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TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

SUPREME COURT DISCRETIONARY APPEALS

Court: TSC

http://www.tba2.org/tba_files/TSC/2007/certlist_051407.pdf


HARDING ACADEMY v. THE METROPOLITAN GOVERNMENT

Court: TSC

Attorneys:

George Arthur Dean (at trial), John C. Hayworth, John Lee Farringer, IV, and Robert J. Walker, Nashville, Tennessee, for the appellant, Harding Academy.

Karl F. Dean, Director of Law, and J. Brooks Fox, John L. Kennedy, Laura T. Kidwell, Megan A. Landreth, and Theodore G. Morrissey, Metropolitan Attorneys, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: HOLDER

The plaintiff applied for nine demolition permits, which the city initially issued. Two days later, however, the city revoked the permits based upon the "pending ordinance doctrine." At the time the plaintiff applied for the demolition permits, an application proposing a zoning change had been filed with the city's planning commission, but no action regarding the application had taken place other than the scheduling of a hearing before the city's historic zoning commission to discuss the proposal and the publishing of a notice to residents about such meeting. The city's historic zoning commission had not yet considered the zoning change application; consequently, the matter had not been referred to the city council for its consideration. We hold that the pending ordinance doctrine is inapplicable because the ordinance at issue was not sufficiently pending at the time the plaintiff applied for the demolition permits. The city's revocation of the permits was therefore improper. Because the city unlawfully revoked the demolition permits, the plaintiff is entitled to reissuance of the permits notwithstanding the subsequent enactment of a zoning ordinance that could prohibit demolition. The plaintiff must be given a reasonable opportunity to demolish the structures when the city reissues the permits. Accordingly, we affirm the judgment of the Court of Appeals as modified and remand this case to the trial court for the entry and enforcement of a decree ordering the city to reissue the revoked demolition permits to the plaintiff.

http://www.tba2.org/tba_files/TSC/2007/harding_051407.pdf


ALEXANDER A. STRATIENKO, M.D. v. CHATTANOOGA-HAMILTON

Court: TSC

Attorneys:

Fred H. Moore and Joseph R. White, Chattanooga, Tennessee, for the appellant Chattanooga-Hamilton County Hospital Authority.

Stephen D. Gay, Chattanooga, Tennessee, for the appellant, Mel Twiest, M.D. John P. Konvalinka, J. Scott McDearman, Mathew D. Brownfield, and Jennifer H. Lawrence, Chattanooga, Tennessee, for the appellee, Alexander A. Stratienko, M.D. William B. Hubbard and Cynthia H. Wiel, Nashville, Tennessee, for the Amicus Curiae, Tennessee Hospital Association.

Judge: HOLDER

We granted this appeal to determine whether Tennessee Code Annotated section 63-6-219(e) (2004) permits the discovery from a peer review committee of a physician's medical credentials furnished to that committee. We hold that "information, documents or records otherwise available from original sources" are subject to discovery pursuant to Tennessee Code Annotated section 63-6-219(e), but only to the extent that they are not requested from the peer review committee and are not otherwise privileged. Accordingly, we reverse in part and affirm in part the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2007/stratienko_051407.pdf


LATECIA GAIL WATSON DICHRISTINA v. MARK WILLIAM DICHRISTINA

Court: TCA

Attorneys:

Michael K. Parsley, Nashville, Tennessee, for the Appellant, Mark William DiChristina.

Thomas F. Bloom, Nashville, Tennessee, for the Appellee, Latecia Gail Watson DiChristina.

Judge: HARRIS

On this appeal from a divorce action, the husband alleges the trial court erred in awarding wife alimony in futuro in the amount of $600.00 per month, in admitting into evidence an indictment charging him with unlawful sexual contact with wife's minor daughter and in finding that husband had implicated himself in misconduct toward the daughter. We find no error and affirm.

http://www.tba2.org/tba_files/TCA/2007/dichristina_051407.pdf


HERMAN CHARLES HEIKKENEN v. JANICE LEE HEIKKENEN

Court: TCA

Attorneys:

Craig P. Fickling, Cookeville, Tennessee, for the appellant, Herman Charles Heikkenen.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Janice Lee Heikkenen.

