■ The ‘Brides in The Bath’ Case: The Other Crimes of George Joseph Smith ■ Humor: No patent for PBJ!

www.tba.org

ARTICLES

14 RUNNING OUT OF TIME? BEWARE OF THE ONE-YEAR STATUTE OF LIMITATIONS FOR STATUTORY PENALTIES By Jonathan O. Steen

26 THE ‘BRIDES IN THE BATH’ CASE: THE OTHER CRIMES OF GEORGE JOSEPH SMITH By Donald F. Paine

NEWS & INFORMATION

6 Survey of state lawyer disciplinary systems reported by ABA 6 Tennessee Youth Court Program honored by national groups 7 Hume-Fogg continues winning streak in mock trial 7 Judicial discipline process now more transparent 12 Actions from the Board of Professional Responsibility

DEPARTMENTS

3 President’s Perspective: A golden hour By Charles Swanson

5 Letters / Jest Is for All: by Arnie Glick On the Cover The one-year 8 The Bulletin Board: News about TBA members statute of limitation 28 Day on Torts: A primer on the law of negligent infliction for actions for statutory of emotional distress penalties can sneak up By John A. Day on you — and it can be hard to recognize 31 Paine on Procedure: Sanctions for failure to supplement because its application discovery responses is not well defined By Donald F. Paine under Tennessee law. Find out how to know, 3 2 4 0 Ye a r s : Mock trial, public service, highlight Young Lawyers’ endeavors beginning on page 14. Cover design by 34 But Seriously, Folks! No patent for PBJ! Landry Butler. Photos By Bill Haltom by Rubberball Productions and 35 Classified Advertising iStockphoto.

PRESIDENT’S PERSPECTIVE

Tell someone ‘thank you’ Journal Staff Suzanne Craig Robertson, Editor [email protected] A golden hour Landry Butler, Publications & Advertising Coordinator [email protected] Barry Kolar, Assistant Executive Director [email protected] rom the time you are a small child on Christmas Eve night you are acquainted with Editorial Board F the concept that not all time is equal. The Andrée Sophia Blumstein, Nashville, Chair concept of time can be elastic qualitatively as well Miles Mason Sr., Memphis Donald F. Paine, Knoxville as quantitatively. You have experienced this Nathan D. Rowell, Knoxville phenomenon many times over. As a child, you Charles W. Swanson Jonathan O. Steen, Jackson know that the days before the Christmas holiday President are interminable while the Christmas holiday itself seems to fly by in the twinkling of an eye. When you get a little older, that The Tennessee Bar Journal is listed in the great vacation trip is over before you know it but the hours you spend awaiting Index to Legal Periodicals. The Tennessee Bar the results of an important medical test grind by at an agonizingly slow pace. J o u r n a l, ISSN 0497-2325, is published by the Tennessee Bar Association at 221 Fourth Av e . From a qualitative standpoint, the time you spend on a honeymoon can be N., Suite 400, Nashville, TN 37219-2198, considered golden, while the time you spend responding to discovery requests is (615) 383-7421, monthly. Periodicals Postage copper at best, maybe even aluminum! The hour you spend with an infant Paid, Nashville, Tenn. Subscription price: $60 sleeping on your chest is a treasure while the hour you spend changing the oil per year. Members: $22 per year. Individual and filters on the car is the booby prize. (A few, more mechanically minded issues: $10 per copy. Back issues sold on an “as available” basis. Statements or opinions among you, may feel otherwise ... a word expressed herein are those of the authors and do of advice, don’t admit it to anyone!) “The time I spent not necessarily reflect those of the Te n n e s s e e You will notice that there does Bar Association, its officers, board or staff. appear to be a consistent relationship sending messages to P O S T M A S T E R: Send address correction to between the quantitative and qualitative Tennessee Bar Journal, 221 Fourth Ave. N., Suite those important to 400, Nashville, TN 37219-2198. aspects of time. Those high quality, special times seem to go by much faster me was golden. I am © COPYRIGHT 2005 than the more routine, mundane hours. TENNESSEE BAR ASSOCIAT I O N Conversely, those times that are charac- confident the time terized by pain, grief or frustration seem A D V E RT I S I N G P O L I C Y: While the to stretch out much longer than, for they spent reading Tennessee Bar Journal attempts to confine its advertising to legitimate business endeavors, the example, hours spent in defending a those messages was statements and material appearing in the adver- deposition (unless, of course, this partic- tisements are solely the responsibility of the ular deposition causes you pain and frus- golden to them as a d v e r t i s e r. T h e J o u r n a l and the Tennessee Bar tration or brings grief to your client!). Association do not directly or impliedly endorse, well.” support or vouch for the authenticity of any The reason I point out these differ- representation made in any advertisement ences in how one may perceive the appearing herein. The J o u r n a l does not intend to passage of time (yes, bear with me here, I actually do have a reason) is to urge accept any advertising material that is false and you to take one of those precious hours out of your day and make it a golden misleading. The Journal reserves the right to hour, not only a golden hour for you but for someone else important to you as refuse an advertisement it deems inappropriate. well. Do this by sitting yourself down somewhere away from the telephones, fax CHANGE OF ADDRESS: If your address has machines, e-mail devices and other such disrupting influences and write a letter. changed, please notify the Tennessee Bar Asso- DO NOT type the letter, do not “word process” the letter, do not e-mail or ciation at 221 Fourth Ave. N., Suite 400, instant-message the letter — write it out longhand. Exert some effort to make it Nashville, TN 37219-2198, so your address will legible but don’t worry if you make a mistake and have to scratch something be updated for the Tennessee Bar Journal a n d other TBA publications. out; send it just that way. Trust me, the recipient will not mind. Who is the recipient of this letter? It is someone who has meant something to you in the practice of law. It may be an early mentor; it may be a current or Visit our Web site at www.tba.org former partner. It could be a former law professor. It may be a judge who taught Printed on recycled paper. (Continued on page 4)

TENNESSEE BAR JOURNAL, MAY 2005 3 PRESIDENT’S PERSPECTIVE (Continued from page 3) you lessons of value. It could even be a Because what it says is true and is some- members has been painful but, in my long-valued worthy adversary whom you thing that you should have taken the mind, the grief associated with each of have come to respect and admire over opportunity to say earlier will make it these losses has been diminished by the the years. I don’t know who this person valuable to you. Why not take time to fact that in the years before they is ... but you do. With the pressures of write it right now? You have a few spare became ill, I took time out to send each the profession, as well as the demands of minutes or you wouldn’t be reading this of them a letter telling them how much busy personal lives, we all have those they had meant to me and thanking persons out there who have been impor- them for giving me a platform upon tant to our development and mean- “Why not take time to which to build a life. I am comforted by ingful in our lives but who we have knowing that each of these persons failed to adequately recognize and write it right now?” heard directly from me how much I thank. This person is the recipient of appreciated them. I know the time I your letter. Will this letter be worth the spent sending the messages to those time you take away from other obliga- column! If not now, at least get out your important to me was golden. I am confi- tions to write it? I suggest that it will. calendar and reserve an hour to write dent the time they spent reading those Just think, when was the last time you this letter. It does not need to be long ... messages was golden to them as well. received a handwritten letter that was a page and a half of legal pad will Life is too short to go through it more than an obligatory thank you suffice. It need not be eloquent. Sincere without thanking and acknowledging note? If your experience is similar to words of gratitude contain their own those who have been significant in mine, it probably has been a while. The eloquence without need of further making it better for you. Take an hour mere fact that you take the time to embellishment. out of your busy schedule and make it a write and send the letter will be appreci- Within the last 18 months I have golden hour, both for yourself and for ated. That it conveys information the experienced the loss of my mother, my someone else who deserves to have that recipient is pleased to hear will make it father and a very beloved 102-year-old golden hour. It will be a marvelous gift an object of real value to that person. grandmother. The loss of those family for both of you.

4 TENNESSEE BAR JOURNAL, MAY 2005 LETTERS

I’m not dead, Paty writes B OARD OF GOVERNORS ■ C h a r l e s n the article, “It’s not just for white men anymore,” in the April 2005 edition Swanson, Knoxville,P r e s i d e n t ; B i l l of the Tennessee Bar Journal, you included “Cissy” Daughtrey and Selma Cash Haltom, Memphis, President-Elect; L a r r y I Paty as “trailblazers.” The quotation marks are yours. I appreciate the desig- Wi l k s , Springfield, Vice President;J o h n nation and being included in that fine group of lawyers. Ta r p l e y, Nashville, Immediate Past Presi- d e n t ; Paul Ney, Nashville, Tr e a s u r e r ; However, in your next sentence you state, “Nearly all of these women have Cecilia Barnes, Memphis, Secretary; S a m since died.” May I assure the members of the Tennessee Bar Association that E l l i o t t , Signal Mountain, Eas t Te n n e s s e e the Honorable Martha “Cissy” Daughtrey, Judge of the 6th Circuit Court of Governor; Sue Van Sant Palmer, Appeals, and I are very much alive and professionally active. Clarksville, Middle Tennessee Governor; E d I know Judge Daughtrey is living because I checked the 6th Circuit Web site S t a n t o n , Memphis, We st Te n n e s s e e to be sure she hadn’t died since my daughter and partner, Pam O’Dwyer, argued G o v e r n o r; Morris Hadden, K i n g s p o r t , a case before a panel of which she was a member a couple of months ago. Governor — 1st District; Jim Moore, I know I am still living because I checked the mirror this morning and still Knoxville, Governor — 2nd District; recognized my aging face. If I had died and gone to heaven, the face in the Marcia Eason, C h a t t a n o o g a , Governor — 3rd District; Susan Emery McGannon, mirror would surely have more closely resembled the picture you included in Murfreesboro, Governor — 4th District; the article. Barbara Moss, Nashville, Governor — 5th — Selma Cash Paty, Chattanooga D i s t r i c t; Claudia Jack, Columbia, G o v e r n o r — 6th District; Linda Warren Seely, Add one more to the roll Jackson, Governor — 7th District;N a n c y Brentwood lawyer P. Robert Philp Jr. wrote in to tell us his name was missing M i l l e r- H e r r o n , Dresden, Governor — 8th from the Pro Bono Honor Roll, which was published in the February 2005 issue. District; George T. (Buck) Lewis III, The Journal regrets the omission. If your name was omitted, let us know! Memphis, Governor — 9th District; E w i n g S e l l e r s , Murfreesboro, S p e a k e r, House of D e l e g a t e s; C i ndy R i cha r ds o n Wy r i c k , WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publica- Sevierville, President, TBA Young Lawyers tion on the basis of timeliness, taste, clarity and space. They should be typed and include the D i v i s i o n; Danny Van Horn, M e m p h i s , a u t h o r’s name, address and phone number (for verification purposes). Please send your comments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058; President-Elect, TBA Young Lawyers Divi- EMAIL: [email protected]. s i o n; John McLellan, Kingsport, P r e s i d e n t , Tennessee Judicial Conference;G r e e l e y Wells Kingsport, President, District Attor- neys General Conference; Tom Marshall, C l i n t o n , President, District Public Defender’s Conference; Gail Ashworth, N a s h v i l l e , General Counsel. STAFF ■ Allan F. Ramsaur, Executive Director; Barry Kolar, Assistant Executive Director; Sharon Ballinger, Receptionist; Landry Butler, Publications Coordinator; Kathleen Caillouette, CLE Administrator; Anjanette Eash, Youth Court Coordinator; Andrew Goforth, Intern; Sarah Hendrickson, CLE Assistant; Pam Johnson, Financial Administrator; Byron Morton, Information Systems Coordinator; Michelle K. O’Neill, Executive Assistant; Lynn Pointer, Programs Administrator and Sections & Committees Coordinator; Becky Rhodes, Access to Justice Coordinator; Megan Rizzo, Membership Coordinator; Suzanne Craig Robertson, Editor, Tennessee Bar Journal; Stacey Shrader, Media Relations and YLD Coordinator; Roger Spivey, Director of Continuing Legal Education; Katie Wilkinson, Customer Service & Receivables Coordinator.

