Nick DeFilippis and Gina DeFilippis v. Elizabeth S. Beam and Richard Urban; In the Circuit Court of Williamson County, Tennessee at Franklin; Case No. 2014-345.
On September 25, 2018, McLemore Law PLLC obtained judgment as a matter of law for their client Richard Urban. This case arose from a motor vehicle accident that occurred on September 27, 2013 on South Royal Oaks in Franklin, Tennessee, between Nick DeFilippis and Elizabeth Beam. At the time of the accident, Ms. Beam was driving Richard Urban’s vehicle to her job at Burger King. Mr. Urban is Elizabeth Beam’s father and gave Elizabeth permission to drive his vehicle.
Nick and Gina DeFilippis filed suit on July 17, 2014. Unfortunately, Elizabeth Beam passed away on October 29, 2016 and an Administrator Ad Litem was appointed leaving Richard Urban as the only living defendant. Mr. Urban was sued for $1,500,000.00 over this accident. Plaintiffs alleged Mr. Urban was liable under Tennessee Code Annotated §55-10-311 for providing Elizabeth Beam the vehicle for their mutual benefit. On June 25, 2018, Richard Urban filed his Motion for Summary Judgment suggesting Plaintiffs’ evidence that Ms. Beam was operating Mr. Urban’s vehicle for their mutual benefit was insufficient because the plaintiffs could only show permissive use with no mutual benefit. Following Mr. Urban’s Motion, Plaintiffs filed a Response denying that they sued Mr. Urban pursuant to Tenn. Code Ann. § 55-10-311 thereby removing themselves from the statutory presumption of liability. Plaintiffs argued that they sued Mr. Urban under the common law Family Purpose Doctrine. Following this shift, Mr. Urban argued that the Family Purpose Doctrine has no application because there is no household and there is no parental support for a dependent child driver.
Under the Family Purpose Doctrine, in order to impose liability on the owner of a vehicle, plaintiffs must prove that (1) the head of the house maintained the vehicle for the purpose of providing pleasure or comfort for his or her family; (2) the driver was using the vehicle at the time of the injury in furtherance of that purpose; and (3) the head of the household must give express or implied permission to the driver. The Court held there was no dispute that Mr. Urban gave his daughter, Elizabeth Beam, permission to use his vehicle and that there was a factual dispute relating to whether Mr. Urban lending his vehicle provided pleasure or comfort. The issue before the Court was whether Mr. Urban was the head of household.
Following discovery, it was undisputed that Ms. Beam was thirty-one (31) years old when the accident occurred. Elizabeth did not live in the same physical household as her father, Richard Urban. Mr. Urban did not provide any financial support or have any financial interest in her employment with Burger King. Since Elizabeth Beam was on her way to her job at Burger King, she was not performing any errands or business for Mr. Urban at the time the accident occurred. The only connection Mr. Urban had to the accident was that his daughter was using his vehicle. As a result, the Court held on September 25, 2018 that the plaintiffs failed to satisfy their burden in producing evidence that Mr. Urban was the head of Ms. Beam’s household. Accordingly, Richard Urban’s Motion for Summary Judgment was granted. The suit is still pending versus the remaining nominal Administrator Ad Litem.
On June 29, 2018, Candes Prewitt filed an Application for Permission to Appeal to the Tennessee Supreme Court. On behalf of Kamal Brown, McLemore Law PLLC filed an answer to her Petition for Certiorari. Ms. Brown sought to have the Tennessee Supreme Court hear her appeal and overturn the Tennessee Court of Appeals. In short, the Tennessee Supreme Court denied Ms. Prewitt’s Application on September 13, 2018 following the Supreme Court’s consideration of her 85-page pleading. This finally marked the end of approximately 5 years of litigation. On March 19, 2019, the Court of Appeals of Tennessee at Nashville executed a Destruction Notification.
On May 7, 2018, McLemore Law PLLC obtained judgment as a matter of law for their client, Ms. Candis Lindsey. This case arose from an unfortunate traffic accident that occurred on March 4, 2015, on State Highway 109 in Wilson County, Tennessee. On that date, at roughly 3:30 p.m., Ms. Lindsey was traveling south on State Highway 109 on her way home from Volunteer State Community College, where she had taken classes earlier that day. Ms. Lindsey was traveling behind the co-defendant, Jeremy Baird under the posted speed limit of 55 miles per hour, between 40 to 45 miles per hour, when Mr. Baird’s vehicle allegedly encountered a standing water on the highway, causing his vehicle to slide into the northbound lane and strike Ms. Angela Gray’s vehicle in the rear quarter panel. The impact from Mr. Baird’s vehicle caused Ms. Gray’s vehicle to travel sideways at a high rate of speed into Ms. Lindsey’s lane of traffic. Ms. Lindsey immediately applied her brakes upon noticing Mr. Baird’s vehicle fishtailing before he crossed the center-line. Following contact between Mr. Baird and Ms. Gray, Ms. Lindsey was unable to avoid Ms. Gray’s vehicle traveling sideways, directly at her, in her own (Lindsey’s) lane of travel. Ms. Gray passed away in the collision. Ms. Lindsey was sued for $10,000,000.00 over this accident.
