Bonnie S. Bodine v. Long John Silver's LLC

01/14/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 22, 2021 Session
BONNIE S. BODINE v. LONG JOHN SILVER’S LLC
Appeal from the Circuit Court for Marion County
No. 22462 Justin C. Angel, Judge
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No. M2021-00168-COA-R3-CV
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This appeal arises from a premises liability action filed by Bonnie S. Bodine (“Plaintiff”)
against an incorrect defendant. After learning that she had sued the wrong defendant,
Plaintiff waited over four months to file a “Motion to Correct Misnomer,” requesting that
she be permitted to “replace” the correct defendant in the action. This motion was not
heard until five months later, after the defendant asked the trial court to place the case on
the docket for both Plaintiff’s motion and the defendant’s summary judgment motion. The
trial court denied Plaintiff’s motion to correct misnomer and subsequent motion to alter or
amend, citing Plaintiff’s “extreme lack of due diligence.” Plaintiff appeals. Because the
trial court did not abuse its discretion, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and
THOMAS R. FRIERSON, II, JJ., joined.
Derek M. Nelson, Chattanooga, Tennessee, for the appellant, Bonnie S. Bodine.
Alaric A. Henry and Chloe E. Kennedy, Chattanooga, Tennessee, for the appellee, Long
John Silver’s, LLC.
OPINION
I. BACKGROUND
Plaintiff filed her complaint in the Circuit Court for Marion County (the “trial
court”) on February 24, 2020, against Long John Silver’s, LLC, individually and d/b/a
Long John Silver’s (“Defendant”). The complaint alleged that at all relevant times, “the
defendant owned and operated on its premise[s] a restaurant known as the Long John
Silver’s that was open to the general public.” Plaintiff alleged that on February 25, 2019,
Defendant “negligently permitted a hazardous concrete parking stop to exist in its parking
lot in a place allowing for the passage of the Plaintiff as well as other patrons of Long John
Silver’s.” The complaint averred that the acts and omissions had occurred at Defendant’s
restaurant in Kimball, Tennessee. According to Plaintiff, she was walking in the parking
lot when her feet came into contact with the concrete parking stop, causing her to fall and
sustain injuries to her back, legs, and arms. As a result, Plaintiff allegedly received
abrasions and contusions on her body, as well as an injury to her left hip, which required
medical treatment.
On appeal, Plaintiff acknowledges that on March 12, 2020, she received an email
from counsel for Defendant “mentioning that JAK Foods, Inc. is the franchisee and
mention[ing] that they have tendered the matter to JAK.” The email, which is included in
the record, is from Defendant’s “National Litigation Counsel” and is addressed to
Plaintiff’s counsel. The email provides that the complaint “improperly names [Long John
Silvers’s, LLC] as a defendant” and that Defendant “did not own, operate, or control the
subject restaurant and did not employ any of the individuals who may have worked there.”
In the email, Defendant’s counsel requested that Plaintiff voluntarily dismiss the action
against Defendant and stated that “[i]n an effort to allay any concern you may have over
dismissal, I am willing to provide you with an affidavit which supports this information so
that you will feel comfortable that you are dismissing a party which bears no responsibility
for the alleged incident.” The email from Defendant’s counsel further states:
At the time of the alleged incident, the restaurant was owned, operated, and
controlled by a franchisee, JAK Foods, Inc. (“JAK”), which you may contact
at the following address: 2401 Broad Street, #201, Chattanooga, TN 37408.
We have tendered this matter to JAK and we expect that our tender will be
accepted in the near future. We will request that JAK contact you to confirm
the information contained in this email.
Plaintiff alleges she never received correspondence from JAK Foods, Inc., and Defendant
was never voluntarily dismissed.
Defendant filed an answer on April 2, 2020, denying that it was the owner/operator
of the Long John Silver’s location where Plaintiff was allegedly injured and arguing that
Defendant owed no duty to Plaintiff. Defendant filed a motion for summary judgment on
June 11, 2020, requesting that the trial court dismiss with prejudice the action against it.
