CLE: Handling malpractice cases in Tennessee

If you need to learn more about litigating medical and professional malpractice claims, a new CLE program presented by the TBA Young Lawyers Division is for you. Whether you represent defendants or plaintiffs, this seminar will provide tools for taking a case from initial assessment to final disposition. Learn from seasoned practitioners how to assess the elements of a malpractice case, evaluate client claims and use mediation to achieve a favorable outcome. A final session will cover the state of malpractice law in Tennessee and the latest on tort reform efforts. This six-hour program will be offered March 6 in both Memphis and Nashville.

Learn more about this course or sign up now

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
08 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

FRANCES HALL v. THE TOWN OF ASHLAND CITY

Court: TCA

Attorneys:

Robert M. Burns and Timothy Phillip Harlan, Nashville, Tennessee, for the appellant, The Town of Ashland City.

William C. Moody, Charlnette Anastasia Richard, and Dale M. Quillen, Nashville, Tennessee, for the appellee, Frances Hall.

Judge: BENNETT

Defendant's rescue vehicle crashed into plaintiff's car at a busy intersection. The trial court found both parties negligent, with the speed of the rescue vehicle being the overriding factor. Defendant was found responsible for 60 percent of the fault and plaintiff for 40 percent of the fault. Damages were allocated accordingly. We affirm.

http://www.tba2.org/tba_files/TCA/2009/hallf_021309.pdf


WILLIAM CLARK MOORE v. DONNA LYNN MOORE (ERICKSON)

Court: TCA

Attorneys:

Andrew M. Cate, Nashville, Tennessee, for the Appellant, William Clark Moore.

James L. Curtis, Nashville, Tennessee, for the Appellee, Donna Lynn Moore (Erickson).

Judge: SWINEY

Donna Lynn Moore ("Mother") and William Clark Moore ("Father") were divorced in 1999. Among other things, Father was ordered to pay one-half of the medical expenses incurred for the parties' child that were not otherwise covered by health insurance. Mother filed a petition for contempt claiming Father was behind on his payments for the child's health care costs. An Agreed Order was entered which held in abeyance a determination of Father's arrearage because Father had lost his job in a workforce reduction. After Father found employment, Mother filed another petition for contempt, asserting that Father still was not paying his share of the child's medical bills. Following a hearing, the Trial Court agreed with Mother, found Father in civil contempt, and had Father jailed until he paid Mother $7,163.91 for his share of the child's medical bills that were not covered by health insurance. Father appeals claiming, among other things, that some of the $7,163.91 in medical bills he was ordered to pay had been resolved with entry of the earlier Agreed Order and, therefore, any claim for them was barred by res judicata. Father also claims the Trial Court erred when it approved the statement of the evidence submitted by Mother. We affirm in part, vacate in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/moorew_021309.pdf


LAWRENCE COUNTY v. GEORGE SHAFFER, ET UX, ET AL.

Court: TCA

Attorneys:

Robert D. Massey, Pulaski, Tennessee, for the appellants, George Shaffer and Pat Shaffer, et al.

Charles William Holt, Lawrenceburg, Tennessee, for the appellee, Lawrence County.

Judge: COTTRELL

After Lawrence County landowners installed a gate across an unpaved rural road, the County filed a declaratory judgment action to determine the rights of all the parties whose properties adjoined that road, as well as the right of the County to remove the obstruction. The landowners who installed the gate argued that the road had never been legally declared a county road and that the gate was necessary to prevent their neighbors from trespassing on their property. After a hearing, the trial court found (1) that the road was a county road and (2) that its entire length was contained in an easement which no one was allowed to obstruct. The court accordingly ordered the landowners to remove the gate. We affirm.

http://www.tba2.org/tba_files/TCA/2009/shafferg_021309.pdf


STATE OF TENNESSEE v. RE'LICKA DAJUAN ALLEN
With Dissenting Opinion


Court: TCCA

Attorneys:

