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Wednesday, October 20, 2010

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Retirement planning added as TBA benefit

At its fall meeting, the Tennessee Bar Association Board of Governors voted to make the American Bar Association Retirement Funds an endorsed benefits provider for association members. Established more than 40 years ago by the American Bar Association, the ABA Retirement Funds Program was created to help law firms of all sizes develop retirement plans that incorporate the specialized features they need -- easily and cost effectively -- while providing high quality products and services. The program's full service solutions include plan design, plan administration, investment flexibility, independent on-line investment advice and services for participants. Watch for more information on this program.

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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JOANN ABSHURE ET AL. v. METHODIST HEALTHCARE-MEMPHIS HOSPITALS

Court: TSC

Attorneys:

Al H. Thomas and Kenneth R. Besser, Memphis, Tennessee, for the appellants, Joann Abshure and Billy Jack Abshure.

William L. Bomar, Buckner P. Wellford, and Jacob A. Dickerson, Memphis, Tennessee, for the appellee, Methodist Healthcare-Memphis Hospitals.

Judge: KOCH

This appeal involves a vicarious liability claim against a hospital based on the conduct of an emergency room physician. A patient and her husband filed a medical malpractice suit in the Circuit Court for Shelby County against a hospital and two physicians, one of whom had treated the patient in the hospital's emergency room. Among other things, the complaint broadly alleged that the hospital was vicariously liable for the conduct of its agents. After the plaintiffs voluntarily dismissed their claims against both physicians for the second time, the hospital sought the dismissal of the vicarious liability claims on the ground that the plaintiffs' claims against its apparent agent, the emergency room physician, were barred by operation of law. The trial court granted the hospital's motion, and the Court of Appeals affirmed the dismissal of the vicarious liability claims against the hospital. Abshure v. Upshaw, No. W2008-01486-COA-R3-CV, 2009 WL 690804, at *5 (Tenn. Ct. App. Mar. 17, 2009). We granted the Tenn. R. App. P. 11 application filed by the patient and her husband to determine whether their vicarious liability claims against the hospital should be dismissed under the facts of this case. We have determined that the lower courts erred by dismissing the vicarious liability claims against the hospital.

http://www.tba2.org/tba_files/TSC/2010/abshurej_102010.pdf

DEBRA M. BARKES ET AL. v. RIVER PARK HOSPITAL, INC.

Court: TSC

Attorneys:

David Randolph Smith, Edmund J. Schmidt III, and John B. Carlson, Nashville, Tennessee, for the appellant, Debra M. Barkes, individually and as surviving spouse of Jewell Wayne Barkes.

C.J. Gideon, Jr., Bryan Essary, and Brian Cummings, Nashville, Tennessee, for the appellee, River Park Hospital, Inc., d/b/a River Park Hospital.

Robyn E. Smith and William B. Hubbard, Nashville, Tennessee, for amicus curiae Tennessee Hospital Association.

Judge: LEE

In this medical negligence case, we review a jury verdict against a hospital based on the hospital's failure to enforce its policies and procedures in patient care. Tennessee law has long recognized that a hospital has a duty to its patients to exercise that degree of care, skill, and diligence used by hospitals generally in its community. After reviewing the record, we hold that material evidence supports the jury's determination that the hospital was 100% at fault for the patient's death. We therefore reverse the Court of Appeals and reinstate the verdict of the jury.

http://www.tba2.org/tba_files/TSC/2010/barkesd_102010.pdf

MARTHA GRAHAM v. CLINTON CAPLES ET AL.

Court: TSC

Attorneys:

Melanie M. Stewart and Matthew S. Russell, Germantown, Tennessee, for the appellant, Clinton Caples.

Louis P. Chiozza, Jr., and John W. Leach, Memphis, Tennessee, for the appellee, Martha Graham.

