Committees act on range of bills of interest to lawyers

The Senate Judiciary Committee yesterday completed action on four bills:
-- SB1531, authorizing 40 new assistant public defenders to be assigned to judicial districts recommended by the District Public Defenders Conference.
-- SB1538, raising appellate fees by $2 to pay for the new electronic filing pilot.
-- SB0710, exempting medical savings accounts from execution and garnishment.
-- SB0187 and SB0011, extending the "castle doctrine" to private automobiles and out buildings.

The committee also deferred for one week SB1493, legislation permitting damages for adultery and other torts in divorce actions, as well as a SB0875, a bill removing nursing home neglect matters from the Adult Protective Services law and treating them only as medical malpractice claims.

In legislative action today, the House Judiciary Committee moved many items on its extensive calendar, including legislation enhancing penalties for animals running at large and ending the "one-bite rule" in tort liability. It also adopted the Rosa Parks Act permitting expungement of convictions for acts of civil disobedience against racial discrimination.

Meanwhile the House Family and Children's Affairs Committee unanimously approved the TBA's legislation (HB2098/SB942) making several refinements to domestic relations law.
TODAY'S OPINIONS
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DAIMLERCHRYLSER CORPORATION v. RUTH E. JOHNSON, COMMISSIONER

Court: TCA

Attorneys:

Patricia Head Moskal, Joseph W. Gibbs, Nashville, Tennessee; Maryann B. Gall, Columbus, Ohio, for the appellant, DaimlerChrysler Corporation

Paul G. Summers, Attorney General and Reporter; Wyla M. Posey, Assistant Attorney General, for the appellee, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee

Judge: COTTRELL

Trial court found automobile manufacturer was not a "motor vehicle dealer" under Tenn. Code Ann. section 67-6-510(b) and was, therefore, not entitled to a trade-in credit for sales and use tax. We affirm.

http://www.tba2.org/tba_files/TCA/2007/daimlerchrysler_042507.pdf


DAVID HOLT, ET AL. v. BARBARA PYLES, ET AL.
With Opinion Concurring in Part and Dissenting in Part


Court: TCA

Attorneys:

Christina Norris, John L. Norris, Nashville, Tennessee, for the appellants, David Holt and Victoria Holt

Barry L. Howard, Melissa Bradford Muller, Nashville, Tennessee, for the appellee, Encompass Insurance

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Sarah F. Henry, Assistant Attorney General, for the appellee, State of Tennessee

Judge: CAIN

This case concerns a motor vehicle accident in which serious injuries were sustained. The insured believed that his insurance policy provided excess coverage if he were to be involved in an accident with an uninsured or underinsured motorist. In forming this belief, he relied upon statements by the insurance agent and the summary pages of his policy. Following the accident, the insurance company denied that the insured maintained excess protection under his uninsured or underinsured motorist coverage, citing an exclusionary endorsement in the policy. The insured alleged that the policy was ambiguous. The trial court granted the insurance company's Motion For Summary Judgment, ruling that the policy was not ambiguous and that the insured's affidavit was insufficient to create a genuine issue of material fact as to the representations made by the insurance agent. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2007/holtd_042507.pdf

COTTRELL concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2007/holtd_con_042507.pdf


RICHARD K. LONGPHRE v. CAROLYN LONGPHRE

Court: TCA

Attorneys:

R. Jonathan Guthrie, Chattanooga, Tennessee, for the appellant, Richard K. Longphre

John R. Meldorf, III, Hixson, Tennessee, for the appellee, Carolyn Longphre

Judge: SUSANO

This is a post-divorce case. Carolyn Longphre (Wife) registered in South Carolina a support order of the Hamilton County Circuit Court (the trial court) against her former husband, Richard K. Longphre (Husband). The South Carolina court ordered Husband to pay Wife an alimony arrearage of $64,475.39. Husband brought the instant action, asking the trial court to hold that Wife, by seeking an alimony arrearage in South Carolina, breached a written contract between the parties, by the terms of which Wife had released Husband from his court-ordered alimony obligation. The trial court granted Wife summary judgment. Husband appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/longphrec_042507.pdf


WILLIAM LYNN PITTMAN, DEANA RENAE PITTMAN SLEMP, DAVID PITTMAN, and SHEILA PITTMAN JOHNSON v. ELIZABETH PITTMAN, BETTY KATE PITTMAN KING, and DOROTHY LOUISE PITTMAN ROBINSON

Court: TCA

Attorneys:

Charles N. Griffith, Waverly, Tennessee, for Intervening Plaintiffs/Appellants William Lynn Pittman, Deana Renae Pittman Slemp, David Pittman, and Sheila Pittman Johnson

J. Harvey Cameron, Jasper, Tennessee, for Defendants/Appellees Elizabeth Pittman, Betty Kate Pittman King, and Dorothy Louise Pittman Robinson

Judge: KIRBY

This case involves theories of equitable trusts and undue influence with respect to real property. The grandparents owned a large farm. During their lifetime, they conveyed small parcels of the farm property to their children and grandchildren. In March 1989, the grandparents executed a deed conveying all remaining interests in the farm property to three of their children and a daughter-in-law. At the same time, the grandparents entered into a contract with the grantee children and daughter-in-law, reserving the right to control the property during their lives. The grandparents did not convey any interest in the property to the plaintiffs, the four children of a deceased son. In November 1993, the grandmother executed a will, purporting to devise the farm property, in part to the plaintiff grandchildren. The grandparents died. In the instant case, the plaintiff grandchildren sought to take an interest in the farm property under the grandmother's will, alleging that the March 1989 deed and contract reserving the right to control the property gave rise to a resulting or constructive trust, that the March 1989 deed was obtained by undue influence, and that the March 1989 deed was void due to a defective acknowledgment. After a bench trial, the trial court found that the plaintiffs failed to prove either an equitable trust or undue influence and that, as between the parties, the defective acknowledgment on the deed did not affect the validity of the March 1989 conveyance. The plaintiffs now appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2007/pittmanb_042507.pdf


PATRICIA BUTLER, CO-EXECUTOR of the ESTATE of MARY GERTRUDE RALPH v. WAYNE RALPH

Court: TCA

Attorneys:

J. Barney Witherington, IV, Covington, Tennessee, for Contestant/Appellant Wayne Ralph

J. Houston Gordon, Covington, Tennessee, for Proponent/Appellee Patricia Butler, Co-executor of the Estate of Mary Gertrude Ralph

Judge: KIRBY

This is a will contest. The decedent was an 89-year-old woman with eight grown children. In May 2004, the decedent was diagnosed with senile dementia. Shortly thereafter, the trial court established a conservatorship for the decedent. On August 2, 2004, the decedent executed a will that divided her estate equally among her children. After the decedent died in 2005, the will was submitted for probate. One of the decedentís sons contested the August 2004 will, asserting that the decedent lacked testamentary capacity when it was executed, and submitted for probate an earlier will whose terms favored him and disinherited three of the children. After a bench trial, the trial court found that the decedent had the mental capacity to execute the August 2, 2004 will and admitted it for probate. The will contestant now appeals, arguing that the trial court erred in placing the burden of proving testamentary capacity on him instead of placing it on the will's proponent, and that the trial court also erred in finding that the decedent had testamentary capacity to execute the August 2, 2004 will. We affirm, finding that the issue turns primarily on the trial court's assessment of the credibility of the witnesses and that the evidence preponderates in favor of the trial court's finding that the decedent had testamentary capacity to execute the August 2, 2004 will.

http://www.tba2.org/tba_files/TCA/2007/ralphm_042507.pdf


BELLA I. SAFRO v. JAMES E. KENNEDY, ET AL.

Court: TCA

Attorneys:

Bella I. Safro, Knoxville, Tennessee, pro se Appellant

Howard B. Jackson and T. Joseph Lynch, Knoxville, Tennessee, for the Appellees, James E. Kennedy and K-VA-T Food Stores, Inc. d/b/a Food City

Judge: LEE

Plaintiff Bella I. Safro brought this action alleging malicious harassment and defamation against James E. Kennedy, a Food City security guard, and Mr. Kennedy's employer. In granting the Defendants' motion for summary judgment, the trial court held: (1) that the undisputed facts established that Mr. Kennedy did not unlawfully intimidate Ms. Safro from the exercise or enjoyment of a constitutional right by injuring or threatening to injure her, and therefore her malicious harassment claim must be dismissed; and (2) that Ms. Safro failed to establish that Mr. Kennedy's slanderous statements were published to a third person, and therefore her defamation claim must be dismissed. We affirm the trial court's dismissal of the malicious harassment claim, but find there are genuine issues of material fact as to whether Mr. Kennedy's defamatory remarks were published to a third person and as to whether Ms. Safro incurred injury resulting from Mr. Kennedy's statements. We vacate the trial court's dismissal of the defamation claim and remand for a jury trial on this issue.

