More tort law changes proposed

In just the first two weeks of the second session of the 107th General Assembly, even before the deadline for bill introductions, several bills to change the way tort law is practiced in Tennessee have been proposed. Proposals include tightening last year's Civil Justice Act; limitations on the award of punitive damages based on vicarious liability; a "loser pays" provision requiring payment of litigation costs by a successful party motion to dismiss; "loser pays" provisions when there is an offer of judgment; provisions limiting landowner liability; and, provisions to eliminate implied causes of action arising from statutory duties are all among the bills introduced.

The bills -- SB 2120, SB 2140, SB 2141, SB 2142, SB 2151, SB 2586, SB 2637 and SB 2638 -- have been referred to the relevant TBA Sections, including Tort & Insurance Practice and Litigation, for recommendation. TBA President Danny Van Horn said even before the specifics of any of these proposals are evaluated, "We think that most lawyers think that Tennessee's tort system is pretty much down the middle and efforts to tilt the playing field in favor of one or the other are unwarranted."

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Court: TSC


Court: TCA


Elliott J. Schuchardt, Pittsburgh, Pennsylvania, for the appellant, Amy Dendy.

James Dendy, Norris, Tennessee, pro se.


This divorce case covered a span of years in the Trial Court, and the Trial Court ultimately granted the parties a divorce, awarded primary custody of the children to the father, denied alimony to the mother and divided the marital estate between the parties. The mother appealed and has raised numerous issues. Many of the issues raised pertain to matters occurring after the appeal was filed, and we decline to consider these issues. The record establishes the mother did not attend the final hearing wherein the divorce was granted. We vacate that part of the final decree, dividing the marital assets and liabilities, on the ground that the mother established grounds of excusable neglect for failing to attend the trial, and remand to the Trial Court to grant a new trial on this issue. We otherwise affirm the rulings in the Judgment by the Trial Court.


Court: TCA


William Lee Drumbarger, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Pamela S. Lorch, Senior Counsel; for the appellees, State of Tennessee Board of Probation and Parole and Charles Traughber.


Inmate appeals the dismissal of his petition for writ of certiorari for failure to comply with the statutory requirement of verification. We find no error in the trial court's decision.


Court: TCA


James Reed Brown, Byrdstown, Tennessee, for the Appellant, Jessica S.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Lindsey O. Appiah, Assistant Attorney General, for the Appellee, State of Tennessee.


The trial court terminated the parental rights of the mother of two children on the grounds of abandonment by failure to establish a suitable home, persistence of conditions, and severe child abuse. Mother appeals, contending that the evidence does not clearly and convincingly establish the grounds of termination. We affirm the termination of the mother's parental rights on the grounds found by the trial court.


Court: TCA


Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Amy T. McConnell, Assistant Attorney General, for the appellant, State of Tennessee.

Jeffrey D. Penuel, Sr., Mt. Juliet, Tennessee, Pro Se.


Father filed a petition to terminate child support payments, due to the child for whom the support was payable reaching the age of majority. In disposing of the petition, the trial court, inter alia, assessed an arrearage and waived interest on the arrearage. The State appeals the action of trial court in waiving interest on the arrearage. We find that the court erred in waiving interest on the arrearage and remand the case for a determination of the amount of interest.


Court: TCCA


Donna Orr Hargrove, District Public Defender, and Andrew Jackson Dearing, Assistant Public Defender, for the appellant, Alma Cisneros Childers.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Hollynn Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Alma Cisneros Childers, appeals the sentence of incarceration she received following the revocation of her probation by the Lincoln County Circuit Court. She pled guilty to violating the terms and conditions of her probation but now contends that she should have been given a community corrections sentence rather than one of incarceration. After review, we conclude that the defendant has not shown that the trial court abused its discretion in ordering the revocation or in imposing a sentence of incarceration. Therefore, the judgments of the trial court are affirmed.


