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Middle Section Affirms Dismissal via Summary Judgment in Defamation Case Against Chattanooga Congressman and GOP

MARK A. WINSLOW v. JOHN BRUCE SALTSMAN, JR., ET AL.
Court: TN Court of Appeals

Attorneys:

W. Gary Blackburn, Bryant Kroll and Raymond Throckmorton, III, Nashville, Tennessee, for the appellant, Mark A. Winslow.

Paul C. Ney, Jr., Nashville, Tennessee, for the appellee, John Bruce Saltsman, Jr. 2 Richard E. Spicer, Brent S. Usery, and Lance W. Thompson, Nashville, Tennessee, for the appellee, Charles J. Fleischman. Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; and William J. Marett, Jr., Senior Counsel, for the Tennessee Attorney General.

Judge: DINKINS

Mark Winslow brought suit against Charles Fleischmann and his campaign advertising consultant, John Saltsman, to recover for allegedly false and defamatory statements made in the course of Mr. Fleishman’s campaign for election to the United States Congress, and related contractual claims. Mr. Fleishman and Mr. Saltsman moved for summary judgment on the grounds that the statements were not false or capable of defamatory meaning or published with actual malice, and that they took no action to induce a breach of contract or otherwise interfere with the relationship between Mr. Winslow and the Tennessee Republican Party. Mr. Winslow did not contest the grant of summary judgment on the contract claims; the trial court granted the motion as to the defamation and false light claims, holding that there was no evidence from which to infer malice, that the statements were not defamatory or capable of a defamatory meaning, and that any statements upon which the action was based which related to Mr. Winslow were either true or substantially true and, therefore, not actionable. Mr. Winslow appeals. Because Mr. Fleishman and Mr. Saltsman demonstrated that the undisputed facts negate the element of actual malice which is essential to the defamation and false light claims, we affirm the trial court’s grant of summary judgment.

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There will be no Ruling Impacting the Collateral Source Rule on Connection with Hall v Holland

Despite extensive interest and briefing, the Supreme Court declines to accept a certified question related to the scope of its earlier decision about reasonableness of medical expenses in the hospital lien context.

The Court had been asked by the U S District Court in Memphis to answer the following certified question of law:
Is the decision in West limited to the Hospital Lien Act or is it also applicable to personal injury actions directly against the allegedtortfeasor?

Upon thorough review, the Court found that the certified question is not one which will be determinative of the cause as is required of certified questions and declined the opportunity to respond.

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Court Vacates Decision on Constitutionality of Cap

The Tennessee Supreme Court has set aside a Hamilton County trial court ruling that said a state law capping non-economic damages in certain personal injury cases is unconstitutional. The court wrote in its order that the issues were not “ripe” for constitutional consideration at this point, because there has not yet been a final decision in the case nor any award of non-economic damages in excess of the statutory cap.

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Governor Names Members to Law-Related Bodies

Tennessee Gov. Bill Haslam has announced a series of appointments to state boards and commissions, including several law-related bodies, WRCBTV.com reports. Among the appointments are Chris Hodges of Nashville and Ward Phillips of Knoxville to the Board of Judicial Conduct; Niesha Wolfe of Clarksville and Mary Wagner of Memphis to the Post-Conviction Defender Oversight Commission; and Jason Denton of Lebanon, Lynn Lawyer of Nashville and Jerry Mayo of Brentwood to the Advisory Council on Workers' Compensation.

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ESPN Star Seeks $75M in Peephole Suit

Former ESPN personality Erin Andrews is seeking $75 million in a lawsuit tied to an incident where she says a stalker filmed her through a peephole in a Nashville hotel, new court documents say. The Tennessean reports that Andrews’ Nashville attorney, Randall Kinnard, filed a revised version of her lawsuit earlier this week in Davidson County Circuit Court. The previous lawsuit sought $10 million for similar claims.

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Efforts to Allow Opt-out of Workers’ Comp Still Alive in Tennessee

Some of the country’s largest companies are proposing a radical idea: let businesses opt out of state workers’ compensation laws so they can write their own rules for taking care of injured workers. In an article out today, Pro Publica looks at the issue and how the concept is working in Texas and Oklahoma, which both have passed laws allowing such waivers. Similar proposals are under consideration in Tennessee and South Carolina.