Following discovery, there was no genuine issue of material fact that Ms. Lindsey committed no negligence given how the accident occurred. Ms. Lindsey was traveling under the speed limit, already slowing, in her lane of travel, when the contact between Mr. Baird’s vehicle and Ms. Gray’s vehicle occurred. It was undisputed that Ms. Gray was in the southbound lane at the time of impact. Circuit Judge Barry Tidwell signed the Order dismissing Ms. Lindsey with prejudice. The suit is still pending against the remaining defendants.
Candes Prewitt v. Kamal Brown; In the Tennessee Court of Appeals; Appeal No. M2017-01420-COA-R3-CV appealed from the Circuit Court of Davidson County, Eighth Circuit; Case No. 13-C-2894.
On April 30, 2018, the Tennessee Court of Appeals affirmed the Davidson County jury verdict of $500.00 in favor of Candes Prewitt. Ms. Prewitt, a licensed attorney, representing herself, appealed the jury verdict to the Tennessee Court of Appeals, alleging nine counts of error on the part of the trial court. Following oral argument on February 6, 2018, the Court of Appeals affirmed Circuit Judge Kelvin Jones on all nine alleged grounds of error. On June 29, 2018, as expected, Ms. Prewitt filed her application seeking the review of the Tennessee Supreme Court, marking the 11th appeal from the original case filed back on June 1, 2013.
Patricia Lee King v. Derek Hunter; In the Circuit Court of Rutherford County, Docket No. 69758.
On December 8, 2017, McLemore Law obtained judgment as a matter of law in favor of their client, Derek Hunter. Patricia King sued Derek Hunter, alleging that through his negligence, she had received severe injuries from his dog Jolie. The dog bite occurred on Memorial Day 2014 during festivities at the home of Derek’s mother, Teresa Tillery Hill. Chancellor Howard Wilson issued the order following the motion hearing. The proof in the case was undisputed that the dog attack occurred at the residence of Derek Hunter, who was living with his mother at the time, and that the plaintiffs failed to provide evidence that Jolie possessed or exhibited any dangerous tendencies to place Mr. Hunter on notice. Ms. King had previously testified that Mr. Hunter would occasionally play rough with his dog; however, the Court found that standing alone, mere roughhousing is not sufficient evidence of a dangerous propensity. Following the grant of summary judgment, Mr. Hunter was dismissed with prejudice and the case was not appealed. Ms. Hill, having no ownership interest in the dog, nor any control over the dog, was earlier dismissed via nonsuit under Rule 41.01.
Allstate Insurance Company v. Kaigler & Associates, Inc.; In the Tennessee Court of Appeals; Appeal No. M2016-01003-COA-R3-CV appealed from the Chancery Court of Williamson County; Case No. 43913.
McLemore Law PLLC served as local counsel for Allstate in a large declaratory judgment action to determine coverage obligations arising out of a business insurance policy relative to a class action suit brought in Illinois against Kaigler and Associates, Inc. for sending thousands of unsolicited faxes in violation of the Telephone Consumer Protection Act ("TCPA"). On August 31, 2017, the Court of Appeals affirmed the underlying decision granting judgment as a matter of law in favor of Allstate. Summary judgment was granted by Chancellor Jim Martin in the Chancery Court for Williamson County, Tennessee. Kaigler and Associates, Inc. ("Kaigler") appealed. The appeal arose after the trial court granted Allstate's motion for summary judgment holding that the insurance company had no duty to indemnify under the "accidental event" coverage or the "personal injury" coverage and that the company had a duty to defend under the "advertising injury" coverage. The "advertising injury" coverage was not in dispute. Kaigler, however, sought coverage under the "accidental event" and "personal injury"coverage provisions of the commercial policy. On appeal, Kaigler contended that Williamson County Chancery Court issued an improper advisory opinion and erred in its holding that Allstate had no duty to indemnify under the "accidental event" coverage, and abused its discretion by failing to consider new evidence proffered in Kaigler's motion to alter or amend the judgment. The Court of Appeals affirmed the trial court's ruling in all respects.
