House panel OKs med mal bill, death penalty study, more

The House Judiciary Civil Practice Subcommittee today moved the House version of a medical malpractice bill that had earlier passed the Senate. The bill modifies the requirement for advance notice of actions, requires a certificate of good faith regarding consultation with medical experts, and expands the locality rule beyond the community to across the state. Download a copy of the amendment. The subcommittee also acted on four other proposals:

-- It cleared for passage HB2086/SB372, legislation that would reverse the holding in Auto Credit of Nashville v. Melissa Wimmer to allow mailed notices to meet the requirement of "commercially reasonable notice of a sale" in repossessions.

-- It recommended creation of a Special Committee to Study Administration of the Death Penalty in Tennessee. At least two lawmakers cited the ABA study released Monday in voting for the proposal.

-- It moved to summer study a bill that would allow actual medical, pharmacy and rehabilitation costs, regardless of statutory limits, in Governmental Tort Liability Act cases.

-- And in action on judicial merit selection legislation, Judiciary Committee Chair Rob Briley, who has taken over as prime sponsor of the administration's bill (HB 2311/SB 2228), moved the measure out of subcommittee with the clear understanding that the bill would not move out of the full committee in its present form.

The meeting was the subcommittee's last, subject to being reopened by call of the chair.
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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

TERRY SULLIVAN EX REL. WRONGFUL DEATH BENEFICIARIES OF CHARLIE SULLIVAN v. CHATTANOOGA MEDICAL INVESTORS, LP, ET AL.

Court: TSC

Attorneys:

Thomas O. Helton, Christy Tosh Crider, and John Michael Phillips, Nashville, Tennessee, for the appellants, Chattanooga Medical Investors, LP, and Life Care Centers of America, Inc.

Richard E. Circeo, and Carey L. Acerra, Nashville, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for the appellee, Terry Sullivan, Administrator of the Estate of Charlie Sullivan.

Judge: BARKER

A representative of the deceased filed a complaint against the owners of a nursing home alleging acts of negligence and abuse. The trial court granted summary judgment to the nursing home, ruling that the claims were time-barred by the one-year statute of limitations, which was not tolled by the deceased's mental incompetency because the deceased had previously granted a durable power of attorney to his son. The Court of Appeals reversed the judgment of the trial court and remanded for further proceedings. We affirm the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2007/sullivant_042407.pdf


JAMES W. THORNTON v. THYSSEN KRUPP ELEVATOR MFG., INC.

Court: TWCA

Attorneys:

Art D. Wells, Jackson, Tennessee, for the Appellant, James W. Thornton.

Gregory D. Jordan and Todd D. Siroky, Jackson, Tennessee for the Appellee, Thyssen Krupp Elevator Mfg., Inc.

Judge: CORLEW

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Employee suffered an injury to his leg when his knee buckled while he walked across the floor of the Employer's warehouse. The trial court dismissed his cause of action, finding that the injury was idiopathic and not compensable because the Employee had not proven any hazard incident to the employment that caused or exacerbated his injury. The Employee appealed. We find that the evidence does not preponderate against the finding of the trial court and affirm the decision of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2007/thornton_042407.pdf


JAMES O. BAILEY, ET AL. v. CHAMPION WINDOW COMPANY

Court: TCA

Attorneys:

John S. Anderson, Rogersville, Tennessee for the Appellants, James O. Bailey and wife, Kim Ward Bailey.

Michael A. Faulk, Church Hill, Tennessee for the Appellees, Champion Window Company Tri-Cities, LLC.