TENNESSEE BAR JOURNAL, MAY 2005 5 NEWSINFORMATION Compare Tennessee’s numbers Survey of state lawyer disciplinary systems reported by ABA

total of 3,725 lawyers action on requests for rein- lawyers with active licenses, ally were brought during the were subject to public statement and readmission there were 1,507 year against 2,912 lawyers. A sanctions for profes- after discipline; and a range complaints received. In Tennessee, the total sional misconduct during of information about case- More than 62,000 lawyer discipline system 2003, according to the loads, case processing and complaints were summarily budget was $2,006,600. Survey on Lawyer Discipline resources of lawyer discipli- dismissed because they did Assessed Supreme Court fees Systems published by the nary agencies. not state facts that would accounted for 95 percent of American Bar Association funding, with the rest Standing Committee on “The average caseload per lawyer coming from interest earn- Professional Discipline. In ings and reimbursement. Tennessee, the survey within Tennessee’s The report showed 18 reports, there were 39 public total paid staff, with half of and 126 private sanctions. disciplinary agency was 120.” them lawyers. The average The survey is the most caseload per lawyer within recent annual compilation. The survey showed that constitute professional Tennessee’s disciplinary It reports statistics on 119,863 complaints were misconduct, or because the agency was 120. To compare, complaints filed against received in 2003 by disci- agency otherwise lacked Oklahoma reported 17 cases lawyers; dismissed plinary agencies, which also jurisdiction. In Tennessee per lawyer and the 3rd Judi- complaints; cases resulting in were addressing 32,422 that number was 336. cial Department in New formal charges; levels of complaints still pending Formal charges were York said each of their discipline imposed in cases from the previous year. In warranted in response to lawyers handled 543 cases. where charges were upheld; Tennessee, for the 16,488 79,150 complaints, and actu- Disciplinary authorities from a total of 56 jurisdic- tions, including 49 states, the District of Columbia and six divisions of the New York State discipli- Tennessee Youth Court Program nary system, responded to the survey. honored by national groups The ABA Standing Committee on Professional he Te nn e sse e Yo u t h Prevention recognized the Tennessee. Today there are Discipline is part of the Court Program was Tennessee program and its nine active and three ABA Center for Professional T honored during a c o o r d i n a t o r, A nja n e tte developing programs. Responsibility. national meeting of youth Eash, for work in Youth courts allow first- The survey is posted on court leaders recently in supporting and promoting time juvenile offenders to the ABA Web site at Washington. The National youth courts in the state. be sentenced by a jury of http://www.abanet.org/ Youth Court Center and When Te n n e s s e e ’s program their peers. cpr/discipline/sold/ the Office of Juvenile started in 2001, there were sold-home.html. Justice and Delinquency two youth courts in

6 TENNESSEE BAR JOURNAL, MAY 2005 NEWS INFORMATION

Statewide Mock Trial Competition Hume-Fogg continues winning streak in mock trial

ashville’s Hume-Fogg Academic High N School repeated its Judicial discipline 2004 performance as the process now more best high school mock trial transparent team in the state with a win over Memphis’ St. Mary’s Apparently Episcopal School in the following the lead of 26th annual Tennessee the Tennessee Supreme State High School Mock Court in amending Trial Competition. The lawyer discipline to team will represent allow complainant Tennessee at the National parties to disclose infor- Mock Trial Competition in mation about Charlotte, N.C., in May. complaints filed, the Family Christian Tennessee Court of the Academy from Judiciary has amended Chattanooga, its rules of practice and which reigned as procedure to provide: state and national “However, nothing champions in in the Rule shall 2002 and 2003, prohibit the took third place, complainant, while Bell respondent-judge, or Buckle’s Webb any witness from School took disclosing the existence fourth place. TOP: Hume-Fogg or substance of a Special recognition is team member Neal complaint, matter, due Danielle Barnes, chair Shechter, left, thanks investigation, or of this year’s competition; Judge Patsy Cottrell, proceeding under these Jordan Keller, vice chair; who presided over Rules or from disclosing and David Johnson, chair of the final round of the any documents or the YLD’s Mock Trial Long state mock trial correspondence filed by, Range Planning competition. TBA served on, or provided President Charles Committee. Scorers of the to that person.” Swanson, back right, final championship round greeted participants, The rule amend- were TBA President family members and teachers at the end of this year’s ment was effective Charles Swanson, YLD competition. ABOVE: Students wait to find out what Feb. 23. President Cindy Wyrick, two teams will make it to the final round. AT RIGHT: YLD President-Elect Danny David Johnson looks more relaxed between rounds Van Horn, YLD East this year — he was last year’s mock trial chair. Tennessee Governor Dan Coughlin and YLD West scorers and bailiffs, giving See a photo of the winning team on page 25 of this Tennessee Governor issue and a TBJ retrospective of past mock trials on Michelle Sellers. Many up their weekend to assist page 22. More photos and full results of the mock trial others served as judges, with the competition. can be found on TBALink at http://www.tba.org/mock- trial/2005_mocktrial_winners.html

TENNESSEE BAR JOURNAL, MAY 2005 7 NEWS ABOUT TBA MEMBERS

T h e Bulletin Board

Tennessee Bar Association members may send information about job changes, awards and w o r k - related news. Send it to The Bulletin Board, c/o The Journal at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, or email to sballinger@tnbar. o rg.Submissions a re subject to editing. Pictures are used on a space-available basis and cannot be re t u rned. Electronic photos must be saved as a tiff or jpeg (with no compre s s i o n ) , minimum resolution 200 dpi, and at least 1"x1.5" or they will not be used.

C om p il ed b y S ta ce y S hr ad e r a n d S ha ro n Ba l l i n g e r.

arlene Eskind Moses, founder of Law, joins the firm’s intellectual property and tech- of and partner in the Nashville nology service group. She previously served as law clerk M firm of Moses & Townsend in the University of Te n n e s s e e ’s general counsel office PLLC, has been elected to the and as a paralegal for the Sukin Rush Law Group in American College of Family Trial Nashville. Nicholas Barca joins the firm’s real estate and Lawyers (ACFTL) – a select group of the banking service group after serving as a summer associate top 100 family law trial lawyers in, the with the firm last year. He graduated from the University United States. Moses has 24 years experi- Moses of Tennessee College of Law as well with a concentration ence in the practice of matrimonial law in trial advocacy. Aminah Collick, who also earned her and previously served as chair of the TBA’s Family Law law degree from the Univer- Section. She received her law degree from the Nashville sity of Tennessee College of School of Law and currently serves as president of the L a w, joins the firm’s labor Tennessee Board of Law Examiners. and employment service ■ group. Sam Zeigler joins the James Tiller, a graduate of the Nashville School of f i r m ’s creditors rights and Law, recently joined the Nashville law firm of Joe bankruptcy service group Dughman and Associates. Tiller practices civil law in the after serving as a summer area of personal injury and workers’ compensation, with associate with the firm last Aaron Barca an emphasis on nursing home abuse and neglect. The first y e a r. He is a 2004 graduate member of his family to attend college, Tiller came to of Vanderbilt Law School. Nashville in 1990 to pursue a career in country music. He ■ was signed to a record label as a recording artist and song- The Memphis-based law writer. For several years he divided time between firm of Krivcher Magids performing and counseling underprivileged children. He PLC recently named Geof- decided to pursue a law degree based on his experience frey M. Hirsch as a member working with at-risk youth. of the firm. Hirsch joined ■ Krivcher Magids in 1998 as Collick Zeigler The Memphis firm of Thomason, Hendrix, Harvey, an associate and has focused Johnson & Mitchell PLLC announced that associate on representing clients in commercial transactions. He Craig C. Conley has been elected president of the Yo u n g earned his law degree from the University of Memphis Lawyers Division (YLD) of the Memphis Bar Association School of Law in 1998. (MBA) and that associate attorneys Effie V. Bean a n d ■ S ta c i e S . Wi n k l e r have been elected to the MBA YLD Eric W. Reecher was recently named a shareholder Board of Directors. Finally, the firm announced the addi- and principal in the Bristol law firm of Elliott Lawson & tion of two new associates: Clay Culpepper and Justin Joy, Minor PC. Reecher began practicing with the firm in and the return of associate Elizabeth S. Alrutz. 1998. His practice includes labor and employment law, ■ civil litigation and appeals, business consultation and Stites & Harbison recently announced the hiring of transactions, corporate law, construction law and credi- four new attorneys in its Nashville office. Tara Mooney tors’ rights law. A a r o n , a graduate of the University Tennessee College ■

