Monday, August 29, 2011
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Comment on proposed rules amendments by Oct. 28

On Friday, the Tennessee Supreme Court released proposed 2012 amendments to the Rules of Practice and Procedure, with a comment deadline of Oct. 28. Proposed changes include the following provisions:

Rules of Appellate Procedure
-- Give an appeal as of right from an order correcting an order under Tennessee Rules of Criminal Procedure 3;
-- Provide that the first party to file a notice of appeal in a civil action is the appellant for purposes of the rules;
--Clarify the manner of appeal of a T.R.A.P. Rule 10 extraordinary appeal from an intermediate appellate court; and
-- Clarify that the time period for an extraordinary appeal of a Court of Criminal Appeals matter is not jurisdictional and may be waived by the Tennessee Supreme Court.

Rules of Civil Procedure
-- Extend the time for filing a motion to strike from 30 to 90 days; and
-- Impose a new notice requirement for subpoenas that a motion to quash must be filed within 14 days.

Rules of Criminal Procedure
-- Set a new time period for an appeal as of right from any corrected judgment or order.

Rules of Juvenile Procedure
-- Update terminology from "referee" to "magistrate"; from "Department of Human Services" to "Department of Children's Services"; and from "mentally retarded" to "intellectually disabled."

Download the proposed rules
TODAY'S OPINIONS
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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.
SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist_082911.pdf
DONNA FAYE SHIPLEY ET AL. v. ROBIN WILLIAMS
CORRECTION to the concurring and dissenting opinion

Court: TSC

Attorneys:

Wendy Lynne Longmire and Julie Bhattacharya Peak, Nashville, Tennessee, for the appellant, Robin Williams, M.D.

Joe Bednarz, Sr., Nashville, Tennessee, and Steven R. Walker, Memphis, Tennessee, for the appellee, Donna Faye Shipley, individually and as next friend and surviving wife of Frank Shipley, deceased.

Judge: LEE

OPINION SUMMARY
In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. S 29-26-115 (2000 & Supp. 2010). Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant's community. In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.

CORRECTION SUMMARY
On page 15 of the concurring and dissenting opinion, in the paragraph beginning "In addition to the activities," the word "exert" has been changed to "expert" and on page 16, in the last line, "William's" has been changed to "Williams's"

http://www.tba2.org/tba_files/TSC/2011/shipleyd_081111.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/shipleyd_DIS_CORR_082911.pdf
CHEROKEE INSURANCE COMPANY, INC. v. RALPH MCNABB

Court: TWCA

Attorneys:

Robert M. Asbury, Knoxville, Tennessee, for the appellant, Cherokee Insurance Company, Inc.

John P. Dreiser, Knoxville, Tennessee, for the appellee, Ralph McNabb.

Judge: BLACKWOOD

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Ralph McNabb ("Employee") sustained a right rotator cuff tear as the result of a motor vehicle collision while employed as a truck driver by Everhart Transportation ("Employer"). Employer was insured for workers' compensation by Cherokee Insurance Company, Inc. ("Insurer"). Employee underwent surgical repair of his right rotator cuff and was returned by Employer to a different, part-time position. Employee suffered a recurrent rotator cuff tear and thereafter retired. It is undisputed that Employee was not returned to employment at the same or greater wage than prior to his injury. Employee's treating physician and his evaluating physician both assigned him an anatomical impairment rating of 10% to the body as a whole, but with different restrictions. The trial court awarded 60% permanent partial disability ("PPD") to the body as a whole. Insurer has appealed, asserting that the award was excessive. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/cherokeeinsur_082911.pdf
SECURAMERICA BUSINESS CREDIT v. KARL SCHLEDWITZ and TERRY LYNCH

Court: TCA

Attorneys:

David J. Cocke, Memphis, Tennessee, for the appellants, Karl Schledwitz and Terry Lynch.

W.O. Luckett, Jr., Clarksdale, MS, and Lorrie K. Ridder, Memphis, Tennessee, for the appellee, SecurAmerica Business Credit.

Webb A. Brewer and Steven E. Barlow, Memphis, TN, for the Amicus Curiae, Tennessee Citizen Action Alliance, Inc.

Frank S. Cantrell, Bruce C. Harris, and Craig P. Barnes, Memphis, TN, for the Amicus Curiae, Memphis Area Legal Services, Inc.

