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With Dissenting Opinion

Court: TCA


David Randolph Smith and Edmund J. Schmidt III, Nashville, Tennessee, for the appellants, Karen Crespo and Freddie Crespo as natural parents and guardians of Laura Elizabeth Crespo, a Minor.

Noel F. Stahl and Jeffrey Zager, Nashville, Tennessee, for the appellees, Carol McCullough, M.D., Tennessee Women's Care, P.C., and Jerilyn Boles, R.N. Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and P. Robin Dixon, Jr., Assistant Attorney General, Civil Rights and Claims Division, Nashville, Tennessee, for the intervening appellee, the State of Tennessee.


Karen Crespo and Freddie Crespo filed this medical malpractice action in August 2007, alleging negligence preceding the birth of their daughter, Laura Crespo, in December 2001. The defendants -- OB/GYN physician Carol McCullough, OB/GYN nurse Jerilyn H. Boles, Tennessee Women's Care, P.C., and Women's Health Alliance, P.C. -- moved for dismissal, claiming the suit is barred by this state's three-year statute of repose for medical malpractice claims, Tenn. Code Ann. section 29-26-116(a) (2000), as interpreted by the Tennessee Supreme Court in Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005). The plaintiffs allege that the statute is unconstitutional as applied to their case. The State of Tennessee intervened to defend the statute's constitutionality. The trial court dismissed the case, but stated in its order that "Plaintiffs' constitutional arguments are important [and] worthy of review" and "would be best addressed by the appellate courts." The plaintiffs appeal. We hold that Calaway's interpretation of section 29-26-116(a) -- extending the statute of repose to minors -- effectively overturned a body of law that the plaintiffs had reasonably relied upon, and that the sudden reversal of those precedents, without any opportunity for the plaintiffs to pursue their vested claims, worked a violation of these plaintiffs' due process and equal protection rights. Accordingly, we reverse and remand for further proceedings.


Swiney Dissenting


Court: TCA


Glenna W. Overton, Knoxville, Tennessee, for the appellants, Travis Goodman and Stephanie Goodman.

Joe R. Judkins, Wartburg, Tennessee, for the appellee, Kathy Jones Kelly.


Travis and Stephanie Goodman ("Buyers") filed a lawsuit for monetary damages or rescission of a residential deed due to defects in a septic system. Buyers sued under the theories of breach of contract, misrepresentation, fraud and violation of the Tennessee Consumer Protection Act. Buyers argue that they did not plead a violation of Tenn. Code Ann. section 66-5-208 (2004) of the Tennessee Residential Property Disclosures Act; however, the trial court treated the case as one under the Act. The jury returned a verdict for Seller. Reviewing the record de novo, we hold that the theories of breach of contract and negligent misrepresentation were pleaded and supported by the proof. These causes of action should have been charged to the jury. We also hold that the parties litigated the issue of intentional misrepresentation and that the trial court charged the jury on this issue. In addition we hold that material evidence supports the jury's verdict for Seller under theories of intentional or willful misrepresentation of the condition of the subject property under the statute or common law. Accordingly, we affirm in part, vacate in part and remand with instructions.



Court: TCA


Robert J. Turner, Nashville, Tennessee, for the appellant, John Wesley Hutcherson, Jr.

David Kennedy, Jr., Nashville, Tennessee, for the appellee, Elizabeth Vantrease.


The decedent's last surviving child, who claims that a photocopy of a forty year old handwritten document is his mother's last will and testament, appeals the finding that the proof was insufficient to admit the document to probate. The administration of this estate was initiated when a granddaughter of the decedent filed a petition to open her grandmother's estate. She sought either to admit the photocopy of the holographic document to probate or, in the alternative, to open an intestate estate. The son filed an answer to the petition asserting the photocopy of the holographic document should be admitted to probate as his mother's last will and testament. Following a hearing on the petition, the trial court denied the petition to admit the purported will to probate and, alternatively, appointed the petitioner as the administratrix of her grandmother's intestate estate. The son then filed a Motion to Set for Final Hearing and Stay Sale of Real Property, alleging that he was not allowed to put on evidence at the first hearing. Following a hearing on the motion, the trial court entered an order stating that the son had expressly waived his right to present evidence at the prior hearing and affirmed its earlier ruling. On appeal, the son contends the petitioner had an affirmative duty to prove the photocopy of the holographic document was his mother's last will and testament and failed to fulfill that duty, and that the trial court erred by not allowing him to put on proof. We have determined that the petitioner, the granddaughter who obtained a photocopy of the holographic document, fulfilled her duty by delivering the purported testamentary instrument to the probate court. We have also determined that the son waived his right to put on proof. The evidence in the record is wholly insufficient to establish that the photocopy of the holographic document was the last will and testament of the decedent. We therefore affirm.



Court: TCA


Alan G. Crone, James J. Webb, Jr., Memphis, TN; John S. Wilder, Sr., Somerville, TN; Thomas H. Brill, Mission Hills, KS, for Appellants.

