Court of Appeals Reverses Multiple Summary Judgments and Allows Plaintiff to Move Forward in Mesothelioma Suit.
Plaintiff worked as a mechanic at the Tennessee Eastman chemical plant for nearly 30 years. While employed there, he was responsible for repairing and maintaining the equipment. Due to the corrosive nature of the chemicals at the plant, the equipment required daily repairs and maintenance. When he made repairs to the equipment in carrying out his job duties, and when worn components on the equipment were replaced, Plaintiff was exposed to asbestos. Following his diagnosis of Mesothelioma, Plaintiff filed suit against multiple Defendants including those who manufactured and supplied the equipment and replacement parts containing asbestos.
Another Alimony Correction Court of Appeals Win for Donald Capparella
When divorce ends a long-term marriage, a court usually has to make a decision about an award of alimony. In this case, the trial court properly found that the wife was entitled to alimony, but did not properly account for the wife’s own income-earning capacity.
In its alimony analysis, the trial court determined that amount of income the wife needed to sustain a similar lifestyle was $9,700 per month. The trial court also determined that the wife had the ability to earn $2,333.33 in income per month. The trial court, however, failed to factor the amount she could earn – the $2,333.33 – and merely awarded wife $9,700 in alimony per month.
The husband appealed, arguing that the alimony should be adjusted to reflect the amount of wife’s earning capability. The Court of Appeals agreed and found that the income the wife was able to provide for herself should be deducted from her need of $9,700 per month. Accordingly, the Court of Appeals reduced the trial court’s award of alimony to $7,366.67.
You can read the full opinion here.
How Taxable Income Can Impact A Spouse’s Ability To Pay Alimony
Alimony in futuro is more likely to be awarded after a lengthy marriage, when one spouse is more economically disadvantaged than the other, and it’s typically awarded for life or until the economically disadvantaged spouse gets remarried. Donald Capparella recently argued two separate cases addressing alimony in futuro at the Court of Appeals. In the case discussed here, a husband was wrongfully granted a reduction in his alimony obligation by the trial court, which was reversed on appeal. Attorney’s fees to the former wife were also granted, as well as a substantial arrearage for unpaid alimony. On appeal, the main factor reviewed was the economically advantaged spouse’s ability to pay.
Amazon Can Be Liable for Negligent Assumption of Duty to Warn for Website Sale of Dangerous Product
In 2015, online retailer Amazon, Inc. sold more than 250,000 hoverboards through its website. By November 2015, Amazon knew that these products presented a risk of explosion. Amazon stopped selling the hoverboards and emailed customers with an “Important Product Safety Notification” that mentioned news reports of safety issues and offered information on how to return the product, Amazon did not, however, inform customers of the risk of explosion or fire. Amazon intentionally sent a “non-alarmist” email so as to avoid “headline news.”
In 2016, over half a million “hoverboards” were recalled because of the tendency to combust. The damages caused by these “exploding” hoverboards resulted in lawsuits around the country. The nature of the online business and the importation of products meant that plaintiffs were often unsuccessful in locating the actual manufacturer of the products. So, they sued online retailer Amazon, seeking to hold it liable for selling such a dangerous product on its website.
The Fox family of Nashville was among those seeking to hold Amazon responsible selling the dangerous hoverboards. In 2016, the Fox family of Nashville lost their home to a fire when a hover board sold by Amazon, Inc. exploded. The children, who were trapped on the second floor of the home, had to jump from windows to escape. The Fox family sued Amazon for negligent failure to warn of the dangers of the hoverboard product.
Throughout the country, Amazon’s repeated response to these lawsuits was that it was merely a “marketplace” that connected sellers with customers directly. In this way, Amazon argued, it was unlike a “big box” store like Wal-Mart that actually sold the products to customers. This legal theory prevailed in many jurisdictions. And, in the Fox family’s suit, Amazon once again won at the trial court via “summary judgment,” with a legal ruling that Amazon was not responsible because it could not be considered a seller of the product under Tennessee law.