The remaining personal injury claim of Candes Prewitt was tried in Davidson County Eighth Circuit Court before the Honorable Kelvin Jones on February 28, 2017 and March 1, 2017. Ms. Prewitt presented her case before the jury on February 28, 2017, and hired attorney Chris Crase to represent her at trial. Interestingly, Ms. Prewitt did not call any other witnesses but herself. Several efforts were made to introduce medical bills and records of her treating providers, but each was denied by the Court. A directed verdict motion excluding all medical bills of Ms. Prewitt was granted at the close of her case. On March 1, 2017, Mr. Brown began his case, calling two witnesses to testify on his behalf. Following that testimony, the jury was presented with closing arguments and the Court's jury instructions. Ms. Prewitt requested that the jury compensate her in an amount that fairly represented her extreme pain, suffering and mental distress from the June 1, 2013 automobile accident. Mr. Brown's closing argument emphasized inconsistencies in Ms. Prewitt's testimony and testimony that he considered to be self-serving and hyperbolic in nature. The jury returned a verdict for $500.00. Candes Prewitt filed Motion for New Trial, citing nine grounds in an effort to overturn the jury's verdict. This motion was heard on June 2, 2017. The trial court denied Ms. Prewitt's motion and she has appealed this decision to the Court of Appeals asserting nine grounds of error. The case is currently being briefed.
On January 30, 2017, the Tennessee Court of Appeals affirmed the judgment of Judge Kelvin D. Jones in the Eighth Circuit Court of Davidson County, upholding the dismissal of a bad faith claim and property damage claims asserted by Sandra Prewitt against Kamal Brown. Following a June 1, 2013 accident with Mr. Brown, which totaled her vehicle, Ms. Prewitt sought to have her entire car loan paid by the defendant and also sought loss of use damages for over three years following the accident. Mr. Brown's carrier paid the fair market value to Ms. Prewitt's lienholder, DriveTime. In its ten-page opinion, the Court reasoned that Sandra Prewitt provided no evidence to support her claim that her lienholder was not paid the fair market value of the vehicle. Citing her deposition testimony wherein Ms. Prewitt admitted she did not know the value of her vehicle, the Court found that she could not dispute that the value paid to DriveTime was not the fair market value. Further, the Court held that Ms. Prewitt could not collect the deficiency owed by her to DriveTime on her car loan. Additionally, the Court also held that Ms. Prewitt could not maintain a loss of use claim, and that even if she could, she must present actual evidence of damages. At the trial court, arguments were made by Ms. Prewitt that she should be entitled to a given per day rate (in excess of $50.00) for a rental vehicle from the time of the accident (June 1, 2013) through the present. Lastly, the Court upheld the dismissal of Ms. Prewitt's attempted direct action and bad faith claim against Mr. Brown's insurance carrier, finding no basis in Tennessee law for her arguments. After an unsuccessful Petition for Rehearing, Ms. Prewitt sought permission to appeal to the Tennessee Supreme Court. McLemore Law filed an answer and response against the Application for Permission. The Tennessee Supreme Court denied Ms. Prewitt's Application on May 18, 2017.
On December 2, 2016, McLemore Law prevailed on an appeal to the Sixth Circuit Court of Appeals. The case concerned a Mississippi uninsured motorist auto policy exclusion for the use of a non-owned vehicle which was furnished, available, or regularly used by the insured. James Goss, the insured, was injured in an accident on I-40 while driving a commercial vehicle owned by Bigbee Transportation. Mr. Goss sought to collect from his personal underinsured motorist carrier. U.S. District Judge Samuel Mays granted summary judgement for the carrier, holding that a non-owned vehicle, regularly furnished to the insured, not listed on the policy, fell squarely within an exclusion contained within the policy. Further, Judge Mays found that the exclusion was not ambiguous, and the the agent's alleged statements concerning coverage were inadmissable parol evidence. In accordance with Mississippi caselaw, the policy would not provide under-insured motorist coverage benefits to Mr. Goss. Mr. Goss then appealed the trial court's decision to the Sixth Circuit. Following submission of the briefs, the Sixth Circuit upheld Judge Samuel Mays' order and confirmed that the exclusionary language concerning non-owned vehicles regularly used, available, or furnished to the insured was not ambiguous and that policy exlusion was valid under Mississippi law. No Petition for Rehearing was filed by Mr. Goss and a Mandate has been issued.
McLemore Law, PLLC, won summary judgment in the Eighth Circuit Court of Davidson County, Tennessee at Nashville, styled Sandra Prewitt and Candes Prewitt v. Kamal Brown, Case No. 13-C-2894, and obtained dismissal of all claims of Plaintiff Sandra Prewitt. The Plaintiff sued to recover the value of her 2008 Mitsubishi Galant, which was deemed a total loss, as a result of an automobile collision and loss of use. Sandra Prewitt sought the loss of use of her vehicle at a daily rate in excess of $50.00 per day, for three years. She also contended the amount for the replacement of her 2008 Mitsubishi Galant was the total value of the loan, rather than the fair market value of her vehicle. Sandra Prewitt is represented by her daughter, Candes Prewitt. Sandra Prewitt has sought an appeal.
