St. Mary's repeats as State High School Mock Trial champ

St. Mary's Episcopal School from Memphis scored a final round victory over Brentwood High School to win a second-straight title in the Tennessee State High School Mock Trial Competition in Nashville this weekend. See a complete list of team rankings as well as photos of the competition:

http://www.tba.org/mocktrial/2008_mocktrial_winners.html

TODAY'S OPINIONS
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STATE OF TENNESSEE v. MICHAEL DALE RIMMER
CORRECTION


Court: TSC

Attorneys:

Brock Mehler, Nashville, Tennessee, and Joseph Ozment, Memphis, Tennessee, for the appellant, Michael Dale Rimmer.

Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas D. Henderson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

The Defendant, Michael Rimmer, was convicted of one count of premeditated murder, one count of aggravated robbery, and one count of theft of property. In the penalty phase of the trial, the jury imposed a sentence of death for the first degree murder. On appeal as of right, the Court of Criminal Appeals affirmed the convictions, reversed the sentence of death, and remanded to the trial court for a second sentencing hearing. State v. Rimmer (Rimmer I), No. W1999-00637-CCA-R3-DD, 2001 WL 567960 (Tenn. Crim. App. May 25, 2001). At the conclusion of that proceeding, a different jury imposed the death penalty based upon one statutory aggravating circumstance, i.e. that the defendant had a previous conviction for a felony with statutory elements involving violence to the person. Tenn. Code Ann. section 39-13-204(i)(2) (1997). As required for the imposition of a sentence of death, the jury also concluded that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. This sentence was affirmed by the Court of Criminal Appeals. State v. Rimmer (Rimmer II), No. W2004-02240-CCA-R3-DD, 2006 WL 3731206 (Tenn. Crim. App. Dec. 15, 2006). Our review is mandatory. Tenn. Code Ann. section 39-13-206(c)(1) (2006). Upon careful review of the entire record, we hold as follows: (1) although the trial court erred during the sentencing hearing by excluding evidence solely on the grounds of hearsay, the evidence was either introduced through other means or lacking in relevance or reliability, so the error was harmless beyond a reasonable doubt; (2) for a waiver of his right to testify to have been valid, a defendant need not state on the record that he was informed by counsel of our ruling in State v. Cazes, 875 S.W.2d 253, 266 (Tenn. 1994); (3) the jury instruction defining reasonable doubt does not offend due process; (4) references by defense counsel and a defense witness that the defendant previously had been on "death row" did not, under these circumstances, entitle the defendant to a new sentencing hearing; and (5) the sentence of death satisfies the proportionality guidelines. As to the remaining issues, we agree with the conclusions reached by the Court of Criminal Appeals. The relevant portions of the opinion are appended. The judgment of the Court of Criminal Appeals is, therefore, affirmed.

http://www.tba2.org/tba_files/TSC/2008/rimmerm_corr_031708.pdf


ROBIN CUNNINGHAM v. NORMAN E. JONES, M.D., ET AL.

Court: TCA

Attorneys:

Christopher Kim Thompson, Murfreesboro, TN, for Appellant.

Phillip North, Renee Levay Stewart, Nashville, TN, for Appellee Norman E. Jones, M.D.

Judge: HIGHERS

This is an appeal from a grant of a motion for summary judgment. In 2002, the treating physician referred his patient to the hospital for testing. A radiologist at the hospital reviewed the patient's test results, creating a radiology report. The findings in the report indicated that the patient did not suffer from renal failure. The top portion of the report labeled "Indications" stated "renal failure." Thereafter, the report was placed in the patient's file and also sent to the treating physician, who told the patient that she did not have renal failure. It was reported to her insurance, though, that the patient had renal failure. The trial court granted summary judgment for the claim against the radiologist, and the patient appeals. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/cunninghamr_031708.pdf


GATE BLUEGRASS PRECAST, INC. v. LOREN L. CHUMLEY, COMMISSIONER OF REVENUE OF THE STATE OF TENNESSEE

Court: TCA

Attorneys:

Michael G. Stewart and Brett R. Carter, Nashville, Tennessee, for the appellant, Gate Bluegrass Precast, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Charles L. Lewis, Deputy Attorney General and Wyla M. Posey, Assistant Attorney General, Nashville, Tennessee, for the appellee, Loren L. Chumley, Commissioner of Revenue of the State of Tennessee.