The Foxes appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit, which reversed the judgment of the trial court. The Court of Appeals held that Amazon assumed a duty to warn of the dangers posed by the hoverboards, and there remained material issues of fact as to whether Amazon was negligent in their failure to adequately warn of those dangers. It remanded the case for a jury trial on the theory of negligent failure to warn.
DPBC’s Donald Capparella was appellate counsel for the Fox family on appeal, along with co-appellate counsel, Steven Anderson.
Tennessee Supreme Court Tackles Liquor Tax, School Funding, & Judicial Canons of Construction in Five Related Opinions
Understanding Tennessee’s liquor laws is not for the faint of heart. Some counties are “bone dry.” Some are “dry” but sell beer. Some have “liquor by the drink,” but only if a local referendum has approved that type of sale. Wine in grocery stores is a saga unto itself. The collection and distribution of liquor taxes is no less confusing, as a fascinating set of opinions from the Tennessee Supreme Court shows.
In 2014, five different Tennessee counties (who did not sell liquor by the drink) filed suit against five cities that had received tax revenue from liquor by the drink sales but had not shared that revenue with the county school systems, as required by the statute that provided such revenues were to be distributed “in the same manner as the county property tax for schools is expended and distributed.” Tenn. Code. Ann. § 57-4-306(a)(2)(A) (2013). An additional complicating factor here is that each city had an independent school district that was not part of the county schools–something not mentioned in the statutory scheme.
The five different suits proceeded, with the trial courts involved reaching differing opinions, and each trial court providing a different legal reason for its decision. When the matters reached the Court of Appeals, four appeals were heard by one panel and held in favor of the cities. A different panel of judges ruled for the county. To resolve the conflict, the Tennessee Supreme Court consolidated the five cases for the purposes of oral argument. The resulting opinions provide a deep dive, addressing the inherent problems with deeming a statute ambiguous and embracing the infrequently-encountered concept of legislative adoption of a judicial interpretation.
The Court ultimately determined that the thirty-year status quo was not to be disturbed. Since the cities had their own school districts and the counties didn’t sell liquor by the drink, and the General Assembly had never bothered to amend the statute, the cities didn’t have to share liquor revenue with the counties–even if the language of the statute might suggest otherwise.
The Tennessee Courts website has put together a summary and collection of links to the opinions here.
Divided Tennessee Supreme Court Adopts “Good-Faith Exception” to the Exclusionary Rule
In Tennessee, the protections provided in the Article 1 Section 7 of the state constitution regarding search and seizure have long been held to be identical to the protections provided by the 4th Amendment to the United States Constitution. However, the Tennessee Rules of Evidence do not always track the Federal Rules of Evidence. In criminal cases, this can mean that, even though the constitutional protections are ostensibly the same at the state and federal level, evidence that would be admissible in one forum may not be admissible in another. A divided Tennessee Supreme Court recently took a step toward a unified interpretation of the evidence rules.
In criminal matters, the “exclusionary rule” applies to block the admission of evidence that was obtained illegally, for example, evidence that is obtained by police without a warrant. There are several exceptions to the rule both at the state and federal level. Historically, however, Tennessee had failed to recognized the so-called “good-faith exception.” The good-faith exception, created by the United States’ Supreme Court in 1984, provides that if an officer reasonably believes that his search for evidence is lawful, then the evidence will not be excluded, even if the search was ultimately illegal. Tennessee had not previously ruled upon the matter.
In an opinion issued on March 12, 2019, the Tennessee Supreme Court adopted the Exclusionary Rule while at the same time excluding the evidence that was at issue in the case. You can read the majority opinion here. The effect of this outcome is to provide some guidance as to the proper application of the exception, although this is a matter that Justice Kirby takes issue with, as she filed an opinion dissenting from the majority’s interpretation of the good-faith in this case. Justice Lee also filed a separate opinion. Justice Lee agreed that the evidence should be excluded in this case but dissented from the adoption of the exception, characterizing the majority opinion not as one that adopts the good-faith exclusionary rule, but as an opinion that excuses the police from negligent record-keeping. You can read Justice Lee’s opinion here.
