Book Review – Tennessee Law of Civil Trial by Attorney John Day

Posted on Oct 26 2014 7:18PM by Attorney, Jason A. Lee

Many of you who practice law in Tennessee have read and used books by attorney John Day as a resource in your law practice.  These books include Day on Torts: Leading Cases in Tennessee Tort Law and Tennessee Law of Comparative Fault.  I have used both of these books on numerous occasions.  The good news is John Day now has a new book called, “Tennessee Law of Civil Trial.”  This can be added to your list of helpful Tennessee specific law books written by attorney John Day.  He sent me a copy and requested I write a review and it has been a good experience.


The main purpose of this book is to clearly outline the “Law of Civil Trial” in Tennessee in a concise helpful way.  John Day points out, as many of us have come to realize, that there are significantly less trials in Tennessee than there were in the past (I have blogged about this issue previously).  As a result, less and less attorneys have significant civil trial experience and therefore he felt a resource would be helpful for those attorneys who still occasionally go to trial but may not have the trial experience a lot of attorneys had in the past.  I think this is the primary value of this book.  The secondary value is to provide a helpful reference on specific topics for more experienced attorneys who have tried many cases.  This group of attorneys can still benefit from this book because it provides a refresher course on certain topics.  I will be placing this book in my firm’s library because it is a resource that can be taken to trial or reviewed prior to trial to remind you of certain trial concepts that we may not use on a day-to-day basis. 


This book discusses many different areas and I think it is helpful for you to know the topics so you can better understand the scope of this book.  This book provides chapters on the following topics:


            1.          Scheduling orders

            2.          Final Pretrial Conferences

            3.          Motions in

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TAGS: Miscellaneous Comments [1]

Can the Sale of Real Property Be Enforced When Title to Property Was Not Held By Seller at Time of Transaction, but is Later Acquired?

Posted on Oct 19 2014 4:39PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals’ case of Gary Atchley v. Tennessee Credit, LLC, No. M2013-00234-COA-R3-CV, 2014 WL 4629042 (Tenn. Ct. App. 2014), discussed the doctrine of “after-acquired-title” under Tennessee law.  This case is relatively straight forward.  On September 22, 2009, the plaintiff purchased from Tennessee Credit, LLC a piece of real property for $18,000.00.  At that time he signed and presented the $18,000.00 check to Tennessee Credit, LLC.  The problem was, Tennessee Credit, LLC did not actually own the property at the time of the sale.  Tennessee Credit, LLC did have the right to foreclose on the property at the time of the sale but they had not done this yet, so they did not actually own the property.  It was not until December 4, 2009 that Tennessee Credit, LLC actually owned the property.


After Tennessee Credit, LLC obtained title, the purchaser desired to rescind the transaction and demanded a refund of the $18,000.00 paid to Tennessee Credit, LLC.  This Tennessee Court of Appeals’ decision ultimately agreed that this contract could be rescinded and the $18,000.00 should be refunded to the purchaser.  The Trial Court said it best, “you can’t sell property you don’t own . . .”.  Atchley at 2.  The Appellate Court reviewed some very old Tennessee decisions from the early 1900’s and 1800’s in order to decide this case.  There has not been case law on the “after-acquired-title” doctrine at issue in this case in the last 80 years.  Tennessee Credit, LLC attempted to argue the principal of “after-acquired-title” which would allow them to enforce the transaction because they acquired the title after the transaction.  The Tennessee Court of Appeals rejected this argument and stated as follows: 


When Mr. Dunn advertised Ms. Roller's property for sale and attempted to sell the property to Mr. Atchley, he knew Tennessee Credit did not have title to the property. Like the executor in Woods, Mr. Dunn's representation that he had a right to sell Ms. Roller's property was a “species of fraud.” Therefore, in keeping with the principles announced in Woods, we do not believe Mr. Atchley should be compelled to take the after-acquired-title from Tennessee C...

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TAGS: Real Estate, Breach of Contract, Contracts Comments [2]

Is a Contract Enforceable When Person Who Does Not Understand English Signs a Written Contract in Tennessee?

Posted on Oct 5 2014 6:04PM by Attorney, Jason A. Lee

The recent Tennessee Court of Appeals’ decision of Advantage Windows, Inc. v. Oscar Zacarias, No. E2014-00122-COA-R3-CV, 2014 WL 4403106 (Tenn. Ct. App. 2014) discussed the validity of a signed contract when the individual who signed the contract does not understand English.  In the Zacarias case, an agreement was signed between a homeowner and the plaintiff construction company to perform certain work on the residence.  The homeowner never paid for the work.  Therefore, the construction company sued the homeowner for breach of contract.  The homeowner filed a counter-claim asserting he only had a limited understanding of English and that the alleged contract was actually explained to him as an “estimate”.  The Trial Court found that because the preponderance of “evidence established that Mr. Zacarias did not know or understand the English language, [t]here was no meeting of the minds and no way for Mr. Zacarias to form a binding contract with Advantage Windows.”  Advantage Windows at 2.  This case was appealed to the Tennessee Court of Appeals.


