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Annual Big Shrimp legislative reception a big success
A record number of Tennessee legislators turned out to enjoy some really big shrimp and good conversation with TBA leaders at the annual Big Shrimp event. A group of about 100 legislators and their staffers joined TBA leaders and members of the TBA Leadership Law class at the event. One other sign of success: more than 70 pounds of giant shrimp was consumed.
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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.
03 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
02 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
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00 - Formal Ethics Opinions - BPR
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
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KAITLYN CALAWAY EX REL. KATHLEEN CALAWAY v. JODI SCHUCKER, M.D.
Corrected Case
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. However, in order to avoid undue hardship to potential plaintiffs who have
justly relied upon federal court and lower court precedents erroneously stating the opposite rule,
the new rule we announce today is to apply prospectively only. Therefore, for cases commenced
on or before December 9, 2005, we hold that the plaintiff's minority tolls the medical
malpractice statute of repose. For cases commenced after December 9, 2005, we hold that the
plaintiff's minority does not toll the medical malpractice statute of repose.
Corrected Case; originally published 12/09/2005
http://www.tba2.org/tba_files/TSC/2006/calawayk_corr022206.pdf
DAVID D. ORRICK v. BESTWAY TRUCKING, INC., ET AL.
Court: TSC
Attorneys:
Frank Buck, Smithville, Tennessee, for the Appellant, David D. Orrick.
Patrick A. Flynn, Columbia, Tennessee, for the Appellees, Bestway Trucking, Inc., Transit Group
Transportation, LLC, and Ace, USA.
Judge: ANDERSON
We granted review in this workers' compensation case to determine whether the Special Workers'
Compensation Appeals Panel erred in reducing the trial court's disability award from 33 percent to 3 percent.
After reviewing the record and the applicable authority, we conclude that reduction of the trial
court's award is appropriate. We further conclude, however, that we are unable to enter an
appropriate award based on the record before us. We therefore remand to the trial court to enter an
award consistent with this opinion.
http://www.tba2.org/tba_files/TSC/2006/orrickd022206.pdf
STATE OF TENNESSEE v. CHARLES RICE
With Dissenting Opinion
Court: TSC
Attorneys:
Marty B. McAfee and Stephen Leffler, Memphis, Tennessee, for the appellant, Charles Rice.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M.
Gregory, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: BARKER
A jury convicted the defendant, Charles Rice, of first degree murder. Following a capital
sentencing hearing, the jury found three aggravating circumstances: (1) the defendant was previously
convicted of one or more felonies, the statutory elements of which involve the use of violence to the
person; (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or serious
physical abuse beyond that necessary to produce death; and (3) the murder was knowingly committed
by the defendant while the defendant had a substantial role in committing, or was fleeing after having
a substantial role in committing or attempting to commit a rape. Tenn. Code Ann. Section 39-13-
204(i)(2), (5), (7) (1997). The jury also found that these aggravating circumstances outweighed the
mitigating circumstances beyond a reasonable doubt. Accordingly, the jury imposed a sentence of
death. The Court of Criminal Appeals affirmed both the conviction and sentence.
Upon automatic appeal pursuant to Tennessee Code Annotated Section 39-13-206 (2003),
this Court entered an order specifying seven issues for oral argument, including (1) whether the
evidence is sufficient to support the conviction; (2) whether the evidence is sufficient to support the
aggravating circumstances found by the jury; (3) whether the trial court's instruction to the jury that
aggravated assault was a felony whose statutory elements involve violence to the person violated the
Sixth and Fourteenth Amendments to the United States Constitution; (4) whether the trial court's
restriction of the defendant's cross-examination regarding Tony Evans' prior conviction was
harmless error; (5) whether the trial court erred in refusing to allow the defendant to sit at the defense
counsel table; (6) whether the trial court erred in not instructing the jury on the lesser-included
offense of facilitation; and (7) whether the death sentence is comparatively proportionate and valid
under the mandatory review provisions of Tennessee Code Annotated Section 39-13-206(c)(1)(A)-(D) (2003). After a careful review of the record and relevant legal authority, we affirm the judgment
of the Court of Criminal Appeals.
Majority Opinion
http://www.tba2.org/tba_files/TSC/2006/ricec022206.pdf
Dissenting Opinion
http://www.tba2.org/tba_files/TSC/2006/ricec_diss022206.pdf
MARY LEE DOTSON v. WILLIAM ENNIS DOTSON
Court: TCA
Attorneys:
William Ennis Dotson, Loretto, Tennessee, Pro Se.
