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Tuesday, March 04, 2008

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More CLE can be earned online, court says

The Tennessee Supreme Court entered an order today that amends Supreme Court Rule 21, Sec. 4.08, regarding continuing legal education distance learning. Hours that may be obtained by distance learning have increased from six to eight by the order.

http://www.tba2.org/tbatoday/news/2008/rule21_amendment_030408.pdf

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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2008/certlist_030308.pdf

CHRISTINA JO BERTUCA v. THEODORE JOSEPH BERTUCA (Correction)

Court: TCA

Attorneys:

Michael D. Sontag, Stephen J. Jasper, Nashville, Tennessee, for the appellant, Theodore Joseph Bertuca.

Julie Robinson Rowland, Jere N. McCullough, Lebanon, Tennessee for the appellee, Christina Jo Bertuca.

Judge: HARRIS

This is an appeal from a divorce action filed by Christina Jo Bertuca against her husband, Theodore Joseph Bertuca. The divorce was granted on June 23, 2005, but the trial court reserved the issue of a division of marital assets. That matter was tried in February, 2006. While the hearing related to a variety of assets, most of the evidence presented related to the value of the husband's ninety percent ownership in Capital Food Services, a Tennessee general partnership that was engaged in the ownership and operation of seven McDonald's franchises located in Wilson County, Tennessee. The trial court determined the value of Capital Food Services had increased by $1,000,000 above the amount paid for the restaurants. The value of Mr. Bertuca's interest had, therefore, increased by $900,000 and half that amount was awarded to Ms. Bertuca. Mr. Bertuca has appealed challenging the conclusions reached by the trial court. Ms. Bertuca has appealed from the judgment of the trial court allowing Mr. Bertuca to pay the sum awarded in eighty-four equal monthly installments without interest and asserting she is entitled to her attorneys' fees on appeal. Having carefully reviewed the record, we affirm the judgment of the trial but modify the increase in value of Capital Food Services to $780,768 and Ms. Bertuca's award to $350,345.50, payable as ordered by the trial court.

http://www.tba2.org/tba_files/TCA/2008/bertucac_Revised_030408.pdf

IN RE: D.C.C. and J.E.C.

Court: TCA

Attorneys:

Lindsay C. Barrett, Dickson, Tennessee, for the appellant, M. J. C. C.

Robert E. Cooper, Jr., Attorney General and Reporter, Amy T. McConnell, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Judge: COTTRELL

Following a lengthy hearing, the trial court terminated the parental rights of the mother of two year- old twin boys on multiple grounds. We affirm the termination.

http://www.tba2.org/tba_files/TCA/2008/dcc_030408.pdf

TRISHA ELLEN DILLINGHAM v. DAVID CLYDE DOWNARD

Court: TCA

Judge: FARMER

Mother sought court approval to relocate out-of-state due to a job transfer which would result in a significant increase in pay. When the matter came on to be heard, the job opportunity was no longer available. Father contends that the trial court should have dismissed the petition due to mootness. We agree. The matter is remanded to the trial court for entry of an order of dismissal.

http://www.tba2.org/tba_files/TCA/2008/dillinghamt_030408.pdf

FEDERAL EXPRESS v. THE AMERICAN BICYCLE GROUP, LLC (Correction)

Court: TCA

Attorneys:

C. Allen Ragle, Knoxville, Tennessee, for the Appellant, The American Bicycle Group, LLC.

Christopher W. Conner, Maryville, Tennessee, for the Appellee, Federal Express.

Judge: SWINEY

Federal Express ("Plaintiff") filed a Complaint on Sworn Account in the Knox County Chancery Court claiming that the defendant, The American Bicycle Group, LLC (the "LLC"), owed Plaintiff $121,619.32. The LLC filed a Tenn. R. Civ. P. 12.02(3) motion to dismiss based on improper venue. The LLC claimed that venue was improper in Knox County because: (1) Plaintiff's principal place of business was in Shelby County; (2) the LLC's principal place of business was in Hamilton County; and (3) the alleged cause of action arose in Shelby County. Following a hearing, the LLC's motion to dismiss was denied by the Trial Court because the LLC's registered agent for service of process was located and served in Knox County. Both the Trial Court and this Court granted the LLC's request for permission to file a Tenn. R. App. P. 9 interlocutory appeal. The sole issue on this appeal is whether the Knox County Chancery Court is a proper venue for Plaintiff's action. We affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/fedex_030408.pdf

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN�S SERVICES, v. K.B., S.M., and ANY UNKNOWN FATHERS, IN THE MATTER OF: P.B. (dob 5/25/05) A Child Under Eighteen (18) Years of Age

Court: TCA

Attorneys:

Jerry J. Fabus, Jr., Gray, Tennessee, for appellants.

Robert E. Cooper, Jr., Attorney General and Reporter, and Scott Edward Schwieger, Assistant Attorney General, Nashville, Tennessee, for appellee.

