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Smith v. Shelby County

Court of Appeals of Tennessee, Jackson

May 28, 2015

PHYLLIS SMITH
v.
SHELBY COUNTY

Session March 10, 2015.

Appeal from the Circuit Court for Shelby County No. CT00122112 John R. McCarroll, Jr., Judge.

Kenneth M. Margolis and Jada L. Brisentine, Memphis, Tennessee, for the appellant.

Walter L. Evans, II, and John B. Turner, Jr., Memphis, Tennessee, for the appellee.

Arnold B. Goldin, J., delivered the opinion of the Court, in which Brandon O. Gibson, J., and Kenny Armstrong, J., joined.

OPINION

ARNOLD B. GOLDIN, JUDGE.

Ms. Smith commenced this lawsuit on March 16, 2012, by filing a complaint against the County in the Shelby County Circuit Court. The complaint alleged that Ms. Smith had been injured as a result of the County's negligence due to a slip and fall incident while working at the Shelby County Correctional Center on June 13, 2011. On June 5, 2012, the County filed an answer to the complaint and asserted various defenses. Although trial was initially scheduled to occur in January 2013, this setting was continued.

On February 1, 2013, Correct Care Solutions, LLC ("Correct Care"), and Commerce and Industry Insurance Company ("Industry Insurance"; collectively "the Intervening Plaintiffs") filed a motion to intervene in the case. In their motion, the Intervening Plaintiffs asserted that they had paid Ms. Smith benefits on behalf of her employer pursuant to the Tennessee Workers' Compensation Act. They sought to intervene in Ms. Smith's lawsuit "in order to protect [their] statutory subrogation rights and subrogated interests[.]" On February 8, 2013, the Circuit Court entered an order granting the motion to intervene, and on the same date, an intervening complaint was filed. Following the Intervening Plaintiffs' involvement in the case, trial dates were set and reset on a number of occasions.

On June 17, 2014, the Circuit Court entered a consent order allowing counsel for the Intervening Plaintiffs to withdraw. Specifically, the order stated as follows:

Kyle I. Cannon, Esq., and the Law Firm of Glassman, Wyatt, Tuttle & Cox, P.C., are hereby withdrawn as counsel of record for the Intervening Plaintiffs, CORRECT CARE SOLUTIONS, LLC, and COMMERCE AND INDUSTRY INSURANCE COMPANY, terminating their representation of said entities in this cause, and thereby relieving said Counsel of any and all bond and/or surety as well as any continued duties relating to said representation.

We observe that the Intervening Plaintiffs remained parties in the case notwithstanding the withdrawal of their counsel. Moreover, there is no indication in the record that their complaint was ever dismissed.

Subsequent to the withdrawal of the Intervening Plaintiffs' counsel, near the end of June 2014, the Circuit Court conducted a three-day bench trial. Having reviewed the transcripts of the trial proceedings filed in the record, we observe that the Intervening Plaintiffs did not participate at trial as they were not represented. Although counsel for Ms. Smith and the County were present, no counsel made an appearance on behalf of Correct Care or Industry Insurance.

On July 29, 2014, the Circuit Court entered its "Judgment Order on Bench Trial." Although the order found "no comparative fault on the part of [Ms. Smith], " it ultimately concluded that "a judgment for the [County] is appropriate." By incorporating findings of fact and conclusions of law that it made in a previous oral ruling from the bench at the conclusion of trial, the Circuit Court found that the County retained governmental immunity under the Tennessee Governmental Tort Liability Act. The order was approved as to form by counsel for Ms. Smith and the County. On August 13, 2014, Ms. Smith filed a notice of appeal.

Oral arguments concerning the appeal were heard in March 2015. Upon our review of the record following oral argument, however, we observed that the judgment appealed from was not compliant with Tennessee Rule of Civil Procedure 58. ...


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