Tennessee Law of Civil Trial - Book Review

Jason Lee has reviewed my book, Tennessee Law of Civil Trial, on his Tennessee Defense Litigation blog.

Some highlights:

The way I would characterize this book is it is a practical guide to the ins and outs of trial practice.  There are citations to case law throughout the book that can be used to prepare for issues that may come up at trial. 

 I mainly recommend this book to newer attorneys or those who do not have the opportunity to go to trial very often.

I also think this book is appropriate for more experienced attorneys to use in order to remind of important concepts leading up to trial.

Once again, John Day has added another valuable resource for practitioners of law in Tennessee.

Click on the link to order your copy of Tennessee Law of Civil Trial.  A free copy of Chapter 1 (Scheduling Orders) may be down-loaded by clicking on the link.

Thanks for your kind words, Jason.

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Reasoning Required in Tennessee Trial Court's Summary Judgment Order

             In Potter’s Shopping Center, Inc. v. Szekely, No. M2014-00588-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2014), the Court of Appeals relied on the recent Tennessee Supreme Court decision of Smith v. UHS of Lakeside, Inc., 2014 WL 3429204 (Tenn. 2014) to hold the trial court to a higher standard when entering an order granting partial summary judgment.

            The Potter’s Shopping case involved the building of a house and a claim for unjust enrichment by the supplier of materials against the owners of the home. The trial court granted partial summary judgment to plaintiff as to liability, but in its order, the court failed to state any legal grounds for its decision. Citing the Supreme Court’s Smith opinion, the Court of Appeals found that the trial court had failed to comply with Tenn. R. Civ. P. 56.04 when it failed to cite any evidence or argument it had considered in granting summary judgment. The Court noted that appellate courts were sometimes more lenient on this issue when the reasoning for the summary judgment could be gleaned from the record. In the present case, however, the record contained no transcript of the hearing and no other indication of the legal basis for the summary judgment decision.

            Finding that the summary judgment issue “involve[d] questions of law that require analysis and explanation,” the Court vacated the order granting partial summary judgment and remanded the case.

            This case appears to be the first example of the Court of Appeals reviewing a summary judgment order under the more detailed analysis set out by the Supreme Court in Smith. It is an interesting illustration of the higher standard likely to be enforced in the future, reminding attorneys and courts alike that grants of summary judgment that are not supported by legal reasoning provided on the record will be vulnerable on appeal.

Orders on Motions for Summary Judgment - Rubber-Stamping Not Allowed

            This summer the Tennessee Supreme Court offered guidance on what a trial court must do when granting or denying a motion for summary judgment under Tenn. R. Civ. P. 56.04. Despite the longstanding practice of many courts to have a prevailing party draft and submit a proposed order, the Court emphatically expressed that the record must show that an order granting or denying summary judgment was the product of the trial court’s “independent judgment.”

               In Smith v. UHS of Lakeside, Inc., No. W2011-02405-SC-R11-CV (Tenn. July 15, 2014), plaintiff’s complaint listed multiple causes of action related to the alleged improper assessment and resulting delayed treatment of decedent. During lengthy pre-trial litigation, defendant moved for summary judgment as to all of plaintiff’s claims. After a hearing, the trial court ruled in favor of plaintiff on some claims and defendant on two claims. After orally announcing the direction of the ruling, the trial court stated: “As far as a basis for the ruling, I’m going to let [defendant’s counsel] make those…the motions in which you were successful, you’ll prepare the order and the rationale for the Court’s ruling.”

               Plaintiff later filed an amended complaint, and defendant again filed a motion for summary judgment as to all claims. This time the trial court granted defendant’s motion in total and stated, “I’m directing the defendant to prepare the order and to establish the rationale for the court’s ruling in quite specific detail[.]” Both orders submitted by defendant and signed and entered by the trial court were highly detailed, essentially adopting all of defendant’s arguments from its brief. After the entry of each order, plaintiff objected to the orders arguing that the orders contained rulings and findings that the trial court did not actually make.

               Plaintiff appealed, and the Court of Appeals vacated the orders granting summary judgment stating that “the trial court’s oral statements provide absolutely no basis for the trial court’s ruling.” The Tennessee Supreme Court affirmed this decision.

               Since 2007, Tenn. R. Civ. P. 56.04 has stated that “the trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be reflected in the court’s ruling.” Pursuant to this rule, then, stating the grounds for summary judgment is mandatory. In Smith, the Court noted that this rule change was adopted both to promote acceptance of and respect for the legal system and decision at hand, as well as to clarify the explanation of summary judgment rulings for appellate courts reviewing such decisions. When reviewing whether a trial court has complied with Rule 56.04, the Court noted that an appellate court should “take into consideration the fundamental importance of assuring that a trial court’s decision either to grant or deny a summary judgment is adequately explained and is the product of the trial court’s independent judgment.”