Judge: SWINEY

James O. Bailey, and his wife, Kim Ward Bailey ("the Baileys") sued Champion Window Company Tri-Cities, LLC ("Champion") claiming that Champion had breached a contract ("the Contract") for construction of a patio room on the Baileys' home. In a separate lawsuit, Champion sued the Baileys claiming that the Baileys had breached the Contract. The two cases were consolidated and tried before a jury. After trial, judgment was entered on the jury's verdict awarding Champion a judgment against the Baileys of $19,000.00. The Baileys appeal to this Court raising issues regarding the Trial Judge's failure to recuse, failure to grant an interlocutory appeal on the motion to recuse, and introduction of evidence. We affirm.

http://www.tba2.org/tba_files/TCA/2007/baileyj_042407.pdf


JASON LITTLE V. EASTGATE OF JACKSON, LLC D/B/A EASTGATE DISCOUNT BEER & TOBACCO

Court: TCA

Attorneys:

Dale Conder, Jr., and Spencer R. Barnes, Jackson, Tennessee, for the appellant, Eastgate of Jackson, LLC d/b/a Eastgate Discount Beer and Tobacco.

Justin S. Gilbert and Michael L. Russell, Jackson, Tennessee, for the appellee, Jason Little.

Judge: KIRBY

This is a retaliatory discharge case. The plaintiff was an at-will employee of the defendant store. While at work, the plaintiff witnessed a woman across the street from the store being physically assaulted by an unidentified man. The plaintiff employee took a baseball bat from under the work counter, left the work premises, and yelled and gestured at the assailant with the bat, causing him to leave the scene. The plaintiff then brought the woman back to the store, where the police were called. Two days later, the defendant store terminated the plaintiff's employment because he had left the work premises to aid the assault victim. The plaintiff employee then sued the defendant, asserting that his termination violated Tennessee public policy. The defendant filed a motion to dismiss the complaint on its face, arguing that the termination did not violate a clearly established public policy of the State of Tennessee. The trial court denied the defendant's motion to dismiss, determining that the complaint stated a valid claim for retaliatory discharge. The defendant was granted permission to file this interlocutory appeal by the trial court and by this Court. We affirm, finding that the complaint states a claim for retaliatory discharge in violation of a clear public policy of the State of Tennessee.

http://www.tba2.org/tba_files/TCA/2007/littlej_042407.pdf


SUSAN MARLOW v. DAN PARKINSON

Court: TCA

Attorneys:

Dana C. McLendon III, Franklin, Tennessee, for the appellant, Dan Parkinson.

Virginia Lee Story, Franklin, Tennessee, for the appellee, Susan Marlow.

Judge: CLEMENT

The father of three minor children appeals the trial court's modification of the parenting plan, contending the evidence preponderates against the trial court's findings of fact and the conclusions based thereon. He also seeks to set aside a permanent injunction that compels him to restrain his new wife from "interfering with the parenting of the children." We affirm the modification of the parenting plan, but vacate the injunction against the father that compels him to restrain his wife from engaging in parenting activities.

http://www.tba2.org/tba_files/TCA/2007/marlows_042407.pdff


LOIS M. SPENCE v. ROBERT E. HELTON

Court: TCA

Attorneys:

Bert W. McCarter, Murfreesboro, Tennessee, for the appellant, Robert E. Helton.

Charles G. Ward, Murfreesboro, Tennessee, for the appellee, Lois M. Spence.

Judge: COTTRELL

The trial judge announced in open court that he was granting the mother's petition for modification of child support. Because of a number of miscues, however, a valid order establishing the new level of support was never entered and another judge eventually dismissed the case for failure to prosecute. After the dismissal became final, the mother retained an attorney, who filed a Rule 60.02 motion for relief from the final order of dismissal. The trial court granted the motion since the mother had not been sent notice of the impending dismissal and awarded the mother relief in the form of a nunc pro tunc order, which required the husband to pay a child support arrearage from the date of the modification hearing, in the amount of $29,637. The husband argues on appeal that the trial court abused its discretion in granting relief to a litigant who had failed to act diligently in prosecuting her claim. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/spencel_042407.pdf


JAMES EARL THACKER v. REBA FAYE THACKER

Court: TCA

Attorneys:

Matthew Mayo, Nashville, Tennessee, for the appellant, James Earl Thacker.

Deana C. Hood, Franklin, Tennessee, for the appellee, Reba Faye Thacker.

