Roberts Surprises as Court Upholds Health Care Act

The high court today let stand, in a 5-4 decision, the centerpiece of President Obama's health care legislation, with Chief Justice John Roberts surprising many by casting the deciding vote and writing the majority opinion. His rationale is that Congress under the Commerce Clause does not have the authority to require people to buy insurance — but it does have the authority to tax people who do not have coverage. The so-called individual mandate embedded in the health care legislation, Roberts wrote, "must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable." Read more from NPR and the National Law Journal. Relive the action as it unfolded, from the Blog of Legal Times or read what Tennessee business, health care and political leaders had to say in the Nashville Post.

The Tennessee Bar Association will explore what the next steps will be for the legislation in a July 12 webcast featuring John Voigt of Sherrard & Roe. Learn more or register 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.

00 - TN Supreme Court
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
04 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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.


TN Workers Comp Appeals

CHRISTOPHER ALLEN SCOGGINS v. JENKINS MASONRY, INC.

Court: TN Workers Comp Appeals

Attorneys:

C. Douglas Dooley and Mi W. Belvin, Chattanooga, Tennessee, for the appellant, Jenkins Masonry, Inc.

Michael A. Wagner, Chattanooga, Tennessee, for the appellee, Christopher Allen Scoggins.

Judge: PUCKETT

In this workers’ compensation case, the employee acquired contact dermatitis, which caused a chronic skin condition of his hands and feet, due to his exposure to potassium dichromate in the workplace. The trial court found that he was permanently and totally disabled as a result of the condition. The employer has appealed, contending that the evidence preponderates against the trial court’s finding. We affirm the judgment.


TN Court of Appeals

IN RE: JENA P.

Court: TN Court of Appeals

Attorneys:

Carl R. Moore, Murfreesboro, Tennessee, for the appellant, Virginia P. J.

Robert E. Cooper, Jr., Attorney General and Reporter, and Shanta J. Murray, Assistant Attorney General, for the appellee, Tennessee Department of Children’s Services.

Judge: CLEMENT

A mother appeals the termination of her parental rights to one child. The trial court found two grounds for termination, abandonment by wanton disregard and persistence of conditions leading to the child’s removal from the mother’s home. The trial court also found termination was in the child’s best interest. The record contains evidence that clearly and convincingly established the ground of persistent conditions and that termination is in the child’s best interest; therefore, we affirm the termination of the mother’s parental rights.


EARL McLEMORE, BY AND THROUGH JEAN McLEMORE, AS ADMINISTRATRIX OF THE ESTATE OF EARL McLEMORE, DECEASED FOR THE USE AND BENEFIT OF THE WRONGFUL DEATH BENEFICIARIES OF EARL McLEMORE v. ELIZABETHTON MEDICAL INVESTORS, LIMITED PARTNERSHIP d/b/a LIFE CARE CEN
CORRECTION: There was a foot note added on page 1.

Court: TN Court of Appeals

Attorneys:

Roger W. Dickson, Travis R. McDonough, Robert F. Parsley, Kevin D. Hudson, and Jade D. Dodds, Chattanooga, Tennessee, for the appellants, Elizabethton Medical Investors, Limited Partnership d/b/a Life Care Center of Elizabethton; Elizabethton Medical Investors, LLC; and Life Care Centers of America, Inc.

M. Chad Trammell, Texarkana, Arkansas, S. Drake Martin, Grayton Beach, Florida, Tony Seaton, Johnson City, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for the appellee, Jean McLemore.

Judge: FRANKS

This is a survivor and wrongful death suit arising out of the alleged neglect and abuse of Earl McLemore while he was a resident in a nursing home, Life Care Center of Elizabethton, which is located in Elizabethton, and is owned and operated by defendants. The suit was filed in the Circuit Court for Carter County, and following a ten day trial in May of 2010, the jury returned verdicts in favor of plaintiff and against all defendants. The jury awarded compensatory damages of $500,000.00 and punitive damages of $4,250,000.00. The Trial Court suggested a remittitur of compensatory damages to $225,000.00, but sustained the punitive damages award. Defendants/appellants appealed the verdict on numerous grounds. We affirm the Judgment of the Trial Court.


