Published for comment: Amendments to appellate, civil and criminal procedure rules

Discovery of insurance coverage and changes to rules on providing that inadvertent disclosure does not waive a privilege are among those being considered in more than a dozen amendments to the Rules of Appellate, Civil and Criminal Procedure and Rules of Evidence published today by the Tennessee Supreme Court. The Court is inviting public comment on the proposals from its advisory commission not later than Nov. 30. Various sections and committees of the TBA will review the proposals for consideration of filing of any TBA comments.

The significant appellate rules changes include a requirement for a statement of the standard of review in TRAP 11 applications and in briefs; an expansion of time for the filing of trial record in criminal cases and matters on direct appeal to the Supreme Court from 60 to 90 days; and, an explicit provision permitting collection of costs related to amicus curiae filings.

In addition to the discovery of insurance coverage in the civil procedure arena, new rules would permit service on lawyers by emailing a PDF of a document; allowing a court to establish by local rule an electronic means to file with the court; and, a requirement mandating findings of facts and conclusions of law, without a request, in TRCP 41 involuntary dismissals. In the criminal arena, TRCrimP 5(e) is amended to set forth the entitlement to a preliminary hearing, the requirements for expeditious preliminary hearings,and a remedy for failure to report for preliminary hearings in criminal cases; and changes setting forth requirements for discovery related to examinations of competency to stand trial under TRCrimP 12.2.

Rule 5.02 of the Rules of Evidence is amended to provide that the inadvertent disclosure of privileged information or work product does not operate as a waiver if the holder of the privilege or work product takes reasonable steps to prevent disclosure and promptly attempts to rectify the error. This evidence rule change is advocated by the TBA to coincide with changes in the RPC 4.4 and discovery of electronically stored information rules.

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Court: TSC

CAROL J. CATALDO v. LARRY B. STANLEY, SR., Executor of the Estate of James Alton Julian, Deceased

Court: TCA


Michael D. Galligan, McMinnville, TN, for the Appellant, Carol J. Cataldo.

J. Stanley Rogers, Christina Henley Duncan, Manchester, TN, for the Appellee, Larry B. Stanley, Sr., Executor of the Estate of James Alton Julian, Deceased.


This case arises from the denial of Appellant's claim against the Appellee Estate of James Alton Julian. Because Appellant held and exercised a power-of-attorney, a confidential relationship existed. The trial court determined that Appellant failed to overcome the presumption of undue influence, that the claim was satisfied by a specific bequest in the decedent's will, and denied Appellant's alternate theory of quantum meruit. Finding no error, we affirm.


Court: TCA


Lucian T. Pera, Brian S. Faughnan, Memphis, Tennessee, for the appellant, Curtis S. Person.

Leo Bearman, Jr., Emily Turner Landry, Memphis, Tennessee, for the appellees, The Board of Commissioners of Shelby County, Tennessee, et al., and A. C. Wharton, Jr., Mayor of Shelby County, Tennessee.


In 1967, the General Assembly passed a Private Act consolidating the juvenile courts of Memphis and Shelby County by establishing a new court. The Act also provided for a second division, with the judgeship of that division to remain vacant until the County Commission determined the need for it. Almost forty years later, the Commission adopted a resolution approving the appointment of a judge to the second division of the court. The current judge of the Juvenile Court of Davidson County challenged the attempted creation of a second judgeship, arguing that the relevant portion of the Private Act constituted an unconstitutional delegation of the authority to ordain and establish courts, which power is reserved to the General Assembly by the Tennessee Constitution. Because a judge is a necessary component of a court, in order to "ordain and establish" a court under Art. VI, section 1, the legislation creating or establishing the court must make provision for a judge. The legislature cannot establish a court without also establishing a judgeship. Since Section 20 of the Private Act does not create or establish a judgeship for division 2, it did not effectively create or establish that division or court. Additionally, because in Section 20 of the Private Act the legislature delegated to the Commission the power to decide whether a judge for division 2 was needed, which is the equivalent of delegating to the Commission the authority to establish or create division 2 of the juvenile court, we conclude that Section 20 is an unconstitutional delegation of power reserved to the General Assembly by Art. VI, section 1 of the Tennessee Constitution and, therefore, reverse the trial court's holding on that issue. We affirm the trial court's ruling on Open Meeting Act claims based on a prior resolution that was promptly rescinded by the Commission.


Legal News
Disciplinary Actions
TBA Member Services

Legal News
Shelby will stay a one-juvenile-judge county
The Tennessee Court of Appeals today reversed a chancellor's 2007 ruling that allowed the Shelby County Commission to create a second judgeship. Attorneys for Juvenile Court Judge Curtis Person, who obtained a stay of the chancellor's ruling, argued that the action was unconstitutional, an argument endorsed by the three-member appellate panel. Read the opinion.
The Commercial Appeal reports
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Read about that in the Chattanooga Times Free Press
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Assistant Memphis City Attorney Veronica Coleman-Davis, who Mayor Pro Tem Myron Lowery wanted to replace City Attorney Elbert Jefferson, is running the legal department for now. Today Jefferson faxed a notice to City Hall, accompanied by a letter from his doctor, requesting sick leave until Oct. 19 -- which is four days after a special election to pick a new mayor of Memphis.
Read more in the Commercial Appeal
Editorial: Memphis crime report shows needs
In an editorial Sunday, the Commercial Appeal highlights the paper's investigative report, "True Crime," "an ugly, pathetic story of busted heads, shot dogs, burglar-trashed homes, robberies, car burglaries, domestic violence, senseless fights and the same people being repeatedly arrested for the same offenses." The story analyzes police incident reports from July 2000 to May 2009, and takes readers to the front lines, presenting dispatches from photographers and reporters who spent a week with the Memphis Police Department. The editorial calls for more personal responsibility in the war on crime and for citizens to "provide a climate of opportunity for all our citizens. That means creating jobs here that pay people a decent wage."
Read the editorial
Sotomayor, Yankees fan from Bronx, throws first pitch
Supreme Court Justice Sonia Sotomayor, a Yankees fan from the Bronx, threw out the pitch before New York beat the Boston Red Sox 3-0 on Saturday. "She walked off, and I said, 'We'll be calling you next week with a contract,'" Yankees manager Joe Girardi recalled. "And she said she'd stick to her day job."
WSMV-TV carried this AP story
Kennedy firm celebrates 25 years
As Clarksville lawyer Kevin Kennedy celebrates 25 years in business, he and lawyer John Maher recall some of the tougher times -- including the day after their building was hit by a tornado in 1999. "The bottom floor of the building was under water, and the top floor was collapsed. Bricks from the old courthouse had been blown over into our building," Maher said.
The Leaf-Chronicle has this story
Disciplinary Actions
Memphis lawyer reinstated after paying BPR fee
Memphis lawyer Heather Kirksey has been reinstated to the practice of law in Tennessee after paying the 2009 BPR fee and required fines.
View all attorneys suspended and reinstated for 2009 fee violations
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

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