Wright takes over helm of Nashville Bar Association

Sheree Wright took over as president of the NBA Thursday night, but not before outgoing president Bill Ramsey was roundly applauded for his outstanding service to the bar and the community. Lela Hollabaugh was selected as president-elect to serve as president in 2007. New directors of the NBA include Kathryn Barnett, Chancellor Richard Dinkins, Trey Harwell, Torry Johnson , Gif Thornton and Jude White.

The John C. Tune Community Service Award went to retired Supreme Court Justice Frank Drowota.
TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

KAITLYN CALAWAY EX REL. KATHLEEN CALAWAY v. JODI SCHUCKER, M.D.

Court: TSC

Attorneys:

Carroll C. Johnson, III, and Timothy Holton, Memphis, Tennessee, for the appellant, Kaitlyn Calaway, ex rel. Kathleen Calaway

Darrell E. Baker, Jr., David Shaw Sadlow, and Deborah Whitt, Memphis, Tennessee, for the appellee, Jodi Schucker, M.D.

Craig P. Sanders and Marty R. Phillips, Jackson, Tennessee, for Amicus Curiae, Tennessee Medical Association

John A. Day, Brentwood, Tennessee, for Amicus Curiae, Tennessee Trial Lawyers Association

Judge: BARKER

Pursuant to Rule 23, we accepted four certified questions of law from the United States District Court for the Western District of Tennessee. The third certified question is the central question of the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled during a plaintiff’s minority? Our answer is that the three-year statute of repose for medical malpractice actions is not tolled during the plaintiff’s minority. Giving effect to the plain language of the statute and finding no exception for minority among the two express exceptions in it—and cognizant of our constitutional role as interpreters, not makers, of the law—we hold that plaintiffs in their minority are bound by the three-year medical malpractice statute of repose.

http://www.tba2.org/tba_files/TSC/2005/calawa_120905.pdf

HOLDER DISSENTING
http://www.tba2.org/tba_files/TSC/2005/calawa_dis_120905.pdf


IN RE: ADOPTION OF L. L. C. , AARON MICHAEL DARNELL v. NATHAN TED COOK

Court: TCA

Attorneys:

Melissa C. Berry of Memphis, Tennessee for Appellant, Nathan Ted Cook

William Craig Hall and Richard F. Vaughn from Collierville, Tennessee for Appellees, Aaron Michael Darnell and Jennifer Darnell

Judge: CRAWFORD

This appeal involves a petition for adoption and termination of the biological father’s parental rights filed by biological mother and her current husband. There is no transcript of the trial proceeding, and the record contains a statement of evidence filed by the biological father and objections thereto with an additional statement of the evidence filed by the petitioners, neither of which were signed by the trial court. The statements are different in several respects. The trial court granted the adoption and termination of the biological father’s parental rights on the ground of willful abandonment, but failed to make specific findings of fact as required by T.C.A. § 36-1-113 (k) (2005). The biological father has appealed. We vacate and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2005/darnell_120905.pdf


IN THE MATTER OF: E.P., T.B., T.B., AND R.B.

Court: TCA

Attorneys:

Matthew R. Armour, Somerville, Tennessee, for appellant Gardenia Bryant Reliford.

Paul G. Summers, Nashville, Tennessee, and Juan G. Villasenor, Nashville, Tennessee, for appellee State of Tennessee. Rickey W. Griggs, Bolivar, Tennessee, for appellees Joseph W. Thomas and Ella Mae Thomas.

Judge: KIRBY

This is a dependency and neglect action. The four children at issue were in the custody of a nonparent. The Department of Children’s Services filed a petition in juvenile court for protective custody of the children, alleging physical abuse. After an evidentiary hearing, the Juvenile Court concluded that the children were dependent and neglected, and transferred custody to the children’s biological mother. The non-parent temporary custodians appealed to the circuit court. The circuit court determined that the evidence was insufficient to conclude that the children were dependent and neglected. The circuit court then ordered that custody of three of the four children should remain with the biological mother, and that custody of the remaining child should be transferred back to the non-parent custodians. The biological mother appealed. We conclude that, once the circuit court found that the children were not dependent and neglected, it no longer had subject matter jurisdiction to determine the custody of the children. Therefore, we vacate the custody determination of the circuit court.

