Construction Law Forum 2018

The Tennessee Bar Association will host the 2018 Construction Law Forum in Nashville on Jan. 26, 2018. This event provides six hours of CLE, including an hour of ethics, and will be focused on understanding insurance coverage and surety bond issues as related to construction projects. These matters can be perplexing— who is covered, what is covered, who is a necessary party to any dispute, and how to trigger coverage. This CLE will address these problems in a way that's informative for all attorneys, regardless of construction law experience. 
Do not miss this opportunity to fulfill CLE requirements while networking with attorneys who share your focus and cultivating relationships with fellow practitioners. Section members receive a discounted rate for the program. Here's the key info: 
When: Jan. 26, 2018; registration begins at 8 a.m., CDT
Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219
Topics include:
Available insurance products and particular coverages involved in a construction project
Coverage for defective work
Drafting complaints to invoke coverage
Payment and performance bonds
Indemnity agreements necessary to obtain bonds
Conflicts of interest when representing insureds in construction litigation
Speakers/Producers include:
Jeremy Alpert, Glankler Brown PLLC, Memphis
Briton Collins, Kennerly, Montgomery & Finley PC, Knoxville
James (Tim) Crenshaw, Schulman LeRoy & Bennett PC, Nashville 
Michael Derrick, Shuttleworth PLLC, Memphis 
Timothy Gibbons, Chambliss, Bahner & Stophel PC, Chattanooga
Elizabeth Stengel, Evans Petree PC, Memphis 
William Tate, Howard Tate Sowell Wilson Leathers & Johnson PLLC, Nashville
David Taylor, Bradley Arant Boult Cummings, Nashville
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Visitation Today, Services Tomorrow for Nashville Attorney

Nashville lawyer Thaddeus Earl Watkins died on Nov. 19. He was 60. Born in Memphis, Watkins earned his law degree from the University of Memphis Cecil C. Humphreys School of Law. During his 30-year career as an attorney for the State of Tennessee, he served as counsel for the State Fire Marshall’s Office, the State Board of Architectural and Engineering Examiners, the Tennessee State Capitol Commission and the Department of Commerce and Insurance before being appointed to the Tennessee Department of General Services. Visitation will be held tonight from 5 to 7 p.m. at Marshall Donnelly Combs Funeral Home, 201 25th Ave N. A second visitation will be held tomorrow at 10 a.m., with services to follow at 11 a.m. at Christ Church Cathedral, 900 Broadway. In lieu of flowers, please make donations to the National Alliance for the Mentally Ill (NAMI) or a charity of choice.
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Supreme Court: Home Inspector Liability Doesn’t Extend to 3rd Parties

The Tennessee Supreme Court ruled this week that a home inspector is not liable for the injuries of a social guest of a homeowner who was injured when a railing collapsed shortly after purchase. The majority of the court’s justices found that the inspector did not voluntarily assume a duty to third parties like the plaintiff, who was a guest of the homebuyer. Justice Roger A. Page wrote the majority opinion, while Justice Holly Kirby filed a separate opinion concurring in part and dissenting in part. Justice Sharon G. Lee filed a third opinion in dissent.
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The Consumer Financial Protection Bureau Targeting Affiliated Businesses

The Consumer Financial Protection Bureau (CFPB) recently took action against Meridian Title Corporation (Meridian) for violation of a long-standing provision of the Real Estate Settlement Procedure Act (RESPA). CFPB has been delegated with the enforcement of RESPA.  
According to the release, Meridian is a real estate settlement agent and a title insurance agency located in South Bend, Indiana, which was found to have steered “consumers to a title insurer owned in part by several of [Meridian’s] executives without making disclosures about the business affiliation.” 
When directed to its affiliated provider, the settlement agent/title agent “was able to keep extra money beyond the commission it would normally have been entitled to collect based on an understanding with the affiliated provider, to add to its bottom line,” according to Director Richard Cordray.
Receiving “anything of value” pursuant to a referral agreement has long been a violation of RESPA, but if the referring entity meets the definition of an “affiliated business,” then the referring entity must “generally disclose its relationship to the consumer.” Theoretically, this permits the consumer to exercise independent judgment regarding whether to use that provider. The penalty for Meridian’s failure to disclosure resulted in an order that required the regional company to pay $1.25 million to 7,000 “harmed consumers” and an order to desist from such conduct in the future.
Unfortunately, many affiliated providers of services for title agencies and lenders have become lax and brush off this continuing obligatory disclosure to the consumer.
This action is noteworthy because the CFPB has identified and taken action against a relatively minor player in the title industry. This should reinforce the importance of compliance by every title agency and lender. Lenders who enjoy affiliated business arrangements with title insurance providers are apt to trivialize this RESPA requirement when dealing with the consumer, especially when the lender views the provider as a business partner through its relationship as a member in the provider’s limited liability company.
As with many consumer protection regulations, the consumer often fails to appreciate the value of choosing services through a provider that does not share in the financial interest of the lender. This is especially true when an owners title policy is issued simultaneously with a loan policy. The interest of the consumer and lender are not necessarily the same.
Paul "Kelley" Hinsley is an eastern delegate and past chair of the executive council for the Tennessee Bar Association's Real Estate Section. Hinsley holds degrees from the University of Tennessee at Knoxville and the University of Tennessee College of Law.

