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Tuesday, February 28, 2006

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Senate Judiciary Committee begins budget hearings

The Senate Judiciary Committee today began reviewing the budgets of agencies under its jurisdiction. First up was the District Attorneys General Conference for which the committee recommended about half of the new positions the weighted caseload study indicates are needed. The committee number came in at 31 new positions. The committee also reviewed district attorneys' needs and recommended additional funding for expert and interpreter services and victim witness coordinators. The public defenders were up next with one expansion request for 40 new positions; the committee recommended 19. Finally, Attorney General Paul Summers presented his budget request of $3,050,000, which includes funds to increase entry-level salaries from $40,000 to $48,000. A new loan relief program proposed by Summers was deferred for two weeks to allow the committee to gather additional information about the proposal. The TBI budget was approved as submitted by Governor Bredesen.

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.
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_corr022806.pdf

Corrected Judgment
http://www.tba2.org/tba_files/TSC/2006/calawayk_jud022806.pdf

Dissenting Opinion by HOLDER and ANDERSON
http://www.tba2.org/tba_files/TSC/2006/calawayk_diss022806.pdf

STATE OF TENNESSEE v. DAVID IVY

With Dissenting/Concurring Opinion and Appendix

Court: TSC

Attorneys:

Robert Wilson Jones, Public Defender; Tony N. Brayton, Assistant Public Defender; and Garland Ergüden, Assistant Public Defender, Memphis, Tennessee, for the Appellant, David Ivy.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy Weirich, Assistant District Attorney General; and Gerald Harris, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ANDERSON

The defendant, David Ivy, was convicted of premeditated first degree murder and was sentenced to death. In imposing a death sentence, the jury found that two aggravating circumstances, i.e., the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person and the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, had been established beyond a reasonable doubt. Tenn. Code Ann. Sec. 39-13-204(i)(2) and (6) (Supp. 1999). In addition, the jury determined that the evidence of aggravating circumstances outweighed the evidence of mitigating circumstances beyond a reasonable doubt. Id. at (c). The Court of Criminal Appeals affirmed the convictions and the death sentence.

After the appeal was docketed in this Court, we entered an order identifying eight issues for oral argument. Having reviewed the record and applicable authority, we now hold that: 1) the evidence was sufficient to support the first degree murder conviction; 2) the trial court did not err in impaneling an anonymous jury; 3) the trial court properly ruled that the victim's statements were admissible under the "forfeiture by wrongdoing" hearsay exception; 4) the evidence supported the jury's findings that the two aggravating circumstances were proven beyond a reasonable doubt; 5) the trial court erred during the sentencing phase in instructing the jury that two of the five prior felony convictions relied on by the prosecution involved violence to a person, but the error was harmless beyond a reasonable doubt; 6) the trial court erred in allowing the prosecution to introduce the defendant's prior indictment for first degree murder in the sentencing phase of the trial where the defendant had been convicted of second degree murder, but the error did not affect the outcome; 7) the trial court erred in ruling that defense counsel could not argue residual doubt as a mitigating circumstance during the sentencing phase, but the error did not affect the outcome; and 8) the evidence of aggravating circumstances outweighed the evidence of mitigating circumstances beyond a reasonable doubt, and the death sentence was not arbitrary or disproportionate. We also agree with the Court of Criminal Appeals' conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix. Thus, the Court of Criminal Appeals' judgment is affirmed.

Majority Opinion
http://www.tba2.org/tba_files/TSC/2006/ivyd022806.pdf

Opinion Dissenting in Part and Concurring in Part by BIRCH
http://www.tba2.org/tba_files/TSC/2006/ivyd_diss022806.pdf

Appendix (excerpts from the Court of Criminal Appeals' decision)
http://www.tba2.org/tba_files/TSC/2006/ivyd_app022806.pdf

AMSOUTH BANK v. ANNA CUNNINGHAM

Court: TCA

Attorneys:

John R. Colvin, Winchester, Tennessee, and Hugh P. Garner, Chattanooga, Tennessee, for the appellant, Anna Cunningham.

Michael H. Knowlton, Cookeville, Tennessee, and Joseph F. Edwards, Algood, Tennessee, for the appellee, AmSouth Bank.

