APPELLATE COURT OPINIONS

I respectfully disagree with my colleagues in this case. I do not believe that the prosecutor's remarks concerning the appellant's intention to plead guilty prejudiced him or deprived him of a fair trial. As pointed out by the majority, Judge v. State1 provides five factors to be considered in assessing the prejudicial effect of improper argument. The five factors are:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in the record.
5. The relative strength or weakness of the case.

The State of Tennessee appeals as of right the Davidson County Criminal Court’s dismissal of the Appellees’ indictments for possession of cocaine with intent to sell or deliver. The trial court found that the Appellees’ protection against former jeopardy had been violated in that the Appellees had already been punished for their crimes by the State’s seizure of two vehicles used in the drug sale. The State argues on appeal that the civil forfeiture of the Appellees’ vehicles does not amount to punishment pursuant to the double jeopardy clauses of the United States and the Tennessee Constitutions. We agree and reverse the trial court.

The Appellant, John W. Gilliam, appeals as of right his conviction and consecutive sentence for one count of the unlawful carrying or possession of a weapon. He argues that the evidence introduced at trial was insufficient to sustain his conviction and that the trial court erred when it ordered his sentence for that crime consecutive to another sentence for rape. We have reviewed the record on appeal and find no merit to the Appellant’s contentions and, therefore, affirm the trial court’s
judgment.

Plaintiffs Erica Rebecca Hurd, deceased, by and through her parents and next friends, Charles and Virginia Hurd, and Cortney Deshaun Ragland, a minor, by and through his next friend, Wanda Kay Grimes, appeal the trial court’s order dismissing their wrongful death actions against Defendants/Appellees Madison County and David Woolfork, Madison County’s Sheriff. We affirm.

Judy Margaret Jackson Virostek (“Wife”) filed suit for divorce in the Chancery Court of Shelby County against James R. Virostek (“Husband”). Following a bench trial the chancellor entered a decree awarding Wife a divorce on the grounds of irreconcilable differences. The divorce decree also incorporated therein by reference a Marital Dissolution Agreement (“MDA”) awarding custody of the parties’ minor child to Wife as well as providing that Husband would pay child support along with rehabilitative alimony to Wife. Thereafter Husband filed a motion to modify the divorce decree relative to the payment of child support and alimony. Wife responded with a counter-petition seeking to have Husband held in contempt for failure to abide by the terms of the MDA. Following a hearing the chancellor denied Husband’s petition to modify relative to the payment of alimony and child support. The court also found Husband in contempt of court for failing to abide by the provisions of the MDA, ordered Husband to disperse funds from the trust account of the parties’ minor son to satisfy an outstanding tuition balance at the son’s private school and ordered Husband to pay Wife’s attorney fees, approximating $15,000.00.

This appeal involves a motion to set aside an order modifying child custody. Defendant, Gary Thomas Moore (Father), appeals the trial court’s order granting the Motion to Dismiss filed by plaintiff, Beverly Dianne Privette Moore (Mother), and denying his Motion for Relief Pursuant to Tenn.R.Civ.P. 60.02.

Plaintiff Krisinda Bowers, a minor, by next friends Tammy K. Bowers and Steve Bowers (Krisinda’s parents), appeals the trial court’s order entering summary judgment in favor of Defendants/Appellees Stephen Hammond, The Jackson Clinic Professional Association, and Jackson-Madison County General Hospital. In dismissing the complaint, the trial court ruled that Krisinda’s action against the Defendants was barred by the threeyear statute of repose applicable to medical malpractice actions and, further, that Krisinda’s action against the Hospital was barred by her failure to comply with the statutory notice requirements formerly applicable to actions against governmental entities. We affirm in part and reverse in part.

This is an interlocutory appeal by appellants, Charles R. and Teresa Noland Browder, from the trial court’s denial of a motion seeking to amend their complaint to name an additional party defendant pursuant to T.C.A. § 20-1-119. The statute was enacted in response to the supreme court’s decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), which abolished the doctrine of contributory negligence in Tennessee and adopted principles of comparative fault. The statute allots a plaintiff in cases of comparative fault additional time beyond the normal running of the statute of limitations within which to join a previously unnamed defendant by either amendment of the complaint or institution of a separate action. The issue presented here is whether the statute as enacted contemplates the joinder of a third party defendant whose liability, if any, is vicarious only.