Karah and Ryan DePue v. Charles D. Schroeder ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 14, 2010 Session
KARAH and RYAN DePUE, et al., v. CHARLES D. SCHROEDER, et al.
Appeal from the Circuit Court for Knox County
No. 2-262-09 Hon. Harold Wimberly, Judge
No. E2010-00504-COA-R9-CV - Filed February 15, 2011
Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare
providers on May 26, 2009. They alleged that they had given the notice requirements of
Tenn. Code Ann. §29-26-121(a) prior to April 8, 2009 to the defendants. The defendants
filed several motions, including motions for summary judgment, stating that plaintiffs failed
to comply with the notice requirements of Tenn. Code Ann. §29-26-121. The record
establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing
of their Complaint". In response to the motions for summary judgment the Trial Court
excused compliance with the code section and defendants appealed. On appeal, we reverse
the holding of the Trial Court on the grounds that non-compliance with the code section
could only be excused upon the showing of extraordinary cause.
Tenn. R. App. P.9 Appeal as of Right; Judgment of the Circuit Court Reversed.
H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., joined and J OHN W. M CC LARTY, J., dissented and filed a separate opinion.
Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor
General, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for the
appellant/intervenor, State of Tennessee.
Robert H. Watson, Jr., and Emily A. Cleveland, Knoxville, Tennessee, for the appellants,
John Showalter, M.D., and Summit Medical Group, PLLC.
James H. London, Jennifer Pearson Taylor, and Mark A. Castleberry, Knoxville, Tennessee,
for the appellant, Joseph P. Bruner, M.D.
Rick L. Powers, Knoxville, Tennessee, for the appellant, Fort Sanders Perinatal Center.
Debra A. Thompson, Knoxville, Tennessee, for the appellants, Charles David Schroeder,
M.D., and OB/GYN Professionals of East Tennessee, P.C.
Stephen C. Daves, Knoxville, Tennessee, for the appellants, J. Frederick Wolfe, M.D., and
Rheumatology Consultants, P.L.L.C.
Donna Keene Holt, Knoxville, Tennessee, for the appellees, Karah and Ryan DePue.
OPINION
Plaintiffs, Karah and Ryan Depue, individually and as parents and next friends of
Jackson James Depue, filed their Complaint on May 26, 2009, against Charles Schroeder,
M.D., and OBGYN Professionals of East Tennessee, P.C., Joseph Bruner, M.D., and Ft.
Sanders Perinatal Center, J. Frederick Wolfe, M.D., and Rheumatology Consultants, PLLC,
and John Showalter, M.D., and Summit Medical Group.
In the Complaint they asserted that they had complied with the notice requirements
of Tenn. Code Ann.§29-26-121(a) by giving notice prior to April 8, 2009. They alleged that
when the plaintiff Karah Depue became pregnant, she had a history of an episode of severe
mononucleosis, atypical rheumatoid arthritis that led to a bilateral hip replacement, and a
drug-induced episode of lupus. She averred that she developed a fever, went to Parkwest
Hospital on March 8, 2008, and was found to have elevated liver enzymes, and was advised
to transfer to Fort Sanders Hospital because Fort Sanders had high-risk OBs, where the
remaining defendants took over her care.
Plaintiffs averred that on April 8, the baby was born premature at 26 weeks, and Ms.
Depue was transferred to the University of Alabama for a liver transplant. Plaintiffs averred
that they began steroid treatment on Ms. Depue at the University of Alabama and her liver
function improved, so she did not have the transplant. Plaintiffs alleged that defendants were
negligent and failed to properly diagnose and treat plaintiff, and that their failure caused
plaintiff severe medical problems for which she still required treatment, that she was unable
to return to her job as a teacher, and suffered emotional distress. Further, that the baby had
multiple problems due to his premature birth and required numerous surgeries and long-term
treatment, and would suffer the effects of that for the rest of his life. Also, that Mr. Depue
suffered loss of consortium and emotional distress, and had incurred substantial expenses and
damages.
