News From the Tennessee Bar Association

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TN Legal News Now

This legal news update is provided to you weekly by the Tennessee Bar Association as a service to Tennessee lawyers. TBA members receive these breaking legal news and court opinions daily. When you join the Tennessee Bar Association you will also receive this service each day. You can unsubscribe to this newsletter using the link at the bottom of this edition.

Today's Opinions

TN Workers Comp Appeals Board (1)
TN Court of Appeals (4)
TN Court of Criminal Appeals (1)

Today's News

Commission Sends 3 Nominees to Governor for 13th Judicial District Criminal Court

The Trial Court Vacancy Commission on Tuesday sent three individuals to Gov. Bill Lee for his consideration in filling a criminal court judge vacancy in the 13th judicial district, which includes Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White counties. Meeting in Crossville, the commission advanced Shawn C. Fry and Benjamin Marsee of Cookeville and Brandon S. Griffin of Sparta.

Legal News

Hawkins County Commission to Choose New County Attorney

Hawkins County Commissioners will choose among three nominees to be the next county attorney at their July meeting. The Kingsport Times News reports that the replacement comes after the county’s previous attorney, Jim Philips, died unexpectedly in April. The three candidates are Allen Coup, Jefferson B. Fairchild and Crystal Jessee.

Removing Postconviction Death Penalty Cases from Local DAs Found Unconstitutional

Shelby County Criminal Court Judge Paula Skahan ruled in favor of the Shelby County district attorney and a local defense attorney, saying that a state law passed earlier this year to strip all post-conviction death penalty proceedings from local district attorneys is unconstitutional, the Tennessean reports. Specifically, Skahan found that the General Assembly did not give proper notice to the public about the law and that the law wrongfully removed jurisdiction from locally elected district attorneys. Shelby County District Attorney Steve Mulroy and defense attorney Robert Hutton brought the suit. They also argued that the law violates the rights of voters but Skahan did not address that issue. The state attorney general has until Aug. 4 to appeal the decision.

DA Steve Mulroy

Lee Appoints D.A. for 10th District

Tennessee Gov. Bill Lee yesterday appointed Shari Tayloe as District Attorney General for the 10th Judicial District to fill a vacancy created by the resignation of General Stephen Crump, effective immediately. The 10th Judicial District covers Bradley, McMinn, Monroe and Polk counties. Tayloe brings nearly 25 years of prosecutorial experience to her new role, most recently serving as deputy district attorney general for the 10th Judicial District, a position she has held for six years. Tayloe earned her bachelor’s degree at the University of Tennessee at Chattanooga and her law degree at the University of Tennessee College of Law.

Lawsuit Alleges Negligence in Fentanyl Overdose Death of Nashville Toddler

A Nashville law firm has filed a lawsuit against a landlord and tenant for their alleged responsibility in the November 2022 fentanyl overdose death of an infant. Stranch, Jennings & Garvey PLLC is representing Mickey Rose, the grandfather of Ariel Rose, a one-year-old who was exposed to a lethal dose of fentanyl while at Nashville's Highroad Transitional Housing Facility. Rose is also seeking damages under Tennessee’s Drug Dealer Liability Act (DDLA), which provides a civil remedy to persons damaged in a community as a result of illegal drug use.

Pittsburgh Firm Plans Nashville Expansion

The Cozza Law Group is planning an expansion to Nashville this fall. The Nashville Post reports that the firm is focused on business and entertainment law and has a presence in New York City and Pittsburgh. Firm founder Rocco Cozza is also the CEO of Alpha LPO, a legal process outsourcing provider.

Rocco Cozza

Franklin’s Case Against City of Memphis Will Remain Closed

Shelby County Circuit Court Judge Mary Wagner on Friday ruled that Alicia Franklin will not have her civil case against the city of Memphis re-opened. Franklin said she was raped by Cleotha Abston-Henderson a year before he was charged with Eliza Fletcher's murder and kidnapping in September. The Commercial Appeal reports that Franklin's case — which alleges the Memphis Police Department did not investigate her rape despite providing the name, contact information and social media account of the man who did it — was dismissed in March this year.