Judge: LEE

The issue presented in this interlocutory appeal is whether the plaintiff's suit for damages was timely filed. The plaintiff and the defendant were involved in a traffic accident on November 4, 2006. Within a year of the accident, on November 2, 2007, the plaintiff filed a civil warrant with the general sessions court clerk against the defendant driver and, erroneously, against herself, seeking damages for personal injuries and property damages. The warrant, although marked "filed," was not signed by the clerk, had no docket number or issuance date, and was not served on the defendants. Thereafter, on November 13, 2007, the plaintiff filed an "Amended Civil Warrant" against the defendant driver and the defendant owner of the vehicle, seeking damages for personal injuries and property damages. This warrant was properly signed by the clerk, had a docket number and an issuance date, and was served on the defendants. The defendants filed a motion to dismiss, asserting that the first warrant was not valid and that the second warrant had been filed outside the one-year statute of limitations for personal injuries. The trial court granted the motion to dismiss as to the defendant owner and denied the motion as to the defendant driver. We hold that pursuant to Tennessee Code Annotated sections 16-15-710 and 16-15-716, a civil action in the general sessions court is not commenced for purposes of tolling the statute of limitations until the warrant is issued by the clerk. Because the original warrant filed by the plaintiff on November 2, 2007, was not issued by the clerk, the plaintiff's cause of action was not commenced at that time. The plaintiff's claim for personal injuries in the "Amended Civil Warrant" filed on November 13, 2007, was not timely filed within the one-year statute of limitations period and must be dismissed. The plaintiff's claim for property damages in the "Amended Civil Warrant" was timely filed within the three-year statute of limitations period.

http://www.tba2.org/tba_files/TSC/2010/grahamm_102010.pdf

THEO KAMPERT, ET AL. v. VALLEY FARMERS COOPERATIVE, ET AL.

Court: TCA

Attorneys:

Walter W. Bussart, Lewisburg, Tennessee, for the appellees, Theo Kampert and Ruth Kampert and Kampert Dairy, LLC.

Howard Chris Trew, Athens, Tennessee, for the appellants, Valley Farmer's Cooperative, and Freddie Brewster, individually and as CEO of Valley Farmer's Cooperative, LLC, and Eric Risser, individually and as Project Manager for Valley Farmer's Cooperative, LLC.

Judge: COTTRELL

We agreed to hear this extraordinary appeal in order to decide whether the proper venue for a case involving the breach of a construction contract is in the county named in the forum selection clause of the contract, or in the county where the realty is located upon which the construction took place. We hold that the forum selection clause determines the proper venue, because the underlying action cannot fairly be characterized as an action for injury to real property and is, thus, a transitory action.

http://www.tba2.org/tba_files/TCA/2010/kampertt_102010.pdf

IN RE: KAYLEI M.D.T.

Court: TCA

Attorneys:

Patricia A. Basham, East Ridge, Tennessee, for the appellant, Mark J.T.

Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Senior Counsel, General Civil Division, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

John Allen Brooks, Chattanooga, Tennessee, Guardian Ad Litem.

Judge: SUSANO

This is a termination of parental rights case. The appellee, Tennessee Department of Children's Services, has filed a motion to dismiss based upon its assertion that the Court "lacks jurisdiction to consider [the appellant"s] appeal." We agree with the appellee. Accordingly, this appeal is dismissed with costs taxed to the appellant, Mark J.T.

http://www.tba2.org/tba_files/TCA/2010/kayleimdt_102010.pdg

TODAY'S NEWS

Legal News
Celebrate Pro Bono
Passages
General Assembly News
Disciplinary Actions
TBA Member Services

Legal News

Flooded-out law firm bounces back

When Marian Fordyce and Deanna Raih became law partners in 2009, they couldn't have foreseen how much the Flood of 2010 would impact their practice. At the time of the May flooding, both lawyers were practicing out of their homes -- Fordyce in Bellevue, one of the hardest-hit communities. She lost her house, two cars and her office files. But through months of renovation and restructuring, Fordyce and Raih have come back strong.

