Legislative Report: Committee gives OK to disaster recovery bill

The Senate Judiciary Committee voted 8-0 to support TBA legislation (SB3660/HB3060) that allows for extending the statute of limitations when appellate courts declare a natural or human-made disaster. The bill, sponsored by Sen. Jamie Woodson, R-Knoxville, and Rep. Henry Fincher, D-Cookeville, originated with the TBA Emergency Preparedness Committee appointed in the wake of hurricanes Katrina and Rita.

The committee rolled two bills addressing crisis intervention. A bill (SB2635/HB2662) that would create a testimonial privilege for people involved in group crisis counseling, raised some concern about whether privilege was appropriate in such circumstances. The other bill (SB2636/HB2661) would grant immunity to volunteers involved in the process. Follow legislation of interest to the Tennessee legal community with the TBA's Bill Tracking Service.
TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
03 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

FRANK T. DALTON v. LORIANN DEUEL

Court: TCA

Attorneys:

Loriann Deuel, Eagleville, Tennessee, Pro Se.

Frank Dalton, Rensselaer, New York, Pro Se.

Judge: COTTRELL

A mother appeals from an order of the Juvenile Court of Rutherford County dismissing or denying the mother's second motion to vacate an order of that court domesticating an order of the Family Court of Rensselaer County, New York, which awarded custody of the mother's ten year old daughter to the girl's putative father, a resident of New York State. The motion to vacate, which was dismissed in the order that is the subject of this appeal, was filed approximately eighteen months after the order of domestication, and the domestication order was not appealed. The mother's motion to vacate the trial court's order was untimely filed and the mother has not established any other procedural basis upon which the domestication order could be set aside. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2008/daltonf_012908.pdf


PHILIP LATIFF, AS EXECUTOR OF THE ESTATE OF MARY WOODS LATIFF v. TRACY W. DOBBS, M.D., ET AL.

Court: TCA

Attorneys:

Leslie A. Muse, Morristown, Tennessee, for the Appellant, Philip Latiff, as Executor of the Estate of Mary Woods Latiff.

Gary G. Spangler and Carrie S. O'Rear, Knoxville, Tennessee, for the Appellees, Tracy W. Dobbs, M.D., and East Tennessee Oncology and Hematology, P.C.

Judge: SWINEY

In this medical malpractice action, Mary Woods Latiff ("Ms. Latiff") was a patient of Dr. Tracy Dobbs, an oncologist employed by East Tennessee Oncology and Hematology, P.C., ("East Tennessee Oncology") (collectively "Defendants"). Ms. Latiff underwent chemotherapy to reduce her chance of a recurrence of cancer. After her fourth chemotherapy session, Ms. Latiff developed complications, including vomiting, diarrhea, nausea, and abdominal pain. Ms. Latiff's family made numerous phone calls to Defendants over the next few days. A nurse at Defendants' office called in a prescription to treat Ms. Latiff's symptoms, but the additional medications did not resolve Ms. Latiff's problems. The next day, the nurse advised Ms. Latiff's family to take her to the emergency room, but a family member stated that Ms. Latiff was too weak to go to the emergency room. As a result, home health services were ordered for Ms. Latiff for lab work and assessment. After the lab results were available, Dr. Dobbs ordered IV fluids with potassium to treat Ms. Latiff's dehydration and low potassium level. Several hours later, Ms. Latiff's family called an ambulance to transport her to the hospital because her condition had not improved. Ms. Latiff suffered a cardiac arrest before arriving at the hospital. She was revived, but died the following day. Ms. Latiff's family filed this lawsuit alleging negligence in Defendants' treatment of Ms. Latiff. The jury returned a verdict in favor of Defendants, and judgment was entered accordingly. Plaintiff's motion for new trial was denied, and an appeal was taken to this Court, raising numerous issues regarding exclusion of evidence, expert witness testimony, and jury instructions. After careful review, we hold that the Trial Court did not commit reversible error. We affirm and remand.

http://www.tba2.org/tba_files/TCA/2008/latiffp_012908.pdf


VALUE MOTOR COMPANY, INC. v. REAGAN FARR, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Charles L. Lewis, Deputy Attorney General; Jeffrey O. Usman and Wyla M. Posey, Assistant Attorney Generals, for the appellant, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee.

