Legislative Update: Liability bill goes to study committee

Nursing Home Liability -- Efforts to cap damages in tort liability actions against nursing homes were put off today, when sponsors agreed to have their bill (HB4053/SB4075) go to a joint study committee to review the matter and make recommendations to the next General Assembly. The 10-member committee will be made up of two representatives of each Judiciary Committee, two from each Finance Committee, and one from each Health Committee.

Uniform Residential Landlord Tenant Act -- A bill to extend the Uniform Residential Landlord Tenant Act to four mid-size counties (HB2746/SB2885) was recommended for passage by the House Judiciary Civil Practice Subcommittee today. The bill came on the heels of an attorney general's opinion issued last Thursday that said the current scattershot population classifications suffer from raised constitutional concerns.

Tennessee Plan -- Efforts to make all stages of the judicial selection process -- including interviews, discussions of TBI background information, deliberations and voting -- open under the Sunshine Law (HB4154/SB4176) failed to advance out of the House Judiciary Civil Practice Subcommittee today on a 2 to 3 vote. Consideration of legislation to extend the life of the Judicial Selection Commission, and thus the Tennessee Plan, has yet to be scheduled.
TODAY'S OPINIONS
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ALTHA A. LUCK v. SATURN CORPORATION

Court: TWCA

Attorneys:

Rocky McElhaney, Nashville, Tennessee, for the appellant, Altha A. Luck

Kenneth M. Switzer, Nashville, Tennessee, for the appellee, Saturn Corporation

Judge: WALLACE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This action, seeking permanent partial disability benefits attributable to a disputed diagnosis of a permanent lung injury, was dismissed by the trial court. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2008/lucka_040808.pdf


ANNA C. BURDEN v. HARRY DONALD BURDEN
CORRECTION is that the childs name is removed


Court: TCA

Attorneys:

Vivian Crandall, Oak Ridge, Tennessee, for the appellant, Anna C. Burden.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellee, Harry Donald Burden.

Judge: SUSANO

In this divorce case, Anna C. Burden ("Wife") challenges the trial court's award of joint custody and its adoption of the Permanent Parenting Plan submitted by Harry Donald Burden ("Husband"), which plan provides for equal parenting time with regard to the parties' child, A.V. ("Child"). Wife contends that she should be the primary residential parent, with Husband having visitation rights. Wife also challenges the court's division of the marital property and its denial of alimony. We reverse as to custody, affirm as to the division of property, and vacate the judgment as to alimony. This case is remanded for further proceedings on the issue of alimony.

http://www.tba2.org/tba_files/TCA/2008/burdena_CORR_040808.pdf


CHRISTOPHER ERIK CLICK v. SHAWN SHERREE DEAN CLICK

Court: TCA

Attorneys:

Shawn J. McBrien, Lebanon, Tennessee, for the appellant, Christopher Erik Click.

Jeffrey Spark, Nashville, Tennessee, for the appellee, Shawn Sherree Dean Click.

Judge: CLEMENT

This appeal concerns the custodial and financial determinations upon the dissolution of a twelve-year marriage. The trial court designated Mother the primary residential parent of the couple's two minor children, set child support, and made a division of the marital property, which largely consisted of a debt owed to Father's parents. However, the trial court declined to make an allocation of the parties' debt to the Internal Revenue Service. Both parties present issues on appeal. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/clickc_040808.pdf


BARBARA ANN FAILEY v. KEVIN MARK FAILEY

Court: TCA

Attorneys:

Connie Reguli, Brentwood, Tennessee, for the appellant, Barbara Ann Failey.

L. Samuel Patterson, Columbia, Tennessee, for the appellee, Kevin Mark Failey.

Judge: CLEMENT

In this divorce action, Wife appeals contending the trial court erred in its award of alimony and in the division of marital property. The trial court awarded Wife transitional alimony in the amount of $250 per week for a period of three years, awarded her $5,000 in attorney's fees, and divided the marital estate. Wife contends on appeal that the trial court erred in not awarding her alimony in futuro and the full amount requested for attorney's fees, and that she should receive a greater percentage of the marital estate. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/faileyb_040808.pdf


JERRY GONZALEZ v. STEVE ARMISTEAD ET AL.

Court: TCA

Attorneys:

Michael Ray Jennings, Lebanon, Tennessee, for the appellants, Steve Armistead and Wilson County Road Commission.

Jerry Gonzalez, Murfreesboro, Tennessee, for the appellee, Jerry Gonzalez.