               While the Court expressly noted concerns regarding “the practice of courts adopting verbatim findings of fact, conclusions of law, and orders prepared by counsel for the prevailing party[,]” the Court ultimately determined that requesting and considering proposed orders prepared by a prevailing party was not inconsistent with Rule 56.04. Instead, the Court held that Rule 56.04 “requires the trial court upon granting or denying a motion for summary judgment to state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.” According to the Smith opinion, a trial court can state its grounds at the time it announces the decision on the record, in a subsequently filed memorandum or opinion, or in a letter provided to all parties and made part of the record (see note 28).

               In the present matter, the Court determined that the trial court had not stated its reasoning for granting summary judgment. The Court rejected defendant’s argument that because the trial court eventually signed and entered the orders, the reasoning contained therein should be imputed to the court. The Supreme Court called this a “reverse-engineered circumvention” of Rule 56.04 and thus affirmed the appellate court’s vacating of the orders.

               This case is important for attorneys to note as they move through pre-trial litigation. Pursuant to this decision, if you secure summary judgment for your client, you should ensure that at some point before proposed orders are submitted the court expressly states its reasoning for granting your motion. On the other hand, if you are on the losing end of a summary judgment motion, be aware that if the court fails to articulate its reasoning, the Smith case could be useful on appeal.

Strip Club Murderer Loses Appeal

The case of Jernigan v. Hunter, No. M2013-01860-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2014) begins in January 2006, when John Jernigan was stabbed and beaten to death by two men, a father and son, inside a Nashville strip club. Father pleaded guilty to voluntary manslaughter in his criminal proceeding, and son pleaded guilty to the lesser charge of aggravated assault.

Thereafter, Jernigan’s parents filed a wrongful death lawsuit against father and son, both of whom defended themselves during a bench trial. The trial court found that Jernigan’s parents had proved by a preponderance of the evidence that father had directly and intentionally contributed to Jernigan’s death by stabbing him multiple times. However, due to conflicting evidence, the trial court ruled that parents did not prove that the son had caused or contributed to Jernigan’s death. Accordingly, the court awarded Jernigan’s parents $250,000 in damages against the father and dismissed the son. The father appealed and represented himself again.

The appellate court’s opinion classified father’s arguments on appeal into three categories: evidentiary issues, legal issues, and issues first raised on appeal.

Evidentiary Issues

Father’s appeal was pretty much devastated at the outset because he did not file a transcript of the evidence (under Tenn. R. App. P. 24(b)) or a statement of the evidence (under Tenn. R. App. P. 24(c)) in the appellate record, resulting in a conclusive presumption on appeal that there was sufficient evidence before the trial court to support its judgment. Tennessee law holds that, to the extent issues on appeal depend on factual determinations, the lack of a transcript or statement of the evidence is essentially fatal to the party having the burden on appeal. Father challenged the sufficiency of evidence, arguing that there was conflicting testimony about who participated in the fight with Jernigan and that Jernigan had been under the influence of alcohol and marijuana at the time of his death. Father also challenged the sufficiency of the complaint, contending that it failed to state a claim upon which relief could be granted. However, because father failed to file a transcript or statement of the evidence, there was no evidence before the court to review on appeal. The appellate court therefore found father’s evidentiary issues without merit.

Legal Issues

Father sought review of the trial court’s denial of his request to appoint counsel to represent him. The appellate court rejected father’s argument because, unlike indigent criminal litigants, indigent civil litigants have neither the constitutional nor the statutory right to court-appointed counsel.

In father’s second legal issue, he argued that the trial court failed to rule on “numerous pending motions” filed in the trial court. However, the appellate court rejected this argument because father failed to identify which motions he was referring to, and he otherwise failed to establish that any substantive motions were not properly addressed by the trial court.

Father’s third legal issue argued that the trial court should have severed father’s civil trial from son’s civil trial. Rule 42.02 of the Tennessee Rules of Procedures states that a trial judge may exercise its discretion to order separate trials for “convenience or to avoid prejudice,” and the Tennessee Supreme Court has held that the interest of justice will warrant a bifurcation of the issues in only the most exceptional cases and upon a strong showing of necessity. Father’s appellate brief failed to identify any reason why he was prejudiced by the trial court’s denial of his motion to sever. Further, the trial court had found that father and son were both necessary witnesses in each case, and, depending on the proof at trial, fault would likely need to be allocated against each defendant. Based on these considerations, the appellate court found that the trial court did not abuse its discretion in denying father’s motion to sever. 

