Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.
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KRISINDA BOWERS, A Minor, by next friend, TAMMY K. BOWERS and STEVE BOWERS vs. STEPHEN HAMMOND, THE JACKSON CLINIC PROFESSIONAL ASSOCIATION, and THE JACKSON-MADISON COUNTY GENERAL HOSPITAL Court:TCA Attorneys: JOEL PORTER BURCH, PORTER & JOHNSON Memphis, Tennessee Attorney for Plaintiff/Appellant JAMES BELEW WEBB FLIPPIN, COLLINS, HUEY & WEBB Milan, Tennessee Attorney for Plaintiff/Appellant MARTY R. PHILLIPS RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C. Jackson, Tennessee Attorney for Appellees, Stephen Hammond & The Jackson Clinic Professional Association JERRY D. KIZER, JR. PATRICK W. ROGERS RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C. Jackson, Tennessee Attorneys for Appellee Jackson-Madison County General Hospital District Judge: HIGHERS First Paragraph: Plaintiff Krisinda Bowers, a minor, by next friends Tammy K. Bowers and Steve Bowers (Krisinda's parents), appeals the trial court's order entering summary judgment in favor of Defendants/Appellees Stephen Hammond, The Jackson Clinic Professional Association, and Jackson-Madison County General Hospital. In dismissing the complaint, the trial court ruled that Krisinda's action against the Defendants was barred by the three-year statute of repose applicable to medical malpractice actions and, further, that Krisinda's action against the Hospital was barred by her failure to comply with the statutory notice requirements formerly applicable to actions against governmental entities. We affirm in part and reverse in part. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. URL:http://www.tba.org/tba_files/TCA/BOWERSK_OPN.WP6 CHARLES R. BROWDER and TERESA NOLAND BROWDER vs. JERRY C. MORRIS and CHRIS CASTLEBERRY, ET AL Court:TCA Attorneys: Randall J. Fishman, Mark A. Mesler, BALLIN, BALLIN & FISHMAN, P.C., Memphis, Tennessee Attorney for Plaintiffs/Appellants. J. Cecil McWhirter, McWHIRTER & WYATT, Memphis, Tennessee Attorney for Defendants/Appellees Jerry C. Morris and Chris Castleberry. James W. Cook, CARD, COOK & HOLT, Memphis, Tennessee Attorney for Defendant/Appellee General Accident Group. Robert L. Moore, THOMAS, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee Attorney for Defendant/Appellee Paul Davis Systems, Inc. Judge: FARMER First Paragraph: This is an interlocutory appeal by appellants, Charles R. and Teresa Noland Browder, from the trial court's denial of a motion seeking to amend their complaint to name an additional party defendant pursuant to T.C.A. S 20-1-119. The statute was enacted in response to the supreme court's decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), which abolished the doctrine of contributory negligence in Tennessee and adopted principles of comparative fault. The statute allots a plaintiff in cases of comparative fault additional time beyond the normal running of the statute of limitations within which to join a previously unnamed defendant by either amendment of the complaint or institution of a separate action. The issue presented here is whether the statute as enacted contemplates the joinder of a third party defendant whose liability, if any, is vicarious only. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/BROWDERT_OPN.WP6 ROSSLYN JEAN CARRIER vs. GENE ALLEN CARRIER Court:TCA Attorneys: James F. Butler; Spragins, Barnett, Cobb & Butler of Jackson For Appellee Joe H. Byrd, Jr., of Jackson For Appellant Judge: CRAWFORD First Paragraph: This is a divorce case. Defendant, Gene Allen Carrier (Husband), appeals the order of the trial court dividing the marital property and awarding alimony to the plaintiff, Rosslyn Jean Carrier (Wife). AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/CARRIER_OPN.WP6 ERICA REBECCA HURD, deceased by and through her parents and next friends, CHARLES and VIRGINIA HURD, and CORTNEY DESHAUN RAGLAND, a minor, by and through his next friend, WANDA KAY GRIME vs. DAVID WOOLFORK, individually and as an agent, servant, employee, Sheriff, and representative of MADISON COUNTY, TENNESSEE and MADISON COUNTY, TENNESSEE Court:TCA Attorneys: Larry C. Sanders, GARRETY & SANDERS, P.C., Jackson, Tennessee Attorney for Plaintiffs/Appellants. Blake Anderson, Jackson, Tennessee Attorney for Defendant/Appellee, Daivd Woolfork, Individually. James I. Pentecost, WALDROP & HALL, P.A., Jackson, Tennessee Attorney for Defendants/Appellees Sheriff David Woolfork and Madison County, Tennessee. Judge: FARMER First Paragraph: Plaintiffs Erica Rebecca Hurd, deceased, by and through her parents and next friends, Charles and Virginia Hurd, and Cortney Deshaun Ragland, a minor, by and through his next friend, Wanda Kay Grimes, appeal the trial court's order dismissing their wrongful death actions against Defendants/Appellees Madison County and David Woolfork, Madison County's Sheriff. We affirm. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/HURDER_OPN.WP6 BEVERLY DIANNE (PRIVETTE) MOORE vs. GARY THOMAS MOORE Court:TCA Judge: CRAWFORD First Paragraph: Appellant's Petition to Rehear is not well-taken and is denied. URL:http://www.tba.org/tba_files/TCA/MOORE_ORD.WP6 JUDY MARGARET JACKSON VIROSTEK vs. JAMES R. VIROSTEK Court:TCA Attorneys: MIMI PHILLIPS, Norwood, Philips, Deboo, Howard & Grubb, Memphis, Attorney for Plaintiff. ROBERT A. TALLEY, Brown, Brasher, & Smith, Memphis, Attorney for Defendant. Judge: TOMLIN First Paragraph: Judy Margaret Jackson Virostek ("Wife") filed suit for divorce in the Chancery Court of Shelby County against James R. Virostek ("Husband"). Following a bench trial the chancellor entered a decree awarding Wife a divorce on the grounds of irreconcilable differences. The divorce decree also incorporated therein by reference a Marital Dissolution Agreement ("MDA") awarding custody of the parties' minor child to Wife as well as providing that Husband would pay child support along with rehabilitative alimony to Wife. Thereafter Husband filed a motion to modify the divorce decree relative to the payment of child support and alimony. Wife responded with a counter-petition seeking to have Husband held in contempt for failure to abide by the terms of the MDA. Following a hearing the chancellor denied Husband's petition to modify relative to the payment of alimony and child support. The court also found Husband in contempt of court for failing to abide by the provisions of the MDA, ordered Husband to disperse funds from the trust account of the parties' minor son to satisfy an outstanding tuition balance at the son's private school and ordered Husband to pay Wife's attorney fees, approximating $15,000.00. REVERSED IN PART AND AFFIRMED IN PART. URL:http://www.tba.org/tba_files/TCA/VIROSTEK_OPN.WP6 SEDLEY ALLEY vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant For the Appellee Arthur E. Quinn Charles W. Burson Suite 360 Attorney General and Reporter 860 Ridge Lake Boulevard 450 James Robertson Pkwy. Memphis, TN 38120 Nashville, TN 37243-0493 Timothy R. Holton Amy L. Tarkington Suite 705 Assistant Attorney General 200 Jefferson Avenue 450 James Robertson Pkwy. Memphis, TN 38103 Nashville, TN 37243-0493 John W. Pierotti District Attorney General Henry P. Williams John W. Campbell Asst District Attorneys General 201 Poplar Avenue Memphis, TN 38103 Judge: Wade First Paragraph: The petitioner, Sedley Alley, appeals from the trial court's denial of post-conviction relief and presents the following issues for our review: (1) whether he was denied a fair trial due to the impartiality of the trial judge; (2) whether a prospective juror was improperly dismissed; (3) whether he was denied the effective assistance of counsel at trial and on direct appeal; (4) whether the post-conviction court erroneously denied the petitioner expert services; (5) whether the post-conviction court erroneously denied the petitioner the opportunity to make an offer of certain mitigating proof; (6) whether the prosecutor committed reversible error during trial; (7) whether the trial court committed reversible error during trial; (8) whether the trial court properly instructed the jury at the guilt and penalty phases of the trial; and (9) whether the Tennessee death penalty statute is unconstitutional. We affirm the judgment. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/ALLEY_OPN.WP6 STATE OF TENNESSEE vs. PRESTON CARTER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Glenn I. Wright Charles W. Burson Suite 800 Attorney General and Reporter 200 Jefferson Avenue 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 Howard L. Wagerman Amy L. Tarkington 200 Jefferson Avenue, Ste 1313 Assistant Attorney General Memphis, TN 38103 450 James Robertson Pkwy. Nashville, TN 37243-0493 John W. Pierotti District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Phillip Gerald Harris Asst District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Reginald R. Henderson Asst District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Judge: Jones First Paragraph: The appellant, Preston Carter, (defendant), was convicted of two counts of murder in the first degree following his pleas of guilty to these two offenses. A jury of his peers set his punishment at death by electrocution for both offenses. The jury found one aggravating circumstance, namely, the murders were especially heinous, atrocious, or cruel in that they involved torture or serious physical abuse beyond that necessary to produce death. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/CARTERP_OPN.WP6
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