The Tennessee Court of Appeals found that in order to have a binding contract, the “contract must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be enforced.”  Advantage Windows at 3.  The Court then noted that T.C.A. § 47-50-112(a) provides a statutory presumption that a signed written agreement contains the intentions of the parties and that the individual who signed the agreement agreed to be bound by those terms.  T.C.A. § 47-50-112(a) provides in pertinent part as follows: 


(a) All contracts, including, but not limited to, notes, security agreements, deeds of trust, and installment sales contracts, in writing and...

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TAGS: Contracts Comments [0]

Trial Court Remittitur Greater Than 60% Is At Risk of Destroying a Jury’s Award Under Tennessee Law and Therefore Considered Invalid (43% Reduction Acceptable)

Posted on Sep 28 2014 3:50PM by Attorney, Jason A. Lee

A recent interesting Tennessee Court of Appeals decision, Donriel A. Borne v. Celadon Trucking Services, Inc., No. W2013-01949-COA-R3-CV, 2014 WL 3778743 (Tenn. Ct. App. 2014), discussed the extent a remittitur of a jury’s award can be allowed.  A remittitur is simply a process where the trial can reduce a jury verdict award in order to make sure the award is not excessive and is reasonable under Tennessee law.  However, a remittitur by the trial court is not allowed to “destroy” the jury’s actual award.  If the jury award is “destroyed” upon a remittitur (as found by an appellate court), then the verdict is “impermissible and must be modified or vacated.”  Borne at 21.


As a result, the question is, to what extent can an award be reduced under remittitur principles and not be “destroyed”?  The Borne decision provided a good analysis of this question.  It addressed a recent Tennessee Supreme Court decision that discussed the “destruction” of an award by remittitur as follows:


The trial court's authority to suggest a remittitur of a jury's verdict rather than grant a new trial when it disagrees solely with the award of damages is not absolute. A suggested remittitur should not be so substantial as to destroy the jury's verdict. See Foster v. Amcon Int'l, Inc., 621 S.W.2d 142, 148 (Tenn. 1981). There is no set percentage that represents the destruction of the jury's verdict. See Id. at 148 n. 9 (“[W]e do not intend to establish a numerical standard for reviewing additurs and remittiturs.”); Webb v. Canada, No. E2006–01701–COA–R3–CV, 2007 WL 1519536, at *4 (Tenn. Ct. App. May 25, 2007) (“While we decline to establish any particular percentage that would indicate a remittitur that has totally destroyed a jury verdict, we note that [large] remittiturs by percentage have been found acceptable by this Court and the Supreme Court of our state.”).


See Meals v. Ford Motor Co., 417 S.W.3d 414 (Tenn. 2013). The Borne court noted “no numerical standard has been established by which remittiturs...

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TAGS: Jury Issues, Damages, Post Judgment Motions Comments [0]

Tennessee Court of Appeals Finds Illegal Aliens Have Standing to Bring Retaliatory Discharge Claims in Tennessee

Posted on Sep 21 2014 3:18PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals in Ricardo Torres v. Precision Industries, P.I., Inc. et al. No. W2014-00032-COA-R3-CV, 2014 WL 3827820 (Tenn. Ct. App. 2014) decided whether an unauthorized alien has standing to bring a retaliatory discharge claim against their employer in Tennessee.  In this case an undocumented worker who did not have a legal right to work in the United States was allegedly fired from his job when he pursued a workers’ compensation claim.  The employee sued the employer for retaliatory discharge and asserted he was terminated because he filed a workers’ compensation claim.  The trial court dismissed this case by finding an individual who is not legally authorized to work in Tennessee did not have standing to bring a retaliatory discharge claim in Tennessee.


This case was appealed to the Tennessee Court of Appeals to determine this issue for the first time in Tennessee.  The Court noted that illegal aliens are entitled to bring Tennessee Workers’ Compensation claims despite their illegal status.  As a result, the Tennessee Court of Appeals found that “the ability to file a retaliatory discharge is a natural extension of what is already permitted in Tennessee and under other statutory schemes.” Torres at 9.  The court reasoned that since illegal employees are entitled to bring workers compensation claims, they have standing to bring retaliatory discharge claims for asserting rights under that same statutory scheme.  The Court of Appeals overruled the trial court’s dismissal of this claim and sent it back to the trial court for further proceedings.


