TBA Law Blog


Posted by: Lynn Pointer on Nov 1, 2012

August, September, and October of 2012

by Steve Huret

 

Tort

  • Being Accused of a “Money Switch” Will Not Get You a Billion Dollars: Brown v. Mapco Express, Inc., 2012 Tenn. App. LEXIS 576 (Tenn. Ct. App. Aug. 22, 2012).
  • Addressing whether an incident in which a gas station clerk accused a plaintiff of doing a “money switch” amounted to intentional infliction of emotional distress, in addition to a myriad of other claims.

Expert Testimony

  •  Speculative Testimony Regarding Future Medical Expenses Excluded: Singh v. Larry Fowler Trucking, Inc., 2012 Tenn. App. LEXIS 598, 16-17 (Tenn. Ct. App. Aug. 15, 2012).
  • Addressing what is required of a medical expert when it comes to proving whether future medical expenses are reasonably certain.
     
  • Trial Court’s Exclusion of “Leading Questions” was Error: Smith v. Walker, 2012 Tenn. App. LEXIS 660 (Tenn. Ct. App. Sept. 19, 2012).
  • Addressing whether the trial court’s exclusion of expert testimony on the grounds that leading questions were used was error.

Summary Judgment

  • Plaintiff’s Failure to Rebut Summary Judgment Motion Results in Dismissal: Williams v. Bank of Am., 2012 Tenn. App. LEXIS 733 (Tenn. Ct. App. Oct 22, 2012).
  •  Addressing the failure of the plaintiff to rebut the affidavit and statement of undisputed facts presented by defendant in support of her motion for summary judgment.

Procedure

  • Failure to Respond to Suggestion of Death Results in Dismissal: Williams v. Williams, 2012 Tenn. App. LEXIS 633 (Tenn. Ct. App. Sept. 12, 2012).
  • Addressing whether an action should have been dismissed where there was no response to a defendant’s suggestion of death.
     
  • Statute of Limitations Lapsed in Abuse of Process Action: Blalock v. Preston Law Group, P.C., 2012 Tenn. App. LEXIS 695 (Tenn. Ct. App. Sept. 28, 2012).
  • Addressing whether a claim for an abuse of process is a “personal tort action” and therefore governed by the one year statute of limitations under Tenn. Code Ann. § 28-3-104.

Workers’ Compensation

  • Time Stamp on Benefit Review Conference Report Determines Subject Matter Jurisdiction: Word v. Metro Air Servs., 2012 Tenn. LEXIS 510 (Tenn. Aug. 21, 2012).
  • Addressing the impact of a time stamp on an employee’s complaint being two minutes earlier than the time stamp on a benefit review conference report on subject matter jurisdiction.

Damages

  • Failure to Prove Damages in Breach of Real Estate Sale Contract: Corbitt v. Amos, 2012 Tenn. App. LEXIS 686 (Tenn. Ct. App. Sept. 27, 2012).
  • Addressing whether the court erred in awarding sellers $55,300 in damages after owner provided testimony about the fair market value of the property.


TORT

Brown v. Mapco Express, Inc., 2012 Tenn. App. LEXIS 576 (Tenn. Ct. App. Aug. 22, 2012)

  • The plaintiff filed suit against the defendant alleging various claims and seeking damages in excess of a billion “with a b” dollars. The “life altering verbal exchange” occurred at a gas station in North Memphis. The plaintiff entered the store and told the clerk he wanted $5 worth of gas and handed the clerk a $20 bill. Dissatisfied with the bill denominations he received, the plaintiff asked the clerk to give him different denominations. The clerk declined and the plaintiff stated that he no longer wanted to purchase gas and asked for a refund or return of his $20 bill. According to plaintiff, the clerk’s response included:  (1) "Naw Naw Naw"; (2) "No I'm not fina give you nothing back"; (3) "what is you tryna do?" (4) "He tryna do a money-switch"; (5) "we don't play that in here, unh, unh, Go! Go!" and (6) "Go pump your gas." Eventually, the plaintiff was returned his $20 bill. The plaintiff argued that the behavior of the clerk would be considered outrageous by the average member of the community, but the court disagreed. The court held that the conduct fell squarely within the realm of “mere insults, indignities, threats, annoyances, petty oppression or other trivialities.