Judge: CLEMENT

Anna Cunningham, the wife of a comatose veteran who suffered a stroke at a Veterans' Administration Medical Center in 1997, was appointed conservator of the estate and person of her husband at the inception of the conservatorship in 1997. In 2000, AmSouth Bank filed a petition to be appointed conservator of the estate of the ward, contending Mrs. Cunningham was not properly attending to the ward's financial affairs. The bank was appointed conservator of his estate to serve along with Mrs. Cunningham who would continue to serve as conservator of the person. No appeal was taken from that order. Thereafter, a power struggle between the co-conservators ensued concerning the civil action Mrs. Cunningham commenced and was maintaining in federal court on behalf of the ward and herself against the Department of Veterans' Affairs. Countervailing pleadings were filed by the co-conservators. The bank sought exclusive control over the federal litigation and Mrs. Cunningham sought to remove the bank as a conservator. Following a brief hearing, the probate court designated AmSouth as having "exclusive control" of the ward's interest in the federal litigation. Mrs. Cunningham appeals contending she was entitled to an evidentiary hearing prior to any modification of her powers as a conservator and that she was denied an evidentiary hearing on her petition to remove AmSouth. We affirm the probate court's decision to act expediently in its continuing supervision of the conservatorship based upon what it believed to be the ward's best interest; however, we remand Mrs. Cunningham's petition to remove AmSouth as a conservator, finding the record sufficient to entitle her to an appropriate hearing.

http://www.tba2.org/tba_files/TCA/2006/cunningham022806.pdf

PHILLIP DORROUGH v. TENNESSEE BOARD OF PROBATION & PAROLE

Court: TCA

Attorneys:

Patrick T. McNally, Nashville, Tennessee, for the appellant, Phillip Dorrough.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela S. Lorch, Senior Counsel, Attorney General's Office, for the appellee, Tennessee Board of Probation and Parole.

Judge: CLEMENT

This appeal involves a prisoner's challenge to a decision of the Tennessee Board of Probation and Parole and the application of a 1997 amendment to Tenn. Code Ann. Sec. 40-28-105, which was subsequent to his conviction, that requires four votes in favor of parole for prisoners convicted of certain crimes to be paroled. The statute previously required only three favorable votes in order to be paroled. The prisoner contends the part of the amendment that specifies it applies to persons "who may now be serving a sentence in a state or county correctional facility" violates statutory law as well as the ex post facto clauses of the United States Constitution and the Tennessee Constitution. The Chancery Court dismissed the complaint. We affirm.

http://www.tba2.org/tba_files/TCA/2006/dorroughp022806.pdf

IN THE MATTER OF: THE ESTATE OF ROOSEVELT DUKES, DECEASED

Court: TCA

Attorneys:

Johnny D. Hill, Jr., Fayetteville, Tennessee, for the appellant, Rosemary Sebastian, Executor of the Estate of Roosevelt Dukes.

James S. Hereford, Jr., Fayetteville, Tennessee, for the appellee, Nell M. Shubert.

Judge: CLEMENT

The matters at issue pertain to claims made against a decedent's estate. Nell Shubert timely filed four claims against the Estate of Roosevelt Dukes for: (1) the balance owing on two promissory notes, (2) property taxes paid on behalf of the decedent, (3) rent on real property, and (4) the purchase of a bush hog. The executrix filed exceptions to all claims. After the time passed for filing claims, Ms. Shubert amended her claim on the promissory notes to add a request for attorney fees. The trial court ruled in favor of Ms. Shubert on the promissory notes including the claim for attorney fees but denied all other claims. We affirm with one exception, finding Ms. Shubert is entitled to recover property taxes paid on behalf of Mr. Dukes to preserve the property.

http://www.tba2.org/tba_files/TCA/2006/dukesr22806.pdf

EFFIE LOUISE HAYES v. ROGER STRUTTON, BETTY STRUTTON, and GARY E. LESTER

Court: TCA

Attorneys:

Effie L. Hayes, Chattanooga, Tennessee, pro se.

Gary E. Lester, Chattanooga, Tennessee, for appellees.

Judge: FRANKS

Plaintiff's action for damages for loss of her property due to defendants' fraud was dismissed by the Trial Court on the grounds that the issues had been decided adversely to plaintiff in prior actions involving these issues. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2006/hayese022806.pdf

DIANE MAYES v. JAMCO-KW, LLC, d/b/a ANDY ON CALL

Court: TCA

Attorneys:

Larry C. Vaughan, Knoxville, Tennessee, for appellant.

Mark A. Cowan, Morristown, Tennessee, for appellee.

