Undue Influence Not Proven in Will Contest

End of life planning is very important, especially if some of those plans involve selectively making gifts to some relatives and not others. Such estate plans often result in will contests or challenges by adversely affected heirs. The recent case of In re Estate of Link, highlights such a result.

Ms. Link was a widow, and had no children. Ms. Link had several siblings, but she was especially close to her younger sister and that sister’s children. In 1989, Ms. Link asked, Mr. Layne, the nephew of her older sister for help drawing up a will as he was an attorney. Layne, said no, but referred his aunt to another attorney who drafted her will. The 1989 will split the estate equally among the four nieces and nephews of her younger sister and Layne.

Time passed, and Ms. Link began relying more and more upon Layne for advice and assistance. In 1996, Ms. Link asked Layne to draw up a general power of attorney granting him authority over Ms. Link’s financial affairs. Again, Layne said no, but referred his aunt to the same attorney to draft it. In 1998, Ms. Link asked Layne to draw up a new will for her, which would give all of her estate to Layne as opposed to splitting it up five ways. Layne again said no, and referred his aunt to the same attorney who drew up the new will as she wanted.

Over the next several years, Ms. Link’s health deteriorated and she relied more and more upon Layne, who used the power of attorney and Ms. Link’s finances to see that his aunt was taken care of properly. Eventually Ms. Link passed away and Layne presented her 1998 will to the probate court. Not surprisingly, the disinherited nieces and nephews challenged the will on several grounds. One such challenge was that Layne unduly influenced his aunt to change her 1989 will and replace it with the 1998 will, which gave everything to Layne.

After several years of litigation, the parties tried the case and the jury concluded that Ms. Link was competent when she drafted the 1998 will and that there was insufficient evidence to suggest that Layne unduly influenced his aunt’s will. In effect, the 1998 will stood and Ms. Link’s estate passed entirely to Layne, which was her apparent wish.

Decisions regarding how one’s estate are to be divided up at death are often difficult to make and presumably, Ms. Link gave great consideration to how she wanted her assets to pass upon her death. If an estate plan treats some people in the same class differently than others (e.g. some nieces as opposed to all nieces), then it is important to communicate the reasons behind this to the drafting attorney so that he or she can fully document the decision as well as give consideration to whether additional steps may be appropriate. Likewise, if someone comes along who may have motives not consistent with the best wishes of an elderly person, but then gains all the assets in a will to the exclusion of other similarly situated people, speaking with an attorney who is familiar with estate litigation is a good idea. As, unfortunately, for every good intentioned Layne out there, there are others who have ulterior motives. 

Failure to Enforce Contract Terms Resulted in Modification

Many contracts which require payment in exchange for performance, require that the payment be made by a date certain. One would assume that the failure to pay by the agreed date would result in a breach of contract. But, this isn’t always true as the parties in the recent case of Bull Market, Inc. v. Elrafei discovered.

In Bull Market, Mr. Elrafei agreed to buy a gas station from Bull Market. Elrafei promised to make his monthly payment by the 15th day of each month. If Elrafei failed to pay as promised, then Bull Market could declare him in breach and foreclose on the gas station.

From 2009 through late 2015, Elrafei paid, albeit on irregular dates roughly within 5 days both before and after the 15th day of each month. Bull Market accepted the irregular payments without complaint until August 2015, when Bull Market suddenly returned Elrafei’s August 18th payment with a letter declaring Elrafei in breach and demanding that Elrafei abandon the gas station. Eventually Bull Market sued and obtained an eviction.

Elrafei appealed and the Court of Appeals reversed, finding that over the course of time, the irregular payments by Elrafei, and the continued acceptance of same by Bull Market, resulted in a modification of the contract’s terms. Bull Market and Elrafei created a new contract regarding the, “monthly amount, the maturity date, and the day of the month when the payments are due.” In other words, unintentionally or not, the parties had an entirely new deal.

The Court did not discuss whether or not the written contract contained a “no waiver or modification” provision, which generally provides that the failure to enforce strict compliance of an obligation doesn’t result in a waiver of strict compliance or modification going forward. It seems that had the contract at issue contained such a clause, the result may have been different. In any event, understanding all the terms of a contract is crucial and it is equally crucial to consider what omitted provisions should be included as well.

Waivers on Behalf of Children in Tennessee are Ineffective

As parents, when we take our children to the roller rink or jump park, we are often asked to sign a waiver in exchange for their participation. In many states, such a waiver may be enforceable. In Tennessee, however, the recent case of Blackwell v. Sky High Sports Nashville Operations, LLC, reinforced Tennessee’s prohibition against enforcing waivers for minors.