This case is consistent with the overall trend across America that expands the rights of illegal or undocumented residents.  As this decision points out, illegal immigrants are already allowed to bring Tennessee Workers’ Compensation claims.  This case now provides an extension of those rights to retaliatory discharge claims (although this is not a Tennessee Supreme Court decision) even though illegal residents are not actually allowed to legally work in Tennessee. 


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TAGS: Damages, Tennessee Workers Compensation, Employment Law, Civil Procedure Comments [0]

Medical Malpractice - Ex-Parte Communications Between Medical Practice Defense Counsel and Non-Party Physicians Employed by Practice

Posted on Sep 14 2014 9:56PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals recently decided an important issue that comes up often in medical malpractice (health care liability) cause of actions in Tennessee.  The case of Cheryl Hall v. James H. Crenshaw, M.D. et al, No. W2013-00662-COA-R9-CV, 2014 WL 3555987 (Tenn. Ct. App. 2014) dealt with a situation where the plaintiff sued the Jackson Clinic under a vicarious liability theory for the actions of one of its physicians.  The plaintiff then desired to take the depositions of two employee physician shareholders of the Jackson Clinic who were also medical doctors that treated the plaintiff.  The Jackson Clinic filed a motion asking the trial court for permission to meet ex-parte with these doctors (who were employees of the defendant Jackson Clinic) to discuss matters relevant to the case including the treatment of the decedent.  They wanted to meet with them prior to their depositions so they could properly prepare them for their testimony.  The trial court denied allowing the ex-parte meeting between Jackson Clinic defense counsel and the physicians who were employed by the Jackson Clinic based on the Alsip v. Johnson Medical Center, 197 S.W.3d 722 (Tenn. 2006) decision. 


The Jackson Clinic appealed this trial court decision.  Each of the doctors who were going to be deposed by the plaintiff submitted affidavits stating they were shareholders of the Jackson Clinic and that they desired to be represented by the Rainey, Kizer, Reviere & Bell, P.L.C. defense attorneys in this matter.  The Tennessee Court of Appeals performed a significant analysis of the case law on ex-parte communications between defense counsel and physicians in the context of healthcare liability actions in Tennessee.  This is an interesting discussion and is worth reading if you want more details on these issues or are dealing with such an issues in your case (but this discussion is much too lengthy for this post). 


At the end of the day the Court found that neither “Alsip nor Givens would bar counsel for the Jackson Clinic from conferring ex parte with Drs. Cherry and Mariencheck, since both are employees of the Jackson Clinic . . . We must respectfully conclude that the trial court erred in declining to permit ex parte communications between defense counsel for the Jackson Clinic and Drs. Cherry and Mariencheck.” Continue Reading  

TAGS: Tennessee Medical Malpractice/Health Care Liability, 2012 Tennessee Legislation Comments [0]

Attorney’s Fees Cannot Be Awarded as Punitive Damages Under Tennessee Law When Not Provided For in Contract or Statute

Posted on Sep 7 2014 9:46PM by Attorney, Jason A. Lee

A new Tennessee Court of Appeals decision, Samuel Bridgefourth, Jr. v. Santander Consumer USA, Inc., No. W2013-02468-COA-R3-CV, 2014 WL 3563470 (Tenn. Ct. App. 2014), dealt with a situation involving repossession of the plaintiff’s car by a finance company.  The plaintiff then paid the balance due on the loan.  He then received the title in the mail but never received the vehicle back.  As a result, the plaintiff sued the defendant Santander Consumer USA, Inc. alleging breach of contract, conversion, trespass to chattels, fraud, misrepresentations and violation of the Tennessee Consumer Protection Act. 


Ultimately, the case went to trial.  The trial court awarded Mr. Bridgefourth $6,000.00 in compensatory damages for conversion of the car and “special damages in the amount of $13,348.00 for attorney’s fees necessary to compensate Plaintiff for his losses as a result of Defendant’s actions.”  The plaintiff then asked the court to clarify its order and the trial court changed the $13,348.00 award from “special damages” to “punitive damages”.  As a result, the defendant Santander appealed, arguing that it was not appropriate to award attorneys’ fees in this case.