LUKE NASGOVITZ v. GAIL ANN NASGOVITZ

Court: TN Court of Appeals

Attorneys:

Jeffery B. Cox, Murfreesboro, Tennessee, for the appellant, Gail Ann Nasgovitz.

John D. Drake, Murfreesboro, Tennessee, for the appellee, Luke Nasgovitz.

Judge: COTTRELL

The father of an eight year old girl filed a petition for divorce from the child’s mother. After the petition was filed, the court entered a standard restraining order, which among other things prohibited either party from relocating with a minor child outside the state without the permission of the other party or an order of the court. The wife asked the court to name her as the child’s primary residential parent and to allow her to relocate with the child to St. Louis, because that city offered her better employment prospects than did Middle Tennessee. The father opposed the mother’s request to relocate, and he asked the court to divide parenting time equally. After a three day trial, the court ruled that the mother’s proposed relocation was unreasonable and pretextual and that it was in the child’s best interest that the mother be named the primary residential parent, with the mother and child remaining in Tennessee. The mother argues on appeal that the trial court should have allowed her to relocate with the child because the criteria set out in the relocation statute, Tenn. Code Ann. § 36-6-108, did not preclude her from doing so. We affirm the trial court’s denial of the petition to relocate with the child.


MARY A. PRICE v. DSI CENTERS FOR DIALYZING EXCELLENCE ET AL.

Court: TN Court of Appeals

Attorneys:

Mary A. Price, Baton Rouge, Louisiana, Pro Se.

Stephen W. Elliott and Thomas M. Pinckney, Nashville, Tennessee, for the appellee, DSI Centers for Dialyzing Excellence and Northwest Dialysis Center.

Judge: PER CURIAM

The appellant has appealed from a final judgment entered on December 28, 2012. Because the appellant did not file her notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4(a), we dismiss the appeal.


BRENDA W. SNEYD, CLERK and MASTER AND PROBATE CLERK FOR THE CHANCERY COURT AND PROBATE COURT OF WASHINGTON COUNTY, TENNESSEE, v. WASHINGTON COUNTY, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Arthur M. Fowler, Johnson City, Tennessee, for the appellant, Brenda W. Sneyd.

K. Erickson Herrin, Johnson City, Tennessee, for the appellee, Washington County, Tennessee.

Judge: FRANKS

Plaintiff, Clerk and Master of Chancery Court, brought this action for an increase in compensation based on Tenn. Code. Ann. §8-24-102(j), which authorizes the County to increase the compensation for a clerk if the clerk is the clerk of two courts. Defendant County gave the Circuit Court Clerk a 10% increase in compensation pursuant to the statute, but denied the Clerk and Master a 10% increase in her compensation under the statute. The Trial Court held that the County did not abuse its discretion in denying the Clerk and Master the statutory increase in compensation. On appeal, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. JASON CHARLES AUSTIN

Court: TN Court of Criminal Appeals

Attorneys:

Gene G. Scott, Jonesborough, Tennessee, for the appellant, Jason Charles Austin.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and Anthony Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Appellant, Jason Charles Austin, was indicted by a Washington County grand jury for one count of first-degree murder. After a jury trial, he was convicted of the lesser-included offense of second-degree murder and subsequently sentenced to twenty-three years. On appeal, Appellant argues that: (1) the trial court erred by allowing Appellant’s case to be severed from the case of his co-defendant; (2) the State violated Appellant’s rights under the Tennessee and United States Constitutions; (3) the trial court erred in concluding that Christina Boone was a hostile witness and allowing the State to examine her with regard to her previous statement made to the police; (4) the trial court erred in denying Appellant’s motion to dismiss the indictment based upon the loss of key evidence; (5) the State violated the Rule of Exclusion; (6) the trial court erred by refusing Appellant’s request to call a surrebuttal witness; (7) the trial court erred in instructing the jury that guilt may be inferred from evidence of flight and from concealment of evidence; (8) the trial court erred by imposing a twenty-three-year sentence; and (9) Appellant was denied a fair trial because of cumulative error. Following our review of the record, we find no reversible error and affirm the judgment of the trial court.


