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Personalized for Pete McPherson
Vol. 28, Issue 35
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Court holds seller of ammunition was not liable for suicide
The Tennessee Court of Appeals ruled that a retailer was not liable for the death of an 18-year-old who purchased ammunition from the retailer, used the ammunition to load his father's handgun, and fatally shot himself. Rains v. Bend of the River, 28 TAM 35-2.Facts. Aaron Rains' father had always owned firearms and had taught Rains to shoot at a young age. In addition to several rifles and shotguns, Rains' father owned a .25 caliber handgun. He stored the handgun and other weapons in a locked gun case in his home and kept the key to the gun case in his wife's jewelry box. Rains and his father had frequently used the handgun, as well as a .22 caliber rifle, to target practice before moving to Cookeville a couple of years earlier.
On July 15, 1997, the 18-year-old Rains found the key to his father's gun case and removed the handgun. He inquired about purchasing ammunition for the handgun at the sporting goods department at a local K-Mart, but was told that buyers of that ammunition must be 21. Rains then drove to the Bend of the River Shooting Supplies, a store operated by the defendant that sells firearms, shooting supplies, and ammunition. There, Rains purchased a box of ammunition for the handgun. The store clerk did not ask Rains for proof of his age and accepted Rains' $11.85 personal check for the purchase.
Rains loaded the pistol with the ammunition he had purchased and fatally shot himself. Rains' parents (the plaintiffs) filed a wrongful death suit against the defendant based on two theories -- negligence per se and negligent entrustment. The trial court denied the defendant's motion for summary judgment. The trial court granted the defendant permission to seek TRAP 9 interlocutory appeal. The Middle Section Court of Appeals, in an opinion written by Judge William Koch, reversed.
Negligence per se. For purposes of its opinion, the Court of Appeals presumed that the sale of handgun ammunition to an 18-year-old purchaser in violation of the Gun Control Act of 1968, 18 USC 922, is negligence per se. But the court ruled that the plaintiffs could not recover against the defendant because they failed to prove that the violation of the statute was the legal cause of Rains' death.
Koch wrote that courts generally agree that the act of suicide is an independent intervening cause shielding the seller of firearms and/or ammunition from liability when the purchaser's conduct could not have "led the seller, exercising ordinary care, to anticipate or foresee that the purchaser would use the firearm to commit suicide." Rains was 18 years old, he was not a stranger to firearms, and his father had taught him how to shoot rifles and pistols safely. None of Rains' family or acquaintances had any suspicion that he was suicidal. There was no evidence that his conduct or demeanor when he purchased the ammunition should have given the store clerk reason to foresee or anticipate that he intended to use the ammunition to commit suicide or to misuse it in any other way.
The plaintiffs asserted that even if suicide by 18-year-olds might not be factually foreseeable, 18 USC 922(b)(1) reflects Congress' determination that suicide is the likely result when handgun ammunition is sold to a person under 21 years of age. Like courts of other states, the Tennessee appellate court refused to adopt a per se rule holding that the mere violation of the statute is sufficient to impose liability.
Negligent entrustment. To establish a claim for negligent entrustment of a firearm or ammunition, a plaintiff must show that the seller sold the firearm or ammunition to a person it knew, or had reason to know, would be likely, because of his or her "youth or inexperience," to use the firearm or ammunition in a manner that would cause unreasonable risk of harm to himself or herself and others.
The court rejected the plaintiffs' negligent entrustment claim based on the same reasoning applicable to the plaintiffs' negligence per se claim. There was no evidence regarding the conduct or demeanor of Rains when he purchased the ammunition that would have given the defendant any basis to suspect that he was not competent to use the ammunition. The absence of this sort of proof, along with the absence of any evidence that Rains' subsequent suicide was reasonably foreseeable, defeats the claim.
Precedent. The Western Section Court of Appeals considered similar issues a decade ago in Fly v. Cannon, 836 SW2d 570 (Tenn.App. 1992), appeal denied May 11, 1992. Joseph Cannon was an 18-year-old who had been interested in guns and hunting from an early age. Upon hearing a noise outside a sliding glass door, Cannon loaded a .44 Magnum. Cannon saw a figure of a person who he thought was preparing to break into his grandparents' home where he was living. Cannon fired a shot through the glass door, killing his cousin, Butts. Among those sued by Butts' parents were the sellers of the ammunition for the .44 Magnum to Cannon. The trial court granted these defendants summary judgment. The appellate court agreed.
The court, in an opinion written by Judge Frank Crawford, distinguished the case from those cases cited by the plaintiffs in which firearm sales were made to convicted felons, mentally incompetent persons, and drug users. By contrast, Cannon had access to any number of firearms and ammunition exclusive of the particular ammunition that he purchased from the defendants. The court concluded that the defendants' sale of ammunition to Cannon, at most, created a condition by which the unfortunate incident was made possible, but the direct and proximate cause of the incident was the action of Cannon in firing the gun at the supposed intruder.
Names submitted to governor for court vacancies
The Judicial Selection Commission has narrowed the list of applicants down to 15 for one appellate court vacancy on the Tennessee Court of Appeals and four Davidson County trial court vacancies.Court of Appeals. The three applicants recommended by the commission to succeed retiring Judge Ben Cantrell on the Middle Section Court of Appeals are Murfreesboro attorney Donald Capparella, Director of the Tennessee Administrative Office of the Courts and former circuit court judge Cornelia (Connie) Clark, and Davidson County Circuit Court Judge Frank G. Clement Jr.
Chancery court. The six applicants recommended by the commission for two vacancies on the Davidson County Chancery Court are Clerk and Master for Davidson County Chancery Court Claudia Bonnyman; Disciplinary Counsel on the Board of Professional Responsibility Charles H. High Jr.; and Nashville attorneys John M.L. Brown, Richard H. Dinkins, David Randall Kennedy, and Matthew Sweeney.
Criminal court. The six applicants recommended for two newly created Davidson County Criminal Court positions are Metro General Sessions Judge John P. Brown, Metro Assistant Public Defender Laura Clift Dykes, Metro General Sessions Judge Mark J. Fishburn, Metro Juvenile Court Referee Carlton M. Lewis, Metro Assistant District Attorney Jon P. Seaborg, and Nashville attorney Monte Dwight Watkins.
28 TAM 35-2:
TORTS: Negligence Per Se
TORTS: Intervening Cause (Suicide)
TORTS: Negligent Entrustment
TORTS: Consortium
CIVIL PROCEDURE: Summary Judgment (Affidavits)
In 7/95, when he was 16 years old, decedent and his
parents moved from Mississippi to Cookeville. Decedent was
active member of local Police Explorers post. He was also
particularly close to his mother's older brother who worked
as deputy sheriff with Putnam County Sheriff's Department
and frequently rode with his uncle on patrol. Decedent's
father had always owned firearms and had taught decedent to
shoot at young age. Father forbade decedent to use firearms
unless father was present to supervise. In addition to
several rifles and shotguns, decedent's father owned .25
caliber handgun that he had purchased in Mississippi. Father
stored handgun and other weapons in locked gun case in his
home, and he kept key to gun case in his wife's jewelry box.
Decedent and his father had frequently used .25 caliber
handgun and .22 caliber rifle for target practice while they
lived in Mississippi. They did not have target practice
after moving to Cookeville because they lacked suitable
place to shoot. Decedent turned 18 in 1/97. On 7/16/97,
decedent found key to father's gun case and removed .25
caliber handgun. Decedent closed and locked case and then
returned key to his mother's jewelry box where he had found
it. Decedent then set out to find ammunition for pistol
because father did not have any ammunition in house.
Decedent's first stop was sporting goods department at local
K-Mart. Decedent inquired about minimum age for purchasing
.25 caliber ammunition and was told that buyers of that
ammunition must be at least 21 years old. Decedent showed
clerk his driver's license and commented, "Oh, I'm only
eighteen." Rather than purchasing ammunition, decedent
purchased package of BBs and left K-Mart. Decedent then
drove to defendant's Bend of the River Shooting Surplus,
store in Cookeville selling firearms, shooting supplies, and
ammunition. Decedent purchased box of Winchester .25 ACP
automatic caliber 50 gr. full metal jacket cartridges. Store
clerk did not ask decedent for proof of his age and accepted
decedent's personal check for $11.85 in payment for
ammunition. Either on 7/16/97 or early on 7/17/97, decedent
drove his car to Walker Hollow Road and parked. He loaded
his parents' pistol with ammunition he had purchased at
defendant's store and fatally shot himself. Neither
decedent's parents nor any other family members had any sort
of warning that decedent was planning to commit suicide. On
7/15/98, decedent's parents (plaintiffs) filed wrongful
death action seeking actual and punitive damages against
defendant on two theories -- negligence per se and negligent
entrustment. Trial judge denied plaintiffs' oral motion to
amend complaint to add claim for loss of consortium for
themselves and decedent's surviving siblings. Trial judge
denied defendant's motion for summary judgment, and matter
is before this court on interlocutory appeal. (1) Trial
judge erred in failing to grant defendant summary judgment
on plaintiffs' negligence per se claim. (a) This court has
substantial doubt that illegal sale of handgun ammunition to
18-year-old purchaser who used it to commit suicide should
trigger negligence per se doctrine. Congress did not
undertake to create private, civil cause of action for these
sorts of violations of Gun Control Act of 1968. Act does not
contain clearly defined standard of conduct with regard to
sale of ammunition to persons who may be intending to use it
for self-destructive purposes. And it is far from clear that
Congress intended to protect adults from self-destructive
acts when it enacted Gun Control Act. Courts that have
addressed question of whether various violations of Gun
Control Act trigger liability under negligence per se
doctrine have reached inconsistent results. But Tennessee
Supreme Court has, over years, been quick to invoke
negligence per se doctrine with regard to violations of
penal statutes designed to protect public. In Fly v. Cannon,
836 SW2d 570 (Tenn.App. 1992), another panel of this court
inferred that sale of handgun ammunition to person under 21
years old is negligence per se under Tennessee law. For
purpose of reviewing trial judge's denial of defendant's
motion for summary judgment, this court will presume that
sale of handgun to 18-year-old purchaser in violation of 18
USC 922(b)(1) is negligence per se. (b) To maintain
successful negligence per se action, plaintiffs must prove
not only that defendant violated penal statute designed to
protect public but also that violation of statute was legal
cause of plaintiffs' death. Actor's negligent conduct is
legal cause of harm to another if conduct is substantial
factor in bringing about harm and there is no rule of law
relieving actor from liability because of manner in which
actor's negligence resulted in harm. One of rules of law
that will relieve negligent actor from liability is doctrine
of independent intervening cause. This doctrine, which
survived Tennessee Supreme Court's adoption of comparative
fault, provides that negligent actor will be relieved from
liability when new, independent and unforeseen cause
intervenes to produce result that negligent actor could not
have reasonably foreseen. Tennessee's courts, like other
state and federal courts, have consistently recognized that
independent intervening cause doctrine may properly be
invoked in cases involving self-inflicted injury or death.