Court: TCCA


James O. Martin, III, Nashville, Tennessee (on appeal); Vanessa Bryan, District Public Defender (on appeal); and Thomas T. Overton, Nashville, Tennessee (at trial), for the appellant, Brian Kenneth Henneberg.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Kim R. Helper, District Attorney General; and Tammy Rettig, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Brian Kenneth Henneberg, appeals his Williamson County Circuit Court jury conviction of first degree premeditated murder, claiming that the evidence was insufficient to support his conviction, that the trial court erred by permitting a police officer to offer expert testimony, that the trial court erred by denying his request for a curative instruction, and that the cumulative effect of the errors deprived him of his constitutional right to a fair trial. Discerning no error, we affirm.


Court: TCCA


Mark E. Stephens, District Public Defender, and John Halstead and Gianna Maio, Assistant Public Defenders, for the appellant, Andrew Mann.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall E. Nichols, District Attorney General; and Leslie Nassios and Sean McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.


The defendant, Andrew Bryan Mann, was convicted of two counts of first degree premeditated murder after he shot and killed his girlfriend's father and stepmother. He was sentenced to two consecutive life terms in the Department of Correction. The primary issue at the defendant's trial was whether or not the defendant's killing of the victims was premeditated. On appeal, the defendant claims that the trial court erred by: (1) denying his motion to suppress; (2) refusing to allow his expert witnesses to testify concerning the defendant's ability to premeditate; (3) admitting photographs of the crime scene; (4) excluding a report made in 2003 by his girlfriend to the Department of Child Services claiming that she had been abused by one of the victims, and (5) imposing consecutive life sentences on the grounds that he was a dangerous offender. After carefully reviewing the record and the arguments of the parties, we reject each of these claims and affirm the judgments of the trial court.

With Concurring Opinion

Court: TCCA


Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Darren Allan Vincent.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; J. Michael Taylor, District Attorney General; and David Shinn, Assistant District Attorney General, for the appellee, State of Tennessee.


The Defendant, Darren Allan Vincent, was convicted upon pleading nolo contendere to misdemeanor assault, sentenced to eleven months and twenty-nine days' confinement, and order to pay a $2500 fine. On appeal, the Defendant argues that the trial court erred by denying probation and requiring him to serve seventy- five percent of the sentence before becoming eligible for release. We affirm the judgment of the trial court.

BIVINS concurring


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General Assembly News
GOP proposes major changes for Tennessee courts
Republicans in the General Assembly are considering several changes to the judiciary branch, with proposals ranging from how judges are appointed and disciplined to whether the courts should even have the power to overturn laws. Senate Speaker Ron Ramsey said Thursday that he is working with Gov. Bill Haslam and House Speaker Beth Harwell "to get the three of us on board together" in a consensus approach to dealing with the state's system for selecting judges. Haslam and Harwell both say they prefer the present system as opposed to contested elections, but have not yet joined Ramsey in pushing for a constitutional amendment.

The Tennessee Bar Association's Allan Ramsaur said he sees the changes as unnecessary because the state Supreme Court has upheld the current system under which the governor appoints appeals judges and they stand for yes-no retention votes after that. "But if the General Assembly decides a constitutional amendment is necessary, we'll support that, too," he said.
The Associated Press reports
Bill to curtail judicial power draws national attention
Tennessee lawmakers working to limit "activist judges" have caught the national eye. Tennessee and New Hampshire both have proposed bills that would end the judicial branch's ability to rule on the constitutionality of legislation. "What's unprecedented about these bills is the extent to which they're removing the court's jurisdiction altogether, in effect, hobbling them," says Bill Rafferty, editor of the National Center for State Courts' Gavel to Gavel blog. Although legislators have never liked it when judges struck down their laws, Rafferty says, they have traditionally tried to work with the courts to amend the laws in question.

