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Tuesday, April 18, 2006

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House committee acts on unauthorized practice of law bill

The House Judiciary Committee today began work on its 72 item "final" calendar adopting recommendations on several bills and referring several to its "summer study" docket. Among the bills forwarded with recommendations for passage is TBA's bill to strengthen enforcement of the unauthorized practice of law statute. The committee's final, final calendar will be next week.

In other legislative action today: The Senate Commerce, Labor & Agriculture Committee cleared two bills addressing predatory lending. The bills, sponsored by Sens. Steve Southerland and James Kyle, establish new standards, limits and enforcement mechanisms for high-rate home equity lending. Read the bills and the amendments at SB3800 and SB3889.

Litigation loans, which testimony showed could go as high as 180 percent annually, would be brought under regulatory control under another bill recommended for passage at what Commerce Committee Chair Jerry Cooper announced was the last meeting of the committee.

Sorry Works! a medical apology, disclosure and remedy program being touted as one way to address medical professional liability got a thorough hearing today and is likely to be the subject of a special study during the off season.

The Senate Judiciary Committee heard from Sens. Doug Jackson and David Fowler, who are working on amendments to Jackson's bill fostered by the Farm Bureau. The committee may take up that legislation next week.

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.
Order of the Court

Court: TSC

Attorneys:

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

The appellants, Kaitlyn Calaway and Kathleen Calaway, filed a motion for rehearing of the opinion of this Court issued February 21, 2006. In their petition, the appellants request that the Court give prospective application of the newly announced rule to cases involving injuries occurring after December 9, 2005, rather than to cases commenced after this date. Upon due consideration, we conclude that the appellants' petition is not well-taken and should be denied. Also before the Court is a motion to rehear filed by the appellee, Dr. Jodi Schucker. Appellee argues violation of her Due Process rights on two grounds: (1) that she was not given the opportunity to respond to the plaintiff's motion to rehear on the matter of prospective application and (2) that prospective application of the new rule in a manner consistent with Due Process requires this Court to balance the appellant's reliance interest on the old rule against the appellee's vested property interest in the new rule. After careful consideration, the Court is of the opinion that this motion filed by the appellee should be denied. Justices Anderson and Holder adhere to the views previously expressed in their previously filed dissent.

Order of the Court
http://www.tba2.org/tba_files/TSC/2006/calawayk041806.pdf

Original Opinion
http://www.tba2.org/tba_files/TSC/2006/calawayk_corr022806.pdf

With Dissenting Opinion
http://www.tba2.org/tba_files/TSC/2006/calawayk_diss022806.pdf

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

TAMMY SEARLE v. JUVENILE COURT FOR WILLIAMSON COUNTY, TENNESSEE
Corrected Case

Court: TSC

Attorneys:

John E. Herbison, Nashville, Tennessee, for the Appellant, Tammy Searle.

Lisa M. Carson, Franklin, Tennessee, for the Appellee, Juvenile Court for Williamson County, Tennessee.

Judge: BIRCH

Pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, we granted permission to appeal in this case in order to address a question of first impression: whether the petitioner's current status as a fugitive prevents consideration of her habeas corpus petition. Because we conclude that the fugitive disentitlement doctrine bars consideration of this habeas corpus petition, we affirm the judgment of the Court of Appeals.

Correction in the second full paragraph on page four:
http://www.tba2.org/tba_files/TSC/2006/searlet_corr041806.pdf

US LEC OF TENNESSEE, INC. v. TENNESSEE REGULATORY AUTHORITY

Court: TCA

Attorneys:

Henry M. Walker and Kristy R. Godsey, Nashville, Tennessee, for the appellant, US LEC of Tennessee, Inc.

Carlos C. Smith and Mark W. Smith, Chattanooga, Tennessee, for the appellee, Electric Power Board of Chattanooga.

J. Richard Collier, Carolyn E. Reed, and Randall Gilliam, Nashville, Tennessee, for the appellee, Tennessee Regulatory Authority.

Judge: KOCH

This appeal involves a dispute between two telecommunications services providers in the Chattanooga market. A privately owned provider filed a complaint with the Tennessee Regulatory Authority asserting that a competing provider owned by a municipal electric utility was receiving an illegal cross-subsidy because the electric utility was permitting the provider to use its name without compensation. One of the Authority's hearing officers conducted a hearing and then filed an initial order concluding that the provider owned by the electric utility was not receiving a cross- subsidy in violation of Tenn. Code Ann. Section 7-52-402 (2005). After the initial order became final, the private provider filed a Tenn. R. App. P. 12 petition for review with this court. We have concluded that the provider's uncompensated use of the electric utility's name is not a cross-subsidy prohibited by Tenn. Code Ann. Section 7-52-402.