Alicia Franklin/Commercial Appeal

New Book Highlights State Political Scandals

“Welcome to Capitol Hill,” a new book by veteran Tennessee state house reporters Joel Ebert and Erik Schelzig, will be available Aug. 17 through Vanderbilt University Press. The book covers Gov. Ray Blanton's pardon scandals, the secret FBI wiretap used in the Rocky Top investigation and more recent examples of sexual misconduct in the legislature. Axios Nashville reports that the authors say studying the scandals is more than just an academic exercise; it reveals the vital importance of the media as a watchdog. Several times, the public learned of politicians' dubious behavior through investigations by Nashville journalists, including Schelzig and Ebert's own reporting of the more recent scandals.

Youth Center to Receive $2M for Security Upgrades

The Wilder Youth Development Center in Fayette County, from which three juveniles escaped in March, will receive almost $2 million for updates, including security cameras and more than 100 beds. According to ABC24 in Memphis, a recent report by Disability Rights Tennessee entitled “Designed to Fail: A Report on Wilder Youth Development Center, a Department of Children’s Services Facility," documented what the rights group describe as “destructive practices” upheld by the Wilder Center. The report also alleged that parties responsible for investigations of physical and sexual assault did not follow up or perform in-depth reviews of center employees who were the subject of 10 or more investigations.

Tennessee AG Seeks to Prevent HHS From Protecting Out-of-State Abortion, Trans Care Records

The U.S. Department of Health and Human Services (HHS) has proposed a new rule that would prohibit disclosure of medical records of individuals who cross state lines to obtain legal abortion or gender-affirming care. The Tennessee Lookout reports that Attorney General Jonathan Skrmetti has joined counterparts in 18 states in an effort to prevent the federal government from shielding those records. Under the proposed rule, the records would be protected from law enforcement, court subpoenas in civil lawsuits and family court proceedings.

New Mental Health Court Approved in Montgomery County

The Montgomery County Commission has approved a $180,600 grant from the Tennessee Mental Health Court Program to launch a new mental health court in the county, News Channel 5 reports. The county had previously received a $232,000 grant for the court. The program will be voluntary for residents of the county facing criminal charges, said Circuit Court Judge Katy Olita. Some offenses will be excluded, including all Class A felonies. Sharita Brown will be the court's coordinator. The new court will begin taking applications on Sept. 7.

Judge Olita; Photo: News Channel 5

Nashville Police to Pass on State School Safety Funding

The Metro Nashville Police Department plans to leave $5.25 million in new state funding for school resource officers (SRO) on the table, saying the agency does not have capacity to staff the district’s 70 public elementary schools. Instead, the department will seek $3.38 million in state grant funding to support existing positions at middle and high schools. For elementary schools, it will continue its previous policy of conducting patrols around campuses, the Tennessean reports. The state SRO funding was approved in the wake of the deadly shooting at The Covenant School in March.

General Assembly News

DCS to Open New Transitional Facility for Kids Entering Its Custody

The State Building Commission last week approved the first steps in a plan by Department of Children’s Services (DCS) to open a new transitional facility for kids coming into custody and to expand and add more security to buildings that house delinquent youth. Tennessee Lookout reports that the commission approved the initial phase of a $19 million expansion in institutional space. In the near term, this will allow the agency to add more than 100 beds, including 24 at a temporary assessment center. A Nashville facility that houses about 50 teenage boys also will get more security. Commissioner Margie Quin called the action a “positive step toward mitigating the statewide youth placement crisis.”

Politics

Jones, Pearson Raised $1.8M After Expulsion

Reps. Justin Jones, D-Nashville, and Justin J. Pearson, D-Memphis, raised about $2 million in their week-long absence from the state House after expulsion in March. The Tennessee Lookout reports that the removal of Jones and Pearson allowed the lawmakers to raise money during the legislative session, which is normally not permitted. Jones raised $1,079,688.86 over the first six months of the year, and Pearson raised $1,058,036.34. Part of Pearson’s total includes the roughly $52,000 he raised at the start of 2023 to win his House seat in a special election held in January. Both face Republican opponents in the Aug. 3 general election.

