Articles Posted in Miscellaneous

The  recent Tennessee Court of Appeals opinion n Davis v. Covenant Presbyterian Church discussed a host of issues.

What is Required to Properly Allege Vicarious Liability?

The Court of Appeals affirmed dismissal of vicarious liability claims against two religious organizations (one unincorporated and one a nonprofit corporation). The plaintiffs’ allegations against both organizations were essentially that each defendant existed under the laws of a state and had a principal place of business there, and had “actual and/or apparent authority” over another corporation, Covenant. The plaintiffs’ complaint did not explain how either defendant had authority over Covenant or anything else factual to create a principal/agent relationship with Covenant. Nonetheless, the plaintiffs alleged that both of the religious organization defendants were vicariously liable for Covenant and all of Covenant’s employees and agents. Because the plaintiffs’ complaint lacked any factual basis for asserting vicarious liability, the Court of Appeals affirmed dismissal of both religious organizations.

My newest book,  Tennessee Law of Civil Trial, examines the law of trying civil  cases in Tennessee state courts.   Here is the Table of Contents:

Chapter 1: Scheduling Orders
Chapter 2: Final Pretrial Conferences
Chapter 3: Motions in Limine
Chapter 4: Jury Selection
Chapter 5: The Rule
Chapter 6: Opening Statements and Closing Arguments
Chapter 7: Examination of Witnesses
Chapter 8: Use of Depositions at Trial
Chapter 9: Opinion and Expert Testimony
Chapter 10: Mistrials
Chapter 11: Motions for Directed Verdict
Chapter 12: Findings of Fact
Chapter 13: Jury Instructions
Chapter 14: Juror Questions
Chapter 15: Verdict Forms
Chapter 16: Discretionary Costs
Chapter 17: Motions for a New Trial and to Alter or Amend Judgment
Chapter 18: Remittitur
Chapter 19: Additur
Chapter 20: Motions for Judgment Notwithstanding the Verdict
Chapter 21: Preparing to Win at Trial

If you want to get a good feel for the book, clicking on the link and enjoy a free preview of the chapter on scheduling orders. You can purchase the 500-page book for only $49.95 by clicking on the link.

Tennessee Law of Civil Trial has been printed and is now available for purchase.  

The 500+ page book is largely a discussion of the law of trying civil cases in Tennessee – the law of scheduling orders, pretrial conferences, jury selection, opening statement and closing arguments, use of depositions at trial, and more.  

The book does touch on some aspects of the law of evidence, but candidly the book largely leaves that topic to other texts.   Instead, this book is designed to be a reference guide that judges and lawyers can turn to for a ready reference on the substantive law of trial.

Mr. Fleming needed medical forms completed for his workers’ compensation case.  He submitted the forms to the defendants but after “20 or more days” he had still not received the completed forms and his phone calls were not being returned.   Consequently, a frustrated Mr. Fleming filed a civil warrant in Shelby County General Sessions Court alleging “dereliction of duty, negligence and conspiracy”, which had caused him “financial and stressful harm.”   Seven months later, in January of 2012, the Defendants filed a motion to dismiss based on the Tennessee Medical Malpractice Act (TMMA). Defendants argued Mr. Fleming had failed to provide written notice of the claim and had failed to supply a good faith certificate. The case was dismissed by the General Sessions judge.

Undeterred, Mr. Fleming appealed to Shelby County Circuit Court.   In July of 2012, the Defendants again filed a motion to dismiss with the same arguments made in the General Sessions matter.   A month later, the Court held a hearing. At the beginning of the hearing, Mr. Fleming was finally given his completed forms which he had been pursuing for more than one year. Since he had finally received the paperwork, Mr. Fleming did not oppose the motion to dismiss. As such, the trial court entered an order granting the unopposed motion to dismiss and citing the failure to comply with the TMMA. 