8 TENNESSEE BAR JOURNAL, MAY 2005 NEWS ABOUT TBA MEMBERS

Courtney L. Wilbert recently joined The law firm of Miller & Martin has Colbert & Winstead PC of Nashville after announced that four of its attorneys have receiving her law degree from the University been given member status. Colette Koby of Tennessee. While in law school, she served serves in the labor & employment group in as a member of the law review and speaker’s the firm’s Nashville office. She graduated with series. Wilbert will focus her practice in civil honors from Tulane Law School in 1995. The litigation and employment law. other three attorneys work out of the firm’s Wilbert ■ office in Chattanooga. Tom Hayslett c o n c e n- Hayslett The U.S. Environmental Protection trates his practice in both real estate develop- Agency (EPA) has appointed Justin P. ment and leasing and the commercial sale of Wi l s o n, a partner in the Nashville law firm g o ods. He received his law of Waller Lansden Dortch & Davis PLLC, to degree from the University of a two-year term as a member of the Environ- Georgia in 1997. Tr a v i s mental Financial Advisory Board (EFAB). At M c D o n o u g h practices in the Waller Lansden, Wilson practices in the areas of corporate officer and Wilson areas of environmental law and government shareholder disputes, white- regulation. He received his law degree from collar criminal defense, McDonough Vanderbilt University in 1970 and his master personal injury claims and Nicely of laws in Taxation from New York University in 1974. securities arbitrations. He earned his law He is a former Tennessee commissioner of environment degree from Vanderbilt University in and conservation and deputy governor for policy. In 1997. Maury Nicely concentrates his practice in the areas addition to serving at his firm, he currently is an adjunct of labor law and employment litigation. He received his professor at the Vanderbilt University Law School. law degree from the University of Georgia in 1997. ■ ■ Hayden Lait has been elected presi- The Knoxville law firm of Kramer, Rayson, Leake, dent of the American College of Civil Rodgers & Morgan LLP recently announced the addition Trial Mediators — an organization dedi- of two new partners: Francis L. Lloyd Jr. and Amanda cated to improving ethical and profes- M. Belew. sional standards of mediation practice, ■ fostering the growth of alternative Cynthia J. Cutler, an attorney in the dispute resolution systems throughout Nashville office of Baker, Donelson, the country and conducting advanced Lait Bearman, Caldwell & Berkowitz PC, recently ADR educational programs. became a Tennessee Supreme Court Rule 31 ■ Listed General Civil Mediator. Cutler is an V. Michael Fox with the Nashville firm of Bruce, experienced employment litigator, having Weathers, Corley & Lyle PLLC has been awarded an AV represented both employers and employees in rating by Martindale-Hubbell. Fox is a 1987 graduate of numerous matters in Tennessee and Cutler the Nashville School of Law and focuses his practice on K e n t u c k y. the defense of alcohol-related vehicular crimes. ■ ■ The Chattanooga-based law firm of Shumacker Witt Gaither & Whitaker PC has named J. Matthew Martin and Scott Shaw as shareholders. Martin, who earned his law degree from the University of WILLIAM CAPELLE KEAT O N of Hohenwald died Georgia in 1998, joined the firm that same year. March 25 at the age of 91. He was a former mayor of He is a member of the firm’s business practice Hohenwald and practiced law for more than six decades. He group. Shaw earned his law degree from Georgia received his law degree from the Nashville School of Law, State University in 1997 and joined the firm in where he was later named an Outstanding Alumnus. Keaton 1998. Prior to relocating to Chattanooga, Shaw was admitted to the Tennessee bar in 1940. He practiced law practiced with Finn & Hurtt in Dalton, Ga. His into his late 80s, arguing a case before the Court of Appeals practice focuses primarily on business-based civil of Tennessee in 2000. He was a founding member of the litigation. He also is the newly elected president Five County Bar Association. He is survived by his wife of of the Chattanooga Bar Association’s Young 71 years, Lillian Keaton. Lawyers Division. (Continued on page 10)

TENNESSEE BAR JOURNAL, MAY 2005 9 NEWS ABOUT TBA MEMBERS

(Continued from page 9) The firm also has added ■ two new associates to its prac- The Nashville office of Bass, Berry & Sims tice. Michael D. Treacy recently announced that Julie N. Jones and brings more than 20 years’ C. Dewees Berry IV, both members of the experience to the area of firm, have been named Rule 31 general civil corporate and real estate law. mediators by the Tennessee Alternative He formerly served as vice Dispute Resolution Commission. Jones will Martin Shaw president and general counsel concentrate in general commercial law media- Jones for the New York City-based tions. She received her law degree from the RD Management Corpora- University of Tennessee, where she was editor- tion, the nation’s fifth largest in-chief of the Tennessee Law Review. Berry private shopping center will concentrate in real estate mediations owner. Thomas C. Green- while advising clients concerning zoning, holtz joins the firm having planning, lease disputes, boundary, easement, previously worked for three restrictive covenant and land use issues. He years as a law clerk to the received his J.D. from Vanderbilt University Berry Treacy Greenholtz Hon. William M. Barker of and serves as an instructor at the Nashville the Tennessee Supreme Court School of Law. and as an associate member of Summers & Wyatt PC. In ■ addition to his firm duties, Greenholtz serves as adjunct The Nashville office of Waller Lansden Dortch & Davis professor of political science at the University of PLLC has named seven new members. Jeffrey M. Clark, Tennessee at Chattanooga, teaching classes in constitu- who earned his law degree from the University of Memphis tional law and civil liberties. in 1994, practices in the area of commercial real estate and ■ general corporate law. Stephanie Jennings Edwards f o c u s e s Saul C. Belz, an attorney with Glan- her practice in the areas of estate planning, tax law, kler Brown PLLC, was recently listed as a probate litigation and business succession planning. She Rule 31 mediator. Belz concentrates his earned her law degree in 1992 from the University of practice in the areas of business litigation, Tennessee College of Law and a master of laws in taxation commercial disputes, complex litigation, in 1998 from the University of Florida. Karla Hyatt p r a c- appeals and employment law and has over tices tax law at the firm, previously serving as law clerk for 30 years of experience in the law. Belz Magistrate Judge William J. Haynes Jr., now U.S. District received his law degree from Vanderbilt Belz Judge for the Middle District of Te n n e s s e e . She received University in 1967. her law degree in 1996 from Tulane University and her ■ master of laws in taxation in 1998 from the University of The Knoxville law firm of Wimberly Lawson Seale F l o r i d a . Michael S. Mizell, a 1997 graduate of Samford Wright & Daves PLLC has named Patty K. Wheeler a s University School of Law, concentrates his practice in the a member of the firm. Wheeler received her areas of environmental, land use, utilities and immigration masters and doctorate degrees from the l a w. Richard L. Pensinger practices commercial real estate University of Oklahoma and law degree l a w. Prior to joining the firm, he was an associate with from the University of Southern California. Dinsmore & Shohl LLP in Nashville. He graduated from She joined the firm in April 1999 and Vanderbilt University Law School in 1997. M. Sean focuses her practice in employment law S u l l i v a n practices in the areas of qualified retirement alternative dispute resolution, premises plans, welfare benefit plans, executive compensation and l i a b i l i t y, education law, products liability ERISA litigation. He received his law degree in 1997 from Wheeler and commercial law. the University of Mississippi and his LL.M. in taxation ■ from New York University in 1998. Mark H. Wi l d a s i n,a B a k e r, Donelson, Bearman, Caldwell & Berkowitz is 1991 graduate of Vanderbilt University Law School, pleased to announce that U.S. Ambassador and former focuses his practice in intellectual property, financial serv- Senate Majority Leader Howard H. Baker Jr. is re-joining ices and antitrust litigation. Prior to joining the firm he the firm, where he will focus his practice on public policy was a judicial clerk to the Hon. Thomas A. and international matters. Baker recently returned to the Higgins, U.S. District judge for the Middle United States after serving as ambassador to Japan since District of Tennessee. June 2001.

10 TENNESSEE BAR JOURNAL, MAY 2005

NEWS INFORMATION

Actions from the Board of Professional Responsibility Reinstated Tennessee disbarred Brent- license was in a continuous opposing counsel of the he following attorneys wood attorney Thomas L. state of suspension. The suspension order and return have been reinstated to Whiteside on March 4 for board found that Ballentine to all clients any papers or T the practice of law after abandoning his law practice, had violated the Code of property to which they are complying with Rule 21 as failing to perform services, Professional Responsibility entitled. Price may request required by the Board of neglecting legal matters, and the Tennessee Rules of d i sso l uti o n o r mo d i f i c a t i o n Professional Responsibility. causing serious injury to his Professional Conduct by of the suspension for All were suspended on Sept. clients and deceiving clients engaging in the unauthorized g o o d c a use . 7, 2004. by taking funds under false practice of law for more than Allis Dale Gillmor a n d pretenses. A petition for a year. The board also found Censured Floyd Nolton Price, discipline was filed on June that failing to update her On Feb. 11, the Board of Nashville; Lisa B. Harris, 28, 2004. The Board of address with the board and Professional Responsibility Cookeville; William H. Professional Responsibility evading properly addressed censured Nashville attorney T h o m a s,Memphis. convened a hearing on Nov. certified mail and service of Clark L. Shaw for failing to Out of State: C h r i s t o p h e r 19 and issued its judgment process were aggravating promptly act on a client’s M. Caputo, Boston; on Dec. 15. A disbarred circumstances in the case. request for a restraining Alexander M. Clem, attorney may not apply for Any petition for reinstate- o r d e r, failing to promptly Orlando; Ann Ingram reinstatement for at least ment must show that the correct a problem with an D e n n e n,Huntsville; five years and then must Supreme Court has dissolved order that was contrary to Christopher Hampton show by clear and the two previous suspension the court’s original order and H a w k s, Jackson Hole; To n y a convincing evidence that his orders. Ballentine must also failing to provide a client O. Miner, Tulsa; Kerry Lee reinstatement will not be pay all costs associated with with a requested itemized bill P r i s o c k,Rockwell, Te x a s . detrimental to the integrity the disciplinary process. for services. The board found ■ and standing of the bar or ■ that Shaw’s neglect and On Feb. 18, the state the administration of justice, Nashville attorney F l o y d failure to communicate with Supreme Court reinstated and will not be detrimental Nolton Price was indefi- his client violated rules 1.3, the law license of Albert F. to the public interest. nitely suspended from the 1.4, 1.5(a)(b) and 8.4(d) of Officer III on condition practice of law by the the Tennessee Rules of that he (1) abide by the Suspended Supreme Court on March Professional Conduct. The provisions of a Tennessee On Feb. 23, the state 14. Price had failed to censure declares his actions Lawyers Assistance Program Supreme Court suspended respond to three complaints improper but does not limit contract for five years, (2) Memphis attorney Emilia of misconduct and failed to his right to practice law. ■ comply with a Board of Green Ballentine from the comply with a contract he Professional Responsibility practice of law for one year had entered into with the Christine Zellar Church, approved law practice moni- effective March 6. Ballen- Tennessee Lawyers Assis- a Clarksville attorney, was toring/mentoring agreement tine had been suspended tance Program. The order publicly censured on March for five years and (3) previously on two separate precludes Price from 7 for making unclear state- complete a course of study in occasions for failure to accepting new cases effec- ments and failing to clarify law practice management. respond to a complaint of tive immediately and facts regarding the employ- ment history of the The order also required misconduct and failure to requires that he discontinue Officer to pay the costs of comply with continuing representing current clients complainant. The BPR the reinstatement legal education require- within 30 days. He is to found that Church’s actions violated rule 8.4(c) of the proceeding. Officer had been ments. On Nov. 3, 2003, the cease using any indicia of suspended on June 5, 2001, Board of Professional l a w y e r, legal assistant or law Tennessee Rules of Profes- sional Conduct. for three and one half years Responsibility filed a peti- clerk and is not to maintain retroactive to April 7, 1999. tion for discipline alleging a presence where the prac- that Ballentine continued to tice of law is conducted. In Disciplinary actions are compiled by Stacy practice law at the Suskind addition, he must notify all Schrader from information obtained from D i s b a r r e d the Board of Professional Responsibility of The Supreme Court of Susser firm while her law clients, co-counsel and the Tennessee Supreme Court.