Kim B. Tycer, Pulaski, Tennessee, for the appellee, Mary Lee Dotson.
Judge: COTTRELL
The husband appeals from a final decree of divorce challenging the award of divorce to the wife, the
distribution of property, and the award of some property as alimony in solido to the wife. Because
the husband raises factual issues and there is no transcript or statement of the evidence in the record,
we must presume the record would have supported the factual findings of the trial court and
accordingly affirm.
http://www.tba2.org/tba_files/TCA/2006/dotsonm022206.pdf
LARRY GRIGSBY v. UNIVERSITY OF TENNESSEE MEDICAL CENTER, ET AL.
Court: TCA
Attorneys:
Larry Grigsby, pro se Appellant.
Stephen C. Daves and Jeffrey R. Thompson, Knoxville, Tennessee, for the Appellee, University
of Tennessee Medical Center.
James H. London and Jason H. Long, Knoxville, Tennessee, for the Appellees, Paul A. Hatcher
and E. Jay Mounger.
Judge: LEE
In this pro se medical malpractice case, the issues on appeal are whether the Appellant, Larry
Grigsby, timely filed a notice of appeal as regards Defendants Dr. Paul A. Hatcher and Dr. E. Jay
Mounger, and whether the trial court correctly granted summary judgment to the University of
Tennessee Medical Center (UTMC). We dismiss the appeal as to the Defendant doctors
because we find that Mr. Grigsby did not comply with the jurisdictional requirement of Tenn. R.
App. P. 4(a), mandating the timely filing of a notice of appeal. We affirm summary judgment in
UTMC's favor because Mr. Grigsby proceeded solely on the vicarious liability theory of
respondeat superior, pursuant to his allegations that Drs. Hatcher and Mounger were agents
and/or employees of UTMC. Because the alleged agents have been exonerated by an
adjudication of non-liability, and therefore the alleged principal, UTMC, may not be held
vicariously liable, we affirm summary judgment in favor of UTMC.
http://www.tba2.org/tba_files/TCA/2006/grigsbyl022206.pdf
DONALD JAMISON v. HARRELL ULRICH, ET AL.
Court: TCA
Attorneys:
John W. McClarty, Chattanooga, Tennessee, for the appellant, Donald Jamison.
Laura Beth Rufolo and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellees, Harrell
and Karen Ulrich.
Judge: LEE
The issue presented in this case is whether the policemen and firemen's rule applies to an animal
control officer who was bitten by a Doberman pinscher while performing the duties of his
employment. The plaintiff, an animal control officer for the Chattanooga Police Department,
was bitten when, in the course and scope of his employment, he attempted to take possession of
the defendants' dog at their home. The plaintiff sued the defendants for compensatory damages,
claiming that they were negligent in failing to warn him about the dangerous nature of the dog.
The trial court granted the defendants' motion for summary judgment upon its determination that
the dog's owners owed no duty to the plaintiff under the circumstances pursuant to the
policemen and firemen's rule which precludes police officers and firefighters from recovering
for injuries arising out of risks peculiar to their employment. Upon review, we find that the
dog's owners owed no duty of ordinary care to the animal control officer and therefore, we
affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCA/2006/jamisond022206.pdf
ROBIN KUYKENDALL v. MARGARET HARPER
Court: TCA
Attorneys:
Robin S. Kuykendall, Knoxville, Tennessee, pro se.
Margaret E. Harper, Loudon, Tennessee, pro se.
Judge: FRANKS
Plaintiff sued for attorney's fees under contract of employment with defendant. The Trial Court
awarded Judgment for fees. Both parties appealed. We affirm.
http://www.tba2.org/tba_files/TCA/2006/kuykendallr022206.pdf
PROGRESSIVE FUNDING, INC., a Tennessee Corporation, v. HENRY HOOVER, a/k/a HENRY N. HOOVER, JR., a/k/a H.N. HOOVER, JR.
Court: TCA
Attorneys:
Henry N. Hoover, Jr., Jamestown, Tennessee, pro se.
Kenneth M. Chadwell, Crossville, Tennessee, for appellee.