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Eastern Section Dismisses Death Action vs State for Road Design and Signage

MARK THOMAS CHURCH ET AL. v. CHARLES BLALOCK & SONS, INC. ET AL.
Court: TN Court of Appeals

Attorneys:

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Dawn Jordan, Senior Counsel, Office of Attorney General; Nashville, Tennessee, for the appellee, State of Tennessee.

Gary E. Brewer and Steven W. Terry, Morristown, Tennessee, for the appellee, Mark Thomas Church. Edward R. Sempkowski, Morristown, Tennessee, for the appellee, Sherry Carlson, Administratrix of Estate of Patricia Ann Lunsford.

Judge: FRIERSON

This action stems from a motor vehicle accident resulting in two fatalities that occurred at the intersection of the newly constructed State Route 91 and Old State Route 91 in Johnson County, Tennessee. Alleging that the design and construction of the intersection were negligent, the plaintiffs filed suit in the Johnson County Circuit Court against Johnson County and the general contractor who constructed the intersection. The plaintiffs also filed claims against the Tennessee Department of Transportation with the Tennessee Claims Commission, asserting that the intersection constituted a dangerous condition on a roadway. The claims filed with the Claims Commission were transferred to Johnson County Circuit Court, and all claims were subsequently consolidated in this action. Johnson County and the general contractor were later dismissed as defendants, such that the trial proceeded regarding the claims against the State only. Following a bench trial, the court granted judgment to the plaintiffs, determining the State to be 53% at fault and the deceased driver to be 47% at fault. The court awarded damages accordingly. The State timely appealed.1 We conclude that the evidence preponderates against the trial court’s determination that the intersection constituted a dangerous condition on the roadway or that the risk involved was foreseeable. We therefore reverse the trial court’s judgment.

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Defamation Case by Congregant Against Church is Dismissed on Pleadings

AUSTIN DAVIS v. COVENANT PRESBYTERIAN CHURCH OF NASHVILLE, ET AL.
Court: TN Court of Appeals

Attorneys:

Thomas M. Donnell, Jr., Autumn L. Gentry, and Kelly M. Telfeyan, Nashville, Tennessee, for the appellant, Stewart James (Jim) Bachmann, Jr.

Austin Davis, Nashville, Tennessee, Pro Se.

Judge: BENNETT

A former church member brought suit against the pastor and other defendants not involved in this appeal. The trial court dismissed all of the plaintiff’s claims against the pastor with the exception of the causes of action for defamation and outrageous conduct. We have concluded that the plaintiff’s complaint does not make out claims for defamation or outrageous conduct. The decision of the trial court is, therefore, reversed and remanded with instructions to dismiss the complaint in in its entirety.

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Supreme Court Holds that Pre-suit Notice and Good Faith Certificate Essential in Action Against Social Worker

ADAM ELLITHORPE ET AL. V. JANET WEISMARK
Court: TN Supreme Court

Attorneys:

John F. Floyd and Daniel C. Todd, Nashville, Tennessee, for the appellant, Janet Weismark.

Connie Reguli, Brentwood, Tennessee, for the appellees, Adam Ellithorpe, Ashley Ellithorpe, and M.L. (a minor). Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Alexander S. Rieger and Paul Jordan Scott, Assistant Attorneys General, for the intervenor, State of Tennessee.

Judge: CLARK

We granted review in this health care liability action to decide whether the trial court erred by failing to apply this Court’s analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to provide pre-suit notice and a certificate of good faith under the Tennessee Health Care Liability Act (“THCLA”), Tenn. Code Ann. § 29-26-101 et seq. We hold that the Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated our decision in Estate of French by providing that “[a]ny such civil action or claim is subject to [the THCLA] regardless of any other claims, causes of action, or theories of liability alleged in the complaint.” Because it is undisputed that the plaintiffs in this case failed to provide pre-suit notice or file a certificate of good faith, the judgment of the Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs’ complaint with prejudice is reinstated.