In cases brought against persons who supplied suicide victim
means to commit suicide, foreseeability question hinges on
victim's behavior and demeanor at time of sale. Abnormal
behavior can provide basis for concluding that supplier knew
or should have known that decedent was suicidal. Conduct of
sellers of ammunition should be scrutinized with same
standards used to scrutinize conduct of sellers of firearms.
Sellers of ammunition must be held to foresee that
ammunition will be used. But, with regard to sale of
ammunition to underage buyers, sellers should, in absence of
suspicious conduct or demeanor, be held to foresee only
sorts of misuse or mishandling of ammunition that result
from purchaser's being too young to appreciate danger of
ammunition. Suicide, because of its inherently
self-destructive nature, is not sort of misuse or
mishandling that sellers of ammunition should be required to
foresee in absence of conduct providing seller with reason
to believe that purchaser might be suicidal. (c) In present
case, decedent was not minor -- he was over 18 years old. He
was no stranger to firearms. His father had taught him how
to shoot rifles and pistols safely and had laid down strict
rules regarding use of firearms. None of decedent's family
or acquaintances had any suspicion that he was suicidal, and
there is no evidence that his conduct or demeanor when he
purchased ammunition should have given clerk at defendant
reason to foresee or anticipate that he intended to use
ammunition to commit suicide or to misuse it in any other
way. In light of these facts, burden shifted to plaintiffs
to demonstrate existence of material factual dispute
regarding what clerk at defendant knew or should have known
regarding decedent's intended use of ammunition. While
plaintiffs were unable to produce any evidence that
decedent's demeanor or behavior should have raised concern
about his mental stability, they sought to bolster their
foreseeability proof with affidavit of physician containing
statistical information regarding suicide rate and
purportedly demonstrating correlation between suicide and
firearms. This affidavit does not create material factual
dispute regarding foreseeability of decedent's suicide. This
affidavit does not comply with requirements of TRCP 56.06
that evidence submitted to support or oppose motion for
summary judgment must "set forth ... facts as would be
admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated
therein." Affiant failed to demonstrate that he is competent
to testify to correlation between suicide and handguns. He
simply stated that he is "conversant" with governmental
agencies that compiled information and that information is
"reasonably relied on" and "considered authoritative."
Actual source of information is not one of governmental
agencies affiant believed to be authoritative. Materials
attached to physician's affidavit were obtained from
organization that advocates stricter regulation of firearms
and ammunition. In addition to questionable foundation for
information attached to affidavit, information itself does
not draw strong correlation between firearms and suicide by
persons in decedent's age group. While materials contain
information regarding suicide rates in United States and
Tennessee, they fail to establish foreseeability of
18-year-old individual committing suicide with handgun.
Statistics do not indicate how many suicides were committed
with firearms in general or with handguns in particular.
They also do not provide age breakdown for these suicides.
Hence, they provide no basis for concluding that 18-year-old
individuals are more likely to commit suicide with handgun
than other age groups. Decedent's parents asserted that even
if suicide by 18-year-old individuals might not be factually
foreseeable, 18 USC 922(b)(1) reflects Congress'
determination that suicide is likely result when handgun
ammunition is sold to person under 21 years of age. Hence,
plaintiffs argue that mere violation of statute is
sufficient to impose liability. Like other courts, this
court declines to adopt this liability per se rule. As
general matter, disputed issues regarding legal cause,
intervening cause, and foreseeability must be left to jury.
But courts must and should resolve these issues when
undisputed facts and inferences to be drawn from facts
enable reasonable persons to draw only one conclusion.
Undisputed facts in record in present case provide no basis
for concluding that defendant knew or should have known that
decedent intended to use ammunition he purchased on 7/16/97
to commit suicide. Decedent's deliberate and considered act
of suicide provided independent, intervening cause that
insulates defendant from liability on negligence per se
claim. (2) Trial judge should have granted defendant summary
judgment on plaintiffs' negligent entrustment claim. To
establish claim for negligent entrustment of firearm or
ammunition, plaintiff must prove that seller sold firearm or
ammunition to person it knew, or had reason to know, would
be likely because of his or her "youth or inexperience" to
use firearm or ammunition in manner that would cause
unreasonable risk of harm to himself or herself and others.
Tort of negligent entrustment focuses on degree of knowledge
supplier of chattel has or should have concerning
entrustee's propensity to use chattel in improper or
dangerous fashion. But when chattel is firearm or
ammunition, inquiry should focus not just on experience of
person who uses firearm or ammunition but also on
foreseeability of injury. Negligent entrustment claim of
plaintiffs suffers from same deficit of evidence that
undermined their negligence per se claim. There was no
evidence regarding conduct or demeanor of decedent when he
purchased ammunition that would have given defendant any
basis to suspect that he was not competent to use
ammunition. Absence of this sort of proof, coupled with
absence of any evidence that decedent's later
self-destructive act was reasonably foreseeable, fatally
undermines negligent entrustment claim. (3) Decedent's
parents and siblings also included loss of consortium claims
in their amended complaint. In light of Tennessee Supreme
Court's decisions handed down after present suit was filed
and language of wrongful death statutes, decedent's parents
could appropriately seek loss of filial consortium damages.
But in light of TCA 20-5-110(a), which authorizes wrongful
death actions to be filed "for the benefit of the surviving
spouse and the children of the deceased, or in the name of
the administrators of the deceased spouse or in the name of
the next of kin of the spouse," it is unlikely that
Tennessee law would permit decedent's siblings to recover
damages for loss of sibling consortium. Claims for loss of
consortium damages cannot exist independently from claim
that defendant's "wrongful act, fault, or omission" caused
decedent's death. Hence, consortium damages cannot be
awarded without proof that defendant committed "wrongful
act, fault, or omission" and that this wrongful act or
omission caused decedent's death. Without proof that
"wrongful act, fault, or omission" by defendant caused their
son's death, no consortium claim can succeed.
(Rains v. Bend of the River, 28 TAM 35-2, CA
MS, 7/31/03, Koch, 15 pages, Putnam County.)
Full text for 28 TAM 35-2
28 TAM 35-3:
TORTS: Medical Malpractice
TORTS: Comparative Negligence (Joint Tort-Feasors)
CIVIL PROCEDURE: Statute of Limitation
CIVIL PROCEDURE: Ad Damnum
On 11/3/99, plaintiffs filed suit against Dr. Morris,
Office of Bone & Joint Surgery, P.C., and Methodist South
(original defendants). Complaint alleged that on 9/25/98,
plaintiff husband was diagnosed with severe degenerative
arthritis in both knees and that surgery was recommended. On
11/9/98, under direction of Morris, plaintiff was admitted
to Methodist Hospital where he underwent total joint
replacement of his left knee. Plaintiffs alleged that
following surgery, Morris proscribed drug known as Toradol.
Plaintiffs claimed that Toradol was contraindicated in
persons with history of gastrointestinal bleeding and peptic
ulcer disease. Plaintiffs contended that, despite
plaintiff's complaints of abdominal pain and vomiting,
original defendants continued to administer Toradol,
resulting in need for additional surgery for peritonitis,
perforated duodenal ulcer, and related complications.
Plaintiffs alleged that Morris, "Methodist Hospital South, a
Division of Methodist Hospitals of Memphis, individually and
by or through their agents, servants and employees" were
guilty of negligence in care of plaintiff and in
administration of Toradol. In their answer, Morris and
Office of Bone & Joint Surgery acknowledged that "the
Plaintiff was administered Toradol by the Methodist Hospital
staff, but not at Dr. Morris' order." Morris also denied
that he was guilty of any negligent act or omission that
resulted in injury to plaintiff. Morris asserted that he has
no knowledge of any act of medical negligence committed by
any other defendant or third party in care and treatment of
plaintiff. Morris stated that in event plaintiffs'
allegations of negligence on part of co-defendants are true,
and if plaintiffs are successful in presenting factual basis
for those allegations, then in that instance, Morris invokes
doctrine of comparative fault and says that under no
circumstance would he be liable for more than proportionate
share of total fault. On 12/16/99, based on statements in
Morris' answer, plaintiff filed motion to amend complaint.
Plaintiffs claimed that Morris' answer triggered TCA
20-1-119, which would allow them 90 days in which to amend
their complaint to add Dr. Isom and Fernandez, certified
registered nurse anesthetist. Plaintiffs claimed that Isom
and Fernandez provided regional and general anesthesia
during plaintiff's surgery. Plaintiffs further claimed that
Isom ordered administration of Toradol and that Fernandez
and Morris had knowledge that Toradol had been proscribed
for plaintiff. Plaintiffs alleged that all defendants were
guilty of negligence in care of plaintiff and in
administration of Toradol. Plaintiffs alleged that plaintiff
had "endured great physical and mental pain and suffering
and disability," but they did not pray for specific amount
of damages. On 1/12/00, trial judge entered order allowing
plaintiffs to file amended complaint to add Isom and
Fernandez. Plaintiffs failed to include prayer for relief or
ad damnum clause in both original complaint and amended
complaint. On 3/14/00, Isom and Fernandez filed motion to
dismiss based on statute of limitation. Trial judge denied
motion. Isom and Fernandez moved court for interlocutory
appeal, but motion was denied. On 11/16/00, plaintiffs filed
notice of voluntary dismissal without prejudice as to Morris
and Office of Bone & Joint Surgery. Trial judge entered
order dismissing these defendants. Methodist Hospital South
filed motion for summary judgment. Trial judge granted
Methodist Hospital summary judgment "as to direct liability
for any claims based upon the negligence of its employees,"
but trial judge preserved any claims against Methodist
Hospital by reason of acts or omissions of Isom and
Fernandez. On 1/25/02, trial judge ordered that action be
dismissed with prejudice as to Methodist Healthcare-Memphis
Hospitals. Trial was conducted on 1/28/02 through 2/8/02.