Father’s fourth legal issue on appeal challenged the competency of a witness who testified at trial. Father alleged that the witness had past criminal charges against him, mental health issues, and was “unreliable.” But, again, because of father’s failure to file a transcript or statement of the evidence, the court of appeals was unable to fully address the witness’s competency. With no evidence to counter the presumption of correctness afforded to the trial court, the appellate court had no basis to conclude the evidence was insufficient to support the ruling that the witness was competent to testify, and thus father’s argument was rejected.

Issues First Raised on Appeal

Father argued the following three issues for the first time on appeal: whether Jernigan’s parents had standing to bring the wrongful death claim, whether Jernigan’s parents filed the wrongful death lawsuit within the statute of limitations, and whether the lawsuit satisfied the requirements of the Federal Tort Claim Act. The appellate court summarily rejected all three issues, relying on well-established Tennessee law that holds that if an issue is not properly raised in the trial court it cannot be raised for the first time on appeal. Because father did not properly bring these matters to the attention of the trial court, the appellate court that they were without merit.

Note to non-lawyers:  practicing law ain't rocket science, but there are rules that, if not followed, create all sorts of problems.  I don't fix my own toilets, and you probably should defend yourself in a wrongful death case.

NEJM Study on Defensive Medicine

From the American Association for Justice:

The New England Journal of Medicine published a new study on the effects of tort reform on emergency room department treatments. The researchers examined Medicare emergency room fee-for-service claims data from 1997-2011 in Texas, Georgia and South Carolina, all of which changed their emergency care liability standard from negligence to gross negligence. They found that such reforms did not change doctors' testing behaviors and that "physicians are less motivated by legal risk than they believe themselves to be."

 "We did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges. Although there was a small reduction in charges in one of the three states (Georgia), our results in aggregate suggest that these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments."

 They also extended their discussion to safe harbors from adherence to practice guidelines, saying they would not affect physicians' testing behavior, either:

 "One might argue that physicians in the reform states do not believe that they are fully protected. This is true to some degree, but the critique may be applied to any other law. For example, some have advocated for "safe harbor" laws, which would provide specific protections to physicians who adhere to evidence-based guidelines. If physicians do not believe that they are adequately protected by a legal standard of gross negligence, then they also might not believe that they are protected by a statute that provides a safe harbor for evidence-based guidelines. Indeed, a recent study showed that evidence-based guidelines would be applicable to only a minority of malpractice claims."

NEJM Study on Defensive Medicine

From the American Association for Justice:

The New England Journal of Medicine published a new study on the effects of tort reform on emergency room department treatments. The researchers examined Medicare emergency room fee-for-service claims data from 1997-2011 in Texas, Georgia and South Carolina, all of which changed their emergency care liability standard from negligence to gross negligence. They found that such reforms did not change doctors' testing behaviors and that "physicians are less motivated by legal risk than they believe themselves to be."

 "We did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges. Although there was a small reduction in charges in one of the three states (Georgia), our results in aggregate suggest that these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments."

 They also extended their discussion to safe harbors from adherence to practice guidelines, saying they would not affect physicians' testing behavior, either:

 "One might argue that physicians in the reform states do not believe that they are fully protected. This is true to some degree, but the critique may be applied to any other law. For example, some have advocated for "safe harbor" laws, which would provide specific protections to physicians who adhere to evidence-based guidelines. If physicians do not believe that they are adequately protected by a legal standard of gross negligence, then they also might not believe that they are protected by a statute that provides a safe harbor for evidence-based guidelines. Indeed, a recent study showed that evidence-based guidelines would be applicable to only a minority of malpractice claims."

Recent Tennessee Jury Verdicts

Here are the verdicts collected by the October, 2014 Tennessee Jury Verdict Reporter:

  • Health Care Liability - epidural steroid injection with back injury - June 27, 2014 - defense verdict in state court in Davidson County
  • Abuse of Process - photographer arrested - August 22, 2014 - defense verdict in federal court in Hamilton County
  • Pedestrian  - child pedestrian hit by car - May 14, 2014 - defense verdict in state court in Shelby County
  • Car Wreck - disk herniation -  February 14, 2014 - $50,313 in state court in Knox County
  • Pedestrian - adult pedestrian hit by car in crosswalk - April 16, 2014 - defense verdict (50-50 fault allocation) in Davidson County 
  • Car Wreck - soft tissue injuries - April 15, 2014 - $3600 in state court in Shelby County 
  • Excessive Force by Police - facial injuries - August 29, 2014 - defense verdict in federal court in Davidson County
  • Car Wreck - soft tissue injuries - March 13, 2014 - defense verdict in state court in Hamilton County
  • Car Wreck - soft tissue injuries - August 16, 2014 - $15,000 verdict in state court in Davidson County
  • Sip and Fall - wrist and knee injuries - August 14, 2014 - defense verdict in federal Court in Greenville
  • Car Wreck - soft tissue injuries - May 22, 2014 - defense verdict in Shelby County
  • Car Wreck - knee injury and low back pain -  May 14, 2014 - $12,940 verdict in state court Davidson County ($40,000 offer of judgment rejected)

Full details on each of these jury verdicts can be obtained from the Tennessee Jury Verdict Reporter.