But that was not the end of the matter because the trial court assessed costs against Mr. Fleming. In response to the assessment of costs, Mr. Fleming filed a “Motion for Judicial Review” In his motion, Mr. Fleming outlined his efforts to obtain the records which included 2 court appearances, 15 phone calls to the Defendants and an appointment with Dr. Sanai. Since he ultimately obtained the relief he sought (his medical forms) at the hearing on the motion to dismiss, Mr. Fleming argued he was the prevailing party and costs should not have been assessed against him. The Defendants opposed Mr. Fleming’s motion citing the trial court’s order granting the motion to dismiss based on the failure to comply with the TMMA. After a hearing, the trial court denied Mr. Fleming’s Motion for Judicial Review. 

My newest book, Tennessee Law of Civil Trial, will be released on July 1, 2014 and may be ordered now for July 1 delivery.

The book consists of 500+ pages of the law of civil trial in Tennessee, covering the law of scheduling orders to the law of motions for a new trial or judgment notwithstanding the verdict.  Also included is a chapter called "Preparing to Win At Trial" which consists of over 75 tips that I have developed over the years and multiple forms and checklists. 

Click on the link to see the Table of Contents. 

In Tennessee, the essential elements of a malicious prosecution claim are (1) the defendant filed suit or instituted a judicial proceeding without probable cause, (2) the defendant brought the action with malice, and (3) the prior action was finally terminated in the plaintiff’s favor.

If the judgment in the prior action is terminated in the plaintiff’s favor, then the probable cause element is also met so long as the judgment was not procured by fraud.

A malicious prosecution claim may be brought as a result of a civil or criminal matter.

Tennessee courts recognize a claim for intentional interference with business relations, but this multi-year dispute did not end well for the claimant.

In Stratienko v. Chattanooga-Hamilton County Hospital Authority, No. 2011-01699-COA-R3-CV (Tenn. Ct. App. Nov. 21, 2013),the Tennessee Court of Appeals affirmed dismissal of a plaintiff doctor’s claim for intentional interference with business relations. The case has a substantial procedural history, having been previously appealed through the Tennessee Court of Appeals to the Tennessee Supreme Court, as well as to the Sixth Circuit Court of Appeals in an almost identical federal suit. In sum, the case stems from an alleged physical altercation in 2004 between Dr. Stratienko and another doctor in the break room of hospital owned and operated by the defendant Chattanooga-Hamilton County Hospital Authority.

Before addressing the claim for intentional interference of business relations, the Stratienko court rejected the plaintiff’s contention that the trial court had incorrectly dismissed on summary judgment his other claims for breach of contract, inducement of breach of contract, conspiracy, and immunity. The plaintiff argued that there were disputed facts regarding the physical altercation, the investigation of the incident, and the plaintiff’s subsequent suspension. The Court of Appeals, however, observed that the federal district court and the Sixth Circuit had previously made findings of fact relative to the incident, investigation, and suspension, and those findings constituted the law of the case. Under Tennessee’s law of the case doctrine, an appellate court’s decision (state or federal) on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. See Life & Casualty Ins. Co. v. Jett, 133 W.W.2d 997, 998-99 (Tenn. 1939). Therefore, the Court of Appeals refused to reconsider the facts at issue.

The New York Times had a nice obituary about the life and death of Bob Gibbons, a fine trial lawyer and gentleman from Austin, TX. 

I know – I have gone off the grid.  For the past couple of months I have been extremely busy and my law practice has simply consumed the vast majority of my time.  I have also worked on an article that I was asked to write for the inaugural edition of Belmont University Law Review  and  also the 2013 edition of my most recent book, Compendium of Tennessee Tort Reform Statutes and Related Case Law, 2008-2013.  (This book will be available October 20, 2013.)  I have also been preparing for my presentations at the 10th annual Tennessee Justice Programs seminar series. 

Well, I’m back.  Look for several posts every week about tort law in Tennessee and around the nation. Your comments are always welcome.

Ok, State v. Zimmerman was a criminal case, not a civil case. much less a tort case. (Zimmerman may be sued by Martin’s family – more on that below). But, in the "for what it’s worth department, here are my comments on the criminal verdict:

1. I don’t know if Zimmerman murdered Martin or if he did not.

2. I know that Zimmerman killed Martin.