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Turner ex rel. Turner v. Howe

Court of Appeals of Tennessee, Nashville

December 20, 2016

HANNAH TURNER EX REL. LIAM TURNER
v.
CHARLES MICHAEL HOWE, ET AL.

          Session Date: October 11, 2016

         Appeal from the Circuit Court for Marion County No. 20928 Justin C. Angel, Judge

         This appeal involves in personam jurisdiction over the Appellees, Georgia and Alabama corporations. The trial court granted Appellees' Tennessee Rule of Civil Procedure 12.02(2) motions to dismiss for lack of personal jurisdiction. Appellants appeal. Discerning no error, we affirm and remand.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

         Affirmed and Remanded

          Marvin Bernard Berke, Jeremy Matthew Cothern, and A. Emma Flynn, Chattanooga, Tennessee, for the appellants, Hannah Turner and Liam Turner.

          James Frederick Exum, III, Franklin Pearson Clark, Mary C. DeCamp, and Thomas A. Williams, Chattanooga, Tennessee, for the appellee, North Jackson Pharmacy; Alaric A. Henry and Thomas Mitchell Horne, Chattanooga, Tennessee, for the appellee, Ponder Pharmacy.

          Kenny Armstrong, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         On May 27, 2015, Hannah Turner, individually, and as next friend and mother of the minor child, Liam Turner (together, "Appellants"), filed suit against Charles Howe, M.D., SP Acquisition Corporation d/b/a Grandview Medical Center ("Grandview"), PHL, Inc. d/b/a The Drug Store ("PHL, " and together with Dr. Howe and Grandview, the "Tennessee Defendants"), Ponder Pharmacy ("Ponder"), and North Jackson Pharmacy, ("NJP, " and together with Ponder, "Appellees"). Ponder is a Georgia Corporation; NJP is an Alabama Corporation. The amended complaint alleged that the Tennessee Defendants and the Appellees had engaged in a civil conspiracy to overprescribe addictive pain medications to Ms. Turner both before and during her pregnancy with Liam. Appellants asserted causes of action for civil conspiracy, healthcare liability, and negligence.

         Concerning the Tennessee Defendants, on April 11, 2016, the trial court entered an order purporting to be a final order as to these parties. However, on review of the record, this Court determined that, although the trial court certified the April 11, 2016 order as a final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, the order was improvidently certified as final. Accordingly, on October 31, 2016, this Court entered an order dismissing the appeal as to the Tennessee Defendants. Specifically, our order states that

the trial court's order of April 11, 2016 only disposed of the Plaintiffs'/Appellants' conspiracy claim and did not adjudicate any other claims, as set forth in the Amended Complaint filed in the trial court on May 27, 2015. Thus, the order appealed as to Defendants/Appellees Charles Michael Howe, M.D., S.P. Acquisition Corp. d/b/a Grandview Medical Center, and PHL, Inc. d/b/a The Drug Store, is not a final judgment, and the appeal as to those parties is hereby DISMISSED.

         Having dismissed Appellants' appeal as to the Tennessee Defendants, this opinion will address only those issues relating to Ponder and NJP, the sole remaining Appellees in this appeal.

         On or about July 10, 2015, by special appearance, Ponder filed a Tennessee Rule of Civil Procedure 12.02 motion to dismiss the amended complaint. As grounds for its motion, Ponder alleged that the trial court lacked personal jurisdiction and that Appellants had failed to state a claim. On August 5, 2015, NJP filed a Tennessee Rule of Civil Procedure 12.02 motion to dismiss, which incorporated Ponder's memorandum filed in support of its Rule 12.02 motion, alleging lack of personal jurisdiction. However, unlike Ponder's motion to dismiss, NJP's motion did not specify that it was making a special appearance.

         The trial court heard the Appellees' motions to dismiss on October 5, 2016. At the close of proof, the trial court orally granted Appellees' respective motions to dismiss based on a lack of in personam jurisdiction. On November 5, 2015, Appellants filed an objection to the orders submitted by Ponder and NJP regarding the trial court's grant of their respective motions to dismiss, along with Appellants' own proposed order. On November 16, 2015, Ponder filed an objection to Appellants' proposed order. The trial court erroneously signed and entered all of the proposed orders. In response to the entry of the three competing orders, on December 7, 2015, Appellants filed a "Tennessee Rules of Civil Procedure 59 and 60 Motion to Alter or Amend, " wherein they stated, in relevant part, that:

1. Plaintiffs and Defendant [N]P] filed competing orders regarding [N]P's] motion to dismiss.
2. This Court entered Plaintiffs' Order on November 19, 2015 and this Order covered both [N]P] and . . . [Ponder's] motions to dismiss. [This order was filed on November 23, 2015, see supra]
***
4. There was a clerical error in that [Ponder's] competing order was also signed.
5. On November 24, 2015, at a hearing to resolve the competing orders issue, this court held orally that Plaintiffs' order was to constitute the order of this Court.
***
12. Plaintiffs, therefore, request for this court to establish the controlling order of this Court by adopting the order submitted by Plaintiffs as the controlling order.

         On December 18, 2015, NJP filed a response to Appellants' motion to alter or amend, asking the trial court to adopt its order as the final order of the court. Following a hearing on November 24, 2015, the trial court entered an order on December 29, 2015, wherein it stated, in relevant part, that:

[M]ultiple orders were inadvertently signed and entered with the orders granting [Ponder] and [N]P's] motions to dismiss. This Court, upon a review of the file as a whole, including the herein identified orders, and argument of counsel, finds that Plaintiffs' submitted order granting Defendants' Motions to Dismiss shall constitute the Order of this Court and the Defendants' submitted Orders must be stricken.

         "Plaintiffs' submitted order" is the "Order Granting Defendants Ponder Pharmacy and North Jackson Pharmacy's Tennessee Rule of Civil Procedure 12 Motions to Dismiss, " which was entered on November 23, 2015. This order incorporates, by reference, "pages 52 through 56 of the transcript." In these ...


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