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Thursday, June 09, 2011

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Sen. Norris, others to speak on tort law changes

Drastic statutory changes are coming to Tennessee tort law and the Tennessee Bar Association has two CLE programs coming up to help you understand what the changes mean for you and your clients. On June 29, Memphis attorney Mark Norris, who was Senate sponsor of the Tennessee Civil Justice Act, will present a one-hour webcast to break down the general structure of civil practice under the new bill. For a deeper understanding of the law, the TBA will present a day-long program on Aug. 12 at the Tennessee Bar Center, produced by the TBA's Tort and Insurance Practice Section.

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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

CITY OF HARRIMAN, TENNESSEE v. ROANE COUNTY ELECTION COMMISSION ET AL.

Court: TSC

Attorneys:

Jack H. McPherson Jr., Kingston, Tennessee, and Thomas M. Hale, Knoxville, Tennessee, for the appellant, City of Kingston, Tennessee.

Harold D. Balcom Jr., Kingston, Tennessee, for the appellee, City of Harriman, Tennessee.

Judge: HOLDER

Two municipalities sought to annex the same territory outside the urban growth boundaries for both municipalities set forth in the county's growth plan. One municipality attempted to annex territory that was not within its urban growth boundary by proposing an amendment to the county growth plan and enacting an ordinance annexing the territory. A second municipality annexed the same territory by an annexation referendum pursuant to Tennessee Code Annotated sections 6-51-104 to -105 and 6-58-111(d)(2). We granted permission to appeal in this case to address the application of Tennessee Code Annotated sections 6-58-101 to -116 to these municipalities' annexation efforts. After considering the related statutes, we hold that Tennessee Code Annotated section 6-58-111 requires an amendment to the county growth plan for a municipality to effect an annexation of territory beyond its urban growth boundary by ordinance. We reverse the judgment of the Court of Appeals and reinstate the chancery court's order dismissing the case.

http://www.tba2.org/tba_files/TSC/2011/harriman_060911.pdf

MCCALL BRISTER v. HCA HEALTH SERVICES OF TENNESSEE, ET AL.

Court: TCA

Attorneys:

Jeffrey Scott Frensley, Nashville, Tennessee, for the appellant, McCall Brister.

Brian D. Cummings and James Charles Sperring, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, d/b/a HTI Memorial Hospital Corp., and d/b/a Skyline Medical Center, Madison Campus.

Judge: DINKINS

This is an appeal from the trial court's grant of a hospital's motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff's claim sounded in medical malpractice and dismissed plaintiff's claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff's complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCA/2011/bristerm_060911.pdf

TERRY LAKE AND LINDA OUSLEY V. LOUIS HAYNES, BARBARA HAYNES AND RUNNING BEAR CONSTRUCTION

Court: TCA

Attorneys:

Scott A. Frick, the Frick Law Firm, PLLC, Memphis, Tennessee, for Plaintiff/Appellees, Terry Lake and Linda Ousley

Stephen F. Libby, The Law Offices of Stephen F. Libby, Memphis, Tennessee, for Defendant/Appellants, Louis Haynes, Barbara Haynes, and Running Bear Construction

Judge: KIRBY

This is a construction case. The plaintiffs hired the defendant construction company to build two residential houses. Disputes arose during construction over completion of the work and the plaintiffs did not make some payments to the construction company. After the plaintiffs terminated the contract, they sued the defendant construction company. The construction company filed a counter-complaint. After a trial, the trial court dismissed the plaintiffs' complaint and the defendants' counter-complaint. However, the trial court failed to issue written findings of fact and conclusions of law as required under Rule 52.01 of the Tennessee Rules of Civil Procedure. We vacate the trial court's judgment and remand the cause to the trial court for written findings of fact and conclusions of law.

http://www.tba2.org/tba_files/TCA/2011/laket_060911.pdf

WILLIAM MAY v. ILLINOIS CENTRAL RAILROAD COMPANY

Court: TCA

Attorneys:

Stephen R. Leffler, Law Office of Stephen R. Leffler, Memphis, Tennessee and H. Chris Christy, Law Office of H. Chris Christy, Little Rock, Arkansas, for Plaintiff/Appellee, William May.

S. Camille Reifers and Brooks E. Kostakis, Boyle Brasher LLC, Memphis, Tennessee, for Defendant/Appellant, Illinois Central Railroad Company.