Judge: FRANKS

The Trial Court refused to grant defendant's Tenn. R. Civ. P. Rule 60 Motion to Set Aside Judgment. On appeal, we reverse.

http://www.tba2.org/tba_files/TCA/2006/mayesd022806.pdf

TERRY WAYNE POTTS, ET AL. v. NASHVILLE ELECTRIC SERVICE

Court: TCA

Attorneys:

J. Russell Parkes, Wesley Mack Bryant, Columbia, Tennessee, for the appellant, Terry Wayne Potts, individually and as next friend of Jonathon Wayne Potts.

Gerald D. Neenan, Aubrey B. Harwell, III; Eugene W. Ward, Nashville, Tennessee, for the appellee, Nashville Electric Service.

Judge: COTTRELL

The trial court granted summary judgment to the defendant Nashville Electric Service in this lawsuit arising from an accident that occurred when an NES truck malfunctioned and came to a sudden stop on the interstate. Because NES conclusively demonstrated that no driver negligence caused the accident and resulting injury, and because the plaintiff failed to provide evidence disputing NES's evidence that it used reasonable care in its maintenance of the truck, we affirm the trial court's grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2006/pottst022806.pdf

ROGER THOMPSON, ET AL. v. RUBY TUESDAY, INC., a Tennessee Corporation for Profit, ET AL.

Court: TCA

Attorneys:

John W. Nolan, III and John Michael Garrett, Nashville, Tennessee, for the Appellants, Roger Thompson and Wife, Patsy Thompson.

Paul M. Buchanan and Julie Bhattacharya Peak, Nashville, Tennessee, for the Appellees, Ruby Tuesday, Inc. And Ruby Tuesday, LLC.

William B. Jakes, III, Nashville, Tennessee, for the Appellees, Owen, L.P. and Hold-Thyssen, Inc.

Judge: FARMER

Roger Thompson sustained injuries after tripping and falling over a speed bump in a parking lot of a shopping complex after exiting a Ruby Tuesday Restaurant. Mr. Thompson and his wife (the Plaintiffs) subsequently filed suit against Ruby Tuesday, Inc. as lessee of the restaurant premises, Owen L.P. as owner of the shopping complex, and Hold-Thyssen, Inc. as the lessee and manager of the shopping complex premises, including the parking lot area where Mr. Thompson fell. All of the defendants moved for summary judgment, which the trial court subsequently granted. The Plaintiffs appeal arguing that disputed issues of material fact exist from which a jury could render judgment in their favor against all defendants. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2006/thompsonr022806.pdf

CITY OF CLEVELAND v. MIKE WADE dba BABYLON ADULT BOOKSTORE

Court: TCA

Attorneys:

Michael M. Raulston, Chattanooga, Tennessee, for the appellant, Mike Wade dba Babylon Adult Bookstore.

John F. Kimball, Cleveland, Tennessee, and Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellee, City of Cleveland.

Judge: SUSANO

The defendant, Mike Wade, operates an adult establishment in Bradley County under the trade name of Babylon Adult Bookstore. He submitted an application to the City of Cleveland (the City), seeking to establish a second adult book and video store, this one to be located within the city limits of Cleveland. The City denied Wade�s application. It did so because it determined that the proposed store was a sex outlet and that Wade intended to operate it at a location within 750 feet of a residentially-zoned district, in violation of the pertinent zoning ordinance. The Cleveland City Council, and the trial court following a bench trial, affirmed the denial of the application. Wade appeals, arguing that the applicable ordinances of the City are content-based and unconstitutionally vague. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2006/wadem022806.pdf

CUMECUS R. CATES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Cumecus R. Cates.

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

Judge: WELLES

The Petitioner, Cumecus R. Cates, appeals from the summary dismissal of his petition for post- conviction relief. The trial court summarily dismissed the petition based on its determination that the underlying conviction was on appeal to this Court. It is from the order of dismissal that the Petitioner appeals. The State concedes that the trial court erred in summarily dismissing the petition. We reverse the judgment of the trial court and remand this case for further proceedings.

http://www.tba2.org/tba_files/TCCA/2006/catesc022806.pdf

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Court rules juror identities can be withheld

In a decision affirming the death sentence a Memphis man received for killing his girlfriend, the Tennessee Supreme Court has held for the first time that jurors' identities may be withheld if their safety could be jeopardized by disclosing their names to criminal defendants.