Showalter and Summit moved to dismiss, or in the Alternative for a More Definite
Statement, asserting that plaintiffs’ failed to state a claim for relief against them. Bruner
filed a Motion to Dismiss for Failure to State a Claim, asserting that plaintiffs had failed to
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state a claim for relief against him. Bruner also asserted that plaintiffs failed to provide the
requisite 60 day notice before filing suit. Wolfe and Rheumatology Consultants filed an
Answer, denying any negligence or deviation from the standard of care.
Plaintiffs filed a Motion to Amend, seeking to address the Motions filed by
defendants, this to show that adequate notice was given and to provide a more definite
statement with regard to certain facts. Plaintiffs filed an Amended Complaint, and attached
an Affidavit of Donna Keene Holt, who stated that she was the attorney for plaintiffs, that
plaintiffs came to see her just before the one year anniversary of the baby’s birth, and did not
know the names of the doctors who had treated Ms. Depue, but provided medical records on
April 1. Ms. Holt stated she gave notice to Schroeder and Bruner on April 3, 2009, and went
to review the medical records at Parkwest and Ft. Sanders. Ms. Holt stated that after
reviewing the records at both hospitals, she gave notice to the other defendants on or before
April 7, 2009. She also stated she sought the assistance of the defendants in identifying other
potential actors or in determining who was truly at fault, but they refused to cooperate. She
acknowledged that she left town on May 22, 2009 and left the Complaint and Summons to
be filed by another attorney, and that they were filed on May 26, 2009, which was only 53
days from the first notice rather than 60 days. Ms. Holt stated that defendants could
demonstrate no prejudice to their ability to defend the case resulting from the “early” filing.
She attached the notices that she sent to defendants, as well as other correspondence with
them regarding the case.
Plaintiffs then filed a Certificate of Good Faith, asserting they had consulted with one
or more experts who provided a signed written statement that there was a good faith basis for
maintaining the action as to each of the defendants. Fort Sanders Perinatal Center then filed
a Motion to Dismiss or for a More Definite Statement. Wolfe and Rheumatology Consultants
filed a Motion for Summary Judgment, asserting the complaint should be dismissed because
plaintiffs failed to comply with the requirements of Tenn. Code Ann. §29-26-121, by failing
to provide the requisite 60 day notice before filing their complaint. They filed a Statement
of Undisputed Facts and an Affidavit of Dr. J. Frederick Wolfe, stating that the notice was
sent on April 6, 2009, and the Complaint was filed on May 26, 2009. Plaintiffs filed a
Response to the Motions filed by Showalter, Summit, and Bruner, stating they had alleged
sufficient facts to state a claim against these defendants.
Showalter and Summit also filed a Motion for Summary Judgment, asserting
plaintiffs’ failure to comply with the notice requirement of Tenn. Code Ann. §29-26-121.
Dr. Schroeder and OBGYN Professionals filed an Answer, denying any negligence or
liability. Plaintiffs filed a Response to the outstanding Motions, adopting their prior filings
with regard to the Amended Complaint. Schroeder and OBGYN Professionals then filed a
Motion to Dismiss, asserting plaintiffs’ failure to comply with the notice requirements of
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Tenn. Code Ann. §29-26-121.
Plaintiffs then filed a Second Amended Complaint, asserting they had complied with
the spirit of Tenn. Code Ann. §29-26-121 by sending the required notices (even though they
did not wait the full 60 days before filing their complaint). Plaintiffs asked the Court to
excuse the technical failure pursuant to Tenn. Code Ann. §29-26-121(b). Plaintiffs also filed
a Supplemental Response to the Motions to Dismiss, stating that with regard to Dr. Bruner,
he was made aware of the claim on April 3, 2009, gave Susan Anderson permission to accept
the notice on his behalf, and then provided his home address where the other correspondence
was sent (and was not returned). Plaintiffs further asserted that no prejudice had been shown
to the other defendants by the “early” filing.
Plaintiffs filed an Affidavit from Jackie Tavares, Ms. Holt’s legal assistant, who stated
that on April 3, 2009, she had gone to the office address listed for Dr. Bruner with the
Tennessee Department of Health, and was told that he had left the office on December 31,
2008. Ms. Tavares stated that she spoke to the office manager, Susan Anderson, who called
Dr. Bruner on the phone, and then told Ms. Tavares that he had authorized her to accept the
notice on his behalf. Ms. Tavares stated that Ms. Anderson gave her Dr. Bruner’s home
address, which she used for all further correspondence. Ms. Tavares stated that they later
learned that Dr. Bruner had moved to Texas, and obtained his address there.
