Changes to procedure, evidence rules effective July 1

The Tennessee Supreme Court adopted orders in January that become effective Sunday, including amendments to the Tennessee Rules of Civil Procedure, Rules of Criminal Procedure, Rules of Appellate Procedure, Rules of Evidence and Rules of Juvenile Procedure. Having been ratified and approved by the General Assembly, they will be effective July 1. Read the new rules
TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

CHARLES WAYNE DAVIDSON V. LEWIS BROTHERS BAKERY ET AL.

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and Lauren S. Lamberth, Assistant Attorney General, for the appellant, The Second Injury Fund.

William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Charles Wayne Davidson.

Judge: CLARK

Before a Special Workers' Compensation Appeals Panel heard this case, we granted review to determine whether Tennessee Code Annotated section 28-1-105(a) (2000), the "savings statute," allows an employee's voluntarily non-suited claim for workers' compensation benefits against the Second Injury Fund to remain viable when the employee re-files the claim after the applicable statute of limitations has run. We hold that section 28-1-105(a) does not "save" such a claim. In this case, we modify the trial court's order to remove the Second Injury Fund's liability to pay benefits and discretionary costs to Charles Wayne Davidson and dismiss the Second Injury Fund from the case.

http://www.tba2.org/tba_files/TSC/2007/davidsonc_062807.pdf


ELIZABETH LANIER v. STEPHEN L. RAINS ET AL.

Court: TSC

Attorneys:

Keith C. Dennen and Rachel C. Nelley, Nashville, Tennessee, for the appellant, Elizabeth Lanier.

Phillips M. Smalling, Byrdstown, Tennessee, and Amy V. Hollars, Livingston, Tennessee, for the appellees, the Estate of Dexter Lyndon Rains, Stephen L. Rains and Jo Ann Rains, Co-Executors.

Judge: WADE

The Petitioner, Elizabeth Lanier ("Petitioner"), sought legitimation after the death of Dexter Lyndon Rains ("Decedent") so as to share in his estate as a pretermitted heir under Tennessee Code Annotated section 32-3-103 (2001). The chancery court sustained a motion to dismiss filed on behalf of the Decedent's estate and the Decedent's wife and son as Co-Executors of the estate ("Defendants"), and the Court of Appeals affirmed. We granted review to resolve the conflict between the ruling of the Court of Appeals and a prior unpublished opinion of that court. Because the Petitioner does not qualify as a pretermitted heir and has not demonstrated a viable claim under our equal protection clause, she is not entitled to share in the estate. Accordingly, the judgment of the Court of Appeals is affirmed in part. The claim for legitimation is remanded to the chancery court for further proceedings because, despite our holding, the Petitioner is entitled to have the opportunity to establish that the Decedent was her father. The judgment of the Court of Appeals, therefore, is reversed in part and remanded.

http://www.tba2.org/tba_files/TSC/2007/laniere_062807.pdf


MARY TERESA BASHAM, ET AL. v. DIANE RAY DUFFER, ET AL.

Court: TCA

Attorneys:

Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellants, Mary Teresa Basham and William Bennett Collins, Jr.

Robert Michael Crawford, Springfield, Tennessee; Donald Arkovitz, Destin, Florida, for the appellees, Diane Ray Duffer, James F. Ray, and Martin Ray.

Judge: CAIN

Appellants served as the deceased's attorneys-in-fact, and brought suit against the three parties who previously cared for the deceased. The deceased was an elderly widow with little experience in handling her own money. Appellants alleged that Appellees mishandled the deceased's funds for their own personal benefit. The trial court found no breach of duty on the part of Appellees, declaring the deceased to have been competent at the time of the dissipation of her funds, and therefore dismissed the case. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2007/bashamm_062807.pdf


SHANETTE COLLIER CHANDLER v. KYLAN CHANDLER

Court: TCA

Attorneys:

Mitchell D. Moskovitz, Adam N. Cohen, Memphis, TN, for Appellant

Venita Marie Martin, Monica N. Wharton, Memphis, TN, for Appellee

Judge: HIGHERS

This appeal arises from a custody dispute involving a minor child. The plaintiff mother filed a complaint for divorce against the defendant father. The parties entered into a marital dissolution agreement as to property and debt division, but they could not come to an agreement on custody for their three-year-old son. A trial was held on the custody and visitation issues. The trial court granted the divorce, named the mother the primary residential parent of the child, and gave the mother full decision-making authority for the child. The parenting plan adopted by the court allowed the father visitation on alternating weekends and holidays, and for four weeks each summer. The trial court awarded the mother the federal tax exemption for the child, as well as $1,500 in attorney's fees that she incurred litigating the custody issue. The father appeals the trial court's initial custody decision regarding visitation and decision-making, and the award to the mother of the federal tax exemption and attorney's fees. We affirm in part, and reverse in part.

http://www.tba2.org/tba_files/TCA/2007/chandlers_062807.pdf


ROBERT E. COOPER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL AND REPORTER FOR THE STATE OF TENNESSEE, ET AL. v. CREATIVE LEARNING CHILD CARE CENTER, INC., ET AL.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Peter M. Coughlan and S. Elizabeth Martin, Assistant Attorney Generals, for the State of Tennessee.

Patricia Head Moskal and Jonathan D. Rose, Nashville, Tennessee, for the appellees, Creative Learning Child Care Center, Inc., a Tennessee Nonprofit Corporation, et al.

Judge: CLEMENT

This is an appeal by the plaintiff from a final judgment awarding attorneys' fees to the defendants' former counsel. The issue on appeal arises out of the denial of the plaintiff's Motion for Summary Judgment which was accompanied by a 62 page Statement of Undisputed Material Facts containing assertions of facts grouped into 114 paragraphs with citations to the facts in the record the trial court deemed wholly inadequate. As a sanction for failing to comply with Tennessee Rule of Civil Procedure 56.03, the trial court awarded the defendants attorneys' fees. Finding that the Tennessee Rules of Civil Procedure do not authorize a monetary sanction for failure to comply with Rule 56.03, we vacate the award of attorneys' fees.

http://www.tba2.org/tba_files/TCA/2007/creativelearning_062807.pdf


JAMES E. GOODALE, ET AL. v. CHARLES LANGENBERG, ET AL.

Court: TCA

Attorneys:

Robert V. Redding, Jackson, Tennessee, for the appellant, Tammy Bunnell.

Dale Hederick Tuttle, Memphis, Tennessee, for the appellee, Crye-Leike Realtors.

Regina Morrison Newman and James Wesley Hodges, Jr., Memphis, Tennessee, for the appellees, James E. Goodale and Hazel F. Goodale.

Judge: FARMER

Plaintiff purchasers sued Defendant sellers, real estate agent, and real estate company alleging intentional fraud and seeking rescission of a contract to purchase real property and punitive damages. The matter was tried by a jury, which awarded Plaintiffs rescission of the contract and assessed punitive damages against Defendant real estate agent. The trial court further awarded Plaintiffs discretionary costs and attorney's fees, which it assessed against Defendant sellers and real estate agent jointly and severally. The jury also determined real estate agent was an independent contractor and that Defendant real estate company was, therefore, not vicariously liable for punitive damages. Plaintiffs and Defendant sellers subsequently entered into a confidential, sealed settlement under which Plaintiffs received a substantial partial refund of the purchase price and retained ownership of the real property. Defendant real estate agent appeals the award of punitive damages and the award of attorney's fees. Appellant additionally asserts the post-trial settlement between Plaintiffs and Defendant sellers resulted in an election of damages as a remedy or, alternately, in accord and satisfaction of the judgment. Plaintiffs crossappeal, asserting the jury verdict finding that Defendant real estate agent was an independent contractor is not supported by the evidence. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2007/goodalej_062807.pdf


WAYNE JOINER v. CAROLE CARTER, ET AL.

Court: TCA

Attorneys:

Wayne Joiner, Hendersonville, Tennessee, Pro Se

Joseph A. Kelly, Anne-Marie Moyes, Nashville, Tennessee, for the appellees, Carole Carter, et al.

