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Tuesday, February 20, 2007

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TBA legislative package carries initiatives in 5 areas

The Tennessee Bar Association legislative package this year contains initiatives in five broad areas, with eight bills already introduced to carry them out. A new construction lien law, a complete probate package, family law legislation, and bills dealing with ethics in lawmaking and judicial selection are all on tap. Read more about the legislation at the address below and watch TBA Today for stories and updates on this legislation and other measures on which the TBA is lobbying on your behalf.

http://www.tba2.org/tbatoday/legislation/2007/tbapackage_022007.html

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.

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Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

JEREMY FLAX, ET AL. v. DAIMLERCHRYSLER CORPORATION, ET AL.
Corrected Opinion

Court: TCA

Attorneys:

Theodore J. Boutrous, Jr., of Los Angeles, CA, Thomas H. Dupree, Jr., of Washington, D.C., Lawrence A. Sutter, of Franklin, TN, and Joy Day, of Franklin, TN, for the Appellants

Gail Vaughn Ashworth, of Nashville, TN, James E. Butler, Jr., of Atlanta, GA, George W. Fryhofer III, of Atlanta, GA, and Leigh Martin May, of Atlanta, GA, for the Appellees

Judge: HIGHERS

This appeal comes from a wrongful death action brought by the parents of an infant child who died from injuries suffered in an automobile accident. In 2001, the mother was one of several passengers involved in a collision in which a man, driving his pickup truck and speeding, rear- ended the minivan occupied by mother and her infant son. The plaintiff parents' infant son suffered a fatal injury when his head collided with the head of another occupant of the vehicle, who was seated in the passenger seat directly in front of the child and whose seat fell backwards during the accident. The mother and father of the deceased child brought suit against the manufacturer of the minivan and the man who drove the truck that struck the minivan. The parents' claims against the manufacturer were for wrongful death of their son as a result of the manufacturer's defective design of the front seat backs in the minivan and failure to warn of the defect, and the mother also brought a claim against the manufacturer for negligent infliction of emotional distress as a result of witnessing her son's injury. The jury found for the parents and awarded them $5 million in compensatory damages for the wrongful death claim, and awarded the mother $2.5 million for her negligent infliction of emotional distress claim. The jury also found that the manufacturer had acted recklessly and was liable for punitive damages. The trial court bifurcated the trial, and the jury returned a $98 million punitive damages verdict against the manufacturer. The trial court remitted the punitive damage award to $20 million. The manufacturer filed a timely notice of appeal to this Court alleging several errors at trial: that the parents' complaint contained an invalid ad damnum clause; that the plaintiff mother had not satisfied the proof requirements for a negligent infliction of emotional distress claim; that there was insufficient evidence of recklessness to support an award of punitive damages; that the trial court improperly recognized a post-sale duty to warn in Tennessee; numerous evidentiary errors and alleged discovery abuse warranting a mistrial; and excessive damage awards. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2007/flaxj_corr_022007.pdf

LYUBOV M. LEE v. DAVID CRAIG LEE

Court: TCA

Attorneys:

Wanda G. Sobieski, Diane M. Messer, and Cynthia L. Chapman, Knoxville, Tennessee, for the Appellant, Lyubov M. Lee

J.D. Lee, Knoxville, Tennessee, for the Appellee, David C. Lee

Judge: SWINEY

Lyubov M. Lee (Wife) and David C. Lee (Husband) were married in May of 1995, and divorced in May of 2003. The parties have one child, an eight year old son. The divorce was contentious, at best, and this behavior continued following the divorce. When the divorce was granted to Wife, the Trial Court ordered Husband to pay Wife's attorney fees of $65,000. The parties' continuing inability to agree on anything resulted in numerous post-divorce motions being filed, including petitions for contempt filed by both parties. Husband paid a total of $20,000 of Wife's post-divorce attorney fees. This appeal involves Wife's request for an additional $28,845 in post-divorce attorney fees. Following a hearing, the Trial Court refused to award Wife any additional attorney fees. The Trial Court also stated that it would not hear any future requests for attorney fees. Wife appeals. Finding no abuse of discretion, we affirm the Trial Court's judgment refusing to award Wife any additional attorney fees already incurred by the time of that hearing. However, we vacate that portion of the Trial Court's judgment holding that neither party could file a request for attorney fees in the future.

http://www.tba2.org/tba_files/TCA/2007/leel_022007.pdf

CARLTON B. PARKS v. STATE OF TENNESSEE, ET AL.

Court: TCA

Attorneys:

Carlton B. Parks, Chattanooga, Tennessee, pro se Appellant

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mary M. Bers, Senior Counsel, for the Appellees, State of Tennessee, Douglas A. Meyer, William H. Cox, III, and David W. Denny

Judge: LEE

The issue we address in this appeal is whether the trial court erred in granting the Defendants' motions to dismiss the Plaintiff's complaint, on grounds that the statute of limitations had run and that the Defendants were immune from liability under the doctrines of sovereign immunity, judicial immunity, and prosecutorial immunity. We hold that the trial court correctly found that the complaint was time-barred by the applicable statute of limitations, and that under the facts presented, the Defendants were entitled to absolute immunity from suit. We therefore affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2007/parksc_022007.pdf

JOSEPH W. SHEW, JR., ET AL. v. MICHAEL A. BAWGUS, ET AL.