McLemore Law, PLLC obtained a defense verdict in a jury trial in the Circuit Court of Rutherford County, Tennessee at Murfreesboro. This was a case involving a two-car accident on February 2, 2011, wherein the Plaintiff asserted that the Defendant ran a red light as Plaintiff made his left turn from Sam Ridley onto Industrial Boulevard. Plaintiff asserts that he had the green left turn arrow before he began to make his left turn. Conversely, Defendant asserts that he waited for his light to turn green before proceeding straight through the intersection at Sam Ridley and Industrial, and the Plaintiff tried to beat the red light because he was running late for work. Plaintiff’s medical damages and lost wages were stipulated by the parties, and the sole issues for determination were the issue of fault, non-economic damages, and the valuation of Plaintiff’s vehicle. Both parties asserted that the other was negligent due to failure to observe the red light. Additionally, both parties asserted that even if he was the one to run the light, the other party was partially at fault for failure to ensure the intersection was clear. Counsel for the Plaintiff argued that the Defendant’s written statement, given immediately after the accident, stated that he “thought” that he had a green light and “took off” into the intersection. Plaintiff’s counsel further cross-examined the Defendant on his admissions that he made a “bad” statement and the admission that the Defendant attempted to change the statement later by consulting local law enforcement officers.
Both Plaintiff and Defendant testified. In addition, the Plaintiff’s former girlfriend, who was a passenger in the Plaintiff’s vehicle at the time of the accident, testified by deposition due to her absence at trial. According to her testimony, the Defendant bypassed stopped traffic at the light on Sam Ridley by swerving around them into the left turn lane (on the other side of the intersection) and proceeding into the intersection where the accident occurred. Jury deliberations lasted from the afternoon of February 24, 2016, through the afternoon of February 25, 2016. After deliberation, the jury returned a verdict that the Defendant was not negligent. Accordingly, the jury did not need to reach a decision on the issue of damages or comparative fault.
Final Judgment was entered on behalf of the Defendant and no appeal was filed.
In August 2015, McLemore Law, representing an insurance carrier, successfully prevailed in a declaratory judgment action for coverage issues arising out of a fatal accident involving allegations of road rage. The issues in this case concerned a policy exclusion of coverage for acts committed by an insured which are either intentional or criminal. Despite highly contested and complex factual issues in the underlying matter, McLemore Law was able to procure a stipulation of no coverage for the carrier. By procuring this stipulation, extensive litigation and the associated expense was avoided. The underlying action, a large tort case involving multiple parties, remains pending in another county and is currently on appeal to the Tennessee Supreme Court for issues related to the wrongful death statue of Tennessee.
McLemore Law successfully briefed and argued the relatively novel issue, under Tennessee law, of whether Rule 68 offers of judgment may be properly revoked within the ten-day period set forth in Tenn. R. Civ. P. 68. In a case where Plaintiffs alleged severe injuries after an automobile accident, Plaintiffs served a proper Rule 68 offer of judgment on the defendants . Prior to the expiration of ten days, Plaintiffs purported to serve notice of revocation of that offer. The defendants accepted the offer within the ten-day period.
Upon a Motion to Enforce Plaintiffs’ Offer of Judgment the trial court held that, consistent with Fed. R. Civ. P. 68 and attendant case law, Rule 68 expressly allows an adverse party a ten-day period to decide whether to accept the offer – and that the offering party may not revoke an offer of judgment within that ten-day period. The trial court also held that the terms of the offer itself provided the same period of time for clients to respond. Plaintiffs filed a notice of appeal.
This was an issue of first impression in Tennessee. McLemore Law orally argued the case before the Tennessee Court of Appeals on September 17, 2014. On October 31, 2014, the Tennessee Court of Appeals sided with our clients and affirmed the Giles County Circuit Court holding that a Rule 68 offer of judgment is generally irrevocable. On December 29, 2014, Mr. McGinnis, on behalf of the plaintiffs, requested permission from the Tennessee Supreme Court to appeal the Court of Appeals ruling. On February 12, 2015, the Tennessee Supreme Court declined to hear any further appeal and the Opinion of the Court of Appeals is final. Proceedings have now been remanded back to Giles County Circuit Court for closure and completion.
On the evening of March 11, 2010, a serious car accident occurred when the vehicle driven by Melissa Parks struck the disabled vehicle of Amber Bilbrey. Ms. Bilbrey ran out of gas and stopped her vehicle on the eastbound side of U.S. 70 in Cumberland County, Tennessee. Both parties alleged substantial bodily injuries from the collision. The parties fervently disputed fault and the extent the Bilbrey vehicle sat in the eastbound traveled portion of U.S. 70. Also in dispute was whether the flashers of Ms. Bilbrey’s vehicle were operating at the time of impact, the availability of alternative areas to pull off the road, and the distance which Ms. Parks should have ascertained the presence of Ms. Bilbrey’s disabled vehicle. Ms. Bilbrey sought compensatory and punitive damages of $5,000,000.00. Ms. Parks sought $1,000,000.00 in compensatory damages.
