Articles Posted in Miscellaneous

In Parvin v. Newman, No. E2016-00549-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2016), the Court of Appeals affirmed summary judgment for defendant in an abuse of process claim.

Husband and wife had litigated a contentious divorce, and during the course of that proceeding, wife had filed a Motion to Impose Sanctions for Contempt. Nine months and many filings later, a Final Judgment of Divorce was entered in the case, with the parties stipulating to the terms of the divorce. Particularly of note, the divorce judgment stated that “the parties had reached an agreement to settle and compromise all of the matters in dispute between them and that they [had] freely, voluntarily and knowingly entered into an agreement that is reflected” in the final judgment.

Three months after the divorce was finalized, husband filed this abuse of process claim against wife, alleging that “Wife’s purpose in filing her July 2014 contempt motion had been to harass him, cause him to incur unnecessary expenses to defend the motion, weaken his resolve to continue litigation of the divorce, and settle for terms favorable to wife.” Wife argued, however, that “husband’s complaint should be dismissed on the basis of res judicata and because the undisputed facts negate the essential elements of husband’s claims for abuse of process.”

The trial court ultimately granted summary judgment to wife on the basis of both res judicata and husband’s inability to prove his case, and the Court of Appeals affirmed.

Plaintiff husband argued that his abuse of process claim was a separate tort claim that he had not had the opportunity to litigate in the divorce case. He stated in an affidavit to the trial court that “if [he] had amended [his] divorce complaint to allege abuse of process it would have hardened wife’s position toward settlement.” He also asserted that he “entered into the divorce settlement under duress,” as he “did not want to have to defend [himself] against charges that might [have] land[ed] [him] in jail.” The Court, though, rejected this argument.

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In Hoynacki v. Hoynacki, No. E2015-02084-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2016), the Court of Appeals overturned summary judgment in a case about whether a dad had a duty to hold or stabilize a ladder for his son.

Defendant father owned an RV, and while he was camping in North Carolina near where his son lived, he called his son and asked him to help wax the RV. The two spent Saturday and Sunday waxing the RV. “When the RV’s height required the use of a ladder, plaintiff got on it to wax the top parts, and defendant stayed on the ground to stabilize and secure the ladder.” On their second day of work, plaintiff was on the ladder waxing the front part of the RV above the windshield. The ground where the ladder was sitting sloped away from the RV such that one side of the ladder was lower than the other. Defendant placed the ladder in this position, and then walked to the other side of the RV while plaintiff was working. When plaintiff began to come down the ladder, the ladder fell and plaintiff was seriously injured.

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In Thompson v. Best Buy Stores, L.P., No. E2015-02304-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2016), the Tennessee Court of Appeals affirmed a ruling that an employer had no duty to prevent an employee from leaving the premises in his own car.

Plaintiff was an employee at a Best Buy store (“defendant”). Before work one day, plaintiff received a package in the mail containing “a chemical cousin of valium,” which he had ordered off the internet. Plaintiff testified that he took three drops of the substance before reporting to work that day, and that “he remembers clocking in, but after that, he has no memory of anything else that happened that day.”

During work, one of plaintiff’s co-workers told the assistant sales manager on duty that “plaintiff was acting slow, tired and not very responsive.” The manager made the decision that plaintiff should not operate a piece of heavy machinery in the store warehouse, and he eventually told plaintiff to clock out and end his shift early. The manager noted at trial that no one at the store mentioned or suspected that plaintiff was on any drugs. He also stated that he did not tell plaintiff he had to go home or leave the premises, but simply to clock out. After plaintiff clocked out, he apparently got into his car to head home and was in a car accident, wherein his car hit a median wall then bounced into a pickup truck, totaling both vehicles.

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Lawyer Paul Newton of Gulfport, Mississippi filed a lawsuit against Popeye’s for not supplying him with a knife in his take-out chicken bag.  He says the lack of a knife (he did receive a spork) caused him to use his teeth to tear the chicken from the bone when he was consuming it back at his office.   According to the complaint, he choked on a piece of chicken.

Newton later dismissed the case, reportedly because of “extreme comments directed to me and my family.”

Newton’s unclaimed Avvo profile indicates that he has been practicing law for 35 years.

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks.   Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago.  Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions.   Other topics are listed on the Justice Programs website.  Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year.  Please join us in

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.