 

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Trial Court's Evidentiary Rulings Given Great Deference on Appeal

In Bilbrey v. Parks, No. E2013-02808-COA-CV (Tenn. Ct. App. Sept. 29, 2014), a negligence case arising from a car accident, the Court of Appeals recently addressed two evidentiary issues. Plaintiff, her aunt, and her boyfriend were in plaintiffs car when it ran out of gas. The car was pushed onto the side of the road, though not completely off of it. While the boyfriend and aunt had gone to get gas, defendant came along and collided with plaintiffs car. The incident occurred at night. Plaintiff brought a negligence action against defendant, and defendant counterclaimed asserting plaintiffs negligence. At trial, the jury found both plaintiff and defendant to be 50% at fault. Subsequently, plaintiff appealed two evidentiary rulings made by the trial court.

First, plaintiff asserted that the trial court should not have allowed the boyfriends deposition to be read into evidence by defendant. Plaintiff pointed out that defendant had not subpoenaed boyfriend within the timing specified by local rules, and more importantly, that the evidence presented to show that boyfriend was unavailable by being more than 100 miles from the courthouse was insufficient. The unavailability evidence was fraught with layers of hearsay, and boyfriendsunknown, unproven, and in dispute.s deposition should not have been admitted, it was a harmless error, as the deposition testimony was almost entirely consistent with, and cumulative to, that ofs deposition and the in-court testimony of other witnesses did not result in the admission of the deposition being prejudicial to plaintiff.

Second, plaintiff objected to the testimony of a state trooper who listened to a voice mail from plaintiff to her boyfriend on plaintiffs phone when he arrived at the scene. According to his testimony, plaintiff told her boyfriend on that message that the emergency lights had either gone out or were going low. In affirming the trial courts decision to allow the trooper to testify regarding the voicemail, the Court addressed three major points. One, plaintiff and her boyfriend had both testified that the phones containing this message were either lost or destroyed. Defendant, therefore, could rely on Tenn. R. Evid. 1004 and did not have to produce the original recording. Two, although the trooper had never heard plaintiffs voice prior to listening to the voicemail, he spoke with her soon thereafter and testified that he recognized the voices as the same. The Court found that this was enough to satisfy the voice identification requirements of Tenn. R. Evid. 901. Three, plaintiff asserted that this statement did not fall under the party-opponent admission exception to the hearsay rule as it was not a statement against plaintiffs interest. The Court rejected this argument, noting that any statements by a party, whether against that partys interest or not, may be used by the opposing party. Accordingly, the Court of Appeals affirmed the trial courts judgment.

This case is a good reminder of the deference given to trial courts on evidentiary issues. Even with some differences between the deposition testimony and the in-court witness testimony, and without much discussion about the voice mail or the voice identification, the Court affirmed the trial courts evidentiary rulings in total here.

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Tennessee Made-Whole Doctrine

The Belmont Law Review published an article I wrote about the made-whole doctrine in its inaugural issue.  Here is a description of the article.  

 
This Article proposes the adoption of the “Modified Made-Whole Doctrine Proposal." Part I begins by explaining the roots of the law of subrogation rights and its current jurisprudential inconsistencies. It also explores the relationship between such subrogation rights and the made-whole doctrine in the context of Tennessee tort law as well as how this doctrine would be applied in Tennessee today. Part II briefly outlines some of the general questions regarding Tennessee’s current application of the made-whole doctrine, particularly the unresolved issues surrounding the impact of comparative fault on subrogation rights. These are questions which the author’s suggested Proposal is designed to directly address. The detailed framework of this Proposal, including its five fundamental Principles and their underpinning rules, are set forth at length in Part III. Finally, Part IV concludes by analyzing the practical application of this Proposal throughout the various stages of the litigation process and offers guidance to judges, attorneys, and litigants alike as to how such subrogation disputes can be equitably resolved. In sum, the Modified Made-Whole Doctrine Proposal is meant to provide for the efficient, just application of the made-whole doctrine to subrogation interests with respect to Tennessee’s law of comparative fault.
 