James A. H. Bell, Knoxville, Tennessee, for the appellant, Re'Licka Dajuan Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin J. Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Defendant, Re'Licka Dejuan Allen, was indicted on two counts of aggravated exploitation of a minor and one count of sexual exploitation of a minor. The State refused to comply with Defendant's requests for discovery by withholding the contents of Defendant's computer hard drive and other computer materials alleged to contain incriminating evidence. The State refused to disclose the requested discovery despite the trial court's issuance of two protective orders, the ruling of the appellate court on interlocutory appeal, and a third protective order by the trial court requiring disclosure. After a final hearing, the trial court suppressed the evidence and dismissed the indictment against Defendant. The State argues on appeal that the trial court erred in suppressing the evidence based upon the perceived threat of federal prosecution to defense counsel. Following our review of the parties' briefs, the record, and the applicable law, we reverse the judgment of the trial court, reinstate the indictment and remand for trial.

http://www.tba2.org/tba_files/TCCA/2009/allenr_021309.pdf

MCLIN dissenting
http://www.tba2.org/tba_files/TCCA/2009/allenr_DIS_021309.pdf


BRYAN LEE CABLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert L. Huddleston, Knoxville, Tennessee, for the appellant, Bryan Lee Cable.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Mike Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Bryan Lee Cable, appeals the denial of his petition for post-conviction relief. In this appeal he asserts that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/cableb_021309.pdf


STATE OF TENNESSEE v. WILLIAM EUGENE CANTRELL

Court: TCCA

Attorneys:

Jeffrey A. DeVasher, Assistant Public Defender (on appeal), and Jonathan F. Wing, Assistant Public Defender (at hearing), for the appellant, William Eugene Cantrell.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Benjamin J. Ford, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, William Eugene Cantrell, pled guilty to aggravated burglary, a Class C felony, and burglary of a motor vehicle, a Class E felony, and was sentenced as a Range I, standard offender, to three years and one year, to be served consecutively. On appeal, he argues that the trial court erred in imposing a sentence of continuous confinement. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/cantrellw_021309.pdf


LAVON MARIO DAVIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Lavon Mario Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Kevin J. Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Lavon Mario Davis, appeals the denial of post-conviction relief by the Criminal Court for Knox County from his convictions for second degree murder and attempted first degree murder, both Class A felonies. He was sentenced to twenty years for the second degree murder conviction and twenty-five years for the attempted first degree murder conviction, to be served consecutively, for an effective sentence of forty-five years. He contends that: he received ineffective assistance of counsel; the trial court lacked authority to accept the guilty plea to second degree murder; and the trial court lacked a sufficient factual basis to accept his guilty plea to attempted first degree murder. We affirm the judgment from the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/davisl_021309.pdf


STATE OF TENNESSEE v. BRIAN A. LOWMAN

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellant, State of Tennessee.

John R. Morgan, Chattanooga, Tennessee, for the appellee, Brian A. Lowman.

Judge: WILLIAMS

The defendant, Brian A. Lowman, was denied pretrial diversion by the district attorney general for Hamilton County and requested review of the denial by the trial court. After review, the trial court reversed the denial of pretrial diversion by the district attorney general. The State then appealed the decision of the trial court to this court for review. After careful review, we conclude that the district attorney general did not abuse his discretion in denying pretrial diversion and reverse the decision of the trial court granting pretrial diversion.

http://www.tba2.org/tba_files/TCCA/2009/lowmanb_021309.pdf


STATE OF TENNESSEE v. WADE MCKINLEY STAGGS, SR.

Court: TCCA

Attorneys:

Hershell Koger, Pulaski, Tennessee, for the appellant, Wade McKinley Staggs, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Charles Crawford, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Wade McKinley Staggs, Sr., was convicted of fifty-nine counts of sexual exploitation of a minor, each a Class E felony. He was sentenced as a Range I, standard offender to ten years in the Department of Correction. In this direct appeal, he argues that (1) the trial court erred in denying his motion to suppress a compact disc containing images of alleged child pornography; (2) the trial court allowed certain witnesses to testify against him in violation of Tennessee Rule of Evidence 404(b); (3) the State presented evidence insufficient to convict him; (4) fifty-eight of his fifty-nine convictions are multiplicitous; and (5) the trial court erred at sentencing by violating his rights under the Sixth Amendment to the United States Constitution; improperly applying enhancing and mitigating factors; improperly ordering him to consecutively serve his sentences for certain counts; and denying him alternative sentencing. We conclude that the trial court properly denied the Defendant's motion to suppress and properly overruled his other evidentiary objections, and that the State produced evidence sufficient to convict the Defendant of fifty-seven counts of sexual exploitation of a minor. Regardless of evidentiary sufficiency, however, we agree that fifty-six of the Defendant's remaining convictions are multiplicitous, and that the trial court improperly enhanced the Defendant's sentences and improperly ordered consecutive sentences. We conclude that the trial court did not err by denying alternative sentencing. We accordingly vacate fifty-eight of the Defendant's judgments of conviction and remand for resentencing consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/staggsw_021309.pdf


HOWARD WALTER THOMAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

W. Thomas Dillard and Steven Ross Johnson, Knoxville, Tennessee, for the appellant, Howard Walter Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leland Price, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Howard Walter Thomas, appeals the denial of his petition for post-conviction relief. In this appeal, he alleges that the trial court's reliance on the ruling in State v. Coley, 32 S.W.3d 831 (Tenn. 2000), to prohibit the introduction of expert testimony regarding eyewitness identification at his trial deprived him of the due process of law, infringed upon his constitutional rights to present a defense and to compulsory process, and rendered his trial fundamentally unfair. Discerning no error in the judgment of the post-conviction court, we affirm.

http://www.tba2.org/tba_files/TCCA/2009/thomash_021309.pdf


JANIS SUE WATSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gerald Edison, Rogersville, Tennessee, for the appellant, Janis Watson.

Robert E. Cooper, Attorney General & Reporter; and Jared Effler, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Janis Sue Watson, appeals the order of the Hamblen County Criminal Court that dismissed her petition for post-conviction relief. The criminal court held that the petition, which challenged the petitioner's 2004 convictions of first degree murder and conspiracy to commit first degree murder, was barred by the statute of limitations. The State has moved this court to summarily affirm the order of dismissal pursuant to Tennessee Rule of the Court of Criminal Appeals 20. Because the record supports the State's motion, we affirm the order of the criminal court pursuant to Rule 20.