Jury found plaintiff to be 49% at fault, Isom to be 26% at
fault, and Fernandez to be 25% at fault. Jury found total
damages of $100,000. (1) Dr. Isom and Fernandez contended
that plaintiffs were not entitled to use 90-day grace period
provided in TCA 20-1-119. (a) Statements contained in Dr.
Morris' answer were sufficient to put plaintiffs on notice
that someone other than Morris administered Toradol.
Although Morris did not specifically state names of Isom and
Fernandez, Morris' answer provided "reasonable notice of a
third party claim and, coupled with the available ...
discovery tools, the plaintiff had more than adequate
opportunity and time to discover the third party's identity"
and to amend their complaint to add Isom and Fernandez
within 90 days following filing of Morris' answer.
Plaintiffs filed their amended complaint within 90 days and
as such, their claims against Isom and Fernandez were not
time-barred. (b) Isom and Fernandez argued that there was no
impediment which prevented plaintiffs from naming them in
original complaint. Specifically, Isom and Fernandez argued
that plaintiffs knew or should have known of their existence
and their status as potential defendants from outset and
should have asserted possible claims against them in
original complaint. Whether plaintiffs knew or should have
known of Isom and Fernandez and their status as potential
defendants is irrelevant to application of TCA 20-1-119.
Plaintiffs timely filed their amended complaint which saved
their claims from being time-barred. (2) Dr. Isom and
Fernandez argued that plaintiffs are not entitled to recover
awarded damages, including costs, when they failed to
include prayer for relief or ad damnum clause in either of
their complaints. Specifically, Isom and Fernandez claimed
that judgment is void because it exceeds relief prayed for
in complaint and amended complaint. TCA 29-26-117 states
that in medical malpractice action, pleading filed by
plaintiff "may state a demand for a specific sum," but that
such demand shall not be disclosed to jury during trial of
case, notwithstanding provisions of TCA 20-9-302 to
contrary. Legislature purposefully used word "may," thus
making inclusion of ad damnum clause permissive in medical
malpractice case. As such, plaintiffs were not required to
state demand for specific sum in their pleadings. Award of
damages to plaintiffs is affirmed. Partial dissent: Claims
against Isom and Fernandez were barred by one-year statute
of limitation. Original complaint alleged negligent
administration of drug Toradol by defendants. Dr. Morris'
answer states that "[t]he plaintiff was administered Toradol
by the Methodist Hospital staff, but not at Dr. Morris'
order." It is significant that Morris did not allege that
drug was negligently administered. At time Morris filed his
answer, defendants were Morris, Office of Bone & Joint
Surgery, and Methodist Hospital South, Division of Methodist
Hospitals of Memphis. Original complaint alleged that "[a]s
a sole, direct, and proximate result of the negligence and
deviations from the standard of care by these defendants ...
[plaintiff] has endured great physical pain and mental pain
and suffering and disability." At time Morris filed his
answer, there were two other defendants in addition to
himself. This language does not meet statutory requirements
as set forth in TCA 20-1-119(a) that Morris alleged in his
answer that person not party to suit caused or contributed
to injury or damage for which plaintiffs sought recovery.
His answer simply stated that Toradol was administered by
defendant Methodist Hospital's staff, but not at Morris'
order. His answer further states that he had no knowledge of
any active medical negligence committed by any other
defendant or third party in care and treatment of plaintiff.
Answer states that in event that plaintiffs' allegations of
negligence on part of co-defendants are true, and if
plaintiffs are successful in presenting factual basis for
these allegations, then Morris invokes doctrine of
comparative fault and alleged that under no circumstances
would he be liable for more than proportionate share. In
this portion of answer, Morris denies knowledge of any act
of medical negligence committed by any other defendant or
third party, but if allegations of negligence on part of
co-defendants are true, then he relies upon doctrine of
comparative fault. This is not allegation that "a person not
a party to the suit caused or contributed to the injury or
damage for which the Plaintiff seeks recovery." Statute is
not ambiguous. Giving words of statute reasonable and
ordinary meanings, result would be that TCA 20-1-119 would
not be applicable and claims against Isom and Fernandez
would be barred by one-year statute of limitation set forth
in medical malpractice act.
(Romine v. Fernandez, 28 TAM 35-3, CA WS,
7/15/03, Highers, partial dissent by Farmer, 12 pages,
Shelby County.)
Full text for 28 TAM 35-3
28 TAM 35-4:
TORTS: Battery
TORTS: False Imprisonment
TORTS: Outrageous Conduct (Miscellaneous Actions)
CIVIL PROCEDURE: Requests for Admission
CIVIL PROCEDURE: Summary Judgment (Appeal)
CIVIL PROCEDURE: Final Judgment (Disposition of Issues)
CIVIL PROCEDURE: Complaint
CIVIL PROCEDURE: Costs (Discretionary)
CIVIL PROCEDURE: Motion to Alter or Amend
CIVIL PROCEDURE: Findings & Conclusions
APPEAL & ERROR: Appeal of Right (Civil)
At some point during three years plaintiff attended
worship services at defendant Raleigh Assembly of God Church
(church), plaintiff became infatuated with young woman in
congregation (Beaver). Plaintiff's relentless attempts to
gain Beaver's affection resulted in injunction being issued
against him. Injunction prohibited plaintiff from
"communicating with or approaching Ms. Beaver." Plaintiff
alleged that various members of church and its minister
(Middlebrooks) conspired to prohibit plaintiff from
socializing with Beaver. In 8/90, plaintiff discovered that
Carlson, official of Assemblies of God Church, was scheduled
to speak on last day of three-day revival service. Plaintiff
contacted Carlson and requested to speak with him on 9/19/90
to discuss his belief that Middlebrooks and other church
members were conspiring to keep him away from Beaver.
Carlson did not agree to speak with plaintiff. On 9/18/90,
evening prior to Carlson's visit, plaintiff caused
disruption during service. Plaintiff apparently said
something which caused church members to be concerned for
their safety as well as safety of Carlson. As cautionary
measure, associate pastor of church contacted Downs, member
of church and Memphis police officer, and asked him to watch
plaintiff at service on 9/19/90. During altar call at
9/19/90 service, plaintiff walked down aisle to area beneath
speaker's platform. Plaintiff then began approaching
platform. At this time, Downs, who was off duty, and other
church members intercepted plaintiff. Downs extended his
hand to plaintiff, and men exchanged pleasantries. Downs
than asked plaintiff to accompany him to side room.
Plaintiff declined and stated that he was going to go onto
platform. Downs placed his hand on plaintiff's arm and told
plaintiff that he would not be allowed to do that. When
plaintiff continued his assent onto platform, Downs and
other church members "caught plaintiff and carried him from
platform to an adjoining room." Downs briefly detained
plaintiff and observed his threatening manner. Plaintiff
thereafter was taken by Memphis Police Department to
Regional Medical Center at Memphis for medical evaluation.
After hearing in general sessions court, plaintiff was
involuntarily committed to Memphis Mental Health Institute.
Plaintiff filed suit against church, alleging that church
had committed assault, battery, false imprisonment, and
intentional infliction of emotional distress. Trial judge
granted church summary judgment, but, on appeal, this court
reversed and remanded case. On remand, trial judge, sua
sponte, dismissed action prior to close of plaintiff's
proof. On appeal, this court found that trial judge erred in
dismissing case and remanded case for plaintiff to complete
presentation of his proof. On remand, at conclusion of
trial, trial judge entered judgment in favor of church.
Plaintiff filed post-trial motions, all of which trial judge
denied. (1) Trial judge did not abuse discretion in allowing
church to file responses to plaintiff's requests for
admission after 30 days from date they were served.
Plaintiff argued that TRCP 36.02 does not authorize trial
court to sua sponte extend time in which to file response to
requests for admission. Plain language of TRCP 36.01 allows
court to shorten or extend time in which to file response.
TRCP 36.01 does not require that party submit written motion
before court can shorten or lengthen time period in which to
respond. (2) Plaintiff argued that trial judge erred in
denying his 5/14/01 motion for summary judgment. Trial
court's denial of motion for summary judgment, predicated
upon existence of genuine issue of material fact, is not
reviewable on appeal when judgment is subsequently rendered
after trial on merits. Trial judge denied plaintiff's motion
for summary judgment because there were disputed issues of
fact. Judgment was subsequently rendered after trial. As
such, this court will not address propriety of trial judge's
denial of plaintiff's motion for summary judgment. (3)
Judgment states that "no battery, false imprisonment,
outrageous conduct or intentional infliction of emotional
distress occurred." Evidence did not preponderate against
trial judge's findings. (4) It appears from record before
this court that trial judge failed to render decision on
plaintiff's assault claim. Hence, there was no final
judgment. TRAP 2 allows this court to suspend for good cause
"requirements or provisions of any of these rules," except
TRAP 4, 11, and 12. There is no bar to suspension of TRAP
3(a). There is "good cause" to suspend application of TRAP
3(a) and address merits of plaintiff's appeal. This is third
appeal in case with tortured history. These parties have
been entangled in this case for over 10 years and are
entitled to some form of closure. On remand, trial judge is
instructed to render decision on plaintiff's assault claim.
