|Thursday, August 13, 2009
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WENDELL P. BAUGH, III, ET AL. v. HERMAN NOVAK, ET AL.
With Dissenting Opinion
Paul R. White and Keith A. Turner, Nashville, Tennessee, for the appellants, Herman Novak and
Stephen C. Knight and Nader Baydoun, Nashville, Tennessee for the appellees, Wendell P. Baugh,
III, and Laura W. Baugh.
This case arises out of a business agreement between the parties. Plaintiffs executed a note to
purchase a company. The note contained a stock transfer restriction. Subsequently, Plaintiffs
entered into a business agreement with Defendants. The subject of that agreement is disputed in this
lawsuit, but Plaintiffs contend that Defendants purchased one-half of the company and executed an
indemnity agreement to indemnify Plaintiffs for one-half of the note on the purchase of the company.
After operating for nearly ten years, the company failed. At trial, Plaintiffs sought to enforce the
indemnity agreement, and Defendants counterclaimed to recover $73,000.00 that they paid to
Plaintiffs before they allegedly executed the contract. The trial court found in Plaintiffs' favor.
Defendants now appeal claiming that the trial court made several evidentiary errors, that the contract
is unenforceable because it violated the statute of frauds, that parol evidence regarding the terms of
the contract was inadmissible, and that the corporation cannot continue its existence and sell stock
after dissolution. We reverse the trial court's determination based on our finding that the contract
is unenforceable as a matter of public policy.
FAYE BLACK v. CITY OF MEMPHIS
Ernest L. Jarrett, Detroit, Michigan, and Mitzi H. Spell, Memphis, Tennessee, for the Plaintiff/Appellant Faye Black.
Henry L. Klein, Memphis, Tennessee, for the Defendant/Appellee City of Memphis.
This is a wrongful death case against a municipality. In 1987, the plaintiff's teenage son was shot and killed by a police officer. The plaintiff sued the officer and the municipality, asserting claims under both federal and state law. Years of proceedings and delay ensued. By 2005, the
only remaining claims were state law claims against the municipality. The parties filed crossmotions for summary judgment. The trial court granted summary judgment in favor of the plaintiff. The plaintiff then filed a motion for entry of judgment in the amount of $130,000, the
maximum damage award under the Tennessee Governmental Tort Liability Act. The plaintiff
filed separate motions for interest and costs. The municipality stipulated that if the court entered
a judgment it should be in the amount of $130,000, but argued that the plaintiff was prohibited
from recovering interest or costs in addition to the $130,000 judgment because such an award
would exceed the statutory damage cap. The plaintiff argued that the municipality's misconduct
prolonged the case and drove up costs, and that the court had authority to award costs in order to
sanction the municipality for this misconduct. The trial court entered a judgment for the plaintiff
in the amount of $130,000, but denied the plaintiff's motions for interest and costs, finding that
the Governmental Tort Liability Act precluded an award of discretionary costs in excess of the
statutory cap on damages, and did not award sanctions. The plaintiff appeals, arguing that the
court has authority to award sanctions in excess of the statutory damage cap. We affirm, finding
that the trial courtís order does not indicate a finding that sanctions against the municipality were
JOHN C. BLAIR v. ROBERT SULLIVAN, JR., ET AL.
George Todd East, Kingsport, Tennessee and Russell John Johnson, Memphis, Tennessee, for the Appellant, John Blair.
Melanie M. Stewart, Matthew S. Russell, Germantown, Tennessee, for the Appellee Robert Sullivan, Jr.
This appeal involves the plaintiff's negligence claim which arose from a motor vehicle accident with the defendant. Plaintiff first asserts that the trial court erred in allowing plaintiff's positive drug test to be admitted as evidence. Plaintiff also asserts that the trial court's jury instructions
were improper and that the jury's verdict is not supported by the evidence. Reviewing plaintiff's first assertion, we find that the trial court did not abuse its discretion in admitting the drug test as evidence. Likewise, we find that the jury instructions were proper and that there is material
evidence supporting the jury's verdict. Accordingly, we affirm the judgment of the trial court.
COLUMBUS MEDICAL SERVICES, LLC v. DAVID THOMAS AND LIBERTY HEALTHCARE CORPORATION
COLUMBUS MEDICAL SERVICES, LLC v. M. B. "JUN" PACRIS, JR., LYNNA JARDELEZA DAWN LOCKE, MARIA MADARANG, STEPHEN MONISIT, LIZA PABALATE, CANDI McMORRAN, MONICA ROBERTS, AND KIMBERLY CRAWFORD
Paul G. Summers, Michael K. Stagg, and Thomas H. Lee, Nashville, Tennessee; and Robert L. J.