Dale Bohannon, Cookeville, Tennessee, for the appellee, Value Motor Company, Inc.

Judge: CLEMENT

The issue on appeal pertains to the repossession tax credit stated in Tenn. Code Ann. section 67-6-507(d). The plaintiff is a used car dealer that provided dealer financing to facilitate the sale of its inventory. When audited, the Department of Revenue determined that the dealer was impermissibly inflating the repossession tax credit by including in the unpaid balance owing the cost of refinancing, the cost of subsequent repairs financed by the dealer, and the indebtedness owing by the customer for vehicles that were traded in to facilitate the purchase of the vehicle that was subsequently repossessed. After the Department assessed the dealer $134,000 in sales and use tax, the dissatisfied dealer filed suit in the Chancery Court contesting the assessment. The Chancellor determined inter alia the dealer was entitled to a credit "for the unpaid sales tax on the principal balance owed on the first vehicle traded in and on the second vehicle acquired as a result of the trade-in when sold on a security agreement or other title retained instrument" when the dealer repossesses the second vehicle. We have determined the repossession tax credit under Tenn. Code Ann. section 67-6-507(d) does not extend to the debt on the first vehicle. The statute only affords a repossession tax credit on the balance owing on the purchase price of the vehicle that was repossessed.

http://www.tba2.org/tba_files/TCA/2008/valuemotor_012908.pdf


PERRY H. YOUNG v. HAMILTON COUNTY, TENNESSEE
CORRECTION


Court: TCA

Attorneys:

Perry H. Young, Chattanooga, Tennessee, appellant, Pro Se.

Mary Neill Southerland, Hamilton County Attorney's Office, Chattanooga, Tennessee, for the appellee, Hamilton County, Tennessee.

Judge: SUSANO

The plaintiff sued Hamilton County seeking damages for false arrest. Following the dismissal, the plaintiff filed a motion pursuant to Tenn. R. Civ. P. 60.02(2) seeking to vacate the order of dismissal. The motion charged that Hamilton County was guilty of fraud in connection with the filing of its motion. The trial court denied the plaintiff's motion. The plaintiff appeals, contending that the trial court erred when it failed to vacate its order dismissing the plaintiff's complaint. We affirm pursuant to the provisions of Court of Appeals Rule 10.1.

http://www.tba2.org/tba_files/TCA/2008/youngp_Corr_012908.pdf


STATE OF TENNESSEE v. VERN BRASWELL

Court: TCCA

Attorneys:

Robert L. Parris, Memphis, Tennessee, (on appeal); and J. Bailey and Walter Bailey, Memphis, Tennessee, (at trial), for the appellant, Vern Braswell.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Betsy Carnesale, Assistant District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Vern Braswell, was indicted for first degree premeditated murder. Following a jury trial, Defendant was found guilty of the lesser included offense of second degree murder. After a sentencing hearing, Defendant was sentenced as a Range I, standard offender, to twenty-four years. On appeal, Defendant argues that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in certain evidentiary rulings; and (3) his sentence is excessive. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/braswellv_012908.pdf


STATE OF TENNESSEE v. DAVID A. MANTEY

Court: TCCA

Attorneys:

Richard L. Burnette, Johnson City, Tennessee (on appeal); and Gene G. Scott, Jr., and Alex Vanburen, Johnson City, Tennessee (at trial), for the appellant, David A. Mantey.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Joe Crumley, District Attorney General; and Stan Widener, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, David A. Mantey, was convicted of the sale of more than .5 grams of cocaine, a Class B felony, and sentenced as a Range I offender to 12 years' incarceration. In this appeal, the defendant asserts that (1) the trial court erred in the admission of certain evidence, (2) the evidence was insufficient to support his conviction, (3) the trial court committed plain error by failing to instruct on the lesser included offense of casual exchange, and (4) the sentence and fine imposed are excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/manteyd_012908.pdf


STATE OF TENNESSEE v. BOBBY GLENN SCOTT

Court: TCCA

Attorneys:

Jack S. Hinson, Lexington, Tennessee, for the appellant, Bobby Glenn Scott.

