TennBarU, the TBA Elder Law Section and the National Academy of Elder
Law Attorneys Present: Elder Law Basics
August 19-21 - Gaylord Opryland Hotel in Nashville

This program covers the breadth of elder law. The distinguished
faculty for this program includes past NAELA presidents and authors of
several national treatises on elder law. Level of instruction is basic
and intermediate. A unique aspect of this program is its focus on a
case study, in which participants will develop a long-term care plan
under the tutelage of experienced elder law attorneys. This course
provides 15.75 hours of general and one hour dual CLE credit.

Today's Opinions: June 30, 2005
Volume 11 — Number 124
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. AMY DENISE SUTTON

Court:TSC

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee (on appeal); Guy T.
Wilkinson, District Public Defender and Billy R. Roe, Jr., Assistant
District Public Defender (at trial), for the appellant, Amy Denise
Sutton.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; Thomas
E. Williams, III, Assistant Attorney General; G. Robert Radford,
District Attorney General; and Eleanor Cahill, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: BIRCH

First Paragraph:

We granted permission to appeal in this case pursuant to Tennessee
Rule of Appellate Procedure 11 to determine the legality of the
defendant's sentence. The defendant, Amy Denise Sutton,1 was convicted
by a jury of theft of property valued between $1,000 and $10,000. The
trial court sentenced her to confinement for one year, followed by two
years in community corrections. On appeal, she contends that because
the length of her confinement exceeds her estimated release
eligibility date of 10.8 months, her sentence is illegal. The
defendant also challenges the sufficiency of the convicting evidence.
Because we conclude that the defendant's release eligibility date is a
mere possibility and not a right, we find the sentence to be valid.
Further, we conclude that sufficient evidence was presented for a
rational jury to convict the defendant of the charged offense.
Accordingly, we affirm the judgment of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TSC/2005/suttona63005.pdf

JENNIFER LYNN ALSIP, ET AL. v. JOHNSON CITY MEDICAL CENTER, ET AL.

Court:TCA

Attorneys:                          

Gary E.Brewer and Leslie A.Muse,Morristown, Tennessee, for the
appellants, Jennifer Lynn Alsip, Rebecca Dawn Alsip, and Geraldine
Alsip.

Jeffrey M. Ward, Greeneville, Tennessee, for the appellees, Louis
Modica, M.D. and Medical Education Assistance Corporation dba ETSU
Physicians and Associates.

Randall J. Phillips, Jackson, Tennessee, for Amicus Curiae, Tennessee
Trial Lawyers Association.

David L. Steed and Jay N.Chamness, Nashville, Tennessee, for Amicus
Curiae, Tennessee Medical Association.

Judge: SUSANO

First Paragraph:

In this medical malpractice case involving the alleged wrongful death
of Walter Ray Alsip ("Mr. Alsip" or "the deceased"), we granted the
plaintiffs' Tenn. R. App. P. 9 application for an interlocutory appeal
in order to review the trial court's order allowing defense counsel to
engage in ex parte dialogue with Mr. Alsip's last-illness,
non-defendant treating physicians. We conclude that the trial court
erred in entering the order that permitted defense counsel to have
private conversations with the non-defendant physicians who treated
the deceased during his last illness. Accordingly, we reverse the
trial court's order.

http://www.tba.org/tba_files/TCA/2005/alsipj63005.pdf

JAMES ROBERT (BO) HOBBS v. NORA ESTELLE HOBBS, TERESA WINDLE, AND DON
HOLLAND

Court:TCA

Attorneys:                          

Sam J. Watridge, Humboldt, Tennessee, for the appellant, James Robert
(Bo) Hobbs.

Marianna Williams, Dyersburg, Tennessee, for the appellees, Nora E.
Hobbs and Don Holland.

Judge: KIRBY

First Paragraph:

This case involves the conversion of personal property. For several
years, the plaintiff son stored various types of equipment in a pole
barn located on his mother's property. The mother decided to sell her
property and, in preparation for the sale, she hired the defendant
scrap dealer to clear out the pole barn and sell its contents. The
scrap dealer cleared out the pole barn and sold the son's equipment
for a total of $657. After the son learned of this, he sued his mother
and the scrap dealer, claiming that they converted his property and
asserting that the property was worth $22,000 if purchased new. After
a trial, the trial court held that the mother and the scrap dealer had
converted the son's equipment, but awarded him $657 in damages, the
salvage value of the property. The plaintiff now appeals. We affirm,
finding that the son failed to submit proof of the actual value of the
property at the time of the conversion.

http://www.tba.org/tba_files/TCA/2005/hobbsj63005.pdf

BETTY PUCKETT, ET AL. v. REBECCA D. ROBERSON, ET AL.