Judge: FARMER

This lawsuit arises from taxpayer's assertion that it qualifies for tax exemptions provided to manufacturers by Tennessee Code Annotated section 67-6-206 and section 67-6-102. The trial court determined the exemptions are not available to taxpayer because taxpayer does not qualify as a "manufacturer" as defined by the taxation statutes. Taxpayer appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/gatebluegrass_031708.pdf


THURSTON HENSLEY v. CSX TRANSPORTATION, INC.
CORRECTION on pages 8 & 16


Court: TCA

Attorneys:

Gareth S. Aden and Christopher W. Cardwell, Nashville, Tennessee; Randall A. Jordan, Grant Buckley, Karen Jenkins Young, and Christopher R. Jordan, St. Simons Island, Georgia; and H. Dean Clements, Chattanooga, Tennessee, for the appellant, CSX Transportation, Inc.

H. Douglas Nichol, Knoxville, Tennessee, and Joseph D. Satterley, Louisville, Kentucky, for the appellee, Thurston Hensley.

Judge: SUSANO

Thurston Hensley ("Employee") sued CSX Transportation, Inc. ("Railroad") pursuant to the Federal Employees Liability Act ("FELA"), 45 U.S.C. sections 51-60 (2008), alleging that he contracted toxic encephalopathy and asbestosis in the course and scope of his employment as an electrician with Railroad. The case was tried to a jury, which found in favor of Employee and awarded him $5,000,000 in compensatory damages. Railroad appeals, alleging that the trial court erred in the following ways: by directing a verdict against it on the Railroad's statute of limitations defense; by charging the jury with divergent standards of negligence and causation with regard to Railroad's negligence and Employee's negligence; by giving the jury a verdict form that, according to Railroad, predetermined the issue of whether Employee actually had the diseases he claims; by failing to instruct the jury that a plaintiff's fear of cancer must be "genuine and serious"; by failing to declare, as a matter of law, that Employee's evidence did not satisfy that standard; and by failing to declare a mistrial because of Employee's closing argument, which Railroad claims was inflammatory. We reject all of Railroad's arguments. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2008/hensleyt_corr_031708.pdf


TABATHA PAMPERIN v. STREAMLINE MFG., INC., ET AL.

Court: TCA

Attorneys:

Frank M. Fly, Murfreesboro, TN, for Appellant.

G. Kline Preston, IV, Nashville, TN, for Appellee, Robert Moore.

Virgil Holt, Paducah, KY, pro se.

Judge: HIGHERS

This appeal involves an attempt to pierce a corporate veil. The plaintiff purchased a hot tub from a corporation, paying $3,000 by check and agreeing to finance the balance of $1,178. Unbeknownst to the plaintiff, the two sole shareholders of the corporation had been deadlocked and involved in litigation for almost two years. After the corporation accepted the plaintiff's $3,000 check, but before it delivered the hot tub, the litigation ended. A jury determined that one of the shareholders held a perfected security interest in practically all of the corporation's assets, and the judge entered an order recognizing that shareholder's right to foreclose on the collateral if necessary. Both shareholders filed post-trial motions, then submitted a proposed "agreed amended final order" that was approved by the trial judge. The agreed order provided that, "in lieu of foreclosure," the secured party-shareholder would be awarded all the assets of the corporation outright. The corporation was left with no assets and ceased to operate. The plaintiff never received her hot tub or a refund of the $3,000 she paid to the corporation. Plaintiff filed the present lawsuit seeking a judgment against the corporation and against the two shareholders individually. The trial court entered a total judgment against the corporation of $17,663.52, which included treble damages and attorney's fees pursuant to the Tennessee Consumer Protection Act. However, the court refused to pierce the corporate veil to impose liability on the individual shareholders. The plaintiff appeals. We affirm in part, reverse in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/pamperint_031708.pdf


ROB RENNELL v. THROUGH THE GREEN, INC., ET AL.

Court: TCA

Attorneys:

Elizabeth H. Ferguson, Bradley A. MacLean, Nashville, TN, for Appellants.

Joseph A. Woodruff, Derek W. Edwards, Nashville, TN, and P. Edward Schell, Franklin, TN, for Appellee.

