Whether defendant knowingly waived right to appeal, applicability of certificate of good faith requirement to amended complaint when original complaint was filed before effective date of this requirement in health care liability action, and whether release barred FELA action to recover for employee's death from mesothelioma, and more from Tennessee appellate courts ...
Whether defendant knowingly waived right to appeal, applicability of certificate of good faith requirement to amended complaint when original complaint was filed before effective date of this requirement in health care liability action, and whether release barred FELA action to recover for employee's death from mesothelioma, and more from Tennessee appellate courts ...
Whether defendant knowingly waived right to appeal, applicability of certificate of good faith requirement to amended complaint when original complaint was filed before effective date of this requirement in health care liability action, and whether release barred FELA action to recover for employee's death from mesothelioma, and more from Tennessee appellate courts ...
Vol. 17, No. 21 2014 TAM CLE CALENDAR Webinars Common Probate Problems Facing Tennessee Attorneys, 60-minute webinar presented by Grayson Smith Cannon, Goodlettsville attorney, on Wednesday, June 11, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
Search and Seizure: History and Update on Fourth Amendment Law, 60- minute webinar presented by Lara McCauley Alvis, Birmingham attorney, on Thursday, June 19, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
Tennessee Workers Compensation: Are You Ready for the July 1 st Changes?, 60-minute webinar presented by Pele Houk Godkin, Nashville attorney, on Tuesday, June 24, at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit.
Preparing Clients for Depositions in Tennessee: A Step-by-Step Process, 60- minute webinar presented by Burke Keaty, Brentwood attorney, on Tuesday, June 24, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com
IN THIS WEEKS TAM-Bytes
Supreme Court, in case in which trial counsel failed to appeal petitioners third sentencing order, holds that petitioner failed to prove that he did not know of his right to appeal or that he otherwise did not waive that right, and that trial counsels failure to file written waiver of appeal was not per se deficient performance but was fact properly considered by trial court on issue of whether counsel rendered effective representation; Court of Appeals rules that when complaint was filed before effective date of TCA 29-26-122, defendant doctor asserted comparative fault of second doctor in answer, and plaintiff amended complaint to add second doctor as defendant after effective date of statute, requirement that plaintiff file certificate of good faith with amended complaint did not apply; Court of Appeals reverses grant of summary judgment in favor of railroad, based on release executed by employee in previous litigation, in suit under Federal Employers Liability Act alleging that employee was exposed to toxic substances during his employment with railroad and that such exposure led to his death from mesothelioma; Court of Criminal Appeals rules that although persistent offender provision in TCA 40-35-107(a)(1) general provision that defines persistent offender as defendant who has received five (5) or more prior felony convictions but does not limit defendants current conviction to specific felony class conflicts with career offender provision in TCA 40-35-108(a)(3) which specifically relates to defendant convicted of Class D or E felony more specific provision in TCA 40-35-108(a)(3) controls; and Sixth Circuit affirms grant of summary judgment to defendant in case in which plaintiffs alleged that defendants failure to clear ice from parking area in office park contributed to plaintiff slipping on patch of black ice.
SUPREME COURT
CRIMINAL PROCEDURE: In case in which petitioner pled guilty to two counts of vehicular homicide and was sentenced to effective term of 24 years, petitioner twice appealed sentence to Court of Criminal Appeals, which twice remanded case to trial court for resentencing each time, trial court imposed 24-year sentence petitioner did not appeal third sentencing order, and trial counsel did not file TRCrP 37(d)(2) waiver of appeal, petitioner later filed petition for post-conviction relief, alleging that trial counsel was ineffective by failing to appeal third sentencing order, and post- conviction court dismissed petition, holding that petitioner knew of his right to appeal and waived that right, petitioner failed to prove by clear and convincing evidence that he did not know of his right to appeal or that he otherwise did not waive that right; trial counsels failure to file written waiver of appeal was not per se deficient performance, but was fact properly considered by trial court on issue of whether trial counsel rendered effective representation. Arroyo v. State, 5/21/14, Knoxville, Lee, dissent by Wade, 11 pages. http://www.tncourts.gov/sites/default/files/arroyoguadalupe.opn_1.pdf http://www.tncourts.gov/sites/default/files/arroyoguadalupedis_1.pdf
COURT OF APPEALS
TORTS: When plaintiff filed health care liability action on 2/1/08 against hospital and doctor, doctor filed answer on 9/3/08 and moved to amend answer on 10/2/08 to assert comparative fault of second doctor and his medical group, plaintiff filed amended complaint adding second doctor and his medical group as defendants, and second doctor filed motion to strike allegations of fault in amended answer and in amended complaint and to dismiss amended complaint because allegations were not supported by certificate of good faith, trial court properly denied second doctors motion; there is nothing in TCA 20-1-119(a)(1) or TRCP 15 which would treat amended complaint as new action for any purpose; claim against second doctor in amended complaint arose out of same conduct set forth in original complaint, by operation of TRCP 15.02, allegations of amended complaint and claims stated therein relate back to date of original complaint, 2/1/08, which was prior to effective date of TCA 29-26-122, and hence, requirement of statute that plaintiff file certificate of good faith with amended complaint is not applicable in this case. Rogers v. J ackson, 5/19/14, MS, Dinkins, 7 pages. http://www.tncourts.gov/sites/default/files/rogersgcopn.pdf