In Blackwell, Jacob Blackwell’s mother took him to a trampoline jump park in Nashville when Jacob was a minor. In order to permit Jacob to jump, Jacob’s mother signed a participation waiver, which attempted to do several things: 1) require any lawsuits to be solely brought in California, 2) waive any claims Jacob may have regarding future injuries, and 3) waive any claims Jacob’s parents may have.

Jacob jumped, he got hurt, and his parents sued in Nashville, Tennessee. In response to the lawsuit, the jump park moved to dismiss and/or transfer the suit to California. The Tennessee Court, however, disagreed. After a lengthy analysis of Tennessee’s law regarding waivers and comparisons to other States, the Court ultimately concluded that the lawsuit would remain in Tennessee and that Jacob’s waiver was ineffective. Thus, Jacob had a right to sue for his injuries. The Court held, “the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements[.]”

In reaching this conclusion, the Court looked at Tennessee’s public policy regarding protecting the rights of minors and the fact that the Tennessee legislature has never taken steps, like some other states, to permit such waivers. The Court also reasoned that the public policy argument that youth recreational activities would disappear was not persuasive as Tennessee and other states in line with Tennessee have thriving recreation industries. In other words, the Court didn’t see any reason to change the status quo.

Statutory Immunity for AED Use

Tragedies happen too often. And, when tragedies do occur, it’s difficult not to place blame. Placing blame, however, does not always mean that someone is legally liable for the tragedy.

In the recent case of Sandra Wallis v. Brainerd Baptist Church, et al., a tragedy occurred. During a cycling class, the Plaintiff’s husband collapsed and ultimately died. The instructor and other responders immediately gave first aid. It appears that since a slight pulse was found, the responders chose not to use the onsite AED (defibrillator). The Plaintiff-Widow sued the church arguing that it was liable primarily because the AED was not used. The church denied liability and filed a claim against the company that sold it the AED, provided training, and agreed to maintain the church’s physician oversight program.

The very lengthy Tennessee Supreme Court decision addressed numerous legal and factual issues, which won’t all be discussed in this post. However, relevant to this post is the Court’s discussion about the legislature’s decision to adopt laws intend to increase the availability of AEDs. See Tenn. Code Ann. §§ 68-140-401. Although encouraging the use of AEDs, the laws, however, do not mandate their use if a business chooses to have one onsite. But, if a business chooses to have an AED, the business must satisfy Tenn. Code Ann. §§ 68-140-408 and the TN Dept. of Health requirements. These laws generally require certain training, maintenance, registration and program development before an AED may actually be used.

Of note to the Wallis case, is the law which generally statesthat if a business acquires an AED and complies with the law, the business “receives statutory immunity from civil liability for negligent acts or omissions arising from use of an AED, although this immunity does not extend to willful or wanton misconduct or gross negligence.” Wallis at p. 17.

In other words, the business having an onsite AED, which follows the training/registration laws, shouldn’t be liable for a tragic situation such as the one the Plaintiff went through.

Although, the Court didn’t dismiss the entire case due to the current way in which it was on appeal, it seems clear that businesses which choose to have, maintain, and properly use AEDs in emergency situations should not be liable under most tragic situations. As with any application of the law to a specific set of facts, businesses wishing to explore whether they are in compliance with the law should do so in conjunction with legal counsel.

Damages Cap and the Chattanooga Bus Crash

Recently, Chattanooga saw another tragedy when a school bus driver lost control and crashed, killing six children and injuring even more. Though news reports continue to evolve, at present it appears that numerous complaints were written by students and educators alike noting the reckless driving patterns of the 24 year old driver. Lawsuits will, and should, follow. Parents lost children and families have been torn apart.

From a litigation standpoint, those affected by the bus crash will likely file suit against the County school system, the private bus contracting company, and the driver. The allocation of fault among the parties won't be known until a jury finally decides, although many people have opinions.

Setting fault aside, however, damages are equally interesting. In 2011, the Tennessee legislature passed and the Governor signed, TCA § 29-39-102, which limits damages in civil lawsuits. This law caps non-economic damages in most instances at $750,000. Non-economic damages include things such as pain and suffering, disfigurement or scarring, the loss of enjoyment of life, etc. All of which likely affect the children on the bus and their families. As a parent, I wonder to myself, “if my daughters had been on that bus, would $750,000 fully compensate them for their pain and suffering, disfigurement, scarring and the loss of enjoyment of life?”