Judge: COTTRELL

A member of the Sumner County YMCA was terminated from membership in the organization because of inappropriate sexual comments he allegedly directed toward female staff members. He brought pro se lawsuits against numerous employees of the YMCA, first in United States District Court, claiming that their actions had violated his civil rights, slandered him, invaded his privacy, and caused him humiliation and embarrassment. The federal court dismissed his complaint for lack of jurisdiction. A subsequent complaint in the Circuit Court of Davidson County alleging substantially the same facts was also dismissed, for failure to state a claim for which relief can be granted. Undeterred, the plaintiff then filed a nearly identical complaint in the same court. The trial court dismissed the complaint on the basis of res judicata. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/joinerw_062807.pdf


DEBORAH LANE v. WILLIAM MONTGOMERY, ET AL.

Court: TCA

Attorneys:

Jason R. Reeves, Shelbyville, Tennessee, for the appellant, Deborah Lane.

Donald D. Howell and Richard T. Scrugham, Jr., Knoxville, Tennessee, for the appellee, USAA Insurance Company.

Judge: SUSANO

Deborah Lane filed a complaint against William Montgomery within one year of a three-vehicle automobile accident, in which, according to the complaint, she was injured as a result of the defendant's negligence. When the plaintiff filed her suit, she secured the service of process and a copy of the complaint on her uninsured motorist carrier, USAA Insurance Company ("USAA"). In his answer to the complaint, Montgomery generally denied any negligence and liability to the plaintiff. Later, in a response to one of the plaintiff's interrogatories, Montgomery specifically stated that he was not involved in the accident involving the plaintiff. The trial court granted Montgomery summary judgment. Following the grant of summary judgment and some 26 months after the accident, the plaintiff filed an amended complaint substituting an unknown person, "John Doe," for Montgomery as the sole named defendant. USAA filed a motion for summary judgment, asserting, inter alia, that, since the plaintiff's claim against "John Doe" was barred by the statute of limitations, her claim against USAA was also barred. The trial court granted USAA's motion. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/laned_062807.pdf


DENVER and BEVERLY THACKER v. ALLAN M. BALL and DONNIE BALL

This is a corrected opinion.


Court: TCA

Attorneys:

David W. Blankenship, Kingsport, Tennessee, for appellants.

Daniel D. Coughlin, Bristol, Tennessee, for appellee, Allan M. Ball.

Judge: FRANKS

Plaintiffs alleged that defendant Alan Ball's dog had injured Denver and sought damages. Defendant denied owning the dog and averred that his son, Donnie Ball, owned the animal. Plaintiffs amended their complaint adding Donnie Ball as a defendant, and further averred that Donnie Ball was acting as agent for Alan in caring for the animal. The Trial Court granted Alan Ball summary judgment on the issue of agency and in a trial a jury returned a verdict in Alan Ball's favor but awarded damages to plaintiffs against Donnie Ball. The Trial Court granted an additur to the damage award and plaintiffs appealed. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2007/thackerdCORR_0062807.pdf


WESTERN EXPRESS, INC. v. DOLLAR GENERAL CORPORATION

Court: TCA

Attorneys:

Isham B. Bradley, Nashville, Tennessee, for the appellant, Western Express, Inc.

Paul S. Davidson, Mary Beth Thomas, Nashville, Tennessee, for the appellee, Dollar General Corporation.

Judge: COTTRELL

A trucking company filed suit to compel a consignee of paper goods to pay for shipping charges after the consignor went into bankruptcy while owing the trucker $750,000 for transporting those same goods. The trucker argued that there is a presumption under both common law and federal statute that a consignee of goods is subject to secondary liability for such charges. The consignee argued that the presumption does not apply under the circumstances of this case and that it had not entered into any contract with the trucker requiring it to make direct payments for shipping. After a hearing, the trial court granted summary judgment to the consignee and dismissed the trucking company's claim. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/westernexpdollargen_062807.pdf