The Tennessee Court of Appeals noted the rule in Tennessee is that “litigants must pay their own attorney’s fees unless there is a statute or contractual provision providing otherwise.”  Bridgefourth at 2 (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3.d 186, 194 (Tenn. 2000)).  The Tennessee Court of Appeals next addressed whether the trial court could award attorney’s fees as “punitive damages” as was done in this case.  The Court noted:


The purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter others from committing similar wrongs in the future. Attorney's fees are not punitive in nature.  Continue Reading  

TAGS: Damages, Breach of Contract, Attorney Fees, Punitive Damages Comments [0]

Tennessee Legislature Adds New Cause of Action to Fight Individuals who Illegitimately Threaten Patent Litigation

Posted on Sep 1 2014 11:49AM by Attorney, Jason A. Lee

Tennessee recently established new statutory protections for individuals and companies that are illegitimately threatened with patent infringement claims.  This has been a growing problem across America including in Tennessee.  The 2014 Tennessee Legislature passed Public Chapter No. 879 which created a new series of statutes found in T.C.A. § 29-40-101 – § 29-40-104 (effective on May 18, 2014) in order to try to combat this problem.  The stated purpose of these new statutes is to prevent small and medium sized companies from alleged patent infringement claims from third parties that are unsubstantiated and meritless.  Patent litigation can be extremely expensive and the Tennessee Legislature was concerned about the abuse of patent litigation in Tennessee.  As a result, this new statute provides a new cause of action with enhanced damages to use against those who improperly threaten unsubstantiated patent litigation.  This cause of action allows for the recovery of attorney’s fees, costs, actual damages and punitive damages in an amount equal to three times the actual damages. 


New Key Statutory Language (T.C.A. § 29-40-102(a)):


The main provision in the new statute is found in T.C.A. § 29-40-102(a).  This part of the statute identifies the key acts that violate the statute.  It is hard to find this statutory language online currently so I will post this entire section for your convenience (although you can see it officially in the link to Public Chapter No. 879).  This portion of the statute provides as follows:


(a) It is a violation of this chapter for a person, in connection with the assertion of a United States patent, to send, or cause any person to send, any written or electronic communication that states that the intended recipient or any...

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TAGS: Damages, 2014 Tennessee Legislation, Corporation/LLC Law, Miscellaneous Comments [0]

Can a Witness to Co-Worker’s Accident Bring a Retaliatory Discharge Claim After Being Fired Because He Was a Witness?

Posted on Aug 24 2014 9:05PM by Attorney, Jason A. Lee

The recent Tennessee Court of Appeals decision of Phillip Dean Patrick v. Nelson Global Products, Inc., No. E2013-02444-COA-R3-CV, 2014 WL 3763677 (Tenn. Ct. App. 2014) discussed whether a former employee can bring a retaliatory discharge claim against their employer for being terminated allegedly because he was a witness to a co-workers’ work related injury.  In this case, the plaintiff asserted that he was standing near a co-worker when the co-worker suffered a work related injury.  That co-worker filed a workers’ compensation claim.  Shortly thereafter the employer terminated the plaintiff (not the individual who was actually injured in the workers’ compensation injury incident).  The plaintiff asserts he was terminated because he was a witness to the co-worker’s work injury and that this was a substantial factor in his termination.  As a result, he brought a retaliatory discharge case against his employer.


The Tennessee Court of Appeals noted that in order to prevail on a retaliatory discharge claim in Tennessee, there are four essential elements.  These elements are as follows:


(1) that an employment-at-will relationship existed;

(2) that the employee was discharged;

(3) that the reason for the discharge was that the employee attempted to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and

(4) that a substantial factor in the employer's decision to discharge the employee was the employee's exercise of protected rights or compliance with clear public policy.


Patrick at 3 (Citing Tennessee Supreme Court decision Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011)).  The Court found that the plaintiff clearly could establish elements number one and two.  However, there were significant problems with plaintiff’s ability to establish elements nu...

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TAGS: Torts, Tennessee Workers Compensation, Employment Law Comments [0]

Volunteer Doctors who Provide Free Services Under the Volunteer Healthcare Services Act are Not Liable for Medical Malpractice Negligence in Tennessee

Posted on Aug 10 2014 8:53PM by Attorney, Jason A. Lee

The Volunteer Healthcare Services Act found in T.C.A. § 63-6-701 through 709 provides a certain level of immunity for volunteer physicians who provide healthcare in compliance with this statute.  Specifically, healthcare providers including physicians, surgeons, dentists, nurses, optometrists or “other practitioners of the healthcare discipline” who perform work for a “sponsoring organization” on a volunteer basis can be protected by the immunity provisions in this statute.