Another interesting issue which may arise, is whether the County or the private bus company performing the County's duties, can argue additional defenses such as those created under Tennessee's Governmental Tort Liability Act. Again, like the apportionment of fault, these issues won't be known until well into the forthcoming litigation. Ultimately, however, the impacted children and families will never be the same regardless of the amount of monetary damages they receive. 

Post-Divorce Agreement about a...Parrot?

I recently came across an article about a tweet from an attorney:

Just settled a divorce over visitation of a parrot. Neither may teach it negative phrases about the other. I went to law school for this.

— Michael Adler (@madler9000) November 14, 2016.

At first glance, this statement may be seen as funny or even sad. Some readers may focus on the apparent pettiness of the divorce clients and their fighting over every last crumb.

An entirely different lesson, however, can also be gleaned. In this case, the divorcing couple identified a problem: Don't train the parrot to say mean things about the other ex-spouse. Maybe this couple had a history of teaching the parrot to mock people that the couple didn't care for? Maybe they were concerned that once separated, their parrot would be used to verbally attack the other spouse? Whatever the reason was, the divorcing couple identified an issue and seemingly communicated it to Mr. Adler.

This tweet illustrates the importance of issue spotting – whether in business, a divorce, estate planning, or litigation. Mr. Adler used his best efforts to resolve one of his client's concerns: avoiding continuous post-divorce litigation over the parrot. Avoiding future issues is a noble pursuit and an integral part of the attorney-client relationship. For this divorcing couple's sake, I hope that the written compromise is indeed sufficient.

On another note, since the tweet was published on November 14th, Mr. Adler's story continued to circulate. Adding a somewhat ironic twist and underscoring the unlimited depth of Twitter research, an astute follower noted that Mr. Adler's tweet is remarkably similar to:

Just settled a divorce over Parrot custody/visitation. Neither may teach it negative phrases abt the other.

I went to law school for this.

— Lady Lawya (@Parkerlawyer) September 15, 2016.

It will be interesting to see how all of this plays out. Does "Lady Lawya" have a case against Mr. Adler? Or, are there a slew of parrot divorce cases out there as a recent article questions?

In any event, the fundamental lesson doesn't change: Identify issues and be cognizant of addressing those issues in writing.

Failing to Effectively Prove Lost Profits at Trial

We recently examined the case of Aqua-Chem, Inc. v. D&H Machine Service, Inc. regarding the importance of written terms and conditions in contracts. This same case also illustrates the need to properly prove lost profit damages at trial.

As a reminder, Aqua-Chem owned large coolers that were to be installed on U.S. Navy destroyers. Aqua-Chem hired D&H to modify the coolers to fit the ships. However, D&H damaged the coolers.  Aqua-Chem spent approximately $191,000 to replace the coolers, which the trial court awarded as damages. The court, however, refused to award Aqua-Chem lost profits.

Lost profits following a breach of contract can be extensive. In this case, Aqua-Chem consumed an additional 730 labor hours rebuilding the damaged coolers. Those labor hours could have gone to other projects and other customers, thus giving Aqua-Chem additional profit. At trial, an Aqua-Chem executive testified that its profit margin on each hour of labor was $25.96. Aqua-Chem argued that it was entitled to an additional lost profit award of $18,951.

The court, however, disagreed, finding that Aqua-Chem didn't prove its lost profit damages with "reasonable certainty". The court found that Aqua-Chem's testifying witness was unable to establish how its CFO came up with the calculation. As such, Aqua-Chem didn't meet its burden of presenting evidence that "provid[ed] a satisfactory basis for estimating what [its] probable earnings and expenses would have been had the wrongdoing not occurred."

 Presentation of evidence at trial is crucial. If Aqua-Chem had presented underlying testimony supporting the $25.96/labor hour profit margin, then the court may have awarded the additional $18,951 in damages. However, because the trial presentation lacked the supporting data, Aqua-Chem wasn't made whole.

Performance Following Purchase Orders can be Binding

The importance of understanding written terms and conditions and having written contracts cannot be stressed enough. The recent case of Aqua-Chem, Inc. v. D&H Machine Service, Inc., highlights these points.

Aqua-Chem owned large coolers that were to be installed on U.S. Navy destroyers. Aqua-Chem needed the coolers machined, and subsequently hired D&H to perform the machining. D&H incorrectly machined the coolers, damaging them. Aqua-Chem had to replace the coolers at an additional cost of approximately $191,000. Aqua-Chem sued D&H and prevailed following a bench trial.