Paul G. Summers, Lela M. Hollabaugh, Nashville, TN; Joel B. Kleinman, Lisa M. Kaas, Washington, D.C.; Jef Feibleman, Memphis, TN; Amelia A. Fogleman, Tulsa, OK; Jeffrey M. Shohet, Mark H. Hamer, San Diego, CA; Cannon F. Allen, Brian S. Faughnan, Memphis, TN, for Appellees.


Plaintiffs sued natural gas companies under the Tennessee Trade Practices Act, Tenn. Code Ann. section 47-25-101, et seq., alleging that the natural gas companies conspired unlawfully to increase the wholesale price of natural gas. The trial court granted the natural gas companies' motion to dismiss on the basis of federal preemption. We reverse and remand for further proceedings.



Court: TCCA


Keith A. Haas, Newport, Tennessee, for the appellant, Danny Ralph Troutman.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James B. Dunn, District Attorney General; and Amanda H. Inman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Danny Ralph Troutman, was found guilty by a jury in the Cocke County Circuit Court of driving under the influence, fourth offense, a Class E felony. The trial court imposed a sentence of two years. On appeal, the appellant questions whether "[t]he State failed to properly self authenticate the [appellant's] Tennessee driving record," and he challenges the sufficiency of the evidence supporting his conviction. Upon our review of the record and the parties' briefs, we reverse the appellant's conviction for DUI, fourth offense; modify the conviction to reflect the appellant's guilt of DUI, first offense; and remand for resentencing on the new conviction.



Election 2008
Legal News
Disciplinary Actions
TBA Member Services

Election 2008
Miss. judicial campaign ad labeled 'misleading'
A television ad that claims Mississippi Supreme Court Justice Oliver Diaz Jr. "voted for" two baby killers and a man executed for beating a woman to death has been labeled as misleading by a judicial elections committee, which condemned the ads for urging a "biased rather than an impartial court system."
Read more about the ad and the campaign in the Clarion Ledger
Fundraising passes $1.2 million in Supreme Court race
In related news, the campaigns for seats on the Mississippi Supreme Court are also getting expensive. The chief justice and his challenger have now raised more than $1.2 million in the race to serve on the court.
Read more in the Commercial Appeal
Turnout in early voting passes 2004 record
Voter turnout had already set a new Tennessee record going into today's last day of early voting. Election officials said the state was already more than 100,000 voters ahead of the 2004 record total of 1.13 million.

Tennessee voters who are in the hospital and unable to go to the polls on Tuesday can still request that a ballot be hand delivered to them. If the voter makes the request before polls open at 7 a.m. on Tuesday and if the hospital is in the county in which they reside, a ballot will be delivered to them by election deputies. For more information, contact your local county election office.
Read more in the Knoxville News Sentinel
Legal News
Baker Center opens with high ambitions
The University of Tennessee's Howard H. Baker Jr. Center for Public Policy opens tomorrow with high ambitions: to become the leading public policy institute in the United States. Officials say the center will focus on energy, the environment, health care and national security -- issues that have been at the heart of this year's presidential election campaign.
Read more in the Knoxville News Sentinel
Disciplinary Actions
Nashville lawyer suspended
Nashville lawyer Ronald K. Nevin was suspended on Oct. 27 for six months by the Tennessee Supreme Court. The suspension is related to three complaints against Nevin in his role as a public guardian. He was found to have improperly transferred money from his trust account to a conservatorship account, failed to preserve the identity of the ward's money, improperly retained interest owed to the ward's account, and commingled trust fund accounts. Further, he failed to file an accurate inventory of the ward's assets and misrepresented the value of the client's estate to the probate court. In the third matter, Nevin failed to safeguard a minor's assets resulting in a tax sale of the minor's property.
Read the full BPR release
TBA YLD plans UT Law visit
The TBA Young Lawyers Division will wrap up its 2008 fall law school outreach efforts next week with a visit to the University of Tennessee College of Law on Thursday, Nov. 6. All lawyers are invited to come by the law school rotunda for pizza at noon or from 11 a.m. to 4 p.m. to interact with students, or attend an evening reception from 5:30 to 7 p.m. at Oodles Uncorked in Market Square. For more information or to RSVP contact the YLD

Brooks & Dunn appear in law school program, webcast
Entertainers Brooks & Dunn will be featured in the University of Tennessee College of Law's upcoming Joel A. Katz-SunTrust Lecture Series on Nov. 3. Kix Brooks and Ronnie Dunn will join Joel A. Katz and Bobby Rosenbloum of Greenberg Traurig LLP in discussing entertainment law for about an hour. The webcast of the program is available free, beginning at 12:30 p.m. EST.
Learn more or access the webcast
TBA Member Services
UPL enforcement resources available
The TBA Committee on the Protection of the Public from the Unauthorized Practice of Law encourages local bar leaders to review the sample protocol for handling UPL complaints and to urge adoption by local bar associations. The sample protocol is available on the TBA website, along with the other UPL resources.
Visit the UPL webpage for more information

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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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