Legislative update: TBA-backed bills move;
med-mal measures await hearing next week


The second of two probate bills (HB0417/SB1599) that is part of the TBA package moved out of the House Judiciary Civil Practice Subcommittee today. Both that bill and one addressing changes in the elective share (SB1598/HB0418) are expected to be set for consideration in full committee next week.

Consideration of the bill (SB2001/HB1993) that limits medical malpractice awards and legislation (SB0033/HB1105) that requires pre-certification of such cases was delayed a week in the Senate Judiciary Committee.

The Senate Judiciary Committee spent most of the day hearing from victims of vicious dog bites, who were supporting legislation (SB0143/HB0108) that would end the common law "one bite rule." The bill was cleared for floor action.
TODAY'S OPINIONS
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Knoxville, Tennessee
Editor-in-Chief, TBALink

JAMES SNOW v. GOODYEAR TIRE & RUBBER CO.

Court: TWCA

Attorneys:

Jeffrey P. Bryd, Jackson, Tennessee, for the Appellant, James Snow

Randy N. Chism, Union City, Tennessee, for the Appellee, Goodyear Tire & Rubber Company

Judge: CORLEW

The Employee claimed an injury to his respiratory system, which the employer denied. The trial court dismissed the action finding that the evidence did not preponderate in favor of a causal connection between the respiratory condition and the employment. After consideration of the evidence, the Workers' Compensation Panel concludes that the evidence does not preponderate against the finding of the trial court affirms the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2007/snow_022707.pdf


KIM BROWN v. WILLIAM SHAPPLEY, M.D.

Court: TCA

Attorneys:

Kim Brown, pro se

Michael G. McLaren and Robert B. Shappley, Memphis, Tennessee, for the appellee, William Shappley, M.D.

Judge: FARMER

We affirm the trial court's award of summary judgment to Defendant physician in this medical malpractice action.

http://www.tba2.org/tba_files/TCA/2007/brownk_022707.pdf


CHARLES BRYAN FARMER v. TENNESSEE DEPARTMENT OF SAFETY

Court: TCA

Attorneys:

Michael E. Moore, Acting Attorney General and Reporter, and William J. Marett, Jr., Nashville, Tennessee, for the Appellant, Tennessee Department of Safety

Arthur F. Knight, III, Knoxville, Tennessee, for the Appellee, Charles Bryan Farmer

Judge: SWINEY

Charles Bryan Farmer (Plaintiff) was employed by the Tennessee Highway Patrol for twenty-two years when his employment was terminated in May of 2004. Plaintiff filed suit in federal district court asserting various federal causes of action. Plaintiff also asserted a claim pursuant to the Tennessee Public Protection Act (the PPA), Tenn. Code Ann. Section 50-1-304. Plaintiff sued several defendants including the State of Tennessee, Department of Safety (the State). The State filed a motion to dismiss the state law PPA claim on the basis that the filing of that claim in federal court violated the Eleventh Amendment to the United States Constitution. The State later agreed to Plaintiff's voluntary dismissal without prejudice of the PPA claim. Plaintiff later refiled his PPA claim but this time in state court. The State filed a motion to dismiss claiming the one-year statute of limitation on the PPA claim had run. Plaintiff argued his PPA lawsuit was "saved" by application of the saving statutes, Tenn. Code Ann. Section 28-1-105 and/or 28-1-115. Plaintiff also claimed that by agreeing to a dismissal without prejudice of the PPA claim, the State effectively waived any right to claim the saving statutes did not "save" Plaintiff's PPA claim. The Trial Court concluded that the State had waived its right to claim the saving statutes did not apply to save Plaintiff's claim. We reverse the judgment of the Trial Court and dismiss this case.

http://www.tba2.org/tba_files/TCA/2007/farmerc_022707.pdf


PARRIS ROOFING & SHEETMETAL CO. v. SCR ELECTRIC, INC.

Court: TCA

Attorneys:

Robert S. Thompson, Cleveland, Tennessee for the Appellant, Parris Roofing & Sheetmetal Co.

Erskine P. Mabee, Chattanooga, Tennessee for the Appellee, SCR Electric, Inc.

Judge: SWINEY

Parris Roofing & Sheetmetal Co. (Plaintiff) sued SCR Electric, Inc. (Defendant) seeking, in part, payment for work Plaintiff had done pursuant to an alleged agreement between Plaintiff and Defendant. The case was tried without a jury and the Trial Court entered an order finding and holding, inter alia, that Plaintiff and Defendant did not have an enforceable agreement, but that Plaintiff was entitled to recover $3,613.50, from Defendant in quantum meruit. Plaintiff appeals to this Court claiming that the Trial Court erred in finding that the reasonable value of the work performed was only $3,613.50. We affirm.

http://www.tba2.org/tba_files/TCA/2007/parrisr_022707.pdf


TENN-FLA PARTNERS v. HENRY C. SHELTON, III, ET AL.