Judge: HARRIS

On this appeal, the sole issue is whether the trial court erred in awarding $1,500.00 per month as alimony in futuro to the wife. Finding no basis for determining the trial court abused its discretion in awarding alimony in this amount, we affirm.

http://www.tba2.org/tba_files/TCA/2007/heikkenen_051407.pdf


JOYCE A. UNDERWOOD, ET AL. v. NATIONAL ALARM SERVICES, INC.

Court: TCA

Attorneys:

Kevin W. Shepherd, Maryville, Tennessee, for the Appellant, Joyce A. Underwood, individually, as administrator of the Estate of Joshua Underwood, and on behalf of Isaiah Underwood, a minor.

Matthew J. Evans and John W. Elder, Knoxville, Tennessee, for the Appellee, National Alarm Services, Inc.

Judge: LEE

Ms. Underwood and four children were injured when her home caught fire in the early morning hours of July 21, 1999; two of the children died shortly after being transported to the hospital. Ms. Underwood sued the alarm company that provided emergency monitoring services for the home, alleging several theories of negligence. The contract between the parties contained a limitation of liability/liquidated damages clause, which limited the recovery of Ms. Underwood to $250. The trial court granted summary judgment to the alarm company, finding that: (1) the alarm company did not owe a duty to Ms. Underwood because she had failed to pay monthly monitoring fees due under the contract; (2) the exculpatory and limitation of liability clauses in the contract were valid; and (3) the alarm company established that it was not negligent, and Ms. Underwood failed to present evidence creating a genuine issue of material fact for trial. We hold that the alarm company did owe a duty to Ms. Underwood, despite her failure to pay fees, and that the limitation of liability clause at issue in the contract is valid and limits Ms. Underwood's recovery to $250. We also find that there are genuine issues of material fact which preclude the granting of summary judgment. Therefore, we affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2007/underwoodj_051407.pdf


TODAY'S NEWS

Legislative News
Legal News
TBA Member Services

Legislative News
AG election amendment may face Senate vote this week
A constitutional amendment that would allow for the popular election of Tennessee's lieutenant governor, attorney general, comptroller, treasurer and secretary of state may come up for a vote in the Senate this week, the Chattanoogan.com reports. The measure, put forth by State Senate Speaker Pro Tempore Rosalind Kurita, D-Clarksville, received its first reading on the Senate floor Thursday. Constitutional amendments must be read twice to the full Senate before they can be put to a vote.
Read the full story
Parental abandonment statutes need clarity,
paper says
The unfortunate case of 9-year-old Anna Mae He's custody battle highlights a need for clarifying Tennessee's parental abandonment statutes, the Nashville City Paper says in an editorial. The newspaper urges the legislature to lend its focus to the issue and "clarify a state law that has the ability to deeply impact some of the state's most vulnerable residents."
Read the full editorial
Legal News
Court rules city improper in blocking school expansion
The Tennessee Supreme Court today ruled that Metro Nashville acted improperly in revoking demolition permits that had been issued to Harding Academy so that it could tear down nine houses in order to build a recreation field in the Bell Meade Links neighborhood. Read the court's opinion.
The Nashville Post has more on the story
U.S. attorney nominee didn't plan a career in the law
James R. "Russ" Dedrick thought he was heading for a career in the military after attending East Tennessee State University on an ROTC scholarship. Find out how this career prosecutor went from the Army to become the nominee to serve as U.S. attorney in East Tennessee in this Chattanooga Times Free Press interview.
Read the full interview
3rd Gonzales aid resigns
Deputy Attorney General Paul J. McNulty announced his resignation today, saying he is leaving the Justice Department later this summer to enter the private sector, officials said. McNulty is the latest senior Justice official to announce his departure amid the swirl of controversy over the firings last year of nine U.S. attorneys. Three other top aides to Gonzales have quit in recent months.
Read more in the Washington Post
Padilla trial underway in Miami
After months of investigation, legal maneuvering and jury selection, federal prosecutors and attorneys for alleged al-Qaida operative Jose Padilla get to present their cases in a trial expected to last into August.
Read more in the Commercial Appeal
TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
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