2014 Tennessee Statute Modification – Free Clinics Now Included:


In the 2014 Tennessee legislative session, this Act was amended in Public Chapter 575 in order to expand the amount of healthcare providers who receive protection under the act.  The bill summary provides a good explanation of this expansion as follows:


Under present law, no individual who is licensed, certified, or authorized by any board of the healing arts, who engages in the voluntary provision of health care services to any patient of a sponsoring organization is liable for any civil damages for any act or omission resulting from services rendered, unless the act or omission is a result of the individual's gross negligence or willful misconduct.

This bill extends the above immunity to services delivered at a free clinic.

This bill defines a "free clinic" as a not for profit, out-patient, non-hospital facility in which a health care provider engages in the voluntary provision of health care services to patients without charge to the recipient or a third party. "Voluntary provisions of health care services" is defined as providing health care services either without charge to the recipient or to a third party, or the recipient is charged on a sliding scale according to income.


Now, this protection extends to “free clinics” under the Act.  Prior to this legislative change, “free clinics” were not included in the protections afforded under these statutes.  “Free clinics” under the amended statute are defined in T.C.A. § 63-6-703 as:

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TAGS: Tennessee Medical Malpractice/Health Care Liability, Immunity Comments [0]

2014 Tennessee Legislature Makes Judgments Permanent if Injury or Death Caused by Criminal Conduct

Posted on Aug 3 2014 9:33PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Legislature made an interesting change to the typical rule in Tennessee that judgments are only good for ten years unless renewed (See T.C.A. § 28-3-110 and Tennessee Rule of Civil Procedure 69.04).  The Tennessee Legislature in the 2014 Tennessee legislative session passed Public Chapter No. 596 which was signed into law by Governor Bill Haslam on March 28, 2014.  This statute essentially allows a party to make a judgment permanent (as opposed to the current law where it expires after 10 years unless renewed) if the injury or death was caused by criminal conduct.  This act applies to any civil judgments that go into effect after July 1, 2014.  Additionally, there is actually a way for this act to apply to judgments entered before July 1, 2014, if a specific procedure is followed.


The new T.C.A. § 28-3-110(B)(1) provides as follows:


(b)(1) Notwithstanding the provisions of subsection (a), there is no time within which a judgment or decree of a court of record entered on or after July 1, 2014, must be acted upon in the following circumstances:

(A) The judgment is for the injury or death of a person that resulted from the judgment debtor's criminal conduct; and

(B) The judgment debtor is convicted of a crim...

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TAGS: Post Judgment Motions, 2014 Tennessee Legislation, Statute of Limitations, Statute of Repose, Miscellaneous, Wrongful Death Comments [0]

Tennessee Supreme Court Recently Ruled that Trial Courts Must Explain The Basis for Ruling on a Motion for Summary Judgment Before it Invites or Requests Counsel to Draft the Order

Posted on Jul 28 2014 9:45PM by Attorney, Jason A. Lee

Analysis:  On July 15, 2014 the Tennessee Supreme Court provided an important new opinion that will modify the way many trial courts handle ruling on motions for summary judgment.  The case of Mary C. Smith v. UHS of Lakeside, Inc., No. W2011-02405-SC-R11-CV, 2014 WL 3429204 (Tenn. 2014), dealt with a situation where a trial court granted two motion for summary judgment on behalf of the defendants.  The details of this health care liability cause of action are not important to be able to evaluate the importance of this opinion.  The details of what happened at the motion for summary judgment rulings are, however, very important. 


After the trial court ruled on two motions for summary judgment the court then directed defense counsel to prepare the orders explaining the trial court’s ruling.  The Supreme Court discussed the trial court’s statements to counsel as follows: 


The trial court then observed that “the appellate court is going to want a rationale from our rulings.” Accordingly, the trial court stated, “As far as a basis for the ruling, I'm going to let you [Lakeside's counsel] make those.... And in the same way [p]laintiff's counsel can then, you were successful on EMTALA, outrageous conduct and the negligent infliction of emotional distress, the motions in which you were successful, you'll prepare the order and the rationale for the Court's ruling.”


Smith at 5.  At the second hearing the trial court once again ruled on the pending motion for summary judgment and stated:


I'm ruling now. I think I've heard ample discussion on this. And I'm directing the [d]efendant to prepare the order and to establish the rationale for the [c]ourt's ruling in quite specific detail, and let this go forward as quickly as possible to the [a]ppellate [c]ourt.


So basically at both hearings, the trial court did not provide detail about the basis or reasoning for its ruling on the motions for summary judgment.  It simply relied upon counsel to draft an order explaining the rationale for the trial court’s ruling.  The granting of the motions for summary judgment was therefore appealed and the appeal ultimately came to the Tenne...

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TAGS: Summary Judgment Comments [0]
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