Court: TCA

Attorneys:

Bruce Kramer, Scott A. Kramer, Memphis, Tennessee, for the appellant, Tenn-Fla Partners

Jeff Feibelman, Mary Hale, Memphis, Tennessee, for the appellees, Henry C. Shelton, III; C. Bradford Foster, III; Evans & Petree, A Partnership

Judge: CAIN

Client appeals the dismissal of its legal malpractice action against the attorneys who represented it in a bankruptcy proceeding. The trial court determined that the action was barred by the Statute of Limitations and that there were no grounds upon which the trier of fact could find that the loss alleged by the client was caused by any negligent act or omission of the defendants. We affirm.

http://www.tba2.org/tba_files/TCA/2007/tennfla_022707.pdf


IN RE TIFFANY B.

Court: TCA

Attorneys:

Christopher W. Barber, Clarksville, Tennessee, for the appellant, Anthony G.

Merriel Bullock Neal, Clarksville, Tennessee, for the appellant, Tammy G.

Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Childrenís Services

Gregory D. Smith, Clarksville, Tennessee, Guardian Ad Litem

Judge: KOCH

This appeal involves the termination of the parental rights of the biological parents of a six-year-old girl. Approximately fourteen months after the emergency removal of the child and her half-brother from their parents' custody, the Tennessee Department of Children's Services filed a petition in the Montgomery County Juvenile Court to terminate the parental rights of both parents. Following a hearing, the juvenile court found that both parents had willfully abandoned their daughter and had willfully failed to comply with the requirements of their daughter's permanency plans and that the conditions that warranted the original removal of the child still persisted. Therefore, the court concluded that terminating the parents' parental rights was in the child's best interests. Both parents have appealed. We have determined that the Department failed to present sufficient evidence to demonstrate clearly and convincingly that it exercised reasonable care and diligence to provide services to the parents that would have enabled the Department to reunify the family.

http://www.tba2.org/tba_files/TCA/2007/tiffanyb_022707.pdf


SUZANNE WISDOM, ET AL. v. TERANCE ALAN CARDER, ET AL.

Court: TCA

Attorneys:

John Thomas Feeney, Catheryne L. Grant, Nashville, Tennessee, for the appellants, Terance Alan Carder, Wonda Carroll and Wonda Carroll Trucking

Paul B. Plant, J. Christopher Williams, Lawrenceburg, Tennessee, for the appellees, Suzanne Wisdom, and Husband, Kerry Wisdom

Judge: COTTRELL

A trucking company appeals the amount of personal injury damages awarded after a bench trial wherein the trucking company stipulated as to liability. Because we conclude that the evidence does not preponderate against the trial court's findings as to damages, we affirm.

http://www.tba2.org/tba_files/TCA/2007/wisdoms_022707.pdf


STATE OF TENNESSEE v. JOHNNY L. BURNS

Court: TCCA

Attorneys:

Jeffery A. DeVasher (on appeal), Amy D. Harwell and Virginia Flack (at trial), Nashville, Tennessee, for the appellant, Johnny L. Burns

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The appellant, Johnny L. Burns, was convicted by a jury in the Davidson County Criminal Court of selling less than .5 grams of cocaine within 1,000 feet of a school zone. He was sentenced as a Range I standard offender to eleven years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's instruction on the lesser-included offense of casual exchange and the length of the sentence imposed. Upon review of the record and the parties' briefs, we reverse the judgment of the trial court based upon erroneous jury instructions and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2007/burnsj_022707.pdf


STATE OF TENNESSEE v. JERMAINE RASHAD CARPENTER

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and William A. Kennedy, Assistant District Public Defender, for the Appellant, Jermaine Rashad Carpenter

Robert E. Cooper, Jr., Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Teresa Murray Smith, Assistant District Attorney General, for the Appellant, State of Tennessee

Judge: WITT

The defendant, Jermaine Rashad Carpenter, appeals from the Sullivan County Criminal Court's orders revoking his community corrections and probationary sentences. The record supports the orders of revocation, and we affirm the criminal court's orders but remand for the correction of a clerical error in one judgment.

http://www.tba2.org/tba_files/TCCA/2007/carpenterj_022707.pdf


STATE OF TENNESSEE v. GRANDON DAY

Court: TCCA

Attorneys:

