The Franchise Memorandum

An appellate court in Tennessee affirmed denial of a “Motion to Correct Misnomer,” which resulted in dismissal of a premises liability action for injuries allegedly sustained in a fall at a Long John Silver’s restaurant. Bodine v. Long John Silver’s LLC, 2022 WL 128473 (Tenn. Ct. App. Jan. 14, 2022). A customer of a franchised Long John Silver’s restaurant in Kimball, Tennessee filed suit against Long John Silver’s (LJS), alleging that she was injured in a fall sustained while crossing the restaurant parking lot. After receiving notice of the action, LJS informed her that the restaurant was operated by its franchisee, and that LJS did not own, operate, or control the restaurant. Several months passed without action by Bodine to amend the complaint to name the franchisee. LJS then filed an answer to the complaint and moved for summary judgment based on the undisputed fact that it was not the operator of the restaurant and therefore owed no duty of care to the customer.

On the hearing date for LJS’s motions, and after the statute of limitations on the customer’s claim had run, she filed a “Motion to Correct Misnomer,” seeking to “correct” the name of the defendant to JAK Foods, the franchisee. At a later hearing on both parties’ motions, the trial court (a) denied the motion to correct, citing an extreme lack of due diligence in failing to take timely action against the proper defendant, and (b) granted LJS’s motion for summary judgment, holding that LJS did not own or control the premises and therefore had no duty towards the customer. The appellate court held that the customer had failed to properly and timely seek leave to amend the complaint, and that there was no abuse of discretion on the part of the trial court in light of Bodine’s lack of due diligence. It declined to review the grant of summary judgment however, as the customer failed to properly designate that decision as an issue in her appeal.