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Metro Schools Can Fire Non-teaching Staff Without Appeals Hearing

Davidson County Chancery Court Judge Ellen Lyle said Metro’s director of schools has the power to dismiss non-teaching staffers without giving them an appeals hearing, The Tennessean reports. Lyle said in her ruling that state law “supersedes the Metro Charter’ and allows for a board to create policies detailing the process in which the director hires and fires personnel.

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Chattanooga Firm Files Class Action Suit Against Volkswagen

Chattanooga firm Patrick, Beard, Schulman & Jacoway PC filed a class action lawsuit against Volkswagen Group of America, Inc. and related corporate entities following the company’s admission that it installed “defeat devices” in certain Volkswagen and Audi diesel automobiles in order to pass emissions tests. The lawsuit joins the more than 175 class actions filed in 32 states. The firm's lawsuit contains plaintiffs from Tennessee, Georgia, and Florida. “Volkswagen has been an important part of the Chattanooga community, but we are certainly disappointed in Volkswagen’s intentional actions in mispresenting the true nature of its diesel engines,” managing partner Gary Patrick said.

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Transitory Venue Statute Upheld in Med Mal Case

KATHLEEN N. BARRETT, ET AL. v. THOMAS M. CHESNEY, MD
Court: TN Court of Appeals

Attorneys:

Albert C. Harvey and Justin N. Joy, Memphis Tennessee, for the appellants, Trumbull Laboratories, LLC, Thomas M. Chesney, and Pathology Group of the Midsouth, PC.

John F. Floyd, Nashville, Tennessee, for the appellant, Kathleen N. Barrett. Marty R. Phillips and John O. Alexander, IV, Memphis, Tennessee, for the appellees, Michael Kellogg, Portland Primary Care, LLC, Portland Primary Care, LLC d/b/a Tristar Medical Group-Fairvue, and Portland Primary Care, LLC d/b/a Tristar Medical Group- Fairvue Primary Care.

Judge: ARMSTRONG

This interlocutory appeal arises from a health care liability action and concerns the question of proper venue. Plaintiff filed her original lawsuit in Shelby County against the Appellants, a pathology group located in Shelby County. Appellants answered the complaint and raised, as an affirmative defense, the comparative negligence of Appellees, plaintiff’s primary care physician and his employer, who are residents of Sumner County. Plaintiff then moved, under Tennessee Code Annotated Section 20-1-119, for leave to amend her complaint to add the Sumner County residents to the lawsuit. Leave was granted, and plaintiff filed an amended complaint under Tennessee Rule of Civil Procedure 15.01. Appellees answered the complaint and averred that venue was improper in Shelby County under Tennessee Code Annotated Section 20-4-101(b). Appellees asked for dismissal of the lawsuit; however, rather than dismissing the lawsuit, the Shelby County court transferred the case to Sumner County. Appellants appeal. We affirm and remand.

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Med Mal HIPPA Release Substantially Complies, per Eastern Section

MARGIE HUNT ET AL V. SUDHA NAIR, M.D. ET AL
Court: TN Court of Appeals

Attorneys:

Heidi A. Barcus and Daniel T. Swanson, Knoxville, Tennessee, and Thomas W. Lawrence, Jr. and Matthew A. Moushon, Nashville, Tennessee, for the appellant, Sudha Nair, M.D.

David E. Waite, Knoxville, Tennessee, for the appellant, Nitin J. Rangnekar, M.D. Mark T. Smith and Lauren Z. Curry, Nashville, Tennessee, for the appellant, Metro Knoxville HMA, LLC, dba Tennova Healthcare-Turkey Creek Medical Center. Brett D. Stokes, Knoxville, Tennessee, for the appellees, Margie Hunt and husband, Rickey Hunt.