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Mechanics' and Materialman's Liens: What Contractors Need to Know

Construction Law Chair Josh Jenkins and Executive Council member Mary Beth Hagan, both of the Hagan Law Group, were recently at the Tennessee Bar Center to give a presentation on mechanics’ and materialman’s liens. The purpose of the seminar was to provide information to contractors and subcontractors in Tennessee about their lien rights on projects and the related timing considerations and requirements for perfecting and enforcing a lien in the event of non-payment.
This presentation is part of what will be an ongoing project of the Construction Law Section, with plans to offer future seminars in Tennessee’s eastern and western regions. Video of the recent presentation is available now for viewing.

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Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond

The International Law Section of the Tennessee Bar Association is sponsoring a free seminar “Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond” to be held on Thursday, Nov. 2 from 6:00 p.m. – 7:30 p.m. at Nashville School of Law, Appellate Courtroom, 4013 Armory Oaks Drive, Nashville, Tenn. 
The speakers on the panel include:
  • Terry Olsen, Chair of the TBA International Law Section, as Moderator
  • Clay Banks, Regional Director of Tennessee Department of Economic & Community Development
  • James Forde, Prosperity and Economics Officer of British Consulate General, Atlanta
  • Ms. Joanne Chu, Director of Hong Kong Economic and Trade Office (New York)
  • Mr. Michael Kwan, Deputy Director of Hong Kong Economic and Trade Office (New York)
The seminar will provide an overview of the global & U.S. trade & investment landscape as it concerns Tennessee for 2018 & beyond, and both policy & legal views of the ever-changing global standard of Tennessee in the international investment environment.
Attendees will also have the opportunity to have direct interactive discussions with the speakers at the end of the seminar.
The panel discussion will last from 6pm thru 7pm, and then followed with a FAQ session for attendees, along with a light reception of beverage & desserts. 
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Lawsuit Filed Against Knoxville Developer

A lawsuit alleging misrepresentation has been filed against prominent Knoxville developer Richard E. “Rick” Dover, the Knoxville News Sentinel reports. Royal Properties, Inc., which represents the owners of the historic Pryor Brown garage building in Knoxville, is suing Dover for alleged dishonesty over the costs of turning the building into condominiums and commercial space. He is also accused in the lawsuit of tricking the owners into deeding him the property and of using the property as his own personal storage. Dover had six felony convictions in Texas related to financial fraud more than 20 years ago, but built a career in Knoxville after that.
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TBA Construction Section Offers Free Seminar on Mechanics', Materialman's Liens

The TBA's Construction Law Section will to offer a free one-hour seminar on what contractors need to know about mechanics’ and materialman’s liens on Oct. 12 at 8 a.m. The purpose of this seminar is to provide information to contractors and subcontractors in Tennessee about their lien rights on projects and the related timing considerations and requirements for perfecting and enforcing a lien in the event of nonpayment. Please RSVP to Trisha Rogers no later than Oct. 10.

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Mechanics' and Materialman's Liens: What Contractors Need to Know

Free Seminar, Oct. 12, 8 a.m. Central Daylight Time

The Construction Law Section of the Tennessee Bar Association is pleased to offer a free one-hour seminar on what contractors need to know about mechanics’ and materialman’s liens. The purpose of this seminar is to provide information to contractors and subcontractors in Tennessee about their lien rights on projects and the related timing considerations and requirements for perfecting and enforcing a lien in the event of nonpayment. Speakers will include Joshua A. Jenkins and Mary Beth Hagan, both of Hagan Law Group PLLC.  A light breakfast will be provided. Please RSVP to Trisha Rogers no later than Oct. 10, 2017.