Judge: KIRBY

This appeal involves a claim under the Federal Employers' Liability Act. The plaintiff employee filed this lawsuit against the defendant railroad alleging injuries caused by his employment. The railroad company filed a motion for summary judgment, asserting that the employee's claims are time-barred. The railroad argued that, under the discovery rule, the facts showed that the employee knew or should have known that his injuries were work-related more than three years before the lawsuit was filed. The trial court denied the motion for summary judgment. The railroad was granted permission for this interlocutory appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2011/mayw_060911.pdf

JENNY A. PENNINGTON v. CHRISTOPHER J. HENNESSEE

Court: TCA

Attorneys:

Eric J. Burch, Manchester, Tennessee, for the appellant, Jenny A. Pennington.

Robert Wesley Newman, McMinnville, Tennessee, for the appellee, Christopher J. Henneessee.

Judge: DINKINS

Mother filed a petition in 2010 to modify child support set in a 2005 order and parenting plan on the basis of a substantial and material change of circumstances. The trial court dismissed the petition, holding that there was not a significant variance in the parties' presumptive child support obligations in 2005 and 2010. Mother appeals, contending that the 2005 order and parenting plan are void because they relieved Father of his obligation to pay child support. Finding that the 2005 order fails to comply with Tenn. Code Ann. section 36-5-1-1(e)(1)(A) and Tenn. Comp. R. & Regs. Ch. 1240-2-4-.02(7), we reverse the judgment and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCA/2011/penningtonj_060911.pdf

READY MIX, USA, LLC., v. JEFFERSON COUNTY, TENNESSEE
With Dissenting Opinion

Court: TCA

Attorneys:

S. Douglas Drinnon and Larry Ray Churchwell, Dandridge, Tennessee, for the appellant, Jefferson County, Tennessee.

Arthur G. Seymour, Jr., and Benjamin C. Mullins, Knoxville, Tennessee, for the appellee, Ready Mix, USA, LLC.

Judge: FRANKS

Defendant issued a stop work order against plaintiff to cease mining activities on plaintiff's property. Plaintiff brought suit in Chancery Court seeking a declaratory judgment on the issue. A bench trial was held and the Trial Court adopted the doctrine of diminishing assets and that Ready Mix had established a pre-existing and non-conforming use on its property pursuant to Tenn. Code Ann. section 13-7-208 (b)(1). Defendant has appealed and we hold on this record that plaintiff was required to exhaust its administrative remedies prior to filing an action in Chancery Court.

http://www.tba2.org/tba_files/TCA/2011/readymix_060911.pdf

SUSANO dissenting
http://www.tba2.org/tba_files/TCA/2011/readymix_DIS_060911.pdf

STEPHEN LYNN HUGUELEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kelly Gleason and Sara Willingham, Nashville, Tennessee, for the appellant, Stephen Lynn Hugueley.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; D. Michael Dunavant, District Attorney General; Terry Dycus and Joe Van Dyke, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Following affirmance on direct appeal of his murder conviction and accompanying sentence of death, State v. Hugueley, 185 S.W.3d 356 (Tenn. 2006), the Petitioner, Stephen Lynn Hugueley, filed a pro se petition for post- conviction relief. The post-conviction court appointed the Office of the Post-Conviction Defender to represent the Petitioner. The Petitioner thereafter wrote the post- conviction court expressing his desire to withdraw his petition for post-conviction relief. A competency hearing was held in November 2008. On January 8, 2009, the post- conviction court found the Petitioner competent and entered an order dismissing the petition for post-conviction relief. A notice of appeal was filed on February 19, 2009. The Petitioner filed a motion to remand the matter to the post-conviction court. The motion was predicated upon the Petitioner's desire to proceed with any and all available challenges to his conviction and sentence. This court entered an order concluding that the motion to remand shall be heard contemporaneously with arguments on the merits of the Petitioner's Rule 3 appeal. On appeal to this court, the Petitioner presents a number of claims related to the lower court's determination that he was competent to withdraw his petition for post-conviction relief, including the lower court's denial of independent experts, medically appropriate experts, and sufficient time to prepare. Following a thorough and exhaustive review of the record and the applicable law, this court declines to expand the precedent established in Pike v. State and concludes that the Petitioner may not belatedly withdraw his decision to dismiss his petition for post-conviction relief. Additionally, this court concludes that the post-conviction court did not err in concluding that the Petitioner was competent to withdraw his motion. Accordingly, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/hugueleys_060911.pdf

DEWAYNE JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Errol Harmon, Memphis, Tennessee, for the Appellant, Dewayne Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarentz E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Petitioner, Dewayne Jones, of two counts of aggravated rape, and the trial court merged the convictions and sentenced him to twenty-two years as a Range I, violent offender. This Court affirmed the Petitioners convictions on direct appeal. The Petitioner filed a petition for post-conviction relief, which he later amended, and, after a hearing, the post-conviction court denied relief. The Petitioner now appeals, claiming the post-conviction court erred when it denied his petition for post-conviction relief because he received the ineffective assistance of counsel. After a thorough review of the record and relevant authorities, we conclude the post-conviction court properly dismissed the Petitioner's petition for post-conviction relief. As such, we affirm its judgment.