http://www.tba2.org/tba_files/TCA/2005/ep_120905.pdf


ANNETTE HALE v. LINCOLN COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

Melanie Lepp, Murfreesboro, TN, for Appellant

Jeffrey M. Beemer, John Paul Nefflen, Nashville, TN, for Appellees

Judge: HIGHERS

In this appeal we are called upon to review a trial court’s grant of summary judgment to a county in a lawsuit filed by an injured motorist pursuant to section 29-20-203 of the Tennessee Governmental Tort Liability Act. The trial court concluded that the plaintiff was unable to prove, as a matter of law, that the county had actual and/or constructive notice of the condition of the roadway at the time of the plaintiff’s accident. The plaintiff appealed to this Court. We hold that the plaintiff established that genuine issues of material fact exist as to whether the condition of the roadway constituted a defective, unsafe, or dangerous condition, and whether the county had actual and/or constructive notice of such condition. Accordingly, we reverse the decision of the trial court and remand this case for further proceedings.

http://www.tba2.org/tba_files/TCA/2005/halean_120905.pdf


PETER PLOTITSA v. MILA PLOTITSA

Court: TCA

Attorneys:

Peter Plotitsa, Pro Se

Mitchell D. Moskovitz and Adam N. Cohen of Memphis, Tennessee for Appellee, Mila Plotitsa

Judge: CRAWFORD

This is an appeal from a final order granting the parties an absolute divorce and dividing the marital property. The Final Order also incorporated a permanent parenting plan for the parties’ minor child. Husband appeals and asserts, inter alia, that the division of marital property is inequitable and that the chancellor abused his discretion. We affirm and remand.

http://www.tba2.org/tba_files/TCA/2005/plotitsap_120905.pdf


STATE OF TENNESSEE v. DELORES CHRISTINA ARMSTRONG

Court: TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee (attrial), for the appellant, Delores Christina Armstrong.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;Michael L. Flynn, District Attorney General; and Ellen Berez, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

The appellant, Delores Christina Armstrong, was convicted of child abuse and neglect, and shereceived a sentence of four years. The trial court ordered the appellant to serve her sentence in community corrections. Subsequently, the appellant’s community corrections sentence wasrevoked, and the appellant was ordered to serve the balance of her sentence in confinement. On appeal, the appellant challenges the revocation of her community corrections sentence and theimposition of a term of confinement. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/armstrong_120905.pdf


STATE OF TENNESSEE v. JEROME BOND

Court: TCCA

Attorneys:

James E. Thomas, Memphis, Tennessee, for the appellant, Jerome Bond.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General; and Lee Coffee and Stacy McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Jerome Bond, was convicted of felony murder and especially aggravated robbery. See Tenn. Code Ann. §§ 39-13-202, -403. The trial court imposed a life sentence for the felony murder and a sentence of twenty-five years for the especially aggravated robbery and ordered the sentences to be served consecutively. In this appeal, the defendant asserts that the trial court erred by (1) admitting into evidence a photograph of him taken by police; (2) denying his motion to modify Tennessee Pattern Jury Instruction 43.04; (3) denying his request to instruct the jury on the lesser included offenses of especially aggravated robbery; and (4) ordering his sentences to be served consecutively. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2005/bondle_120905.pdf


JACKIE F. CURRY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jackie F. Curry, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Jackie F. Curry, appeals the Knox County Criminal Court’s summary dismissal ofhis petition for post-conviction relief. He claims the trial court erred in finding his petition barred by the Post-Conviction Procedure Act’s one-year statute of limitations. He asserts thatBlakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), announced a new rule of constitutional law requiring retroactive application. We affirm the trial court’s summarydismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2005/curryjackie_120905.pdf


STATE OF TENNESSEE v. JAMES C. MCWHORTER

Court: TCCA

Attorneys:

James C. McWhorter, Clifton, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; and Art Bieber and Daniel Brollier, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, James C. McWhorter, was convicted of two counts of forgery, misdemeanor evading arrest, and felony reckless endangerment. The trial court imposed a four-year sentence for each of the forgery convictions, an eleven month and twenty-nine day sentence for the misdemeanor evading arrest conviction, and a four-year sentence for the felony reckless endangerment conviction. The sentences were ordered to be served concurrently, for a Range II, effective sentence of four years. In this appeal, the defendant asserts (1) that the trial court erred by denying the motion to suppress evidence obtained during a search of his residence; (2) that the trial court erred by denying the motion to suppress the defendant's statement to police; (3) that the trial court erred by denying the motion to sever the offenses; (4) that there was a fatal variance between the indictment and the proof at trial; (5) that Count 3 of the indictment did not charge an offense; (6) that the offenses alleged were legally impossible under the facts of the case; (7) that the evidence was insufficient to support the convictions for evading arrest and reckless endangerment; (8) that the trial court erred by referring to his statement as a "confession;" (9) that the trial court should have given a curative instruction during a co-defendant's testimony; (10) that the sentence is excessive; and (11) that the trial court erred by denying probation. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2005/mcwhorter_120905.pdf