(5) Trial judge did not abuse discretion in denying
plaintiff's motion to supplement complaint. In motion,
plaintiff attempted to supplement his complaint by including
issues relating to cases already decided and irrelevant to
current case. Plaintiff brings up issues relating to 1992
restraining order which prevented him from contact with
Beaver. He claimed that state brought false misdemeanor
charges against him for disregarding red light and assault
in retaliation against him for suing state officials in case
no. 41122. Dismissal of case no. 41122 was upheld by this
court and Tennessee Supreme Court. Issuance of 1992
restraining order was upheld by this court. TRCP 15.04
provides that upon motion of party, trial court may, upon
reasonable notice and upon such terms as are just, permit
party to serve supplemental pleadings setting forth
transactions or occurrences or events which have happened
since date of pleading sought to be supplemented. In
interpreting federal counterpart to TRCP 15.04, U.S.
District Court for Western District of Tennessee, in Stewart
v. Shelby Tissue Inc., 189 FRD 357 (1999), stated that
decision to grant motion to supplement complaint is within
trial court's discretion. (6) Trial judge did not abuse
discretion in awarding church discretionary costs. Church
filed its motion for costs within 30 days after entry of
judgment. There is equitable basis to support trial judge's
decision to award costs to church, successful party. (7)
Trial judge did not err in failing to grant plaintiff's
motion to alter judgment. Plaintiff alleged that judgment
was miscarriage of justice and must be set aside. Motions
made pursuant to TRCP 59 may be granted when controlling law
changes before judgment becomes final, when previously
unavailable evidence becomes available, or when, for sui
generis reasons, judgment should be amended to correct clear
error of law or to prevent injustice. Such motion should not
be granted when motion is simply seeking to relitigate
matters that have already been adjudicated. (8) Trial judge
did not abuse discretion in denying plaintiff's post-trial
motion to amend and make additional findings pursuant to
TRCP 52.02. TRCP 52.02 provides that trial court "may" make
additional findings, and decision of whether to grant motion
for additional findings is within sound discretion of trial
court.
(Ruff v. Raleigh Assembly of God Church Inc.,
28 TAM 35-4, CA WS, 7/14/03, Highers, 11 pages, Shelby
County.)
Full text for 28 TAM 35-4
28 TAM 35-6:
EMPLOYMENT: Employment Contract (Sales Commission)
CIVIL PROCEDURE: Equity
CIVIL PROCEDURE: Pleadings (Sufficiency)
Plaintiff was employed by defendant until 1/19/01.
Plaintiff contended that he sold equipment and that per
agreement with defendant was entitled to commissions for
certain sales made during his term of employment. Plaintiff
filed suit in general sessions court for breach of contract,
unjust enrichment, and other equitable remedies. Trial in
general sessions court resulted in judgment for plaintiff
for $4,115. Judgment was appealed to circuit court. Trial
judge ruled that equity required that plaintiff be paid for
work he accomplished. Plaintiff was awarded $11,917 plus
prejudgment interest. Two serious problems with record in
present case are evident. There is inadequate testimonial
record. There is neither transcript of proceedings in trial
court nor statement of evidence prepared in accordance with
TRAP 24(c). Second problem appears from non-testimonial
record and compels reversal of judgment. This is plainly and
completely case involving alleged breach of contract. One
may search in vain trial court's judgment, documentary
evidence before this court, and, indeed, briefs of both
parties for anything making issue in equity. Defendant
either breached contract between parties or it did not.
Civil warrant alleged, "Plaintiff sold equipment and per an
agreement with [defendant] is entitled to commissions for
certain sales made during the Plaintiff's term of
employment." Specific sales at issue are Martin Crating
account, Stover Wholesale account, Sparta Spoke account,
Aristokraft Cabinets account, Townsend Engineered account,
Toshiba American Distribution account, Voyager Carpets
account, and Toshiba American Consumer account. Every dime
allegedly owed by defendant to plaintiff is based upon
difference of opinion between parties as to mathematical
calculations under terms of contract. Defendant asserted
that in some of these sales, commission rate was 23% of
gross profit under terms of contract, while plaintiff
asserted that commission rate was 35% of gross profit under
terms of contract. As further example, under Stover
Wholesale account, plaintiff asserted that gross profit was
$3,300. Plaintiff claimed that this gross profit of $3,300
multiplied by his 35% commission results in total commission
of $1,155. Defendant, on other hand, asserted that
plaintiff's calculation of gross profit does not take into
consideration parts and labor together with administrative
expenses which would have reduced gross profit on Stover
Wholesale account to $199, resulting in proper commission of
$75. Each of these calculations is based on differing views
of proper interpretation of contract. No where is there room
for equity to intervene in this pure contract action. When
remedies available to litigant are circumscribed by
boundaries drawn "at law," such as in breach of contract
case, principles of equity cannot create rights outside
those boundaries. While civil warrant in general sessions
court alleged contract, breach of contract, and damages,
judgment for which appeal is perfected does not make any
findings relative to any of elements of breach of contract
action. Judgment simply holds "that equity requires the
plaintiff be awarded judgment in this case." Then, with
further observation that "equity requires that the plaintiff
be paid for work he accomplished," trial judge awarded
plaintiff $11,917 plus prejudgment interest. Prayer in civil
warrant for "unjust enrichment and other equitable remedies"
cannot expand scope of relief available to plaintiff when
facts alleged in civil warrant do not support such relief.
Facts alleged in civil warrant not only fail to assert any
basis for general relief in equity but in fact negate
everything except plain breach of contract. Relief awarded
by trial judge simply exceeds scope of relief requested by
plaintiffs. Judgment is reversed, and case is remanded for
trial of issues drawn between parties under which present
state of pleadings is limited to breach of contract.
(Craft v. Forklift Systems Inc., 28 TAM 35-6,
CA MS, 7/14/03, Cain, 5 pages, Davidson County.)
Full text for 28 TAM 35-6
28 TAM 35-7:
ESTATES & TRUSTS: Ademption (By Extinction)
ESTATES & TRUSTS: Estates (Attorney's Fee)
PROPERTY: Gifts (Delivery)
PROPERTY: Gifts (Intent)
PROPERTY: Confidential Relationship
APPEAL & ERROR: Waiver (Failure to Raise at Trial)
At time of decedent's death in 1999, decedent and wife
had been married for over 30 years. Decedent had one son
from previous marriage. Decedent was successful businessman
and handled all of family's financial affairs. Wife worked
part time, and family maintained joint account used for
family finances and purchase of stocks held in decedent's
name. Decedent suffered stroke in 1998, in addition to
suffering cancer of sinus cavity. In 1/99, decedent gave
durable power of attorney to wife. Decedent owned home and
lot on Pickwick Lake and $552,511 in stocks. All or most of
stock was acquired during decedent's marriage to wife. In
will executed on 8/9/89, decedent directed that Pickwick
property was to be devised to wife. Residual portion of
estate was devised and bequeathed to trust, with income and
principal to be used for support of wife, if needed. Trust
terminates at wife's death, and remaining principal is
bequeathed to Coe College and St. Jude Children's Research
Hospital. On 11/14/98, wife, acting as attorney in fact,
sold decedent's Pickwick property to his son. Wife deposited
proceeds of sale into her individual account. On 2/22/99,
wife sold some of stocks held by decedent, and $158,059 in
proceeds from sale were deposited into joint bank account.
On 2/24/99, wife withdrew $158,000 from joint account and
deposited it into individual investment account. After
decedent's 4/99 death, executor offered will for probate and
later filed complaint to construe will. Executor contended
that sale of Pickwick property constituted ademption by
extinction and that proceeds from its sale rightfully are
asset of decedent's estate. In amended complaint, executor
asserted that $158,000 withdrawn from decedent's joint
account and deposited into wife's individual account
rightfully are asset of decedent's estate. Chancellor ruled
in favor of wife. (1) Wife argued that doctrine of ademption
by extinction does not apply because proceeds of sale of
Pickwick property were not held by decedent's estate at time
of his death. In Estate of Hume, 984 SW2d 602 (Tenn. 1999),
Tennessee Supreme Court identified two-part test to
determine whether devise or bequest has been adeemed by
extinction: (a) whether gift is specific legacy and, if it
is, (b) whether it is found in estate at time of testator's
death. Wife cited second prong of two-part test for
proposition that property or proceeds from its sale must be
in possession of estate at time of testator's death. In
Estate of Hume, Supreme Court held that foreclosure sale of
testator's property prior to death worked ademption by
extinction regardless of testator's intent and that sale
resulted in "material alteration" of devise such that
proceeds from it could not be substituted for specific gift.
Hence, in Estate of Hume, Supreme Court held that proceeds
of sale of foreclosed property were part of general estate.
In present case, whether proceeds from sale of decedent's
Pickwick property were held by his estate or wife at time of
his death is irrelevant to whether specific devise was
adeemed by extinction. Devise of Pickwick property under
decedent's will indisputably was specific legacy. Likewise,
Pickwick property was not in decedent's estate at time of
his death. Legacy accordingly has been adeemed by
extinction. As in Estate of Hume, question before this court
is to whom proceeds of Pickwick property rightfully belong.
Unless, as wife asserts, she received proceeds from Pickwick
property as inter vivos gift from decedent, those proceeds
rightfully are property of decedent's estate. (2) Trial
judge erred in finding by clear and convincing evidence that
decedent had made inter vivos gift to wife of proceeds from
sale of Pickwick property. Inter vivos gift is established
by delivery with intention to give. Mere possession of
subject property is not evidence of ownership or of delivery
of gift, particularly when claimant had opportunity to
acquire property through other means. While possession in
consideration of all attending circumstances may be taken
into consideration in determining whether property was
delivered as gift, burden is on claimant of property to
show, by clear and convincing evidence, that possession is
rightful. Wife testified that "when [decedent] got into the
hospital, he called and said he wanted [son] to have the
property at the Hardin County appraisal." Wife testified
that she deposited proceeds of sale of Pickwick property
into her own account "[b]ecause [she] thought the checks
surely belonged to me since it was in the Will that I got
the proceeds of the property, and I put it in my own account
because there was enough already in the other account, and I
wanted to invest that however I wanted to later on." Upon
cross-examination, wife testified that she and decedent did
not discuss to whom proceeds of Pickwick property should go.
