Campaign underway to honor Barker for service

Attorneys from across Tennessee are working together to honor Supreme Court Justice William R. "Mickey" Barker with a portrait that would be hung in the Supreme Court's courtroom in Nashville. Chattanooga attorney Charles Gearhiser is leading the fund-raising campaign to honor Barker for his many years of dedicated service as a trial judge, intermediate appellate judge and finally as a Supreme Court Justice. Download a letter from the Campaign Committee or make your donation to: Tennessee Judicial Conference Foundation, c/o Suzanne Keith, 1903 Division Street, Nashville, Tennessee 37203.
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.

JEREMY FLAX ET AL. v. DAIMLERCHRYSLER CORPORATION ET AL.

Court: TSC

Attorneys:

Alan J. Hamilton, George W. Fryhofer, III, James E. Butler, Jr., and Leigh Martin May, Atlanta, Georgia, and Gail Vaughn Ashworth, Nashville, Tennessee, for the Appellants, Jeremy Flax and Rachel Sparkman.

Dominic Lanza and Theordore J. Boutrous, Jr., Los Angeles, California; James C. Ho, Dallas, Texas; Thomas H. Dupree, Jr., Washington, D.C.; and Joy Day and Lawrence A. Sutter, Franklin, Tennessee, for the Appellee, DaimlerChrysler Corporation.

Louis A. Stockell, Jr., Madison, Tennessee, Pro Se.

Allison Orr Larsen, K. Lee Blalack, II, and Matthew M. Shors, Washington, D.C., for the Amicus Curiae, Alliance of Automobile Manufacturers.

Christopher Landau and Robin S. Conrad, Washington, D.C., and John Randolph Bibb, Jr., Nashville, Tennessee, for the Amicus Curiae, The Chamber of Commerce of the United States of America.

Jonathan M. Hoffman, Portland, Oregon, and Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Amicus Curiae, The Product Liability Advisory Council, Inc.

Judge: HOLDER

The plaintiffs filed this products liability case against DaimlerChrysler seeking damages for the wrongful death of their son and for emotional distress suffered by the mother. The plaintiffs also sought punitive damages. We granted review to determine: 1) whether a negligent infliction of emotional distress claim brought simultaneously with a wrongful death claim is a "stand-alone" claim that requires expert medical or scientific proof of a severe emotional injury; 2) whether the evidence presented at trial was sufficient to support an award of punitive damages; 3) whether the punitive damages awarded by the trial court were excessive; and 4) whether the trial court erred by recognizing the plaintiffs' second failure to warn claim. We hold that the simultaneous filing of a wrongful death suit does not prevent a negligent infliction of emotional distress claim from being a "stand-alone" claim. Therefore, negligent infliction of emotional distress claims brought under these circumstances must be supported by expert medical or scientific proof of a severe emotional injury. In addition, we conclude that the punitive damages awarded by the trial court were adequately supported by the evidence and were not excessive. Finally, we hold that the trial court erred by recognizing the plaintiffs' second failure to warn claim but conclude that the error did not prejudice the judicial process or more probably than not affect the jury's verdict. Accordingly, we affirm the Court of Appeals' reversal of the compensatory and punitive damage awards based on the negligent infliction of emotional distress claim and reverse the Court of Appeals' decision to overturn the punitive damage award related to the plaintiffs' wrongful death claim.

http://www.tba2.org/tba_files/TSC/2008/flaxj_072408.pdf

WADE concurring
http://www.tba2.org/tba_files/TSC/2008/flaxJ_CON_wade_072408.pdf

CLARK concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2008/flaxj_CON_DIS_clark_072408.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2008/flaxj_CON_DIS_koch_072408.pdf


WASHINGTON MUTUAL BANK v. N.K.T. LAND ACQUISITIONS INC., ET AL.

Court: TCA

Attorneys:

Frank H. Reeves, Nashville, Tennessee, for the appellant, Washington Mutual Bank.

David B. Herbert, Nashville, Tennessee, for the appellee, N.K.T. Land Acquisitions, Inc.

Judge: KURTZ

This case involves a dispute between mortgagees over priority. Both the appellant and the appellee are holders of mortgages secured by the same property; each acquired its interest from a predecessor mortgagee. The appellant contends that its mortgage has priority because of an unrecorded mortgage subordination agreement entered into between its predecessor in interest and the appellee's predecessor. The appellee contends that, because this subordination agreement was not recorded with the county register of deeds, it is invalid. On cross-motions for summary judgment, the trial court ruled that the appellee had a "right to rely" on the fact that the subordination agreement was unrecorded and held for the appellee. We conclude that, under Tennessee's recording act, a mortgage subordination agreement between mortgagees must be recorded in order to be valid on those who were not the original parties to the agreement and who lack notice of it. We, however, conclude that there is here a question as to the appellee's notice of the agreement. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/washingtonmutualbank_072408.pdf


ALANNA WEBSTER v. THE UNIVERSITY OF TENNESSEE

Court: TCA

Attorneys:

Peter M. Foley, Knoxville, Tennessee, for appellant.