12 TENNESSEE BAR JOURNAL, MAY 2005 REEL JUSTICE TBA CONVENTION Tennessee Bar As s o c i a t i o n June15-18•KnoxvilleMarriott

Network with your peers at the Bench/Bar Luncheon. Enjoy special entertainment at the fabulous, newly renovated Tennessee Theatre. Learn about the law and cinema in a CLE program produced by Don Paine, Sarah

Sheppeard, Dorothy The 2005 TBA convention is Campbell and Lucian Pera. again a joint event with the Tennessee Judicial Conference, the Tennessee Trial Lawyers Register now online at Association and the Te n n e s s e e www.tba.org/conv2005 or call (800) 899-6993. Lawyers’ Association for Wo m e n . COVER STORY

Running out of time? Beware of the one-year statute of limitations for statutory penalties

By Jonathan O. Steen

14 TENNESSEE BAR JOURNAL, MAY 2005 ew things give lawyers more pause for concern than statutes of limitation. A potentially often overlooked statute of limitation is the one-year limitation for actions for statutory penalties, Tenn. Code Ann. §28-3-104(a)(4). This statute of limitation can be a trap for the unwary, because its application is not well defined under Tennessee law. FThe Tennessee Court of Appeals has stated that an appropriate way to describe civil liability created by statute is “statutory liability.”1 Statutory liability can mean a number of things. A statute can establish a standard of care in a negligence action (e.g., motor vehicle statutes). A statute can identify conduct that gives rise to civil liability, and even include specific remedies for the conduct (e.g., Tennessee Consumer Protection Act of 1977). A statute can prescribe remedies for a common law right already in existence (e.g., Tenn. Code Ann. §22-4-108 – provides a remedy for retaliatory discharge due to absence from employment for jury duty). A statute can also provide for a penalty for the violation of the statute that is recoverable in a civil action (e.g., forfeiture or penalty for violation of the usury statutes). While all of these types of statutes may create a basis for a civil action, the specific nature of the civil action determines the appropriate statute of limitation to apply. Many statutes creating a basis for a civil cause of action have their own statutes of limitation (e.g., Tennessee Products Liability Act of 1978). Many statutes that form a basis for a civil action, however, do not contain specific statutes of limitation. This creates a potential problem in cases where the civil action is one for a statutory penalty. In such cases, the one-year statute of limitation found in Tenn. Code Ann. §28-3-104(a)(4) for actions for statutory penalties applies, despite the appearance at first glance that a longer statute of limitation may apply, such as the three-year limi- tation for damages to personal or real property, a six-year statute of limitation for breach of contract, or even the ten-year statute of limitation for actions for which a specific statute of limitation has not been expressly provided. When is a suit under a particular statute an action for a statutory penalty? The critical inquiry in determining whether the Tenn. Code Ann. §28-3-104(a)(4) one-year limitation applies is ascertaining whether a suit under a particular statute is an action for a statutory penalty. The Tennessee Supreme Court, in Woodward v. Alston, 59 Tenn. 581 (1873), stated that a “statute penalty may be defined as a penalty fixed by statute as a punishment for the violation of some provision of law.” The Woodward court addressed the issue of whether the one-year time of limitation in Tenn. Code Ann. §28-3-104(a)(4)’s predecessor barred a statutory action to recover fees charged by court clerks for enrollments not made. The court squarely addressed the question of whether the statutory action brought under Tenn. Code 1851, sec. 3228 was a “statute penalty.” By way of example, the court referred to “the various clauses of our Code under the head of penalties,” and stated that “penalties are recov- ered by a proceeding in the nature of a civil action, and differ in this from criminal prosecutions.” After analyzing the language of Tenn. Code 1851, sec. 3228, the court concluded “that while the failure of the clerk to enroll the case was official delin- quency, subjecting him to punishment, this proceeding is not for the purpose of punishing him, but simply to recover the money in his hands which, by his failure to perform the service, belongs not to him, but to the county trustee for public purposes, — so this proceeding is not to recover a statute penalty.”

(Continued on page 16)

TENNESSEE BAR JOURNAL, MAY 2005 15 Statutory penalties (Continued from page 15) Statutes found to be basis for the penalty, courts cannot superadd it. penalty and the limitation for such action statutory penalties In B r o w n, the U.S. Circuit Court for is ten years under the predecessor to To give additional context to the the Western District of Tennessee applied Tenn. Code Ann. §28-23-110. meaning of “action for statutory penalty,” the predecessor to Tenn. Code Ann. §2 8 - The Tennessee Supreme Court, like examples of actions for statutory penalties 3 - 1 0 4 ( a ) ( 4 ) ’s one-year statute of limita - the U.S. Supreme Court, adopted the are found in McCreary v. First Nat. Bank, tion to a suit “to recover the sum of reasoning of the Sixth Circuit Court of 70 S.W. 821 (Tenn. 1902) and Brown v. $100.00 per day as a penalty provided by Appeals in determining whether an Cumberland Tel. & Tel. Co., 181 F. 246 the Tennessee statute for an alleged action was one for a penalty in Doty. Doty (C.C.W.D. Tenn. 1909). In McCreary, discrimination of the defendant in involved a suit under the provision of the plaintiff filed an action in chancery refusing to furnish the plaintiff a tele- Tenn. Code Ann. §35-508 (now Tenn. court to enforce the National Banking phone.” TheB r o w n court, finding the one Code Ann. §35-5-107) authorizing Act penalty for knowingly collecting year statute of limitation applicable, held damages for failure of an officer or other usurious interest. Section 5198 of the that the action, which by its express terms person to comply with Tenn. Code Ann. National Banking Act provided that sought to recover a penalty provided by §35-509 (now Tenn. Code Ann. §35-5- knowingly collecting usurious interest statute, was one for statutory penalties 107) in the sale of lands at foreclosure. In “will be deemed a forfeiture of the entire within the definition used by the holding that the action was not one to interest,” and allowed the person by Tennessee Supreme Court in Wo o d w a r d . recover a statutory penalty, rather one to whom the usurious interest was paid to recover damages, the Doty court relied on bring a civil action to recover “twice the Statutes found not to be basis for the Sixth Circuit’s opinion, quoting: am ou n t of in t er es t .” T h e Te n n e s s e e statutory penalties In City of Atlanta v. Chattanooga Supreme Court, in acknowledging that Examples of actions held not to be for Foundry & Pipe Wo r k s, 127 F. 23, 64 L.R.A., 721, Circuit Court of Appeals the federal statute under which the plain- statutory penalties include Chattanooga for the Sixth Circuit, in an opinion by tiff brought the action was a penal Foundry & Pipe Works v. Atlanta, 27 S. Judge Lurton, it was held that an statute, quoted the U.S. Supreme Court Ct. 65 (1906)3; Doty v. Federal Land Bank, 114 S.W. 2d 953 (Tenn. 1938); and action under section 7 of the Antitrust for the holding that L a w, 26 Stat., 210, 15 U.S.C.A., Smyrna v. Ridley, 730 S.W. 2d 318 (Tenn. The remedy given by the statute for section 15 note, providing that “any the usury is a penal suit. To that the 1987). In Chattanooga Foundry, the U.S. person who shall be injured in his busi- party aggrieved, or his legal represen- Supreme Court upheld the Sixth Circuit ness or property by any other person or tative, must resort. He can have Court’s refusal to apply Tenn. Code Ann. corporation by reason of anything redress in no other mode or form of §28-3-104(a)(4)’s predecessor one year forbidden or declared to be unlawful by procedure. The statute which gives the statute of limitation to a civil action this act, may sue therefor in any circuit right permits the redress. The suit brought under the federal antitrust law. court of the United States . . . and shall recover three fold the damages by him must be brought especially to recover The U.S. Supreme Court held that the sustained,” is not an action for a the penalty where the sole question is action for threefold damages, authorized penalty or forfeiture, within Rev. St., the guilt or innocence of the accused.2 by one “injured in his business or prop- erty” by the Antitrust Act of Congress, section 1047, 28 U.S.C.A., section 791, prescribing a limitation of five where one was led, by reason of an illegal The McCreary court further held that years for a “suit or prosecution for any laws prescribing penalties and forfeitures arrangement between the members of a penalty or forfeiture, pecuniary or (such as the National Banking Act) are trust or combination formed in violation otherwise, accruing under the laws of strictly construed, and, in the absence of of the Antitrust Act, to pay an excessive the United States,” but one for the any authority in the act for interest on price for iron water pipe, is not a statutory enforcement of a civil remedy given by statute for a private injury, compensatory in its purpose and effect; the recovery permitted in excess of actual damages being in the nature of exemplary damages, which does not change the nature of the Jonathan O. Steen is a civil trial lawyer practicing a c t i o n, and such action is governed as in Armstrong Allen PLLC’s Jackson, Tenn., office. to limitation by the statutes of the state His practice involves primarily litigation. Steen is a ( Tennessee) in which it is brought. past president of the TBA Young Lawyers Division The court held the action to be one to and serves on the TBA Fee Dispute Resolution enforce a statutory liability, and within Committee and is chair of the TBA Publications section 4473 of Shannon’s Cod e , Committee. He earned his bachelor’s degree, cum section 8601, Code of 1932, which laude, from St. Olaf College and his law degree Steen prescribes a limitation of ten years for from the University of Minnesota, cum laude. certain actions, and in “all other cases

16 TENNESSEE BAR JOURNAL, MAY 2005 not expressly provided for. ”4 liability with treble damage or penalty I d e a l l y, the legislature, in creating provisions, but do not contain or refer to civil liability by statute, should either More recently, the Tennessee Supreme any specific statutes of limitation: Tenn. create a specific statute of limitation Court held in S m y r n a that an action to Code Ann. §8-50-603 (employee is enti- within the statute or specifically refer to enforce the sanctions imposed by Te n n . tled to treble damages and attorneys fees an existing statute of limitation appli- Code Ann. §1 2 - 4 - 1 0 2 , 5 is controlled by if employer disciplined or threatened to cable to the statute. Even if the legisla- the ten-year statute of limitation in Te n n . discipline or otherwise interfered with ture were to provide such guidance in Code Ann. §28-3-110(3), and is “not one employee’s right to communicate with an future legislation, there are many statutes for a statutory penalty governed by the elected official); Tenn. Code Ann. §43- already in existence that create civil one-year statute, Tenn. Code Ann. §2 8 - 3 - 28-312 (action for knowingly and inten- liability without specifying a limitation of 104(a).” The S m y r n a case highlights the tionally cutting timber from the property time within which to bring the action, difficulty interpreting whether an action of another provides for treble damages); and do not provide clear guidance as to brought under a statute is one for a penalty Tenn. Code Ann. §46-2-411 (court must whether they create statutory liability or or is simply one for statutory liability. In award treble damages when a prevailing an action for a statutory penalty. In these considering the applicable statute of limi- party proves fraud relative to a sales cases, one should take care to determine tation for the action in S m y r n a ,the contract for cemetery merchandise and that the claim is not limited to the one Tennessee Supreme Court noted that the services); Tenn. Code Ann. §47-11-107 year statute of limitations in Tenn. Code Chancellor held that the six-year statute (action for violation of the Tennessee Ann. §28-3-104(a)(4) and inadvertently of limitation, Tenn. Code Ann. §2 8 - 3 - Retail Installment Sales Act provides for let a statute of limitation pass. 109(3), was applicable; the majority of the liquidated damages); Tenn. Code Ann. Court of Appeals held that the one-year §47-29-101(d) (court must award as Suggestions for determining statute of limitation, Tenn. Code Ann. damages treble the face amount of a whether Tenn. Code Ann. §28-3-104(a)(4), was the proper one; and check or draft when the person who §28-3-104(a)(4) applies Judge Koch was of the opinion that no executed and delivered the check There are several ways to analyze a statute of limitation applied. possessed fraudulent intent in not paying statute creating civil liability in making the holder the full amount within 30 the determination of whether Tenn. Code Examples of statutes that days); Tenn. Code Ann. §62-37-105(e) (a Ann. §28-3-104(a)(4) applies. First, merit inquiry person who engages in the construction consider how the statute is designated by The potential problem of determining or home improvement business without a its own language (e.g., as creating civil when the one-year statute of limitation license may be subject to treble damages). liability, or as prescribing a penalty that for statutory penalties applies is not as Some of these examples have had courts can be recovered in a civil action). Look uncommon as one might think. The address the issue of an appropriate statute not only to the caption of the statute but following examples of statutes create civil of limitation, but most have not. also to the language itself to see whether (Continued on page 20)

TENNESSEE BAR JOURNAL, MAY 2005 17

What’s new at Te n nB a rU ?