WORKERS COMPENSATION: In suit under Federal Employers Liability Act alleging that employee was exposed to toxic substances, including asbestos and other chemicals, during his employment with railroad and that such exposure led to his death from mesothelioma, trial court erred in granting railroads motion for summary judgment based on release which employee had executed when he settled previous litigation with railroad; limited record does not contain evidence sufficient to demonstrate, conclusively, that employee understood that he was at risk of developing mesothelioma at time release was signed when only evidence railroad submitted on issue was boilerplate release itself, which contains terms mesothelioma and asbestos buried in laundry list of other conditions and substances, railroad did not demonstrate that plaintiff cannot prove invalidity of release at trial or cannot prove that employee was not aware of risk of mesothelioma when he signed release. Blackmon v. Illinois Central Railroad Co., 5/16/14, WS, Highers, 23 pages. http://www.tncourts.gov/sites/default/files/blackmondeloresopn.pdf
COMMERCIAL LAW: When defendants hired plaintiff to assist in sale of all or part of their small business, parties agreement provided that if defendants entered transaction with any entity that plaintiff solicited on their behalf within certain time period, they would be obligated to pay plaintiff percentage of purchase price, during stated time period, defendants sold all of their businesss assets to third party company that also hired them as at-will employees, defendants refused plaintiffs demand for commission for sale, and plaintiff filed suit claiming damages for breach of contract, promissory estoppel, and unjust enrichment, trial court erred in granting summary judgment to defendants on basis that there were no genuine disputes of material fact because transaction between defendants and third party was not type of transaction defendants hired plaintiff to arrange; considering evidence presented in light most favorable to plaintiff, plaintiff demonstrated existence of disputed material fact as to whether third party purchased defendants business as going concern. McI llwain v. Hoover, 5/19/14, WS at Nashville, Farmer, 9 pages. http://www.tncourts.gov/sites/default/files/mcillwainscott.opn_.pdf
FAMILY LAW: TCA 37-1-104(f) provides that juvenile court has concurrent jurisdiction with circuit and chancery court to establish paternity of non-marital child and to determine all issues regarding care and control of child born out of wedlock, including custody, visitation, support, education or any other issue. I n re Donovyn B.H., 5/16/14, WS, Farmer, 4 pages. http://www.tncourts.gov/sites/default/files/donovynbhopn.pdf
FAMILY LAW: Trial court abused discretion in awarding wife alimony of only $700 per month for 48 months when wife was not capable of economic rehabilitation wife lacked experience and skills necessary to maintain household without long- term support; wife is entitled to award of alimony in futuro of $1,000 per month until her death or remarriage. Fogle v. Fogle, 5/22/14, ES, McClarty, 8 pages. http://www.tncourts.gov/sites/default/files/fogleopn.pdf
COURT OF CRIMINAL APPEALS
CRIMINAL LAW: Evidence was sufficient to convict defendant of two counts of soliciting sexual exploitation of minor when defendant began giving victim money if she allowed him to look at her in her bra and underwear, defendant encouraged victim to be more revealing by paying her more money if she wore more provocative undergarments, and victim detailed two incidents that resulted in her revealing her breasts to defendant -- defendant offered victim even more money if she would remove her underwear or reveal her breasts to him. State v. Ritchie, 5/19/14, Knoxville, McMullen, 7 pages. http://www.tncourts.gov/sites/default/files/ritchieleslieopn.pdf
CRIMINAL PROCEDURE: Trial court did not err in denying defendants request for jury instruction regarding states duty to collect and preserve evidence when defendant made no allegation that state lost or destroyed any piece of evidence, but instead argued that state should have collected more evidence because that evidence might have been exculpatory such is not standard required for giving of instruction under State v. Ferguson, 2 SW3d 912 (1999). State v. Bufford, 5/20/14, Jackson, Witt, 16 pages. http://www.tncourts.gov/sites/default/files/buffordcordellopn.pdf
CRIMINAL SENTENCING: Trial court erred in finding defendant to be persistent, rather than career, offender when defendant pled guilty to two Class D felonies and one Class E felony and conceded to having six prior felony convictions; although persistent offender provision in TCA 40-35-107(a)(1) which is general provision that defines persistent offender as defendant who has received five (5) or more prior felony convictions and does not limit defendants current conviction to specific felony class conflicts with career offender provision in TCA 40-35-108(a)(3) which specifically relates to defendant convicted of Class D or E felony more specific provision in TCA 40-35-108(a)(3) controls, and trial court erred in sentencing defendant as persistent, rather than career, offender. State v. Borum, 5/15/14, Jackson, Glenn, 7 pages. http://www.tncourts.gov/sites/default/files/borumterenceopn.pdf
SIXTH CIRCUIT COURT OF APPEALS
TORTS: In case in which plaintiffs alleged that defendants failure to clear ice from parking area in office park contributed to plaintiff slipping on patch of black ice and injuring his hand, district court properly granted defendant summary judgment; it was not unreasonable for defendant to fail to remove patch of ice from parking area in early morning hours when there had been very little recent precipitation prior to accident, plaintiff did not see or experience any accumulation when driving onto parking lot, no party was aware of any dangerous conditions before accident, defendant was responsible for large area, and incident occurred three hours before maintenance crew normally reported for work; case presents one of those rare instances in which determination of reasonableness of defendants failure to remedy winter-weather condition that is among the normal hazards of life can be made confidently without submission of matter to jury. Barbaglia v. Nonconnah Holdings LLC, 5/20/14, Daughtrey, 6 pages, N/Pub. http://www.ca6.uscourts.gov/opinions.pdf/14a0379n-06.pdf
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James P. Kartell, M.D., and Grant v. Rodkey, M.D., Intervenor-Plaintiffs-Appellants v. Blue Shield of Massachusetts, Inc., 687 F.2d 543, 1st Cir. (1982)