§47.6H Certificate of Good Faith - No Duty to Disclose Zero Prior Violations
The Case: Davis ex rel. Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015).
The Basic Facts: Plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.
The Bottom Line:
· “In Vaughn ex rel. Vaughn v. Mountain States Health Alliance, the Court of Appeals considered the issue at question in the instant case and held that a plaintiff’s certificate of good faith is noncompliant with section 29-26-122(d)(4) and therefore requires dismissal with prejudice when the plaintiff fails to disclose the absence of prior violations.” 465 S.W.3d at 573.
· “We disagree with these holdings of the Court of Appeals and conclude that this interpretation of the requirement of Tennessee Code Annotated section 29-26-122(d)(4) is inconsistent with a fair reading of the language of the statute. On its face, the plain language of the statute requires disclosure of ‘the number of prior violations of this section by the executing party.’ Tenn. Code Ann. § 29-26-122(d)(4) (emphasis added). It does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations, there is no ‘number of prior violations’ to disclose. Therefore, we conclude that the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith disclose the number of prior violations of the statute does not require disclosure of the absence of any prior violations of the statute.” Id. at 574.
Recent Cases: Kerr v. Thompson, No. W2014-00628-COA-R9-CV, 2015 WL 3580738 (Tenn. Ct. App. June 9, 2015) (a certificate of faith that did not state that the executing party had zero prior violations was still “fully compliant” with the HCLA).