Defendant included a memorandum of law in support of its motion; an affidavit by a senior
paralegal employed by Defendant; and a statement of undisputed facts. In its motion,
Defendant argued that the restaurant at issue is owned and operated by an independent
franchisee and that Long John Silver’s, LLC is not the owner or operator of the restaurant.
According to Defendant, no material issue of fact existed, and Defendant owed no duty of
care to Plaintiff, which is an essential element of her claim.
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Defendant filed a request with the trial court to place the motion on the docket for
July 28, 2020. Plaintiff subsequently filed a motion to hold the summary judgment motion
in abeyance pending completion of discovery, with notice that her motion would also be
heard on July 28, 2020. According to Plaintiff’s motion, Plaintiff sent a discovery request
to Defendant that remained unanswered and no deposition had been completed. Defendant
responded to Plaintiff’s motion, requesting that it be denied because Plaintiff had failed to
file an affidavit setting forth reasons why additional time for discovery was necessary, as
required by Tennessee Rule of Civil Procedure 56.07. In its response, Defendant
acknowledged receipt of discovery requests and stated that a response would be provided
prior to July 28, 2020, making delay of the summary judgment hearing unnecessary.
Plaintiff thereafter filed an affidavit by counsel stating discovery was sent in June 2020
and that a response was received from Defendant on July 27, 2020. Plaintiff’s counsel
further stated in the affidavit that review of documentation received in discovery would be
necessary for Plaintiff to effectively respond to the summary judgment motion, as well as
the potential need for depositions or other additional discovery.
On July 28, 2020, the date the hearing was to occur on the pending motions, Plaintiff
filed a “Motion to Correct Misnomer.” Therein, Plaintiff argued that she had filed her
complaint against two defendants, “Long John Silver’s, LLC individually and Long John
Silver’s, LLC d/b/a Long John Silver’s.” According to Plaintiff, she intended to sue the
owner/operator of the restaurant and the owner of the property, as evidenced by the
substance of the Complaint. Plaintiff stated in her motion that she received a discovery
response in July 2020 identifying JAK Foods, Inc. as the owner and operator of the
restaurant and property. As such, Plaintiff’s motion sought to correct the “misnomer” by
amending the complaint “to substitute, JAK FOODS, INC., for Long John Silver’s, LLC
individually and d/b/a Long John Silver’s,” and requested that “the pleadings be amended
so that JAK FOODS, INC. replaces Long John Silver’s LLC, individually and d/b/a Long
John Silver’s anywhere they appear.”
Plaintiff urged that the amendment would relate back to the original filing date,
pursuant to Tennessee Rule of Civil Procedure 15.03. Plaintiff argued that JAK Foods,
Inc. received timely notice of the action and that it should have known that but for the
mistake regarding its identity, the action would have been brought against it. Plaintiff
alleged that her counsel sent notice of the claim to the physical location of the restaurant
on August 26, 2019; that at least one JAK Foods, Inc. employee was aware of the fall on
the day it occurred; that Long John Silver’s, LLC and JAK Foods, Inc. have a
franchisor/franchisee relationship; and that “[t]he two are well acquainted with one
another.” Plaintiff attached to her motion an August 2019 letter that was directed to Long
John Silver’s in Kimball, Tennessee to the attention of Claims Management and stated as
follows:
Please be advised that this office represents Bonnie S. Bodine for
personal injuries received in the captioned premises liability claim. We
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request that all related photographs, video tapes, incident reports, statements,
or other similar documents be preserved and a copy of these items be
forwarded to us at the above address.
We would also appreciate your forwarding this letter to your premises
liability insurance agent or adjuster along with a request that they contact our
office at their earliest convenience.
Defendant responded to Plaintiff’s motion, acknowledging that the action arose out
of the same conduct, transaction or occurrence as the original complaint. Defendant argued
that Plaintiff should have sued the proper party within the statute of limitations period,
which expired on February 25, 2020, and that failure to do so was not due to a “mistake.”