Judge: FRANKS

In this parental termination case, the Trial Court terminated the parental rights of the mother, finding that clear and convincing evidence established statutory grounds for termination as provided in Tenn. Code Ann. section 36-1-113(g)(1) and Tenn. Code Ann. section 36-1-102(1)(A) and (E). The Trial Court found there was clear and convincing evidence that it was in the best interest of the minor child to terminate the parental rights of the parent. The mother has appealed and on appeal we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/kb_030408.pdf

IN RE ESTATE OF DAVID R. LEATH

Court: TCA

Attorneys:

James A.H. Bell and William D. Hood, Knoxville, Tennessee, for the appellant, Raynella Dossett Leath.

Dale C. Allen and Luis C. Bustamante, Knoxville, Tennessee, for the appellants Raynella M. Dossett Connatser and Nancy K. Dossett.

James S. MacDonald, Knoxville, Tennessee, for the appellee Cynthia L. Wilkerson.

Judge: LEE

Decedent's will could not be located after his death, and decedent's widow and stepdaughters petitioned the trial court to recognize and establish a copy of such will as decedent's last will and testament. The trial court denied the petition upon determining that the petitioners failed to present sufficient evidence to overcome the strong presumption that the lost will was revoked by decedent. We affirm the judgment of the trial court and remand.

http://www.tba2.org/tba_files/TCA/2008/leathd_030408.pdf

RUBY MARSEE v. CSX TRANSPORTATION, INC., LAFOLLETTE AMBULANCE SERVICE and CAMPBELL COUNTY

Court: TCA

Attorneys:

Glen B. Rutherford, Knoxville, Tennessee, for appellant.

Keith L. Edmiston, Knoxville, Tennessee, for appellees.

Judge: FRANKS

In this wrongful death action, plaintiff sued the ambulance service for failing to timely transport the deceased to the hospital. The Trial Court, upon hearing the evidence, directed a verdict for the defendants. In a Motion for a New Trial, plaintiff asked the Court to grant a new trial because a material witness who was not presented at trial was later located. The Trial Court denied plaintiff's Motion and on appeal we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/marseer_030408.pdf

SANDRA YEVETTE TURNER, as next friend, next of kin, natural mother, and personal representative of JESSICA JOVAN TURNER, deceased v. STERILTEK, INC., THE VANDERBILT UNIVERSITY d/b/a VANDERBILT UNIVERSITY MEDICAL CENTER, HERBERT S. SCHWARTZ, M.D., ED GLENN, M.D., and JOHN/JANE DOE
CORRECTION

Court: TCA

Attorneys:

Michael D. Noel and W.H. (Steve) Stephenson, II, Nashville, Tennessee, for Appellant Sandra Turner

Thomas I. Carlton, Jr., Jay N. Chamness, and J. Cole Dowsley, Jr., Nashville, Tennessee, for Appellee Steriltek, Inc.

Erin N. Palmer, Nashville, Tennessee, for Appellees the Vanderbilt University, Herbert S. Schwartz, M.D., and Ed Glenn, M.D.

Judge: KIRBY

This appeal involves negligence and medical malpractice. The defendant corporation does off-site sterilization of surgical instruments for the defendant medical center. On July 12, 2002, the defendant physicians were performing surgery on the plaintiff's daughter at the defendant medical center, using instruments sterilized by the defendant corporation. During the surgery, an agent of the corporation informed the physicians that some of the instruments they were using might be contaminated. After receiving this information, the physicians stopped the surgery before it was completed. As a result, the plaintiff's daughter had to return to the medical center at a later date, at which time the defendant physicians successfully completed the necessary surgical procedure. The plaintiff filed this lawsuit against the corporation, the medical center, and the physicians, seeking damages for alleged negligence and medical malpractice. The defendants filed motions for summary judgment supported by expert affidavits. The trial court granted the defendants' motions for summary judgment on all claims. The plaintiff appeals. We affirm in part and reverse in part. We affirm the trial court's grant of summary judgment as to the plaintiff's claims against both of the defendant physicians and, accordingly, as to the plaintiff's claim that the defendant medical center is vicariously liable for the actions of the physicians. We also affirm the grant of summary judgment as to the plaintiff's claim against the defendant corporation for failure to provide sterilized instruments and batteries, and as to the plaintiff's claim as a third-party beneficiary to the contract between the corporation and the medical center. As to the remaining claims against the corporation and the medical center, we reverse the trial court's grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2008/turners_Corr_030408.pdf

STATE OF TENNESSEE v. TYMETRIC LEJUAN GRAHAM

Court: TCCA

Attorneys:

Mike A. Little, Chattanooga, Tennessee, for the appellant, Tymetric Lejuan Graham.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William H. Cox, III, District Attorney General; and Lila Jayne Statom and Leslie Anne Longshore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Tymetric Lejuan Graham, was convicted of aggravated robbery, a Class B felony, and was sentenced to twelve years as a Range I, standard offender. On appeal, he argues that his indictment charged attempted aggravated robbery only and that, therefore, the trial court erred in submitting the charge of aggravated robbery to the jury. We agree and reverse the judgment of the trial court. We remand for entry of a conviction and sentence for attempted aggravated robbery.

http://www.tba2.org/tba_files/TCCA/2008/grahamt_030408.pdf

STATE OF TENNESSEE v. CHARLES RAY HARVEY

Court: TCCA

Attorneys:

John G. Mitchell, Jr., Edward L. Holt, Jr., and Darwin K. Colston, Murfreesboro, Tennessee, for the appellant, Charles Ray Harvey.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William Paul Phillips, District Attorney General; John W. Galloway, Jr., Deputy District Attorney General; and Sarah H. West Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Charles Ray Harvey, appeals his conviction for first degree murder, for which he was sentenced to life. The defendant claims (1) that the trial court erred in denying his motion to suppress, (2) that the trial court erred in denying his motion for new trial on the basis of newly discovered evidence, and (3) that he was prejudiced by the trial court's mid-trial reversal of a previous ruling on a motion in limine. We affirm the defendant's conviction.

http://www.tba2.org/tba_files/TCCA/2008/harveyc_030408.pdf

TODAY'S NEWS

Legislative News
Legal News
TBA Member Services

Legislative News

Briley will not seek another term

House Speaker Jimmy Naifeh announced today that State Rep. Rob Briley will not seek reelection. "Rob has served the people of District 52 well for a number of years and, while I believe he could continue to serve them well, Rob has decided that his personal health and well being must take precedent," Naifeh said in a statement.

Nashville City Paper has the story

Statute extension bill clears House subcommittee

The Tennessee Bar Association's bill to provide for extension of the statute of limitations when a disaster strikes (HB3060/SB3660) cleared the House Judiciary Committee's Civil Practice subcommittee today and could be set for full committee next week. Sponsored by Rep. Henry Fincher, D-Cookeville, and Sen. Jamie Woodson, R-Knoxville, the bill has already passed the Senate. The subcommittee also took up the TBA-backed measure to provide for attorney's fees in shareholder derivative cases, which brings Tennessee into conformity with the model business corporations act. It will be heard next week in the subcommittee.

Much of the Senate Judiciary Committee's time was spent reviewing legislation that provides for ignition interlock devices and administrative license revocation for DUI offenses. Committee Chair Mae Beavers' bill (SB3038/HB2882) on administrative license revocation was amended and forwarded to the Finance Committee.

Follow key bills in the TBA's Bill Tracker service

Legal News

Pro Bono program, Legal Aid kick off fundraising campaign

The joint Nashville Pro Bono and Legal Aid Society of Middle Tennessee and the Cumberlands fundraising campaign kicked off at a breakfast today. The effort, chaired this year by Nashville lawyer Jackie Dixon, has a goal of raising $725,000. Thirty law firms form the "Leadership Cabinet" and already committed to giving $360 per lawyer -- a total of $394,000.

See a list of the firms

Law school numbers stagnant this year, ABA reports

Enrollment for first year law students at ABA-approved law schools was nearly flat for the 2007-08 school year, according to a new report by the ABA Section of Legal Education and Admissions to the Bar. First-year enrollment stood at 48,964 students, an increase of only 27 students over the previous year, says an ABA press release summarizing the findings. Total enrollment for all law students was 141,433, an increase of 402 students over the previous year. Men made up 53.2 percent of the total enrollment and minorities, 21.6 percent of the total.

Read the ABA press release

U of Memphis law school sees first of renovations

Last week University of Memphis Law School alumni got a look at the latest changes in what will become the new home for the Cecil C. Humphreys School of Law. The historic building was the Front Street Post Office for nearly 40 years until the law school renovation began recently. And before that it was the federal courthouse for the Western District of Tennessee. The VIP reception was a prelude to the university's Distinguished Alumni Awards Gala at The Peabody. "I think it's going to be absolutely wonderful. It's a magnificent building," Memphis lawyer Lewis Donelson said. Donelson clerked in the building in 1942 for U.S. District Court Judge John Martin.

Filip confirmed by Senate

The Senate has confirmed Mark Filip, a federal judge in Chicago, to become the Justice Department's second in command. Filip replaces Deputy Attorney General Paul McNulty, who left seven months ago as the controversy into the firing of nine U.S. attorneys was unfolding. In the interim, career prosecutor Craig Morford handled the job.

The Washington Post reports

Businesses work to undo court's workers' comp ruling

Members of the business and insurance communities have begun crafting legislation that would allow companies to have on-site fitness centers without risking liability for worker's compensation, and they're taking aim at a recent ruling allowing telecommuters to collect benefits if they're injured while working at home. This is in response to recent two Tennessee Supreme Court decisions allowing employees who work from home to collect workers' compensation benefits.