Prior to D&H machining the coolers, Aqua-Chem sent purchase orders to D&H which specifically stated, among other conditions, that: 1) the written purchase orders controlled over all other documents and oral statements, and 2) performing the machining services constituted acceptance of the purchase orders in their entirety. D&H never signed the purchase orders, but did machine the coolers and returned them to Aqua-Chem.

D&H argued that it orally rejected the purchase orders and thus, did not perform the machining subject to the unilaterally imposed written terms and conditions. The Court rejected this argument finding that the purchase orders explicitly provided that performance of the job was acceptance of the terms and conditions as written. Any modification of those terms must have been in writing and before the job was performed.

D&H lost and the judgment awarding Aqua-Chem full replacement cooler costs was upheld on appeal. Additionally, D&H was ordered to pay Aqua-Chem's attorneys' fees.

This case highlights the importance of reading and understanding all the terms and conditions of a contract before performance. And, further, if certain terms are not desired, then those terms must be addressed in writing before performance is done.

Out of State Company's Failure to Obtain Tennessee Certificate of Authority Didn't Kill Lawsuit

In Tennessee, like many other states, a non-Tennessee company must obtain a Tennessee certificate of authority if it wishes to maintain lawsuits within the State of Tennessee. Curiously, the recent case of Sharper Impressions Painting, Co., et al. v. Dean Yoder interpreted this statute  as meaning that the non-authorized out of state company may file its lawsuit in Tennessee, however, once filed, it may not continue to prosecute the lawsuit. In other words, the Court didn't penalize the non-compliant company, which cured its omission mid-suit.

In Sharper Impressions Painting, Co., an Ohio company employed Dean Yoder who was fired for embezzlement. After termination, Mr. Yoder started his own competing painting business, which violated his Sharper Impressions non-compete agreement. Sharper Impressions sued Mr. Yoder in Tennessee where he was operating his business. Mr. Yoder filed a motion to dismiss arguing that the Ohio company could not sue him since it didn't have a Tennessee issued certificate of authority. The trial court agreed and dismissed the suit notwithstanding the fact that Sharper Impressions obtained the certificate during the pending litigation.

The Court of Appeals reversed, holding that T.C.A. §48-25-102's use of the word "maintain" merely meat that the non-authorized out of state company could not continue to prosecute the suit. It could however, commence the suit, and further, once the defect was cured, the Ohio company could then continue to litigate. Accordingly, the court reversed the dismissal.

Although this case essentially found "no harm, no foul", best practices for out of state companies doing business in Tennessee include obtaining the certificate of authority at the outset. Up front compliance is certainly a more prudent economic decision as it avoids not only the statutory imposed late filing penalties to obtain the certificate, but also obviates litigating ancillary issues.

Failure to Show Testamentary Intent Defeats Estate Plan

Following the wishes set forth in the last will and testament of a decedent can be troubling for surviving heirs when multiple documents are found after death. This trouble is further compounded when various documents conflict with each other.

In the recent case of In re: Estate of Joan Uhl Pierce, the decedent (the person who died) wrote her will in 2007, which was formally witnessed and executed. In the 2007 will, Ms. Pierce gave all her assets to her children, and if her children didn’t survive her, then to she gave her assets to her grandchildren. In 2010, Ms. Pierce amended her will via a holographic codicil (i.e. a handwritten amendment, signed, but not witnessed). In her 2010 amendment, she noted that all her children except for one had moved out of state and the remaining child, became her caregiver. As such, Ms. Pierce additionally wanted to give her home to her caregiving child. However, the caregiving child died before Ms. Pierce.

In 2013, a mere handful of days before Ms. Pierce passed away, she received and filled out a set of documents from an attorney titled “Confidential Estate Planning Questionnaire”. In the questionnaire, Ms. Pierce made no mention of her grandchildren receiving any of her assets, which was contrary to the 2007 will and 2010 amendment. In other words, if the 2013 estate planning questionnaire was deemed yet another holographic will, then the grandchildren of the deceased caregiving son would not take anything under the 2013 document. However, under the 2007 will and 2010 amendment, the grandchildren would receive their father’s proportionate share of the estate plus the house.

The Court ultimately decided that the 2013 estate planning questionnaire did not evidence Ms. Pierce’s final intent. Among other reasons, the document noted that it was to be followed by a formal meeting with the attorney and that it was merely the beginning of the planning process, not the conclusion. Thus, the 2007 will and 2010 amendment controlled.