Judge: HIGHERS

This is an appeal from a bench trial for intentional procurement of breach of contract. Through the Green, Inc., a closely held for-profit corporation, was formed in 1994 by John Doerr, who served as both president and majority shareholder. Through the Green, Inc. operated as a golf course and driving range located in Franklin, Tennessee. Thomas Doerr, John Doerr's brother, served as the corporation's vice president. Rob Rennell, a professional golf instructor, entered into an oral employment contract with John Doerr in 1994 to work for Through the Green, Inc. A dispute over the terms of Rob Rennell's employment contract arose. Rob Rennell contended that he possessed a 20% ownership interest in the corporation because he had contributed five years of "sweat equity" through his work in accordance with the oral employment contract. Rob Rennell also alleged that he deferred salary in 2003 and 2004 in return for a 2 for 1 stock exchange. The corporation ceased operations in 2004, and John Doerr maintained that Rob Rennell had no company ownership interest. Rob Rennell brought suit, alleging several theories of liability, including procurement of breach of contract against John and Thomas Doerr. First, the trial court found that Through the Green, Inc. breached its employment contract with Rob Rennell. Next, the court found John Doerr individually liable for procurement of breach of contract and awarded Rob Rennell treble damages in the amount of $1,524,000. Finally, the court found Thomas Doerr vicariously liable for John Doerr's conduct in the amount of $508,000, jointly and severally with John Doerr. John and Thomas Doerr appeal. John Doerr alleges that 1) the chancery court erred in finding him liable for procurement of breach of contract because he, acting as president and owner of Through the Green, Inc., is not a third party necessary for such a procurement claim; 2) the chancery court erred in its calculation of damages; and 3) he is entitled to an offset for any amount Rob Rennell may collect in the future from Through the Green, Inc. on the underlying breach of contract claim. Thomas Doerr argues that the judgment holding him vicariously liable for the actions of John Doerr should be reversed because Rob Rennell neither asserted nor pled such a cause of action. In the alternative, Thomas Doerr argues that the evidence is not sufficient to support a judgment holding him vicariously liable. We reverse in part, vacate in part and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/rennellr_031708.pdf


JESSICA L. SMITH, ET AL. v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Peter M. Foley, Deputy General Counsel, for the Appellant, The University of Tennessee.

William B. Luther, Panama City Beach, Florida, for the Appellees Jessica Smith, Gary Smith, and Jane Smith.

Judge: SWINEY

In November of 2002, Ms. Jessica Smith was savagely beaten on the head with a brick after she exited the Lake Avenue Parking Garage on the University of Tennessee campus on her way to her dorm. Ms. Smith and her parents brought this lawsuit against the University of Tennessee pursuant to Tenn. Code Ann. section 9-8-307(a)(1)(C), claiming that the University negligently created or maintained a dangerous condition on state controlled real property. Following a trial, the Claims Commission determined that due to improper lighting at the site of the attack, the State was liable pursuant to that statutory provision. The State requested and was granted an en banc review by the full Claims Commission. Following the en banc review, a majority of the Commissioners affirmed the judgment in favor of Ms. Smith. The State appeals. We conclude that the evidence does not preponderate against the Commission's findings and ultimate conclusions that, among others, the State negligently created or maintained a dangerous condition on state controlled real property, that the attack on Ms. Smith was foreseeable, and that the State had adequate notice of the dangerous condition. We, therefore, affirm the en banc majority decision of the Claims Commission.

http://www.tba2.org/tba_files/TCA/2008/smithj_031708.pdf


ROGER WILKES, ET AL. v. SHAW ENTERPRISES, LLC

Court: TCA

Attorneys:

Jean Dyer Harrison, Nashville, Tennessee, for the appellants, Roger Wilkes and Vittoria Wilkes.

Barton E. Kelley, Columbia, Tennessee, for the appellee, Shaw Enterprises, LLC.

Judge: ANDERSON

The principal issues presented by this appeal of a residential construction dispute between a contractor and the homeowner are (1) whether the standard of workmanship required of the contractor by the chancellor was correct and (2) whether the proper measure of damages was applied. The chancellor found that some of the house construction was defective, but that the cost of repair of the defects was excessive and disproportionate. The chancellor held that the proper measure of damages was the diminished value of the house and awarded damages on that basis. We affirm in part, reverse in part and remand for proof of the contractual workmanship standard of "good building practices" and for proof of the diminished value of the home.

http://www.tba2.org/tba_files/TCA/2008/wilkesr_031708.pdf


STATE OF TENNESSEE v. ROGER (BUCK) JONES

Court: TCCA

Attorneys:

Keith E. Haas, Newport, Tennessee, for the Appellant, Roger "Buck" Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia S. Lee, Assistant Attorney General; James B. Dunn, District Attorney General; Amanda H. Inman, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

The Defendant, Roger "Buck" Jones, pled guilty to one count of vehicular homicide, three counts of vehicular assault, one count of driving under the influence ("DUI"), one count of violating the registration law, one count of failure to obey traffic control devices, and one count of violating the financial responsibility law. The trial court sentenced him to eight years in prison as a Range I offender. The Defendant appeals only his sentence. Upon a thorough review of the record and applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/jonesr_031708.pdf


STATE OF TENNESSEE V. LONNIE T. LAWRENCE AND PATRICK D. PICKETT

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Michael A. Gallegos, Assistant District Attorney General, for the appellant, State of Tennessee.

Michael H. Meares (at trial), Maryville, Tennessee, and Kristi M. Davis (on appeal), Knoxville, Tennessee, for the appellee, Lonnie T. Lawrence.