Judge: FRANKS
In an action to quiet title, the Trial Court granted plaintiff summary judgment and defendant appealed. We affirm the Trial Court.
http://www.tba2.org/tba_files/TCA/2006/progressive022206.pdf
SHIELDS MOUNTAIN PROPERTY OWNERS ASSOCIATION, INC., ET AL. v. MARION A. TEFFETELLER, ET AL.
Court: TCA
Attorneys:
Barbara J. Muhlbeier and Erica Taylor Greene, Knoxville, Tennessee for the Appellants, Marion
A. Teffeteller and Charlene A. Teffeteller.
Brian T. Mansfield, Sevierville, Tennessee for the Appellees, Shields Mountain Property Owners
Association, Inc., a Tennessee nonprofit corporation and James R. Hall and wife, Terri L. Hall.
Judge: SWINEY
Shields Mountain Property Owners Association, Inc., James R. Hall, and Terri L. Hall
(Plaintiffs) sued Marion A. Teffeteller and Charlene A. Teffeteller (Defendants) seeking,
among other things, to enforce restrictive covenants and enjoin Defendants from renting their
property in Shields Mountain Estates for overnight vacation purposes. The Trial Court found
and held, inter alia, that the covenants and restrictions at issue are applicable to the lots within
Shields Mountain Estates including Defendants' lots; that Defendants' use of their lots for
vacation rentals is a violation of the covenants and restrictions; and that Defendants are
permanently enjoined from using property they own in Shields Mountain Estates for vacation
rentals. Defendants appeal to this Court. We affirm.
http://www.tba2.org/tba_files/TCA/2006/shieldsmt022206.pdf
BILLY SUDDARTH, JR, ET AL. v. HOUSEHOLD COMMERCIAL FINANCIAL SERVICES, INC., ET AL.
Corrected Case
Court: TCA
Attorneys:
G. Kline Preston, Nashville, Tennessee, for the appellants, Billy Suddarth, Jr., and Angela
Suddarth.
Neal H. Levin, Chicago, Illinois, and D. Alexander Fardon, Nashville, Tennessee, for the
appellee, Household Commercial Financial Services, Inc.
Judge: CLEMENT
Billy Suddarth, Jr. and Angela Suddarth appeal the summary dismissal of their action, which was
dismissed on the grounds of res judicata, collateral estoppel, the Full Faith and Credit Clause,
and the compulsory counterclaim rule of the Federal Rules of Civil Procedure. In the former
action in the United States District Court for the Northern District of Illinois wherein the
Suddarths were defendants, Household Commercial Financial Services, Inc. alleged the
Suddarths breached a guaranty agreement by failing to pay a deficiency owing on the underlying
credit agreement they had guaranteed. Household prevailed on the merits in the former action
against the Suddarths. In the present action in the Circuit Court of Davidson County the
Suddarths allege fraud, fraudulent inducement and civil conspiracy against Household and two
other defendants concerning the guaranty agreement that was the subject of the former action in
the United States District Court. The present claims by the Suddarths arose out of the same
transaction or occurrence that was the subject of Household's action in the United States District
Court; therefore, it was compulsory that the Suddarths' claims be presented in the former action.
The Suddarths failed to do so. Therefore, we affirm the dismissal of this action.
Corrected Case; originally published 2/13/2006
http://www.tba2.org/tba_files/TCA/2006/suddarthb_corr022206.pdf
STATE OF TENNESSEE v. TIM FLOOD
Court: TCCA
Attorneys:
R. Dwight Foster and Julie Foster, Knoxville, Tennessee (at trial); and Leslie M. Jeffress,
Knoxville, Tennessee (on appeal), for the Appellant, Tim Flood.
Paul G. Summers, Attorney General & Reporter; Leslie Price, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: WITT
The defendant, Tim Flood, appeals from his Knox County Criminal Court jury convictions of
four counts of rape of a child, for which he received an effective sentence of 40 years in the
Department of Correction. On appeal, the defendant claims that the convictions are unsupported
by the evidence and that the trial court erred in refusing to allow a proposed defense witness to
testify. Because the refusal to permit the defendant to call a witness was error, we reverse the
convictions and remand the case.
http://www.tba2.org/tba_files/TCCA/2006/floodt022206.pdf
STATE OF TENNESSEE v. SHANNON A. HOLLADAY
Corrected Case with Concurring Opinion
Court: TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney
General, for the appellant, State of Tennessee.