Schroeder and OBGYN Professionals filed another Answer, once again asserting that
plaintiffs’ failed to provide proper notice. Showalter and Summit filed an Answer, also
asserting plaintiffs’ failed to provide proper notice.
The Court held a hearing on October 30, 2009, on the Motions to Dismiss and for
Summary Judgment, and entered an order following same on November 6, 2009. The Court
found plaintiffs had requested that the Court exercise its discretionary power granted in Tenn.
Code Ann. §29-26-121(b) to waive any deficiency in the notice provision. The Court found
that, based on the arguments of counsel and the record as a whole, the waiver should be
granted. The Court held there was substantial compliance with the statute and no prejudice
resulted from the premature filing of the complaint. The Court denied the Motions to
Dismiss and for Summary Judgment.
Bruner filed a Motion for an Interlocutory Appeal, seeking review of the Court’s
decision to waive the deficiency in the notice requirement, as did Wolfe and Rheumatology
Consultants, Schroeder and OBGYN Professionals, Showalter and Summit, and Fort Sanders
Perinatal Center. The Court then entered an Order granting interlocutory appeal, and
plaintiffs gave notice to the Attorney General that they were challenging the constitutionality
of the statute. This Court entered an Order granting interlocutory appeal to defendants.
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The issues presented to this Court are:
1. Whether the Trial Court erred in holding that compliance with the sixty day
notice requirement of Tenn. Code Ann. §29-26-121 should be excused if the
complaint is filed less than sixty days after notice is given?
2. Whether the Trial Court erred in holding that simple attorney oversight
constitutes “extraordinary cause” such that compliance with Tenn. Code Ann.
§29-26-121 should be excused?
3. Whether service of the notice was proper on Dr. Bruner where it was served
on the office manager of his former employer, without his actual authority?
4. Whether plaintiffs have standing to challenge the constitutionality of Tenn.
Code Ann. §29-26-121 when they have not suffered any injury resulting from
its requirements?
5. Whether plaintiffs’ challenge to the constitutionality of Tenn. Code Ann. §29-
26-121 is properly before this Court?
6. Whether Tenn. Code Ann. §29-26-121 is constitutional?
Plaintiffs challenge the constitutionality of Tenn. Code Ann. §29-26-121, raising
arguments of equal protection. They only gave notice to the Attorney General’s Office of
their constitutional challenge after the Trial Court granted defendants’ motions for
interlocutory appeal. Plaintiffs did not seek interlocutory appeal, and the constitutionality
issue was not certified as one of the issues this Court would address on interlocutory appeal.
Thus, the issues regarding constitutionality cannot be raised in this appeal. See Montcastle
v. Baird, 723 S.W.2d 119 (Tenn. Ct. App. 1986).
Tenn. Code Ann. §29-26-121 provides:
(a)(1) Any person, or that person's authorized agent, asserting a potential claim for
medical malpractice shall give written notice of the potential claim to each health care
provider against whom the potential claim is being made at least sixty (60) days
before the filing of a complaint based upon medical malpractice in any court of this
state. Attached to the written notice shall be a list of all health care providers to whom
notice is being given pursuant to this section.
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(2) For purposes of this section, notice shall include actual written notice provided to
the health care provider or the provider's authorized agent; or notice by registered
mail, return receipt requested, to the health care provider or the provider's authorized
agent; or notice by overnight delivery using a nationally recognized carrier.
(b) If a complaint is filed in any court alleging a claim for medical malpractice, the
pleadings shall state whether each party has complied with subsection(a) and shall
provide such evidence of compliance as the court may require to determine if the
provisions of this section have been met. The court has discretion to excuse
compliance with this section only for extraordinary cause shown.
(c) If notice is given as provided in this section, the applicable statutes of limitations
and repose shall be extended up to a period of ninety (90) days, and this extension
shall apply to all parties and potential parties. In no event shall this section operate to
shorten the statutes of limitations or repose applicable to any action asserting a claim
for medical malpractice. Once a complaint is filed alleging a claim for medical
malpractice, the notice provisions of this section shall not apply to any person or
entity that is made a party to the action thereafter by amendment to the pleadings as
a result of a defendant's alleging comparative fault.