Tennessee Supreme Court Argument Marks Third Appellate Review in Ten Year Old Case
When litigation begins, lawyers try to prepare their clients for delays. Sometimes a civil trial is delayed because it takes longer to gather materials than expected, because a witness is unavailable, or because a judge’s docket is full. Sometimes, litigation is protracted not because of delays but because of appeals. This is why it is important to have an experienced appellate litigation team–one that understands the procedure and strategy necessary to handle a matter no matter how long it may take for justice to prevail.
While the appellate process in the U.S. attempts to streamline matters, sometimes a fair application of the rules means that the same case will be heard on appeal multiple times. DPBC attorney Donald Capparella, who heads the firm’s appellate practice team, is familiar with this scenario. In fact, one of his recent Tennessee Supreme Court arguments provides an example of how a litigant can “win” a case multiple times and yet still be embroiled in litigation.
As Tax Day Approaches, a Reminder about Withholdings
The 2017 federal tax reform legislation is just now beginning to show its impact for many filers. As April 15 approaches, many individual taxpayers may begin to see different totals than they have been used to on their tax returns. The change in the standard deduction has gotten lots of attention, but the new limits on deductibility are also having an effect on the bottom line.
Last year, the IRS reminded taxpayers to do a “Paycheck Checkup” to ensure that their withholdings were calculated in conjunction with the new tax law. If you skipped your checkup last year, you may be among the many finding unwelcome surprises at tax time. But, it’s not too late to correct course for 2019.
Review our previous write-up on the Paycheck Checkup and other useful resources.
Harmless Error Doctrine Extends to Rule 12.02(6) Motion
The Tennessee Court of Appeals recently released an opinion that provides a compelling insight into the sticky wicket of civil procedure. The facts of the case involve an otherwise pedestrian dispute between homeowners and their contracted buyer on one hand and an HOA on the other. The ruling, however, ultimately touches on the joinder doctrine and the relation back rule, the harmless error doctrine, the admissibility of evidence at the summary judgment stage, pleading rules, and consideration for contracts to forbear bringing suit.
Civil litigation practitioners should read the entire opinion, paying particular attention to the Court of Appeals’ description of how Tenn. R. Civ. P. 15.03 applies to obviate a statute of limitations defense. Additionally, readers should note the pronouncement by the court that the harmless error doctrine extends to Tenn. R. Civ. P. 12.02(6) motions to dismiss. This is evidently an issue of first impression in Tennessee law. The Court of Appeals decreed this new rule as follows:
Nevertheless, we agree that premature dismissal under Rule 12.02(6) is harmless error if, at the time of the trial court’s ruling, (1) there was a pending motion for summary judgment, (2) the non-moving party had a full and fair opportunity to respond, and (3) summary judgment is appropriate as a matter of law.
The upshot of this ruling is essentially that, if a trial court errs in granting a Rule 12 motion to dismiss, but a grant of a pending summary judgment motion would have been appropriate, then the dismissal will be upheld under Tennessee’s long-standing “right result/wrong reason” rule.
Given the many issues of civil procedure addressed in this opinion, it will be interesting to see if the parties choose to ask the Tennessee Supreme Court to grant permission to appeal.
Popular 3D/4D Ultrasounds Regulated Under New Tennessee Law
The last few years have seen a rapid increase in the availability of so-called “3D” or “4D” ultrasounds. These procedures provide keepsake imaging for expectant parents and are generally performed outside of traditional doctor’s offices–they can even be done in malls! The rising popularity of these fetal scans seems to continue, despite guidance from the American College of Obstetricians and Gynecologists and the FDA urging caution. One concern has been the lack of oversight with respect to the use of ultrasound equipment to monitor effects upon maternal and fetal tissue.
In Tennessee, the General Assembly has stepped in to provide regulation of the non-clinical ultrasound industry. The “Tennessee Ultrasound Sonographer Practice Act,” became effective January 1, 2019. It creates a licensing procedure with minimum training standards. The impact on these businesses remains to be seen, although there is a 12-month grace period to allow technicians to obtain licenses. One year from now, however, all 3D/4D ultrasounds in the state must be performed by licensed professionals.