purofirst of Tri-Cities, LLC, alleging damage from sewage that backed up and entered their basement. Later, they filed another complaint alleging that their attorneys in the sewage case were guilty of malpractice. In the sewage case, the trial court dismissed the defendant Purofirst with prejudice as a sanction for the Adlers' repeated failure to comply with the court's discovery orders. The Adlers did not attempt to amend their malpractice complaint to include a claim based on Purofirst's dismissal until almost six years after the dismissal of Purofirst. Their motion to amend was filed on July 2, 2012, in violation of the trial court's scheduling order, which provided that “[n]o amendments shall be allowed after May 15, 2012.” The trial court denied the Adlers' motion to amend. The trial court also refused to allow the Adlers to bring Purofirst back into the sewage litigation. It did so despite the fact that another defendant had recently alleged the comparative fault of Purofirst. This latter action of the trial court was taken in an order entered pursuant to Tenn. R. Civ. P. 54.02. We hold that the Adlers did not timely appeal this order. We further hold that the trial court did not abuse its discretion in denying the Adlers' motion to amend their malpractice action. The trial court's judgment is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded
Jeffrey A. Cobble, Greeneville, Tennessee, for the appellants, James Michael Adler and Kim Kidner Adler.
K. Erickson Herrin, Johnson City, Tennessee, for the appellee, City of Johnson City.
Suzanne S. Cook, Johnson City, Tennessee, for the appellee, Rick Leslie dba ABC Plumbing.
Gregory S. McMillan and Preston A. Hawkins, Knoxville, Tennessee, for the appellee, Purofirst of Tri-Cities, LLC.
William T. Wray, Jr., Kingsport, Tennessee, for the appellee, T. Martin Browder, Jr.
R. Wayne Culbertson, Kingsport, Tennessee, for the appellee, George Todd East.
Charles D. SuSANO, Jr., C.J., delivered the opinion of the court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.
CHARLES D. SUSANO, JR., CHIEF JUDGE.
In September of 2003, sewage backed up into the basement of the Adlers' house, causing property damage and contamination. On August 27, 2004, the Adlers, represented by attorneys George Todd East and T. Martin Browder, Jr., filed their complaint, alleging that Johnson City was responsible for the back-up. The Adlers further alleged that they hired defendant Purofirst to clean up the sewage mess, and that, "in the process of performing its work, Purofirst negligently caused additional damage[ ] by operating the central heating and air conditioning system which resulted in further contamination of the entire home."
On April 27, 2005, Johnson City filed a motion to dismiss the complaint based on two grounds, (1) failure to validly serve process upon it and (2) the statute of limitations. One day earlier, on August 26, 2005, the Adlers filed a separate legal malpractice action against East and Browder ("the attorney defendants"), alleging that neither attorney took "any official action" on their sewage contamination case for a period of eight months, and that both attorneys failed to communicate with Michael Adler during this eight-month period despite his numerous attempts to reach them. The Adlers were represented by Jeffrey A. Cobble in the malpractice action. In that action, it was alleged that the amount of damages "is not fully known at this time, but it is sure to be extensive, in that the initial [sewage contamination] case may be dismissed due to the negligence of" the defendant attorneys.
On January 11, 2006, the trial court denied Johnson City's motion to dismiss. In an unusual twist, attorney Browder, who had been sued by the Adlers for legal malpractice, continued, with the Adlers' consent, to represent them in the sewage contamination case. On February 13, 2006, Purofirst filed its first motion to compel discovery. The next day, the trial court entered an order requiring the Adlers to respond within twenty days to Purofirst's interrogatories and requests for production of documents. On May 30, 2006, the trial court granted Purofirst's second motion to compel discovery, again giving the Adlers twenty days to answer. On July 18, 2006, Purofirst filed a motion to dismiss the complaint as to it, based on the Adlers' repeated failure to comply with the trial court's discovery orders. On July 25, 2006, the trial court entered an order dismissing Purofirst with prejudice. On August 28, 2006, the Adlers filed a motion to set aside or vacate the order dismissing their suit against Purofirst. On January 28, 2008, the trial court entered an order denying the motion to set aside.
Johnson City filed an answer on December 10, 2008, alleging, among other things, the comparative fault of ABC Plumbing, a company allegedly hired by the Adlers. The Adlers then filed a motion to amend their complaint to add Rick Leslie dba ABC Plumbing as a defendant, which motion the trial court granted. On February 27, 2009, Leslie filed an answer, alleging, among other things, the comparative fault of Purofirst. The Adlers responded on May 18, 2009, by filing a motion to amend their complaint to add Purofirst as a defendant pursuant to Tenn. Code Ann. § 20-1-119 (2009). Purofirst filed a motion to dismiss. On August 17, 2010, the trial court granted the Purofirst motion, finding that "the previous dismissal of Purofirst . . . was with prejudice and therefore on the merits under Rules 37 and 41 of the Tennessee Rules of Civil Procedure." The trial court held that Purofirst "shall be placed on the jury verdict form as a comparatively at fault tortfeasor against whom the jury may assess fault." The Court, however, further held that no damages could be awarded against non-party Purofirst. The trial court's order provides that "[t]his Order shall be final pursuant to T.R.C.P. 54.02 as to Purofirst of Tri Cities, LLC, [and] the Court expressly directs entry of this Order as final, there being no just reason for delay." The Adlers did not appeal this latter judgment until they filed their notice of appeal in this case on May 31, 2013, more than two years after the Rule 54.02 order was entered.
On February 1, 2012, the Adlers moved to consolidate the sewage contamination and attorney malpractice cases. The trial court granted the motion. On March 26, 2012, the trial court entered a scheduling order providing that "[a]ny motion to amend pleadings shall be filed by May 15, 2012, and responses to any such motion shall be filed by May 22, 2012 . . . No amendments shall be allowed after May 15, 2012." On June 4, 2012, attorneys East and Browder each filed a motion for summary judgment in the attorney malpractice case. On July 2, 2012, the Adlers filed a motion to amend their malpractice complaint "to add a claim for damages against each attorney-defendant due to the effects of the dismissal of Purofirst from the initial sewage contamination case." The trial court denied the motion as untimely under its scheduling order and barred by the statute of limitations. The trial court granted the attorney defendants summary judgment in an order entered July 23, 2012.
The jury trial of the sewage contamination case took place on March 4 through 7, 2013. The jury found that the Adlers incurred $65, 000 in damages from the sewage contamination. Regarding the comparative fault of the defendants and Purofirst, the jury assessed Johnson City 88% at fault, Purofirst 12% at fault, and zero fault on the part of the plumber Rick Leslie. The trial court entered judgment in accordance with the jury verdict. As previously noted, the Adlers filed a notice of appeal on May 31, 2013.
As can be seen from the above, the procedural history of this case is long and convoluted. The Adlers seek to raise three issues. One of these issues – the one pertaining to the trial court's decision denying the Adlers' attempt to bring Purofirst back into the litigation – must first overcome the finality concept embedded in Tenn. R. Civ. P. 54.02. Therefore, that issue is properly stated as follows:
Can the Adlers now appeal the trial court's order of August 17, 2010, denying their attempt to bring Purofirst back into this litigation, which order was entered pursuant to the provisions of Tenn. R. Civ. P. 54.02 and which order was not appealed within thirty days of its entry?
As to the other issues pertaining to the grant of summary judgment to the attorney defendants, the ...