Judge rules against law firm, funeral home's motion to dismiss in Woodmore suit

Judge rules against law firm, funeral home's motion to dismiss in Woodmore suit

January 22nd, 2018 by Zack Peterson in Local Regional News

Motorists pass a collection of teddy bears, mementos, and balloons placed at the site of a fatal school bus crash on Talley Road on Thursday, Nov. 24, 2016, in Chattanooga, Tenn. The makeshift memorial to victims of the Monday crash, which killed 6 Woodmore Elementary students and injured dozens more, has grown since the road was reopened Tuesday. (Staff Photo by Dan Henry/The Chattanooga Times Free Press-11/24/16)

Photo by Dan Henry /Times Free Press.

A local funeral home and Texas law firm say they never conspired to lock a Woodmore bus crash victim in a back room and then solicit her business, and they've been asking a Chattanooga judge to dismiss the civil fraud claims against them.

But Hamilton County Circuit Court Judge Kyle Hedrick disagreed with their arguments Friday, for now keeping alive a September 2017 lawsuit that LaTesha Jones filed against the Taylor Funeral Home and Witherspoon Law Group's employees.

Jones said she went to Taylor to arrange services a few days after the Nov. 21, 2016, crash on Talley Road that killed her daughter, Cor'Dayja, 9, and five other Woodmore Elementary School children. Jones didn't plan to retain legal services that day, but she signed a contract with Witherspoon after she was locked in a room with associate Alphonso McClendon and separated from some of her family members, the suit says.

Witherspoon and Taylor attorneys say Jones hasn't proven any intentional or knowing partnership, which is a crucial element for some of her conspiracy, false imprisonment, fraud and intentional infliction of emotional distress claims. Nor did Jones suffer any monetary loss from the alleged fraud, a piece of the puzzle her attorneys will also have to show, according to Witherspoon's filings.

"[Jones'] complaint makes clear that Taylor was 'praising' McClendon and the law firm and that the funeral home had done business with McClendon [and Witherspoon] for several years," attorney Alaric "Al" Henry wrote in a recent motion for Taylor.

"These are not false representations by Taylor. The most Taylor is accused of doing is mistakenly believing McClendon was an attorney," Henry wrote. "Taylor is hard pressed to see how such a mistaken belief somehow amounts to fraud by Taylor and caused [Jones] to incur some [monetary] loss."

In his eight-page order, Hedrick said state law called on him to accept Jones' allegations as true when considering a motion to dismiss. Still, he had to evaluate each individual claim.

Jones' attorneys agreed to drop the false imprisonment claim after Henry argued that she voluntarily entered the room and never called out for help, so Hedrick didn't have to touch that.

But what about the intentional infliction of emotional distress? Hedrick said basic law called on him to evaluate whether the alleged conduct, as Jones described it, was shocking enough to make a reasonable person exclaim that's "outrageous."

In this case, he said, it was.

Hedrick appeared to struggle, though, with Jones' fraud and attempt to commit fraud claims. As part of that claim, Jones has to show that any attempted or alleged fraud hurt her financially.

In her suit, Jones said McClendon showed up at her home the next day, saying the bus company involved in the crash had already offered $3 million to settle their claim, but that he thought he could talk them into $4 million.

But Hedrick said he could find no allegation that Jones had agreed to the settlement and was hurt financially when it didn't happen.

"I can find no allegation where the plaintiff ... contacted McClendon and the Witherspoon group to pay such expenses and was rebuffed," Hedrick wrote. "It appears from the complaint that McClendon and the Witherspoon Group were dismissed shortly after their retention."

Nonetheless, Hedrick agreed to keep the claim alive because Jones requested "past and future medical expenses for counseling," and he said those count as monetary damages.

Hedrick's order isn't a finding of guilt, and the case likely has a long way to go. From here, attorneys can start deposing witnesses to get sworn statements and issue written questions to one another to get a clear idea of the evidence involved.

Chris Bellamy, a Nashville attorney who is representing Witherspoon, said his clients could file a "motion for summary judgment" once that's done. That's when a judge reviews all the evidence in the record and makes a ruling for or against one of the parties without a full trial.

Bellamy's clients are also fighting a lawsuit in Hamilton County Chancery Court filed in April by the Tennessee Attorney General's Office. That suit alleges Witherspoon associates solicited a handful of crash victims in Chattanooga and Memphis and is asking for an order that would prohibit them from practicing in the state.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.

Woodmore Elementary school bus crash


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