Annual Big Shrimp legislative reception a big success

A record number of Tennessee legislators turned out to enjoy some really big shrimp and good conversation with TBA leaders at the annual Big Shrimp event. A group of about 100 legislators and their staffers joined TBA leaders and members of the TBA Leadership Law class at the event. One other sign of success: more than 70 pounds of giant shrimp was consumed.
TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

KAITLYN CALAWAY EX REL. KATHLEEN CALAWAY v. JODI SCHUCKER, M.D.
Corrected Case


Court: TSC

Attorneys:

Carroll C. Johnson, III, and Timothy Holton, Memphis, Tennessee, for the appellant, Kaitlyn Calaway, ex rel. Kathleen Calaway.

Darrell E. Baker, Jr., David Shaw Sadlow, and Deborah Whitt, Memphis, Tennessee, for the appellee, Jodi Schucker, M.D.

Craig P. Sanders and Marty R. Phillips, Jackson, Tennessee, for Amicus Curiae, Tennessee Medical Association.

John A. Day, Brentwood, Tennessee, for Amicus Curiae, Tennessee Trial Lawyers Association.

Judge: BARKER

Pursuant to Rule 23, we accepted four certified questions of law from the United States District Court for the Western District of Tennessee. The third certified question is the central question of the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled during a plaintiff's minority? Our answer is that the three-year statute of repose for medical malpractice actions is not tolled during the plaintiff's minority. Giving effect to the plain language of the statute and finding no exception for minority among the two express exceptions in it - and cognizant of our constitutional role as interpreters, not makers, of the law - we hold that plaintiffs in their minority are bound by the three-year medical malpractice statute of repose. However, in order to avoid undue hardship to potential plaintiffs who have justly relied upon federal court and lower court precedents erroneously stating the opposite rule, the new rule we announce today is to apply prospectively only. Therefore, for cases commenced on or before December 9, 2005, we hold that the plaintiff's minority tolls the medical malpractice statute of repose. For cases commenced after December 9, 2005, we hold that the plaintiff's minority does not toll the medical malpractice statute of repose.

Corrected Case; originally published 12/09/2005
http://www.tba2.org/tba_files/TSC/2006/calawayk_corr022206.pdf


DAVID D. ORRICK v. BESTWAY TRUCKING, INC., ET AL.

Court: TSC

Attorneys:

Frank Buck, Smithville, Tennessee, for the Appellant, David D. Orrick.

Patrick A. Flynn, Columbia, Tennessee, for the Appellees, Bestway Trucking, Inc., Transit Group Transportation, LLC, and Ace, USA.

Judge: ANDERSON

We granted review in this workers' compensation case to determine whether the Special Workers' Compensation Appeals Panel erred in reducing the trial court's disability award from 33 percent to 3 percent. After reviewing the record and the applicable authority, we conclude that reduction of the trial court's award is appropriate. We further conclude, however, that we are unable to enter an appropriate award based on the record before us. We therefore remand to the trial court to enter an award consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/orrickd022206.pdf


STATE OF TENNESSEE v. CHARLES RICE
With Dissenting Opinion


Court: TSC

Attorneys:

Marty B. McAfee and Stephen Leffler, Memphis, Tennessee, for the appellant, Charles Rice.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: BARKER

A jury convicted the defendant, Charles Rice, of first degree murder. Following a capital sentencing hearing, the jury found three aggravating circumstances: (1) the defendant was previously convicted of one or more felonies, the statutory elements of which involve the use of violence to the person; (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; and (3) the murder was knowingly committed by the defendant while the defendant had a substantial role in committing, or was fleeing after having a substantial role in committing or attempting to commit a rape. Tenn. Code Ann. Section 39-13- 204(i)(2), (5), (7) (1997). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Accordingly, the jury imposed a sentence of death. The Court of Criminal Appeals affirmed both the conviction and sentence. Upon automatic appeal pursuant to Tennessee Code Annotated Section 39-13-206 (2003), this Court entered an order specifying seven issues for oral argument, including (1) whether the evidence is sufficient to support the conviction; (2) whether the evidence is sufficient to support the aggravating circumstances found by the jury; (3) whether the trial court's instruction to the jury that aggravated assault was a felony whose statutory elements involve violence to the person violated the Sixth and Fourteenth Amendments to the United States Constitution; (4) whether the trial court's restriction of the defendant's cross-examination regarding Tony Evans' prior conviction was harmless error; (5) whether the trial court erred in refusing to allow the defendant to sit at the defense counsel table; (6) whether the trial court erred in not instructing the jury on the lesser-included offense of facilitation; and (7) whether the death sentence is comparatively proportionate and valid under the mandatory review provisions of Tennessee Code Annotated Section 39-13-206(c)(1)(A)-(D) (2003). After a careful review of the record and relevant legal authority, we affirm the judgment of the Court of Criminal Appeals.