Robert E. Cooper, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; James G. Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General for the Appellee, State of Tennessee.

Judge: WOODALL

Defendant, Bobby Glenn Scott, entered a plea of guilty to possession of methamphetamine, a schedule II drug, a Class B felony; possession of unlawful drug paraphernalia, a Class A misdemeanor; and unlawful possession of a handgun by a convicted felon, a Class E felony. The transcript of the guilty plea submission hearing is not in the record. The judgments of conviction reflect that the trial court sentenced Defendant as a Range I, standard offender, to twelve years for possession of cocaine, two years for his weapons conviction, and eleven months, twenty-nine days for his misdemeanor conviction. The trial court ordered Defendant to serve his sentences concurrently for an effective sentence of twelve years. Defendant attempted to reserve a certified question of law under Rule 37(b)(2)(I) of the Tennessee Rules of Criminal Procedure, challenging the trial court's denial of his motion to suppress the evidence seized after execution of a search warrant. After review, we conclude that this Court does not have jurisdiction to address the certified question because the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is, therefore, dismissed.

http://www.tba2.org/tba_files/TCCA/2008/scottb_012908.pdf


Prohibited Activities of Legislator

TN Attorney General Opinions

Date: 2008-01-29

Opinion Number: 08-11

http://www.tba2.org/tba_files/AG/2008/ag_08_11.pdf

TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Mukasey to address Senate Judiciary Committee
Attorney General Michael Mukasey will face the Senate Judiciary Committee where Senators are likely to press him for his stance on the controversial interrogation technique that simulates drowning. During his confirmation hearing last fall, Mukasey sidestepped the question of whether he thinks waterboarding is torture.
Read the AP story from WMC-TV
Identity theft expert joins U.S. attorney's office
A new federal prosecutor with experience in identity theft crimes joined the U.S. attorney's office in Nashville. John K. Webb will be the deputy chief for white collar and economic crimes and the identity theft coordinator.
NewsChannel 5 has more on the new prosecutor
Knox commission sets timeline for replacements
The Knox County Commission approved a timeline Monday night for appointing replacements to 12 vacant county offices. Information from candidates interested in the seat will be accepted Feb. 6 through 8, followed by a series of public forums. Appointments will begin Feb. 20.
The News Sentinel has the details
Supreme Court to hear alleged cult leader's appeal
The state Supreme Court has agreed to hear the case of an alleged cult leader whose teenage follower died from cancer after her mother heeded his advice to rely on prayer rather than medicine. The legally novel issue that has drawn the interest of the state's highest court is whether Ariel Sherman, described as Jessica Crank's spiritual father, owed the girl a duty of care since he had no legal ties to her.
The News Sentinel reports
Is it an ad or legal 'news?'
A Connecticut law firm and its PR consultant are coming under fire for a staged "news" program airing on public-access TV. The half-hour program features two partners from Hartford's Shipman & Goodwin being interviewed about their recent $12.4 million jury win in an eminent domain case against the town of Branford. Conducting the interview is the firm's PR consultant. Legal Blog Watch calls it "a classic example of fake news, one that is sure to mislead at least some of the people who watch it."
Read the reaction on Legal Blog Watch
Judge takes swipe at Supreme Court sentencing decisions
U.S. District Judge Richard Kopf of the District of Nebraska channeled his frustration about the Supreme Court's series of difficult-to-follow sentencing decisions into a remarkable David Letterman-style Top 10 list, called "The Top 10 Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough and Gall." Law.com calls the list "a provocative jaw-dropper that may get Kopf scratched off the holiday card list at the Supreme Court."
Read the list on Law.com
TBA Member Services
Free Fastcase CLE helps build research skills
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 TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.

Online training sessions are also available. The TBA and Fastcase offer free one-hour CLE webinars to help you use Fastcase online research more effectively in your practice. Register for the next seminar or
Access Fastcase now
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.
Find out more

 
 
UNSUBSCRIBE TO TBAToday? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba2.org/tbatoday/unsub_tbatoday.php

TBALink HomeContact UsPageFinderWhat's NewHelp
 
 
© Copyright 2008 Tennessee Bar Association