Commission recommends 3 to fill 30th District vacancy

The Judicial Nominating Commission on Saturday recommended three candidates to Gov. Phil Bredesen to fill the vacancy in the 30th Judicial District created by the retirement of D'Army Bailey. Those selected at the Memphis meeting are: Venita Marie Martin of Glanker Brown PLLC in Memphis, JoeDae L. Jenkins, a Bartlett attorney, and Rhynette Northcross Hurd, a Collierville attorney.
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DOROTHY KING, R.N. and PATRICIA BATTLE, R.N., ET AL. v. VIRGINIA BETTS, Commissioner of the Tennessee Department of Mental Health and Developmental Disabilities, in her individual capacity, ET AL.

Court: TCA


William J. Haynes, Nashville, TN, for the Appellant, Patricia Battle, R.N.

Robert E. Cooper, Jr., Attorney General and Reporter, and Michael E. Moore, Solicitor General, John W. Dalton, Senior Counsel, Nashville, Tennessee, for Appellees, Virginia Betts, Lynn McDonald, Dr. Lindsey Douglas and Glynda Heinicke.


This is a 42 U.S.C. SECTION 1983 claim based on alleged retaliation in violation of the First Amendment. Appellant claims that Appellees retaliated against her in her employment for speaking out against a hospital policy. Appellees assert the defense of qualified immunity. Appellant appeals from the trial court's decision to grant summary judgment and judgment on the pleadings to the Appellees. Finding that there are material issues of fact in dispute, we reverse the trial court's grant of summary judgment. Further, we find that Appellant has stated a claim upon which relief may be granted and, therefore, reverse the trial court's decision to grant Appellees' motion for judgment on the pleadings. Affirmed in part, reversed in part and remanded.


Court: TCA


Scottie O. Wilkes, Memphis, Tennessee, for the Plaintiff/Appellant, Michael Sowell.

Kyle C. Atkins, Humboldt, Tennessee, for the Defendant/Appellee, Estate of James W. Davis.

Judge: KIRBY

This appeal involves Tennessee's savings statute. The plaintiff filed a tort lawsuit against the defendant. During the pendency of the action, the defendant died. The plaintiff did not file a motion to substitute the proper party for the deceased defendant, as required under T.R.C.P. 25.01. The lawsuit was not dismissed on that basis. The trial court allowed the plaintiff to take a voluntary nonsuit. The plaintiff re-filed the instant lawsuit within one year, making the same allegations as in the original action but naming the estate of the decedent as the defendant. The estate filed a motion to dismiss, arguing that the savings statute was inapplicable because the original lawsuit should have been dismissed pursuant to T.R.C.P. 5.01 for failure to substitute the proper party, and because the defendants in the original lawsuit and the re-filed lawsuit were not identical. The trial court granted the estate's motion to dismiss on both grounds. The plaintiff now appeals. We reverse, finding that the estate's argument that it is not an entity capable of being sued has been waived, and concluding that the trial court erred in determining that the savings statute was inapplicable.


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