According to Defendant, a cursory internet search would have revealed that Defendant was
not the owner of the restaurant or the property, and Plaintiff also could have obtained this
information by going to the restaurant location to make an inquiry. Defendant argued that
Plaintiff had a duty to demonstrate due diligence and that the identity of JAK Foods, Inc.
was readily identifiable prior to expiration of the statute of limitations.1
In October 2020, Defendant filed a request to place both Defendant’s motion for
summary judgment and Plaintiff’s motion to correct misnomer on the docket for hearing
on December 15, 2020. On December 9, 2020, Plaintiff filed her response to Defendant’s
statement of undisputed facts and her response to the summary judgment motion,
requesting that the trial court deny the motion because an issue of material fact existed as
to whether Defendant owed a duty of care to Plaintiff. According to Plaintiff, the franchise
agreement between Defendant and JAK Foods, Inc. controls a number of issues concerning
setup and operation of the franchise; includes Defendant’s agreement to provide
supervisory services, as well as periodic inspections and evaluations; requires a final
inspection and approval of the restaurant by Defendant prior to the restaurant opening; and
prohibits modification to the restaurant without prior written consent by Defendant. Thus,
Plaintiff argued that Defendant continues to exercise a level of control over the restaurant
and owes a duty of care to Plaintiff.
Both Defendant’s summary judgment motion and Plaintiff’s motion to correct
misnomer were heard by the trial court on December 15, 2020. During the motion hearing,
the trial court stated that the situation appeared to involve due diligence and explained that
Plaintiff “could have discovered who [the proper defendant] was and got them in the suit
and let them come to court and say that [Plaintiff] shouldn’t have sued them yet.” The trial
court then denied Plaintiff’s pending motion, determining that the motion should have been
a motion to amend the complaint rather than a motion to correct misnomer and that a
1
It is unclear from the record exactly what happened at the July 28, 2020 hearing; the only order
in the record pertaining to that day is an agreed protective order regarding Defendant’s franchise agreement
with JAK Foods, Inc.
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motion to amend was not properly before it. The trial court ultimately entered an order
denying Plaintiff’s motion.
The trial court also entered an order granting summary judgment in favor of
Defendant, concluding that Defendant “had no duty to protect the Plaintiff from any alleged
dangerous condition on the premises.” The trial court found that the undisputed facts
support that Defendant did not own or otherwise exercise control over the premises where
the injury occurred, that it had no employees working on the premises, that the owner of
the premises was not an agent of Defendant, and that Defendant was not involved in the
day-to-day operations on the premises. The trial court therefore concluded that Defendant
had negated an essential element of Plaintiff’s claim.
Before the trial court entered its written orders, Plaintiff filed a motion to alter or
amend, arguing that the motion to correct misnomer was properly before the trial court and
should have been considered. According to Plaintiff, if the motion to correct misnomer
had been granted by the trial court, the summary judgment motion would have been moot
and Plaintiff would have been permitted to continue its action against the franchisee, JAK
Foods, Inc. Plaintiff requested that the trial court “reconsider its rulings and whether
Plaintiff may proceed with discovery so that she can attempt to continue her potential case
against the franchisee.”
The trial court subsequently entered an order denying Plaintiff’s motion to alter or
amend. In its order, the trial court noted that it “considered and noted the extreme lack of
due diligence exhibited by the Plaintiff” and further stated that no additional due diligence
was performed by Plaintiff from July 2020 to January 2021. Upon its consideration of the
procedure of the case and the actions and omissions by Plaintiff, the trial court denied
Plaintiff’s motion to alter or amend. Plaintiff timely filed a notice of appeal to this Court.
II. ISSUES
Plaintiff raises the following issue on appeal, which has been restated slightly:
Whether the trial court erred by denying Plaintiff’s motion to correct
misnomer and to allow additional discovery.
III. STANDARD OF REVIEW
Both parties cite to the standard of review for motions to amend the pleadings. With
respect to amendments, a trial court has broad discretion. Runions v. Jackson-Madison
Cnty. Gen. Hosp. Dist., 549 S.W.3d 77, 84 (Tenn. 2018). As such, a trial court’s decision
concerning whether to grant or deny a motion to amend the pleading is reviewed for an
abuse of discretion. See Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 318 (Tenn.