http://www.tba2.org/tba_files/TCCA/2009/watsonj_021309.pdf


TODAY'S NEWS

Legal News
Legislative News
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Juvenile court loses child support contract
The Shelby County Juvenile Court yesterday lost a long-standing contract to collect and enforce child-support payments when the state Department of Human Services awarded the job to a Virginia-based company. The move will save the state money but will endanger more than 200 local jobs at the court, which has handled the duties for the last 45 years.
The Commercial Appeal has more
Cocke Co. grand jury submits recommendations
After a day-long session this week, the Cocke County Grand Jury submitted a list of 11 recommendations for improvements to the county courthouse and jail and for pay increases for law enforcement officers. The panel's recommendations include installing a defibrillator in the courthouse, using already-installed metal detectors and building a new justice center for Cocke County.
See the full list in the Newport Plain Talk
ABA launches mediation opinion database
The American Bar Association Dispute Resolution Section's Ethics Committee has created a national clearinghouse for mediator ethics opinions and decisions. The service provides a searchable database with hundreds of opinions, including public domain opinions from 43 states. Opinions are catalogued by keyword, category, state, year and opinion type. Tennessee lawyer Marnie Huff, co-chair of the committee, praised the new resource saying it will provide invaluable guidance on standards of conduct and confidentiality for mediators around the country.
Learn more about the database at www.abanet.org
Miss. judge pleads not guilty in Scruggs case
Hinds County, Miss. Circuit Judge Bobby DeLaughter pleaded not guilty to conspiracy, mail fraud and obstruction yesterday in federal district court after having been indicted for funneling information about a pending case to the legal team of Richard "Dickie" Scruggs. DeLaughter presided over a bitter legal fees dispute involving a multimillion-dollar asbestos case Scruggs had handled, allegedly in exchange for help with a federal judicial appointment. Scruggs already had been convicted and disbarred for conspiring to bribe another judge when investigators began looking at DeLaughter.
Read more from the AP
Inns of Court announces writing competition
The American Inns of Court invites judges, lawyers, students, scholars and other authors to participate in the 2009 Warren E. Burger Writing Competition. Submissions must be original, unpublished essays of 10,000 to 25,000 words on the author's topic of choice, but should address issues of excellence, civility, ethics and professionalism. The winning essay will be published in the South Carolina Law Review and the author will receive a cash prize of $5,000.
Learn more or download competition rules here
Legislative News
Police chief pushes for stronger sentencing laws
Davidson County and Metro Nashville Police Chief Ronal Serpas testified before the Fiscal Review Committee this week about enhanced sentencing laws. Arguing that most criminals serve only 30 percent of their time, Serpas called on legislators to find the funding to keep more violent offenders locked up for their full sentences.
WTVF NewsChannel 5 reports
Volume of proposed gun bills increases
Tennessee legislators have filed a rash of new bills to allow guns in state and local parks, restaurants serving alcohol and even schools, and to protect those who shoot others to defend their property. There is also a renewed push to protect the confidentiality of those who hold gun-carry permits. Observers note that lawmakers may be more hopeful these efforts will succeed this year given Republican majorities in the House and Senate.
The Commercial Appeal has more
Lawmakers lend names to Obama lawsuit
Several Tennessee lawmakers, including Reps. Stacey Campfield, Glen Casada, Frank Nicely and Eric Swafford, have agreed to be plaintiffs in a legal action intended to force President Barack Obama to prove his citizenship. The suit is being brought by Defend Our Freedoms Foundation, which has questioned whether Obama meets the constitutional criteria to be president. News of the suit provoked ribbing around the capitol, with at least one staffer demanding to see a lawmaker's birth certificate.
The Tennessean reports
U.S. Senate Judiciary Committee organizes
U.S. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., named new subcommittee chairs and eliminated one subcommittee that had focused on human rights at a committee organizational meeting yesterday. New chairs are Sen. Ben Cardin, D-Md., Subcommittee on Terrorism and Homeland Security; Sen. Dick Durbin, D-Ill., Subcommittee on Crime and Drugs; Sen. Chuck Schumer, D-N.Y., Subcommittee on Immigration, Refugees and Border Security; and Sen. Sheldon Whitehouse, D-R.I., Subcommittee on Administrative Oversight and the Courts. Sen. Leahy also announced that the Subcommittee on Human Rights and the Law had been disbanded and issues under its jurisdiction moved to the full committee.
The Blog of Legal Times has more
Disciplinary Actions
Hendersonville lawyer suspended
Ross Allen Barton of Hendersonville was suspended by the state Supreme Court on Feb 9 for 29 months after being charged with burglary, misdemeanor theft and prescription fraud. The court ordered that after the first five months of suspension, Barton can serve the remaining 24 months on probation so long as he completes 10 hours of pro bono service and complies with the Tennessee Lawyers Assistance Program.
Download the BPR release
Nashville attorney suspended
On Feb. 9, the Tennessee Supreme Court suspended Nashville attorney Robert J. Turner for one year with all time probated subject to several conditions. Turner entered a conditional guilty plea to multiple complaints of misconduct, including failure to deliver documents to a client, communicate with a client, respond to discovery requests, raise a critical defense and conduct himself in a professional manner.
Read the BPR notice
Upcoming
Federalist Society hosts climate change discussion
The Federalist Society for Law & Public Policy and The Vanderbilt Climate Change Research Network will present a conversation on climate change policy next Thursday, Feb. 19, at the Nashville law offices of Bradley Arant Boult Cummings LLP. The event will run from 12 to 1:30 p.m. and include lunch. The cost is $10 at the door. For more information on the event and the speakers, download a flyer. RSVP to Nashville.fedsoc@gmail.com

TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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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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