S O LO, SMALL FIRM FORUM PLACE TO BE DEADLINE SOON FOR THOSE STILL NEEDING Many solo and small firm lawyers find that their success depends on 2004 CLE HOURS their ability to link into a network of other solo and small firm lawyers Still need hours to meet your 2004 for support and referrals. The Solo CLE obligations? Better act before and Small Firm Forum is “the June 1, the next deadline set by the place to be” to form and maintain If you haven’t attended Tennessee Commission on these beneficial professional Continuing Legal Education and f r i e n d s h i p s . the Solo and Small Specialization. The 2005 edition of the Forum Attorneys who are not in compli- will be held on Friday, May 13, Firm Forum before, ance by June 1 will be assessed a at the Tennessee Bar Center in make this the year that $200 fee. downtown Nashville. Providing 6 If you have not yet completed your hours of CLE credit, the program you become a part of 2004 hours, you should have been will let you hear from experts in sent a notice of non-completion by varied areas of the law including the solo and small firm certified mail on March 31. retired Federal Judge Bruce Allen c o m m u n i t y. To help those of you who still need McArdle, who will speak on 2004 hours — and those of you changes in Social Security working on meeting your 2005 Disability law; firm management e d u c a t i on r e q u i r e m e n t s — Te n n B a r U guru Tea Hoffmann from Client Concepts detailing on how to best has a variety of offerings available, organize your practice; nationally known elder law attorney Tim both online and live. Takacs tackling the topic of probate, wills and estates; and the Board of Professional Responsibility Beverly Sharpe advising you of current issues in that area. For more information about the program or to register, visit the TBA w e b s i t e a t h tt p s : / / w w w. t b a . o r g / o n s i t e i n f o / s o l o s m a l l _ 2 0 0 5 . h t m l Te n n B a r U TELESEMINARS CLE AT SEA T h e Te n n B a r U Te l e S e m i n a r s e r i e s o f f e r s you the chance to hear leading national experts discuss timely topics from the convenience of your office or home. All TennBarU Teleseminars are broadcast via telephone at noon central time. Visit www.tba.org/tennbaru to find a full s c h e d u l e

There is still time to make your reservation for an exciting Alaskan Cruise CLE program coming this summer from TennBarU. You’ll join a group of your Tennessee legal colleagues as they sail from Seattle on July 23 to visit Ke t c h i k a n , FIND OUT MORE Juneau and other Alaskan ports. This eight-day voyage isn’t just a great vaca- www.tennbaru.com • www.tba.org tion, it will also include at least six hours of top-flight CLE programming. (615) 383-7421 • (800) 899-6993

A S E R V I C E O F T H E T E N N E S S E E B A R A S S O C I AT I O N TENNBARU: CLE FOR TENNESSEE Statutory penalties (Continued from page 17) the term penalty, forfeiture or any similar the Tennessee Supreme Court in D o t y f o r under consideration. Consider whether term is found in the language of the guidance in making this determination. the cases construed the statute to be a statute. If the language is written in terms Fourth, consider whether a new right penalty or have rather expressed the of a penalty, the more likely an action to and remedy are created by the statute, or remedies pursuant to the statute as recover the penalty would be considered whether a statutory remedy is created for compensatory damages. Check to see if an action for a statutory penalty. If an existing common law right. A statu- the statue has a counterpart in other language such as civil liability or terms jurisdictions, and whether courts in other such as damages are used, the more likely jurisdictions have interpreted the statute an action brought under the statute is one “Is the substance of the to be a penalty or otherwise. for statutory liability and not one for a Finally, look to the gravamen of the statutory penalty. The legislative history action. Is the substance of the action a of the statute in question may also action a tort, breach of tort, breach of contract, or other tradi- provide guidance or at least clues as to tional civil wrong, or is the action simply whether statutory liability or a statutory contract, or other traditional one to collect a penalty for an act or penalty was contemplated by the legisla- omission prohibited by the statute? ture in creating the statute. civil wrong, or is the action This evaluation is by no means exhaus- Second, consider whether the statute tive, but at least provides a basis for ascer- fits the definition of a statute penalty set simply one to collect a taining whether Tenn. Code Ann. forth by the Tennessee Supreme Court in §2 8 - 3 - 1 0 4 ( a ) ( 4 ) ’s one-year statute of limi- Wo o d w a r d . That is, does the statute penalty for an acto or tation applies to a claim based on a statute. appear to be penal in nature, “a penalty By making oneself aware of the potential fixed by statute as a punishment,” or does omission prohibited by the problems created by the one-year statute of it simply seem to provide a remedy of limitation prescribed in Tenn. Code Ann. damages for a violation of a statutory or statute?” §28-3-104(a)(4) and taking steps at the common law cause of action? Put another earliest possible time to determine the way, a statute penalty provides the basis applicable time limitation to a claim based for an action specifically to recover a tory remedy created for an existing on a statute, one can better avoid the penalty; statutory liability provides the common law right is far less likely to be pitfalls of a time-barred claim. basis for an action for a violation of the considered a statute penalty. Addition- statute or other common law right. ally, if the right of action existed at Notes Third, consider the damages or remedy common law, consider whether the 1. J. S. Haren Co. v. City of Cleveland, No. prescribed by the statute. Is it more akin action is one in which pre or post judg- E2002-01327-COA-R3-CV, 2003 Tenn. App. to a penalty, forfeiture or liquidated ment interest is typically allowed. Since LEXIS 406, (Tenn. Ct. App. May 30, 2003). damages, or is it more similar to compen- interest cannot be given for a statute 2. McCreary, 70 S.W. at 823 (citations omitted). satory damages? Look to the explanation penalty without specific authorization in 3. Superseded by statute as stated in Pinney of the difference between an action for a the statute itself, the action will likely not Dock & Transp. Corp. v. Penn Cent. Corp., penalty or forfeiture on one hand and one be one for a statute penalty if interest has 838 F. 2d 1445 (6th Cir. Ohio 1988) for the enforcement of a civil remedy been allowed under common law. (Congress enacted a four-year statute of limi- given by statute for a private injury on the Fifth, review the cases involved in tation in federal antitrust law). other in Chattanooga Foundry adopted by interpreting or applying the statute 4 . 114 S.W. 2d at 954-55 (emphasis added). 5. Tenn. Code Ann. §12-4-102 is captioned “Penalty for unlawful interest” and provides: Should any person, acting as such o f f i c e r, commit tee member, dir ector, or other person referred to in §12-4-101, be or become directly or unlawfully indirectly interested in any such contract, such person shall forfeit all pay and compensa- tion therefore. Such officer shall be dismissed from such office the officer then occupies, and be ineligible for the same or a similar position for ten (10) years.

20 TENNESSEE BAR JOURNAL, MAY 2005

A R T I C L E

Mock trial, public service, highlight Young Lawyers’ endeavors

We’re celebrating the Tennessee Bar profession they go into, the mock trial Journal’s first 40 years all year! In each experience will give them a greater issue we will look back at an area of life in respect and understanding for the law the law to see how the TBJ covered it. and lawyers.” This month we examine how the Journal Seventeen years later, Haltom is kept up with the Young Lawyers Divison. still singing the praises of this program and others, as he prepares to take over tudents participating in the as TBA president this June. Tennessee State High School Haltom was correct that these S Mock Trial Competition were students would have a leg up — just first pictured in the Journal in the ’80s having met so many judges and seeing — they’ve now had time to finish the process in action couldn’t hurt. In college, law school, a clerkship or two, 1989, mock trial chair Mary LeMense Supreme Court Justice William J. Harbison join a firm, make partner. told the students that they “would presides over the final round of the compte- The competition began in 1978 — have argued this case before justices tion in 1991. In a 1989 TBJ he is called “a major force in getting the competition run by the University of Tennessee’s from the Tennessee Supreme Court, started. He said he ‘could not think of a Public Law Institute — but coverage the Middle Section of the Court of better way for high school students to learn in the Journal didn’t get serious until Appeals, the Eastern about the judicial system.’” the competition had been taken over Section of the Court of by the TBA Young Lawyers. In 1988, Appeals and the Court of the state championships made the Criminal Appeals. Very Journal’s cover, followed by repeat few attorneys have had appearances in 1989, 1990 and 1993. the opportunity to argue (Was it only a coincidence that the cases in front of judges young lawyers got its first staff member like these.” around that time, the same person who also produced the Journal?) There has been a story about the young lawyers’ What do we win? flagship event every spring since then. Teams that win now In 1993, the Tennessee Young receive a large silver bowl Lawyers Conference (TYLC) changed to keep and a traveling its name to the current Young Lawyers trophy that they retain Division (YLD). until the next year’s Then-TYLC President Bill Haltom competition. But back in The Race Gestae, an annual 5k run and one-mile walk, is summed up the point of the mock trial the early days, impressive traditionally run at the TBA annual convention and spon- in the May/June 1988 issue: “The and expensive trophies sored by the YLD. This auspicious group of runners mock trial teaches young people about were not part of the includes incoming TBA President Bill Haltom, at left, Chief how our system of justice works. If the budget. In the Justice Frank Drowota, John Harber, two very fast runners with trophies who we can’t identify, and TBA Executive students do become lawyers, they March/April 1989 issue, Director Allan Ramsaur, who was TYLC president-elect at certainly would have a leg up. But any mock trial chair LeMense this 1984 Race Gestae.

