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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.

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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.

MARVIN M. BOREN EX REL. DOROTHY FAYE BOREN v. MARK T. WEEKS, M.D., ET AL.

Court: TSC

Attorneys:

Christopher Kim Thompson, Murfreesboro, Tennessee, for the appellant, Marvin M. Boren.

Bryan Essary and Alan S. Bean, Nashville, Tennessee, for the appellee, River Park Hospital, Inc.

Judge: BARKER

In this medical malpractice appeal, the trial court denied the hospital's motion for summary judgment finding that a factual dispute exists as to whether the hospital may be held vicariously liable for the alleged negligence of an independent contractor emergency room physician based on a theory of apparent agency. The Court of Appeals reversed the trial court and granted summary judgment to the hospital on all grounds, concluding that the hospital's "efforts to disavow that the emergency department physicians were agents of the hospital were sufficient to preclude the plaintiff's claims based on apparent agency." Upon thorough consideration of the record and of the applicable law, we hold that summary judgment was inappropriate because genuine issues of material fact exist concerning whether the hospital may be held vicariously liable under an apparent agency theory, and in particular whether the hospital provided its patient with adequate notice that the emergency room physicians were independent contractors rather than employees. Therefore, we reverse the Court of Appeals' decision granting summary judgment and remand this case to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2008/borenm_050608.pdf


AMANDA LYNN DEWALD, ET AL. v. HCA HEALTH SERVICES OF TENNESSEE, ET AL.

Court: TSC

Attorneys:

Wm. Kennerly Burger and Rodney M. Scott, Murfreesboro, Tennessee, for the appellants, Amanda Lynn Dewald and Thomas B. Dewald.

Bryan Essary and Christopher A. Vrettos, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc., d/b/a/ StoneCrest Medical Center.

Judge: BARKER

In this medical malpractice appeal, the trial court denied the hospital's motion for summary judgment finding that a factual dispute exists as to whether the hospital may be held vicariously liable for the alleged negligence of an independent contractor radiologist based on a theory of apparent agency. The Court of Appeals reversed the trial court and granted summary judgment to the hospital on all grounds. We granted permission to appeal and consolidated this case for argument with Boren v. Weeks, No. M2007-00628-SC-R11-CV, - S.W.3d - (Tenn. April -, 2008). In Boren, in an opinion filed contemporaneously herewith, we adopted the analysis derived from the Restatement (Second) of Torts section 429 for determining when a hospital may be held vicariously liable for the negligence of independent contractor physicians. Therefore, we reverse the Court of Appeals' grant of summary judgment and remand to the trial court for further proceedings and for reconsideration of the hospital's motion for summary judgment consistent with the analysis and new standard adopted in Boren.

http://www.tba2.org/tba_files/TSC/2008/dewalda_050608.pdf


TERRANCE LAVAR DAVIS V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jay Norman, Nashville, Tennessee, attorney for appellant, Terrance Lavar Davis.

Robert E. Cooper, Jr., Attorney General & Reporter; and Mark A. Fulks, Assistant Attorney General, Nashville, Tennessee, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Terrance Lavar Davis, appeals as of right the Hickman County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The petition alleges that his bargained-for sentence of twenty-two years to be served at one hundred percent for possession of cocaine for resale in a drug-free school zone is illegal because the release eligibility is in contravention to the 1989 Criminal Sentencing Reform Act. The state argues that release eligibility is non-jurisdictional and can be an element of a plea-bargained sentence. Following our review, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/davist_050608.pdf


STATE OF TENNESSEE v. BENJAMIN GREER

Court: TCCA

Attorneys:

Gerald L. Melton, District Public Defender; Jeffrey S. Burton, Assistant Public Defender; and Russell N. Perkins, Assistant Public Defender, Murfreesboro, Tennessee, for the appellant, Benjamin Greer.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Benjamin Greer, was convicted of three counts of aggravated burglary, received an effective sentence of six years, suspended, and was placed on probation. Following numerous violations by Defendant of the conditions of probation, the trial court revoked Defendant's probation after a hearing. Defendant appeals the trial court's revocation of his probation. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/greerb_050608.pdf


CALVIN LEWIS HILL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Calvin Lewis Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Calvin Lewis Hill, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that trial counsel's tactical decision not to object to certain testimony presented at trial was based on improper investigation. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/hillc_050608.pdf


STATE OF TENNESSEE v. SHANE DELANO HUNTER

Court: TCCA

Attorneys:

David N. Brady, District Public Defender; John Wayne Allen, Assistant District Public Defender, for the appellant, Shane Delano Hunter.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Anthony J. Craighead, District Attorney General pro tempore, for the appellee, State of Tennessee.