Joshua M. Ball, Knoxville, Tennessee, for appellee.

Judge: FRANKS

In an administrative proceeding before an Administrative Law Judge, the petitioner/student was charged and found guilty of copying answers from a fellow student's papers in a test conducted in one of her courses. Petitioner appealed to the Chancery Court where the Chancellor reversed the agency's decision for errors that affected the merits of the decision, citing Tenn. Code Ann. section 4-5-322(I). The University appealed the Trial Court's decision to this Court. We vacate the Judgments of the Trial Court and the Administrative Law Judge and remand for a new trial before another Administrative Law Judge with instructions.

http://www.tba2.org/tba_files/TCA/2008/webstera_072408.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Former judge sentenced for child porn
Former Sevier County general sessions and juvenile judge and prominent attorney Ronald R. Reagan pleaded guilty today to possessing 104 images of child pornography on a computer at his law office. U.S. District Judge Thomas Phillips sentenced Reagan to 46 months in prison but allowed him to remain free on a $200,000 bond pending assignment to a federal facility.
The News Sentinel reported the development
Bell's trial set for September
The Court of the Judiciary trial for Cocke County General Sessions Judge John Bell will be held the week of Sept. 22 in the county, according to the Administrative Office of the Courts. Bell faces charges on misusing a private probation service in his courtroom.

Court upholds award in auto liability case
Tennessee's Supreme Court today upheld an award of $18.4 million in damages against DaimlerChrysler Corp. and a Nashville man in an automotive liability case that generated national attention. Read the court's decision, the concurring opinion from Justice Wade and the concurring in part and dissenting in part opinions from Justice Clark and Justice Koch.
The Nashville Post has more
Probate court adjusts hours
The Shelby County Probate Court will make changes to its workweek and hours effective Aug. 1. The court's hours, currently set from 8 a.m. to 4:30 p.m., will change to 7 a.m. to 5 p.m. Employees will go to a four-day workweek but will rotate days off so the court can continue operating five days a week.
Read about the changes in the Memphis Daily News
High school recruiting suit all but over
Brentwood Academy has been dealt another decisive and perhaps final setback in a decade-long court battle with the Tennessee Secondary School Athletic Association. U.S. District Judge Todd Campbell has denied the school's motions for judgment in favor of an equal protection claim and for summary judgment on antitrust claims -- two final issues left after the U.S. Supreme Court ruled. Brentwood has 30 days to appeal the ruling to the Sixth Circuit Court of Appeals. If it opts not to do so, the case will be over.
The Tennessean has the story
Commission approves jail alternative
Putnam County commissioners voted this week to establish a day reporting program as an alternative to jail for certain offenders. County officials have been studying overcrowding at the 250-capacity jail and looking for ways to reduce the number of inmates held there.
The Cookeville Herald-Citizen has the story
Scruggs to serve sentence in Kentucky
Famed anti-tobacco lawyer Richard "Dickie" Scruggs has been ordered to report to a federal prison in Ashland, Ky., by Aug. 4 to start serving a five-year sentence. Scruggs was convicted of attempting to bribe a Mississippi judge.
The Commercial Appeal has more
Water rights case appealed to 5th Circuit
The state of Mississippi has asked the 5th U.S. Circuit Court of Appeals to reinstate its lawsuit alleging the city of Memphis is stealing its water, according to an Associated Press story from WREG-TV Memphis. The district court dismissed the suit in February on grounds that Tennessee should have been included as a defendant. Mississippi's attorney general said that if Tennessee were added, the suit would have to be heard by the U.S. Supreme Court.

Retired judge brings character education to sports
Retired Sullivan County juvenile court judge Steven H. Jones believes that sports too often are about winning at all costs. The former jurist who helped develop the Character Counts! program, has now created a curriculum to be used with high school, college and professional athletes. The Winning with Character program will be introduced at a seminar Aug. 1. A follow-up event featuring Heath Shuler will be held Aug. 21.
The Johnson City Press provides details
FEMA seeks immunity from trailer suits
The Federal Emergency Management Agency filed for immunity from lawsuits over potentially dangerous fumes in government trailers that housed hurricane victims. Victims of hurricanes Katrina and Rita accuse FEMA of negligence for sheltering them in trailers with elevated levels of formaldehyde. FEMA's lawyers argue that decisions made while responding to disasters are protected from "judicial second-guessing."
News Channel 5 carries this AP story
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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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