Majority Opinion
http://www.tba2.org/tba_files/TSC/2006/ricec022206.pdf

Dissenting Opinion
http://www.tba2.org/tba_files/TSC/2006/ricec_diss022206.pdf


MARY LEE DOTSON v. WILLIAM ENNIS DOTSON

Court: TCA

Attorneys:

William Ennis Dotson, Loretto, Tennessee, Pro Se.

Kim B. Tycer, Pulaski, Tennessee, for the appellee, Mary Lee Dotson.

Judge: COTTRELL

The husband appeals from a final decree of divorce challenging the award of divorce to the wife, the distribution of property, and the award of some property as alimony in solido to the wife. Because the husband raises factual issues and there is no transcript or statement of the evidence in the record, we must presume the record would have supported the factual findings of the trial court and accordingly affirm.

http://www.tba2.org/tba_files/TCA/2006/dotsonm022206.pdf


LARRY GRIGSBY v. UNIVERSITY OF TENNESSEE MEDICAL CENTER, ET AL.

Court: TCA

Attorneys:

Larry Grigsby, pro se Appellant.

Stephen C. Daves and Jeffrey R. Thompson, Knoxville, Tennessee, for the Appellee, University of Tennessee Medical Center.

James H. London and Jason H. Long, Knoxville, Tennessee, for the Appellees, Paul A. Hatcher and E. Jay Mounger.

Judge: LEE

In this pro se medical malpractice case, the issues on appeal are whether the Appellant, Larry Grigsby, timely filed a notice of appeal as regards Defendants Dr. Paul A. Hatcher and Dr. E. Jay Mounger, and whether the trial court correctly granted summary judgment to the University of Tennessee Medical Center (UTMC). We dismiss the appeal as to the Defendant doctors because we find that Mr. Grigsby did not comply with the jurisdictional requirement of Tenn. R. App. P. 4(a), mandating the timely filing of a notice of appeal. We affirm summary judgment in UTMC's favor because Mr. Grigsby proceeded solely on the vicarious liability theory of respondeat superior, pursuant to his allegations that Drs. Hatcher and Mounger were agents and/or employees of UTMC. Because the alleged agents have been exonerated by an adjudication of non-liability, and therefore the alleged principal, UTMC, may not be held vicariously liable, we affirm summary judgment in favor of UTMC.

http://www.tba2.org/tba_files/TCA/2006/grigsbyl022206.pdf


DONALD JAMISON v. HARRELL ULRICH, ET AL.

Court: TCA

Attorneys:

John W. McClarty, Chattanooga, Tennessee, for the appellant, Donald Jamison.

Laura Beth Rufolo and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellees, Harrell and Karen Ulrich.

Judge: LEE

The issue presented in this case is whether the policemen and firemen's rule applies to an animal control officer who was bitten by a Doberman pinscher while performing the duties of his employment. The plaintiff, an animal control officer for the Chattanooga Police Department, was bitten when, in the course and scope of his employment, he attempted to take possession of the defendants' dog at their home. The plaintiff sued the defendants for compensatory damages, claiming that they were negligent in failing to warn him about the dangerous nature of the dog. The trial court granted the defendants' motion for summary judgment upon its determination that the dog's owners owed no duty to the plaintiff under the circumstances pursuant to the policemen and firemen's rule which precludes police officers and firefighters from recovering for injuries arising out of risks peculiar to their employment. Upon review, we find that the dog's owners owed no duty of ordinary care to the animal control officer and therefore, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/jamisond022206.pdf


ROBIN KUYKENDALL v. MARGARET HARPER

Court: TCA

Attorneys:

Robin S. Kuykendall, Knoxville, Tennessee, pro se.

Margaret E. Harper, Loudon, Tennessee, pro se.

Judge: FRANKS

Plaintiff sued for attorney's fees under contract of employment with defendant. The Trial Court awarded Judgment for fees. Both parties appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2006/kuykendallr022206.pdf


PROGRESSIVE FUNDING, INC., a Tennessee Corporation, v. HENRY HOOVER, a/k/a HENRY N. HOOVER, JR., a/k/a H.N. HOOVER, JR.