Plaintiffs’ counsel admits that she did not comply with the above notice provision, and
that the Complaint was filed about 53 days after the notice was given, at the latest. Plaintiffs’
counsel argues that she was not consulted by plaintiffs until just days before the anniversary
date of the baby’s birth, and that she did the best she could in a short time frame to identify
and give notice to all necessary defendants. She states that she complied with the “spirit” of
the statute because she gave notice, culled out one potential defendant who actually did not
treat Ms. Depue, and was able to file her Certificate of Good Faith (showing that a medical
expert had been consulted and he verified that there was a valid claim based on the
information given) within the requisite time frame. She argues that her failure to wait the full
60 days before filing the complaint should not be fatal to her clients’ claims. The Trial Court
agreed with plaintiffs’ counsel and excused compliance with the notice period as provided
in subsection (b).
Defendants counter that the Court should not have excused compliance with the notice
requirements of Tenn. Code Ann. §29-26-121, as plaintiffs failed to show “extraordinary
cause”. Defendants argue that the plain language of the statute makes clear the action must
be filed at least 60 days after proper notice is given, and that plaintiffs’ admitted failure to
do so in this case should result in dismissal. Defendants argue the Court’s job is to “carry
out the legislature’s intent without broadening or restricting the statute beyond its intended
scope”, and that the statute should be enforced as written, with every word being given its
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full effect “if the obvious intention of the Tennessee General Assembly is not violated by so
doing.” See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99 (Tenn. 2006); In re
CKG, 173 S.W.3d 714 (Tenn. 2005); Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676(Tenn. 2002).
This Court has previously held that the purpose of this legislation is “to give the
defendant the opportunity to investigate and perhaps even settle the case before it is actually
filed. At a minimum, it will give the defendant the opportunity to gather information before
suit is filed and should eliminate the need for extensions of time to answer the complaint or
slow-walk discovery.” Howell v. Claiborne and Hughes Health Ctr., 2010 WL 2539651(Tenn. Ct. App. June 24, 2010). The Howell case is one of few cases that address these
notice provisions, however, the facts in it were substantially different than those in the case
at bar. In Howell, the plaintiff had previously nonsuited the case, and then refiled within the
time allowed by the savings statute, but without giving the requisite notice to defendants as
required by the newly-enacted notice requirements of Tenn. Code Ann. §29-26-121.
This Court recognized that a case with almost identical facts had recently been
decided by the federal court. See Jenkins v. Marvel, 683 F. Supp. 2d 626 (E. D. Tenn. Jan.
14, 2010). This Court adopted the reasoning of the Jenkins decision, and stated as follows:
In considering the motion to dismiss, the Jenkins court first compared Tennessee's
statute to a similar statute in Texas, Texas Civil Practice and Remedies Code § 74.051
and the intent behind the Texas statute as found by Texas courts. The Jenkins court
found the Texas statute helpful as the Tennessee statute and the Texas statute were
very similar. As stated by the Jenkins court, the purpose behind the Texas statute was to
“facilitate discussion of the merits of a potential health care claim and thereby initiate
amicable settlement negotiations,” and to “facilitate the early identification of unmeritorious
claims.”
The court also noted that § 74.051(b) required plaintiffs to include a statement of
compliance in their complaint and provided that plaintiffs may have to provide
additional evidence of compliance.
The Jenkins court then reviewed the legislative history behind the Tennessee statute,
noting that there was no Tennessee case law discussing the purpose behind the statute.
The Jenkins court found that the State of Tennessee Senate Republican Caucus
newsletter for the week of April 2, 2007 discussed the purpose behind the new
requirements. The newsletter stated “[t]he legislation is designed to reduce the
number of frivolous lawsuits filed in Tennessee each year ... by requiring early
evaluation and streamlined disclosure of medical records.” The Jenkins court also
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considered an April 24, 2008 news release from the Senate Republican caucus which
provided:
The State Senate has approved and sent to the governor major tort reform
legislation aimed at weeding out meritless medical malpractice lawsuits.
