Miscellaneous

July 31, 2017

Serving Rule 11 Motion on Opposing Counsel Not Considered “Process” for Abuse of Process Claim

In Montpelier v. Moncier, No. E2016-00246-COA-R3-CV (Tenn. Ct. App. June 1, 2017), the Tennessee Court of Appeals affirmed dismissal of an abuse of process claim.

The background of this case was fairly unique, as it involved attorneys suing another attorney due to defendant attorney’s actions in an underlying case. Plaintiff attorneys had removed the underlying case to federal court and filed a notice of removal with the state court. Within 24 hours after the notice of removal was filed, defendant attorney served a Rule 11 motion on plaintiffs in the state court case. The Rule 11 motion, however, was never filed with the court, but only served on plaintiffs.*

Plaintiffs filed this abuse of process claim based on the Rule 11 motion served by defendant. Plaintiffs asserted that defendant was using Rule 11 improperly to attempt to fee-shift and that he committed an “intentional abuse of process” by refusing “to file the Rule 11 motions until he first determines how the underlying ‘offending’ pleading is decided.” Plaintiffs argued that defendant used his Rule 11 motion as an “open-ended threat of obtaining money from his adversaries and their attorneys unless they withdrew facts and claims,” and that he “primarily sought to increase the burden and expense of litigation[.]” Further, plaintiffs argued that the proper place for defendant to have filed this particular Rule 11 motion was federal court, but that defendant could not comply with the proper filing because he was disbarred from the federal court.

June 2, 2017

Employer Liability for Criminal Acts of Employees

by The Law Offices of John Day, P.C.

In Fletcher v. CFRA, LLC, No. M2016-01202-COA-R3-CV (Tenn. Ct. App. Mar. 8, 2017), the Tennessee Court of Appeals affirmed summary judgment, finding that defendant restaurant owner was not vicariously liable for the actions of its employee.

Defendant owned an IHOP restaurant, and that IHOP hired a dishwasher who was on parole for “aggravated battery and felony firearms convictions.” Plaintiff ate at the restaurant with a friend very early one morning. When plaintiff was leaving the restaurant, the dishwasher believed he had not paid for his meal and followed him to the parking lot. There was no physical confrontation in the parking lot, and plaintiff paid the bill. The dishwasher’s shift had ended, so he called his girlfriend to pick him up from work. According to both the dishwasher and his girlfriend, after they left the IHOP parking lot the car that plaintiff and his friend were driving began following them. They drove to an apartment complex with plaintiff still following, and a physical altercation ensued. There was conflicting testimony about what exactly happened, but at some point the dishwasher jumped into the car plaintiff had previously been riding in and ran over plaintiff two times, severely injuring him.

April 21, 2017

No Misrepresentation where Plaintiffs Had Access to Information

by The Law Offices of John Day, P.C.

In Haynes v. Lunsford, No. E2015-01686-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2017), the Tennessee Court of Appeals affirmed summary judgment for a real estate agent and agency on a misrepresentation claim where plaintiffs had access to the same information as defendants.

Plaintiffs contacted defendant real estate agent, who worked for the defendant agency, about buying a log cabin. While looking at MLS with defendant, plaintiffs found the cabin they eventually purchased. Defendant was not the listing agent on this cabin. Defendant and plaintiff visited the cabin together and both felt it looked new and “smelled great.” Plaintiffs had a home inspection done prior to the purchase, which revealed some “common cracks” but did not mention mold. Plaintiffs did not “take any action to make sure the basement was moisture free” before the purchase.

Before the closing, defendant sent plaintiff all the documents in her possession, including the MLS listing, the CRS property report, seller’s disclosure, the home inspection report, and the seller’s warranty deed. The deed showed that a bank was the grantor, which defendant admitted could mean that the property had been involved in a foreclosure. Plaintiffs closed on the cabin and moved in, and five months later they “began smelling a mildew type odor.” Six months after the purchase, an inspector found moisture in a wall, and some months after that, mold spores were found.

Plaintiffs brought suit against defendant real estate agent and the agency she worked for, alleging that “the cabin was presented to them as ‘new’ and ‘just recently built.’” Plaintiffs’ complaint included claims of fraudulent misrepresentation, failure to disclose adverse facts, and violations of the Tennessee Consumer Protection Act. Plaintiffs asserted that “the cabin had a moisture and mold problem about which the defendants knew or should have known,” and that “defendants had a duty to disclose the moisture and mold problems to plaintiffs[.]”

The trial court granted defendants’ motion for summary judgment, finding that there was “no evidence whatsoever that Defendants…were aware of mold being present in this house,” and that “plaintiffs had the same information that [defendants] had about the home.” The Court of Appeals affirmed this ruling.

March 26, 2017

Contractual Waivers and Medical Expense Recovery by Minors

by The Law Offices of John Day, P.C.

In Blackwell v. Sky High Sports Nashville Operations, LLC, No. M2016-00447-COA-R9-CV (Tenn. Ct. App. Jan. 9, 2017), the Court of Appeals addressed the issue of whether parents in Tennessee may “bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements,” affirming the existing common law rule such agreements were not enforceable against a child when signed by a parent. The Court also discussed whether a minor had the right to seek recovery of medical expenses in a personal injury case.

Mother took her son to defendant trampoline park, and on their first visit mother was required to sign a “Customer Release of Liability and Assumption of Risk.” This form purported to waive liability for any injury on behalf of both mother and son, and it contained a choice of law provision naming California law as governing the agreement as well as a forum selection provision stating that litigation would be brought in California. The release stated that it would be effective until the son was eighteen. At a later visit, son was injured, and son and mother both brought this action against defendant trampoline park in the Davidson County Circuit Court.

Defendant filed a motion to enforce the contract in the trial court, arguing that the claims had been waived and that the case had to be brought in California and governed by California law. Mother voluntarily dismissed her claim against defendant, and the trial court subsequently denied defendant’s motion to enforce the contract. The trial court found that “neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has ‘a more significant relationship to the facts surrounding this case.’” The trial court also held that the liability waiver did not operate to waive son’s claims, as “such a contract is not permissible in Tennessee.” In a lengthy decision, the Court of Appeals ultimately affirmed all three of these holdings.

February 12, 2017

Sanctions Awarded Against Lawyers After Abuse of Process Case Dismissed

by The Law Offices of John Day, P.C.

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.

January 20, 2017

Father Had Duty to Hold Ladder for Son During RV Exterior Cleaning

by The Law Offices of John Day, P.C.

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.

January 15, 2017

Employer Had No Duty to Prevent Employee From Leaving Store in His Own Car

by The Law Offices of John Day, P.C.

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.

November 6, 2016

Lawyer Wisely Drops Chicken-Choking Case

by The Law Offices of John Day, P.C.

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.

October 23, 2016

Upcoming Seminar – Justice Programs

by The Law Offices of John Day, P.C.

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

August 24, 2016

Changing Times for Personal Injury Lawyers

by The Law Offices of John Day, P.C.

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.)