Wife stated, "Why would we need to [discuss proceeds] when
it was in the Will that the property proceeds come to me?...
It was clear to me that it was my property or my proceeds."
Wife's testimony, standing alone, whatever its contents,
would be inadequate to prove gift. Testimony of beneficiary
of inter vivos gift is not sufficient to establish gift.
Record does not support finding by clear and convincing
evidence that decedent intended to make inter vivos gift of
proceeds of Pickwick property to wife. Proceeds from sale of
Pickwick property belong to decedent's estate. (3)
Chancellor did not err in finding gift of portion of
decedent's individually owned stock to wife. Wife, through
power of attorney, sold portion of decedent's stock
holdings, deposited proceeds in their joint account, and
then withdrew proceeds and deposited them in her own
account. Wife's testimony is not sufficient evidence to
prove gift. But totality of evidence in record supports
finding of gift of portion of decedent's stock to wife.
Joint account was utilized for purchase of stocks. After
sale of stock, proceeds were returned to same joint account.
Most, if not all, of stocks were acquired during marriage.
Sale of stock was part of overall estate and income tax
planning program. (4) Executor asserted that wife has not
rebutted by clear and convincing evidence presumption of
undue influence arising from power of attorney. Executor's
argument seeks to mix-and-match concepts of undue influence
with regard to creation of legacy or gift and breach of
fiduciary duty which may attend actions of attorney-in-fact.
Undue influence does not arise as legal presumption when
relationship is close familial relationship. Moreover,
executor did not raise issue of undue influence in trial
court and may not raise it for first time on appeal. Hence,
this court will not address issue. (5) Both executor and
wife sought attorney fees in trial court. Chancellor denied
executor's motion for fees and ordered trust to pay wife's
attorney fees and expenses. (a) Present case is not will
construction case. It is action by executor against wife for
conversion. Services of wife's attorney have not inured to
benefit of decedent's estate. These services were provided
not to safeguard integrity of decedent's will or to protect
property of estate. Services of wife's attorney benefited
only interests of wife. Award of attorney fees to wife is
reversed. (b) Executor is entitled to attorney fees
necessarily and reasonably incurred in collecting,
protecting, and asserting or defending title to assets of
estate. In light of disposition of present case, executor's
necessary and reasonable attorney fees may be charged
against residuary of decedent's estate. Executor seeks to
recover attorney fees of $39,961 and $2,480 in expenses
advanced by counsel on its behalf. Case is remanded for
determination of whether executor's attorney fees were
reasonable.
(Union Planters Bank N.A. v. Shepard, 28 TAM
35-7, CA WS, 7/14/03, Farmer, 8 pages, Shelby County.)
Full text for 28 TAM
35-7
28 TAM 35-8:
ESTATES & TRUSTS: Claims Against Estate (Procedure)
CONSTITUTIONAL LAW: Statutes (Retroactivity)
CIVIL PROCEDURE: Statute of Limitation (Estate Claims)
CIVIL PROCEDURE: Post-Judgment Relief
Tennessee State Veterans Homes Board (SVHB) operates
Tennessee State Veterans Homes and provides nursing home
care for veterans and certain members of veterans' families.
Lacey was former resident of facility but left facility
before her death on 5/19/99, although continuing to maintain
certain rights and space at facility until 5/19/99. During
her residency at facility, Lacey incurred debt of $12,145 to
state. On 2/24/00, co-administrators filed petition for
appointment as co-administrators of Lacey's estate. On
3/27/00, co-administrators filed amended petition. First
notice to creditors was published in newspaper on 5/17/00.
On 7/10/00, co-administrator mailed notice purporting to be
actual notice to SVHB, one of Lacey's known creditors.
Notice stated that all parties having any claims against
estate were required to file claim with clerk within four
months of 5/17/00. On 9/15/00, SVHB filed claim for $12,145.
On 10/4/00, personal representative filed exception to
claim. Co-administrators contended that claim was barred by
TCA 30-2-307 because it was not filed within one year of
Lacey's death. Trial judge held that SVHB's claim was
barred. Due to some type of mix-up, motion to alter or amend
or for new trial ostensibly prepared and forwarded to clerk
of court was not shown as filed within 30 days of entry of
order of 6/12/01. It appears that trial judge suggested that
SVHB should file motion for order of correction nunc pro
tunc pursuant to TRCP 60, in order to properly include
motion for new trial or to alter or amend as timely part of
record. Trial judge subsequently ruled that SVHB's motion
would be considered timely filed but then denied motion. (1)
Although SVHB's attorney prepared and sent for filing to
clerk of court motion to alter or amend or for new trial,
motion did not appear in record, but copy was received by
co-administrators. Co-administrators had filed motion to
dismiss SVHB's motion for new trial, etc., because it was
untimely. Under these circumstances, motion filed by SVHB is
in substance motion to set aside order of 7/20/01 pursuant
to provisions of TRCP 60.02 and re-enter judgment, thus
allowing timely filing of SVHB's motion. Substance is
considered over form, and trial judge correctly found that
relief was warranted. (2) SVHB's claim was timely filed. (a)
TCA 30-2-306 required SVHB to file claim within four months
from date of first publication of notice to creditors, or
5/17/00. SVHB complied with this limitations period when it
filed claim on 9/15/00. (b) Neither TCA 30-2-307(a)(1)(A)
nor TCA 30-2-307(a)(1)(B) applies to present case. Hence,
SVHB properly filed its claim in compliance with limitations
period prescribed in TCA 30-2-306(c). (c) Co-administrators
asserted that, notwithstanding filing of claim within period
prescribed in publication's notice to creditors, claim was
filed after period of limitations provided for in TCA
30-2-310. At time claim was filed, TCA 30-2-310 provided
that all claims and demands not filed with probate court
clerk, as required by TCA 30-2-306 through 30-2-309, or, if
later, in which suit shall not have been brought or revived
before end of 12 months from date of death of decedent, will
be barred. TCA 30-2-310 was amended by 2000 PC 970 to
provide that all claims and demands not filed by state with
probate court clerk, as required by TCA 30-2-306 through
30-2-309, or, if later, in which suit shall not have been
brought or revived before end of 12 months from date of
death of decedent, shall be barred. Act took effect on
1/1/01 and applied to all estates which have not been closed
on 1/1/01 and to all estates which come into existence on or
after 1/1/01. Thus, by virtue of amendment, effective
1/1/01, estate was included in statute for prescribed
limitations period. State filed its claim within time
provided for in TCA 30-2-306(b) and prior to 1/1/01. Hence,
at time state filed its claim, one-year limitation period
was not yet applicable and, hence, state was not governed by
1/1/01 amendment. Although 2000 amendment to TCA 30-2-310
applies to all estates "which have not been closed on
January 1, 2001," it does not operate retroactively to void
claim made valid prior to effective date of statute. Statute
of limitation may not be given retrospective application so
as to bar accrued right of action, but may bar cause of
action which has not yet accrued or vested. SVHB filed its
claim against decedent's estate on 9/15/00, two days prior
to expiration of filing period specified in TCA 30-2-306(c).
On this basis, SVHB had accrued right and thus there should
be no retrospective application of limitations period to bar
claim.
(In re Estate of Lacey, 28 TAM 35-8, CA WS,
7/17/03, Crawford, 11 pages, Gibson County.)
Full text for 28 TAM 35-8
28 TAM 35-9:
FAMILY LAW: Child Custody (Comparative Fitness)
On 11/2/00, father filed complaint for divorce and
sought joint custody of parties' daughter. Mother filed
counter-complaint for divorce seeking sole custody of child.
At time divorce was filed, both parties were employed in
Memphis. Mother was deputy marshal, and father was FBI
agent. On 1/7/01, mother accepted promotion that required
her to relocate to Tyler, Tex. On or about 1/30/01, mother
relocated to Texas. Prior to mother's relocation and during
portion of pendency of divorce, parties resided with child
in marital home. On 8/17/01, chancellor appointed attorney
Ball as guardian ad litem to act on behalf of child. After
extensive investigation, Ball initially recommended that
mother be designated primary residential parent, but that
mother's request to relocate with child should be denied.
Ball stated that primary residential care of child should be
awarded to father if mother chooses not to move back to
Shelby County. After hearing testimony from Ball and both
parties, chancellor applied best interest of child analysis
and awarded father primary custodial rights. Mother was
awarded ample visitation. Mother argued that chancellor
erred in applying best interest of child analysis under TCA
36-6-106(a). Specifically, mother argued that these factors
are inadequate in case when one parent is relocating. While
mother recognizes that statute and case law regarding
relocation have previously dealt only with modification of
custody, she argued that court should apply factors
enumerated in TCA 36-6-108(d) in initial determination of
custody when parent spending greater amount of time with
child is relocating. Only case law mother offers in support
of her position is Connell v. Connell, 25 TAM 8-14
(Tenn.App. 2000). Connell is clearly distinguishable from
present case. Connell was post-divorce proceeding in which
initial custody determination had previously been made and
relocating parent had previously been designated as
custodial parent. Present case deals with initial custody
determination in which trial court has not previously
engaged in best interest analysis and neither parent
previously had been adjudicated custodial or primary
residential parent. When both parents are seeking to become
primary residential parent, court must consider what is in
child's best interest. Factors court must consider are
enumerated in TCA 36-6-106(a). Decision of which parent to
designate as primary residential parent becomes increasingly
difficult when, as in present case, both parents are fit and
proper persons to care for child. Many of factors in TCA
36-6-106(a) favor both parents equally or are not in dispute
in present case. First factor requires court to consider
"love, affection and emotional ties existing between the
parents and child." Ball testified that child is very
affectionate with both mother and father, but that child has
stronger bond with mother. Ball explained that it was her
understanding that when child becomes ill in night or
scrapes her knee, she first looks to mother to care for her.