McLemore Law was one of two firms that defended Ms. Parks for the claims brought against her by Ms. Bilbrey. After a weeklong trial before the Honorable Amy T. Hollars, the jury found Ms. Bilbrey to be 50% at fault for her injuries, thereby barring her from any recovery against Ms. Parks. All motions for a new trial were denied and Ms. Bilbrey filed an appeal of the verdict. Ms. Bilbrey sought to overturn the admission of testimony by a state trooper who overheard a damaging admission contained in a voice recording of the plaintiff, Amber Bilbrey. Ms. Bilbrey also sought to exclude the deposition testimony read to the jury of her boyfriend, Kyle Culver.
After extensive briefing, McLemore Law participated in oral argument before the Tennessee Court of Appeals on June 18, 2014. On September 29, 2014, the Tennessee Court of Appeals affirmed the trial court rulings as to the state trooper and the admission of the deposition of Kyle Culver. Ms. Bilbrey did not seek permission to appeal to the Tennessee Supreme Court and the case is now final.
On September 2, 2013, an accident occurred between the plaintiffs and the defendants at the Genesis Road exit on I-40 East in Crossville, Tennessee. Following the accident, one of the defendants, the actual passenger, informed the officers that he was driving the vehicle to protect the driver, a friend, who did not have insurance, or a license at the time. Shortly thereafter, Plaintiffs filed suit for their alleged injuries contending that the defendants ran the red light at the intersection of the exit ramp and Genesis Road/State Highway 298. McLemore Law defended the passenger. The actual defendant driver disappeared and could not be located for many months, leaving the passenger to bear the brunt of the litigation. After numerous efforts were made to locate the actual driver in the accident, including the involvement of private investigators, McLemore Law finally located him living in a maintenance facility behind a local Crossville, Tennessee truck rental agency. His deposition was obtained and the actual events of that day emerged, resulting in a motion for summary judgment and ultimately a dismissal of McLemore Law's client. The case then resolved thereafter.
McLemore Law obtained summary judgment for a local medical professional. Client was out-of-state during the events alleged in the complaint and faced allegations of negligent entrustment and vicarious liability with respect to the use of her home and car. In client’s absence, Plaintiff and several others attended a party at client’s house where alcohol was present. At some point during the evening, one of the partygoers took client’s car from her driveway and later crashed it, causing injury to Plaintiff and others.
The court found that neither the party nor the use of her car were within the scope of permission given by client prior to her departure. Accordingly, the trial court held that client could not be held liable for Plaintiff’s injuries as a matter of law. The court ruled that the summary judgment award in favor of client was a final judgment. Plaintiffs did not appeal.
Following trial on the merits, McLemore Law obtained a favorable judgment in this worker’s compensation matter. The Honorable Chancellor Frank W. Brown presided. This action arose from an admitted work-related injury on the premises of the employer. The claimant never returned to work. The claimant contended that she was permanently and totally disabled based on her own limitations and upon records from her primary care physician. After the testimony of various witnesses, expert witnesses and the admission of respective medical records, wage records, and other relevant exhibits, Chancellor Brown issued a ruling which held the workers compensation claimant was entitled to only three times her impairment rating. Prior to trial, an Offer of Judgment had been rejected by the claimant for 4.9 times the impairment rating. No appeal was filed.


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As a graduate student from Highlands University in Las Vegas, New Mexico, and majoring in Media Arts and Computer Science, I often wonder why so few people know of kinetic painting. What is it? They often say, or what is kinetic? By now everyone has at least seen, even if they don't know it, a kinetic sculpture. Usually it is in front of an important building and is driven by a motor, or it is wind driven, or it gives the impression of movement due to the shape and or reflective properties of the materials used in the art form. This is the presently accepted form of Kinetic Art by the private business sectors, the government, and the general public. The Kinetic Art that this article is focused on is kinetic painting. Kinetic painting seems to be the neglected step-child of Kinetic Art. This article will explan the complicated progression of Kinetic Art by first changing the name to Kinetic Fine Art. Kinetic Fine Art doesn't replace the term Kinetic Art. It merely shifts the focus onto kinetic painting.
The three technological advances that directly relate to Kinetic Art are within the realms of machine, light and computer. These realms of technology also constitute the three categories in Kinetic Fine Art: Machine Aesthetic, Light Aesthetic, and Computer Aesthetic. These terms do not replace machine art, light art, or computer art, or even kinetic art, but are a necessary elevation of terms in order to give a concise explanation of Kinetic Fine Art, and to focus on the essential kinetic painting.