John H. Henderson, District Public Defender, for the appellant, Grandon Day

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WILLIAMS

Grandon Day, the defendant, after convictions on fourteen counts of aggravated kidnapping (Class B felony) and five counts of aggravated assault (Class C felony), now appeals. Specifically, the defendant contends that two aggravated kidnapping convictions should have been merged into aggravated assault convictions. Secondly, the defendant asserts that the trial courtís imposition of a fine totaling $82,500 was excessive and improper in any amount, due to the defendantís indigency. After careful review, we have concluded that the kidnappings in question were separate and distinct offenses to the aggravated assaults. We have further determined that the fines imposed were appropriate under the sentencing guidelines and were not excessive. Accordingly, the judgments of conviction are affirmed.

http://www.tba2.org/tba_files/TCCA/2007/dayg_022707.pdf


DEMOND GARDNER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory Carman, Memphis, Tennessee, for the Appellant, Demond Gardner

Robert E. Cooper, Jr., Acting Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; Chris Scruggs, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WEDEMEYER

The Petitioner, Demond Gardner, filed a pro se petition for post-conviction relief claiming that he received the ineffective assistance of counsel. After appointing the Petitioner counsel and holding a hearing, the post-conviction court denied relief. The Petitioner filed this appeal, contending that he received the ineffective assistance of counsel. Finding no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/gardnerd_022707.pdf


STATE OF TENNESSEE v. MICHAEL D. GILLIAM

Court: TCCA

Attorneys:

Jeffrey S. Grimes, Clarksville, Tennessee, for the appellant, Michael D. Gilliam

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; John W. Carney, District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

The Defendant, Michael D. Gilliam, appeals from the order of the Montgomery County Circuit Court revoking his probation and ordering that his eight-year sentence be served in the Department of Correction. In December of 2003, the Defendant pled guilty to possession of .5 grams or more of cocaine for resale and received an eight-year sentence. The sentence was suspended following service of twenty days in the county workhouse, and the Defendant was placed on probation. On June 23, 2005, a warrant was issued, wherein it was alleged that the Defendant violated the conditions of his probation. After a hearing, the trial court concluded that the Defendant violated the conditions of his probationary sentence and ordered that his original eight-year sentence to the Department of Correction be reinstated. On appeal, the Defendant argues that the trial court abused its discretion by revoking his probation and ordering that his sentence be served in confinement. After a review of the record, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/gilliamm_022707.pdf


STATE OF TENNESSEE V. JIMMY WAYNE GREEN

Court: TCCA

Attorneys:

Michael R. Giaimo, Livingston, Tennessee (on appeal) and Colin Morris, Jackson, Tennessee (at guilty plea hearing and sentencing) for the appellant, Jimmy Wayne Green

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WEDEMEYER

The Defendant, Jimmy Wayne Green, was indicted for theft of property and two counts of assault. In accordance with a plea agreement, he submitted a best interest plea to one count of assault in exchange for the State dismissing the other count of assault and the theft charge. The trial court accepted the plea and sentenced the Defendant to eleven months and twenty-nine days, thirty days of which was to be served in confinement with the remainder to be served on probation. The Defendant now appeals, contending that the trial court erred when it sentenced him. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/greenj_022707.pdf


RICHARD MADKINS v. STATE OF TENNESSEE and RICKY BELL, Warden

Court: TCCA

Attorneys:

Dominic Joseph Leonardo, Nashville, Tennessee, for the Appellant, Richard Madkins

Robert E. Cooper, Jr., Attorney General & Reporter; and Elizabeth B. Marney, Assistant Attorney General, for the Appellee, State of Tennessee

Judge: WITT

The petitioner, Richard Madkins, filed a February 2005 Davidson County Criminal Court petition for habeas corpus relief from his 1994 jury-tried conviction of especially aggravated robbery, for which he was originally sentenced to a term of 60 years and re-sentenced in 2003 to a term of 25 years. Before the habeas corpus court, the petitioner argued that he was illegally re-sentenced because the 1994 jury verdict and conviction were void and because, instead of re-sentencing, he should have been immediately released from custody. Following a hearing, the habeas corpus court dismissed the petition, and we affirm.

http://www.tba2.org/tba_files/TCCA/2007/madkinsr_022707.pdf


STATE OF TENNESSEE v. DONTE MONTGOMERY

Court: TCCA

Attorneys:

Byron B. Winsett, III, Memphis, Tennessee, for the Appellant, Donte Montgomery

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; Chris Scruggs, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WEDEMEYER

