STEVEN SANTORE, et al.
KARLOSS STEVENSON, et al.
Session November 14, 2017
from the Circuit Court for Shelby County No. CT-002966-14
Robert L. Childers, Judge
issue in this personal injury action is whether the trial
court erred by striking the defendant's affirmative
defense that an unknown "John Doe" driver of an
Averitt Express truck was comparatively at fault for the
plaintiff's injuries. Relying on Brown v. Wal-Mart
Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn.
Code Ann. § 20-1-119, the trial court struck the
affirmative defense as to John Doe and Averitt Express upon
the finding that the defendant failed to sufficiently
identify John Doe so that the plaintiff may serve process on
John Doe. We have determined the trial court's
discretionary decision to strike the affirmative defense of
comparative fault as to John Doe and Averitt Express was
premature because the defendant was not afforded a reasonable
opportunity to engage in pre-trial discovery to endeavor as
to the identity of John Doe in sufficient detail for the
plaintiff to serve process on John Doe. Therefore, we reverse
and remand for further proceedings consistent with this
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded
I. Houseal, Jr. and Brandon D. Pettes, Memphis, Tennessee,
for the appellants, Cordova Concrete, Inc. and Karloss
N. Geller and Glenn K. Vines, Memphis, Tennessee, for the
appellees, Steven Santore and Stephanie Santore.
W. Zummach, Southaven, Mississippi, for the appellee, Averitt
G. Clement Jr., P.J., M.S. delivered the opinion of the
Court, in which J. Steven Stafford, P.J., W.S and Arnold B.
Goldin, J., joined.
G. CLEMENT JR., P.J., M.S.
November 7, 2013, Steven Santore was injured at a Love's
Travel Stop in Memphis, Tennessee as he was walking through
the fuel aisles on his way to the convenience store located
at the travel stop. On July 8, 2014, Mr. Santore and his wife
Mrs. Stephanie Santore ("Plaintiffs") filed suit
against Cordova Concrete, Inc. and its employee, Karloss
Stevenson, (collectively "CCI"), alleging Mr.
Stevenson struck Mr. Santore while driving a CCI truck. CCI
timely filed an answer in which it did not allege that a
non-party was comparatively at fault.
point, not identified in the record, CCI learned of a 911
call that was made from the scene at the time of the
accident. Thereafter, CCI issued a subpoena duces
tecum to the City of Memphis to obtain the 911
recording. After a period of time passed, counsel for CCI
realized that the city would not respond to a subpoena but it
would respond to a public records request. As a result, on
May 18, 2016, CCI made a public records request to the City
of Memphis to obtain the 911 call records. On June 1, 2016,
CCI obtained the records requested which consisted of an
audio file of the 911 call and a Background Event Chronology.
recording did not reveal the identity of the caller or the
identity of the vehicle that struck Mr. Santore. The
Background Event Chronology identified, among other things,
the time the call was made to the dispatcher, when emergency
personnel were dispatched to the scene, and the phone number
of the 911 caller but not the caller's name or address.
Not to be deterred, after making repeated phone calls to the
number listed in the Background Event Chronology, CCI was
able to identify the 911 caller, an over-the-road truck
driver who resided in another state. After coordinating an
acceptable time, the caller's deposition was taken on
August 29, 2016. During the deposition, the caller identified
the vehicle that struck Mr. Santore as an Averitt tractor
trailer truck; however, the caller was unable to identify the
September 20, 2016, which was more than two years after the
complaint was filed but less than three months after
obtaining the public records from the City of Memphis, CCI
filed a motion to amend its answer to assert an affirmative
defense of comparative fault against "John Doe" and
Averitt Express, Inc. ("Averitt"). While Plaintiffs
initially contested this motion, the parties agreed to allow
the amendment pursuant to Tenn. R. Civ. P. 15.01 and
submitted an agreed order to the court. The trial court
granted the order, and it was entered on September 29, 2016.
CCI then promptly filed an amended answer containing the
above referenced affirmative defense. Shortly thereafter,
Plaintiffs filed an amended complaint to add John Doe and
Averitt as additional defendants.
October 17, 2016, Averitt filed its Answer to Plaintiffs'
amended complaint and a Motion to Dismiss. Eleven days later,
and before a hearing could be held on the prior motion,
Averitt filed a Motion to Reconsider and Strike the Amended
Answer of Defendants. In the latter motion, Averitt sought to
strike Defendants' comparative fault affirmative defense
as to both John Doe and Averitt.