2021). Our Supreme Court has explained that “[a] court abuses its discretion when it
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applies an incorrect legal standard or its decision is illogical or unreasonable, is based on a
clearly erroneous assessment of the evidence, or utilizes reasoning that results in an
injustice to the complaining party.” Id. (quoting Runions, 549 S.W.3d at 84) (other internal
citations omitted).
IV. ANALYSIS
At the outset, we address the contention in Plaintiff’s brief that the trial court “erred
in granting summary judgment . . . .” Defendant argues on appeal that Plaintiff has waived
any issue concerning the trial court’s grant of summary judgment by failing to comply with
Tennessee Rule of Appellate Procedure 27. We agree. Plaintiff has not designated the
grant of summary judgment as an issue for review. See Tenn. R. App. P. 27(a)(4); see also
Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (noting that an appellant’s “issue may
be deemed waived when it is argued in the brief but is not designated as an issue”). Further,
Plaintiff makes no argument regarding the reasoning behind the trial court’s grant of
summary judgment in favor of Defendant, only stating that the decision was in error. A
“skeletal argument that is really nothing more than an assertion will not properly preserve
a claim.” Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (quoting
Newcomb v. Kohler Co., 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006)). Consequently, this
issue is waived.
The only issue properly before this Court, then, is whether the trial court erred by
denying Plaintiff’s “Motion to Correct Misnomer” and her request seeking additional
discovery concerning whether JAK Foods, Inc. was given timely notice of the action.
While Plaintiff titled her motion “Motion to Correct Misnomer,” Plaintiff actually sought
to substitute JAK Foods, Inc., an entirely different party, as defendant after the statute of
limitations was expired.2
Tennessee Rule of Civil Procedure 15.01 provides in pertinent part:
A party may amend the party’s pleadings once as a matter of course
at any time before a responsive pleading is served or, if the pleading is one
to which no responsive pleading is permitted and the action has not been set
for trial, the party may so amend it at any time within 15 days after it is
served. Otherwise a party may amend the party’s pleadings only by written
consent of the adverse party or by leave of court; and leave shall be freely
given when justice so requires.
Per Rule 15.01, once a defendant answers a complaint, the complaint may be
amended only by written consent of the defendant or by leave of the trial court. See Tenn.
2
Specifically, Plaintiff requested “that the pleadings be amended so that JAK FOODS, INC.
replaces Long John Silver’s LLC, individually and d/b/a Long John Silver’s anywhere they appear.”
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R. Civ. P. 15.01. Rule 15.01 “does not, however, provide that leave to amend ‘shall be
given,’ only that it ‘shall be freely given’ when justice requires it.” Padgett v. Clarksvillle-
Montgomery Cnty. School System, No. M2017-01751-COA-R3-CV, 2018 WL, 5881766,
at *4 (Tenn. Ct. App. Nov. 9, 2018) (citing Waters v. Coker, No. M2007-01867-COA-RM-
CV, 2008 WL 4072104, at *4 (Tenn. Ct. App. Aug. 28, 2008)). Courts have identified
several considerations that, alone or in combination, may result in the trial court’s denial
of a motion to amend the pleadings, including (1) undue delay in filing the motion
requesting the amendment, (2) lack of notice to an opposing party, (3) bad faith by the
moving party, (4) repeated failure to cure deficiencies with previous amendments, (5)
futility of the proposed amendment, and (6) undue prejudice to an opposing party.
Hardcastle v. Harris, 170 S.W.3d 67, 81 (Tenn. Ct. App. 2004). Regarding undue delay,
this Court has explained:
While delay alone is an insufficient basis for denying leave to
amend, Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986),
unexplained delay coupled with other factors may constitute “undue delay”
within the meaning of the Rule as construed in Foman v. Davis, Merriman v.
Smith and other cases. One such factor is where the party seeking to amend
has known all of the facts underlying the amendment since the beginning of
the litigation.
March v. Levine, 115 S.W.3d 892, 909 (Tenn. Ct. App. 2002).