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

GLENN E. BILYEU v. VOLUNTEER STATE BANK

Court: TCA

Attorneys:

Allen Barnes, Nashville, Tennessee, for the appellant, Glenn E. Bilyeu.

John H. Lowe and Paul W. Duty, Goodlettsville, Tennessee, for the appellee, Volunteer State Bank.

Judge: KOCH

This appeal involves a dispute between a guarantor and a bank regarding the continuing enforceability of his guaranty. The guarantor filed suit in the Chancery Court for Sumner County asserting that a bank officer made an oral promise to relieve him of this guaranty obligation. The bank denied the allegation and moved for a judgment on the pleadings on the ground that the guarantor's claims violated the statute of frauds in Tenn. Code Ann. Section 29-2- 101(b)(1) (2000). The trial court granted the motion and dismissed the guarantor's claims. The guarantor has appealed. We affirm the dismissal of the guarantor's complaint.

http://www.tba2.org/tba_files/TCA/2006/bilyeug041806.pdf

WILLIAM RAL CROSS, JR. v. SHELBY COUNTY, TENNESSEE

Court: TCA

Attorneys:

Debra L. Fessenden, Memphis, Tennessee, for the Appellant, Shelby County, Tennessee.

Edward M. Bearman, Memphis, Tennessee, for the Appellee, William Ral Cross, Jr.

Judge: FARMER

Petitioner/Appellee Cross filed a complaint in federal court against Shelby County and Shelby County Deputy Sheriff Bishoff pursuant to 42 U.S.C. Section 1983. The federal court awarded Shelby County partial summary judgment and judgment as a matter of law. The action against Deputy Bishoff was heard by a jury, which awarded Mr. Cross damages and legal fees. Mr. Cross then filed a complaint in Shelby County Circuit Court alleging that, under Tennessee Code Annotated Section 8-8- 302, Shelby County was liable for the amount of damages awarded him in the federal court action. The trial court awarded Mr. Cross summary judgment, and Shelby County appeals. We reverse and award summary judgment to Shelby County on the grounds of res judicata.

http://www.tba2.org/tba_files/TCA/2006/crossw041806.pdf

TANYA GILLISPIE a/n/k SEAN GILLISPIE, DECEASED v. CITY OF KNOXVILLE, TENNESSEE

Court: TCA

Attorneys:

A. Philip Lomonaco, Knoxville, Tennessee, for the Appellant, Tanya Gillispie a/n/k Sean Gillispie, deceased.

Robert H. Watson and Reid A. Spaulding, Knoxville, Tennessee, for the Appellee, City of Knoxville, Tennessee.

Judge: LEE

This appeal arises out of a wrongful death action filed against the City of Knoxville under the Tennessee Governmental Tort Liability Act by Plaintiff Tanya Gillispie as next of kin of her son who was shot and killed by a police officer. Ms. Gillispie claimed that her son�s death was caused by the negligence of both the officer who shot her son and that officer�s assisting partner. The trial court entered judgment in favor of the City, and Plaintiff appeals upon grounds that the trial court's ruling was based solely upon its consideration of the actions of the shooting officer. Ms. Gillispie contends that the trial court committed reversible error in failing to consider whether the actions of the other officer were negligent. She also appeals the trial court's order denying her motion for new trial, arguing that a new trial before a different judge was warranted because the trial judge failed to disclose that his son is a deputy employed by the Knox County Sheriff's Department, and this fact created a reasonable question of bias. We affirm the judgment and order of the trial court upon our determination that the actions of the nonshooting officer were not the proximate cause of the death of Ms. Gillispie's son, and we affirm the trial court's order denying the motion for new trial upon our determination that Ms. Gillispie failed to submit evidence creating a reasonable question as to the trial judge's impartiality.

http://www.tba2.org/tba_files/TCA/2006/gillispiet041806.pdf

KEVIN MILLEN v. TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

Court: TCA

Attorneys:

Kevin Millen, Pro Se.

Paul G. Summers, Attorney General and Reporter and Lauren S. Lamberth, Assistant Attorney General, for the appellee, James Neeley, Commissioner of the Tennessee Department of Labor and Workforce Development.

