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
CHARLES WAYNE DAVIDSON V. LEWIS BROTHERS BAKERY ET AL.
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
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.
ELIZABETH LANIER v. STEPHEN L. RAINS ET AL.
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.
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between the ruling of the Court of Appeals and a prior unpublished opinion of that court.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.
MARY TERESA BASHAM, ET AL. v. DIANE RAY DUFFER, ET AL.
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.
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.
SHANETTE COLLIER CHANDLER v. KYLAN CHANDLER
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.
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.
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.
JAMES E. GOODALE, ET AL. v. CHARLES LANGENBERG, ET AL.
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.
WAYNE JOINER v. CAROLE CARTER, ET AL.
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.
DEBORAH LANE v. WILLIAM MONTGOMERY, ET AL.
Jason R. Reeves, Shelbyville, Tennessee, for the appellant, Deborah Lane.
Donald D. Howell and Richard T. Scrugham, Jr., Knoxville, Tennessee, for the appellee, USAA
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.
DENVER and BEVERLY THACKER v. ALLAN M. BALL and DONNIE BALL
This is a corrected opinion.
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.
WESTERN EXPRESS, INC. v. DOLLAR GENERAL CORPORATION
Isham B. Bradley, Nashville, Tennessee, for the appellant, Western Express, Inc.
Paul S. Davidson, Mary Beth Thomas, Nashville, Tennessee, for the appellee, Dollar General
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.
| Supreme Court Wrap Up
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