TBA-backed bills win passage; family torts, exclusionary rule bills bear watching

TBA-backed bills enjoyed strong support this week as they moved through the General Assembly, but there are several pieces of legislation scheduled for review next week that bear watching, along with a medical professional liability bill that could see action.


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


Court: TCA


David Zager, Nashville, Tennessee, for the appellant, Music City Record Distributors, Inc.

Alan T. Fister, Brentwood, Tennessee, for the appellee, E & A Northeast Limited Partnership.


The trial court granted summary judgment to a commercial landlord on its claim against a retail tenant for a deficiency in back rental payments. The tenant argues that it is not liable for any deficiency because it alerted the landlord by letter that it planned to reduce its monthly payments after a certain date and the landlord subsequently accepted and cashed a number of rental checks for the reduced amount. On appeal, the tenant argues that its actions served to modify the parties' agreement. In the alternative, the tenant argues that the landlord either waived its rights to the original rental amount or should be estopped from insisting on full payment. We affirm the trial court.



Court: TCA


Robert V. Redding and Jonathan O. Steen, Jackson, Tennessee, for the appellant, Estate of Paul Harris Nelson.

W. Collins Bonds and William D. Bowen, Milan, Tennessee, for the appellee, Margie Ruth Nelson Little.


This is an action in conversion, fraud, and breach of fiduciary duty instituted by will beneficiaries against the decedent's sister, who was also the Executrix of his estate. The threshold issue involves subject matter jurisdiction for this appeal. Although a recent amendment to the Tennessee Code would place appellate jurisdiction for this case in the trial court, we hold that a more specific, prior private act conferring appellate jurisdiction on this Court controls. The second, and pivotal, issue in this dispute involves the ownership of four certificates of deposit (CD) that were purchased by Mr. Paul Harris Nelson (Mr. Nelson), the decedent, and that were later claimed and cashed by Ms. Margie Little (Ms. Little), the Defendant/Appellee, just prior to the opening of the estate. The Estate of Mr. Nelson (the Estate) appeals the lower court's ruling that Ms. Little owned the CDs at the time of Mr. Nelson's death because the siblings held the CDs jointly with a right of survivorship. Thus, the Estate also appeals the court's findings of no conversion, fraud, or breach of fiduciary duty by Ms. Little with respect to the CDs. We affirm.



Court: TCA


William D. Leader, Jr., John B. Carlson, Nashville, TN, for Appellants

Steven E. Anderson, Sara F. Reynolds, Nashville, TN, for Appellee


This appeal comes from a medical malpractice case. The plaintiff underwent a bone marrow harvest procedure at a university hospital in April of 2003, after which the plaintiff began experiencing pain and numbness in his legs, back, and abdomen. The plaintiff and his wife filed a complaint against the university hospital alleging that the doctor and nurse performing the procedure had done so negligently and without the plaintiff's informed consent, and that the hospital was thus liable through respondeat superior. The plaintiff also alleged that the defendant had been directly negligent in its failure to properly supervise the attending doctor and nurse, but this claim was dismissed prior to trial. During discovery, the parties disputed the admissibility and nature of certain expert testimony and documents, and the trial court dealt with this evidence through its granting of specific motions in limine filed by the university hospital prior to trial. A jury trial was held, and the jury found for the defendant as to lack of informed consent and medical malpractice. The trial court granted the plaintiff a new trial on the informed consent claim, and it entered a final judgment in favor of the defendant on the medical negligence and negligent supervision claims. A timely appeal was filed to this Court. We reverse and remand for a new trial on both the medical malpractice and negligent supervision claims.



Court: TCCA


Charles Richard Hughes, Jr., District Public Defender, and William Carter Donaldson, Assistant Public Defender, for the appellant, Johnny Baxter.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Steve Bebb, District Attorney General; and Richard Newman and Wylie Richardson, Assistant District Attorneys General, for the appellee, State of Tennessee.


The defendant, Johnny Baxter, was convicted by a McMinn County jury of rape of a child, a Class A felony, for which he received a sentence of twenty years in the Department of Correction. In this appeal, he argues that the evidence was insufficient to sustain the conviction, that the trial court erred in failing to instruct the jury on child abuse as a lesser included offense, and that the trial court failed to account for mitigating proof in its sentencing determination. We hold that no error exists, and we affirm the judgment of the trial court.



Court: TCCA


Stephen M. Wallace, District Public Defender, and Terry L. Jordan, Assistant Public Defender, for the appellant, Tommy Lee Henry.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Tommy Lee Henry, was convicted by a Sullivan County jury of tampering with evidence, a Class C felony, and a third offense of possession of cocaine, a Class E felony. The defendant was sentenced as a Range I, standard offender to four years for the tampering conviction and two years for the possession conviction to be served concurrently in the Department of Correction. In this appeal, the defendant claims that the trial court erred in denying his motion to suppress. He claims that the police illegally detained him when they found him inside a parked car with two other individuals in a high-crime area at approximately 3:00 a.m. and that they illegally seized evidence during the detention. We hold that the trial court properly denied the motion, and we affirm its judgments.



Court: TCCA


Donald E. Dawson, Nashville, Tennessee, for the Appellant, Donnie E. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

In 1985, the Petitioner, Donnie E. Johnson, was convicted of the first degree murder of his wife, Connie Johnson. See State v. Johnson, 734 S.W.2d 154, 155 (Tenn. 1987), cert. denied, 485 U.S. 994, 108 S. Ct. 1303 (1988). The jury imposed and the trial court approved a sentence of death. Id. The conviction and sentence were affirmed on direct appeal by both the Court of Criminal Appeals and the Tennessee Supreme Court. The Petitioner later sought post-conviction relief, which was unsuccessful. See Donnie E. Johnson v. State, No. 02C01-9111-CR-00237, 1997 WL 141887, at * 1 (Tenn. Crim. App., at Jackson, Mar. 27, 1997), perm. to appeal denied, (Tenn. Sept. 8, 1997); Donnie Edward Johnson v. State, No. 02C01-9111-CR-00237, 1995 WL 603159 (Tenn., Oct. 9, 1995); Donnie Edward Johnson v. State, No. 02C01-9111-CR-00237, 1994 WL 90483, at *1 (Tenn. Crim. App., at Jackson, Mar. 23, 1994); Donnie Edward Johnson v. State, No. 02-S-01-9207-CR-00041, 1993 WL 61728, at *1 (Tenn. Crim. App., at Jackson, Mar. 8, 1993). On June 9, 2006, Petitioner Johnson filed a petition to compel testing of biological evidence as provided by the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition on October 9, 2006. Upon review of the record, we affirm the judgment of the post-conviction court.



Court: TCCA


Eric D. Wallace, Whiteville, Tennessee, Pro Se.

Michael E. Moore, Acting Attorney General and Reporter; David H. Findley, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Eric D. Wallace, appeals from the circuit court's summary dismissal of his second pro se petition for writ of habeas corpus. Following our review of the parties' briefs and applicable law, we affirm the circuit courtís judgment.



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