MICHAEL PANZINI v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joshua D. Hendrick, Knoxville, Tennessee for the appellee, Michael Panzini.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall Nichols, District Attorney General; and Joanie Stewart, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Michael Panzini, pled guilty to aggravated sexual battery, and the trial court sentenced him to ten years, to be served at 100%. The record contains two judgments of conviction, one provided by the State and one provided by the Petitioner. The judgment form in the official court file indicates the box on the judgment form showing the Petitioner was sentenced to community supervision for life as checked. The judgment submitted by the Petitioner does not contain that check mark. The Petitioner filed a petition for habeas corpus relief, contending that his sentence was illegal because he was not sentenced to community supervision for life. The trial court dismissed the petition. On appeal, the Petitioner contends that his original judgment of conviction did not include community supervision for life as required by statute and that his judgment was modified without notice, a hearing, or an order. After a thorough review of the record and applicable authorities, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. ROBERT LEE VANDERGRIFF, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Bradley L. Henry, Knoxville, Tennessee, for the appellant, Robert Lee Vandergriff, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William Paul Phillips, District Attorney General; and LaTasha Wassom, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Robert Lee Vandergriff, Jr., was convicted of driving while intoxicated, a Class A misdemeanor, by a Union County jury. He was sentenced to a term of eleven months and twenty-nine days, all of which was suspended but for eight days service in the county jail. On appeal, the defendant’s single contention of error is that the trial court erred by failing to grant his motion to suppress. Specifically, he asserts this decision was error because he was seized without reasonable suspicion. Following review of the record, we affirm the denial of the motion to suppress.


STATE OF TENNESSEE v. MICHAEL ALVIN YOUNG

Court: TN Court of Criminal Appeals

Attorneys:

C. Brad Sproles, Kingsport, Tennessee, for the Appellant, Michael Alvin Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Kaylin Render- Hortensfine, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Sullivan County jury convicted the Defendant, Michael Alvin Young, of aggravated kidnapping and domestic assault. The trial court merged the two convictions and sentenced the Defendant to eight years and six months in the Tennessee Department of Correction. On appeal, the Defendant contended that the evidence was insufficient to support his aggravated kidnapping conviction and that he received the ineffective assistance of counsel at trial. After a thorough review of the record and the applicable law, this Court affirmed the trial court’s judgment. See State v. Michael Alvin Young, No. E2010-00849-CCA-R3-CD, 2011 WL 5517281 (Tenn. Crim. App., at Knoxville, Nov. 9, 2011). The Defendant filed a Rule 11 application, pursuant to the Tennessee Rules of Appellate Procedure, to the Tennessee Supreme Court. Our Supreme Court granted the application and remanded the case to this Court for reconsideration in light of State v. Jason Lee White, 362 S.W.3d 559 (Tenn. 2012). After considering the facts and circumstances of this case as compared to those in White, we again affirm the trial court’s judgment.


House Votes to Hold Holder in Contempt

The House voted this afternoon that Attorney General Eric Holder Jr. should be held in contempt of Congress for refusing to turn over documents related to the botched "Fast and Furious" gun smuggling operation. The 255-67 vote amounted to "a political spanking" for Holder and President Obama, the Washington Times writes. Seventeen Democrats joined with Republicans in demanding the documents be released. Most Democrats, however, walked out in protest of the vote. It marks the first time an attorney general has been held in contempt by a chamber.