When: Oct. 12, 8 a.m., Central Daylight Time

Where: Tennessee Bar Center, 5th Floor Terrace Room, 221 4th Ave N., Nashville, TN 37219

Parking for the Tennessee Bar Center is available at the Commerce Street Garage, located at 310 Commerce Street (between Third and Fourth Avenues on Commerce Street, across from the AT&T Building).
To walk to the Bar Center from the parking garage:
• Take the back elevator to the third floor. Turn right out of the elevator to the walkway, which will lead you to Fourth Avenue.
• Turn right onto Fourth Avenue, walk 1-1/2 blocks north, and the Bar Center will be on your left.
• If you are attending an event at the Tennessee Bar Center, be sure to bring your parking ticket so we can validate it for you. Ask our receptionist on the second or fourth floor for information.


Please contact Jarod Word, sections and committees coordinator with any Legal Practice Tips or Section Connect ideas you feel will benefit other section members.

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Judge Dismisses Lawsuit Against Chattanooga, Electric Power Board

A Hamilton County judge dismissed a lawsuit filed by a lighting company against the city of Chattanooga and the Electric Power Board, alleging that they conspired to block implementation of a new energy-efficient street lighting system, the Times Free Press reports. Circuit Court Judge J.B. Bennett ruled that the suit was not based on appropriate claims against a municipality and public officials. Bennett gave plaintiffs Global Green Lighting and its owner Don Lepard, 30 days to submit a new lawsuit.
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Chattanooga Lawyer Named to Board of National Legal Group

Chattanooga lawyer Marc H. Harwell has been elected to the Board of Directors of the Federation of Defense and Corporate Counsel. An attorney with the firm of Leitner, Williams, Dooley & Napolitan PLLC, Harwell also serves as the appointed chair of the group’s Construction Section and vice chair of its Transportation Section, Admissions Committee and Projects and Objectives Committee.

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Developers of Nashville Twin-Tower Project Head to Trial

The developers of a twin-tower project in Nashville are heading to trial over their controversial effort to buy a small parking lot in the footprint of their development, the Nashville Business Journal reports. The trial is scheduled for January 2018 and will see out-of-state investors clash with the Atlanta-based owner of the lot. The project was approved by the Metro Planning Commission last year and would be among the five tallest buildings in Nashville – 10 to 25 stories above Metro zoning restrictions for the area.
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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at

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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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Update on Retainage Laws

One of the most widely used “end of the project” leverage tools used by owners is retainage. Many times retainage can equal a contractor’s profit margin on a job. Getting withheld retainage back at the end of the job is essential. Far too often owners (and architects) forget that retainage is the contractor’s approved and earned money. In addition, since most prime contractor’s subcontract out the majority of the work (and in turn withhold retainage), much of the retainage is actually subcontractor retainage. Almost all construction contracts also set out the conditions under which retainage will be released, and give the owner the right to withhold retainage in the event of a dispute.

Tennessee’s retainage laws are located in the Prompt Pay Act (T.C.A. § 66-34-101, et. seq.) and can be summarized as follows: for any public or private project, retainage cannot exceed 5%; (2) if the prime construction contract exceeds $500,000, it is mandatory that the owner place the retainage into a separate, interest bearing escrow account with a third party; (3) the prime contractor is responsible to its subcontractors, if retainage qualifies to be escrowed (regardless of the subcontract amount), to ensure that a “project retainage account” is created; and (4) when deposited, retainage becomes the “property” of the contractor/subcontractor. These laws are mandatory and cannot be “waived” in the contract. The failure of an owner (or prime contractor) to comply is not only a criminal violation (Class C misdemeanor), but if the escrow mandate is ignored, the owner has to pay the contractor a daily penalty of $300 from the very first day that retainage was withheld and not escrowed. Legal fees for a bad faith violation can also be recovered. To be clear, this escrow rule also potentially exposes the prime contractor to the same $300 a day penalty from each and every subcontractor, regardless of the amount of the subcontract. In a recent case that settled, an owner who refused to escrow only $50,000 in retainage ended up paying the contractor a $300,000 penalty (1000 days X $300).