This factor favors mother. With respect to second factor,
both parents have ability and means to provide child with
"food, clothing, medical care, education and other necessary
care." Ball testified that she could not say which parent
had been primary caregiver over past year because both
mother and father have "assumed significant responsibility"
for care of child. This factor weighs in favor of both
parties. Third factor takes into consideration "importance
of continuity in the child's life and the length of time the
child has lived in a stable, satisfactory environment."
Child has lived in Shelby County surrounded by father's
family for her entire life. Since mother's move to Texas,
child has lived with father and his parents in clean,
spacious home in Shelby County. Ball testified that child
has her own bedroom and bathroom, including closet full of
clothes and toys. Ball further testified that she
interviewed one of child's teachers who stated that there
has been no noticeable change in child's behavior or
appearance since mother has been gone. This factor favors
father. Chancellor seemed to rely heavily on fourth factor,
which requires court to assess stability of family unit of
parents. Ball testified that father's parents moved back to
Shelby County area about time child was born and that they
have been tremendous part of child's life. Ball testified
that it is very healthy for child to have such close,
nurturing relationship with her grandparents. Ball testified
that father has other extended family in area that can
provide support network. Mother testified that she is also
very close to her family even though they live approximately
three and one-half hours outside of Shelby County. Mother
testified that child has only had face-to-face contact with
mother's parents one time in 1998, not at all in 1999, once
in 2000, and twice in 2001. This factor weighs in favor of
father. Factor six requires court to look at home, school,
and community record of child. There was ample testimony
that child is bright, loving child that is doing very well
in school. Father testified that child has attended Little
Harding Academy in Cordova since 1/99 and that he plans to
keep child enrolled in this school. Father testified that
child is progressing satisfactorily at school and has
expressed interest in remaining at this school. Factors
five, seven, eight, and nine are not applicable to facts of
present case. As to factor 10, chancellor found that father
"testified that he will do whatever's in the best interest
of the child. In terms of seeing to it that the relationship
with the child with the mother is preserved as much as
reasonably can be given -- visits to the mother from the
child." Ball testified that both mother and father would
comply with court orders and would cooperate with each other
in making arrangements for child. Mother testified that she
is willing to allow father to see child every weekend if he
wanted to and that she agreed to do everything in her power
to see that father-daughter relationship is maintained.
Father testified that he would cooperate with mother to
allow her visitation and that he would do whatever is in
best interest of child. Hence, this factor weighs in favor
of both parties. Chancellor correctly applied best interest
analysis under TCA 36-6-106(a) in making this initial
custody determination. It is in best interest of child that
father be designated primary residential parent.
(Gregory v. Gregory, 28 TAM 35-9, CA WS,
7/14/03, Highers, 7 pages, Shelby County.)
Full text for 28 TAM 35-9
28 TAM 35-10:
FAMILY LAW: Child Custody
APPEAL & ERROR: Appellate Brief (Form)
APPEAL & ERROR: Transcript (Failure to File: Presumption of
Correctness)
CIVIL PROCEDURE: Self-Representation
Wife appealed judgment which decreed that parties were
divorced, awarded custody of parties' three minor children
to husband, affirmed visitation plan proposed by husband,
which wife signed, and ordered husband to pay token alimony
($1 per month) to wife. Wife was initially represented by
counsel, but he withdrew prior to date of trial. No answer
having been filed by wife, default judgment was taken. Wife
did not attend trial, although it was reset at her
insistence from earlier date. (1) Brief filed by wife is
woefully inadequate. It lists no issues on appeal as
required by TRAP 27. It does not state what relief wife is
asking from this court, except that she be granted custody
of minor children. Brief contains no statement of facts and
does not cite any law in support of her position. Brief
filed by wife is so infirm that review by this court is
impossible. (2) Even had wife listed issues regarding
custody or otherwise, it would appear that they would most
likely be dependent on facts adduced at trial. There is no
transcript or statement of evidence filed. Under such
circumstances, this court conclusively presumes judgment is
supported by evidence introduced. (3) Wife appeared in this
court pro se, which, according to some cases, entitled her
to degree of deference relative to certain inadequacies, but
certainly not major ones found in wife's brief.
(Harbin v. Harbin, 28 TAM 35-10, CA ES,
7/16/03, Goddard, 2 pages, Hamilton County.)
Full text for 28 TAM 35-10
28 TAM 35-11:
FAMILY LAW: Child Support (DHS Guidelines)
FAMILY LAW: Child Support (DHS Guidelines: Income)
FAMILY LAW: Child Support (DHS Guidelines: Deviation)
FAMILY LAW: Child Support (Arrearages)
FAMILY LAW: Visitation (Restrictions)
FAMILY LAW: Marital Property (Gifts Between Spouses)
FAMILY LAW: Marital Property (Separate Property)
FAMILY LAW: Attorney's Fee (Award: Reasonableness)
FAMILY LAW: Division of Property (Fairness)
(1) Trial judge capped husband's child support
obligation at $2,100, or 21% of $10,000 per month. (a) Under
Rule 1240-2-4-.04 of Child Support Guidelines, if obligor's
income exceeds $10,000 per month, court may consider
downward deviation from Guidelines if obligor demonstrates
that percentage applied to excess of net income above
$10,000 per month exceeds reasonable amount of child support
based upon best interest of child and circumstances of
parties. Under Guidelines, court may require that sums paid
above percentage applied to net income above $10,000 be
placed in educational or other trust fund for benefit of
child. TCA 36-5-101(e)(1)(B), which took effect 7/01, states
that if net income of obligor exceeds $10,000 per month,
then custodial parent must prove by preponderance of
evidence that child support in excess of amount, calculated
by multiplying appropriate percentage set forth in
Guidelines by net income of $10,000 per month, is reasonably
necessary to provide for needs of minor child(ren) of
parties. Statute provides that in making its determination,
court must consider all available income of obligor and must
make written finding that child support in excess of amount
so calculated is or is not reasonably necessary to provide
for needs of minor child(ren) of parties. This statute was
in effect at time of trial and is applicable to present
case. While statute conflicts with Rule 1240-2-4-.04,
statute states that it is to be applied "[n]otwithstanding
any provision of this section or any other law or rule to
the contrary." Statute has been applied in other cases
decided by this court. (b) Applying TCA 36-5-101(e)(1)(B) to
present case, it was incumbent upon wife to prove by
preponderance of evidence that child support in excess of
$2,100 per month was reasonably necessary to provide for
needs of minor child. She did not offer such proof. But
trial court is still required to "consider all available
income of the obligor, as required by this chapter, and
shall make written finding that child support in excess of
the amount so calculated is or is not reasonably necessary
to provide for the needs of the minor child." Chancellor
made no finding regarding husband's income and did not
calculate what husband's child support obligation would be
considering all of his income. Chancellor did not make
written finding that child support in excess of $2,100 per
month was or was not reasonably necessary to provide for
needs of child. This is mandatory language and requires
remand for trial court to make this determination. (c) Wife
argued that chancellor erred in failing to deviate from
Guidelines due to husband's lack of visitation. Guidelines
state that if child(ren) is/are not staying overnight with
obligor for average visitation period of every other weekend
from Friday evening to Sunday evening, two weeks during
summer, and two weeks during holiday periods throughout
year, then amount is to be added to percentage calculated
under Guidelines to compensate obligee for cost of providing
care for child(ren) for amount of time during average
visitation period that child(ren) is/are not with obligor.
Evidence shows that husband will not be visiting with child
in way Guidelines contemplate. Issue thus becomes how this
provision in Guidelines (Rule 1240-2-4-.04) is to be applied
in light of TCA 36-5-101(e)(1)(B). Harmonizing TCA
36-5-101(e)(1)(B) and section of Rule 1240-2-4-.04 dealing
with reduced visitation, requires court to set base child
support according to TCA 36-5-101(e)(1)(B) and limitations
it imposes, but then to allow upward deviation if there is
reduced visitation. Since husband is not exercising standard
visitation in present case, it is necessary for trial court
to consider whether upward deviation is necessary pursuant
to Rule 1240-2-4-.04, and matter is remanded for further
consideration. (d) Wife insisted that child support should
have been set retroactively to child's birth. Rule
1240-2-4-.04(e) of Guidelines states that when initial
support is being set, judgment must be entered to include
amount due for monthly support from date of child's birth
until current support order is entered. This amount must be
calculated based upon Guidelines using average income of
obligor over past two years and is presumed to be correct
unless rebutted by either party. Transcript mentions that
husband has been paying wife some amount of temporary
support, but there is no order reflecting amount or
allocation in record. Since this is mandatory provision in
Guidelines, this issue is also remanded so that chancellor
can determine whether appropriate child support was paid to
wife from child's birth forward. (2) Wife asserted that
chancellor erred in adopting proposed parenting plan filed
by husband in light of fact that husband has serious
drinking problem. Husband's plan provides for husband to
have three hours per month with child until child reaches
school age, and then alternate weekends and holiday
visitation once child reaches school age. Chancellor adopted
this plan, with restriction that visitation for first six
months would be supervised by wife's mother in Alabama, and
that husband would be sober and not consume alcohol during
his parenting time. Non-custodial parent's visitation may be
limited, or eliminated, if there is definite evidence that
to permit visitation would jeopardize child, in either
physical or moral sense. Husband admitted drinking was
serious problem in marriage. Husband should be allowed to
see child so long as he is sober and able to care for child.
Chancellor, in adopting husband's parenting plan, ordered
and emphasized that during husband's visitation "he shall be
sober and shall not consume alcoholic beverages during his
parenting time." This condition for visitation should not be
limited to first six months of visitation, but should
continue throughout all times of husband's visitation, due
to substantial evidence of husband's problems with alcohol.