The proposal by Senate Judiciary Chairwoman Mae Beavers to eliminate the courts' power to overturn state laws has also been met by criticism in Tennessee, including comments reported by the Associated Press from Lt. Gov. Ron Ramsey, who said the bill "is crossing the line on separation of powers between the legislative and judicial branches."
Read more from Stateline, a publication of the Pew Center on the States
Bill would allow biblical displays; Tipton Co. missing
Sen. Mike Bell, R-Riceville, and Rep. Matthew Hill, R-Jonesboro, last week introduced a bill authorizing counties and cities to set up displays of "historical documents and monuments and writings" that have been "recognized to commemorate freedom and the rich history of Tennessee and the United States." First on the list of enumerated documents: the Ten Commandments. The Times Free Press has more. And in redistricting news, Tipton County, which will be part of Senate Majority Leader Mark Norris's district under the new plan, was not included in the bill's language and thus, theoretically, would have had no state senator.
The News Sentinel has this story
Legal News
Students have mixed reactions to LMU's limbo
In the weeks since the American Bar Association formally denied Lincoln Memorial University's Duncan School of Law accreditation, current and former students said they have felt frustrated and helpless by the denial that has resulted in a court case. Some are looking into the Nashville School of Law, but many are staying. A bigger concern than the ABA accreditation, students say, is the status of Lincoln Memorial's approval from the Tennessee Board of Law Examiners. Board director Adele Anderson said last week that the board would be unlikely to decide on whether to revisit the school's state accreditation until after its lawsuit is settled.
The News Sentinel reports
Scalia and Breyer talk about 'Citizens United'
U.S. Supreme Court Justice Antonin Scalia has a simple solution for people who don't like all the political advertisements unleashed by the court's Citizens United decision two years ago that ended limits on corporate contributions in political campaigns -- change the channel or turn off the TV. Scalia, speaking to the South Carolina Bar, was joined on stage by Justice Stephen Breyer, who voted on the losing side in the decision. "There are real problems when people want to spend lots of money on a candidate," Breyer said. "They'll drown out the people who don't have a lot of money."
The Jackson Sun carried this AP story
Thornton is Adams & Reese executive committee chair
Nashville attorney Gif Thornton has been elected chairman of the executive committee at Adams and Reese LLP. He is a partner on the firm's government relations team and serves as legislative counsel to a number of businesses, trade associations and governmental entities with interests before the Tennessee state government. In addition, he represents clients before regulatory boards and administrative agencies of local, state and federal government.
The firm has more
9 join Bradley Arant's health care practice
Bradley Arant Boult Cummings has added nine attorneys to its health care practice group. The nine, all from the Birmingham office of Balch & Bingham, will work out of Bradley Arant's office there but will be spending significant time serving health care clients in Nashville, firm officials say. reports
Court: Attaching GPS to car amounts to a search
The U.S. Supreme Court has ruled for a drug defendant who argued that police should have obtained a warrant before attaching a GPS device to his car to monitor his movements. Justice Antonin Scalia wrote the opinion for a court that was unanimous in its finding that the police conduct was a search within the meaning of the Fourth Amendment.
The ABA Journal tells you more
Career Opportunities
Nashville area firm seeks associate
A small Nashville-area firm is seeking an associate attorney with one to three years of experience to work in a defense practice specializing in personal injury, insurance coverage and bad faith defense. Interested candidates should submit a resume by email to or by mail to 2550 Meridian Blvd., Franklin 37067.
Learn more on JobLink
West Memphis 3 movie and Q&A this week
West of Memphis, a documentary chronicling the case of "the West Memphis Three," is screening at Nashville's Belcourt Theater on Thursday, just after premiering at the 2012 Sundance Film Festival. And when it does, Damien Echols -- one of the former death row inmates -- his wife, and the film's director, Amy Berg, will be there for an audience Q&A. Watch the movie's trailer. Berg and colleague Peter Jackson say Echols and the two other men might still be in prison if not for the independent investigation launched by Jackson and his wife, Fran Walsh.
Read more from the Sundance Film Festival
TBA Member Services
Secure, compliant data backup now available
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