Judge: STAFFORD

This is a guaranty case. Appellants personally guaranteed a line of credit for their trucking company. Later, Appellants sold the trucking company to two employees, but were not released by the Appellee lender from their guaranties. Under new ownership, the company falsified borrowing documents so that more money was extended on the line of credit than was collateralized per the loan agreement. This was done with the complicity of the lender, but without the knowledge of the guarantors. The debtor trucking company defaulted, and the lender sought repayment of the loan from the guarantors. Following a bench trial, the trial court found Appellants liable for their personal guaranties, but denied prejudgment interest and punitive damages due to what the court characterized as the fraudulent actions of Appellee. In an apparent clerical mistake, on the same date that the trial court entered its final judgment, it also entered an order voluntarily dismissing all claims against Appellants. More than a year later, the trial court entered an order clarifying its prior order of dismissal. After a thorough review of the record, we conclude that: (1) the trial court properly afforded Appellee relief under Tenn. R. Civ. P. 60.01 to clarify its prior order of dismissal; and (2) the trial court made incomplete and contradictory findings of fact and conclusions of law, such that further appellate review is precluded. Consequently, we vacate and remand for additional findings.

http://www.tba2.org/tba_files/TCA/2011/securamerica_082911.pdf
SARA ANN (SPENCER) WANGERIN v. SHAWN ALLEN WANGERIN

Court: TCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the appellant, Shawn Allen Wangerin.

Sara Ann (Spencer) Wangerin, Pro Se.

Judge: BENNETT

In an action for divorce and custody, Father appeals the trial court's decision to declare Mother the primary residential parent of the parties' minor child. Because Father failed to file a transcript or statement of the evidence pertaining to a portion of the trial, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2011/wangerins_082911.pdf
STATE OF TENNESSEE v. FREDERICK EDWARD BRAXTON AND LEONARD CARDELL HARRIS

Court: TCCA

Attorneys:

George J. Duzane and Dominic J. Leonardo, Nashville, Tennessee (on appeal), and Lee Sprouse and Ashley Preston, Nashville, Tennessee (at trial), for the appellant, Frederick Braxton.

William E. Griffith, Nashville, Tennessee (at trial and on appeal), and Karl Pulley, Nashville, Tennessee (at trial), for the appellant, Leonard C. Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; J. Wesley King, Assistant District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

The Defendants, Frederick Edward Braxton and Leonard Cardell Harris, were indicted for attempted premeditated first degree murder. Additionally, Defendant Braxton was charged with possession of marijuana, which was severed as unrelated. Following a jury trial, Defendants were convicted of attempted second degree murder. Defendant Braxton was sentenced to serve nineteen years in confinement as a Range II offender, and Defendant Harris was sentenced to serve eleven years in confinement as a Range I offender. On appeal, both Defendants argue that (1) the evidence was insufficient to support the convictions, and that the trial court erred in denying their motion for judgments of acquittal; (2) the trial court erred in precluding Defendants from questioning the victim about being previously shot in a home burglary and about the victim's prior arrest sixteen months before the shooting; (3) their sentences are excessive; and (4) trial counsel were ineffective for failing to request a jury instruction on the lesser-included offense of reckless endangerment. Defendant Braxton argues that the trial court erred in allowing the jail custodian of records to testify in rebuttal concerning Defendant Braxton's period of confinement in the Davidson County jail;(b) trial counsel was ineffective for (i) failing to object to the sentence or request a continuance when the State did not provide proper notice of intent to seek enhanced punishment or provide certified copies of the convictions; (ii) failing to amend the original notice of alibi, filed by previous counsel, to include an additional witness; (iii) failing to investigate possible defenses and alibi witnesses; (i.v.) failure to adequately meet with Defendant Braxton and prepare for trial. Defendant Harris argues that trial counsel was ineffective for asking the victim about a prior altercation with Defendant Harris which opened the door to the victim's testimony about an earlier attempt by Defendant Harris to harm or kill the victim. After careful review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/braxtonf_082911.pdf
STATE OF TENNESSEE v. KERRY DOUGLAS CALAHAN

Court: TCCA

Attorneys:

Gregory D. Smith (on appeal), Clarksville, Tennessee, and William J. Harold and Stephanie Barca (at trial), Shelbyville, Tennessee, for the appellant, Kerry Douglas Calahan.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Marshall County Circuit Court jury convicted the appellant, Kerry Douglas Calahan, of aggravated assault, aggravated criminal trespass, simple assault, two counts of theft of property valued less than five hundred dollars, and resisting arrest. After a sentencing hearing, the appellant received an effective sentence of six years, six months to be served in confinement. On appeal, the appellant contends that the evidence is insufficient to support his conviction for aggravated assault and that his sentence for aggravated assault is excessive. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/calahank_082911.pdf
STATE OF TENNESSEE v. KAREN ANN MATTHEWS

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Hugh Ammerman, Assistant District Attorney General, for the appellant, State of Tennessee.