Spence, Jr., Memphis, Tennessee, for the appellants, M.B. "Jun" Pacris, Jr., Lynna Jardeleza,
Dawn Locke, Maria Madarang, Stephen Monisit, Liza Pabalate, Candi McMorran, Monica
Roberts, Kimberly Crawford, and Liberty Healthcare Corporation.
Clarence A. Wilbon and William G. Whitman, Memphis, Tennessee, and Sean P. McDevitt, Berwyn, Pennsylvania, for the appellee, Columbus Medical Services, LLC.
This appeal involves a claim of tortious inducement to breach a non-compete covenant in an
employment agreement. The plaintiff staffing agency employed the defendant therapists at a
State residential care facility for severely disabled persons. The plaintiff agency staffed the
facility under an exclusive contract which was set to expire by its own terms in June 2003. The
therapists had executed restrictive covenants in their employment agreements with the plaintiff
staffing agency under which they were prohibited from working at the State facility for one year
after the termination of their employment with the plaintiff. The State requested bids to staff the
facility under a new contract. Through the bidding process, the defendant staffing agency was
awarded the contract. The defendant agency then met with the defendant therapists (who were
incumbent employees), staffed through the plaintiff agency, and offered to hire them to continue
working at the facility. The defendant staffing agency was aware of the non-compete covenants
and agreed to indemnify the defendant therapists if the plaintiff staffing agency tried to enforce
the covenants. The defendant therapists accepted positions with the defendant agency and
continued working at the facility. The plaintiff agency filed this lawsuit against the individual
defendant therapists and the defendant agency. After a bench trial, the trial court concluded that
the non-compete covenants were enforceable, that the defendant therapists had breached their
covenants, and that the defendant staffing agency had tortiously induced the individual defendant
therapists to breach their employment contracts. The defendants now appeal. We reverse,
concluding that, while the plaintiff agency had a legitimate protectable business interest, the noncompete
covenants are not enforceable in light of the hardship to the defendant therapists and the
adverse impact on the public interest.
ROBIN FARLEY, ET AL. v. OAK RIDGE MEDICAL IMAGING, P.C., ET AL.
Andree Sophia Blumstein and Mark Smith, Nashville, Tennessee, and James H. London and Jamie
Ballinger Holden, Knoxville, Tennessee, for the appellants, James Rouse, M.D., and Oak Ridge
Medical Imaging, P.C.
William D. Vines, III, Ronald C. Koksal and E. Riley Anderson, Knoxville, Tennessee, and Wendall K. Hall, Clinton, Tennessee, for the appellees, Robin Farley and Dennis Farley.
This is an appeal from a judgment entered on a jury verdict in the amount of $2,780,000 in a
medical malpractice action based upon a failure to detect and report an abnormality on a
mammogram. Robin Farley ("the Patient") and her husband, Dennis Farley ("the Husband"), are the
plaintiffs in this action; they are referred to collectively in this opinion as "the Plaintiffs." Dr. James
Rouse and his employer, Oak Ridge Medical Imaging, P.C., dba Oak Ridge Breast Center, P.C. ("the
Breast Center"), are the defendants, referenced collectively as "the Defendants." The Patient
reported to the Breast Center on November 15, 2001, for a mammogram. Dr. Rouse read the
mammogram and reported his findings as normal. In 2004, the Patient noticed an indentation in her
right breast. Follow-up care revealed stage IV incurable breast cancer. According to the Plaintiffs,
the cancer was present in 2001, and was treatable and curable had it been properly detected and
reported. The Defendants conceded very little and alleged, as an affirmative defense, that the Patient
knew that repeat mammograms were needed but failed to come back until it was too late. The case
was tried to a jury over four consecutive days. The jury began deliberations on a Friday and resumed
and announced its verdict on the following Monday. It found the Defendants negligent, but
apportioned 20% of the fault to the Plaintiffs, apparently based upon the Patient's failure to have a
timely follow-up mammogram. The Defendants appeal, raising a host of issues. We affirm.
EMMA LOU HALE v. GERALD D. HALE AND BONNIE F. HALE
L. Thomas Austin, Dunlap, Tennessee, for the appellants, Gerald D. Hale and Bonnie F. Hale.
J. Al Johnson, Spencer, Tennessee, for the appellee, Emma Lou Hale.
Plaintiff sought a partition by sale of property she owned as a tenant in common. The defendants
sought a partition in kind. The undisputed proof showed that the parcels were more valuable if sold
together than if they were divided and sold separately. The trial court ordered the property sold. The
defendants appealed. We affirm.