TBA CLE

Registration Now Open for 37th Annual CLE Ski

Registration is now open for the TBA’s 37th Annual CLE Ski set for Jan. 20-25, 2024, in Snowmass, Colorado. The CLE package offers 15 hours of credit in a variety of practice areas while allowing time to enjoy the beautiful slopes and one of Colorado's premier ski resorts. Participants will stay at The Stonebridge Inn, located in the heart of Snowmass Village just 10 miles from Aspen and central to four remarkable ski areas: Snowmass, Aspen Highlands, Aspen Mountain and Buttermilk. An opening reception on Jan. 20 will kick off this year's program. Reserve your spot now or learn more in the online CLE course catalog.

Using an Engagement Letter to Protect Your Practice

The YLD is replaying a series of CLE webcasts from earlier in the year to help lawyers refresh and rejuvenate their practice. Tune in on Aug. 30 from noon to 1 p.m. CDT for the final installment and learn how to use an engagement letter to protect your practice. A panel will discuss what should be included in an engagement letter to set the tone of the attorney/client relationship and protect yourself, your license and firm. Topics will include what pitfalls to watch out for, common questions potential clients may have, and how to talk to clients about ethical concerns.

Court Opinions

You can obtain full-text versions of these opinions by selecting the link below each opinion’s summary paragraph. Your email software should give you the option of reading the opinion online or downloading it to your computer or mobile device. Decisions from the 6th Circuit Court that are not designated for publication are not included in this report.

TN Workers Comp Appeals Board

ALICE BAUGUS v. TENNESSEE FARMERS MUTUAL INS. CO., ET AL.

Court: TN Workers Comp Appeals Board

Attorneys:

Alice Baugus, Mt. Pleasant, Tennessee, employee-appellant, pro se

Gordon C. Aulgur, Nashville, Tennessee, for the employer-appellee, Tennessee Farmers Mutual Insurance Company

Judge(s): GODKIN

In this appeal, the employee contends the trial court should set aside an order approving the settlement of her workers’ compensation claim because she did not have the emotional or mental capacity to enter into the settlement agreement. Following a hearing, the trial court concluded the employee failed to provide grounds for relief by clear and convincing evidence. The employee has appealed. Having carefully reviewed the record, we affirm the trial court’s decision and certify it as final.

baugusa_071823.pdf

TN Court of Appeals

CHRISTINE L. MANION ET AL. v. THE BALDINI, PRYOR, AND LAMMERT PARTNERSHIP

Court: TN Court of Appeals

Attorneys:

Marshall Thomas McFarland and Alvin Scott Derrick, Nashville, Tennessee, for the appellant, The Baldini, Pryor and Lammert Partnership.

Larry Lamont Crain, Brentwood, Tennessee, for the appellees, Christine L. Manion and Terry W. Alford.

Judge(s): BENNETT

The owners of certain real property sought a prescriptive easement over the parking lot of an adjacent neighbor. The trial court granted the prescriptive easement over the entirety of the neighbor's parking lot. The neighbor appealed. Discerning that the record contains clear and convincing evidence of all the requirements for a prescriptive easement, we affirm. We modify the trial court's judgment, however, by limiting the scope of the easement to the route followed when the route was first established.

manionc_071823.pdf

AARON KOPECKY v. HOLIDAY INN CLUB VACATIONS, INC

Court: TN Court of Appeals

Attorneys:

Ryan Price, Knoxville, Tennessee, for the appellant, Aaron Kopecky.

Todd R. Hambidge and Quynh-Anh D. Kibler, Nashville, Tennessee, for the appellee, Holiday Inn Club Vacations Incorporated.