Most contracts allow an owner with set off or withhold retainage in the event of a dispute (defective work, liquidated damages, liens, a defunct contractor). There are provisions in the PPA which set out when an owner is required to release retainage (T.C.A § 66-34-204). Before a recent case, the “consensus” among lawyers was that these contract provisions govern. However, in Beacon4, LLC v. I & L Investments, LLC, 2016 WL 4545736 (Tenn. App. 2016)(cert. denied), the Eastern Court of Appeals held that notwithstanding and regardless of what the contract says about the ability of an owner to withhold retainage, an owner retainage release must occur within the earliest of the 3 statutory 90 day periods (issuance of a U&O permit; issuance of a certificate of substantial completion from the project architect; or when the owner begins to use or could have used the improvement). Yet another recent case held that the PPA is a “remedial” statute which should be liberally construed in favor of the beneficiaries of the retainage and prompt pay laws. Aarene Contracting LLC v Krispy Kreme Doughnut Corp, Case No. E2016-01155-COA-R3-CV (December 20, 2016).

To make these rulings clear, assume there is $100,000 in properly escrowed retainage, but it is discovered near the end of the project that the entire roof is defective and will cost $500,000 to repair. Assume further that the owner and lender did not require a performance bond. Under this scenario, the normal strategy of the owner (and lender)  would be to use the retainage to help pay for the repairs or, at the minimum, hold on to the retainage until the dispute is resolved. However, arguably under Beacon, even if the contractor is financially unstable (or even out of business), the owner would be required to fork over the $100,000 even when there is no guaranty that this money will be around when the dispute is finally resolved.

— David Taylor, a Nashville attorney with Bradley Arant Boult Cummings LLP is a member of the TBA Construction Law Section's Executive Council

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Supreme Court: Contractors Not Liable to Homeowners After Fire

A general contractor and two subcontractors are not liable to the homeowners after a fire destroyed their partially completed home, the Tennessee Supreme Court ruled. The court agreed with the trial court’s dismissal of the case based on insufficient evidence as to the cause of the fire. The cause of the 2012 blaze was unknown but was found to have started on the back deck of the house, making it accessible to the public and vulnerable to a number of potential fire starters such as arson, improperly discarded cigarette butts, electrical issues and more.
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Nashville Judge Rules Against ‘Eyesore’ Scrap Metal Yard

A federal judge in Nashville ruled against the scrapyard PSC Metals in a dispute between the company and its landlord, the Nashville Post reports. The two parties disagreed over an appraisal of the property, with the landowners believing that the appraisal should take into account what the land could be worth if it was rezoned from industrial to mixed use. Mayor Megan Barry has called the scrapyard an “eyesore” and former mayors have attempted to redevelop the property in the past.
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TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
Please sign up now to let us know you are coming.

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Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

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Register Now For TBA Construction Law CLE

Register now for the TBA Construction Law Section's Jan. 27 CLE: Construction Law Forum 2017. This compelling program will be held at the Tennessee Bar Center in Nashville and offers 5 general and 1 dual CLE credits.

This full-day seminar will be valuable for both new and experienced lawyers, and will cover various causes of action, including basic elements, procedure, how courts rule, and the interplay between the differing causes of action.

You may register online or by contacting the TBA at (615) 383-7421.

Section members will be meeting at lunch during the forum. If you are unable to attend the programming, but would still like to attend the luncheon, please contact Sections Coordinator Jenny Jones by Jan. 20. 

We look forward to seeing you in Nashville on the 27th!

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TBA President Urges Unity, Consensus Building in Profession

In the new Tennessee Bar Journal, President Jason Long discusses our divided country after the recent election, urging lawyers to be “united now more than ever in our commitment to the profession and its bedrock principles.” He writes that “we can provide that opportunity in a controlled and structured environment, operating within the framework of our democratic institutions. If there is an opportunity for consensus building and unity in today’s political climate, the legal profession can and should facilitate that.” Also in this issue, learn if you are protecting your clients’ electronic information enough, in the cover article by Trey Forgety. Brian Dobbs writes to help you understand the law of construction in Tennessee. Read the December issue.

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Bradley Expands to Southwest

Bradley Arant Boult Cummings LLP is opening its first Southwest office in Houston, the Birmingham-based firm announced today. “Our new Houston colleagues are recognized for their quality and service within the construction industry,” Bradley board chair and managing partner Beau Grenier said, “and they will be a solid anchor for us as we serve clients across many practice areas throughout the state from our new location.” Bradley operates eight offices in the Southeast, including one in Nashville.

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Court to Hear 7 New Cases

The Tennessee Supreme Court recently granted review of seven new cases dealing with a range of issues, including length of jury deliberations, identity of criminal offenses, repairmen’s liens, GTLA liability, ecclesiastical abstention and vicarious liability. The Raybin Supreme Court Hotlist reviews the cases and offers a prediction as to how each case may be decided.

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