Articles Posted in Miscellaneous

Earlier today I received this email from a law firm:

I was looking at your website and noticed that you handle product liability cases. We (XXXXXX) are a co-counsel/case acquisition firm. There may be some synergy between our two firms worth exploring. I have some time Thursday or Friday for a brief chat. Let me know your thoughts.

(Emphasis added.)

In Commercial Painting Co., Inc. v. The Weitz Co., LLC, No. W2013-01989-COA-R3-CV (Tenn. Ct. App. June 20, 2016), the Court of Appeals reversed a trial court’s grant of summary judgment on claims for negligent and intentional misrepresentation.

Plaintiff was a drywall subcontractor, and defendant was a general contractor with whom plaintiff had entered into an agreement to perform work on a construction project. According to the complaint, plaintiff alleged that:

  • Defendant had revised the project schedule with the project owner to show that a longer construction timeline was needed, yet the “out-of-date and erroneous schedule” was used when negotiating with plaintiff;

A recent Court of Appeals case serves as a reminder of the difficulty of proving actual malice in a false light claim made by a public official.

In Eisenstein v. WTVF-TV, No. M2015-00422-COA-R3-CV (Tenn. Ct. App. May 3, 2016), plaintiff was a Davidson County General Sessions Judge suing a TV station and various reporters regarding a story aired in 2011. The story focused on whether plaintiff “hired an unlicensed individual to act as a psychologist for the drug court program.” The Court of Appeals opinion contained a transcript of the broadcast, which revolved around a Dr. Casey who was paid by the drug court and allegedly held out to some drug court defendants to be a psychologist, but who was not in fact licensed as a psychologist in Tennessee. The report included a statement that plaintiff judge “wanted to put Casey on staff using federal money, writing in this memo that Casey had proven himself an excellent psychologist.” The broadcast showed the reporter approaching plaintiff judge, and plaintiff not answering questions posed by the reporter.

Plaintiff argued that the “broadcast placed him in a false light by implying that he lied on a federal grant application and by indicating that he was uncooperative.” Because plaintiff was a public figure, he had to show actual malice to prove his false light claim, and defendants moved for summary judgment on the basis of plaintiff’s inability to make such a showing.

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In a 40-plus page opinion that reads like a prince-handing-out-gold email scam, the Tennessee Supreme Court affirmed a trial court’s judgment that a plaintiff had not proven intentional misrepresentation because his reliance on the statements made could not possibly have been reasonable.

In Estate of Lambert v. Fitzgerald, No. E2015-00905-COA-R3-CV (Tenn. Ct. App. April 28, 2016), plaintiff had known defendant attorney for over forty years. Defendant somehow became involved with an “investment” scheme wherein he was promised astronomical returns on his money. Defendant was giving large sums of cash to a “diplomat” in London, who had obtained possession of six crates containing a total of $150,000,000 in U.S. currency from a man in South Africa. The money, though, allegedly had to be washed and go through various other procedures to be released. Upon its release, defendant said he had been promised $25,000,000. At some point, defendant got plaintiff involved with the promise that plaintiff too would receive $25,000,000, and plaintiff began writing large checks to defendant when asked to do so for the investment. The head of this investment scheme, Brindley, kept giving reasons it failed to close when promised—an additional license was needed, the money had to be moved to a mint in Scotland, he had to get an anti-terrorism certificate from the government—and asking for more money to help accomplish the eventual release of the cash. All information plaintiff received about the investment came from defendant, and plaintiff only spoke to Brindley two times on the phone. Even after multiple promised payout dates fell through, plaintiff continued to give more money to the scheme. Plaintiff ultimately “invested” more than $500,000 in the scheme through defendant, and defendant alleged that he invested $517,000 of his own money as well.

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Day on Torts:  Leading Cases in Tennessee Tort Law is in its third edition, and now that edition is being supplemented with a 300+ page volume.

The 650+ page  third edition of the book contains a ready reference to hundreds of leading Tennessee tort cases, organized by subject.  The 2016 supplement adds eight new chapters, 91 new sections, and over 160 new cases.   Some cases which I previously designated as “leading cases” have been supplanted by other, more recent decisions.

I compiled the cases for this book to give Tennessee tort lawyers and judges an easy way to find the leading case on any particular tort law subject, giving them a starting place for more in depth research.

In Kuhn v. Panter, No. M2015-00260-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2015), the Court of Appeals affirmed a finding of gross negligence against the owners of a mini storage facility.

Here, defendants had advertised the mini storage facility as “clean and dry.” Plaintiffs rented one of the units in 2011 and stored many personal belongings there, including photographs, a family Bible, clothes and furniture. In May 2013, plaintiffs found that their unit had flooded and ruined all of their personal property.

Plaintiffs filed suit in sessions court and were awarded a judgment there, which defendants appealed to circuit court. During a bench trial, the evidence showed that the building had “drainage issues” during construction and the city issued a stop work order on it. Moreover, when the building was eventually completed, there was never a final inspection by the city and a certificate of occupancy was never issued. A witness for plaintiffs testified that the building housing their storage unit was “eleven inches lower than the surrounding storage buildings.” Further, it was shown that an “agent [of defendants] testified in a prior hearing that the unit rented to [plaintiffs] had flooded on a prior occasion.” Based on these facts, the trial court found defendants had committed gross negligence, and the Court of Appeals affirmed.