The first major category that evolved came from the Industrial Revolution and it is the machine. Keep in mind that the development of Kinetic Fine Art was not linear. I explain it in linear terms for the sake of order and simplicity. Let us also keep in mind that each category of development of Kinetic Fine Art had an incubation period before it actually became recognized as an art movement. Machine Aesthetic had its most recent incubation period with the constructivist. In the words of my former Design Foundation instructor, Ulrich Niemeyer who is an artist and considers himself a constructivist, "Constructionism is a post-cubist movement which deals in part with sculpture by way of the machine originated aesthetic. In other words, the sculptures are not carved or modeled. They are constructed from wood, metal, paper, glass, or modern industrial materials such as steel, aluminum, or plastic, and then assembled." It is through the experiments of the constructivist that Machine Aesthetic was born. With that in mind let us start with "the Germans during the Industrial Revolution" (Popper, Origins and Development of Kinetic Art 95) who "adopted the term 'kinetic arts' for the arts of gesture." In this atmosphere of arts of gesture and expanding mechanical technology within the German culture, the Bauhaus was formed. Mainly thought of as an Art Design Institution, Bauhaus had many fine art artists as well. One of these artists had a major impact on the United States, "Lazlo Moholy Nagy, an instructor at the Bauhaus, established an American branch years later, in Chicago (Popper, Art of the Electronic Age11)."
He was a constructivist and his work evolved into kinetic art. " Moholy Nagy , although his output in sculpture was small, is ranked very high among the constructivist" (Greenhill, Dictionary of Art 364). Naum Gabo also started as a constructivist. Then after becoming an instructor at the Bauhaus, he soon became a kinetic artist. But his early focus was with kinetic sculptures that had a virtual motion.
The use of motion and the machine aesthetics employed by the Bauhaus, used in reference to Kinetic Art, was clearly brought into the physical realm by the constructivist experimenting with motion.
But the constructivists were not only in Germany. They were in many European countries and in the United States as well. Pevsner, Marcel Duchamp, Thomas Wilfred, Alexander Calder and several others were also very active. "It was in 1920 that the word 'kinetic' was first used in connection with the plastic arts" (Popper, Origins and Development of Kinetic Art 95). There were many artists from many different places that were developing Machine Aesthetic.
Moholy Nagy's light machine, or Lichtrequisit, is a prime example of Light Aesthetic in the incubation period, which occurred in the same time period (1923-30) as Thomas Wilfred's Clavilux. Popper explains that this machine was a moving sculpture made of polished metal, which reflected light (Origins and Development of Kinetic Art125). Reflected light is one of the many different ways to express the Light Aesthetic. But it wasn't until 1956 that Light Aesthetic as a recognized movement in Kinetic Fine Art began overtaking Machine Aesthetic. At this point Kinetic Fine Art became well known.
The color organ began the incubation period for Light Aesthetic. Father Louis Betrand Castel, a Jesuit philosopher, is credited for inventing the first color organ in 1734 (Roukes107). "Father Castel was working towards a new art of light...Bainbridge Bishop developed a color organ in 1880 that projected lights onto a screen...Frederick Kastner developed a gas organ called the "Pyrophone" in 1869-73" (Popper, Origins and Development of Kinetic Art 156-157). The intricacies, in Kinetic Fine Art, are almost impossible to follow. The art form called light art is another source of confusion in Kinetic Fine Art. In order to be a Kinetic Fine Art the art form must have some type of motion. Early neon light art forms had no motion implied, virtual or actual. An art-form such as light art with no actual motion, or articulated motion by the artist is not Kinetic Fine Art.
The South American Gyula Kosice introduced the Light Art there. Popper points out that by 1910 George Claude invented the vapor-tube filled with neon gas... In the 1930's a few artists used neon tubes for decorative purposes (Art of the Electronic Age 17). "Credit for the earliest attempt to use neon light as a principal material of sculpture is usually given to Gyula Kosice, who produced his Luminous Structures in Buenos Aires in 1946" (Popper, Art of the Electronic Age 17). Gyula Kosice was a great experimenter with different art forms. He was also a kinetic artist. But, his Luminous Structures have no implied, virtual, or actual motion.
It was meant as pure design using light. So it is not Light Aesthetic. This illustration of light art is a contributing factor to some of the confusion surrounding kinetic art. This is one of the many reasons to elevate the term to Kinetic Fine Art, and to separate it from technological art. Not all technology art pertains to motion.
In 1955, the experiments of scientist and artist Frank Malina heralded a remarkable renewal in the art of moving light (Popper, Origins and Development of Kinetic Art 165).
The computer is the third major advance in technology within our modern times to influence Kinetic Fine Art. Computer art is often thought of as static digital images on a computer screen. For example, a digital image created in Photoshop is thought to be computer art. This is another reason to elevate the term to Computer Aesthetic when in reference to Kinetic Fine Art. The Computer Aesthetic as a movement in Kinetic Fine Art began in an attempt to control the light effects in Light Aesthetic. As Light Aesthetic continued to grow, it developed through many forms of Kinetic Fine Art: reflected light, laser light, holography, and interactive environments. It was a natural form of progression to employ mathematical programming to control the effect, which gave birth to cybernetic art. "The word is derived from the ancient Greek 'kybernetike' meaning, roughly, 'steersmanship'" (Malina, Kinetic Art: Theory and Practice176). It is a term used in reference to control. An early form of control over the effects of light was through electronics. Before the microchip there was electronics. This use of cybernetics is the actual beginning of Computer Aesthetic. Some examples of this period of transformation are Jean-Pierre Yvarol "Interference", Nicholas Schoffer " Cybernetic Light Tower ", Piotr Kowalski's " Field of Interaction , and Nam June Paik's Video Synthesizer . Nam June Paik' s Video Synthesizer may actually mark the start of the Computer Aesthetic.