Judge: SUSANO

This interlocutory appeal involves a health care liability action.1 The plaintiffs, Margie Hunt and husband, Rickey Hunt,2 claim that Mrs. Hunt suffered injuries proximately caused by the conduct of the defendants with respect to two surgeries.3 Prior to filing their complaint, the plaintiffs gave timely written notice of their claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Each of the three defendants moved to dismiss the complaint. Their separate motions were predicated on their assertion that the plaintiffs? pre-suit notice failed to comply with the requirements of Tenn. Code Ann. § 29-26-121, part of the Tennessee?s Health Care Liability Act. Specifically, the defendants argue that the plaintiffs failed to provide a HIPAA- compliant4 medical authorization with their pre-suit notice. They also contend that the plaintiffs failed to attach to the complaint the medical authorization and also the pre-suit notice served upon the defendants. The defendant Dr. Nitin J. Rangnekar also relies upon the ground of insufficiency of service of process. The trial court denied each defendant?s motion. On the defendants? further motions, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted the defendants permission to file a Rule 9 appeal. We affirm the judgment of the trial court.

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Supreme Court Review Possible in Birth Control Requirement Dispute

The Justice Department says the U.S. Supreme Court should review a federal appeals court decision that agreed with religious-oriented nonprofits' claims that the option to opt of out mandatory birth control provisions unjustly burdens companies. The Associated Press reports that the court in St. Louis last month became the first to agree with the religious-oriented nonprofits after seven other appellate panels sided with the Obama administration.

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Volkswagen Hit with Class Action Suits in 32 States

Volkswagen has been hit with more than 175 class actions in 32 states since news of its emissions troubles came to light last month. Almost all the suits have been brought on behalf of consumers alleging they were duped into paying premium prices for “clean diesel” vehicles that exceeded U.S. regulatory standards. Others have been filed by dealership franchises. The cases are in addition to investigations by the U.S. Justice Department, the U.S. Environmental Protection Agency and attorneys general in at least 28 states, the National Journal reports.

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Court Grants Tax Refunds to Insurance Companies

The Tennessee Supreme Court ruled today that the state Department of Commerce and Insurance must refund more than $16 million in taxes paid by five groups of Pennsylvania insurance companies. In 2012, the companies requested refunds for taxes they paid under Tennessee’s retaliatory tax statute, arguing they did not owe taxes on certain assessments that were paid by policyholders. The court agreed, concluding that the department could not require a retaliatory tax because the assessments did not impose a direct financial burden on Tennessee insurance companies doing business in Pennsylvania. Read the opinion.

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Volkswagen Fix Won’t Apply to U.S. Vehicles

Volkswagen’s promise to deliver a fix for its rigged diesel engine “in the next few days” refers to vehicles sold in Europe and other foreign markets, not the United States, according to a company source, WRCB TV reports. The American retrofit is likely to require separate software solutions for three different versions of the engine and may also require hardware changes. As a result of that complexity, company officials are still working with the EPA. An announcement of a solution for American car owners remains some time off, the source said.

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Former Councilman's Suit Against Newspaper for Defamation by False Light Gets New Life in Western Section Reversal of Dismissal

TN Court of Appeals

GREG GRANT v. THE COMMERCIAL APPEAL, ET AL.
Court: TN Court of Appeals

Attorneys:

Christopher F. Donovan, Memphis, Tennessee, for the appellant, Greg Grant.

James Bennett Fox, Jr., and Lucian T. Pera, Memphis, Tennessee, for the appellee, The Commercial Appeal, Memphis Publishing Company, Mark Perrusquia, Louis Graham, and George Cogswell.

Judge: STAFFORD

Plaintiff brought action for defamation and false light invasion of privacy based on an allegedly defamatory newspaper article published by defendant newspaper, reporter, editor, and publisher. Defendants moved to dismiss, claiming that liability was precluded based on the fair report privilege. Defendants also asserted that plaintiff failed to state a cause of action upon which relief may be granted because the article‘s statements were not capable of being defamatory. The trial court granted the motion to dismiss, finding that the article was not capable of defamation and that the fair report privilege applied. We reverse in part as to the determination that the fair report privilege applied; affirm in part as to the dismissal of the defamation and false light claims; and reverse in part as to the defamation by implication claims.

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A Divided Supreme Court Declines to Extend Municipality GTLA Statue of Limitations via TCA 20-1-119

RICHARD MORENO v. CITY OF CLARKSVILLE
With dissenting opinion.
Court: TN Supreme Court

Attorneys:

Amy J. Farrar, Murfreesboro, Tennessee, Lance A. Baker and Jeffrey T. Goodson, Clarksville, Tennessee, for the appellant, City of Clarksville, Tennessee.