Read their story in The Westview

Public prayers before football game will stop after complaint

Officials at a public high school near Chattanooga have agreed to stop the practice of saying a Christian prayer over the loud speaker before its football games, WMC-TV reports. A Wisconsin-based group had contacted school board officials at the request of some students at Soddy-Daisy High School, the school with the tradition of praying before games. The Freedom from Religion Foundation called the practice a "serious and flagrant violation of the First Amendment." Hamilton County Board of Education member Rhonda Thurman, who represents Soddy-Daisy, said the prayers were part of the school's tradition, and that anyone who didn't want to hear could "put their fingers in their ears. Everybody is offended by something," she said. "I'm offended by a lot of those little girls running around with their thong panties showing, but I can't make that go away."

The Chattanooga Times Free Press has the background

Request for apology baffles attorney, offends Hill

Harvard law professor Charles Ogletree, who represented Anita Hill in 1991 when she claimed sexual harassment by then-Supreme Court nominee Clarence Thomas, says he is "shocked" by the recent request made by Thomas's wife. "There's no way to explain it as a thoughtful, rational step by anyone to take," says Ogletree, describing the call Thomas's wife, Virginia, made to Hill seeking an apology for her husband. NPR's news blog has more. "I have no intention of apologizing because I testified truthfully about my experience and I stand by that testimony," Hill, now a Brandeis University professor, said in a statement released Tuesday night.

The Leaf Chronicle carried this AP story

West says he was not given choice after new rules began

Attorneys for death row inmate Stephen Michael West say that authorities have not followed proper protocol for his Nov. 9 execution, and asks the court to rule execution by electrocution unconstitutional under both the state and federal constitutions. West's suit claims that under the new execution protocol enacted in April 2007, those who committed a crime before Jan. 1, 1999, and are sentenced to death should be allowed to elect electrocution or lethal injection within 30 days before the execution date.

Read the City Paper's story

Attorneys celebrate Mediation Day in Tennessee

Chief Justice Connie Clark joined attorneys from across the state to celebrate Mediation Day at a reception last night at the Tennessee Bar Center in Nashville. Hosted jointly by the American Bar Association's Section of Dispute Resolution, the Tennessee Bar Association's Dispute Resolution Section, and the Coalition for Mediation Awareness in Tennessee, the event celebrated the strides that have been made in institutionalizing mediation as a dispute resolution process.

See photos from the event on TBAConnect

New magistrate Walker succeeds Haltom

Juvenile Court Judge Curtis Person Jr. recently administered the oath of office to David Walker, Juvenile Court's newest magistrate. Walker succeeds Claudia Haltom, who retired after 17 years as a magistrate.

The Commercial Appeal has more

Celebrate Pro Bono

'Padilla' seminar offered

Learn about immigration consequences of criminal convictions after Padilla v. Kentucky at a seminar hosted by Legal Aid of East Tennessee, the University of Tennessee College of Law and Centro Hispano de East Tennessee. The program, in Room 152 at the UT College of Law, is from 3:15 to 5:30 p.m., Oct. 22.

Learn more or register here

Passages

White Bluff lawyer Sheila Priebel dies

Sheila Jackson Priebel of White Bluff, Tenn., died Oct. 8, and was buried at the St. Patrick's Cemetery. She was 67. She was a U.S. Army veteran and a retired lawyer, graduating from the University of Detroit School of Law. In addition to many survivors, two of Mrs. Priebel's sons are currently in law school: Lt. Col. (Ret) Joseph F. Whelan Jr. will graduate from the University of Tennessee College of Law in 2011, and David Brent Whelan of Miami, Fla., attends the University of Miami School of Law. Her brother is Dickson County Juvenile Court Judge Andrew A. Jackson of Charlotte. The family asks that memorials to the Dickson Co. Humane Society or Breast Cancer Association.

Read her obituary from Taylor Funeral Home

Fran Wallas dies from fall

Nashville attorney Frances "Fran" R. Wallas, 68, died this morning as a result of a fall down stairs a few weeks ago in an East Tennessee home. She received a degree from the Nashville School of Law, taking a job in 1984 as an attorney for the Tennessee Department of Environment and Conservation, where she remained. Wallas was an avid hiker and outdoorswoman. Arrangements are incomplete at this time.