http://www.tba2.org/tba_files/TCCA/2011/jonesd_060911.pdf

STATE OF TENNESSEE v. NILE BRADLEY LARUE

Court: TCCA

Attorneys:

Bruce E. Poston (on appeal) and Gregory Paul Isaacs (at trial), Knoxville, Tennessee, for the appellant, Nile Bradley LaRue.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Knox County Criminal Court jury convicted the appellant, Nile Bradley LaRue, of voluntary manslaughter. After a sentencing hearing, the trial court sentenced him to six years to be served as one year in jail and the remainder on probation. On appeal, the appellant contends that (1) the evidence is insufficient to support the conviction, (2) the trial court committed plain error by instructing the jury on the defense of protection of property, and (3) his six-year sentence is excessive and the trial court erred by denying his request for full probation. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/laruen_060911.pdf

TODAY'S NEWS

Legal News
Career Opportunities
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TBA Member Services

Legal News

State files UPL suit in consumer protection effort

The state has filed suit against a woman alleged to be engaging in legal services without a license, Tennessee Attorney General Bob Cooper and Commerce and Insurance Division of Consumer Affairs Director Gary Cordell announced today. Martha Salazar, doing business as Comunidad Hispana on Nolensville Road in Nashville, is named in the lawsuit, alleging she is providing legal services without being licensed as an attorney. The state alleges that she has prepared immigration petitions, custody agreements and contracts and provided other legal services for primarily Spanish-speaking consumers

New recruiting model begins at Waller, Lansden

An apprenticeship program aimed to replace traditional on-campus recruiting will be launched by Waller Lansden Dortch & Davis on July 5. Under the program, called Schola2Juris, the firm will hire only 3Ls based on actual full-time openings. On that day, the firm will open the application process for rising 3Ls for up to 10 new jobs across the firm's various practice areas, including finance, environmental/regulatory, tax, labor and employment, real estate, intellectual property, health care, litigation and corporate.

Find out more from AmLaw Daily

'Restrictive' rules set for federal camera experiment

In a pilot program for camera coverage of federal district courts announced Wednesday, a restrictive set of rules has been announced, including that the cameras must be under the complete control of the court, either owned by the court or a contractor with the court, and no photos of jurors, jury voir dire, or sidebar conferences will be permitted. Also, the presiding judge must have the ability to switch off the coverage at any time, a requirement that has brought criticism for giving judges and the parties too much power over the process. The Western District of Tennessee is one of the 14 districts in the pilot program.

The Blog of Legal Times reports

'Web Sheriff' asks nicely for respect of copyright laws

Some in the recording industry are calling the tactic naive, but the company Web Sheriff's diplomatic strategy at trying to keep unlawful use of music is getting some attention. They are just asking nicely for people not to download music they are not supposed to have.

The Los Angeles Times has the story

Law school renovation wins architecture award

The Gulf States Region of the American Institute of Architects has given its highest honor to two Memphis firms -- Askew Nixon Ferguson Architects (ANFA) and Fleming Associates Architects -- for their "sensitive" renovation of the former U.S. Customs House/Post Office for the University of Memphis' Cecil C. Humphreys School of Law.

50 years of 'Mapp v. Ohio'

The U.S. Supreme Court's decision in Mapp v. Ohio celebrates its 50th anniversary on June 19. This is the decision spelling out the modern meaning of the Fourth Amendment prohibition against unreasonable searches and seizures and providing for the first time that the exclusionary rule -- barring evidence seized without a search warrant -- applied to state prosecutions.

Slate.com takes a detailed look at the decision

New domestic violence law adds new tools for judges

A new law will allow a court to assess costs against a person who has abused the system if there is clear and convincing evidence that first, the person was not a victim as claimed and, second, that the application for an Order of Protection was filed by a petitioner who knowingly submitted it falsely. The new law will also allow judges to require the person against whom an order of protection has been issued to pay off all costs, expenses and fees pertaining to their victim's breach of a lease or rental agreement.

The News Sentinel's Tom Humphrey has more

Career Opportunities

Transactional attorney sought in Knoxville

Special Counsel Inc. is seeking a transactional attorney for a boutique corporate law practice in Knoxville. Candidates must have a Tennessee law license, strong academic record, at least five years experience, and experience in M&A and commercial law. Qualified candidates should submit resumes to nashville@specialcounsel.com.