Bruce Kennedy and John T. Maher, Clarksville, Tennessee, for the appellee, Richard Moreno.

Judge: KIRBY

In this appeal, the claimant seeks to toll the statute of limitations on his claim against a municipality based on two statutes: (1) Tennessee Code Annotated § 20-1-119, the 90-day “window” in Tennessee?s comparative fault statute to name a non-party defendant as a comparative tortfeasor, and (2) Tennessee Code Annotated § 9-8-402(b), the tolling provision in the Tennessee Claims Commission Act that states that the filing of written notice of a claim against the State tolls all statutes of limitations as to other persons potentially liable to the claimant. The trial court dismissed the claimant?s complaint against the municipality. It held that, because the antecedent complaint against the State of Tennessee was filed in the Tennessee Claims Commission after expiration of the one-year limitations period, the 90-day window under Section 20-1-119 to file the lawsuit against the municipality, as a comparative tortfeasor, was never triggered. The Court of Appeals reversed, reasoning that the claimant?s written notice of his claim against the State, filed with the Division of Claims Administration before the one-year limitations period elapsed, was an “original complaint” within the meaning of Section 20- 1-119, so the lawsuit against the municipality was timely. The municipality appeals. We hold that the complaint, not the written notice of a claim, is the “original complaint” under Section 20-1-119, so the 90-day window to name a non-party defendant as a comparative tortfeasor was never triggered in this case. We also hold that Section 9-8- 402(b), the tolling provision in the Claims Commission Act, is not applicable to toll the statute of limitations for a claim against a municipality filed under Tennessee?s Governmental Tort Liability Act. Therefore, this action is time-barred.

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WADE dissenting

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No Duty of Pre-Sale Home Inspector to Subsequent Guest for Failed Deck Rail, per Middle Section

CHARLES GROGAN v. DANIEL UGGLA, ET AL.
Court: TN Court of Appeals

Attorneys:

Matthew E. Wright, Franklin, Tennessee, and Edmund J. Schmidt III, Nashville, Tennessee, for the appellant, Charles Grogan.

Daniel W. Olivas, Nashville, Tennessee, for the appellees, Jerry Black d/b/a Pillar to Post of Middle Tennessee, and Pillar to Post, Inc.

Judge: MCBRAYER

This appeal concerns a home inspector’s liability for a guest’s injury following the collapse of a homeowner’s second-story deck railing. The accident occurred just one month after the home inspection was performed. In his report to the homeowner, the inspector noted that the deck flooring was warped but failed to report the improper construction of the deck railing. The injured guest filed suit against the homeowner and the home inspector, among others. The inspector moved for summary judgment. The trial court granted summary judgment, finding that the inspector did not owe a legal duty to the guest. We affirm.

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Middle Section Reverses Insured Summary Judgment Over Sinkhole Coverage; Granting Judgment Instead to Insurer

KEITH PATTERSON ET AL. v. SHELTER MUTUAL INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

Autumn LaCarla Gentry and Thomas M. Donnell, Jr., Nashville, Tennessee, for the appellant, Shelter Mutual Insurance Company.

Sonya S. Wright, Murfreesboro, Tennessee, and Joshua E. Burnett, Tampa, Florida, for the appellees, Keith and Kimberly Patterson.