In a nutshell, the theory of Kinetic Fine Art is a simplification of many overlapping events occurring with no special order. The use of evolving technology to explan Kinetic Fine Art gives order and simplification to a complicated series of events. Also, this theory of Kinetic Fine Art attempts to put the focus on the neglected portion of Kinetic Art. This is the kinetic painting, Thomas Wilfred the pioneer of kinetic painting, and Frank Malina the greatest kinetic painter of the Twentieth Century.
Kinetic painting is also a tool for visualizing the unknown world of magnetic light frequency interference. It is my theory that the magnetic light frequency interference creates the illusion of a moving moiré pattern, and that is the fabric of what we see all around us. A new science and math lay in wait through the moire.
Art as a whole has gone through a long period of self-destruction. This destruction was necessary for everyone to discover the artist in each and every one of us. It is now time to reconstruct, and discover the core secrets through magnetic light frequency interference, and the power of visualization through Kinetic Fine Art.

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Opinion Forum » Death Warrant for Fourth Amendment?
Death Warrant for Fourth Amendment?
Fortunately, the Fourth Amendment is not dead.
In Barnes v. State of Indiana, the Indiana Supreme Court held on May 12th “that there is no right to reasonably resist unlawful entry by police officers. (emphasis added)” However, the facts of the case as recited in the decision show that this holding went far beyond those facts to intrude, absurdly, into Fourth Amendment jurisprudence.
Officer Jason Henry arrived on the scene and observed that Barnes was ―very agitated and was yelling. Barnes ―continued to yell, loudly and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, ―if you lock me up for Disorderly Conduct, you’re going to be sitting right next to me in a jail cell. Mary came onto the parking lot, threw a black duffle bag in Barnes’s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed’s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, ―don’t do this and ―just let them in. Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.
Based on these facts, it is evident that an adequately instructed jury could quite reasonably have convicted Barnes on all counts.
Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error.
The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. . . . The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): ―If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest. The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) (one has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases).
We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one’s measured’ response may fast become excessive.). Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.
Here, the trial court‘s failure to give the proffered jury instruction was not error. Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment.
Appellate courts generally limit their legal analyses to the facts of the case before them, for good reason. Failure to do so not only results in otherwise unnecessary future litigation, it also changes the law for no valid reason. The creation of new law is the proper function of legislatures, not courts. Here, however, what the court did went well beyond what even the Indiana Legislature could properly have done.
the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, ―the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.
Under the court’s quite unnecessary holding that “there is no right to reasonably resist unlawful entry by police officers (emphasis added),” there would be no right to resist even a patently unlawful police intrusion into one’s home to force payment of a bribe, to steal one’s silverware or for other grossly illegal purposes. Nor would there even be a right to have a jury decide whether that’s what happened. Far fetched? Sure. Are there bad cops? Sure, again. This holding gives them great opportunities.
This case may not get to the Supreme Court of the United States; that requires time and money. It should get there because it purports to abrogate — in Indiana — prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply. They seem to enjoy higher fertility rates than do cases embodying good law.
This is a completely ridiculous ruling. Were the justices of Indiana Supreme Court on drugs when they made the ruling? This is an egregious violation of the spirit of the Constitution, in my opinion.
Hi, Clarissa. Good to hear from you again.
I hope they were on drugs when they made the ruling; I don’t recall having read a decision reaching quite so deeply into the stupidity vat in search of a rationale for a very long time.
Account executives are permitted to drink anything they may wish at lunch, except vodka. It is preferable for our clients to assume that you are drunk than to realize that you are stupid.
I agree that it’s a ridiculous ruling, but…. Maybe the problem here is the difference between common sense and constitutional law. When dealing with an armed police officer (or worse, a SWAT team) trying to enter your home in a manner that you think is illegal, you’d be a fool to resist beyond a certain point because you might well get killed. As a corpse, you’d not be in much of a position to savor the fact that you were right all along.
I’ve had a simple philosophy for many years: When dealing with someone who’s packin’ heat, keep your mouth shut and do whatever he or she wants. If the situation is so dangerous and extreme that you simply must resist, then go ahead, but don’t expect a good outcome. It’s far better to sort it out later, if it needs sorting.
Waco and Ruby Ridge were good examples of how much better off citizens would have been if they had cooperated with law enforcement and then defended their rights (as they understood them) in court and other less deadly forums.
Tom, I think it’s a ridiculous ruling because the court went far further than necessary or even appropriate under the facts of the case. Courts rarely go that far beyond the facts before them to render advisory opinions, there are good reasons for not doing so and ordinarily to the extent that they do it’s dictum, not binding in subsequent proceedings. Here, however, the court made it clear that what it said was not dictum, that it was the court’s holding and therefore binding on all lower courts within the state.
