Obama: med mal 'on the table' in health care debate

The Obama administration and key congressional Democrats are taking a hard look at the nation's medical malpractice system as part of a broader health care overhaul, saying curbing costs is key to paying for reform of the nation's health system. While caps on damages may be a non-starter, congressional observers predict that any bill that gets to the president's desk will have to deal with the issue in some way.

Read more from the Associated Press

TODAY'S OPINIONS
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KRISTINA MOORE v. CITY OF MANCHESTER

Court: TWCA

Attorneys:

James H. Tucker, Jr. and Colin M. McCaffrey, Nashville, Tennessee for the appellant, City of Manchester.

R. Steven Waldron, Murfreesboro, Tennessee for the appellee, Kristina Moore.

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 a hearing and a report of findings of fact and conclusions of law. While at work, Employee received a message that her sister had fallen and injured herself. She started to leave for the purpose of checking on her sister. Before she reached her car, she tripped and fell in a parking lot on Employer's premises. She sustained a broken wrist. Employer denied her workers' compensation claim, contending that she was on a personal errand. The trial court found the injury arose from and occurred in the course of the employment, and awarded workers' compensation benefits. Employer has appealed, arguing that the trial court erred in finding the injury to be compensable. We affirm the judgment, and find the appeal to be frivolous.

http://www.tba2.org/tba_files/TSC_WCP/2009/moorek_031909.pdf


THERESA S. BIANCHERI, TRUSTEE OF THE MERCER FAMILY TRUST v. CHARLES M. JOHNSON, JR. ET AL.

Court: TCA

Attorneys:

Robert M. Burns and Timothy P. Harlan, Nashville, Tennessee, for Theresa S. Biancheri, Trustee of The Mercer Family Trust.

William D. Leader, Jr. and Taylor C. Sutherland, Nashville, Tennessee, for Charles M. Johnson, Jr. and Vikki H. Johnson.

Mary Byrd Ferrara and Teresa Reall Ricks, Nashville, Tennessee, for Ida Louise Cromwell and Shirley Zeitlin & Company.

Judge: CLEMENT

The matters at issue arise from a contract for the sale of a residence and the buyers' refusal to close on the purchase of the residence. The seller, the trustee of a family trust, and the buyers entered into a contract for sale of a residence. Prior to closing, the buyers discovered that elaborate audio-visual equipment, that was material to them, had been removed by the husband of the Trustee. The buyers considered this a material breach and refused to close; as a result, the seller filed suit against the buyers for breach of contract. The buyers counter-claimed alleging the seller breached the contract first and that the seller, through its real estate agent, had made fraudulent misrepresentations to induce the buyers to sign the contract, specifically that the audio-visual equipment was part of the sale and that the previous resident, who died inside the home after being shot by his wife in the bedroom closet, had not died in the home. The buyers also filed a separate action against the seller's real estate agent alleging fraudulent misrepresentation, fraud, promissory fraud, fraud in the inducement, negligent misrepresentation, and violations of the Tennessee Consumer Protection Act. The buyers' claims against the seller were summarily dismissed upon findings by the trial court that the contract was valid and that the buyers breached the contract by failing to close. The real estate agent was summarily dismissed upon a finding that the buyers could not establish actionable misrepresentations. The buyers then filed a motion for summary judgment on the issue of damages for breach of contract, contending the contract afforded the seller the option of electing liquidated damages, in lieu of compensatory damages, in the amount of the earnest money and that the seller had made that election by retaining the earnest money. The trial court summarily ruled that the seller had elected to receive liquidated damages as its exclusive remedy. The buyers appeal the summary dismissal of their claims against the seller and the seller's real estate agent. The seller appeals the summary ruling that it elected to recover liquidated damages in lieu of compensatory damages. We have determined the real estate agent was not entitled to summary judgment as material facts are in dispute concerning whether the agent made material misrepresentations to induce the buyers to enter into the contract. We have determined the seller was not entitled to summary judgment on the issue of liability for the buyers' alleged breach of the contract because material facts are in dispute concerning whether the buyers are entitled to rescission of the contract based on the agent's alleged misrepresentations and whether the seller breached the contract prior to the buyers' alleged breach by removing components from the integrated television system, which the buyers contend was a material part of the contract. Due to our ruling that the seller was not entitled to summary judgment on the issue of liability, the seller is not entitled to damages for breach of contract, and it is premature to determine which party may be entitled to damages and in what amount. Accordingly, the award of liquidated damages in favor of the seller is reversed.

http://www.tba2.org/tba_files/TCA/2009/biancherit_031909.pdf


BETTY LOU GRAHAM v. WALLDORF PROPERTY MANAGEMENT, ET AL.