The Petitioner, Donte Montgomery, pled guilty to one count of possession with the intent to sell more than 0.5 grams of cocaine, and the trial judge imposed a sentence of six years in the workhouse as a standard offender. The Petitioner filed a petition for post-conviction relief, which was dismissed by the post-conviction court after a hearing. On appeal, the Petitioner contends he was not afforded the effective assistance of counsel, and his guilty plea was not voluntarily entered. We affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/montgomeryd_022707.pdf


STATE OF TENNESSEE v. MIRANDA SEXTON

Court: TCCA

Attorneys:

P. Richard Talley and Christopher D. Brown, Dandridge, Tennessee, for the Appellant, Miranda Sexton

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WITT

The defendant, Miranda Sexton, appeals from the Hamblen County Criminal Court's denial of alternative sentencing in case numbers 05CR471, containing three counts, and 05CR472, containing five counts. The record supports the courtís order, and we affirm. However, we remand for correcting all judgments in case number 05CR471, for the correction of the judgments in counts one through four in case number 05CR472, and for the adjudication of count five in case number 05CR472.

http://www.tba2.org/tba_files/TCCA/2007/sextonm_022707.pdf


Constitutionality of ban on in-session contributions

TN Attorney General Opinions

Date: 2007-02-26

Opinion Number: 07-20

http://www.tba2.org/tba_files/AG/2007/ag_07-20.pdf

TODAY'S NEWS

Legal News
Passages
Upcoming
TBA Member Services

Legal News
Shelby County Juvenile Judge speaks out
Shelby County Juvenile Judge Curtis Person responded to criticism of the court in a Commercial Appeal column, saying he is "appalled by the misinformation and falsehoods that have been spread." Taking on county commissioners who have raised questions about the court, Person condemns their "outrageous rhetoric, misinformation and discourteous treatment."
Read Person's response
Civil rights era cases get second look
The Department of Justice and the FBI announced today that dozens of cold cases involving racially motivated slayings in the South during the 1950s and '60s would be reopened. The Southern Poverty Law Center has identified 74 cases in 11 states, including three in Tennessee, which could be considered, according to the Daily News Journal.
Read highlights of the cases
Paper responds to threatening comment
The Knoxville News-Sentinel's editor and publisher have issued an open letter to readers responding to a county commissioner's comment that the county should stop running advertisements and notices in the paper. The paper, which took the comment as a threat of retaliation for an open meetings lawsuit it has filed against the commission, says it will not be intimidated.
Read the letter
Blogging prosecutors raise eyebrows
Prosecutors from California to Kentucky are using online blogs to tackle issues ranging from news coverage and court decisions to politics and their own accomplishments. The trend is raising questions about ethical impropriety, legality and plain common sense. But some see the development as a positive move toward more open government.
Read about these differing views in the News Sentinel
Claiborne sheriff charged with rape
Claiborne County Sheriff David Ray was formally charged today with raping a teenage girl on two separate occasions. Ray surrendered voluntarily to authorities in Sneedville and was released after posting $100,000 in bond. An arraignment is scheduled for April 2.
Read more in the News Sentinel
First Amendment Moot Court title goes to George Mason
George Mason University School of Law won first place in the 17th Annual National First Amendment Moot Court Competition, co-sponsored by the First Amendment Center and Vanderbilt University Law School. The Feb. 22-23 competition featured two-person teams from 35 law schools arguing a hypothetical U.S. Supreme Court case involving lawyer advertising.
Read more about the competition
TBA member receives prestigious award
James Blumstein, a nationally renowned expert in health policy law and professor at Vanderbilt University Law School, has received the 2007 McDonald Merrill Ketcham Award. The award, which is given by the Indiana University School of Law, honors a scholar whose work illuminates the intersection of the medical and legal professions.
Read more on the law school's site
Passages
Kingsport attorney dies
Kingsport attorney Cary Taylor, 58, suffered a heart attack and died Sunday while playing golf at Ridgefields County Club. Taylor, who earned his law degree from the University of Memphis in 1975, had recently opened a new law office with his youngest son.
The Times-News covered local reactions to his passing
Upcoming
Mediation group to meet
The Tennessee Coalition for Mediation Awareness will meet at Lipscomb University's Ezell Center on March 6 from 10-11:30 a.m. to discuss how to raise awareness of peer mediation among public school students. The group, which is chaired by TBA Dispute Resolution Section Chair Marnie Huff, also will discuss creating a community mediation volunteer of the year award and plans for Mediation Day 2007. For more information or to attend, contact Huff at marniehuff@bellsouth.net

TBA Member Services
Free online legal research is newest TBA benefit
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
Log in now to try it out

 
 
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