ANNE S. WILSON v. SCOTT BOWMAN
With Concurring Opinion
Thomas F. Bloom, Nashville, Tennessee, for the appellant, Scott Bowman.
Claire M. Sawyer and Lew Conner, Nashville, Tennessee, for the appellee, Anne S. Wilson.
This application for a Tenn. R. App. P. 10 extraordinary appeal concerns how an appealing party
may use a trial court's recording of a hearing. We grant the appellant's Rule 10 application. Furthermore, we reverse the chancellor's June 5, 2009 order and remand the matter for the chancellor
to rule on appellee's objections and resolve the parties' differences as to the content of the transcript
or statement of the evidence.
MICHAEL LEBRON ANDERSON v. STATE OF TENNESSEE
Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Michael Lebron Anderson.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney
General; William H. Cox, III, District Attorney General; and C. Matthew Rogers, Assistant
District Attorney General, for the appellee, State of Tennessee.
The petitioner, Michael Lebron Anderson, was convicted of burglary of a building other than a
habitation and was sentenced to twelve years in the Tennessee Department of Correction.
Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial
counsel was ineffective. The post-conviction court denied the petition, and the petitioner
appeals. Upon review, we affirm the judgment of the post-conviction court.
STATE OF TENNESSEE v. MARILYN MAXINE BAKER
Michael J. Collins, Shelbyville, Tennessee, for the Appellant, Marilyn Maxine Baker.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy
Wilber, Assistant Attorney General; Charles Crawford, District Attorney General; Michael D.
Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.
The Defendant, Marliyn Maxine Baker, pled guilty to two counts of driving under the influence ("DUI"), seventh offense, a Class E felony, two counts of driving on a revoked license, a Class B misdemeanor, and violating the implied consent law. The trial court sentenced the Defendant to an effective sentence of four years in the Tennessee Department of Correction ("TDOC"). The Defendant appeals, contending the trial court erred in setting the length of her
sentences. After a thorough review of the record and relevant authorities, we conclude the trial court
properly sentenced the Defendant. As such, we affirm the sentences imposed by the trial court.
STATE OF TENNESSEE v. WILLIAM R. COOK
Mark L. Puryear, III, Franklin, Tennessee, for the appellant, William R. Cook.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshe Dulany Faughn, Assistant Attorney General; Kim R. Helper, District Attorney General; and Josh D. Marcum, Assistant District Attorney General, for the appellee, State of Tennessee.
The Defendant, William R. Cook, was charged with driving under the influence (first
offense) ("DUI"), a Class A misdemeanor. See Tenn. Code Ann. section 55-10-403. The trial court denied
his motion to suppress the evidence obtained as a result of the traffic stop that led to the charges
against him. The Defendant thereafter pleaded guilty, but reserved for our consideration a certified
question of law regarding the constitutionality of the traffic stop supporting the charge against him.
After our review, we reverse the judgment of the trial court. The indictment charging the Defendant
with DUI is dismissed.
STATE OF TENNESSEE v. BRUCE WAYNE CRENSHAW
Kristen Neff and Mary-Katheryn Harcombe (at trial) and Emma Rae Tennent (on appeal), Nashville, Tennessee, for the Appellant, Bruce Wayne Crenshaw.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General;
Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.
A Davidson County jury found the Defendant, Bruce Wayne Crenshaw, guilty of aggravated
assault by causing extremely offensive or provocative physical contact with the victim, thereby
causing serious bodily injury to the victim. The trial court sentenced him to serve five years of
incarceration and to pay $2641.19 in restitution. The Defendant now appeals, and he claims: (1)
the indictment charges the Defendant with a form of aggravated assault that does not exist under
Tennessee case law; (2) the trial court erred when it did not instruct the jury on assault by
causing bodily injury to the victim as a lesser-included offense; and (3) the trial court erred when
it sentenced him to serve five years in the Tennessee Department of Correction. After a
thorough review of the record and the applicable law, we affirm the trial court's judgment.
| Legal News
TBA Member Services
|TBA board voting on judicial commission candidates
|The Tennessee Bar Association Board of Governors is meeting tonight to make recommendations on candidates for the new Judicial Nominating Commission, which will have a minimum of 10 and maximum of 14 seats for lawyers, and the Judicial Performance Evaluation Commission, which must have three lawyer members. The group's recommendations will be submitted to the speakers of the state House and Senate.