Patrick Johnson, Nashville, Tennessee, for the appellee, Karen Ann Matthews.

Judge: WITT

Following her Davidson County General Sessions Court conviction of criminal contempt based upon the violation of an order of protection, the defendant, Karen Ann Matthews, was charged via an indictment returned by the Davidson County grand jury with violating an order of protection, see T.C.A. S 39-13-113 (2006). The trial court granted the defendant's motion to dismiss the indictment as violative of double jeopardy principles. In this State appeal, the State contends that the trial court erred by dismissing the indictment because convictions for criminal contempt and violating an order of protection do not violate double jeopardy principles. Discerning no error in the judgment of the trial court, we affirm.

http://www.tba2.org/tba_files/TCCA/2011/matthewsk_082911.pdf
STATE OF TENNESSEE V. EZRA TAYLOR SHELTON

Court: TCCA

Attorneys:

Dumaka Shabazz, Nashville, Tennessee, for the appellant, Ezra Taylor Shelton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General; Amy Eisenbeck, Assistant District Attorney General; and Elizabeth Foy, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Ezra Taylor Shelton, was charged with first degree premeditated murder and felony murder. Following a jury trial, he was convicted of second degree murder and voluntary manslaughter. The trial court merged the offenses and imposed a sentence of fifteen years in the Department of Correction for the resulting conviction of second degree murder. On appeal, Defendant argues that (1) the evidence was insufficient to support his conviction for second degree murder; and (2) the trial court failed to "properly address an improper statement made by the prosecution during closing arguments." After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/sheltone_082911.pdf
Use of Proceeds From the Sale of Property Forfeited for Violations of the Drug Control Act

TN Attorney General Opinions

Date: 2011-08-25

Opinion Number: 11-62

http://www.tba2.org/tba_files/AG/2011/ag_11_62.pdf
Changes to the Tennessee Corrections Institute's Minimum Standards for Local Correctional Facilities

TN Attorney General Opinions

Date: 2011-08-26

Opinion Number: 11-63

http://www.tba2.org/tba_files/AG/2011/ag_11_63.pdf
TODAY'S NEWS
Passages
Legal News
Upcoming
General Assembly News
TBA Member Services
Passages
Services Tuesday for Justice A. A. Birch
The body of former Justice Adolpho A. Birch Jr., who died Aug. 25, will lie in repose from 2 to 5 p.m. Tuesday at the historic Metro Courthouse in downtown Nashville. A memorial service will follow at 6 p.m. at War Memorial Auditorium. Birch, the first African-American elected to a Nashville judgeship and the first to lead the Tennessee Supreme Court, was 78.