22 TENNESSEE BAR JOURNAL, MAY 2005 May/June 1988 March/April 1989 November/December 1990 May/June 1993

director of the Nashville Bar Associa- showed the rest of the country a little tion), went up to his attic and found bit of Southern charm by having a “Fat this trophy that he had won in some Elvis” entertain at a reception. This sort of forensics competition in high was fitting since the case that year was school or college and gave it to us to about the fictional murder of Elvis. use for the mock trial. Now we call it Each year, a case is developed for the Rammy. ” the local and state contests by the Ramsaur, who was TYLC presi- mock trial chair. It seems no subject dent in 1985-86 and is now the has been too hot or too controversial to executive director of the Tennessee cover. Topics of cases have been Bar Association, clarifies the trophy’s alcohol and drug abuse, teen suicide, history: “I was ‘Member of the Year’ mental illness, the rights of AIDS Members of the Father Ryan High School in my high school fraternity.” victims, arson of a religious cult’s prop- mock trial team celebrate their big win in The Rammy served the group well, erty, hazing that resulted in involuntary 1990. but former YLD Director Betsy Hilt manslaughter, Battered Woman’s remembers that in the Syndrome as a defense, the beating early ’90s “someone in death of a 49-year-old man, and a the YLD had the science project that blew up in a gumption to ask student’s face. Westlaw for funding to purchase a traveling Drug abuse, parolees trophy,” which and other projects Westlaw did. Coverage has not all been about the mock trial, though. In 1972, Fat Elvis and Richard P. McCully outlined the new manslaughter drug abuse education program, an In 1997, the offshoot of a program done by the National High School Columbia Bar Association for Law Mock Trial Champi- Day 1971. “A team consisting of a onship was held in young lawyer and a medical doctor TYLC members figure the scores to determine which attend a pre-arranged school assembly teams will compete in the final round of the 1991 competi- Nashville. By this time, tion. From left are Knoxville attorneys Glenn R. Walter and the YLD had a coordi- and discuss the legal and medical Jerri Saunders Bryant and Kingsport attorney Marty nator, Betsy Hilt, who consequences of drug abuse,” he wrote. Browder. Seated is mock trial coordinator Jonathan Reed organized the national “The intent of the program is to of Knoxville. meeting along with objectively lay out all of the facts, explained: “When we began the compe- chair Wade Cowan, both legal and medical, to answer tition about 10 years ago, we didn’t Linda Willis, Reese Willis, Karyn questions, and to let the students have the money to buy a nice trophy Bryant, Jackie Dixon, Rebecca Wells- make their own evaluation with for the winners. So Allan Ramsaur, who Demaree, Todd Panther and Glenn respect to their feelings about drugs.” is in Nashville now (as executive Walter. The Tennessee Young Lawyers In 1974, James N. Bryan Jr. wrote (Continued on page 24)

TENNESSEE BAR JOURNAL, MAY 2005 23 Young lawyers’ endeavors (Continued from page 23)

Ethics Handbook, touting the group. Then- which compiled president Ronald Lee Formal Ethics Gilman said, “The TYLC Opinions, the contributes the greatest Code of Profes- amount of energy and effort sional Responsi- to the bar association, especially in the bility and area of public service, and the Yo u n g Tennessee’s Rules Lawyers Conference is certainly a of Disciplinary training ground for future leaders of the Enforcement, all Tennessee bar and the legal profession.” with extensive That certainly was true in the case indexes. of Gilman, who was TYLC president • Produced a in 1978-79. Today he is a judge on the Court Directory 6th Circuit U.S. Court of Appeals. listing the Circuit, Chancery If funding is ever an issue and if the and General mock trial competition is in danger of “The YLD is a training ground for future leaders of the Sessions Court extinction, those making the money Tennessee bar,” Ron Gilman said in 1990. These members of clerks and judges decisions need only to flip back to the the 1989 TYLC Executive Council have certainly proved that to of every county March/April 1989 J o u r n a l and read be true. From front left: Larry Wilks, who will be TBA president in 2006; Pam Reeves and Randy Noel, both who have since in the state. The student Robert Edwards’ take on the been TBA presidents. Back row, TBA Board member Rob Mont- Journal p u b l i s h e d experience: “At first I thought lawyers gomery, TBA General Counsel Gail Ashworth, Lucian Pera, TBA a shortened, pull- were just out for the money, but I delegate to the ABA House, former board member Sarah Shep- out reference in d o n ’t anymore.” peard and Harris Quinn, who later was chair of the TBA’s Commercial, Bankruptcy and Banking Law Section. the July/August It’s hard to buy that kind of PR, 1989 issue. folks. about the need for volunteers to help • Produced — Suzanne Craig Robertson with the National Volunteer Parole and distributed a divorce video, Aid Project, a local version of which aimed at helping children at third- was sponsored by the TYLC. “These grade level understand the process volunteer projects offer every citizen when needed; produced and the opportunity to extend the hand of distributed a DUI video to high friendship to an ex-offender and in so school students. doing drastically reduce his chances of • Produced a Local Rules committing another offense.” pamphlet, The Quarterly n e w s l e t t e r, Bridge-the-Gap s e m i n a r, and c arrie d out projects Training ground for involving hunger relief, a future leaders community handbook regarding The YLD, recognized as the bar’s AIDS and the law, and a seminar public service arm, has been involved for attorneys and physicians. in a lot of projects, many of which the Journal has publicized. In 1990, a “Being a part of the TYLC is feature story, “The Award-winning being a part of a dynamic and Tennessee Young Lawyers Confer- vital organization committed to ence,” by Julie R. Gamble (now TBJ service to both the public and the contributing writer Julie Swearingen) profession,” TYLC President covered all the projects that were Randy Noel said in that article. underway that year, many of them “This is an exciting time in the winners of national awards. That year TYLC’s history.” Howard Vogel waits with daughter Caroline in the TYLC 1993 for the announcement of what teams will Noel, who later served as TBA be in the final round of the state mock trial. • Produced the first Tennessee president, wasn’t the only person Vogel was later a TBA president.

24 TENNESSEE BAR JOURNAL, MAY 2005 EVEN T E E N S CAN HANG OUT AT THIS BAR

We take civics education seriously at the Tennessee Bar Association.

We know that a public educated in the history and workings of our legal system is vital to our c o u n t r y ’s future — and to the future of the legal system itself. For our country to carry on the traditions that have made it great — and our legal system a model for the world — we must have a public that understands its rights and responsibilities and how they are tied to this system.

T h a t ’s why the TBA supports a strong lineup of programs across the state to teach civics in our schools and offers resources through our TnCivics web site to help everyone learn these important lessons.

One of the TBA’s biggest education efforts is the annual Tennessee State High School Mock Trial Competition. Since its founding by the Young Lawyers Division in 1980, this program has grown so that today more than 100 teams compete in district matches with the goal of qualifying for the state competition. This year’s winning team (shown above) is from Nashville’s Hume-Fogg Academic High School.

Your support of the Tennessee Bar Association makes all of this possible. WE K N O W THE BAR Vi s i t th e Ten n e ss e e B a r A s so ci at i o n ’s T n C i v i cs w e b si te a t w w w. t b a . o r g / t n c i v i c s L e a rn m o r e ab o u t th e M o c k Tr i a l c o m p e ti ti o n a t w w w. t b a . o r g / m o c k t r i a l A R T I C L E

The ‘Brides in the Bath’ case The other crimes of George Joseph Smith

By Donald F. Paine

hile Brits were dying on Flanders fields, George Joseph Smith was on trial for his life at the Old W Bailey from June 22 through July 1, 1915. George and I share a common bond in our respective chequered criminal careers: we served time in reform school. He was released in 1888, I in 1957. Following reformation he adopted a more unusual lifestyle than even I. He was married eight times without divorce. But three of his “wives” died during honeymoons by drowning in bathtubs: • June 13, 1912, Bessie Mundy at Herne Bay (east of London on the Thames Estuary), • Dec. 12, 1913, Alice Burnham at Blackpool (north of Liverpool on the Irish Sea), and • Dec. 18, 1914, Margaret Lofty at Highgate (in London).

It is little wonder that this trial has been dubbed the “Brides in the Bath” case. Facts common to each death included these: 1. Smith knew brides briefly. 2. He arranged by wills or insurance policies to benefit from bridal death. 3. He took brides to doctors and described mysterious symptoms. 4. He brought groceries to the honeymoon hotels and 5. He rented bathtubs if the hotel was without.

Smith was put to trial for murdering Bessie Mundy. He did not lack for able counsel. Marshall Hall was the Bob Ritchie amongst barristers, the sort of lawyer you covet if you’re George Joseph Smith: guilty as sin. married and murdered three wives The crucial evidence issue at trial was whether the jury

26 TENNESSEE BAR JOURNAL, MAY 2005 should hear about the suspicious Burnham and Lofty drown- ings. The Alice Burnham Margaret Lofty judge ruled those admis- sible to prove two noncharacter issues: absence of mistake and common scheme or plan. These avenues for admissibility are available today under Tennessee and Federal Rules 404(b). How did he do it? Probably by walking into the bathroom while his trusting bride was bathing, grabbing her by the

“Do not try this at home!”

ankles, and lifting her until her submerged head could no longer draw breath. Do not try this at home! The jurors in the Smith trial tried it with a policewoman in swimsuit during deliberations (under what procedure is a mystery to me), and the officer almost drowned. After 22 minutes the jury convicted. The appeal was orally argued and decided on July 29. George Joseph Smith was strung up at 8 a.m. on Friday, Aug. 13, 1915. This is a sterling example of swift British justice.

Donald F. Paine is of counsel to the Knoxville firm of Pa i n e, Ta r w a t e r, B i ck e rs , an d Ti l lm a n L LP a nd a f re q ue n t c on t ri bu t o r Bessie Mundy to the Tennessee Bar Journal.

TENNESSEE BAR JOURNAL, MAY 2005 27 DAY ON TORTS

Three types: stand alone, parasitic and bystander A primer on the law of negligent infliction of emotional distress

By John A. Day

he tort of negligent infliction of negligence, compensable. The first case The court defined those terms as emotional distress suffers from to squarely address the issue was meaning an emotional injury such that T immaturity and split personality Camper v. Minor,3 a lawsuit brought by “a reasonable person, normally consti- disorder. It suffers from immaturity a man who was involved in a wreck tuted, would be unable to adequately because it is relatively new to Tennessee cope with the mental stress engendered jurisprudence. It suffers from split by the circumstances of the case.”5 The personality disorder because it is really court required that the claim be three different torts rolled into one. “In recent years, supported by expert medical or scien- Let’s try to solve these problems the Supreme Court tific proof.6 through linguistic therapy. Thus, the first type of case under the Historically a person who suffered a has recognized that “negligent infliction of emotional purely emotional injury as a result of emotional injuries distress” umbrella arises when the the negligence of another was denied a person brings only a claim for emotional recovery. The law did not want to can be real and, injuries. This is what the court came to permit recovery for “temporary” harms if produced by call a “stand alone” case. and there was a concern that the The reason we needed a “stand injuries could be faked. someone else’s alone” label was because of the claim There was also concern that there negligence, brought by Ron Amos. Amos proved would be a flood of litigation if recovery that Vanderbilt University failed to for purely emotional injuries was compensable.” warn his wife Julie of her potential permitted. The injustice of this position exposure to HIV so that she might take resulted in exceptions to the general appropriate measures to protect third rule. For example, a person could parties.7 Julie had gotten a blood trans- recover for emotional injuries if the where a teenager was killed. Mr. fusion and, unknown to her, contracted injury arose when the person was “in Camper had no real physical injuries, HIV. The illness came to light only the zone of danger” of physical harm1 or but alleged that the incident caused after the Amos’s daughter died of an if there was a “physical manifestation” post traumatic stress disorder. AIDS-related virus secondary to HIV of the emotional injury.2 The Supreme Court advanced the contracted in utero. Julie later died of In recent years, however, the law and recognized his right to seek AIDS. Ron was exposed to but never Tennessee Supreme Court has recog- damages. It held that Camper needed to contracted HIV. nized that emotional injuries can be prove not only negligence but also that Ron sued for the death of his wife, real and, if produced by someone else’s his injuries were “serious” or “severe.”4 wrongful birth, and his emotional distress. The Court ruled that Ron did not have to support his emotional distress claim with expert medical or John A. Day is a trial lawyer from Brentwood who dreams about torts. He scientific proof because his emotional just started a blog about Tennessee tort law; read it at www.dayontorts.com. injuries were “parasitic”, i.e. they arose as a “consequence of negligent conduct