http://www.tba2.org/tba_files/TCA/2007/safrob_042507.pdf


TENNESSEE PHARMACY COALITION v. COMMERCIAL TEN

Court: TCA

Attorneys:

Robert John Notestine, III, Nashville, Tennessee, for the appellant Commercial Ten

William Gary Blackburn, Sean Charles Kirk, Nashville, Tennessee, for the appellee, Tennessee Pharmacy Coalition

Judge: COTTRELL

An owner of a building sought a declaratory judgment regarding any obligations it had under a terminated building management agreement with a management company because the management company contended it was entitled to a broker's fee on any future sale of the building. The trial court ruled that the management agreement was unambiguous and clearly did not entitle the management company to any such commission under the undisputed facts. We agree and affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2007/tnpharmacy_042507.pdf


KENNETH B. WHITE v. WILLIAM BACON, M.D., ET AL.

Court: TCA

Attorneys:

Kenneth B. White, Memphis, Tennessee, pro se

Nashville Metropolitan General Hospital, Appellee, not represented on appeal

Judge: CAIN

Inmate filed medical malpractice action against hospital for the allegedly negligent performance of his surgery and the failure to order appropriate post-operative treatment instructions. Hospital filed motion for summary judgment, alleging that it was an improper party to the suit because it was not a legal entity capable of being sued. The trial court granted the motion and inmate appeals. We affirm the decision of the trial court, finding that (1) hospital is not a legal entity capable of being sued; and (2) the trial court did not abuse its discretion by allowing hospital to reset its motion for summary judgment.

http://www.tba2.org/tba_files/TCA/2007/whitek_042507.pdf


KENNETH B. WHITE v. WILLIAM BACON, M.D., ET AL.

Court: TCA

Attorneys:

Kenneth B. White, Memphis, Tennessee, pro se

Nashville Metropolitan General Hospital, Appellee, not represented on appeal

Judge: CAIN

Inmate filed medical malpractice action against hospital for the allegedly negligent performance of his surgery and the failure to order appropriate post-operative treatment instructions. Hospital filed motion for summary judgment, alleging that it was an improper party to the suit because it was not a legal entity capable of being sued. The trial court granted the motion and inmate appeals. We affirm the decision of the trial court, finding that (1) hospital is not a legal entity capable of being sued; and (2) the trial court did not abuse its discretion by allowing hospital to reset its motion for summary judgment.

http://www.tba2.org/tba_files/TCA/2007/whitek_042507.pdf


STATE OF TENNESSEE v. MICHAEL GAINES

Court: TCCA

Attorneys:

Marshall A. (Mark) Raines, Jr., and H. Graham Swafford, Jr., Jasper, Tennessee, for the appellant, Michael Gaines

Robert E. Cooper, Jr., Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The appellant, Michael Gaines, was convicted by a jury in the Marion County Circuit Court of second degree murder, attempted second degree murder, four counts of reckless endangerment, and possession of a weapon where alcoholic beverages are served. The appellant received a total effective sentence of thirty-five years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his second degree murder conviction, the trial court's ruling regarding the admission of a prior conviction for aggravated assault as impeachment evidence, and the trial court's instructions to the jury regarding felony murder and the definition of "knowing." Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/gainesm_042507.pdf


STEPHEN WILLARD GREENE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Stephen Willard Greene

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Robert L. Headrick, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: TIPTON

The petitioner, Stephen Willard Greene, appeals the trial court's denial of his petition for post-conviction relief. The defendant contends that he is entitled to post-conviction relief from his 2000 conviction for rape of a child and resulting twenty-five year sentence because he received the ineffective assistance of counsel at trial. The state argues that the appeal should be dismissed because it was not filed within the one-year statute of limitations. We hold that the petition was untimely, and we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2007/greenes_042507.pdf


STATE OF TENNESSEE v. CHARLES E. HARRISON

Court: TCCA

Attorneys:

Donna L. Hargrove, District Public Defender, and Andrew J. Dearing, III, Assistant Public Defender, for the appellant, Charles E. Harrison

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William M. McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WILLIAMS