It is available for download here:  
 
Those of you who are fighting made-whole challenges or who are attempting to establish new law in the area may find the article helpful.  The article does not address ERISA subrogation issues - it concerns itself only with "made-whole" law in Tennessee.
 
Thanks to Ryder Lee for his help on this article.

Defamation and Public Figures in Tennessee

The recent opinion in Byrge v. Campfield, et al., No. E2013-01223-COA-R3-CV (Tenn. Ct. App. Sept. 8, 2014) serves as a good reminder of Tennessee defamation law involving a public figure.

In October 2008, Stacey Campfield, then a Republican State Representative for Tennessee’s 18th District, posted on his political blog an entry about the 36th State House District race featuring Democrat Roger Byrge. Campfield’s blog entry alleged that Byrge had a drug-related arrest record. The blog post stated, in part:

Word is a similar mail piece has gone out exposing Byrges multiple separate drug arrests. Including arrests for possession and drug dealing. (I hear the mug shots are gold).

The big problem with Campfield’s blog post is that it was false. Byrge had no such criminal record. Byrge lost the November election. Shortly thereafter he sued Campfield for defamation.

Campfield moved for summary judgment, claiming in his affidavit that he had received the false information about Byrge from Glenn Casada, who was the Republican State Representative for the 63rd District and also Chairman of the House Republican Caucus. Campfield asserted that Casada had told him that Byrge had a criminal record that included arrests for possession of drugs and drug dealing. Campfield knew that the Tennessee Republican Caucus frequently researches political candidates and races across the state during election season, and he believed the statements about Byrge were accurate and truthful at the time they were published on his blog. Campfield said that when the accuracy of the information that Casada had provided to him about Byrge was questioned he immediately removed the post from his blog.

Casada, on the other hand, claimed that he made the comment about Byrge to Campfield during an informal phone conversation and that he had characterized the information as preliminary. Casada confirmed that the information had been provided by the Tennessee Republican Caucus, and his precise words to Campfield were: “We may have a record of a felony on Roger Byrge.” Casada said he did not intend for any unverified information to be disseminated and that he had qualified his comments to Campfield.

Turns out that Campfield, Casada, and the Tennessee Republican Caucus had mistaken candidate Byrge for his son, Roger Derick Byrge. Regardless, the trial court granted Campfield’s motion for summary judgment and Byrge appealed.

The appellate court began its decision by reviewing the elements of a defamation claim in Tennessee, which are: (1) a party publish (i.e., communicate to a third party) a statement; (2) with knowledge that the statement is false and defaming to the other; OR (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.  However, because Byrge was considered a “public figure,” the heightened standard required him to prove by clear and convincing evidence that Campfield’s statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Campfield’s defense on appeal was that he only published what Casada had told him about Byrge, that Casada was a credible source of information, and that it was not as though he had just picked up the information off the street and ran with it. However, because the summary judgment standard required that all facts be viewed in the light most favorable to Byrge, the court of appeals credited Casada’s version of the conversation over Campfield’s, placing great emphasis on the fact that Casada had been clear that the information on Byrge was preliminary and his statement to Campfield had been a qualified statement. Casada’s version of what he told Campfield (“We may have a record of a felony on Roger Byrge”) was materially different from what Campfield alleged Casada had told him (“Byrge had a criminal record that included arrests for possession of drugs and drug dealing). The appellate court ruled that reasonable minds could consider it at least reckless to publish information tending to tarnish someone’s reputation on the basis of a “may have,” especially when the record showed that Campfield had decided to publish the information without any kind of additional investigation or verification on his own or by Casada before publishing it.

Thus, according to the appellate court, there was clear and convincing evidence in the record upon which a trier of fact could find actual malice on Campfield’s part. The trial court had erred by granting Campfield’s motion for summary judgment because Campfield had not negated the essential element of actual malice.  The opinion ended with the following observations before remanding the case to the trial court:

This Court recognizes and values the robust, free exchanges in politics that are so central to democracy and our constitutional republic. However, here we have a case not about differences of ideology or opinion, but rather about factually false allegations made against a candidate for public office. Politics may be a rough and tumble endeavor, but, contrary to the vintage Cole Porter song, “anything goes” will not suffice when it comes to publishing factual falsehoods about political rivals. A public figure, even a politician, is neither totally immune from nor totally unprotected by the law of defamation.

This was the right decision.   If Campfield decides to appeal the decision to the Tennessee Supreme Court and the Court elects to hear the case, Campfield will lose again.  

By the way, Campfield received just 28% of the vote in the August 7, 2014 Republican primary.