In Ward v. Ward, No. M2014-02237-COA-R3-CV (Tenn. Ct. App. Oct. 30, 2015), plaintiff sued for injuries her daughter sustained in an ATV accident. Daughter, who was 15 years old, was staying with her step-grandmother, the defendant in this action. Defendant gave daughter permission to drive defendant’s ATV to accompany defendant’s nephew as he drove a friend home. The destination was approximately one mile from defendant’s home. Daughter’s friend rode on the ATV with her. Daughter drove to the destination, but before returning to defendant’s home daughter switched with her friend and her friend drove on the return trip. The friend failed to make a turn and drove the ATV off a cliff.

Plaintiff asserted several theories of liability, but the only claims at issue on appeal were for negligent entrustment and negligent supervision. The trial court granted summary judgment to defendant on both of these claims, and the Court of Appeals affirmed.

To prove negligent entrustment, “a plaintiff must demonstrate that (1) a chattel was entrusted, (2) to a person incompetent to use it, (3) with knowledge that the person is incompetent, and (4) that its use is the proximate cause of injury or damage to another.” (internal citation omitted). Defendant first asserted that she was entitled to summary judgment because she only entrusted the ATV to daughter, not to the friend. Defendant pointed to testimony given by daughter in her first deposition where she testified that Defendant told her to drive. Plaintiff refuted this fact, though, with evidence that during daughter’s second deposition she testified that defendant did not specify who was supposed to drive, and that defendant told daughter and friend that “they” could use the ATV. The Court found that this evidence created a genuine issue of material fact, so summary judgment was not appropriate based on the argument that defendant did not entrust the ATV to the friend.

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Keith Lee at Associate’s Mind has a great post titled “Do You Feed Your Resume or Your Eulogy?”    He was inspired to write the post by this column written by David Brooks.

Keith starts his post with these words from Brocks’ column:  “It occurred to me that there were two sets of virtues, the résumé virtues and the eulogy virtues. The résumé virtues are the skills you bring to the marketplace.”The eulogy virtues are the ones that are talked about at your funeral ….”

Both the column and the post are worth the read.  About ten years ago I started moving down the “eulogy” path, deciding I would not undertake any new professional association, etc. work unless it was something I wanted to do and wanted in my obituary.  There are just too many demands and too little time.   As a result, I have turned down many opportunities that were presented to me but have managed to spend more time with my family and on my practice.

In Jenkins v. Big City Remodeling, No. E2014-01612-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2015), plaintiffs had hired defendant general contractor to construct a home for them.  General contractor, in turn, had hired defendant flooring subcontractor for the project. When the home was almost complete, it caught fire and resulted in a total loss. Plaintiffs sued the general contractor and subcontractor for negligence, including negligence based on the doctrine of res ipsa loquitur. The trial court granted summary judgment to all defendants. On appeal, the Court of Appeals affirmed summary judgment as to the general contractor but reversed as to the claim of negligence against the flooring subcontractor.

The facts established that the day before the fire, the owners had been in the home, and they had retained a key during construction. Further, the construction site was not fenced or otherwise blocked from public access. When the fire occurred, one of the only remaining projects was to stain the wood floors in the home. On the day of the fire, several subcontractors had been working on the house, including Julian Luu, who was working on the floor stain. Based on camera footage from a neighboring property, Mr. Luu was the last person to leave the property at around 6:10 p.m., and the fire started around 7:50 p.m.

Plaintiffs’ theory was that the flooring subcontractors, who had been known to smoke a lot on the site, “allowed flammable rags to remain on or near the exterior deck and also smoked cigarettes in the area.” Plaintiffs claimed that “the improper disposal of cigarette butts resulted in the stain-soaked rags igniting, causing the fire.” Although the fire destroyed any evidence of rags, buckets with staining rags and cigarette butts were found in a dumpster on the property. Plaintiffs’ expert testified that “he believed the fire began on the exterior deck,” but the expert admitted that he could not be certain and that he could not conclusively rule out arson or electrical problems.

A recent Court of Appeals decision serves as a good refresher on the elements and defenses in a malicious prosecution case. In Preston v. Blalock, No. M2014-01739-COA-R3-CV (Tenn. Ct. App. May 29, 2015), tenant’s plastic surgery business had signed a lease to rent landlord’s office suite. Tenant stopped paying rent, and landlord filed a breach of contract claim for rent, build-out costs and attorneys’ fees. Landlord was awarded a default judgment, and tenant eventually paid to satisfy that judgment. Landlord subsequently filed another complaint seeking additional attorneys’ fees. Landlord then nonsuited that complaint but filed again seeking additional rent that he claimed had come due.

While this complaint was pending, tenant filed an abuse of process complaint against landlord. The factual basis for tenant’s complaint was that landlord had filed against tenant personally as a guarantor before filing against the business as the principal, that landlord had filed a document entitled partial satisfaction of judgment when tenant had paid the entire judgment, that landlord had given “false and misleading testimony at depositions,” and that landlord had filed “a multiplicity of claims in order to drive up the amount of attorney’s fees.” The trial court granted summary judgment to landlord in the abuse of process case.

After the abuse of process case was finalized, landlord filed a complaint alleging malicious prosecution against tenant and tenant’s lawyer. He asserted that “defendants filed the abuse of process suit…for an improper purpose and without probable cause in an attempt to gain an advantage in the pending breach of lease litigation[.]” The trial court granted summary judgment to tenant/defendant, and the Court of Appeals affirmed.

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