EXPERT TESTIMONY

Singh v. Larry Fowler Trucking, Inc., 2012 Tenn. App. LEXIS 598, 16-17 (Tenn. Ct. App. Aug. 15, 2012)

  • A truck owned by a trucking company rear-ended another driver’s truck, resulting in an injury to that driver’s back. The trial court granted the trucking company’s motion to exclude portions of the driver’s medical expert’s testimony, arguing that the testimony failed to demonstrate that the future medical expenses were reasonable certain. The Court of Appeals held that in order to remove awards for future medical expenses from the realm of speculation, a litigant must present evidence (1) that additional medical treatment is reasonably certain to be required in the future; and (2) that will enable the trier of fact to reasonably estimate the cost of the expected treatment. During his deposition, the driver’s physician was unable to testify to a reasonable degree of medical certainty about what types of future medical treatment would be necessary or what the costs would be.  While the Court of Appeals held that while the use of “magic language” that an expert’s opinion is within reasonable degree of medical certainty is not necessary for admissibility of testimony concerning possible future medical treatment, the testimony must show that it is more probable than not that future medical treatment will be required.

Smith v. Walker, 2012 Tenn. App. LEXIS 660 (Tenn. Ct. App. Sept. 19, 2012)

  • After a five car accident, the plaintiff filed suit and was awarded a verdict against one of the two drivers that she sued.  The Court of Appeals found the judgment regarding liability was supported by the weight of the evidence.  However, the court found it was error to exclude testimony of an expert witness due to leading under under Tenn. R. Evid. 611(c). The lower court found that the following questions were leading:

Q. And based upon your treatment of Mrs. Smith and the diagnosis that you have made would it be your position based upon a reasonable degree of medical certainty that the condition for which you treated her and which you saw her was directly related to the automobile accident in April of 2007?"

Q. And based upon your review of these medical records you have just gone over for us do you feel like these records are reasonable and necessary for the treatment of Mrs. Smith for the injuries for which you saw her as a result of this automobile accident?

The Court of Appeals disagreed with the trial court and defined a leading question as one that suggests the specific answer desired. The fact that a question allows for a “yes” or “no” answer does not make it leading.  The Court of Appeals found that there was nothing in the excluded questions that suggested the answer.  The Court of Appeals found the trial court’s exclusion of these questions was error and vacated the judgment.

SUMMARY JUDGMENT

Williams v. Bank of Am., 2012 Tenn. App. LEXIS 733 (Tenn. Ct. App. Oct 22, 2012)          

  • The plaintiffs filed a complaint alleging wrongful foreclosure and unjust enrichment against Bank of America and numerous other defendants.  The defendants timely answered the complaint and filed a motion for summary judgment.  The plaintiffs, however, failed to respond. The plaintiffs did not appear at the motion hearing, so the same was granted.  The plaintiffs filed a motion to set aside and/or motion for more time to respond to the motion for summary judgment. The plaintiffs’ motion was denied. They subsequently filed a motion to stay the foreclosure, which was also denied. Plaintiffs then appealed. The Court of Appeals found that the trial court did not abuse its discretion in denying the motion for reconsideration and stay noting that throughout the proceedings the plaintiffs continually failed to file anything refuting the defendants’ affidavits and statement of facts.