Court:TCA

Attorneys:                          

Bruce Conley and Bruce Moss of Union City, Tennessee For Appellants,
Betty Puckett and Terry Phelon

James A. Hamilton III of Dyersburg, Tennessee For Appellees Rebecca D.
Roberson and Keith Roberson

Judge: CRAWFORD

First Paragraph:

Parents of minor killed as passenger in a single-car accident brought
wrongful death action against Defendants/Appellees, a husband and wife
whose home decedent had visited, as an uninvited guest, in the hour
preceding the accident. Trial court granted summary judgment for
Defendants/Appellees. Parents/Appellants appeal, asserting that
Defendants/Appellees owed a duty of care to decedent because they
condoned the use of alcohol by minors in their home and thereby
created a special relation with decedent. We affirm.

http://www.tba.org/tba_files/TCA/2005/puckettb63005.pdf

HELEN RICHARDSON, INDIVIDUALLY AND ON BEHALF OF HER DAUGHTER AND HER
MINOR CHILDREN, TRINA RICHARDSON, DECEASED v. METHODIST HEALTHCARE
MEMPHIS, U.T. MEDICAL GROUP, SHELBY COUNTY HEALTH CARE CORPORATION
D/B/A THE REGIONAL MEDICAL CENTER, MICHAEL J. WASHINGTON, M.D. DAVID
C. JERDEN, JR., M.D., CLARO F. DIAZ, M.D., ROBERT NEAL AGUILLARD,
M.D., JOHN R. WICKMAN, M.D., DANIEL BROOKOFF, M.D., PATRICK K. MALONE,
M.D., AND TRACIE WALKER, M.D.

Court:TCA

Attorneys:                          

Charles F. Morrow, Michael D. Fitzgerald, Memphis, Tennessee, for
Appellant Patrick K. Malone, M.D.

William D. Domico and Victoria Smith Rowe, Memphis, Tennessee, for
Appellants Methodist Healthcare Memphis, David C. Jerden, Jr., M.D.,
and Tracie Walker, M.D.

David M. Cook and Katherine M. Anderson, Memphis, Tennessee, for
Appellant Claro F. Diaz, M.D.

Teresa J. Sigmon and Claire M. Cissell, Memphis, Tennessee, for
Appellant Shelby County Health Care Corporation d/b/a The Regional
Medical Center.

Michael L. Robb, Memphis, Tennessee, for Appellant Michael J.
Washington, M.D.

Al H. Thomas, Regina Guy, and Joshua D. Thomas, Memphis, Tennessee,
for Appellee Helen Richardson, Individually and on Behalf of her
Daughter and the Minor Children of Trina Richardson.

Judge: KIRBY

First Paragraph:

This case involves the authority of the General Sessions Court to set
aside its own judgment. The plaintiff's decedent died in January 2000.
In January 2001, the plaintiff filed a medical malpractice claim in
the General Sessions Court against the defendants. In April 2001, the
General Sessions Court entered an order dismissing the case, without
prejudice, for lack of prosecution. The General Sessions Court later
determined that the order dismissing for lack of prosecution was
erroneously entered. Consequently, in May 2001, the General Sessions
Court entered a consent order setting aside its April 2001order. In
December 2001, the plaintiff voluntarily nonsuited the General
Sessions lawsuit, and the General Sessions Court entered a consent
order of dismissal without prejudice. In June 2002, the plaintiff
refiled her lawsuit in the Circuit Court below. The defendants filed
motions for summary judgment based on the statute of limitations,
claiming that the plaintiff was required to refile her lawsuit within
one year of the April 2001 General Sessions order, dismissing for lack
of prosecution. The defendants asserted that the General Sessions
Court was without authority to adjudicate the matter further after the
April 2001 order of dismissal was entered. The Circuit Court disagreed
and denied the defendants' motions for summary judgment. The
defendants were granted permission to file this interlocutory appeal.
We reverse, concluding that the General Sessions Court did not have
the authority to set aside its April 2001 judgment.

http://www.tba.org/tba_files/TCA/2005/richardsonh63005.pdf

HARLAN THOMAS ET AL. v. JOHN CARPENTER ET AL.

Court:TCA

Attorneys:                          

John R. Tarpley and Samuel L. Jackson, Nashville, Tennessee, for the
appellants, John Carpenter and John Carpenter Homes, Inc.

James Bryan Moseley, Nashville, Tennessee, for the appellees, Harlan
Thomas and Kimberly Thomas.

Judge: KOCH

First Paragraph:

This interlocutory appeal involves a plaintiff who was injured while
helping the contractor building his house cut a board. The sole issue
concerns whether the contractor is equitably estopped from asserting
the statute of limitations as a defense to the plaintiff's claims. The
trial court determined that, by paying the plaintiff $10,000 for his
medical expenses, the contractor's insurance company induced the
plaintiff to believe the matter would be settled amicably without the
necessity of a lawsuit. Thus, the trial court denied the contractor's
motion for summary judgment, but granted the contractor an
interlocutory appeal pursuant to Tenn. R. App. P. 9. We concur with
the trial court that an interlocutory appeal will prevent needless,
expensive and protracted litigation. We also agree that summary
judgment is not appropriate because genuine issues of material fact
exist. However, the trier of fact should decide whether the $10,000
payment induced the plaintiff to believe that the matter would be
settled amicably, and, therefore, we vacate the trial court's order to
the extent it makes specific findings with regard to the plaintiff's
beliefs stemming from the $10,000 payment

http://www.tba.org/tba_files/TCA/2005/thomash63005.pdf

AUTHOR R. TURNER v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Author Ray Turner, Henning, Tennessee, appellant, pro se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Michael B. Schwegler, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: KIRBY