SHANNON SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John D. Drake, Murfreesboro, Tennessee, for the Appellant, Shannon Smith.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitsell, Jr., District Attorney General; Jennings Jones, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Shannon Smith, pled guilty to domestic assault, and he was sentenced to eleven months and twenty-nine days. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition, and the Petitioner now appeals. Finding that there exists no reversible error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2005/smiths_120905.pdf


STATE OF TENNESSEE v. LEWIS BERNARD WILLIAMS

Court: TCCA

Attorneys:

Richard W. Vaughn, Jr., Milan, Tennessee, for the appellant, Lewis Bernard Williams.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; andGary Brown, District Attorney General; and Edward Larry Hardister, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Lewis Bernard Williams, was convicted by a jury of one count of selling over .5 grams of cocaine. As a result, the appellant was fined $50,000 and sentenced to serve twelve years in incarceration. After a motion for new trial was filed, the trial court reduced the appellant’s sentence from twelve years to nine years in light of Blakely v. Washington, 542 U.S. 296 (2004), but denied all of the appellant’s other claims. A timely notice of appeal was filed. On appeal, the appellant presents the following issues for our review: (1) whether the evidence was sufficient to convict the appellant of selling more than .5 grams of cocaine; (2) whether the trial court properly instructed the jury regarding the weight of the cocaine; and (3) whether a new trial should be granted because the trial judge should have recused himself. For the following reasons, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/williamsl_120905.pdf


BYAS WOFFORD, IV v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the Appellant, Byas Wofford, IV.

Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; James G. Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Byas Wofford, IV, stands convicted of five counts of identity theft, one count of forgery in an amount over $1,000, and one count of forgery. Pursuant to his plea agreement, the petitioner pleaded guilty to these seven offenses and received an effective 12-year sentence to be served as a Range III persistent offender. In the instant appeal, the petitioner challenges the postconviction court’s denial of his post-conviction petition, alleging that he received ineffective assistance of counsel and that as a result, his guilty pleas were involuntarily and unknowingly made. After a thorough review of the record and applicable law, we affirm the judgment of the postconviction court.

http://www.tba2.org/tba_files/TCCA/2005/wofford_120905.pdf


Physical and Occupational Therapy Reimbursements Under the Medical Fee Schedule

TN Attorney General Opinions

Date: 2005-12-06

Opinion Number: 05-171

http://www.tba2.org/tba_files/AG/2005/OP171.pdf

Application of TCA § 2-10-206(a)(4) to Statements of Local Candidates

TN Attorney General Opinions

Date: 2005-12-07

Opinion Number: 05-172

http://www.tba2.org/tba_files/AG/2005/OP172.pdf

Limits on State Officials

TN Attorney General Opinions

Date: 2005-12-08

Opinion Number: 05-173

http://www.tba2.org/tba_files/AG/2005/OP173.pdf

TODAY'S NEWS

Legal News
Upcoming CLE Programs

Legal News
Bush said to be considering 2 for East Tennessee U.S. Attorney job
The Knoxville News Sentinel reported today that President Bush is considering two attorneys for the vacant U.S. Attorney position in East Tennessee: acting U.S. Attorney James R. "Russ" Dedrick, 58, of Knoxville, and district attorney general Jerry N. Estes, 54, of Athens. The position was vacated by former U.S. Attorney Harry "Sandy" Mattice Jr. of Chattanooga who was appointed the new U.S. District Court judge in Chattanooga.
0,1406,KNS_350_4301428,00.html
Newspaper reports Schmutzer to step down
The Newport Plain Talk reported today that Fourth Judicial District Attorney General Al Schmutzer Jr. will step down from the position he has held for more than 30 years. Click here for more information.

Upcoming CLE Programs
Special offer for last-minute CLE program
TennBarU is offering more than 150 hours of video replays (100+ ethics hours) between Dec. 27 and Dec. 30 at the Tennessee Bar Center in Nashville. We still need moderators to fill some of the three hour shifts -- moderators will earn 6 hours credit for each shift. Interested? Call TennBarU Administrator Kathleen Caillouette at (615) 383-7421 and schedule your shift today.
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