Judge: CAIN

Trial court awarded Wife divorce based on Husband's admitted adultery and ordered Husband to pay alimony in futuro in the amount of $1,700.00 per month. Husband appeals the type and amount of alimony awarded to Wife as well as the award of Wife's attorney's fees. We affirm the trial court's award of alimony in futuro but reduce the amount to $1,000.00 per month.

http://www.tba2.org/tba_files/TCA/2007/thackerj_042407.pdf


Performance of Spinal Manipulation

TN Attorney General Opinions

Date: 2007-04-23

Opinion Number: 07-55

http://www.tba2.org/tba_files/AG/2007/ag_07-55.pdf

Levying or Increasing Adequate Facilities Tax Pursuant to Private Act

TN Attorney General Opinions

Date: 2007-04-23

Opinion Number: 07-56

http://www.tba2.org/tba_files/AG/2007/ag_07-56.pdf

TODAY'S NEWS

Legal News
Legislative News
Upcoming
TBA Member Services

Legal News
Ford defense begins, ends today
Prosecutors in the trial of John Ford rested their case yesterday after two weeks and 10 witnesses. The defense opened and closed its case today with only three witnesses. The former state senator did not take the stand in his own defense. At press time, closing arguments were underway.
Follow the trial in the Commercial Appeal
Task force seeks causes of racial gap in juvenile system
The numbers are unequivocal: Tennessee is locking up black youths in juvenile facilities at a higher rate as a percentage of overall population than white youths. The question is why. A recent study of seven counties shows some clear patterns of probable causes.
Learn more in the News Sentinel
DNA exonerations reach 200
After serving 25 years in prison, Jerry Miller has become the 200th person to be exonerated by DNA evidence. The first reversal came in 1989, and it took 13 years to reach 100. But the pace has accelerated in the last five years, and that's raising a troubling question for the nation's justice system: how many others are serving time for crimes they did not commit?
WMC-TV has the story
Defense lawyers defend Moncier
In a rare move, the Tennessee Association of Criminal Defense Lawyers has asked U.S. District Court Judge Ronnie Greer to drop a contempt charge against Knoxville attorney Herbert S. Moncier. Greer accused Moncier, who faces possible jail time, of contemptuous behavior during a November hearing. The association says Moncier was just doing his job. Greer had been prepared to rule today but said he will put his findings in writing, reports the News Sentinel.
Read about today's proceedings
Read about the friend of the court brief
Lawyers use web to deal with bankruptcy law
Lawyers increasingly are using online tools to help clients comply with new requirements imposed in 2005 by federal law. From downloading forms to recommending clients take web-based credit counseling classes, technology is making the new system a bit easier to navigate.
The Kingsport Times News has this AP piece
Officer pleads guilty to civil rights violation
Former Memphis police officer Alexander Johnson pleaded guilty to a civil rights violation for stealing cash and drugs from drivers he pulled over. He now faces a sentence of up to 10 years.
Read more from WMC-TV News
Out-of-town judge to hear case of Maryville attorney
Blount County judges and the Blount County District Attorney General's office have submitted requests to recuse themselves from a case against Maryville attorney William Lee "Billy" Gribble. Gribble was charged April 13 with assault of his secretary. The Administrative Office of Courts will appoint a judge from another county to hear the case, reports the Daily Times.
Read more
Judge suggests tougher treatment for prisoners
While filling in for General Sessions Court Judge Bob Moon, former Chattanooga Municipal Judge Walter Williams gave prisoners something to think about. Saying jail is too soft, he suggested that prisoners receive bread and water and perform more physical labor.
Read his comments on Chattanoogan.com
Legislative News
Campfield irritates while he legislates
State Rep. Stacey Campfield, R-Knoxville, sees himself as underdog, but some colleagues think he's a stubborn partisan. Recent encounters on the House floor reveal escalating hostility between the combative legislator and powerbrokers in the chamber.
The News Sentinel reports
Upcoming
Event commemorates victims' rights week
April 22-28 is National Crime Victims' Rights Week. In Nashville, a commemorative event will be held tomorrow at the state Capitol from 10 a.m. to noon. David Keith, an actor, director, and board member for the National Association to Protect Children will present the keynote address. Register for the event by calling (615) 386-9406 or emailing Rachel Stutts at rstutts@tcadsv.org

TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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