Volume 545 — South Western Reporter, Third Series

In this attorney disciplinary appeal, upon petition by the Tennessee Board of Professional Responsibility, this Court ordered the temporary suspension of the attorney from the practice of law based on the threat of substantial harm he posed to the public. For a time, the attorney was placed on disability status later he was reinstated to suspended status. Subsequently, after an evidentiary hearing, a hearing panel found multiple acts of professional misconduct, including knowing conversion of client funds with substantial injury to clients, submitting false testimony and falsified documents in court proceedings, engaging in the unauthorized practice of law, violating Supreme Court orders, and defrauding clients. The hearing panel determined that the attorney should be disbarred. On appeal to the chancery court, the attorney argued inter alia that the disbarment should be made retroactive to the date of his temporary suspension. The chancery court affirmed the decision of the hearing panel. On appeal to this Court, the attorney does not question the disbarment but argues that it would be arbitrary and capricious not to make his disbarment retroactive to the date of his temporary suspension, in order to advance the date on which he may apply for reinstatement of his law license. We disagree. In contrast to suspension, which contemplates that the lawyer will return to law practice, disbarment is not a temporary status. Disbarment is a termination of the individual's license to practice law in Tennessee. Therefore, we decline to make the effective date of the attorney's disbarment retroactive to the date of his temporary suspension. Accordingly, we affirm.

From 2011–2014, a municipality charged alcoholic beverage retailers higher inspection fees than was authorized by the municipality's ordinance. A group of alcoholic beverage retailers paid the excess fees, but not under protest. After the municipality denied the retailers' requests for refunds, they sued the municipality for recovery of the excess collections and other damages. The municipality moved to dismiss, arguing that Tennessee Code Annotated sections 67-1-901, et seq., required the retailers to have paid under protest any disputed taxes before filing suit to recover the overpayments. The trial court disagreed and awarded the retailers a judgment for the overpayments, ruling that Tennessee Code Annotated sections 67-1-1801, et seq., applied and payment under protest was not required. The Court of Appeals affirmed. We hold that Tennessee Code Annotated sections 67-1-901, et seq., rather than sections 67 1-1801, et seq., apply to a suit to recover municipal taxes. Under section 67-1-901(a), the retailers were required to have paid under protest the disputed taxes before filing suit. Because the retailers did not pay the taxes under protest, they are not entitled to refunds.

This is an appeal from attorney disciplinary proceedings based on the attorney's knowing conversion of client funds. In this case, disputed insurance funds were placed in the attorney's trust account pending resolution of the dispute. Shortly after the disputed insurance funds were deposited, the attorney began to comingle funds in her trust account and use the insurance proceeds for her own purposes. At about the time the dispute over the insurance funds was resolved, the attorney moved out of state. In response to her client's repeated inquiries about disbursement of the client's share of the funds, the attorney stalled, made misrepresentations, and finally stopped communicating with the client altogether. After the client filed a complaint with the Tennessee Board of Professional Responsibility against the attorney, the hearing panel found violations of RPC 1.4, RPC 1.15(a) and (d) and RPC 8.4, which included the knowing conversion of client funds and the failure to communicate. The hearing panel found five aggravating circumstances and no mitigating circumstances. It suspended the attorney's Tennessee law license for eighteen months, two months of which were to be served on active suspension. After the Board appealed, the chancery court held that the hearing panel's decision was arbitrary and capricious and that disbarment was the only appropriate sanction. The attorney now appeals to this Court, arguing that disbarment is not warranted. In the alternative, the attorney argues that the disbarment should be made retroactive to the date of her original temporary suspension. Under the circumstances of this case, we affirm the chancery court and disbar the attorney from the practice of law in Tennessee, and we decline to make the disbarment retroactive.

The primary issue in this appeal is whether a surviving spouse maintains priority to file a wrongful death action when the decedent's child has also filed a wrongful death action in which the child alleges that the surviving spouse negligently caused the decedent's death. The trial court dismissed the daughter's wrongful death complaint, but the Court of Appeals reversed the trial court, ruling that under the circumstances presented in this case, the surviving spouse was disqualified from filing the wrongful death action. Because the wrongful death statutes do not include an exception to the spousal priority rule and because the surviving spouse did not waive his right to file the wrongful death action, we hold that the trial court properly dismissed the daughter's wrongful death action. The judgment of the Court of Appeals is reversed and the cause remanded to the trial court.