***
Key provisions in this bill include:
• Notice would be provided at least two months before a lawsuit is filed to help
resolve the case before it goes to court.
Based on this history, the Jenkins court found that the purpose behind the Tennessee
statute was similar to the purpose behind the Texas statute-“to provide notice to
potential parties and to facilitate early resolution of cases through settlement.”
***
We find that the case before us is virtually identical to Jenkins. As in Jenkins, the
Appellant filed a complaint which included allegations of medical malpractice before
the notice requirement was in effect and subsequently non-suited the first action.
Then, as in Jenkins, mere days after the amendments went into effect, the Appellant
re-filed the complaint which again included allegations of medical malpractice. As in
Jenkins, the defendants had actual notice of the claim at least one year before the
Appellant filed the current action by virtue of the previously filed claim. Finally, as
in Jenkins, the Appellant filed a Certificate of Good Faith wherein the Appellant's
attorney certified that he had consulted with an expert, competent to testify under
Tenn.Code. Ann. § 29-26-115, and that there was a good faith basis to maintain the
action.
We recognize that Jenkins is not binding upon this Court. However, we too are faced
with deciding this case with no Tennessee case law discussing the purposes behind
the notice requirement and the “extraordinary cause exception” found in Tenn.Code.
Ann. § 29-26-121 (2008). After reviewing the requirements as they existed in 2008,
the subsequent amendments to Tenn.Code Ann. § 29-26-121 which went into effect
on July 1, 2009, the reasoning in Jenkins, and commentary from others discussing the
reform to Tennessee's Medical Malpractice Act in 2008 and 2009, this Court finds the
reasoning in Jenkins sound and will apply the same analysis to this case. The purpose
behind Tenn.Code. Ann. § 29-26-121 and other recent amendments to the Medical
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Malpractice Act was to provide notice to health care providers of potential claims
against them so that they might investigate the matter and perhaps settle the claim, and
also to reduce the number of meritless claims which were filed. However, the
Tennessee legislature recognized the need to create an exception to the notice
requirement so that it would not be an absolute bar to all claims whatsoever for failure
to comply with the notice requirements. The legislature created such an exception by
providing that “[t]he court has discretion to excuse compliance with the section only
for extraordinary cause shown.” Tenn.Code Ann. § 29-26-121(b). Accordingly, we
review the trial court's decision not to allow an exception under an abuse of discretion
standard. A trial court abuses its discretion when it has applied an incorrect legal
standard or has reached a decision which is against logic or reasoning that caused an
injustice to the party complaining.
We find that the trial court erred in not excusing compliance with the notice
requirements. It is well settled that Tennessee law favors the resolution of all disputes
on the merits. CHHC had actual notice of the claim more than one year prior to the
filing of the present action. Accordingly, CHHC had ample time to investigate and
possibly settle the claim. Moreover, the Appellant filed a Certificate of Good Faith
demonstrating that the claim had merit. Consequently, all purposes behind the 2008
amendments to the Medical Malpractice act were met. Under the unique
circumstances of this case, the trial court should have exercised its discretion and
excused compliance with the deadlines imposed by Tenn.Code Ann. § 29-26-121.
Therefore, we reverse the trial court's dismissal of the Appellant's medical malpractice
claims on the basis that the Appellant failed to comply with Tenn.Code Ann. §
29-26-121.
Howell, at pp. 15-16 (internal citations omitted).
Thus, in both Jenkins and Howell, the defendants had actual notice of the plaintiffs’
claims for at least one year prior to the refiling of the complaint, and the Howell court found
that this fact combined with the filing of a Certificate of Good Faith demonstrating that the
claim had merit would constitute “extraordinary cause” to excuse compliance with the notice
requirements. In this case, however, while plaintiffs did file a Certificate of Good Faith
showing that their claims had merit, the defendants still did not have the requisite notice for
60 days prior to the filing of the complaint.