Judge: FARMER

The Appellant filed a claim for unemployment benefits which was denied. Appellant petitioned for judicial review in the chancery court and that court affirmed the decision of the Board of Review. Appellant next appealed to this Court and we affirm the court below.

http://www.tba2.org/tba_files/TCA/2006/millenk041806.pdf

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. S.M.D. Re: D.J.D.; L.J.D.; Q.A.M.; D.I.M.M.; C.M.

Court: TCA

Attorneys:

Cara C. Welsh, Chattanooga, Tennessee for the Appellant, S.M.D.

Paul G. Summers, Attorney General and Reporter and Amy T. Master, Assistant Attorney General for the Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

The State of Tennessee, Department of Children's Services (the State) filed a petition to terminate S.M.D.'s (Mother) parental rights to five minor children (the Children). The case was tried and the Juvenile Court entered its order on July 5, 2005, inter alia, terminating Mother's parental rights to the Children. Mother appeals claiming that there was no clear and convincing evidence to support the grounds for termination, that the Juvenile Court erred in restricting testimony, and that there was no clear and convincing evidence to support a finding that termination was in the best interest of these children. We affirm.

http://www.tba2.org/tba_files/TCA/2006/smd041806.pdf

STATE OF TENNESSEE v. RAYMOND GRIGGS

Court: TCCA

Attorneys:

Richard G. Rosser, Somerville, Tennessee (on appeal); Gary F. Antrican, District Public Defender; and Shana McCoy-Johnson, Assistant Public Defender (at trial), for the appellant, Raymond Griggs.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Terry Dycus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Following a search of his residence, Defendant, Raymond Griggs, was indicted on two counts. Count one charged possession of a schedule II controlled substance (cocaine) with intent to deliver .5 grams or more, and count two charged Defendant with being a convicted felon in possession of a handgun. Prior to trial, Defendant filed a motion to suppress all evidence obtained as a result of the search warrant. The trial court denied the motion. A jury trial was held and Defendant was convicted of count two, convicted felon in possession of a handgun. A mistrial was declared as to count one, presumably because the jury could not reach a unanimous verdict. Defendant filed a motion for new trial which the trial court subsequently denied. On appeal, Defendant argues that (1) the evidence presented at trial was insufficient as a matter of law to sustain the conviction of being a convicted felon in possession of a handgun, and (2) the trial court erred in failing to suppress the evidence obtained as a result of the search warrant. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/griggsr041806.pdf

STATE OF TENNESSEE v. MICHAEL JAMES GRUBB

Court: TCCA

Attorneys:

David W. Tipton, Bristol, Tennessee, for the appellant, Michael James Grubb.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Greeley Wells, District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

This is a direct appeal as of right from a conviction on a jury verdict for aggravated robbery. The Defendant was sentenced as a Range I, standard offender to twelve years in the Department of Correction. On appeal, the Defendant raises four issues: (1) the trial court erred in overruling his motion to suppress evidence obtained during a search of his car, (2) the trial court erred in allowing into evidence the preliminary hearing testimony of a police officer who was deceased at the time of trial, (3) the evidence was insufficient to find him guilty of aggravated robbery, and (4) his sentence is excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/grubbm041806.pdf

Constitutionality of Proposed Legislation Requiring a Person Arrested For a Violent Felony or Aggravated Burglary to Provide a Biological Specimen For DNA Analysis

TN Attorney General Opinions

Date: 2006-04-17

Opinion Number: 06-070

http://www.tba2.org/tba_files/AG/2006/ag_06-070.pdf

Applicability of the Open Meetings Act to the Tennessee School Boards Association

TN Attorney General Opinions

Date: 2006-04-17

Opinion Number: 06-071

http://www.tba2.org/tba_files/AG/2006/ag_06-071.pdf

Senate Bill 3813 Regarding Credit Cards

TN Attorney General Opinions

Date: 2006-04-17

Opinion Number: 06-072

http://www.tba2.org/tba_files/AG/2006/ag_06-072.pdf

TODAY'S NEWS

Legal News
Legislative News

Legal News

Armstrong Allen to dissolve

Armstrong Allen's 74-year run as one of Memphis' preeminent locally based independent law firms, both in terms of size and regional influence, is coming to an end. On Monday managing partner James McLaren said that the firm, along with its name, would cease to exist at the end of the month.