The conviction was and should have been a slam dunk. The jerk unreasonably resisted a lawful entry by the police and got what he deserved. Had a proper instruction been given to the jury, the result would almost certainly have been the same and that’s fine. The court could perhaps have ruled that the trial court had erred in refusing to give an instruction but that the error was harmless. The decision does not indicate what exactly the requested instruction may have been, but the trial judge could easily have instructed the jury as to what the law means by “unlawful entry” and left it up to the jury to decide whether the facts indicated a lawful or unlawful entry.
However, to go as far as the court did, by issuing a blanket ruling that “there is no right to reasonably resist unlawful entry by police officers.(emphasis added)” is worse than stupid and gives rogue cops an invitation to do as they please regardless of the law. A probably unrealistic parade of horrible examples can easily be imagined. Here’s one: John and Mary have been married for a year. Prior to their marriage, Mary had an abusive relationship with Paul, a police officer. One day, Paul follows Mary home from work. On being told by Mary that Paul is a bad man with whom she had had an abusive relationship, that he had followed her home and that she is very afraid of what he might do, John refuses entry to Paul. Paul shows his badge, demands entry and attempts to enter through the use of force.
John’s Alternatives: continue to bar Paul’s entry using such force as is reasonably necessary and be arrested, or let him in to have at Mary and perhaps “wrestle” her to the floor.
Mary’s Alternatives: resist Paul’s advances and be arrested or yield and perhaps be raped. Could John at that point lawfully try to make Paul stop? Under the court’s holding, I don’t know. He obviously should be able to do so. But then I think that in the circumstances he should also have been permitted to block Paul’s access to the house.
I’m not even sure why there should be a constitutional issue here. It’s well-established that an official (policeman, military officer, etc) who is not functioning under the cloak of official authority cannot legally exercise authority. In your example, Paul is no longer functioning as a police officer when he tries to enter that home for personal reasons, and John can resist him, presumably even to the point of deadly force in defense of himself or another. That has nothing to do with the Constitution, and I don’t know how the Indiana court could have thought otherwise.
The point remains, though — let the man with the gun do whatever he wants, to the extent possible, and sort it out later.
It gets a lot stickier when the police think they’re right, even though the homeowner may know they’re wrong, e.g., police kicking down the door pursuit to a warrant search, but they’ve got the wrong address. If the homeowner can’t talk them out of it, his best solution is to let them search, while he sits in the living room drafting his lawsuit against the city.
Tom, it became a constitutional issue simply because the Indiana Supreme Court made it one. As I have noted, and attempted to show, there was no need to enter that morass and the court should not have done so. Sometimes, “good cases make bad law;” here, a bad case made horrible law, applicable throughout the state until countermanded legislatively, by the Indiana Supreme Court itself, or by the U.S. Supreme Court.
Based on the attention the case is getting, little if any of it favorable, the state legislature just may tackle the matter; it should.
Here in my adopted home state, resistance to excessive force is codified. I don’t know about resistance to unlawful entry, but unlawful entry can be dealt with as criminal trespass.
The painful thing for me is that the constitution was drafted to prevent this very thing. Unfortunately, we’ve accepted the chipping away at our freedoms for some time, as the 5th amendment has been vitiated on at least two fronts, and the 9th and 10th amendments have been rendered all but moot.
Next thing you know, habeas corpus, ex post facto and bills of attainder will be out the window, too. Eminent domain has also been grossly abused, with the support of the courts, I might add.
I don’t understand all details of the court case but I do understand short-sighted arrogant verbiage of three Supreme Court Justices. Justices who believe, and want us to think: (1) Law enforcement represents some kind of supreme being who must never be questioned or resisted(Hitler? Stalin? Lenin?), (2) There are no bad law enforcement officers, (3) We are all wealthy and can finance lawsuits against law enforcement agencies, and (4) Criminals will never disguise themselves as law enforcement officers forcing entry into our homes.
Indiana, in many ways, seems to be swinging back-and-forth between extremes. Traditionally a conservative state, She veered sharp left and helped elect a socialist/leftist president. I suppose three Indiana Supreme Court Justices think we want them to disregard our Nation’s Constitution and traditions and pick and choose which of our RIGHTS they will recognize. They brush aside more than two hundred years of history and precedent and shoot from the hip. When did “public policy” trump constitutional rights?
The foundation of our nation is the Constitution. If we don’t demand adherence to the Constitution, and reject judges’ fleeting opinions and preferences, our country will turn into another European socialist society — or something worse — a police state. Can Indiana Supreme Court Justices be impeached? Is flagrant disregard of the Constitution of the United States cause for impeachment?
Where is the ACLU when they’re needed? Too busy suing school children who bring Bibles to school and want to recite the pledge of allegiance, I suppose.
If anyone knows of a legitimate fund to bring this case to the U.S. Supreme Court please let us know, I want to contribute.

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