Procedural rules matter. They help ensure that litigation moves along in an orderly and understandable way. They can also be used as a shield and, when an opponent has misunderstood them, as a sword.
That is the story of Ingram v. Gallagher, a healthcare liability action (better known as a “medical malpractice” claim) filed against a physician, a hospital, and two other defendants. After filing suit, the plaintiff filed an amended complaint naming only the physician as a defendant. Under Tennessee law—Tennessee Rule of Civil Procedure 15.01, in particular—plaintiffs may amend once “as a matter of course” at any time before a responsive pleading has been served, so the plaintiff’s amended complaint became the operative pleading in the case immediately upon its filing.
Five minutes after amending his complaint, the plaintiff filed a notice of voluntary dismissal—often called a “nonsuit”—regarding the non-physician defendants. He also tendered a proposed order dismissing those defendants without prejudice. The intended purpose of the filing was to protect the plaintiff’s right to refile his claims against the dismissed defendants within the following year—something that Tennessee’s savings statute permits as a matter of right when a plaintiff has taken a nonsuit. The trial court then entered the nonsuit order, which the plaintiff later sought to alter or amend so he could reinstate his claims against the other defendants. The plaintiff also attempted to amend one of the earlier-dismissed defendants back into the case through another amended complaint several months later.
The problem with this approach, as a unanimous opinion authored by Justice Bivens explained, was that the plaintiff had already filed his first amended complaint, which eliminated any other defendants as parties, before he filed his nonsuit. Under Tennessee law, the effect of an amended complaint is to “supersede[] and destroy[]” the original complaint as a pleading, essentially rendering it a nullity.[1] Thus, after the plaintiff’s amended complaint was filed, there was only one defendant in the case. And because of that, there were no other defendants for the trial court to dismiss from the action, rendering void both the plaintiff’s attempted nonsuit dismissing those defendants and the trial court’s order purporting to dismiss them.
The practical effect of this chronology was that the plaintiff could not seek to alter or amend the trial court’s nonsuit order, which was void. By amending the other defendants out of his complaint, the plaintiff also functionally abandoned his claims against those defendants. And because the issue of whether Tennessee’s savings statute applies to abandoned, rather than dismissed, claims is not entirely clear (the text of Tenn. Code Ann. § 28-1-105(a), which requires a “judgment or decree,” suggests that the answer is no), the Plaintiff’s subsequent attempt to reinstate his claims against one of the earlier defendants now risks being time-barred—an issue that lower courts will eventually have to sort out on remand.
Interestingly, nobody involved in the case appears to have noticed these issues, either. The plaintiff certainly did not. Neither, it seems, did the trial court. Instead, the issue was apparently identified for the first time by the Tennessee Supreme Court after it accepted review, pretermitting its consideration of the issue that it had actually granted review to address: whether a voluntary dismissal of one of multiple defendants in a Governmental Tort Liability Act case may be set aside through a motion to alter or amend. Due to a procedural misstep that risks foreclosing the plaintiff’s claims against that defendant on a different ground, though, that issue does not appear to matter in this case any longer.
Read the Tennessee Supreme Court’s unanimous ruling in Ingram v. Gallagher, No. E2020-01222-SC-R11-CV, 2023 WL 3487083 (Tenn. May 17, 2023), authored by Justice Jeffrey Bivens, here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20E2020-1222-SC.pdf
Questions about this article? Contact the author at daniel [at] horwitz.law.
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[1] See, e.g., Hanson v. Levan, 647 S.W.3d 85, 90 (Tenn. Ct. App. 2021), appeal denied (Jan. 13, 2022).