Judge: BENNETT

Plaintiff Jerry Gonzalez sued the Wilson County Road Commission and the road superintendent seeking an order requiring the county to maintain Jay Bird Lane. The trial court granted summary judgment for Mr. Gonzalez. The defendants appeal. Finding that this case moot and that Mr. Gonzalez lost his standing, we vacate the trial court's order and remand with instructions to dismiss the case.

http://www.tba2.org/tba_files/TCA/2008/gonzalezj_040808.pdf


KENNETH H. MARTIN v. MELLO MEDIA, LLC, et al.

Court: TCA

Attorneys:

Ralph W. Mello, Nashville, Tennessee, for the appellant, Mello Media, LLC.

Garrett E. Asher, Maryville, Tennessee, for the appellee, Kenneth H. Martin.

Judge: STAFFORD

This appeal from summary judgment also addresses a counter-plaintiff's right to take a voluntary dismissal. Landowner filed a declaratory judgment action seeking to have a lease agreement with a billboard advertising company declared null and void; the company counterclaimed alleging breach of contract. Landowner moved for summary judgment as to his action and sought to dismiss the company's counterclaim. After determining that the declaratory action actually sought an advisory opinion, the chancery court declined to exercise jurisdiction and denied the landowner's motion for summary judgment. In response, the company sought to voluntarily dismiss its breach of contract counterclaim without prejudice. Upon the landowner's renewed motion for summary judgment, the court determined that the motion for summary judgment regarding the counterclaim was still pending and denied the company a nonsuit based on Tenn. R. Civ. P. 41.01. The court then granted summary judgment in favor of the landowner and dismissed the counterclaim. The company appeals the trial court's denial of a nonsuit and the grant of summary judgment dismissing its counterclaim for breach of contract against landowner. Finding no error, we affirm the judgment of the chancery court in all respects.

http://www.tba2.org/tba_files/TCA/2008/martink_040808.pdf


IN THE MATTER OF M. L. P.

Court: TCA

Attorneys:

Kevin W. Weaver, Cordova, TN; James F. Arthur, III, Memphis, TN, for Appellants

Arthur C. Walton, Memphis, TN, for Appellee.

Robert E. Cooper, Jr., Attorney General and Reporter, Amy T. McConnell, Assistant Attorney General, Nashville, TN, in support of Tenn. Code Ann. section 37-2-403.

Judge: HIGHERS

This appeal involves a petition to terminate a father's parental rights that was filed by the child's great aunt, great uncle, and another couple who would like to adopt the child. The juvenile court dismissed the petition upon finding that the father did not willfully abandon the child. The court found that the great aunt and uncle had interfered with the father's attempts to visit the child. The petitioners appeal. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/mlp_040808.pdf

KIRBY dissenting
http://www.tba2.org/tba_files/TCA/2008/mlp_DIS_040808.pdf


GEORGE W. SULLIVAN v. HILARIA B. SULLIVAN
CORRECTION on page 9


Court: TCA

Attorneys:

Richard B. Teeter, Chattanooga, Tennessee, for the appellant, George W. Sullivan.

Jennifer A. Mitchell, Dunlap, Tennessee, for the appellee, Hilaria B. Sullivan.

Judge: SUSANO

This case involves a Tenn. R. Civ. P. 60.02 attack on a Tennessee divorce judgment. Hilaria B. Sullivan ("Wife"), a resident of the South Pacific island of Palau, challenges the propriety of a 1993 default judgment secured by George W. Sullivan ("Husband"), which was entered in Husband's divorce suit after Wife failed to respond to notice by publication in a Tennessee newspaper. Wife seeks relief under Tenn. R. Civ. P. 60.02(4) and (5). She claims that Husband, who has since remarried, knew her mailing address in 1993 or easily could have discovered it, and that, therefore, notice by publication was inadequate. The trial court declined to set aside the divorce, but altered the property distribution in Wife's favor and applied its new distribution retroactively, thus resulting in Husband owing a substantial arrearage. Husband appeals. He argues that Wife's Rule 60.02 challenge is untimely because, according to him, she knew about the divorce by 1996, yet waited another six years before challenging it; that, in any event, Rule 60.02(4) does not allow retroactive relief and Rule 60.02(5) is not implicated by these facts; and that Husband should not have been ordered to designate Wife as the beneficiary of his survivorship plan. We affirm.

http://www.tba2.org/tba_files/TCA/2008/sullivang_CORR_040808.pdf


STATE OF TENNESSEE v. JOE M. GILBERT

Court: TCCA

Attorneys:

Mark L. Puryear, III, Franklin, Tennessee, for the appellant, Joe M. Gilbert.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Joe M. Gilbert, the defendant, was convicted by a jury of aggravated abuse of a child under six years, a Class A felony. The defendant was sentenced as a violent, standard offender to fifteen years at 100%. On appeal, the defendant alleges that: (1) the evidence was insufficient to support the conviction; (2) the trial court erred in permitting an expert witness to present his conclusions and opinions of the victim's injuries; (3) the trial court's numerous evidentiary errors deprived the defendant of a fair trial; and (4) prosecutorial misconduct denied the defendant a fair trial. Our review has failed to identify any reversible error, and we hereby affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2008/gilbertj_040808.pdf


Inability of Municipalities to Rescind Election of "Tennessee River Resort District" Status

TN Attorney General Opinions

Date: 2008-04-08

Opinion Number: 08-85

http://www.tba2.org/tba_files/AG/2008/ag_08_85.pdf

Effect of a Delinquent Property Tax Sale on an Easement Burdening the Real Property Sold

TN Attorney General Opinions

Date: 2008-04-08

Opinion Number: 08-86

http://www.tba2.org/tba_files/AG/2008/ag_08_86.pdf

Constitutionality of SB 3418 as Amended Relating to Prohibition of Deceptive Geographic Business Names and Listings

TN Attorney General Opinions

Date: 2008-04-08

Opinion Number: 08-87

http://www.tba2.org/tba_files/AG/2008/ag_08_87.pdf

TODAY'S NEWS

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Legal News
Mattice says death row inmate House can wait at home
U.S. District Court Judge Harry S. Mattice Jr. ordered that Paul House, who has multiple sclerosis and uses a wheelchair, be released into the custody of his mother after a May 28 hearing where the court will set the conditions of his freedom. House's case is one of many across the nation thrown into doubt following advances in DNA analysis. He was sentenced to death in 1986. In 2006, the U.S. Supreme Court ruled that House was not given a fair trial because the jury did not hear DNA evidence and other testimony that could have exonerated him. Prosecutors have vowed to retry House if their appeals fail and he is freed.
The Tennessean has more
Lee: Moncier to be disciplined
Chattanooga U.S. District Magistrate Judge Susan K. Lee issued an opinion today regarding discipline for Knoxville attorney Herbert S. Moncier, but does not state what discipline she believes Moncier should suffer, instead she leaves that decision to Chief U.S. District Judge Curtis Collier. "Thus far (Moncier) has failed to accept responsibility for more than a few poorly chosen words and perhaps an inability to effectively communicate during the November 2006 hearing," Lee wrote.
The News Sentinel has more
U of M grad will defend man accused in 9/11 attacks
A University of Memphis-trained military defense lawyer has been assigned to represent a Saudi man identified in legal proceedings as the paymaster who made travel arrangements for some of the Sept. 11, 2001, hijackers. U.S. Army Maj. Jon S. Jackson, who has been teaching military law and was assigned earlier this year to prepare to represent one of the high-level detainees at Guantanamo Bay, Cuba, was told Monday that he will represent Mustafa Ahmed Adam al Hawsawi.
The Commercial Appeal has the story
Scalia: 'I am not a nut'
If he was nominated to the high court today, U.S. Supreme Court Justice Antonin Scalia says he might not win confirmation because the public expects judges to rewrite the Constitution rather than interpret it narrowly based on original intent. Scalia, who was confirmed 98-0 in 1986, made the remarks while speaking to students at Roger Williams University law school, the Associated Press reports. "I am a textualist, I am an originalist. I am not a nut," Scalia said to laughter.
The ABA Journal connects you to the story
Legislative News
Death penalty study committee asks for more time
The co-chairs of the Committee to Study the Administration of the Death Penalty, Sen. Doug Jackson and Rep. Kent Coleman, write in an opinion piece why they introduced legislation to extend the committee for an additional year, to October 2009. "Our focus is on ensuring that the administration of capital punishment is fair and reliable," not to abolish the death penalty, nor is it "responsible for the current national moratorium on executions."
Read their column in the Tennessean
House committee chair will not seek reelection
State Rep. Phillip Pinion, D-Union City, the chairman of the Tennessee House of Representatives' Transportation Committee, will withdraw from this upcoming election, according to NashvillePost.com. The news web site says that since Pinion is an incumbent withdrawing, qualifying for his district will re-open for seven days once he files papers to remove him name from the ballot.
Read the story on NashvillePost.com
Track legislation of interest to Tennessee attorneys
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Use technology to help make your case
You can improve upon tried-and-true technology by exploring more cutting-edge approaches to trial presentation. The benefits of using the newest technology to support an argument include: entertainment, especially for jurors used to constant media interaction; engagement, by keeping jurors interested in what's coming next; and education.
Law.com tells you how to do it
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Free Fastcase CLE helps build research skills
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.

Online training sessions are also available. The TBA and Fastcase offer free one-hour CLE webinars to help you use Fastcase online research more effectively in your practice.
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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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