A lesson here is that as long as you’re alive, you’re free to change your post-death wishes. However, if you do so, you must follow the legal formalities and your testamentary intent must be clearly evidenced within the documents. In this case, the testimony given at trial showed that Ms. Pierce no longer wanted her one set of grandchildren to inherit her property, however, her failure to formally evidence these wishes defeated her plan and resulted in litigation.

Those First in Line Get Paid Quicker

Getting paid money you’re owed is a challenge to many businesses and individuals alike. When a customer refuses to pay, a lawsuit may be filed. If the lawsuit concludes favorably, the client obtains a judgment, which is often when the real work begins. In other words, the client must now collect on the judgment.

Tennessee, like most jurisdictions, allows judgment creditors to record their judgments turning them into judgment liens. Once a judgment lien is recorded, that lien takes priority over later recorded liens and unrecorded judgments. In other words, the recorded judgment lien sets the client’s place in line which can preclude others from “line cutting”.

The timing of when the judgment is obtained and when the judgment lien is recorded is crucial. The recent case of Hitachi Capital America Corp., v. Community Trust & Banking Co., et al., highlights this.

Simply put in Hitachi, three creditors were all owed money from the same debtor. Each creditor separately sued the debtor and each creditor obtained a judgment, and then later recorded its lien. Creditor One sued earliest, but filed its lien second. Creditor Two sued second, but filed its lien first. Creditor Three sued last, and filed its lien last, but made the argument that it was actually second in line, because of a technical issue pertaining to Creditor One’s judgment lien.

The Court ultimately disagreed with Creditor Three and the priority remained: Creditor Two, Creditor One, and then Creditor Three. Although the technical issue caused Creditor One to spend more on litigation against Creditor Three than it needed to, it still prevailed. Another interesting aspect of this case, is that Creditor One actually could have been first because it filed suit first and obtained its judgment first. For some reason though, it didn’t record its lien until one week after Creditor Two. So, technically correct, prompt, and timely filing are always crucial, but especially so when trying to get paid on a past due bill.

Lawsuit Amendments must be Timely

Car accidents can be traumatic and result in significant injuries and high medical bills. Sometimes, the at fault driver is underinsured and may not be collectible beyond  insurance limits. In such cases, injured parties must ensure that they seek damages from all at fault parties. Two keys to such an approach, are timely pleading the appropriate theories of liability against such additional parties, and also making sure that the facts support the claims.

In the case of Bowman v. Benouttas, et al., Ms. Bowman's car was struck by a tractor-trailer driven by an independent owner operator, Mr. Benouttas. Benouttas was hauling a load as an independent contractor for MGR Freight Systems, Inc. MGR, in turn was hauling the load on a contractual basis for AllStates Trucking, Inc., who was first hired by the shipping party.

In other words: Shipper to AllStates to MGR to Benouttas.

Bowman, the injured Plaintiff, sued Benouttas, MGR, and AllStates. When she filed her complaint, Bowman asserted theories of negligence against Benouttas and that MGR/AllStates were also vicariously liable under agency and joint venture theories. Over two years of litigation and discovery followed and towards the end of the written motion for summary judgment stage (i.e. to dismiss unwarranted claims in light of the facts elicited), Bowman sought to amend her complaint adding additional claims against MGR and AllStates including implied partnership, loaned servant doctrine, vicarious liability for an independent contractor, and negligent hiring. The trial court denied this motion finding that it was too late in the case and further, dismissed AllStates from the case based on the theories actually plead by Bowman.

The appellate court decision is quite lengthy and includes an analysis of the dismissed claims. However, for the purpose of this article, the procedural step of denying the motion to amend so late in the case highlights the importance of timely pleading all available claims, and if the facts show that additional claims are warranted, then to promptly seek leave to amend the complaint.

Based on the facts discussed surrounding the relationship of the three parties, it would have been interesting to know how the court would have viewed the untimely offered new claims at the written motion stage. However, since the motion to amend was filed so late in the case, the prejudice to the defendants outweighed Bowman's right to have those claims heard.

High Personal Injury Damages Despite Modest Medical Bills

Injuries can be traumatic, even if they result from relatively low impact events. In the recent case of Glasgow v. K-VA-T Food Stores, Inc., the Plaintiff was a shopper at a Food City grocery store. The Plaintiff was a diabetic who had one prosthetic leg. He used the restroom. While attempting to stand, the Plaintiff became dizzy and started to fall. He grabbed the handrail, but it pulled out of the wall and the Plaintiff fell and struck his head.