28 TENNESSEE BAR JOURNAL, MAY 2005 that result[ed] in multiple types of can prove that emotional harm is fore- sought counseling or received medication, damages.”8 A verdict in Ron’s favor was seeable, usually by proof of some combi- particularly if the counseling or medication affirmed. nation of sensory observation of serious was received over an extended period. This There is one other type of “negligent harm to a third person with whom the definition will be further refined. infliction of emotional distress” claim: plaintiff has a relationship. 6. Id. This proof is not required in cases “bystander” recovery. This cause of Correctly classifying these cases alleging intentional infliction of emotional action, created in the case of Ramsey v. solves the problem of split personality distress unless the plaintiff intends to prove B e a v e r s , 9 which arose when the plain- disorder. The problem of immaturity in that the injury is permanent. Miller v. Will- tiff saw his mother get hit by a car. To this area of the law (and in life) can be banks, 8. S.W.3d 607 (Tenn. 1999). One win this type case the plaintiff must not solved, if at all, only with time and court has held that the use of a neuropsy- only prove that the defendant’s negli- experience. Will the court allow a chologist (without supporting testimony of a gence caused the death or injury to bystander claim when the plaintiff did medical doctor) meets the standard. Shaffer third person but also that the emotional not see but did hear the incident? What v. Shelby County, 2002 WL 54389 (Tenn. injury was foreseeable given considera- if the bystander plaintiff saw a horrible App. 2002). tion of at least these three factors: (1) incident resulting in horrible injuries to 7. 62 S.W.3d 133 (Tenn. 2001). sufficient proximity between the plain- an unknown person? Is the question of 8. Id. at 137. tiff and the injury producing-event to foreseeability in bystander cases for the 9. 931 S.W.2d 527 (Tenn. 1996). allow for sensory observation by the Court or the jury? Does testimony of a 10. Id. at 531. p l a i n t i f f 1 0 ; (2) the degree of injury to social worker, standing alone, meet the 11. Id. the third person, i.e., the injury must threshold of “scientific proof?” The 12. Id. In Thurmon v. Sellers, 62 S.W.3d be, or be reasonably perceived to be, answers to these questions await appro- 145, 162-64 (Tenn. App. 2001) the Court of serious or fatal1 1 ; and (3) the “close- priate cases. Appeals held that the relationship between ness” in the relationship between the the plaintiff and the third person need not 1 2 plaintiff and the third person. F i n a l l y, Notes be “close.” However, the Thurmon court was the injury to the plaintiff must be analyzing the case as a “bystander” case “serious” or “severe” as those terms were 1. See, e.g., Burroughs v. Jordan, 224 when it appears to the author that it was a defined in C a m p e r.1 3 Tenn. 418, 456 S.W.2d 652 (1970). classic “stand alone” case. In the stand alone Therefore, we have three types of 2. Memphis State Ry. Co. v. Bernstein, 137 case the “closeness” between the third negligent infliction of emotional Tenn. 637, 194 S.W. 902 (1917). person and the plaintiff may be relevant on distress case. First, we have “stand 3. 915 S.W.2d 437 (Tenn. 1996). the issue of damages but is not relevant to alone” cases, which must be supported 4. Id. at 446. make a prima facie case. For another case by expert medical or scientific proof. 5. Id. (citations omitted). This is an that demonstrates the risk of confusion Second, we have “parasitic” cases, in unfortunate definition. Over the long run, between “stand alone” and “bystander” cases which serious or severe emotional most people can “cope” with almost read McCracken v. City of Millington, 1999 injury is required but expert medical or anything. They may need therapy, they may WL 142391 (Tenn. App. 1999). scientific proof is not. Third, we have need medication, they may need both, but “bystander” cases, in which the plaintiff they can “cope.” Certainly the Court meant is not involved in the incident but who to permit recovery in cases where a person

TENNESSEE BAR JOURNAL, MAY 2005 29 3rd Edition Alimony Bench Book

The TBA Family Law Section is proud to announce the avail- ability of the 3rd Edition Alimony Bench Book, a Tennessee Bar Association publication brought to you by the Alimony Committee of the TBA Family Law Section.

The 3rd Edition Alimony Bench Book includes cases that are current through December 31, 2004, and is available free in downloadable format on TBA’s website at www.tba.org. A hard copy version of this publication may be purchased for $30 per book by contacting the Tennessee Bar Association at

1-800-899-6993, or in Nashville at 615-383-7421, or online at TBA’s online bookstore at www.tba.org.

The TBA would like to thank Alimony Committee Chair Amy Amundsen and the members of the Committee for their hard work and commitment to this publication. The Committee’s hope is that this book will assist judges in their attempts to a w a rd c on si st e nt a lim o ny in c a se s a c ro ss Te n n e s s e e .

Tennessee Bar Association PAINE ON PROCEDURE

Sanctions for failure to supplement discovery responses

By Donald F. Paine

ur duty to supplement responses permitted to use at trial information not offered a continuance, which the to discovery requests is set out in disclosed. Tennessee has no rule on defendant declined, apparently opting O Tennessee Rule of Civil Proce- sanctions for nondisclosure. But we do to interview the expert during the dure 26.05 and Federal Rule 26(e). have two important appellate opinions. lunch break. The Court ruled that trial The only significant difference The Supreme Court in Lyle v. judges have the inherent power to between the two versions appears to sanction discovery abuse. involve depositions. In Tennessee, as Elaborating on this power, Justice the 2001 comment emphasizes, deposi- Fones wrote: tion answers of all witnesses must be Excluding the testimony of an supplemented. The federal language expert witness may be an appro- encompasses only depositions of “We are required priate sanction for failure to name experts. In either court interrogatories the witness. However, other sanc- or production of documents requests tions may be appropriate where the are covered. to ‘seasonably’ failure to name an expert witness is What does supplementation entail? not knowing and deliberate. In With respect to identity of witnesses, determining the appropriate sanc- the names of new ones found or hired amend.” tion the trial judge should consider: must be furnished to adverse counsel. For responses such as interrogatory 1. The explanation given for the answers, a lawyer who discovers after failure to name the witness, the client’s response that the answer is 2. The importance of the testimony incorrect must say so. The same duty E x x o n , 746 S.W.2d 694 (1988), of the witness, applies where the answer was incom- reviewed a workers’ compensation 3. The need for time to prepare to plete in retrospect. award. Plaintiff’s vocational expert meet the testimony, and How far in advance of trial must was not named in the original answer 4. The possibility of a continuance. supplementation occur? The rules to an interrogatory asking for names of don’t give us a number of days. We are testifying experts. Not until four days The court affirmed the chancellor’s required to “seasonably” amend. That before trial did plaintiff’s counsel discretion to offer a continuance word is of precious little help, as it deliver an unsworn supplemental rather than to exclude the vocational means in legal contexts “timely.”1 response naming this expert as a expert’s testimony. What sanctions can be visited on witness. Defense counsel immediately Ammons v. Bonilla, 886 S.W.2d 239 our clients if we mess up? Federal Rule filed a motion in limine to exclude the (Tenn. Ct. App. 1994), is a scarier 37(c)(1) states that a party is not testimony. On trial day the chancellor precedent. A motorcycle rider was injured when a car turned left as the motorcycle attempted to pass it. Charges flew about which driver Donald F. Paine is a past president of the Tennessee Bar Association and is of violated rules of the road, which driver counsel to the Knoxville firm of Pa i n e,Ta r w a t e r, B i ck e rs , and Tillman LLP. H e lectures for the Tennessee Law Institute, BAR/BRI Bar Rev i ew, Tennessee Ju d i- was drunk, and the like. The jury faced cial Confe r e n c e,and University of Tennessee College of Law. He is reporter to with this swearing match needed some the Supreme Court Adv i s o ryCommission on Rules of Practice and Pro c e d u r e. (Continued on page 36)

TENNESSEE BAR JOURNAL, MAY 2005 31 Discover These Great TBA B EN E F I T S For You and Your Firm As a member of the Tennessee Bar Association, you have access to a wealth of member benefits, ranging from great rates on insur- ance to discounts on legal research and overnight package delivery. Here’s a sample of what you can expect with your membership. LIABILITY INSURANCE AND MORE The TBA sponsors a select number of insurance programs for you and your firm’s financial security. Auto insurance from GEICO is also available. LEGAL RESEARCH FROM LEXISNEXIS™ Flexible research and savings on services for lawyers from LexisNexis™. DISCOUNTS AT OFFICE DEPOT When TBA members sign up for this program, they will receive pricing as if they were a large volume purchaser. In addition, Office Depot is offering ordering by fax, phone, the internet or in person at an Office Depot location and free next-day delivery. Find Get the out more at h t t p : / / w w w.tba.org/tbinfo/main.html word out! T R AVEL SERVICES Reach more than Visit the TBA’s online travel center for one-stop travel shopping. 8,500 CONFERENCING MADE SIMPLE Tennessee Information Logistics helps make conference calls and web lawyers conferencing affordable for all TBA members. with a SERVICES TO HELP YOUR PRACTICE Tennessee TnBar Management Services Bar Journal provides members practical information on law office advertisement. management issues.

To find out more or sign up for a benefit, visit T B A L i n k at www.tba.org/tbinfo/main. Or contact Megan Rizzo, our membership coordinator, by phone at (800) 899-6993 or [email protected]

32 TENNESSEE BAR JOURNAL, MAY 2005 Last year, 722 Tennesseans who needed legal assitance got it through the Tennessee Justice Center. L e x i s N e x i s T M h e l p e d .

Every year, the Tennessee Justice Center serves hundreds of people in need to resolve problems with food stamps, Fa m i l i e s First, TennCare and other issues. In addition, the center also re pr es e nt s the 1 .3 million pe ople se r ved b y Te n n C a r e .

The TJC’s representation was strengthened through a generous donation from L e x i s N e x i s. Since the TJC was founded in 1996, LexisNexis has worked with the Tennessee Bar Association to provide thousands of hours of free legal research time to the TJC.

The Tennessee Bar Association and its members all across the state say thank you to LexisNexis for its work in supporting justice for all in Te n n e s s e e .

LexisNexis and the Knowledge Burst logo are trademarks of Reed Elsevier Properties Inc., used under license. It’s How You Know is a trademark of LexisNexis, a division of Reed Elsevier Inc. BUT SERIOUSLY, FOLKS!