(3) Evidence did not preponderate against chancellor's
finding that Mercedes car was marital property. Wife argued
that Mercedes was gift to her, and hence, her separate
property, while husband argued that Mercedes should have
been found to be his separate property. Mercedes was
purchased by husband before parties were married and titled
in husband's name only. Wife testified that husband told her
that car was gift to her, and employee of dealership
testified that husband told him this as well. Husband
offered proof to contrary. Husband bought Mercedes after he
and wife were engaged and were living together and pooling
resources. Husband testified that he bought car for wife to
drive, even though he disputed that it was gift to wife.
Husband and wife picked out car together, and it was
understood that car was for wife. Both testified that wife
was only person ever to drive car. (4) Chancellor awarded
wife $26,576 in attorney fees. Wife argued that she should
have been awarded larger amount, while husband argued that
wife was awarded too much. Husband argued that wife's
attorneys spent inordinate amount of time on "meritless
issues," but this argument is applicable to both parties.
Chancellor did not abuse discretion in fees awarded. (5)
Husband argued that he should have been awarded one-half of
cost of any improvements made to Molly Meadows house during
marriage, but chancellor determined that husband had made no
claim for those costs. Husband prepared list of assets and
listed this property as acquired by wife before marriage.
Other properties which husband asserted were his separate
property were listed as acquired by husband before marriage.
Hence, it appears that husband concluded that this was
wife's separate property. Chancellor should have divided sum
of money spent on home during marriage. Ultimate question
thus becomes whether property division was equitable
overall. Chancellor made equitable distribution of marital
assets, and evidence did not preponderate against his
determination.
(Rogers v. Rogers, 28 TAM 35-11, CA ES,
7/14/03, Franks, 7 pages, Hamilton County.)
Full text for 28 TAM 35-11
28 TAM 35-12:
FAMILY LAW: Divorce (Dual)
In 7/00, wife filed complaint for divorce in circuit
court. Few days later, husband filed complaint for divorce
in chancery court. Husband's complaint was transferred to
circuit court and treated as counter-complaint. In 5/01,
trial judge appointed special master to handle discovery
matters. Master did not find that granting of default
judgment was proper remedy for wife's failure to cooperate
with discovery requests but did recommend that judgment be
entered requiring wife to pay husband $800 in attorney fees
for her failure to cooperate. Wife filed exceptions to
special master's report. In 12/01, trial judge entered order
holding that issues of divorce and of equitable distribution
of property would be tried separately. Trial judge dismissed
wife's motion taking exceptions to master's report. On
1/23/02, trial judge remanded matter to master for more
specific findings. On 1/28/02, master filed amended report
specifically delineating which discovery requests needed to
be complied with and reconfirming his prior recommendation
that judgment be entered against wife for $800 in attorney
fees. Wife filed objections to master's amended report
outside 10-day period allowed by TRCP 53. On 3/12/02, trial
judge held first portion of bifurcated trial, which dealt
solely with issue of divorce. After testimony began, trial
judge stated that fault proof would be "roughly five minutes
on a side." After hearing brief testimony from both parties,
trial judge pronounced parties divorced. In 3/19/02 order,
trial judge found that both parties were entitled to divorce
and directed entry of final order as to issue of divorce,
finding no just reason for delay pursuant to TRCP 54.02. (1)
Wife contended that trial judge erred in refusing to hear
her exceptions to master's amended report. It is not
necessary to decide issue because any error was harmless.
Trial judge's refusal to hear exceptions, even if error, did
not involve substantial right that more probably than not
affected judgment or resulted in prejudice to judicial
process. Wife complained that this alleged error hindered
her ability to prove grounds for divorce by showing
husband's fault. But wife met her burden of proving husband
at fault. Trial judge found that both parties were at fault
when he determined that both were entitled to divorce. (2)
Wife contended that trial judge's refusal to hear discovery
disputes prior to trial, based upon trial court's Turner v.
Turner rule, violated wife's procedural due process rights.
Wife did not provide this court with copy of trial court's
Turner decision. As such, we are not able to make any
determination about whether trial judge's Turner rule
violates wife's due process rights because it is, at best,
unclear what this Turner rule is. Moreover, substance of
wife's complaint regarding this issue deals with problems in
obtaining discovery from husband hindering wife's ability to
prove grounds by showing husband's fault. Wife successfully
proved that husband was at fault. Hence, trial judge's
refusal to hear certain discovery disputes prior to trial,
even if error, did not involve substantial right that more
probably than not affected judgment or resulted in prejudice
to judicial process. (3) Wife contended that trial judge's
limitation on amount of fault proof presented during first
part of bifurcated trial violated wife's procedural due
process rights. First portion of bifurcated trial dealt
solely with whether parties would be granted divorce. All
other issues were reserved for second portion of trial and
are not before this court in this appeal. TCA 36-4-129
empowers courts upon sufficient proof of any ground for
divorce to declare parties divorced regardless of who may be
at fault. There is no requirement of written finding by
trial court that both parties were at fault or which party
was less at fault. In present case, trial judge found that
both parties were entitled to divorce, and evidence did not
preponderate against this finding. Since TCA 36-4-129 gives
trial courts power to grant divorce "if either or both
parties are entitled to a divorce," trial judge only needed
to hear sufficient proof during fault portion of trial to
determine if parties were entitled to divorce. Any further
proof beyond that would have been cumulative and needless.
TRE 403 permits court to exclude relevant evidence if
presentation would be "waste of time, or needless
presentation of cumulative evidence." Trial judge, in this
bifurcated trial, was not required to make written finding
as to "which party was less at fault." Limiting fault proof
during first portion of bifurcated trial did not violate
wife's due process rights. Wife had opportunity to be heard.
She presented sufficient proof to satisfy her burden of
proving grounds for divorce by showing husband's fault.
Trial judge properly exercised his discretion in excluding
cumulative evidence and in declaring parties divorced rather
than awarding divorce to either party alone.
(Mumford v. Mumford, 28 TAM 35-12, CA ES,
7/14/03, Swiney, 6 pages, Knox County.)
Full text for 28 TAM 35-12
28 TAM 35-13:
CIVIL PROCEDURE: Post-Judgment Relief (Default Judgment)
Plaintiff, Tennessee resident, contracted with defendant
in lease-purchase agreement for thoroughbred show jumper,
O'Conner, whose barn name is Zeke. Under terms of contract,
defendant was to carry insurance and, in event that option
to purchase was not exercised, return horse unharmed and in
good health on or before lease termination date, 8/31/00.
Defendant never exercised option and returned Zeke to
plaintiff in 9/00. Upon examination of horse after receipt,
plaintiff discovered that horse appeared malnourished. In
addition, Zeke had two-centimeter long laceration on his
right hock, which eventually became infected. On 5/23/01,
plaintiff filed suit for breach of lease. Complaint was
accompanied with summons which was returned unclaimed on
6/27/01. Service was attempted again, and process server
noted on return that service had been refused on 7/25/01. On
11/29/01, associate in law firm of plaintiff's counsel
finally effected personal service of summons on defendant in
courthouse in Alabama where she was also embroiled in bitter
divorce. On 1/4/02, having received no answer from
defendant, plaintiff filed and served motion for default
judgment. Prior to filing motion for default, plaintiff's
counsel had been negotiating with law firm of Phelps,
Jenkins, Gibson and Fowler in Tuscaloosa, Ala., in belief
that this law firm was representing defendant's interest
under contract claim. Although assumption was reasonable
judging from correspondence exchange between law firm and
plaintiff's counsel, that assumption eventually proved
false. On 2/8/02, Hill with law firm of Miller & Martin LLP
filed appearance and answer three days before hearing on
motion for default. Answer alleged lack of subject matter
jurisdiction, lack of personal jurisdiction, and several
other defenses. On 2/11/02, first of two hearings on motion
for default was held. On 2/26/02, Hill filed motion to
withdraw as counsel in cause and requested continuance until
such time as defendant could obtain other counsel. On
3/11/02, Pepper entered appearance as counsel for defendant.
On same day, motion for default judgment was heard again. On
4/4/02, trial judge granted judgment by default. On 6/3/02,
defendant filed motion to set aside default judgment. Motion
was accompanied by several affidavits. Affidavit from
defendant averred that she had not realized before 1/9/02
that answer to complaint was to be filed within 30 days of
11/29/01. Defendant was under impression that Tuscaloosa
counsel was handling breach of contract claim. Current
counsel supplied affidavit from himself and from Johnson,
Ph.D., alleging certain emotional difficulties which may or
may not have interfered with plaintiff's ability to make
decisions regarding defense of this claim. Trial judge erred
in refusing to set aside default judgment. There was no
showing of prejudice to plaintiff. Although delay evidenced
from unsuccessful attempts at service of process and during
negotiation toward settlement might suggest evasive conduct
on part of defendant, record does not satisfactorily
establish such conduct. Answer was filed prior to first
hearing on motion for default. Although in his order
overruling defendant's motion to set aside default judgment,
trial judge stated that he found defendant's excuses to be
"without merit," order contains no finding of willful
conduct on part of defendant. While motion to set aside
default judgment is addressed to sound discretion of trial
court, such motion prompts consideration of equities between
parties. Trial courts should grant relief whenever any
reasonable doubt exists concerning whether default judgment
should be set aside. Problems that prompted trial judge to
grant default judgment were bought on primarily by neglect
of defendant and, as condition to setting aside default
judgment, defendant should pay costs in trial court that
have accused prior to appeal. Upon payment of costs, default
judgment is set aside and case remanded for trial on merits.
(Smith v. Fowler, 28 TAM 35-13, CA MS,
7/14/03, Cain, 5 pages, Williamson County.)
Full text for 28 TAM 35-13
28 TAM 35-14:
CIVIL PROCEDURE: Dismissal
CIVIL PROCEDURE: Post-Judgment Relief (Excusable
Neglect)
This fraudulent and negligent misrepresentation case
arose from sale of business enterprise. Plaintiff filed suit
on 10/5/99, and case had two-year history of litigation,
which included motion practice and discovery disputes.