Following the fall, the Plaintiff developed uncontrollable migraines accompanied by light sensitivity. At the time of the fall, the Plaintiff was only 42 years old and had been employed in the television and video production field for 14 years, but he was unable to continue working in that field due to the use of the bright lights. He switched careers and was employed at the time of the trial. He incurred $5,310 in medical bills.

The Plaintiff sued claiming personal injuries as a result of the fall, which would not have occurred but for the faulty handrail and Food City's prior knowledge and failure to fix it. At trial, the Plaintiff presented the testimony of his treating family doctor and neurologist who both testified that the fall caused the headaches and that the headaches may continue into the future. Ultimately, the jury found in the Plaintiff's favor and awarded him $350,000. From a technical standpoint, the trial court reduced this amount to $250,000, as that was the maximum amount the Plaintiff had asked for in his complaint.

Food City appealed the amount of the jury's verdict only on the ground that it was excessive. The Plaintiff and, more importantly, the court disagreed. The appellate court noted that the determination of the amount of damages is for the jury to decide and would not be disturbed if material evidence supported the verdict amount. The court found that the testimony of the two doctors, the previously non-existent migraines, and the impact on the Plaintiff's employment could result in the award given by the jury. Thus, the reduced verdict in the amount of $250,000 for the Plaintiff's fall was affirmed. Overall, it appears that the Plaintiff and his counsel presented an effective case to the jury, which resulted in a fairly high damages amount in light of the relatively modest amount of medical bills. This case emphasizes the importance of solid trial preparation, but also highlights that juries can be unpredictable.

Buyer Beware When Purchasing Without a Title

What happens when an innocent buyer spends his hard earned money buying a trailer from a seller without receiving a certificate of title? Well, the buyer runs the risk of being sued by the trailer's lawful owner, losing the trailer, and losing his money. The case of Duffy v. Elam focuses on this.

Duffy owned a trailer that was originally purchased for about $45,000. Duffy had a side business with Smith, who had been using the trailer for several years. Eventually, Duffy demanded that Smith return the trailer, but Smith claimed the trailer was stolen some time ago. Duffy called the police, who promptly located the trailer on the property of a Mr. Elam. Elam testified that Smith sold him the trailer and gave him a bill of sale, but no certificate of title transferring ownership. After making the purchase, Elam then invested about $20,000 in repairs and upgrades to the trailer. When Duffy asked Elam to return the trailer, Elam said no, claiming he was an innocent good faith purchaser. Ultimately, the court agreed with Duffy, finding that the trailer should be returned to him, but that Elam could remove improvements he made from the trailer so long as he didn't damage it.

What about Smith, the man who initially refused to return the trailer to Duffy, then claimed the trailer was stolen, but in fact had sold it to Elam? Nothing in this case. However, the court noted in passing that Smith was in bankruptcy and was under federal investigation.

Individuals and business buy and sell assets regularly. Many assets, such as cars or trailers can be transferred using a certificate of title. In situations involving the buying or selling of assets, it is important to document the transaction and make sure that all evidence of title is properly conveyed.

A Curse Be Upon...Me?

Yesterday, I experienced a first as a trial lawyer. After I won a jury trial on my motion for directed verdict, the pro se litigant's sister placed a curse upon me, prompting me to over-enthusiastically address the indignities of such an offence. Her uttered incantation aside, I find myself reflecting on some lessons learned about the case.

In short, the case was a simple car crash. The Plaintiff claimed a host of physical and mental injuries all attributed to my now deceased driver/client. Unfortunately for the Plaintiff, she burned through two highly competent attorneys and opted to try her luck on her own, proceeding pro se. More unfortunately for the Plaintiff, she neglected to 1) offer any admissible evidence at trial, 2) offer any medical testimony linking up her injuries to the crash, or 3) offer any evidence or testimony regarding her claimed medical bills. So, after we picked a jury, made opening statements, and the Plaintiff testified, I moved for directed verdict (i.e. to dismiss the lawsuit on legal grounds as the Plaintiff failed to prove the essential elements of her claim.) Although the trial ended favorably for me, the Plaintiff will likely file an appeal, and I may be cursed.

What can be learned from all of this?