Judge(s): FRIERSON

The plaintiff filed a complaint against the defendant timeshare corporation in the trial court, alleging certain statutory violations committed by the defendant during the timeshare purchase transaction and requesting rescission of the purchase agreement, restitution, and punitive damages. The defendant filed a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(3), arguing that the forum selection clause included within the purchase agreement dictated that any dispute would be brought exclusively in the courts located in Orange County, Florida. The trial court granted the motion to dismiss. The plaintiff has appealed, and the defendant has requested costs, expenses, and attorney's fees on appeal. Discerning no reversible error, we affirm. We decline, however, to award costs, expenses, and attorney's fees to the defendant.

kopeckya_071823.pdf

GEORGE GARY INGRAM v. DR. MICHAEL GALLAGHER, ET AL.

Court: TN Court of Appeals

Attorneys:

W. Neil Thomas, III, Chattanooga, Tennessee, for the appellant, George Gary Ingram.

Arthur P. Brock and Drew H. Reynolds, Chattanooga, Tennessee, for the appellees, Dr. Michael Gallagher and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System.

Judge(s): SWINEY

This is a health care liability case. George Gary Ingram ("Ingram") filed a health care liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among others, Dr. Michael Gallagher ("Dr. Gallagher") and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants," collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole defendant. He thus removed the other defendants, including Erlanger, from the lawsuit. Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer, Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiffs claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021 WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court, holding that the Trial Court erred in denying Plaintiffs motion to revise the order of dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act ("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.

ingramg_071823.pdf

EMERGENCY MEDICAL CARE FACILITIES, P.C. v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Gregory S. Reynolds, Nashville, Tennessee, Gregory A. Brodek, Bangor, Maine, and Brad Thompson and Ryan Downton, Austin, Texas, for the appellant, Emergency Medical Care Facilities, P.C.

Gary C. Shockley, Caldwell G. Collins, and Paul T. Madden, Nashville, Tennessee, for the appellees, BlueCross BlueShield of Tennessee, Inc., and Volunteer State Health Plan, Inc.

Thomas H. Lee, Katharine B. Fischman, and Jeremey R. Goolsby Nashville, Tennessee, and Martin J. Bishop, Thomas C. Hardy, and Jason T. Mayer, Chicago, Illinois, for the Appellee, Amerigroup Tennessee, Inc.

Judge(s): STAFFORD

Plaintiff appeals the trial court’s decision to dismiss its class action allegations against two defendants on the basis of collateral estoppel. Specifically, the trial court ruled that while a prior determination that Appellant was not entitled to class action certification was not a final judgment on the merits, due to a dismissal of that case without prejudice, the ruling was “sufficiently firm” to have preclusive effect, citing the Restatement (Second) Of Judgments. Because Tennessee law requires a final adjudication on the merits for a judgment to be entitled to preclusive effect, we reverse.

emergencymedical_071823.pdf

TN Court of Criminal Appeals

STATE OF TENNESSEE v. ANTHONY TERRELL BROWN

Court: TN Court of Criminal Appeals

Attorneys:

Mitchell A. Raines, Assistant Public Defender-Appellate Division (on appeal); Roger E. Nell, District Public Defender, and Dan W. Dalrymple, Assistant District Public Defender (at trial and sentencing), for the appellant, Anthony Terrell Brown.

Jonathan Skrmetti, Attorney General and Reporter; Jonathan Wardle, Senior Assistant Attorney General; and Roger D. Moore, District Attorney General pro tempore, for the appellee, State of Tennessee.

Judge(s): WILSON

Anthony Terrell Brown, Defendant, was convicted by a jury in the Robertson County Circuit Court of first degree premeditated murder. He received a sentence of life in prison without parole. On appeal, Defendant contends the trial court erred when the presiding circuit court judge appointed, by interchange, a trial judge from an adjoining district to try the case, and that the evidence is insufficient to support his conviction. After review, we affirm the judgment of the trial court.

browna_071823.pdf

Questions, Comments? Email us at TBAToday@tnbar.org

About this publication: TN Legal News Now is a compilation of news digests compiled by TBA staff and stories about the TBA and other activities written by 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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