|Governor names 1st Judicial District public defender
|Gov. Phil Bredesen yesterday named attorney and assistant public defender Jeffery C. Kelly as the 1st Judicial District Public Defender, filling a vacancy created by the death of Bob Oaks in June. Kelly has worked as an assistant public defender in the office since it opened in 1989. He earned his law degree from the University of Tennessee College of Law in 1987. The 1st Judicial District serves the counties of Carter, Johnson, Unicoi and Washington. Kelly will stay in the role until the general election in August 2010, when he can run to retain the seat.
|Read more about Kelly in the Johnson City Press
|TBA recognized for work on IOLTA rule change
|The Memphis Daily News carried an article today about the Supreme Court's rule change requiring Tennessee attorneys to participate in the Interest on Lawyers' Trust Accounts (IOLTA) Program. The piece recognizes TBA immediate past president Buck Lewis for his role in the rule change, which will expand resources for legal aid programs around the state.
|Read the article
|New officers named to U of M law alumni board
|Memphis lawyer Richard Carter has been chosen president of the University of Memphis Cecil C. Humphreys School of Law Alumni Board, a position he will hold for one year. A 1980 law graduate, Carter is director and shareholder of the Memphis law firm Martin, Tate, Morrow & Marston. Four new alumni board members also have been named. They are James "Jimmy" Dickey (1983) of The Marston Group in Memphis; Mitch Moskovitz (1992) of Shea, King & Moskovitz in Memphis; Todd Presnell (1995) of Miller & Martin in Nashville; and John Winters (1993) of Kramer Rayson in Knoxville. Board members serve three-year terms.
|Williamson County bar elects new officers
|The Williamson County Bar Association has elected new officers for the bar year. They are President Jackson M. Welch Jr., with Sidwell, Barrett & Welch PC; Vice President and President-elect Kim Helper, District Attorney General for the 21st Judicial District; Secretary Charles E. Morton with Puryear, Newman & Morton PLLC; and Treasurer Elaine B. Beeler, Williamson County Chancery Court Clerk & Master. All are from Franklin.
|Sotomayor celebrated at White House
|President Barack Obama threw a big White House party last night to celebrate Sonia Sotomayor as the Supreme Court's first Latino justice. The event featured televised remarks from Obama and Sotomayor and a private reception for several hundred supporters, including Sotomayor's family and friends, lawmakers, issue advocates, Hispanic community leaders and two Supreme Court justices.
|Read remarks made at the event from the AP
|Herenton may run for mayor again
|Less than two weeks after retiring as Memphis mayor, Willie Herenton reportedly picked up a petition from the Shelby County Election Commission to run in the October 15 special mayoral election. Commenting on the move, Herenton said he still has every intention of running for the U.S. House of Representatives in 2010, but that dissatisfaction with the work of Mayor Pro Tem Myron Lowery has compelled him to "step forth to provide leadership."
|The Commercial Appeal reports
|Two lawyers reinstated
|Michael E. Tucci of Washington, D.C., and Martha Marie Eastman of Louisville, Ky., have been reinstated to the practice of law in Tennessee after paying their 2009 BPR fee and required fines.
|View all attorneys suspended and reinstated for 2009 fee violations
|Legal advice clinic planned for Saturday
|The Nashville branch of the NAACP and the Jones Law Group PLLC will host a free legal seminar on Saturday from 9 a.m. to noon in Nashville. Topics to be covered at the event, which is open to the public, include family law, criminal law, legal aid services, juvenile law, landlord tenant law, bankruptcy and other issues affecting minority and immigrant communities. The event will be held at the Matthew Walker Comprehensive Healthcare Center (1035 14th Ave. N.) and translators will be on site for Spanish speaking clients. For more information call Lynda F. Jones with The Jones Law Group at (615) 983-4500.
|Pioneering civil rights lawyer dies
|Pioneering civil rights lawyer Margaret Bush Wilson, the first woman to chair the NAACP's board of directors, has died at the age of 90. Wilson graduated from Lincoln University School of Law, created as a "separate-but-equal" school for blacks in Missouri, and was the second black woman to pass the Missouri state bar. She also was a member of the legal team in a Supreme Court case that held that restrictive covenants barring real estate sales to minorities were unenforceable.
|Read more about her life from the NAACP
|TBA Member Services
|First Tennessee is TBA's preferred provider
|First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more
|on the TBA Web site
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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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