Court: TCA

Attorneys:

James R. Wheeler, Jonesborough, Tennessee for the Appellants, Michael A. Bawgus, C. Alan Longmire, and Carolyn Lindsey King

Rick J. Bearfield, Johnson City, Tennessee for the Appellees, Joseph W. Shew, Jr., Nyoka Shew, Kenneth L. Lewis, and Shirley A. Lewis

Judge: SWINEY

Joseph W. Shew, Jr., Nyoka Shew, Kenneth L. Lewis, and Shirley A. Lewis (Plaintiffs) sued Michael A. Bawgus, C. Alan Longmire, and Carolyn Lindsey King (Defendants) seeking, in part, a declaratory judgment holding that an easement over Defendants' properties is thirty feet wide, or in the alternative, a judgment that the easement in its present state is unsafe and, therefore, Plaintiffs are entitled to a prescriptive easement thirty feet in width. After a bench trial, the Trial Court entered a Judgment finding and holding, inter alia, that the easement in question is thirty feet in width, or in the alternative, that an easement by prescription has been acquired by continued hostile, open, actual, and exclusive use of the easement by Plaintiffs and their predecessors in title since the establishment of the driveway within the easement in approximately 1950. Defendants appeal to this Court. We reverse.

http://www.tba2.org/tba_files/TCA/2007/shewj_022007.pdf

STATE OF TENNESSEE v. ALVIN W. ALLEN

Court: TCCA

Attorneys:

Robin Farber, Columbia, Tennessee, for the appellant, Alvin W. Allen

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Mike Bottoms, District Attorney General; and Christi Thompson, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

After a bench trial, the Maury County Circuit Court convicted the appellant of child rape and sentenced him to twenty years in confinement. In this appeal, the appellant claims (1) that the trial court erred by refusing to suppress his statement to police, (2) that the evidence is insufficient to support the conviction, and (3) that his sentence is excessive. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/allena_022007.pdf

TODAY'S NEWS

Legislative News
Legal News
Knox Term Limits
Passages
TBA Member Services

Legislative News

Cooper charged with DUI

State Senator Jerry Cooper, D-Morrison, has been charged with driving under the influence and speeding by the state Department of Safety. Officials obtained the arrest warrant in Rutherford County, where the Feb. 7 accident occurred. Cooper's attorney said the senator will surrender and be served with the warrant when he is physically able.

The City Paper has the story

Bredesen delivers new budget

Governor Phil Bredesen today delivered his fiscal year 2007-2008 budget proposal to the General Assembly. The $27.5 billion budget funds key priorities in education, job creation, public safety and conservation. For an overview

visit the governor's web site

GOP responds to proposal

With their new majority in the state Senate, the Tennessee GOP likely will challenge some of Bredesen's spending proposals. Read initial comments from Republican leaders in today's

News Sentinel

Stay current on legislation with TBA updates

The Tennessee General Assembly is tackling a number of bills of interest to Tennessee lawyers this session. Keep up with action on those bills with the TBA legislative Watch and Action lists.

Check out TBA legislative updates

Legal News

New judge selected to hear Maddox case

Chancellor Mitchell Lundy Jr. of Grenada, Miss., has been selected to preside over the Maddox Foundation case after the previous presiding judge was removed amid questions about his impartiality. It's the latest development in a three-year effort to return the organization to Tennessee.

The Tennessean has more

Pastor pays for Brooks' trip

In an attempt to diffuse controversy over Shelby County Commissioner Henri Brooks' recent taxpayer-funded trip to Washington, D.C., a Memphis pastor has paid $1,000 to cover the costs. Dr. LaSimba Gray appeared before the commission Monday afternoon, saying he had collected money from 30 families "who are concerned about justice" and want to stem controversy about the trip, which Brooks made to demand a federal investigation into the county's juvenile court system.

The Commercial Appeal reports

Cocke County detention center fails certification

An investigator with the Tennessee Corrections Institute has recommended that the Cocke County detention center not be certified until something is done about living conditions and overcrowding at the facility.

The Newport-Plain Talk has details

Sheriffs respond to jail overcrowding

Sheriffs in Unicoi, Washington and Carter counties are feeling the pinch of overcrowded jails but say they work with judges to help alleviate the strain.

The Johnson City Press has the story

State loses funds due to open-container law

Tennessee's open-container law, which restricts only drivers from having open alcoholic beverages in a car, will cost the state nearly $60 million in federal highway funding this year. Legislative efforts to expand the prohibition to all passengers have failed in the past three sessions. But recently, the state highway safety office and the governor's DUI task force recommended changing the law to comply with federal standards.

Learn more in the News Sentinel

Federal lawmakers hope to pass reporter shield law

The U.S. House of Representatives is preparing to fast-track long-stalled legislation that would shield reporters from revealing sources to federal prosecutors. While senators are preparing similar legislation, opposition from the Bush administration may make it difficult to proceed with debate in that chamber.

Learn more in the News Sentinel

Knox Term Limits

Commission rejects call for special election

Harsh words were exchanged this morning as Knox County commissioners narrowly voted against asking the state legislature to approve a special election to fill term-limited county offices. The vote was 10-8 with one abstention.

The News Sentinel has the story

Commission defeats motion to consider settlement offer

In other action today, the commission rejected a motion calling on one of its committees to review a settlement offer from the News Sentinel. The newspaper filed suit against the commission arguing that its deliberations to replace term-limited office holders violated the state's open-meetings law. The paper offered to drop the suit if the commission would reconsider the appointments in a public meeting. Commission Chairman Scott Moore rejected that idea saying the group did nothing wrong and would fight the lawsuit.