PROCEDURE

Williams v. Williams, 2012 Tenn. App. LEXIS 633 (Tenn. Ct. App. Sept. 12, 2012)

  • In this case, the court of appeals addressed whether the trial court should have dismissed a fraud and negligence case pursuant to Tenn. R. Civ. P. 25.01. The plaintiff filed suit against Regions Bank alleging, among other things, fraud, embezzlement, and negligence in connection with a quitclaim deed and deed of trust on property located in Sullivan County. In May of 2011 the plaintiff died, and soon thereafter, Regions filed a suggestion of death. No motion for substitution of proper party was filed within the 90 days required under the rule. In July, the attorney who represented the plaintiff filed a motion for voluntary dismissal, which the trial court granted. Regions Bank then appealed. On appeal, the plaintiff asserted that because Regions Bank failed to file and serve a notice of hearing with its suggestion of death, the suggestion of death was invalid. The court of appeals rejected that interpretation, holding that the language of Tenn. R. Civ. P. 25.01 does not require or provide for a hearing on a suggestion of death. Instead, the plain language of the rule requires that if there is no response to the suggestion of death after 90 days, the court must dismiss the action.

Blalock v. Preston Law Group, P.C., 2012 Tenn. App. LEXIS 695 (Tenn. Ct. App. Sept. 28, 2012).

  • A landlord’s attorney filed separate lawsuits for various breaches of a commercial lease against the lessee and obtained duplicate judgments for unpaid rent as well as for attorney fees. The lessee appealed to the circuit court, but paid the general sessions judgment in full. The attorney filed a partial satisfaction of judgment and another complaint for attorney’s fees. The attorney then filed another complaint in circuit court alleging additional rents had accrued. The lessee filed a complaint alleging abuse of process against the attorney. The primary concern of the Court of Appeals was whether or not a claim for abuse of process is a “personal tort action” and therefore governed by the one year statute of limitations under Tenn. Code Ann. § 28-3-104, which would require dismissal. The court concluded that the lessee’s action was time barred because a claim for abuse of process is a personal right to be free from abusive use of judicial process.

WORKERS’ COMPENSATION

Word v. Metro Air Servs., 2012 Tenn. LEXIS 510 (Tenn. Aug. 21, 2012)

  • The plaintiff sought workers’ compensation benefits in Wilson County Chancery Court while the employer filed a competing action in Davidson County Circuit Court.  The Wilson County Chancery Court denied the employer’s motion to dismiss for lack of subject matter jurisdiction, but granted the employer interlocutory appeal. The issue was whether or not the court had jurisdiction to hear the action because the employee’s complaint was filed two minutes earlier than the completion of the benefit review conference report. The Tennessee Supreme Court held that the trial court did not in fact have subject matter jurisdiction because Tenn. Code Ann. § 50-6-225(a)(2)(A) required the parties exhaust the benefit review process before seeking judicial review. The date and time on the benefit review conference report determines when that process was exhausted. Furthermore, extrinsic evidence cannot be used to impeach the time stamp on the complaint, absent fraud, inevitable accident, or surprise, which were not shown in this case.

DAMAGES

Corbitt v. Amos, 2012 Tenn. App. LEXIS 686 (Tenn. Ct. App. Sept. 27, 2012)

  • A successful bidder at a real estate auction failed to close because she was unable to obtain a loan. The sellers later conducted a second auction that resulted in a sale at a substantially lower price. The trial court awarded $55,300 to the sellers for the loss of the benefit of the bargain. The Court of Appeals noted that the sellers were the only witnesses to provide testimony about the fair market value of the property. Generally, a property owner is competent to testify about the value of his or her own property. However, that testimony must not be founded on mere speculation. In her testimony, one of the owners stated that she believed the property was originally worth $150,000, but that the bidder’s failure to close greatly damaged the value of the property. The court found this testimony was based purely on speculation, noting that there was nothing in the record to support her opinion that the property was ever worth $150,000. The Court of Appeals reversed the award of $55,300 on the basis that the sellers did not prove the fair market value of the property on the date of the breach was less than the contract price.

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Steve Huret is a shareholder with the firm of Wilson Worley PC in Kingsport, Tennessee.