First, don't upset someone who freely casts curse-filled spells. Second, don't burn through competent counsel – they tend to know how to present a case to a jury. Third, if you do burn through competent counsel, hire another one. Trying a case to a jury requires some attention to detail, such as knowing the rules of evidence. Finally, follow the rules of civil procedure and the local rules so the court doesn't exclude witnesses and evidence on technical grounds.

When an Employee Serves Two Masters

An interesting case arose out of the Middle District of Tennessee, which explored the overlapping claims involving an employer suing some of its former employees for trade secret misappropriation, breach of the duty of good faith and loyalty, and civil conspiracy. In Ram Tool & Supply Company, Inc. v. HD Supply Construction LTD., et al., the court allowed the common law claims of breach of duty of good faith/loyalty and civil conspiracy to survive the former employees' motion for summary judgment, notwithstanding the preemption of factually similar claims by the Tennessee Uniform Trade Secrets Act.

The facts appear quite colorful. Briefly, two businesses (Ram Tool & Supply and White Cap Construction Supply) compete in the construction tools and materials distribution industry. Ram Tool had a sales team in Nashville. White Cap didn't, but planned on opening one. Ram Tool alleged that over a period of about six months, White Cap targeted Ram Tool's Nashville manager, who agreed to move over to White Cap. While still employed with Ram Tool, the Nashville manager heavily recruited other Ram Tool employees; negotiated the hiring of Ram Tool employees for White Cap, while the manager was still on the Ram Tool payroll; and identified himself as the White Cap branch manager on White Cap letterhead while still employed by Ram Tool. To add insult to injury, on his last day of employment with Ram Tool, the Nashville manager received an order at Ram Tool, which he promptly forwarded to his new White Cap team calling it the "first order".

None of the Ram Tool employees were bound by any non-compete agreements or non-solicitation agreements. Rather, the claims against them were brought under common law theories that apply to all employees.

The court did not reach the merits of the dispute or opine on fault as the matter must still be tried to conclusion. Instead, the case dealt with the legal ruling of whether the Tennessee Uniform Trade Secrets Act precluded all of the common law claims, as is often the result. The court said no – the common law claims (i.e. breach of duty of loyalty, etc.) survived as the facts supporting those claims did not involve any alleged trade secret theft. In other words, the former Nashville manager and others, have quite the uphill battle to tread as they attempt to defeat of multiple claims being levied against them.

Situations involving employee dishonesty and switching over to competitors, both with and without non-compete agreements, often result in contentious litigation. And, as shown by this case, require a solid understanding of the interplay of the various overlapping claims.

My Suspended Lawyer Failed to Show Up

What happens when your attorney fails to show up for trial because he's suspended from practicing law? Oh, and the suspended lawyer apparently never bothered to tell you that he wasn't going to be there or that he was suspended? A woman in Lawrence County, Tennessee recently found out – albeit fairly late in the process.

In Tidwell v. Burkes, two sisters sued each other over whether a real property deed was forged or not. Both sisters had legal representation who participated in the case for about 1 ½ years. Sister A's lawyer, however, was suspended from practicing law at some point before trial (we don't know why). The now suspended lawyer never told his client that he was suspended or that trial was set for September.

What does the trial court do on the day of trial? It moves on and makes Sister A try her case with no lawyer!

Sister A testified that her lawyer never told her about the trial and that she didn't learn about the suspension until that same morning. She pleaded with the court that she wasn't prepared. The trial court didn't seem concerned with this, finding that because her now suspended lawyer had notice, she did too, and that the court would accommodate the out of state witnesses over her.

Obviously, Sister A lost, but she hired new counsel who appealed. The court of appeals reversed the trial court, finding that Sister A should have been granted a continuance to hire a new lawyer and that it was error for the trial court to make her try the case.

It will be interesting to see how the case ends up now that both sides appear to have counsel, who aren't suspended, and who likely will show up for the new trial. What's the takeaway? Hire an attorney who you trust and with whom you can communicate effectively.

Wage Garnishments Gone Wrong

When someone obtains a judgment against another, the person or company with the judgment becomes a judgment creditor, while the party against whom the judgment was rendered becomes a judgment debtor. A judgment creditor has several available options when trying to collect money from the judgment debtor. One such option is a wage garnishment.

Generally, to perform a wage garnishment, the judgment creditor files it with the appropriate court and obtains service of process on the judgment debtor's employer. In other words, proper notice must be given to the employer who is being asked to pay the judgment debtor's wages directly to the judgment creditor. If proper notice is given, and the employer refuses to cooperate, the judgment creditor can seek a judgment directly against the employer. In other words, the employer, who had nothing to do with the underlying lawsuit, could be on the hook for the full amount owed.