Court: TCA

Attorneys:

Henry N. Hoover, Jr., Jamestown, Tennessee, pro se.

Kenneth M. Chadwell, Crossville, Tennessee, for appellee.

Judge: FRANKS

In an action to quiet title, the Trial Court granted plaintiff summary judgment and defendant appealed. We affirm the Trial Court.

http://www.tba2.org/tba_files/TCA/2006/progressive022206.pdf


SHIELDS MOUNTAIN PROPERTY OWNERS ASSOCIATION, INC., ET AL. v. MARION A. TEFFETELLER, ET AL.

Court: TCA

Attorneys:

Barbara J. Muhlbeier and Erica Taylor Greene, Knoxville, Tennessee for the Appellants, Marion A. Teffeteller and Charlene A. Teffeteller.

Brian T. Mansfield, Sevierville, Tennessee for the Appellees, Shields Mountain Property Owners Association, Inc., a Tennessee nonprofit corporation and James R. Hall and wife, Terri L. Hall.

Judge: SWINEY

Shields Mountain Property Owners Association, Inc., James R. Hall, and Terri L. Hall (Plaintiffs) sued Marion A. Teffeteller and Charlene A. Teffeteller (Defendants) seeking, among other things, to enforce restrictive covenants and enjoin Defendants from renting their property in Shields Mountain Estates for overnight vacation purposes. The Trial Court found and held, inter alia, that the covenants and restrictions at issue are applicable to the lots within Shields Mountain Estates including Defendants' lots; that Defendants' use of their lots for vacation rentals is a violation of the covenants and restrictions; and that Defendants are permanently enjoined from using property they own in Shields Mountain Estates for vacation rentals. Defendants appeal to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2006/shieldsmt022206.pdf


BILLY SUDDARTH, JR, ET AL. v. HOUSEHOLD COMMERCIAL FINANCIAL SERVICES, INC., ET AL.
Corrected Case


Court: TCA

Attorneys:

G. Kline Preston, Nashville, Tennessee, for the appellants, Billy Suddarth, Jr., and Angela Suddarth.

Neal H. Levin, Chicago, Illinois, and D. Alexander Fardon, Nashville, Tennessee, for the appellee, Household Commercial Financial Services, Inc.

Judge: CLEMENT

Billy Suddarth, Jr. and Angela Suddarth appeal the summary dismissal of their action, which was dismissed on the grounds of res judicata, collateral estoppel, the Full Faith and Credit Clause, and the compulsory counterclaim rule of the Federal Rules of Civil Procedure. In the former action in the United States District Court for the Northern District of Illinois wherein the Suddarths were defendants, Household Commercial Financial Services, Inc. alleged the Suddarths breached a guaranty agreement by failing to pay a deficiency owing on the underlying credit agreement they had guaranteed. Household prevailed on the merits in the former action against the Suddarths. In the present action in the Circuit Court of Davidson County the Suddarths allege fraud, fraudulent inducement and civil conspiracy against Household and two other defendants concerning the guaranty agreement that was the subject of the former action in the United States District Court. The present claims by the Suddarths arose out of the same transaction or occurrence that was the subject of Household's action in the United States District Court; therefore, it was compulsory that the Suddarths' claims be presented in the former action. The Suddarths failed to do so. Therefore, we affirm the dismissal of this action.

Corrected Case; originally published 2/13/2006
http://www.tba2.org/tba_files/TCA/2006/suddarthb_corr022206.pdf


STATE OF TENNESSEE v. TIM FLOOD

Court: TCCA

Attorneys:

R. Dwight Foster and Julie Foster, Knoxville, Tennessee (at trial); and Leslie M. Jeffress, Knoxville, Tennessee (on appeal), for the Appellant, Tim Flood.

Paul G. Summers, Attorney General & Reporter; Leslie Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Tim Flood, appeals from his Knox County Criminal Court jury convictions of four counts of rape of a child, for which he received an effective sentence of 40 years in the Department of Correction. On appeal, the defendant claims that the convictions are unsupported by the evidence and that the trial court erred in refusing to allow a proposed defense witness to testify. Because the refusal to permit the defendant to call a witness was error, we reverse the convictions and remand the case.

http://www.tba2.org/tba_files/TCCA/2006/floodt022206.pdf


STATE OF TENNESSEE v. SHANNON A. HOLLADAY
Corrected Case with Concurring Opinion


Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellant, State of Tennessee.