First Paragraph:

This is a medical negligence case brought by a state prisoner. The
plaintiff prisoner alleges injury stemming from an act of medical
negligence by a state employee in August 2001, while the plaintiff
prisoner was in state custody. In March 2002, the prisoner erroneously
filed a lawsuit in chancery court, which was dismissed in January
2003. In February 2003, the prisoner filed the instant claim with the
claims commission. The claims commission found that the statute of
limitations was not tolled by the filing of the chancery lawsuit
because the Attorney General had not agreed to transfer the chancery
lawsuit, and dismissed the claim as untimely. The plaintiff prisoner
appealed. This Court reversed the dismissal on the basis that the
agreement of the Attorney General to the transfer was no longer
required, and remanded for further proceedings. On remand, the claims
commission found that the plaintiff prisoner's claim was not in the
class of cases eligible for transfer from chancery court, and on that
basis again dismissed the plaintiff prisoner's complaint as being
untimely. The plaintiff prisoner again appeals. We affirm, concluding
that the statute of limitations was not tolled by the erroneous filing
of the chancery court lawsuit, and that consequently the plaintiff
prisoner's claim with the claims commission was untimely.

http://www.tba.org/tba_files/TCA/2005/turnera63005.pdf

RICK WATKINS and ELLEN WATKINS, Individually and f/u/b HOW INSURANCE
COMPANY, in Receivership v. TANKERSLEY CONSTRUCTION, INC., O'NEAL
TANKERSLEY, Individually and d/b/a TANKERSLEY CONSTRUCTION, CHARLES
WALKER ENTERPRISES, CHARLES WALKER, Individually and d/b/a CHARLES
WALKER ENTERPRISES, and MUNFORD DEVELOPMENT COMPANY

Court:TCA

Attorneys:                          

Loys A. "Trey" Jordan, III, and Lisa A. Overall, Memphis, Tennessee,
for the appellants, Rick Watkins and Ellen Watkins, Individually and
f/u/b How Insurance Company, in Receivership.

Pam Warnock Green, Memphis, Tennessee, for the appellees, Charles
Walker Enterprises, Charles Walker, Individually and d/b/a Charles
Walker Enterprises.

Judge: KIRBY

First Paragraph:

This is a negligent construction case involving a statute of repose.
The defendant developer bought the residential lot in question in
1992. The developer hired the defendant subcontractor to remove trees
and perform the grading work necessary to make the lot suitable for
the construction of a house. In 1993, the developer sold the lot to
the defendant construction company, which constructed a house on the
lot. In 1994, the construction company sold the lot and the house to
purchasers not party to this litigation. In 1997, the purchasers sold
the house to the plaintiffs in this case. A few weeks after the
plaintiffs moved into the house, they noticed cracks in the walls and
abnormal settling of the house. In April 2000, the plaintiffs filed
this lawsuit against the construction company and the subcontractor
for negligent construction of the house and negligent grading of the
lot. The defendants filed motions for summary judgment based on the
four-year statute of repose set out in T.C.A. B 28-3-202. The trial
court granted summary judgment in favor of the defendants based on
that statute. The plaintiffs now appeal the trial court's grant of
summary judgment only as to the defendant subcontractor. We affirm.

http://www.tba.org/tba_files/TCA/2005/watkinsr63005.pdf

STATE OF TENNESSEE v. WILLIAM F. CAIN

Court:TCCA

Attorneys:                          

Charles M. Corn, Cleveland, Tennessee, for the Appellant, William F.
Cain.

Paul G. Summers, Attorney General and Reporter; William G. Lamberth
II, Assistant Attorney General; Jerry N. Estes, District Attorney
General; and Stephen Crump, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, William F. Cain, was convicted of misdemeanor stalking
and sentenced to eleven months and twenty-nine days in the county
jail. On appeal, Cain raises two issues for our review: (1) whether
the evidence is sufficient to support the conviction and (2) whether
he should have received a suspended sentence. After review, the
judgment of conviction and sentence are affirmed.

http://www.tba.org/tba_files/TCCA/2005/cainw63005.pdf

STATE OF TENNESSEE v. CHRISTOPHER EBBS, ALIAS

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender and Randall J. Kilby,
Assistant Public Defender, for the appellant, Chris Ebbs, Alias.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; Zane Scarlett, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Chris Ebbs, pled guilty in May of 1996 to attempted
aggravated sexual battery and was sentenced to six (6) years in the
Department of Correction. The trial court suspended the sentence to
probation for six (6) years conditioned upon various requirements. In
June of 2001, a probation violation warrant was filed. As a result,
the trial court revoked the appellant's suspended sentence and ordered
the appellant to serve the six-year sentence in confinement. On
appeal, the appellant challenges the trial court's decision to revoke
probation. After a review of the record and applicable legal
authorities we conclude the judgment of the trial court must be
affirmed.

http://www.tba.org/tba_files/TCCA/2005/ebbsc63005.pdf

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