In denying Plaintiff’s motion, the trial court considered Plaintiff’s delay and found
an “extreme lack of due diligence” on Plaintiff’s part. The trial court further considered
that Plaintiff had not performed any “additional due diligence” while the motion was
pending. Although Plaintiff argues on appeal that the trial court abused its discretion, we
disagree.
First, it is unclear from Plaintiff’s “Motion to Correct Misnomer” that she properly
sought the trial court’s permission to file an amended complaint against a new party, insofar
as the relief sought by Plaintiff was simply “that the pleadings be amended so that JAK
FOODS, INC. replaces Long John Silver’s LLC, individually and d/b/a Long John Silver’s
anywhere they appear.” Accordingly, we take no issue with the trial court’s finding that a
proper motion to amend was not before the court.3 Further, even to the extent Plaintiff’s
motion may be construed as a motion to amend, the trial court did not abuse its discretion
in denying the motion because Plaintiff has never offered a sufficient reason for the delay.
Plaintiff filed her complaint against Defendant on February 24, 2020. Plaintiff admits that
she received an email from defense counsel on March 12, 2020, informing her that JAK
3
In her appellate brief, Plaintiff does not address the trial court’s finding that a proper motion to
amend was not before the court; rather, she focuses on the issue of notice and the argument that Plaintiff
should have been allowed to take depositions.
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Foods, Inc. was the franchisee. Thus, Plaintiff was aware of JAK Foods, Inc.’s existence
as the correct party to sue from the outset of the litigation. Nonetheless, Plaintiff failed to
file an amended complaint at that time in order to name the proper party. Thereafter, in
April 2020, Defendant filed its answer denying that it was the owner or operator of the
restaurant. After no request to amend the complaint for almost three months, Defendant
then filed a motion for summary judgment in June 2020, asking the trial court to dismiss
the action against it with prejudice.
Plaintiff was required to seek agreement from Defendant or leave from the trial court
in order to amend her Complaint and add a new party. Tenn. R. Civ. P. 15.01. Under the
facts of this case, we cannot say that the trial court abused its discretion in denying Plaintiff
relief. Plaintiff had ample opportunity to properly move to amend her Complaint. Instead,
she waited several months before filing a “Motion to Correct Misnomer,” which was not
filed until July 28, 2020, the day Defendant’s summary judgment motion was to be heard.
See Padgett, 2018 WL 5881766, at *4 (quotations omitted) (“[I]t is well-settled in
Tennessee that a trial court should deny a motion for leave to amend a complaint where the
motion is an improper attempt to avoid the entry of summary judgment.”).
Plaintiff argues on appeal that her delay in naming the correct party was due in large
part to COVID-19 restrictions and the fact that “[d]epositions were particularly difficult
during the pandemic.” We are unpersuaded by this argument, however, because Plaintiff
did not need to take a deposition to know that she sued the wrong entity. Plaintiff also
relies on Tennessee Rule of Civil Procedure 15.03, which explains:
An amendment changing the party or the naming of the party by or
against whom a claim is asserted relates back if the foregoing provision is
satisfied and if, within the period provided by law for commencing an action
or within 120 days after commencement of the action, the party to be brought
in by amendment (1) has received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the merits,
and (2) knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought against the
party.
Plaintiff argues on appeal that Rule 15.03 “allows for relation back in this case.” Plaintiff
avers that Defendant’s counsel stated that the case would be tendered to JAK Foods, Inc.,
and that the correct defendant therefore had notice of the suit. Relation back pursuant to
Rule 15.03 is not the issue, however, because the trial court concluded that, based on the
procedural posture of the case, Plaintiff had not properly sought leave to amend her
Complaint to add the correct party. Stated differently, we need not reach the issue of
whether an amendment would relate back because the trial court denied Plaintiff the
opportunity to amend at all based upon Plaintiff’s lack of due diligence. And, as addressed
above, this was not an abuse of discretion under all of the circumstances.
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V. CONCLUSION
The judgment of the trial court is affirmed. Costs on appeal are assessed against the
appellant, Bonnie S. Bodine, for which execution may issue if necessary.
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KRISTI M. DAVIS, JUDGE
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