J. Thomas Marshall, Jr., District Public Defender, for the appellee, Shannon A. Holladay.
Judge: TIPTON
An Anderson County grand jury indicted the defendant, Shannon A. Holladay, for one count of
vehicular homicide by intoxication, a Class B felony, and one count of vehicular homicide by
recklessness, a Class C felony. Before trial, the defendant filed a motion to suppress the
evidence obtained from the air bag sensor module in the defendant's car, which the Anderson
County Criminal Court granted. The state appeals, contending that the trial court erred in
granting the defendant's motion to suppress. We dismiss this case for lack of jurisdiction.
Corrected Case; originally published 2/08/2006
http://www.tba2.org/tba_files/TCCA/2006/holladays_corr022206.pdf
Concurring Opinion
http://www.tba2.org/tba_files/TCCA/2006/holladays_con_corr022206.pdf
Membership of Fiscal Review Committee
TN Attorney General Opinions
Date: 2006-02-21
Opinion Number: 06-036
http://www.tba2.org/tba_files/AG/2006/ag_06-36.pdf
Applicability of the Blind Vendors Program, Tenn. Code Ann. Sec. 71-4-501, et seq., to Fire Stations
TN Attorney General Opinions
Date: 2006-02-21
Opinion Number: 06-037
http://www.tba2.org/tba_files/AG/2006/ag_06-37.pdf
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| TODAY'S NEWS |
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Legal News
Legislative News
Passages
TBA Member Services
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| Legal News |
| Knoxville lawyer appointed to vacant judgeship |
| Knox County commissioners yesterday appointed long-time Knoxville lawyer Jimmy Kyle Davis as a general sessions court judge. Davis beat out three other candidates for the interim appointment replacing Brenda Waggoner, who took early medical retirement last month. The term runs through Aug. 31. |
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| Sumner County seeks third judge |
| The Sumner County Bar Association recently adopted a motion requesting that the county commission create a third general sessions judgeship. The county commission has announced that it will consider the proposal on Feb. 27. Read more about the story in |
the Ashland City Times
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| 15th Judicial District candidates finalized |
| Candidates for judicial offices in the 15th Judicial District include: John D. Wooten Jr., who is running unopposed for circuit court judge; C.K. Smith, who is running unopposed for chancellor; Comer L. Donnell, who is running unopposed for public defender; and Tom P. Thompson Jr., who is running unopposed for district attorney. A contested election for criminal court judge pits Robert "Bobby" Hibbett against James O. Bond. |
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| Referee resigns court position |
| Last week Cynthia Chapman resigned her post as referee for Knox County Juvenile Court Judge Tim Irwin, who recently took office. She served in the position for eight years under the late Juvenile Judge Carey Garrett. Read more about her tenure in the |
Knoxville News Sentinel
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| High court declines to hear Tenn. optometry case |
| The U.S. Supreme Court today refused to hear a case involving a 1967 Tennessee law that prevents retail optical stores from hiring optometrists and offering one-stop shopping for eye care. National retailers such as LensCrafters filed suit arguing that the law was discriminatory. In 2003, U.S. District Court Judge Aleta Trauger ruled the law was fair. The high court's action today allows her ruling to stand. Read more about the case in this article by the |
Knoxville News Sentinel
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| Legislative News |
| Lawmakers rush to limit eminent domain |
| At least 29 bills have been filed by state lawmakers in the wake of a U.S. Supreme Court ruling last summer that reinforced governments' broad powers to take private property to build projects believed to be of greater economic value. Read more about the bill and the issues at stake in the |
Tennessean
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| Track legislation of interest to Tennessee attorneys |
| The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a position on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community. |
TBA Bill Tracking Service
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| Passages |
| Retired judge, Horton, passes away |
| Retired U.S. District Court Judge Odell Horton, 77, passed away today in Memphis. A 1956 graduate of the Howard University School of Law, Horton had a long and distinguished legal career in Tennessee. He operated a private practice in Memphis for five years before serving as assistant U.S. attorney for the Western District of Tennessee, a post he held for six years. In 1969, he was elected to the Shelby County Criminal Court and then appointed to the U.S. bankruptcy court in the western district. He was nominated to the U.S. District Court in the state's western district in 1980, serving as chief judge for seven years. Horton assumed senior status in May 1995. Funeral arrangements were not available at press time. |
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