Plaintiff had originally retained Miller to represent it in
suit. In 6/01, Miller informed plaintiff that he was going
to withdraw. Plaintiff asked Miler to continue representing
it, but he declined. Miller led plaintiff to believe that he
had another lawyer considering "taking the case." After
several inquiries of Miller, plaintiff sought new counsel to
represent it. On 5/10/01, pursuant to local rules,
chancellor entered order stating that case would be
dismissed for failure to prosecute if no scheduling order
was entered on or before 6/15/01. Before 6/15/01,
plaintiff's original counsel, Risner and Miller, filed
motions to withdraw. Chancellor entered order on 7/3/01
granting motions to withdraw and ordered plaintiff to obtain
new counsel or proceed pro se within 30 days. On 10/17/01,
chancellor entered sua sponte order without hearing
dismissing case for "failure of the plaintiff to obtain new
counsel and surety and proceed with the case." On 11/16/01,
plaintiff was able to secure Oakley and Greene as new
counsel. Plaintiff filed TRCP 60 and TRCP 59 motion to set
aside order of dismissal. At hearing on 1/11/02, chancellor
denied plaintiff's motion and dismissed case pursuant to
10/17/01 order. Defendants argued that dismissal was proper
sanction imposed by chancellor for plaintiff's alleged
improper discovery practices of previous two years. But case
was dismissed by sua sponte motion and order of chancellor
based upon plaintiff's failure to abide by 7/3/01 order. It
is impossible under laws of this state for corporation to
represent itself pro se. Plaintiff diligently tried to
secure new counsel. It was not able to do so before 11/01.
This court does not condone willful failure to comply with
discovery or intentional actions to delay litigation as
alleged by defendant. But sole basis of dismissal found in
chancellor's order was plaintiff's failure to comply with
7/3/01 order requiring plaintiff to obtain new counsel
within 30 days. TRCP 60 requires relief under circumstances
of inadvertence or excusable neglect. It also requires
relief for any other reasons justifying relief from
operation of judgment. Upon plaintiff's new counsel's filing
of TRCP 60 motion, chancellor should have granted such
relief. Given Tennessee Supreme Court's due process mandate
to determine cases on their merits, failure of plaintiff,
through no apparent fault of its own, to obtain new counsel
within time mandated by chancellor is insufficient by itself
to warrant such harsh sanction. Chancellor acted outside her
discretion, and her decision is reversed.
(Squeeky Clean Laundries Inc. v. Harvey, 28
TAM 35-14, CA MS, 7/11/03, Johnson, 3 pages, Davidson
County.)
Full text for 28 TAM 35-14
28 TAM 35-15:
GOVERNMENT: Counties
CIVIL PROCEDURE: Intervention
CIVIL PROCEDURE: Judgment on Pleadings
This appeal concerns validity of process followed in
development of Blount County comprehensive growth plan
(Plan). Blount County Coordinating Committee submitted its
recommended Plan to respective governing bodies for
ratification. Plan initially placed McGhee Tyson Airport
property in City of Alcoa's urban growth territory, and all
legislative bodies except Blount County approved recommended
plan. Plan was returned to Coordinating Committee for
reconsideration. Coordinating Committee resubmitted its
original Plan unchanged. Impasse was declared by Blount
County. ALJ dispute resolution process was invoked, and
three attempts at mediation by ALJ panel were unsuccessful,
and another impasse was declared at mediation level. Panel
then submitted non-binding resolution to governing bodies,
placing airport property in Alcoa urban growth territory.
Resolution was not adopted. Blount County eventually
acquiesced in non-binding resolution, which was then
submitted to Tennessee Local Government Planning Advisory
Committee (LGPAC) for approval. LGPAC ultimately voted to
modify Plan on several items, including removing that
portion of airport property not currently incorporated into
Alcoa from its urban growth boundaries, and placing it in
Blount County's planned growth territory. Alcoa sought
judicial review. City of Knoxville and Metropolitan
Knoxville Airport Authority (appellants) filed motion to
intervene. Chancellor granted Alcoa judgment on pleadings on
ground that LGPAC, in its answer, admitted that its
modification of Plan was illegal. Chancellor vacated Plan
and remanded matter back to development/approval process and
refused to allow appellants to intervene. (1) Chancellor
gave as one reason for denying intervention fact that
appellants will "ultimately be entitled to judicial review."
Appellants essentially sought to intervene in action brought
pursuant to TCA 6-58-105 by Alcoa, while they have right to
bring independent action under statute. TRCP 24.01 provides
for intervention "when a statute confers an unconditional
right to intervene." While wording of this statute does not
confer unconditional right to intervene, it identifies
appellants as parties entitled to bring action under
statute. Hence, appellants were entitled to intervene in
this action. (2) Blount County argued that it cannot be
bound by LGPAC's admission, and that granting judgment on
pleadings, which can only resolve questions of law, was in
error. Blount County contended that it should be permitted
to present evidence that LGPAC Plan actually conforms to
statute. Review of judgment on pleadings is same as that for
dismissal for failure to state claim. LGPAC has essentially
admitted that its plan was illegal. As non-moving party,
statement is accepted as true, which is what lower court did
when it concluded that it had no choice and was constrained
to grant judgment on basis of admission. When statement
posits legal conclusion, trial court may not rely upon it as
basis for granting motion. Moreover, Blount County contended
that illegality of plan cannot be determined without
litigating contiguity issue which is question of fact.
Chancellor erred in relying upon LGPAC's conclusions of law
in granting judgment on pleadings. Blount County has alleged
that growth plan adopted by LGPAC conforms with TCA
6-8-106(a)(1)(B) because disputed property is contiguous to
other portions of Alcoa Urban Growth Boundary that adjoin
Alcoa's existing city limits, as property is connected by
right-of-way. This allegation raises issue of material fact
and should be resolved in evidentiary hearing.
(City of Alcoa v. Tennessee Local Government Planning
Advisory Committee, 28 TAM 35-15, CA ES, 7/17/03,
Franks, 5 pages, Blount County.)
Full text for 28 TAM 35-15
28 TAM 35-18:
APPEAL & ERROR: Coram Nobis
APPEAL & ERROR: Parties
APPEAL & ERROR: Appellate Brief (Form)
PROFESSION OF LAW: Practice of Law
CIVIL PROCEDURE: Self-Representation
Default judgment against defendants was entered in
Alabama and domesticated in Tennessee. Defendant Parker,
acting pro se and on behalf of defendant Caldwells,
requested relief in Tennessee court to have Alabama default
set aside. That motion was dismissed, but trial judge held
in abeyance motion to stay execution in Tennessee on
judgment pending outcome of attempts to set aside Alabama
defaults. Alabama court denied defendants' motions to set
aside default and then trial judge denied motion to stay
execution on 7/31/02. Parker filed "Motion to Satisfy
Judgment" on his own and Caldwells' behalf on 8/16/02, which
sought adjudication that judgment had been satisfied and
that plaintiff was entitled to no further relief. That
motion was denied on 10/2/02. (1) Parker is not licensed
attorney, and his actions on behalf of Caldwells constitutes
unauthorized practice of law pursuant to TCA 23-3-101 and
23-3-103. This court considers briefs of pro se parties
only, not on behalf of other unrepresented parties. Hence,
Caldwells are not properly before this court as appellants.
(2) Parker's brief does not comply with requirements for
appellate briefs. There is no statement of facts, citation
to record, or citation of relevant legal authority. Pro se
litigants are entitled to fair and equal treatment before
court, but they are not excused from and must comply with
same applicable procedural and substantive law as are
represented parties. (3) Parker presented no justiciable
issue to this court. Relief under writ of coram nobis is not
available in appellate courts. This appeal is from final
judgment of circuit court. Writ confers jurisdiction upon
county, chancery, and circuit courts to review and reverse
their own judgments upon sufficient grounds. Writ may not be
used as substitute for appeal or writ of error to take such
judgment to higher court for review. Moreover, errors
justiciable by writ are specified in TCA 27-7-102 but are
not mentioned in record.
(Smith v. Caldwell, 28 TAM 35-18, CA ES at
Nashville, 7/14/03, Franks, 2 pages, Montgomery County.)
Full text for 28 TAM 35-18
28 TAM 35-42:
COMMERCIAL LAW: Unfair Competition
CIVIL PROCEDURE: Injunction
Plaintiffs -- Kenny Chesney and Kenny Chesney
Merchandising Inc. (KCM) -- filed suit under Lanham Act
seeking nationwide preliminary injunction to prevent
individuals from selling or offering to sell unauthorized
merchandise bearing likeness and name of Kenny Chesney.
Chesney is country music recording artist and performer. KCM
is sole licensed vendor for goods bearing name, likeness, or
image of Chesney which include T-shirts sold at Chesney's
concerts. Suit concerns unauthorized, "bootlegged"
merchandise being sold outside concert venues for less than
price of KCM authorized T-shirts. According to Chesney,
identity of individual vendors varies from city to city, but
"bootlegged" merchandise is same. Thus, it appears that
single individual or enterprise produces and markets
"bootlegged" items. Sixth Circuit Court of Appeals has set
out eight-factor test to be used in determining likelihood
of confusion under Lanham Act -- strength of plaintiff's
mark, relatedness of goods, similarity of marks, evidence of
actual confusion, marketing channels used, likely degree of
purchaser care, defendant's intent in selecting mark, and
likelihood of expansion of product lines. Plaintiffs have
not demonstrated strong enough likelihood of success on
merits to sustain nationwide preliminary injunction. Once
plaintiffs bring named defendants before court and link
their "bootleg" merchandise to licensed, authorized
merchandise, there is strong likelihood of success on merits
of Lanham Act claim. But in present case, no named
defendants have replaced "John Doe" defendants and no
licensed, authorized Chesney merchandise has been offered as
evidence. Record does not contain example of licensed,
authorized Chesney T-shirt. This omission makes it
impossible for this court to perform complete comparison of
goods to determine likelihood of confusion caused by
"bootlegged" merchandise. As such, plaintiffs' request for
national preliminary injunction is denied.
(Chesney v. Doe, 28 TAM 35-42, USDC E.D.Tenn.,
8/8/03, Jordan, 9 pages.)