The recent case of Cash America International, Inc. v. Geico General Ins. Co. touches upon the potential perils when an employer ignores a wage garnishment, but, equally importantly, reinforces the hard and fast rule that the judgment creditor's failure to properly give notice to the employer voids the proceeding (as if it never occurred). In the Geico case, Geico first set in motion the wage garnishment by hand delivering a copy of the garnishment to an hourly employee at a local branch who had no management authority. This "notice" wasn't sufficient and the subsequent judgment Geico obtained against the employer was deemed void, long after both sides spent a lot of time and money in litigation.

Why is all of this important? First, anytime you receive documents from a court, it is important to share those with your attorney so that a plan to respond can be made. Simply ignoring such papers is not typically a sound approach. Second, companies may consider putting in place basic employee training of what to do if they receive court documents. Had the hourly worker been trained properly, the employer may have been able to avoid much of the hassle it endured. Third, if you are owed money, an attorney can work with you to determine whether or not it makes economic sense to pursue a claim against the debtor. In the case where the debtor is gainfully employed such as in Geico, it may make sense to explore collection avenues. A wage garnishment, done properly, can chip away at the judgment much like an annuity.

Led Zeppelin Lives On

The news today is flooded with articles detailing the result of the recent jury trial trial against the iconic band, Led Zeppelin. Briefly, the trustee for the late Randy Craig Wolfe, who wrote a song called Taurus in 1968, sued Led Zeppelin. Mr. Wolfe obtained a copyright on the song. The trust argued that Stairway to Heaven infringed on that copyright and therefore Led Zeppelin was liable for damages. Today, the jury returned a verdict in Led Zeppelin's favor.

Copyright law is fairly specialized and doesn't directly impact many clients. However, the case is interesting for several reasons. First, Stairway to Heaven is a classic, having been released in 1971. Today's verdict came as a result of a lawsuit filed just a few years ago, which seemingly doesn't make a lot of sense. But, copyright law has significantly longer statutes of limitations than many other claims. Thus, although the original song was written in 1968 and its songwriter died in 1997, his trust still had a legal right to bring the lawsuit when it did.

Second, this case is interesting from a trial strategy perspective. The original copyright was filed as written sheet music, which meant that the two sides were permitted to perform music for the jury playing from the sheet music. The trust used a guitar. Led Zeppelin used a piano. I imagine the attorneys and musicians deliberated over which presentation of the evidence most favored their client's case.

And third, from a non-lawyer perspective I found it interesting that a simple search on YouTube shows numerous clips comparing the two songs, some involving detailed analysis of the music. Listen and draw your own conclusion.

This Case and outcome further highlight the importance of protecting your legal rights both at the outset and in a timely fashion.

The (Seemingly) Evil Stepmother

We've looked at cases in the past highlighting the importance of clear written plans controlling property and money after death. This is especially important in situations involving families in which not everyone gets along. The recent appellate case of In Re: Estate of Bruce Chapman Bower illustrates this point.
In Bower, Mom and Dad were married and had children. Mom and Dad created a trust whereby their children were the beneficiaries. Mom then died and Dad remarried. Now, Dad was married to Stepmother and amended the trust to include, 1) Stepmother's use of a lake house, and 2) Stepmother's receipt of a monthly payment of $2,000 provided certain conditions were met. Dad then died. Son became trustee, while Stepmother was the beneficiary.
Son and Stepmother, however, didn't see eye to eye on what "primary" use of the lake house and the conditions attached to the $2,000 per month meant. Stepmother argued she got the lake house "exclusively" and that she got the money regardless of whether or not the trust had limiting language in it. (The monthly payment issue turned on whether the language precluded payment since Stepmother was Medicare eligible.)
The appellate court focused on the express language Dad chose coupled with the ordinary understanding of the words. The court sided with Son and held that "primary" didn't mean "exclusive", thus Dad's kids could use the lake house when Stepmother wasn’t. And, the court found that the language, "The payments called for under this subparagraph…shall continue until such time as [Stepmother] dies, remarries, or is qualified to receive Medicare Benefits" plainly meant that the monthly payments were no longer owed to Stepmother since she was Medicare eligible.
Clear language is crucial in estate planning, contract drafting, and many other situations. In addition, when undertaking estate planning, it is important to understand the family dynamics so that certain future issues can be addressed with clarity.