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§47.1 Ad Damnum

§ 47.1     Ad Damnum

 

The Case:  Romine v. Fernandez, 124 S.W.3d 599 (Tenn. Ct. App. 2003).

 

The Basic Facts:  Plaintiffs in medical negligence suit received favorable jury verdict, but their complaint lacked a specific ad damnum. 

 

The Bottom Line:

 

·       “In their remaining issue, Dr. Isom and Ms. Fernandez argue that the Romines are not entitled to recover the awarded damages, including costs, when they failed to include a prayer for relief or an ad damnum clause in either of their complaints.  Specifically, Dr. Isom and Ms. Fernandez claim that the judgment is void because it exceeds the relief prayed for in the complaint and amended complaint.  Dr. Isom and Ms. Fernandez provide the court with multiple cases which stand for the well-settled proposition that a party is limited to the relief prayed for in his complaint.”  124 S.W.3d at 605.

 

·       “As Dr. Isom and Ms. Fernandez point out, Rule 8.01 of the Tennessee Rules of Civil Procedure require a statement demonstrating that the pleader is entitled to relief and a demand for judgment.  Tenn. R. Civ. P. 8.01.  As some commentators have noted, our state rules ‘do not permit . . . a party to recover money damages in excess of the amount sought in the ad damnum of the complaint.’  Robert Banks, Jr. & June F. EntmanTennessee Civil Procedure § 5-4(c) (1999); see also Cross v. City of Morristown, C.A. No. 03A01-9606-CV-00211, 1996 Tenn. App. LEXIS 677, *9 (Tenn. Ct. App. Oct. 22, 1996) (holding ‘A judgment that exceeds the ad damnum clause is invalid’).  Here, the Romines did not seek any money damages or any other relief in either the complaint or amended complaint.  The only request they made was for a jury trial.”  Id.

 

·       “In response, the Romines argue that the trial court’s award of damages should be affirmed because the express language of Tennessee Code Annotated section 29-26-117 gives the plaintiff in a medical malpractice case the choice to pray for relief.  Tennessee Code Annotated section 29-26-117 states ‘[i]n a medical malpractice action the pleading filed by the plaintiff maystate a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case; notwithstanding the provisions of § 20-9-302 to the contrary.’  Tenn. Code Ann. § 29-26-117 (emphasis added).  The Romines argue that it is within the discretion of a plaintiff in a medical malpractice case whether or not to pray for a specific amount of money damages because the statute uses the word ‘may.’  The Romines urge this Court to find that the well-established rule referenced by Dr. Isom and Ms. Fernandez should not be applicable to medical malpractice cases or its application would be contrary to Tennessee Code Annotated section 29-26-117.  We agree.”  Id. at 605-06.

 

·       “In section 29-26-117, the legislature purposefully used the word ‘may.’  The statue provides that ‘the pleading filed by the plaintiff may state a demand for a specific sum,’ thus making the inclusion of an ad damnum clause permissive in a medical malpractice case.  As such, the Romines were not required to state a demand for a specific sum in their pleadings.  See Tenn. Code Ann. § 29-26-117.  Thus, we affirm the trial court’s award of damages to the Romines.”  Id. at 606.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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