 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Grace v. Mountain States Health Alliance9/25/2001
In this medical malpractice suit the Trial Court granted a summary judgment in favor of Mountain States Health Alliance, d/b/a/ Johnson City Medical Center Hospital and five Doctors. The Trial Court overruled the Plaintiffs' motion to alter or amend his determination that all Defendants were entitled to summary judgment. As to the Doctors, the determination was predicated upon the motion to alter or amend not being timely filed, and as to the Medical Center on the grounds that the delay in submitting materials accompanying the motion to alter or amend was not justified. We affirm.
Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed;
Cause Remanded
Houston M. Goddard, P.J., delivered the opinion of the court, in which Charles D. Susano, Jr., and D. Michael Swiney, JJ., joined.
OPINION
This is a medical malpractice suit brought by Jerry Allen Grace and his wife, Wanda Grace, against Mountain States Health Alliance, d/b/a Johnson City Medical Center Hospital, and Drs. Rachael Monderer, Steven C. Hamel, Claude C. Haws, Kenneth Turner, and James L. Davenport. Mrs. Grace seeks damages for injuries she received which she alleges were caused by the negligence of the Defendants, and Mr. Grace seeks damages for loss of consortium.
We first note that during oral argument counsel for the Plaintiffs announced that they were abandoning their appeal as to Drs. Hamel and Haws.
As to all Defendants except the Hospital, the Trial Court found that the motion of the Plaintiffs to alter or amend a summary judgment granted to them was not timely filed and overruled the Plaintiffs' motion.
The Plaintiffs insist that under the provisions of Tenn.R.Civ.P. 6.05 they are entitled to add three days to the time specified, which would make their motion timely.
With regard to Johnson City Medical Center, although the motion to alter or amend was timely, the Trial Court nevertheless found that counsel was not entitled to supplement the evidence previously filed bearing on the liability of the Medical Center.
The Plaintiffs appeal and, as already noted, contend as to the Doctors that their motion to alter or amend was timely, and as to the Medical Center the Trial Court erred in refusing to entertain the affidavits filed with the motion.
Unlike most appeals from grants of summary judgment, this appeal as to the Doctors does not turn on whether there is a dispute of material fact, but, rather, is a question of law respecting the applicability of the Rule hereinbefore referenced to time limitation vis-a-vis motions to alter or amend.
Rule 6.05 provides the following:
6.05. Additional Time after Service by Mail.-- Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail three (3) days shall be added to the prescribed period.
The limitation of the period to alter or amend is 30 days. In the present case the order granting summary judgment to the Defendant Doctors was entered on August 23, and the motion to alter or amend was not filed until September 25, which would be three days beyond the deadline of September 22.
The Plaintiffs cite a treatise titled, "Weissenberger's Tennessee Civil Practice Manual," which supports their insistence relative to the applicability of Rule 6.05. However, there are several Tennessee cases--which we believe are controlling--that hold to the contrary. In Houseal v. Roberts, 709 S.W.2d 580 (Tenn. Ct. App. 1984), this Cou
Page 1 2 3 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|