Court: TCA

Attorneys:

Betty Lou Graham, Jasper, Tennessee, Pro se Appellant.

N. Mark Kinsman, Chattanooga, Tennessee, for the Appellees, Walldorf Property Management, Inc. and George Kangles.

Judge: SWINEY

Betty Lou Graham ("Plaintiff") sued Walldorf Property Management and George Kangles ("Defendants") in the Chancery Court for Hamilton County, Tennessee. Defendants filed a motion for summary judgment alleging that Plaintiff lacked standing, that the applicable statute of limitations had expired, and that the case was barred by res judicata due to a prior suit in General Sessions Court. The Chancery Court granted Defendants summary judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2009/grahamb_031909.pdf


LIBERTY MUTUAL INSURANCE COMPANY v. FRIENDSHIP HOME HEALTH AGENCY, LLC

Court: TCA

Attorneys:

John Ben Iwu, Antioch, TN, for Appellant.

Frank W. Ziegler, III, Nashville, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the trial court abused its discretion in denying Appellant's motion for a continuance based on Appellee's failure to provide certain documents until the day before trial and the absence of a witness for Appellant. We are also asked to determine whether the trial court erred in finding that no accord and satisfaction was made when Appellee cashed a check from Appellant for a lesser amount than was owed to Appellee for increased insurance premiums. Finally, we are asked to determine whether the trial court erred in finding that the statute of frauds was not violated although no writing was made when Appellant's insurance policy was re-instated. We find that the trial court did not abuse its discretion in denying Appellant's motion for a continuance, and affirm the trial court's ruling that no accord and satisfaction was made. Because a statute of frauds defense was not properly raised in the trial court, we deem the issue waived.

http://www.tba2.org/tba_files/TCA/2009/libertymutual_031909.pdf


DONNA LYNN LUND v. JOHN FREDRIK LUND

Court: TCA

Attorneys:

Donald Capparella, Nashville, Tennessee, and Kimberlee A. Waterhouse, Lenoir City, Tennessee, for the Appellant, John Fredrik Lund.

Donna Lynn Lund, pro se Appellee.

Judge: SWINEY

Donna Lynn Lund ("Wife") and John Fredrik Lund ("Husband") were married for almost twenty-three years when Wife filed a complaint for divorce. Following a trial, the Trial Court declared the parties divorced, distributed the marital property, and awarded Wife alimony in futuro. When dividing the marital property, the Trial Court determined that the pre-marital value of Husband's annuity and pension benefits with his employer were his separate property, but that the increase in value of that separate property was marital property. Husband appeals claiming the increase in value of his annuity and pension should be considered his separate property. We find that because the increase in value of Husband's annuity was entirely market driven, Wife did not substantially contribute to its appreciation and, therefore, the increase in value is Husband's separate property. As to the pension which is based on Husband's years of service, we modify the award and apply the deferred distribution method set forth by the Supreme Court in Cohen v. Cohen, 937 S.W.2d 823 (Tenn. 1996). As modified, the judgment of the Trial Court is affirmed and remanded with instructions.

http://www.tba2.org/tba_files/TCA/2009/lundd_031909.pdf


WINSTON E. WOLFE, TRUSTEE OF THE WINSTON E. WOLFE REVOCABLE LIVING TRUST DATED DECEMBER 5, 1997 v. O. MICHAEL JAEGER, ET UX.

Court: TCA

Attorneys:

J. Payson Matthews, Somerville, Tennessee, for the appellants, O. Michael Jaeger and wife, Janet A. Jaeger.

Thomas M. Minor, Somerville, Tennessee, for the appellee, Winston E. Wolfe, Trustee of the Winston E. Wolfe Revocable Living Trust Dated December 5, 1997.