Judge: THOMAS

In November 2005, a Putnam County grand jury indicted the defendant, Shane Delano Hunter, on one count of premeditated first degree murder in connection with an incident that occurred in August 2005. Following a January 2007 jury trial in Putnam County Criminal Court, the jury convicted the defendant of second degree murder. The trial court sentenced the defendant to a term of twenty years in the Department of Correction. On appeal, the defendant argues that the evidence produced at trial is insufficient to support his conviction and that the trial court imposed an excessive sentence. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/hunters_050608.pdf


TODAY'S NEWS

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Legal News
Four apply for Court of Appeals seat, deadline May 9
Four lawyers have applied for the Western Division Court of Appeals seat, left open by the death of Judge W. Frank Crawford. The deadline to submit applications is May 9. Applicants include: William H. Haltom Jr., Thomason, Hendrix, Harvey, Johnson & Mitchell PLLC, Memphis; William Michael Richards, Baker, Donelson, Bearman, Caldwell & Berkowitz, Memphis; Todd A. Rose, Burch, Porter and Johnson PLLC, Puryear; and Chancellor James Steven Stafford, 29th Judicial District, Dyersburg.
For more information, go to the AOC web site
Waller lays off 6 attorneys, cites economy
Waller Lansden Dortch & Davis has laid off more than 30 people, including six attorneys, at its three offices. John Tishler, chairman of Nashville's largest law firm, said the moves -- which amount to about seven percent of the firm's total staff -- cut across all practice groups and were made in response to a slowing economy. Tishler said the cuts "have made our work force fit the current business climate" and that certain groups within the firm will continue to hire.
NashvillePost.com reports [subscription required]
Committee pushes to get testimony from Cheney aide
The House Judiciary Committee voted today to compel a top aide to Vice President Dick Cheney, David Addington, to testify to the committee about the Bush administration's interrogation practices, the Associated Press reports. Also, former Attorney General John Ashcroft and John Yoo, a former Justice Department lawyer, are among those who initially balked but have now agreed to testify. Addington is one of several lawyers believed to have played a key role in crafting the administration's interrogation policies shortly after the Sept. 11 terrorist attacks, policies which some say amounted to torture.
Yahoo News carried the AP story
DA says he will retry House
Eighth Judicial District Attorney William Paul Phillips today said he will retry death row inmate Paul House, the Tennessean reports. His announcement followed a decision by the Tennessee attorney general's office that it would not fight an appeals court decision that would have cleared the way to release House, who has been imprisoned nearly 22 years.
Read more in the Tennessean
March loses custody to Levines
The United States Court of Appeals today said former Nashville lawyer Perry March's children will stay with the parents of their slain mother, Larry and Carolyn Levine, until they are grown. Even though March is serving a 56-year prison sentence for the murder of his wife, Janet, in 1996, he still wanted to see his children, Samson and Tzipora, returned to Mexico with his wife, Carmen. The court was unanimous in the decision, finding that there was no evidence that Carmen March ever legally adopted the children.
WSMV-TV has the story
New minority scholarships available
Baker, Donelson, Bearman, Caldwell & Berkowitz PC has a new scholarship program for law school students. The Diversity Scholarship Program will award three scholarships annually to minority law school students who have completed their first year of law school. Baker Donelson will award each recipient a salaried second year summer associate position in one of the firm's offices, and, after the completion of the summer associate position, a $10,000 scholarship during the students' third year of law school. Applications are being accepted and are due by June 2. Contact Rebecca Simon or learn
more about the program
Attorneys thanked for Teen Court help in closing session
The Montgomery County Teen Court wrapped up its year recently, giving awards and recognition to students and lawyers for their volunteer efforts. Clarksville attorneys Erin Poland, Jed McKeeon and Joe Sweeten were recognized for the extra effort they had put into making this year's teen court a success. Nineteenth Judicial District Division III Judge Ray Grimes, spoke to the group and presented the awards. Teen Court is a program that allows high school students to serve as attorneys, and jury members in real juvenile court cases.
The Leaf Chronicle has the story
First execution since Supreme Court ruling set for tonight
The planned execution tonight of a Georgia man is the first since a de facto moratorium on capital punishment ended last month with the U.S. Supreme Court's rejection of a Kentucky case. In that appeal, death penalty opponents contended the lethal injections commonly used there and in other states are cruel and unusual punishment. If his execution proceeds tonight as planned, William Earl Lynd will be the 1,100th person executed since the Supreme Court lifted a temporary ban on imposing the death penalty in 1976, according to Reuters.
The ABA's online journal gives you the story
Your Practice
Privilege tax due June 1
Tennessee's Professional Privilege Tax, as described in Tenn. Code Ann. Section 67-4-1701, is due June 1 for more than 20 professions, including lawyers.
Get more information and pay the $400 assessment online
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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