The issue on appeal in this case is whether the City of Memphis unlawfully assessed a tax on real property located in a newly annexed area of the city in 2012. The plaintiffs are property owners in the annexed area who argue that the city had no authority to assess property taxes in the area for 2012 because its annexation of the area took effect after January 1, 2012. The trial court concluded that the tax was lawful because the City's annexation of the area took effect before January 1, 2012 and granted summary judgment in favor of the defendants. Discerning no error, we affirm.

We granted this interlocutory appeal to determine whether Tenn. Code Ann. § 68-11-272(c)(1) of the Healthcare Quality Improvement Act ("HCQIA"), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. Plaintiff, a physician whose medical staff privileges were terminated by Summit Medical Center, sued the hospital, alleging, inter alia, that it acted in bad faith and with malice during the peer review process. Following a lengthy discovery process, the hospital filed a motion for summary judgment asserting, inter alia, that Plaintiff's anticipated evidence was confidential, privileged, and inadmissible under the HCQIA because it was derived from the activity of a Quality Improvement Committee ("QIC"). At the same time, the hospital filed a motion in limine to exclude all records of quality improvement activity pursuant to the evidentiary privilege under Tenn. Code Ann. § 68-11-272(c)(1). After ascertaining that Plaintiff intended to rely on QIC evidence, the trial court ruled that the peer review privilege could not be waived, and that Tenn. Code Ann. § 68-11-272(c)(1) violated the separation of powers provisions because it deprived the court of its inherent authority to make evidentiary decisions affecting "the heart of this case." This Tenn. R. App. P. Rule 9 interlocutory appeal followed. We agree with the trial court's ruling that the privilege cannot be waived. However, we disagree with the trial court's ruling that Tenn. Code Ann. § 68-11-272(c)(1), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. This is because the General Assembly created the evidentiary privilege to effectuate one of its powers, the enactment of legislation that promotes the safety and welfare of our citizens. To that end, the primary concern of the challenged legislation is not to create court rules, but to promote candor within a hospital's quality improvement process to ensure effective evaluation measures. Furthermore, Tenn. Code Ann. § 68-11-272(c)(2) provides an "original source" exception to the privilege whereby documents not produced specifically for use by a QIC, and are otherwise available from original sources, are both discoverable and admissible into evidence even if the information was presented during a QIC proceeding. Thus, the privilege is reasonable and workable within the framework of - 2 - evidentiary rules already recognized by the judiciary. For these reasons, we reverse and remand for further proceedings.

This appeal arises from a will contest. The contestant insists the purported Last Will and Testament of the decedent, dated June 19, 2015, is invalid because the attesting witnesses, who duly executed the attestation affidavit, failed to affix their signatures to the will as required by the Tennessee Execution of Wills Act at the time the will was executed. The proponent insists the will was validly executed based on a 2016 amendment to Tenn. Code Ann. § 32-1-104, which applies to wills executed prior to July 1, 2016, and states "to the extent necessary for the Will to be validly executed, witness signatures affixed to an affidavit meeting the requirements of § 32-2-110 shall be considered signatures to the Will." The trial court ruled that the 2016 amendment did not apply because the testator died before it went into effect. Consequently, the 2015 will was invalid because it was not executed in accordance with the law then in effect. We have determined that the 2016 amendment to Tenn. Code Ann. § 32-1-104 applies retrospectively to wills executed prior to July 1, 2016, because that is the clear and unambiguous intent of the legislation. We have also determined that the retrospective application of the law does not impair any vested legal right of the contestant. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi and Volunteer State Health Plan, Inc. (collectively "Plaintiffs") sued Children's Anesthesiologists, P.C. Heather D. Phillips, D.O. Kari L. Clinton Neurosurgical Associates, P.C. Lewis W. Harris, M.D. and East Tennessee Children's Hospital Association, Inc. d/b/a East Tennessee Children's Hospital alleging health care liability in connection with surgery performed on Albert P. Mjekiqi ("Albert") in May of 2011. After a trial, the Circuit Court for Knox County ("the Trial Court") entered judgment on the jury's verdict finding no liability on the part of the defendants. Plaintiffs appeal to this Court raising issues with regard to admission of evidence and jury instructions. We discern no error, and we affirm