William W. Reedy (at trial), Cleveland, Tennessee, and Damon Wooten (on appeal), Maryville, Tennessee, for the appellee, Patrick D. Pickett.

Judge: MCGEE OGLE

The appellant, the State of Tennessee, charged the appellees, Lonnie T. Lawrence and Patrick D. Pickett, with manufacturing methamphetamine, possession of methamphetamine, and vandalism.1 In this interlocutory appeal, the State argues that the trial court erroneously suppressed eighteen photographs of evidence discovered at the crime scene, an alleged methamphetamine laboratory. Upon review of the record and the parties' briefs, we affirm the trial court's order in part, reverse in part, and remand the case for trial.

http://www.tba2.org/tba_files/TCCA/2008/lawrencep_031708.pdf


TODAY'S NEWS

Legislative News
Legal News
Passages
TennBarU CLE
TBA Member Services

Legislative News
Wilder will not seek reelection, news web site says
The NashvillePost.com is reporting today that former Lt. Gov. and current West Tennessee state Sen. John Wilder will not seek re-election to the legislature next year. Several sources tell the NashvillePost.com that Wilder's announcement will come this week, possibly as early as today on the Senate floor.
Read more at NashvillePost.com (subscription required)
Legal News
Sweeney to run for Chancery Court position
After being passed over by the Tennessee Judicial Selection Commission as a nominee to fill the open Davidson County Chancery Court seat, Nashville attorney Matt Sweeney of Baker, Donelson, Bearman, Caldwell & Berkowitz has qualified to run for the judgeship in an August election. The commission sent Gov. Bredesen three possible candidates to fill the post -- Alan D. Johnson of Willis & Knight PLC, Russell T. Perkins of the Attorney General's Office, and Cristi Eileen Scott, who is currently Clerk and Master of the Davidson County Chancery Court. Whomever is selected will have to stand for election in August.
Read more at the NashvillePost.com (subscription required)
Judges name temporary replacement to D.A. post
The Circuit and Chancery Courts in Hickman, Lewis, Perry and Williamson counties will be closed on Wednesday, to allow elected officials and employees to attend the funeral of General Ron Davis. The Circuit Judges for the 21st Judicial District have appointed retired attorney and former assistant district attorney Don Young as district attorney general pro tem to fill the term until the governor makes an appointment for the position.

State rep seeks AG opinion on possible appointment
Tennessee state Rep. Vince Dean, R-East Ridge, has asked the state attorney general for an opinion on whether he must step down from his General Assembly seat if the GOP nominates him for Hamilton County sheriff. He is one of four possible Republican nominees for the sheriff's office.
Read more in the Times Free Press
Vanderbilt law prof wins Senate confirmation
Vanderbilt Law professor Carol M. Swain on Friday won U.S. Senate confirmation to the National Council on the Humanities. Vanderbilt Law School will host a symposium organized by Professor Swain on March 20-21 centered on the themes of Debating Immigration. During the symposium, a distinguished group of scholars, journalists and activists will grapple with some of the thorniest issues of immigration.
Learn more about the symposium
Passages
Funeral services Wednesday for Franklin district attorney
Ronald L. Davis, district attorney general in the 21st Judicial District, died Saturday following a long battle with cancer. He was 62. Mr. Davis served as district attorney general since 1998 for the area that includes Hickman, Lewis, Perry and Williamson counties. Services will be held at 11 a.m. Wednesday at Brentwood United Methodist Church, with visitation Tuesday from 11 a.m. - 8 p.m. at Williamson Memorial Funeral Home and one hour before the service at the church on Wednesday. A former Metro Nashville police officer, Mr. Davis was a past president of the Williamson County Bar Association and was chairman of the board and founder of the Williamson County Child Advocacy Center.
Read more in the Williamson Herald
TennBarU CLE
Labor & Employment Law Forum offers strong lineup
The TBA's Annual Labor & Employment Law Forum returns for its 12th year on April 3, featuring a program focused on the unique issues impacting labor and employment law, including bankruptcy, sports and entertainment law. It will also include an ethics panel of distinguished in-house attorneys from a Tennessee Fortune 100 company, plus recent case law developments and related issues.
Learn more or register now
TBA Member Services
UPL enforcement resources available
The TBA Standing Committee on the Protection of the Public from the Unauthorized Practice of Law encourages all lawyers in Tennessee to be alert to the unauthorized practice of law (UPL), which harms Tennessee consumers. Resources now are available to help lawyers report UPL to local bar associations and the state attorney general. Local bars that do not already have a process in place for handling UPL complaints, may want to check out a sample protocol on TBALink.
Visit the UPL webpage for more information

 
 
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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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