Judge: CLEMENT

This is an action by homeowners against the insurance company that provided their homeowners? insurance coverage. At issue is whether the insurer violated Tenn. Code Ann. § 56-7-130(b) (2006) by failing to make available coverage for insurable sinkhole losses and whether the physical damage to the home was caused by “sinkhole activity.” When the insurer denied coverage, Plaintiffs commenced this action alleging, inter alia, that the insurer breached the policy and acted in bad faith when it refused to pay their claim. Plaintiffs also sought to hold the insurer liable for violating Tenn. Code Ann. § 56-7-130(b) because the insurer did not notify Plaintiffs that sinkhole coverage was an available option. At the time of the occurrence, the statute stated: “Every insurer offering homeowner property insurance in this state shall make available coverage for insurable sinkhole losses on any dwelling, including contents of personal property contained in the dwelling, to the extent provided in the policy to which the sinkhole coverage attaches.” Tenn. Code Ann. § 56-7-130(b) (emphasis added). It is undisputed that the insurer did not notify Plaintiffs that sinkhole coverage was available. The insurer filed a motion for summary judgment contending that Tenn. Code Ann. § 56-7-130 did not require it to notify Plaintiffs that sinkhole coverage was an available option. The insurer also denied the factual assertion that sinkhole activity caused the loss and asserted that it was not liable because, if sinkhole activity caused the damage, the policy contained an exclusion for such an occurrence. Plaintiffs filed a cross-motion for summary judgment, arguing that they were entitled to a judgment that the insurer had violated Tenn. Code Ann. § 56-7-130 and that their insurance policy did not exclude coverage for the damage to their home. The trial court granted Plaintiffs? motion with respect to Tenn. Code Ann. § 56-7-130, concluding it was undisputed that the insurer “did nothing to make the Plaintiffs aware of the sinkhole endorsement and, therefore, did not meet the requirements of [Tenn. Code Ann. § 56-7-130].” The trial court denied summary judgment on all remaining issues concluding that material facts were disputed concerning the cause of the damage to Plaintiffs? home. On appeal, we reverse the grant of summary judgment to Plaintiffs based on Tenn. Code Ann. § 56-7-130 and remand with instructions to grant summary judgment to the insurer on that issue because the statutory language, “make available,” does not require insurers to give notice that sinkhole coverage is available. We affirm the trial court?s denial of summary judgment concerning whether the loss at issue is excluded from coverage because, as the trial court correctly found, material facts are in dispute.

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Supreme Court Dismisses Claims Against Clarksville

The Tennessee Supreme Court dismissed a complaint against the city of Clarksville after ruling that claims made by Richard Moreno, who was injured by a tree on state property in Clarksville, were filed too late and should be dismissed. Moreno waited nearly a year after the 2009 incident to file a complaint against the state and later filed against Clarksville. The Supreme Court reversed the Court of Appeals and affirmed the trial court’s dismissal of Moreno’s complaint against Clarksville. In his dissent, Justice Gary R. Wade wrote, “a ‘notice of claim’ qualifies as an ‘original complaint initiating a suit’ because the notice meets the traditional definition of a ‘complaint’ and its filing has the same effect.” Read the majority opinion

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Columns Include Same-Sex Marriage, Tolerance and Atticus Finch

President Bill Harbison makes a plea for tolerance among lawyers who hold divergent viewpoints in his column in the September Tennessee Bar Journal. Marlene Eskind Moses and John A. Day each cover the issue of same-sex marriage in their columns: Moses on how that affects family law and Day on loss of consortium claims. Humor columnist Bill Haltom remains steadfast in his admiration of Atticus Finch, even after the jolting view portrayed in Harper Lee’s Go Set a Watchman

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Rule Change Package Released for Review, Comment

The Tennessee Supreme Court has published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include new authority for appellate courts to dismiss appeals; provisions permitting electronic signatures in courts employing electronic filing; clarification of the effect of service of process on commencement of actions; adoption of the term preliminary hearing in lieu of preliminary examination in criminal procedure; and, refinement of procedure for correction of illegal sentences in criminal cases. The are no evidence rules changes proposed this year. A 90-page comprehensive restructuring and revision of the Rules of Juvenile Procedure is also included.

Six TBA sections -- Appellate Practice, Litigation, Tort and Insurance Law , Family Law, Juvenile and Children’s Law and Criminal Justice -- will be asked to review the proposed amendments and recommend comments on behalf of the association. Comments on the proposals are due to the Court by November 25, 2015.

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Court Square Series Offers 3 CLE Hours in Dyersburg, Jackson

Judge C. Creed McGinley and Judge J. Steven Stafford will speak at the annual Court Square CLE in Dyersburg, Sept. 17. Judge Allen Phillips will talk about his role on the Court of Workers' Compensation Claim at the Court Square CLE in Jackson. Both programs offer three hours of CLE.

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