The defendant, Charles E. Harrison, waived his right to a jury and proceeded with a bench trial. The trial court found the defendant guilty of theft of property over $1000 (Class D felony), Driving Under the Influence (D.U.I.) fourth offense (Class E felony), driving on a revoked license (Class A misdemeanor), and violation of the implied consent law (Class A misdemeanor). The trial court sentenced the defendant to an effective sentence of seven years and six months. The defendant received six years and six months as a Range II offender for the theft conviction; eleven months and twenty-nine days for the D.U.I. conviction; eleven months and twenty-nine days for the driving on a revoked license conviction; and five days for violation of the implied consent law. The misdemeanor sentences were imposed concurrently with each other but consecutively to the felony conviction. At the sentencing hearing, the D.U.I. fourth offense conviction was amended to D.U.I. third offense (Class A misdemeanor). The defendant challenges only the sufficiency of the evidence to support the theft conviction, contending that the State failed to prove the defendant intended to deprive the owner of his property. We conclude that sufficient evidence was presented to support the theft conviction beyond a reasonable doubt. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/harrisonc_042507.pdf


IN RE J.C.J. AND J.E.J.

Court: TCCA

Attorneys:

J. Michael Kerr, Jefferson City, Tennessee, for the appellant, E.S.J.

Lucy D. Hooper, Newport, Tennessee, for the appellees, D.J.T., D.W.T., and M.C.T.

W. Keith Repass, Dandridge, Tennessee, Guardian Ad Litem for J.C.J. and J.E.J.

Judge: SUSANO

The trial court terminated the parental rights of E.S.J. (Father) with respect to his minor children, J.C.J. (DOB: April 30, 2003) and J.E.J. (DOB: May 4, 2002) (collectively "the children"), upon finding, by clear and convincing evidence, that grounds for termination existed and that termination was in the best interest of the children. The court awarded the maternal grandparents temporary custody of the children. Father appeals. We affirm.

http://www.tba2.org/tba_files/TCCA/2007/jcj_042507.pdf


DWIGHT K. PRITCHARD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight K. Pritchard, pro se

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

This appeal is before this Court after remand by order of the Tennessee Supreme Court. The Petitioner, Dwight K. Pritchard, appeals the summary dismissal of his petition for a writ of habeas corpus. The Petitioner contends that the guilty pleas he entered were not knowing and voluntary because the sentences imposed by the trial court were illegal. A recent decision of the Tennessee Supreme Court compels our conclusion that summary dismissal was proper. The judgment of the Davidson County Criminal Court summarily dismissing the petition is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/pritchardd_042507.pdf


MATTHEW LEE ROGERS V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Matthew Lee Rogers, Mountain City, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Tony Clark, District Attorney General for the Appellee, the State of Tennessee

Judge: WEDEMEYER

The Petitioner, Matthew Lee Rogers, appeals the judgment of the habeas court denying his petition for habeas corpus relief. After reviewing the record and applicable law, we note that this Petitioner was recently granted a new trial on direct appeal, and his grounds for habeas corpus relief are now moot. Thus, we find no error in the judgment of the habeas court and affirm the denial of the habeas corpus petition.

http://www.tba2.org/tba_files/TCCA/2007/rogersm_042507.pdf


STATE OF TENNESSEE v. RICKY THOMPSON
In two parts with dissenting opinion


Court: TCCA

Attorneys:

Brock Mehler, Nashville, Tennessee (on appeal) and Charles M. Corn, Athens, Tennessee (at trial and on appeal), and Randy G. Rogers and Lee E. Ledbetter, Athens, Tennessee (at trial) for the appellant, Ricky Thompson

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Jerry N. Estes, District Attorney General, for the appellee, State of Tennessee

Judge: WEDEMEYER

The Defendant, Ricky Thompson, was convicted of first degree murder, and he was sentenced to death. On appeal, he contends that: (1) his due process rights were violated because he was incompetent to stand trial and the trial court failed to hold a competency hearing; (2) his right to self-representation was denied; (3) the evidence is insufficient to establish the elements of premeditation and deliberation; (4) the trial court erred when it instructed the jury on the definition of reasonable doubt; (5) the trial court erred when it instructed the jury about the burden of proving the Defendant's mental state at the time of the offense; (6) the trial court erred when it instructed the jury on the definition of premeditation and when it instructed the jury to consider whether the Defendant was guilty of the greater charged offense before considering any lesser-included offenses; (7) the trial court erred when it admitted the victim's younger brother's testimony because it violated the constitutional guarantees to due process and against cruel and unusual punishment; (8) the evidence is insufficient to support the aggravating circumstance that the Defendant knowingly created a great risk of death to two or more persons other than the victim during the murder and that this aggravating circumstance is unconstitutionally overbroad; (9) the evidence is insufficient to support the aggravating circumstance that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and that this aggravating circumstance is unconstitutionally vague and overbroad; and (10) the death penalty was arbitrarily imposed and is disproportionate to the penalty imposed in similar cases. After throughly reviewing the record, briefs, and applicable law, we affirm the Defendant's conviction but modify the Defendant's sentence of death to reflect a sentence of life imprisonment.

