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Santore v. Stevenson

Court of Appeals of Tennessee, Jackson

February 20, 2018

STEVEN SANTORE, et al.
v.
KARLOSS STEVENSON, et al.

          Session November 14, 2017

         Appeal from the Circuit Court for Shelby County No. CT-002966-14 Robert L. Childers, Judge

         At 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 opinion.

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

          John I. Houseal, Jr. and Brandon D. Pettes, Memphis, Tennessee, for the appellants, Cordova Concrete, Inc. and Karloss Stevenson.

          Mark N. Geller and Glenn K. Vines, Memphis, Tennessee, for the appellees, Steven Santore and Stephanie Santore.

          Martin W. Zummach, Southaven, Mississippi, for the appellee, Averitt Express, Inc.

          Frank 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.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         On 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.

         At some 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.

         The 911 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 driver.

         On 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.

         On 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.

         On 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 Averitt.

         On 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.

         On 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.

         On 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.[1] On March 13, 2017, we denied CCI's application and the case was remanded to the trial court.

         Following 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.[2] 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.

         On May 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.

         Analysis

         I. Timeliness of Appeal - Subject Matter Jurisdiction

         Plaintiffs 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.

         Although 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.[3] As our Supreme Court explained in In re Estate of Henderson:

         A final 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 ...

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