Tributes to Birch include an article by the National Visionary Leadership Project in which Birch is quoted as saying he "never, never wanted to be anything else" but a lawyer. The Daily News Journal reports on his accomplishments, including watching Thurgood Marshall and other attorneys rehearse and prepare to argue the Brown vs. Topeka Board of Education case before the U.S. Supreme Court. And in the Tennessean, Justice Birch is remembered as a "pacesetter, a mentor, and friend to many," and as "one of the most important figures in state history."
Legal News
Quinn named to Judicial Nominating Commission
Chattanooga employment attorney Bartlett Quinn has been chosen to fill the Judicial Nominating Commission seat that will be vacated Thursday by Bill Young, who will then become Tennessee Solicitor General. Lt. Gov. Ron Ramsey announced Quinn, a shareholder at Chambliss Bahner & Stophel, as his choice today.
NashvillePost.com reports
Four judges will hear all Davidson domestic cases
Davidson County Judge Philip E. Smith was willing to take on all of the domestic cases in the county with assistance on final hearings rotating among 11 other trial court judges, but now three judges have stepped up to help. Judge Amanda McClendon will hear 25 percent of the domestic relations caseload and judges Hamilton V. Gayden Jr. and Joe P. Binkley Jr. will each hear 12.5 percent. The shake-up occurred with Judge Carol L. Soloman's return to presiding over a non-domestic docket.
Download the release from the Davidson County Trial Court Administator
Penny White to chair 2 national groups
Professor Penny White has been named to chair two task forces in the American Bar Association Section of Litigation for the coming year. White will co-chair the Litigation Essentials Task Force, which is creating a complete trial training program for law firms, government offices, legal services organizations and law students. She also is chairing the section's Access to Justice Task Force, which is working with the ABA on the implementation of the Model Act for Civil Right to Counsel. Additionally, White serves as a member of the Special Committee on Jury Innovations, which studies and seeks to implement ways to improve the jury system. UT's Informant reported the news.
TBA officials study defense of merit selection
Tennessee Bar Association President-elect Jackie Dixon, Vice President Cindy Wyrick and Executive Director Allan Ramsaur are in St Louis today and tomorrow attending a Summit on Defending Merit Selection. Workshops will include polling, message development, social media and creating coalitions. More than 22 states are represented at the program being put on by the Missouri Bar.
Supreme Court to convene at Duncan School of Law
The Tennessee Supreme Court will be in Knoxville on Aug. 31 to hear oral arguments in Eastern Section cases. The court will hear the afternoon docket at the Lincoln Memorial University Duncan School of Law, beginning at 1:30 p.m. Court is open to the public.
Learn more from LMU
Vanderbilt wins grant to study neuroscience, law
Vanderbilt University has been awarded a $4.85 million grant from the John D. and Catherine T. MacArthur Foundation to manage the newly established MacArthur Foundation Research Network on Law and Neuroscience. The network will examine multiple effects of modern neuroscience on criminal law, with the goal of making neuroscience accessible and beneficial to America's courtrooms. The network will be led by Vanderbilt professor Owen Jones, who is one of the nation's few professors of both law and biology.
Vanderbilt Law School tells you more
Court of Judiciary changes a 'power grab?'
Retired Judge and former Court of the Judiciary Chief J.S. "Steve" Daniel calls recent efforts by the legislature to change the scope and makeup of the Court of the Judiciary a "power grab" and possibly even an attempt to end the court, the Daily News Journal reports. Rutherford County Circuit Court Judge Don Ash, who serves on the court and last week completed a four-year term as its presiding judge, believes the court is working responsibly but says he has no problem with efforts to improve it. Columnist Tom Humphrey explains efforts to change the court as "a fairly straightforward assault on the independence of the judicial branch." The bill introduced by Senate Judiciary Chairman Mae Beavers is "largely founded on the premise that the judges can't be trusted to police themselves, and that, to some, is at least pretty darned insulting -- if not in violation of separation-of-powers provisions of the state constitution," he writes.
Read Humphrey's column in the News Sentinel
Photography is law student's hobby
Former CASA volunteer and current UT law student Amy Williams explains how her photography is "sort of akin to meditation" for her. During her first semester of law school, Williams was chosen to serve as the school's student photographer, a job that has included photographing Tennessee Supreme Court and U.S. Supreme Court justices. A sampling of her photography is on display at the Kingsport Renaissance Center's second-floor main gallery, where it will remain through Sept. 21.
The Times-News has more
Upcoming
Race to benefit student public interest work
The UT College of Law Student Bar Association will host the first annual Bly Roll Race for Justice 5K run and one-mile fun walk on Sept. 16, beginning at 7:30 p.m. at Volunteer Landing on Neyland Drive. The race is in memory of Bly Roll, a member of the Class of 2012 who died during the 2010 fall semester. All proceeds will go to provide financial support for students pursuing summer public interest work. The registration fee is $20 prior to Sept. 6 and $25 after. Late registration is available online Sept. 7-14; however, T-shirts cannot be guaranteed to those who register after Sept. 8. Calhoun's on the River will host a post-race celebration with special prices for race participants and volunteers. For more information, contact Emily Mack at emack1@utk.edu
Register here
Death penalty, West Memphis 3, focus of conference
"Cultural competence," a new concept in the legal defense of persons accused of a crime for which the death penalty is allowed, will be the focus of a March 2012 symposium sponsored by the Law Review of the Cecil C. Humphreys School of Law at the University of Memphis. Law Review Editor Isaac Kimes said the subject of the Memphis symposium was inspired by a law review article and by recent developments surrounding the crime and trial in West Memphis, Ark., of the "West Memphis 3." The Hon. Dan Stidham, an Arkansas judge who was a lawyer on the original defense team for accused murderers in that case, has agreed to write an article for the symposium, and event organizers are seeking other articles for the review.
Learn more from the University of Memphis
General Assembly News
Rep. Moore vows to keep AFL-CIO duties separate
State Rep. Gary Moore, the newly elected president of the Tennessee AFL-CIO Labor Council, says he will separate his duties as a legislator from the statewide union's lobbying and political activities. But State Republican Chairman Chris Devaney questions if that is possible.
The News Sentinel has this story
TBA Member Services
Secure, compliant data backup now available
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Learn why lawyers trust i365 for online data backup solutions

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.
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