PBJ — there ’s one made every minute

No patent for PBJ! By Bill Haltom

not an intellectual prop- The Smuckers Company invests a ‘Uncrustable’! Quick! Lock up the erty lawyer, and I don’t lot of time and money in PBJ research secret recipe for the Uncrustable in I’m play one on the Internet. and development, or as we say in the the Smuckers’ vault, the same place However, I am something of an expert business, PBJ R&D. Recently those where we keep the secret recipe for in the field of peanut butter and jelly crackerjack PBJ scientists at Smuckers boysenberry jam!” sandwiches. I have been eating them came up with a new invention, the Shortly thereafter, the Smuckers’ for more than 50 years and have been big wigs summoned their lawyers to making them for nearly that long, get a patent on the Uncrustable. This which makes me an expert in the field sent shockwaves throughout my of PBJ engineering. “PBJ” is the term “‘Nonsense!’ replied kitchen and the entire PBJ industry. we sandwich experts use for peanut It presented a sticky legal issue: Could butter and jelly sandwiches. the U.S. Patent and Trade- Smuckers get a patent on the PBJ? If I can’t remember the first time I so, could Smuckers’ lawyers then ate a PBJ. It was some time back in mark Office, contending secure court orders stopping you, me, the 1950s, and it was a case of love at that the recipe for the our children and millions of other first bite. PBJ was a staple in my chefs from making PBJs? mom’s kitchen during the Eisenhower Uncrustable is no secret. Smuckers’ lawyers claimed that the administration. Uncrustable is a one-of-a-kind I also can’t remember the first Everyone who’s ever made p r oduct, like Coca Cola Classic or time I actually made a PBJ. However, a PBJ knows the formula: Kentucky Fried Chicken that features I am confident that it was the first the late Colonel Sanders’ secret blend dish I ever put together. It was the peanut butter, jelly and of herbs and spices. “ N o n s e n s e ! ” entrée in a three-course dinner along replied the U.S. Patent and Tr a d e m a r k with a glass of Bosco (the appetizer) bread. And if you want it Office, contending that the recipe for and an Oreo cookie (dessert). without the crust, you just the Uncrustable is no secret. Everyone In recent years, I have continued w h o ’s ever made a PBJ knows the my part-time career as a PBJ chef by trim the sides! f o r m u l a : peanut butter, jelly and making thousands of PBJs for my b r e a d . And if you want it without the three children. During my 50 years of crust, you just trim the sides! PBJ construction and consumption, it The legal food fight between has never occurred to me that I could “Uncrustable,” a pocket-sized PBJ that Smuckers and the U.S. Patent Office get a patent for Haltom PBJs. But the has no crust. One can just imagine made it all the way to the United idea of a PBJ patent did occur to the that exciting moment in the States Court of Appeals for the smart bidnessmen and bidnesswomen Smuckers’ lab when their top inventor Federal Circuit in Washington, D.C. at Smuckers, one of America’s largest screamed, “Eureka! We’ve done it! There was a lot on the line in this manufacturers of jellies. The no-crust PBJ! We’ll call it the landmark case that was literally sticking to the roofs of millions of American mouths. Bill Haltom, sandwich connoisseur, is a partner with the Memphis firm of Well, there’s no reason for a peanut Thomason, Hendrix, Harvey, Johnson & Mitchell. He is president-elect of the Tennessee Bar Association and is a past president of the Memphis butter panic. Behold, fellow PBJ Bar Association. (Continued on page 36)

34 TENNESSEE BAR JOURNAL, MAY 2005 CLASSIFIED ADVERTISING

S E R V I C E S Attorney for the Immigration & dent Reconstructionist. Quoted by Naturalization Service (INS) of The Alabama State Supreme Court in over- CERTIFIED FORENSIC Frager Law Firm P.C. at 5100 Poplar turning a lower court ruling. Plaintiff or DOCUMENT EXAMINER Ave., Clark Tower Suite 2204, Memphis, defense. Robert T. Tolbert, P.E., (205) Te n n e s s e e ’s o n l y ABFDE certified TN 38137-2207; (901) 763-3188; toll- 221-3988, E-mail: [email protected] private document examiner. F o r m e r l y free (888) 889-VISA; 24-Hour Website: rtolbert.com with U.S. Postal Inspection Service Answering Service (901) 371-5333. Crime Laboratory. Certified by Also in Nashville at 1040 Murfreesboro POSITIONS AVAILABLE American Board of Forensic Document Pike, Suite 206; (615) 366-1000. The Examiners. American Society of emphasis of his practice is in immigra- ASSOCIATE POSITION Questioned Document Examiners. tion legal matters for clients in BRENTWOOD LAW FIRM Substantial civil, criminal and trial expe- Tennessee, Arkansas and Mississippi. Federal and State civil litigation special- rience. Thomas Vastrick (PMB #147), izing in insurance fraud, arson, and civil 6600 Stage Road, Suite 107, Bartlett, VEHICLE ACCIDENT ANALY S I S rights. 1-2 years, experience. Send résumés TN 38134; (901) 383-9282. Vehicle accident reconstruction is engi- to: P.O. Box 24969, Nashville, TN 37202- neering. I am a licensed professional 4969, or fax to (615) 221-1581. BUSINESS VALUATION/ mechanical engineer specializing in the FORENSIC ACCOUNTING/ analysis of vehicle accidents involving MULTI-OFFICE MIDDLE LITIGATION SUPPORT automobiles, motorcycles, trucks, trains, TENNESSEE LAW FIRM Business Valuation services for FLPs and pedestrians, cyclists, off-road and agricul- seeks attorney with 3-5 years of probate other tax and business purposes; Forensic tural equipment. Skilled in the use of and/or real estate experience. Send Accounting and Expert Testimony serv- computer-assisted reconstruction and 3- résumés to: Office Manager, P. O. box ices for fraud, divorce and other D Video Animation. Qualified in State 663, Gallatin, TN 37066. commercial cases; Litigation Support and Federal Courts throughout the State services for a variety of cases involving of Tennessee. F.E. Grim, P.E., 6125 DOWNTOWN MEMPHIS LAW FIRM unusual and complex financial and Brown’s Mill Road, Lascassas, TN seeks associate attorneys with 3 to 5 accounting issues. D. Michael Costello, 37085, (615) 890-7426, years' defense litigation experience. CPA•ABV, Decosimo, Tallan http://mechanical-engineer.com Competitive salary and benefits. Send Building, Suite 1100 - Two Union resume to: Office Administrator, P. O . Square, Chattanooga, TN 37402; FORENSIC Box 3582, Memphis, TN 38103. (423) 756-7100. HANDWRITING EXPERT [email protected] www.HandwritingForensics.com INHOUSE COUNSEL WANTED Qualified in all Courts. FOR PRIVATE COMPANY TRAFFIC ACCIDENT Handwriting Identification, West Knoxville company seeks TN RECONSTRUCTION & Forgery, Anonymous Letters, Graffiti. licensed attorney with 5-8 years, experi- HIGHWAY EVALUATION Diplomate / ABFE, NC Dept. of Justice, ence in Business/Corporate Tr a n s a c t i o n a l Former State Traffic Engineer. Licensed as U.S. Secret Service QDC I & II. L a w. Excellent work environment and Professional Engineer in Tennessee, with Theresa F. Dean, Handwriting Expert, benefits provided. Candidates may national accreditation in traffic accident Hendersonville, NC (828) 891-4263 submit their résumés in confidence, reconstruction. Certified in crash data PO Box 414, Horseshoe, NC 28742 along with salary requirements, to: retrieval. Traffic accidents, highway design Located in Hendersonville, North Carolina Attention: Human Resources, 11130 and traffic control, including construction [email protected] Kingston Pike, PMB 1-183, Knoxville, work zones. Computer-assisted reconstruc- TN 37922. Salary DOE. tion analysis and drawings. R i c h a r d PROFESSIONAL ENGINEER, Fitzgerald, PE, 4545 Winfield Drive, EXPERT WITNESS, ACCIDENT WE NEED ATTORNEYS Nashville, TN 37211; (615) 331-1212. RECONSTRUCTIONIST – I M M E D I AT E LY ! r f i t z g e r a l d p e @ b e l l s o u t h . n e t Professional Engineer (B.S.M.E. & Yes, there is a way to make money in law with less stress. Work with us Part or Full IMMIGRATION PROBLEMS? M.S.C.E.) with 28 years of industrial experience. Certified Automobile Acci- Call Barry L. Frager, former Trial (Continued on page 36) RATES The classified adve rtising rate is $78 for up to 50 words and $1.50 per word thereafter. Payment for classified adve rtisements mu s t a c c o m p a ny adve rtising message. As a service to our members, there is no charge for adve rtisements up to 50 wo r d s for full-time job openings. For info rmation about classified or display adve rtising, write to Adve rtising Coordinator, Tennessee Bar Association, 221 Fo u rth Ave nue North, Suite 400, Nashville, TN 37219- See classifieds online at http://www.tba.org 2 1 9 8 ; (800) 899-6993 (in Nashville, 383-7421);fax (615) 297-8058;email lbu t l e r @ t n b a r. o r g .

TENNESSEE BAR JOURNAL, MAY 2005 35 BUT SERIOUSLY, FOLKS! CLASSIFIEDS

(Continued from page 34) (Continued from page 35) lovers, I bring you good tidings of great authority that Justice Scalia eats PBJs time. We need attorneys in your area joy! On April 8, the federal appeals every day for lunch. His clerks make for an established firm. It may be court ruled that Smuckers has no legal them for him and deliver them right possible to maintain your practice right to a patent for a PBJ, even one into his chambers. Consequently, while working with us. Requirements: without a crust. Unless Tom DeLay Smuckers will be about as welcome in Active Bar License, car, cell phone, impeaches the judges for reaching the the United States Supreme Court as Al computer with Internet connection wrong result, you and I are now safe to Gore, who, by the way, never got a and notary seal. Fax letter of interest go back in the kitchen and whip up a patent on the Internet. and résumé to: 813-354-5574. PBJ with or without the crust. And we So bon appetit, my fellow hungry PBJ- will not be violating any federal patent munching Americans! Now if you will law when we do it! excuse me, I’m going to return to my Smuckers’ lawyers will probably seek kitchen laboratory where I am hard at an appeal to the United States Supreme work on my latest invention. I’m going Court. However, I have it on good to call it … the Bologna Sandwich. Get the word Look for Bill Haltom’s new book, No Controlling Legal Authority, out! out this summer from TBA Press! with a TBA members can enjoy Bill Haltom’s weekly online columns at http://www.tba.org/TBA_BH/ Tennessee Bar Journal classified ad.

PAINE

(Continued from page 31)

experts to sort things out. The plaintiff offered three, on accident reconstruc- tion plus alcohol consumption plus mechanics. But there was a problem. Around a month after commencement of the action, defense counsel had served this interrogatory: “Identify each person that you expect to call as an expert witness at trial.” Plaintiff’s counsel had responded: “None at this time.” There was no supplementation. The circuit judge barred the experts from testifying, and the jury returned a defense verdict. So don’t learn the hard way. Supple- ment discovery responses, and do it “seasonably.”

1. Bryan A. Garner, A Dictionary of Modern Legal Usage (Oxford, Second Edition, 1995).

36 TENNESSEE BAR JOURNAL, MAY 2005 TELEPHONE COSTS TOO BIG?

Bring them back down to size Save money and get dedicated customer DISCOUNTS OF UP TO 25% — Even if service through the new B E L L S O U T H / T B A you already have BellSouth service, M e m b e r S a v i n g s Pa r t n e r s h i p . special programs can earn you addi- tional discounts. This program has been developed exclu- sively for TBA members — and is offered DEDICATED CUSTOMER SERVICE — no where else in the nation. Special customer service representatives Here’s what you’ll receive when you sign up: will be standing by 24/7 to answer your questions. SIGNING BONUS — Just like a free agent, you’ll get $50 for each phone line you switch to BELLSOUTH.

START SAVING TODAY! Fax this form to TBA Membership Coordinator Firm Name: Megan Rizzo at (615) 297-8058 Your Name: Or call the TBA/BELLSOUTH Authorized Repre- Firm’s main phone number: sentative at (800) 470-3387 Email: CCLD and American Communications are the TBA’s authorized BELLSOUTH representatives. B OT TOM LINE BENEFITS FROM THE TENNESSEE BAR ASSOCIAT I O N