http://www.tba2.org/tba_files/TCCA/2007/thompsonr_pt1_042507.pdf

Part II
http://www.tba2.org/tba_files/TCCA/2007/thompsonr_pt2_042507.pdf

WEDEMEYER Dissenting
http://www.tba2.org/tba_files/TCCA/2007/thompsonr_diss_042507.pdf


TODAY'S NEWS

Legal News
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TBA Member Services

Legal News
Closing arguments complete, Ford's case in jurors' hands
In closing arguments today, John Ford's attorney Michael Scholl urged jurors to stick to their "beliefs of individuality" and not "let the government pile on and pile on." He concluded by saying that the government has been overzealous, manipulated the evidence and failed to prove its case beyond a reasonable doubt.
Follow today's proceedings in the Commercial Appeal
House panel grants immunity to Gonzales aide
The House Judiciary Committee today voted to grant immunity to Monica Goodling, a key aide to Attorney General Alberto Gonzales during the firings of eight U.S. Attorneys. Goodling previously had refused to testify, invoking her constitutional right against self-incrimination.
Read about the vote on Law.com
Covenant agrees to end use of workers comp waiver
Chattanooga-based Covenant Transport has agreed to no longer use a form it portrayed as a state document asking workers to waive workers compensation benefits. The trucking company was sued by the state Department of Labor on grounds that the form was misleading. In settling the case, the company also agreed to review all claims in which the form may have been used and remind employees of their rights.
Read more on Chattanoogan.com
New county judge approved
The Wilson County Commission recently approved the selection process for a new general sessions judge. Commissioners voted 20-4 to send a private act to the state legislature to create a third general sessions judge position in the county. According to the act, the new judge would be appointed by the county commission and serve until August 2008, when voters would have the chance to elect a candidate.
The Lebanon Democrat reports
Bradley County juvenile judge makes budget request
Bradley County General Sessions Juvenile Judge Daniel Swafford met with the county commission's Juvenile Committee recently to discuss security improvements at the county's juvenile justice center. The judge also proposed that the county hire a part-time Juvenile Court referee -- a move that would allow him to spend more time on serious cases.
The Cleveland Banner has the story
New bar officers named
The Weakley County Bar Association has elected Paul Hutcherson of Dresden as its new president, and Jeff Washburn, also of Dresden, as its president-elect and treasurer. In Memphis, the Ben Jones Chapter of the National Bar Association has named the following officers: President Elbert Jefferson Jr., President-elect Van D. Turner, Treasurer Barbara Deans, Recording Secretary Melanie Murry, Corresponding Secretary Milandria King and Parliamentarian Justin Bailey.
View a list of all local bar leaders
High court to hear McPhee harassment suit
An appeal on a civil lawsuit filed against Middle Tennessee State University President Sidney McPhee four years ago by his former assistant will be heard by the Tennessee Supreme Court this June. Tammie Allen filed the lawsuit in February 2003 stating severe emotional distress and an incomplete and biased investigation into a sexual harassment suit she had filed against McPhee.
The Murfreesboro Post reports
Birch urges leaders to invest in next generation
Former Tennessee Supreme Court Chief Justice A.A. Birch Jr. recently spoke to the Wilson County Civic League and urged listeners to fulfill three basic obligations to young people.
Read his remarks in the Lebanon Democrat
Students participate in Supreme Court program
Students from 10 public and private Montgomery and Robertson County high schools will observe a state Supreme Court case this Friday as part of a program that educates young people about the judicial branch. Following oral arguments, the 580 students and their teachers will engage in a question and answer session with attorneys on both sides of the case. The Supreme Court Advancing Legal Education for Students (SCALES) program began in 1995 and has reached more than 17,000 students across the state.

Upcoming
UT event honors legal clinic
The University of Tennessee College of Law's legal clinic marks 60 years of service this fall. To celebrate, the college will host a symposium Sept. 14-15 to explore the future of clinical legal education. Events will include a writing workshop for clinical professors, scholarly presentations, a lunch with NYU law professor Bryan Stevenson and a dinner in honor of Dean Douglas Blaze. For more information contact the Legal Clinic at (865) 974-2331.

TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at 1-800-368-2734
or get an online rate quote

 
 
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