Judge: FARMER

This appeal arises from a private condemnation action commenced by Plaintiff pursuant to Tennessee Code Annotated section 54-14-101, et. seq. After the jury of view filed its report, but before the report was acted upon by the trial court, Plaintiff moved for a voluntary nonsuit pursuant to Tennessee Rule of Civil Procedure 41.01. The trial court granted the nonsuit, and Defendants filed a Rule 60.02 motion for relief from the judgment granting the nonsuit. The trial court denied Defendants' motion. We affirm.

http://www.tba2.org/tba_files/TCA/2009/wolfew_031909.pdf


STATE OF TENNESSEE v. ROBERT EDWARD BOLING
Corrected Opinion


Court: TCCA

Attorneys:

William A. Kennedy, Blountville, Tennessee, for the appellant, Robert Edward Boling.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Robert Edward Boling, was convicted by a Sullivan County Criminal Court jury of aggravated robbery, see T.C.A. section 39-13-402 (2006). He challenges the sufficiency of the convicting evidence and the admission of testimony that he alleges was "fruit of the poisonous tree." Because the defendant's motion for new trial was untimely, we hold that he has waived our consideration of any issue except for sufficiency of the evidence. Holding that the jury was within its province in convicting the defendant, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/bolingr_031909.pdf


Off Duty Officers' Possession and Carrying of Firearms on Board of Regents Campuses

TN Attorney General Opinions

Date: 2009-03-19

Opinion Number: 09-30

http://www.tba2.org/tba_files/AG/2009/ag_09_30.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Passages
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Bredesen to lay out four-year budget next week
Gov. Phil Bredesen said yesterday he would lay out a four-year state spending plan when he presents his annual budget proposal to lawmakers next week. The budget, he said, will call for $1 billion in cuts and account for the $5 billion in federal stimulus money expected to flow to Tennessee over the next two years. Because of that cash infusion, Bredesen no longer foresees large lay offs among state employees, reported the Associated Press.

DOJ changes medical marijuana policy
Attorney General Eric Holder announced yesterday that the Department of Justice no longer plans to prosecute the sale of medical marijuana in the 13 states that allow it, but will pursue anyone who tries to use marijuana laws as a "shield" for other illegal activity. A spokesperson could not say how the department will handle prosecutions currently pending in federal court.
Learn more in the Washington Post
Coffee County jail out of space
The Tennessee Corrections Institute has re-investigated the Coffee County Jail after giving the county time to correct a laundry list of deficiencies. One problem remains though: the jail is capable of housing 130 inmates while the average number is "well above 200," according to the sheriff. In addition, over 10,000 warrants have yet to be served, which would only increase the inmate population. In response, the commission voted to reactivate its jail committee to begin addressing the problem.
The Manchester Times has more
Laptop computers needed for Wills for Heroes
The TBA Young Lawyers Division is asking individuals and law firms with excess laptops to donate them to its Wills for Heroes project, which provides end-of-life documents to first responders in the state at no charge. The division is presenting the service in both Nashville and Memphis on 4/4 as part of the statewide public service day and the response has been overwhelming. Additional laptops would allow the group to serve more of the heroes who have registered for the events. Donations are tax deductible. Please contact YLD President Michelle Sellers at msellers@raineykizer.com or (731) 426-8145 for more information.

Supreme Court Report
Thomas makes rare public appearance
In a rare public speech this week, U. S. Supreme Court Justice Clarence Thomas said Americans don't make the sacrifices their parents and grandparents did, and the nation's leaders don't ask people to act for the higher good. Addressing a crowd of 400 at Washington and Lee University, Thomas called on Americans to put their country and its principles above their individual wants.
Read excerpts from the speech in the Free Times Press
Passages
Retired Knox court clerk dies
Mattie Miller Osborne, a retired longtime deputy clerk of the Knox County Criminal Court, died Sunday at the age of 80. Former colleagues were unanimous in their praise for Osborne, who also served as courtroom deputy for Judge George Balitsaris. Friends and family gathered today at Woodlawn Cemetery for a graveside service. According to the family, memorial donations may be made to the Seymour Volunteer Fire Department, P.O. Box 911, Seymour, TN 37865; or to The Capital Campaign for the UT Heart Hospital, 1520 Cherokee Trail, Suite 110, Knoxville, TN 37920. The Knoxville News-Sentinel reported the passing.

Disciplinary Actions
Crossville attorney suspended
On March 16, the Tennessee Supreme Court temporarily suspended the law license of Crossville attorney Anthony Turner due to his failure to respond to a complaint of ethical misconduct.
Read the court's notice
Upcoming
Memphis Legal Lines service available statewide
On Friday, April 3 -- the night before the statewide public service day on 4/4 -- the Memphis Bar and TBA Young Lawyers Divisions will host a "Legal Lines" free legal call-in show on Memphis' WREG Channel 3. Members of the public can call 1-800-753-WREG (9734) between 4 and 6:30 p.m. (central time) to have legal questions answered free during the live broadcast. Lawyers interested in volunteering to answer calls should contact Edd Peyton at peytone@thomasonlaw.com
See a list of all 4/4 projects
TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
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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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