TODAY'S NEWS

Supreme Court Wrap Up
Legal News
TBA Member Services

Supreme Court Wrap Up
School diversity plans rejected by court on last day of session
In a historic final day of the U.S. Supreme Court term today, the justices by a 5-4 vote struck down plans in Seattle and Louisville, Ky., that used race as a factor in making public school assignments, Legal Times reports. With both sides invoking the landmark case Brown v. Board of Education -- either to attack consideration of race by public schools or to support it -- the decisions represented a major doctrinal shift that can be traced to the court's new members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. Justice Stephen Breyer read aloud from his angry 77-page dissent, saying that "Rarely have so few, so quickly, changed so much."
Read more
Legal News
Will Yarbrough be the next U.S. attorney for Middle Tennessee?
Ed Yarbrough told NashvillePost.com this morning he cannot confirm that he is soon to be nominated as U.S. Attorney for Middle Tennessee. But that's what the rumors say, especially after the Federal Bureau of Investigation recently did a background check of Yarbrough.
Find out more
Bush refuses to answer subpoenas
Invoking executive privilege, President Bush refused to produce documents today that were subpoenaed by Congress. The documents are thought to be able to provide information on the firings of federal prosecutors and in the investigation of Attorney General Alberto Gonzales. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers. House Judiciary Chairman John Conyers said Bush's assertion of executive privilege displayed "an appalling disregard for the right of the people to know what is going on in their government."
Law.com has the AP story
Cheney, Gonzales subpoenaed about wiretapping
Vice President Dick Cheney and Attorney General Alberto Gonzales were each subpoenaed Wednesday by the Senate to discuss the administration's warrant-free eavesdropping on Americans. Also named in subpoenas signed by Sen. Patrick Leahy were the Justice Department and the National Security Council. The four parties -- the White House, Cheney's office, the Justice Department and the National Security Council -- have until July 18 to comply, Leahy said.
The Commercial Appeal carried this AP story
Hutchison decertified by Lyle
Davidson County Chancellor Ellen Hobbs Lyle today ordered former Knox County Sheriff Tim Hutchison's status as a certified law enforcement officer suspended immediately, the News Sentinel reports this afternoon. The quick action is prompted by Hutchison's July 1 retirement -- and the outcome of the matter could affect the former sheriff's pension by about $80,000.
Find out the details
Ethics Commission wants private meeting with AG, re: open meetings
Members of the Ethics Commission said yesterday they want to meet with a member of the attorney general's staff to ask questions, in private, about how to process an opinion that was issued by the attorney general. The commission, charged with making state government more accountable and ethical, received an opinion but has refused to reveal what the opinion advises.
Read the AP story in the Daily News Journal
Ethics Commission debates Androphy's performance
Some members of the Tennessee Ethics Commission today accused the panel's executive director, Bruce Androphy, of overreaching his authority while other commissioners defended his job performance, the Tennessean reports this afternoon.
The Tennessean has the story
MBA committee working to improve lawyer behavior
In an effort to promote professionalism, civility and courtesy in the legal profession, the Memphis Bar Association has launched several initiatives, including the creation of a Standing Committee on Professionalism. In a recent letter to Shelby County attorneys, MBA President David Cook outlined the committee's goals and functions. He said that referrals to the committee will "provide a third avenue for the pursuit of civility and courtesy," functioning alongside the Board of Professional Responsibility and Shelby County trial judges in dealing with lawyers whose behavior is outside Memphis Bar Association guidelines and Tennessee Supreme Court rules.
Read more
ABA to honor Justice Kennedy
U.S. Supreme Court Justice Anthony M. Kennedy has been chosen by the American Bar Association to receive its highest honor, the ABA Medal. He will receive the award at the ABA's Annual Meeting in San Francisco in August. "There are so many reasons to honor this justice," ABA President Karen J. Mathis said, "including his dedication to preserving and promoting the rule of law, and his tireless work on federal sentencing reform. ... He is a fighter for justice and an advocate for all -- an example for every judge, every lawyer and every law professor, not just in America but all over the world."
Read more about the award
TBA Member Services
Free online legal research
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 with your TBALink password.
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