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Thursday, August 13, 2009

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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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WENDELL P. BAUGH, III, ET AL. v. HERMAN NOVAK, ET AL.
With Dissenting Opinion

Court: TCA

Attorneys:

Paul R. White and Keith A. Turner, Nashville, Tennessee, for the appellants, Herman Novak and Faith Novak.

Stephen C. Knight and Nader Baydoun, Nashville, Tennessee for the appellees, Wendell P. Baugh, III, and Laura W. Baugh.

Judge: FARMER

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.

http://www.tba2.org/tba_files/TCA/2009/baughw_081309.pdf

HIGHERS Dissenting
http://www.tba2.org/tba_files/TCA/2009/baughw_diss_081309.pdf

FAYE BLACK v. CITY OF MEMPHIS

Court: TCA

Attorneys:

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.

Judge: KIRBY

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 court�s order does not indicate a finding that sanctions against the municipality were warranted.

http://www.tba2.org/tba_files/TCA/2009/blackf_081309.pdf

JOHN C. BLAIR v. ROBERT SULLIVAN, JR., ET AL.

Court: TCA

Attorneys:

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.

Judge: STAFFORD

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.

http://www.tba2.org/tba_files/TCA/2009/blairj_081309.pdf

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
Consolidated Appeal

Court: TCA

Attorneys:

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.

Judge: KIRBY

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.

http://www.tba2.org/tba_files/TCA/2009/columbusmed_081309.pdf

ROBIN FARLEY, ET AL. v. OAK RIDGE MEDICAL IMAGING, P.C., ET AL.

Court: TCA

Attorneys:

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.

Judge: SUSANO

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.

http://www.tba2.org/tba_files/TCA/2009/farleyr_081309.pdf

EMMA LOU HALE v. GERALD D. HALE AND BONNIE F. HALE

Court: TCA

Attorneys:

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.

Judge: BENNETT

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.

http://www.tba2.org/tba_files/TCA/2009/halee_081309.pdf

ANNE S. WILSON v. SCOTT BOWMAN
With Concurring Opinion

Court: TCA

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Scott Bowman.

Claire M. Sawyer and Lew Conner, Nashville, Tennessee, for the appellee, Anne S. Wilson.

Judge: BENNETT

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.

http://www.tba2.org/tba_files/TCA/2009/wilsona_081309.pdf

CLEMENT concurring
http://www.tba2.org/tba_files/TCA/2009/wilsona_con_081309.pdf

MICHAEL LEBRON ANDERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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.

Judge: OGLE

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.

http://www.tba2.org/tba_files/TCCA/2009/andersonl_081309.pdf

STATE OF TENNESSEE v. MARILYN MAXINE BAKER

Court: TCCA

Attorneys:

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.

Judge: WEDEMEYER

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.

http://www.tba2.org/tba_files/TCCA/2009/bakerm_081309.pdf

STATE OF TENNESSEE v. WILLIAM R. COOK

Court: TCCA

Attorneys:

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.

Judge: WELLES

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.

http://www.tba2.org/tba_files/TCCA/2009/cookw_081309.pdf

STATE OF TENNESSEE v. BRUCE WAYNE CRENSHAW

Court: TCCA

Attorneys:

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.

Judge: WEDEMEYER

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.

http://www.tba2.org/tba_files/TCCA/2009/crenshawb_081309.pdf

TODAY'S NEWS

Legal News
Politics
Disciplinary Actions
Upcoming
Passages
TBA Member Services

Legal News

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.

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

Politics

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

Disciplinary Actions

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

Upcoming

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.

Passages

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.