Plaintiffs argue that this is of no consequence, however, because they complied with
the “spirit” of the statute and gave defendants notice and some amount of time to respond,
try to settle, or otherwise investigate the claims. Plaintiff’s counsel states that her early filing
of the complaint was due to 1) her own oversight that 60 days had not elapsed, and 2)
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unwarranted concerns about the running of the statute of limitations although Tenn. Code
Ann. § 29-26-121 clearly states that the statute of limitations will be tolled for 90 days if
notice is given. See Brief of Plaintiffs/Appellees. Thus, the issue becomes whether this
misunderstanding/oversight of plaintiffs’ counsel would constitute “extraordinary cause” as
required by the statute to excuse compliance with the notice requirements.
Defendants argue that plaintiffs’ counsel cannot show “extraordinary cause” when
attorney oversight has been found to not even constitute “good cause” for excusing
compliance with a time deadline. See, H. D. Edgemon Contracting Co. v. King, 803 S.W.2d
220 (Tenn. 1991). Barnett v. Elite Sports Medicine, 2010 WL 5289669 (Tenn. Ct. App. Dec.
17, 2010).
Plaintiffs’ counsel has simply failed to demonstrate any facts constituting
“extraordinary cause” which would warrant the court’s waiver of the statutory notice
provision. Plaintiffs’ counsel stated that she misread/misunderstood the provision of the
statute which extended the statute of limitations for 90 days, and/or that she filed the
complaint before the 60 days had expired by oversight. Nothing in her assertions would rise
to the level of “good cause” as defined by Edgemon, Plunk, and Brandon, and would
certainly not rise to the level of “extraordinary cause” as shown by Barnett.
We must review the trial court’s decision to excuse the notice period under an abuse
of discretion standard, see Howell, and thus must determine if the trial court “applied an
incorrect legal standard or has reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.”
Upon review of the Trial Court’s Order, it is clear that the Trial Court applied an
incorrect legal standard, as the Trial Court based its decision to grant the waiver on its
finding that there was “substantial compliance” with the statute and “no prejudice resulted
to defendants” from the premature filing of the complaint. This is improper based on the
plain language of the statute, which requires a showing of “extraordinary cause”, something
obviously much greater than “substantial compliance” or lack of prejudice, as shown by the
cases herein cited. The Trial Court’s decision was an abuse of discretion and is reversed.
Plaintiffs’ counsel’s action in filing the complaint before expiration of the required notice
period was not shown to be the result of any “extraordinary cause” other than pure
oversight/misunderstanding on her part.
Plaintiff argues, however, that even if it is determined that she failed to meet the
requirement of “extraordinary cause”, the proper result is not necessarily dismissal, as the
statute is silent as to the effect of a failure to give proper notice. Once again, however, the
plain language of the statute requires that a plaintiff “shall give written notice of the potential
claim to each health care provider against whom the potential claim is being made at least
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sixty (60) days before the filing of a complaint”, Id. From this language, the legislature
intended for compliance to be mandatory. Moreover, the case of Long v. Hillcrest
Healthcare-West, 2010 WL 1526065 (Tenn. Ct. App. Apr. 16, 2010), makes clear that failure
to comply with the notice requirements of Tenn. Code Ann. §29-26-121 will result in
dismissal.
As defendants point out, this circumstance is not dissimilar from those statutes that
require that certain prerequisites must be met before a complaint can be filed, such as an
ADEA plaintiff who must first file a timely charge with the EEOC and receive a notice of
right to sue letter, a workers comp plaintiff who must first show that notice was given to the
employer, or a plaintiff in a shareholder derivative suit who must first make demand on the
board of directors, and failure to do so will result in dismissal of the complaint. See
Humphreys v. Plant Maint. Services, Inc., 1999 WL 553715 (Tenn. Ct. App. July 30, 1999);
Masters v. Indus. Garments Mfg. Co., Inc., 595 S.W.2d 811 (Tenn. 1980); Puckett v.
Tennessee Easement Co., 889 F.2d 1481 (6 th Cir. 1989).
In this case, plaintiffs’ counsel failed to comply with the plain language of the statute,
which requires a 60 day notice to defendants before suit can be filed. Plaintiffs’ counsel also
failed to demonstrate extraordinary cause which would excuse her failure to comply.
Therefore, the complaint must be dismissed. The case is remanded to the Trial Court for the
entry of an Order of Dismissal.
The costs of the appeal are assessed to plaintiffs.
_________________________________
HERSCHEL PICKENS FRANKS, P.J.
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