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


Court: TSC


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.


Court: TSC


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 We granted review to resolve the conflict between the ruling of the Court of Appeals and a prior unpublished opinion of that court.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.


Court: TCA


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.


Court: TCA


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

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


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.


Court: TCA


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.


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.


Court: TCA


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.


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.


Court: TCA


Wayne Joiner, Hendersonville, Tennessee, Pro Se

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


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.


Court: TCA


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.


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.


This is a corrected opinion.

Court: TCA


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

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


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.


Court: TCA


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.


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.


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