November 16, 2016, the trial court, relying on Brown v.
Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and
Tenn. Code Ann. § 20-1-119, ruled that the affirmative
defense in CCI's amended answer against John Doe would be
"stricken" due to the failure of CCI to identify
John Doe to a degree sufficient to allow Plaintiffs to
effectuate service upon him; however, the order did not
strike the affirmative defense of comparative fault as to
November 29, 2016, Averitt filed a Renewed Motion to Dismiss
Defendants' Allegation of Comparative Fault and
Plaintiffs' Second Amended Complaint against Averitt. At
the hearing on this motion, the trial court ordered that the
affirmative defense of comparative fault as to Averitt be
stricken from CCI's amended answer.
January 17, 2017, the trial court entered an order modifying
its November 16, 2016 order by "striking" CCI's
affirmative defense claims of comparative fault and
"striking" Plaintiffs' claims against both John
Doe and Averitt. The trial court's order stated,
"the answer [of CCI] did not identify 'John Doe'
to a degree sufficient to allow Plaintiffs to effectuate
service upon 'John Doe.'" As for Averitt, the
court found that CCI's amended answer failed to state a
"legal cause of action upon which relief may be
granted." Based on these findings, the trial court ruled
that Plaintiffs could not rely on Tenn. Code Ann. §
20-1-119 to allege vicarious liability against Averitt or
direct negligence against John Doe. As we will discuss in
more detail below, none of these orders "dismissed"
Plaintiffs' claims against Averitt or John Doe.
January 19, 2017, CCI filed a motion in the trial court for a
Tenn. R. App. P. 9 interlocutory appeal which the trial court
granted on February 16, 2017. Eight days later, on February
23, 2017, CCI filed an application for a Tenn. R. App. P. 9
interlocutory appeal with this court. On March 13, 2017, we denied
CCI's application and the case was remanded to the trial
this court's discretionary decision to deny the
application for a Rule 9 interlocutory appeal, CCI filed a
Tenn. R. Civ. P. 60.01 motion in the trial court seeking to
modify the January 17, 2017 order. The purpose of the motion
was to obtain the entry of a final judgment as to all claims
by or against Averitt and John Doe. The trial court granted the
motion to modify and in an order entered on May 19, 2017,
which the trial court designated as a final judgment pursuant
to Tenn. R. Civ. P. 54.02, the trial court granted
Averitt's Renewed Motion to Dismiss and amended its
January 17, 2017 order pursuant to which it dismissed all
claims against Averitt and John Doe.
31, 2017, CCI initiated this appeal by filing its Tenn. R.
App. P. 3 notice of appeal from the final judgment entered on
May 19, 2017.
Timeliness of Appeal - Subject Matter Jurisdiction
and Averitt (collectively, "Appellees") contend
that this court lacks subject matter jurisdiction over this
Tenn. R. App. P. 3 appeal because the appeal is untimely.
This issue was first raised with this court in Appellees'
motions to dismiss this appeal prior to oral arguments. We
denied the motions and Appellees have provided no new facts
or additional authorities that change our decision.
a "final judgment" is not a prerequisite to a Rule
9 interlocutory appeal, as distinguished from an appeal as of
right pursuant to Tenn. R. App. P. 3, in this court's
2017 ruling on CCI's application for a Tenn. R. App. P. 9
interlocutory appeal it was determined that the January 17,
2017 order, which was the subject of that appeal, was not a
final judgment. As our Supreme Court explained in In
re Estate of Henderson:
judgment is one that resolves all the issues in the case,
"leaving nothing else for the trial court to do."
State ex rel. McAllister v. Goode, 968 S.W.2d 834,
840 (Tenn. Ct. App. 1997). In contrast, an order that
adjudicates fewer than all of the claims, rights, or
liabilities of all the parties is not final, but is subject
to revision any time before the entry of a final judgment.
Tenn. R. App. P. 3(a). Such an order is interlocutory or
interim in nature and generally cannot be appealed as of
right. Id. However, there is a mechanism, found in
Rule 54.02 of the Tennessee Rules of Civil Procedure, by
which a party may appeal an order that adjudicates fewer than
all of the claims, rights, or liabilities of fewer than all
the parties. Rule 54.02 provides as follows:
When more than one claim for relief is present in an action
... or when multiple parties are involved, the court ... may
direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay
and upon an express direction for the entry of
judgment. In the absence of such determination and
direction, any order or other form of decision, however
designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall
not terminate the action as to any of the claims or parties,
and the order or other ...