J. Thomas Marshall, Jr., District Public Defender, for the appellee, Shannon A. Holladay.

Judge: TIPTON

An Anderson County grand jury indicted the defendant, Shannon A. Holladay, for one count of vehicular homicide by intoxication, a Class B felony, and one count of vehicular homicide by recklessness, a Class C felony. Before trial, the defendant filed a motion to suppress the evidence obtained from the air bag sensor module in the defendant's car, which the Anderson County Criminal Court granted. The state appeals, contending that the trial court erred in granting the defendant's motion to suppress. We dismiss this case for lack of jurisdiction.

Corrected Case; originally published 2/08/2006
http://www.tba2.org/tba_files/TCCA/2006/holladays_corr022206.pdf

Concurring Opinion
http://www.tba2.org/tba_files/TCCA/2006/holladays_con_corr022206.pdf


Membership of Fiscal Review Committee

TN Attorney General Opinions

Date: 2006-02-21

Opinion Number: 06-036

http://www.tba2.org/tba_files/AG/2006/ag_06-36.pdf

Applicability of the Blind Vendors Program, Tenn. Code Ann. Sec. 71-4-501, et seq., to Fire Stations

TN Attorney General Opinions

Date: 2006-02-21

Opinion Number: 06-037

http://www.tba2.org/tba_files/AG/2006/ag_06-37.pdf

TODAY'S NEWS

Legal News
Legislative News
Passages
TBA Member Services

Legal News
Knoxville lawyer appointed to vacant judgeship
Knox County commissioners yesterday appointed long-time Knoxville lawyer Jimmy Kyle Davis as a general sessions court judge. Davis beat out three other candidates for the interim appointment replacing Brenda Waggoner, who took early medical retirement last month. The term runs through Aug. 31.

Sumner County seeks third judge
The Sumner County Bar Association recently adopted a motion requesting that the county commission create a third general sessions judgeship. The county commission has announced that it will consider the proposal on Feb. 27. Read more about the story in
the Ashland City Times
15th Judicial District candidates finalized
Candidates for judicial offices in the 15th Judicial District include: John D. Wooten Jr., who is running unopposed for circuit court judge; C.K. Smith, who is running unopposed for chancellor; Comer L. Donnell, who is running unopposed for public defender; and Tom P. Thompson Jr., who is running unopposed for district attorney. A contested election for criminal court judge pits Robert "Bobby" Hibbett against James O. Bond.

Referee resigns court position
Last week Cynthia Chapman resigned her post as referee for Knox County Juvenile Court Judge Tim Irwin, who recently took office. She served in the position for eight years under the late Juvenile Judge Carey Garrett. Read more about her tenure in the
Knoxville News Sentinel
High court declines to hear Tenn. optometry case
The U.S. Supreme Court today refused to hear a case involving a 1967 Tennessee law that prevents retail optical stores from hiring optometrists and offering one-stop shopping for eye care. National retailers such as LensCrafters filed suit arguing that the law was discriminatory. In 2003, U.S. District Court Judge Aleta Trauger ruled the law was fair. The high court's action today allows her ruling to stand. Read more about the case in this article by the
Knoxville News Sentinel
Legislative News
Lawmakers rush to limit eminent domain
At least 29 bills have been filed by state lawmakers in the wake of a U.S. Supreme Court ruling last summer that reinforced governments' broad powers to take private property to build projects believed to be of greater economic value. Read more about the bill and the issues at stake in the
Tennessean
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a position on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Passages
Retired judge, Horton, passes away
Retired U.S. District Court Judge Odell Horton, 77, passed away today in Memphis. A 1956 graduate of the Howard University School of Law, Horton had a long and distinguished legal career in Tennessee. He operated a private practice in Memphis for five years before serving as assistant U.S. attorney for the Western District of Tennessee, a post he held for six years. In 1969, he was elected to the Shelby County Criminal Court and then appointed to the U.S. bankruptcy court in the western district. He was nominated to the U.S. District Court in the state's western district in 1980, serving as chief judge for seven years. Horton assumed senior status in May 1995. Funeral arrangements were not available at press time.

TBA Member Services
Save on telecommunications costs
Save on telecomunications costs and upgrade your existing system with the TBA member benefits program from American Communications Services. ACS works with BellSouth and a variety of providers to bring you savings on telecom.
Learn how you can save

 
 
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