Attorneys Say DA Hid Info on Baumgartner During Case

More accusations are flying regarding Judge Richard Baumgartner and the torture slaying cases of Channon Christian and Christopher Newsom. Defense attorneys Tom Dillard and Stephen Ross Johnson are firing back at Knox County District Attorney General Randy Nichols' allegations of unethical conduct by Judge Jon Kerry Blackwood with accusations of their own: that Nichols and his staff hid information about then-presiding Judge Baumgartner's misdeeds while Baumgartner was still on the bench handling the case. The News Sentinel reports


Chattanooga's Minor Offenders No Longer Subject to Search

The head of Chattanooga's gang task force says he will remove a little-known provision on a Sessions Court form that allows police to search the homes of people assigned court-ordered community service. Boyd Patterson said the provision was never intended for minor offenses such as littering, simple drug possession or similar misdemeanors. Instead, the language is aimed at the "worst of the worst" gang members. But the provision, in effect since November, requires people who agree to perform public works days through the court to allow such searches regardless of their offense. The provision is "just such a gross overkill," attorney Hank Hill said. "No competent lawyer would ever require a client to sign it."  The Times Free Press has more


General Sessions Candidates Give Views in Public Forum

Six of the seven candidates for Hamilton County General Sessions Court judge answered questions at a Wednesday public forum co-sponsored by the Times Free Press and Chattanooga Bar Association. The seat was left vacant after Judge Bob Moon's death. Joe DeGaetano, Valerie Epstein, Yolanda Mitchell, Ron Powers, Gary Starnes and Patricia Best Vital took part in the forum. Interim Sessions Judge David Norton, who is also a candidate, did not attend due to illness. With minor variations each of the candidates said they approved of recording proceedings and would closely scrutinize requests for a court-appointed attorney. All also said they would be accessible after hours to attorneys within the court rules for discussing cases. Read the details and see a picture


Deadline Friday for Employers to Register for Job Fair

The deadline for employers hoping to take part in the 2nd Annual TBA Diversity Job Fair is Friday (June 29). This year's job fair is set for Sept. 7-8 in Nashville. Building on the success of last year's event, the 2012 job fair will provide legal employers the opportunity to interview diverse 2L and 3L law students from law schools in Tennessee and surrounding states. Thirty law schools have already signed up. All legal employers in Tennessee are invited to take part, regardless of size or sector. Participants are asked to consider candidates for summer associate positions, clerkships and attorney openings. The event is an initiative of the TBA Committee on Racial & Ethnic Diversity (CRED). For more information contact TBA staff member Lynn Pointer.


Editorial: State Should Stop Trying to Pass Immigration Legislation

In an editorial, the Commercial Appeal says the U.S. Supreme Court's ruling this week in the Arizona immigration law case "should send a message to Tennessee's legislators that they should stop trying to pass similar legislation."


Taylor Trial Set for January

A trial date has been set early next year for former Hawkins County General Sessions Judge James Taylor after his attorney entered not guilty pleas to local theft charges. Special presiding Judge Jon Kerry Blackwood set a motion hearing for Nov. 19, with a trial tentatively set for Jan. 28, 2013. Taylor has also pleaded not guilty in Nashville to 41 counts of theft of property, The Rogersville Review reports.


Term 'Cruel and Unusual' Evolves With Recent Ruling

In light of the Supreme Court's decision earlier this week, columnist George Will looks into what the Supreme Court has called “the evolving standards of decency." Originalism holds that the Constitution’s language should be construed to mean what the words meant at the time to those who wrote and ratified the Constitution. On Monday, the court's ruling about punishment vexed the four justices (John Roberts, Antonin Scalia, Clarence Thomas and Sam Alito) most sympathetic to originalism, who dissented. The majority held that sentencing laws that mandate life imprisonment without possibility of parole for juvenile homicide offenders violate the Eighth Amendment. The Leaf Chronicle has the column


7 Reinstated After Administrative Suspension

Seven Tennessee-licensed lawyers have been reinstated after being administratively suspended for failing to comply with 2011 CLE requirements, pay the 2011 registration fee, submit the 2011 registration fee and IOLTA report or submit the 2012 registration fee and IOLTA report.


Memphis Lawyer Suspended

Memphis lawyer Gail Ostby Mathes was summarily and temporarily suspended from the practice of law June 26 for failing to respond to the Board of Professional Responsibility regarding a complaint of misconduct. Mathes is now precluded from accepting any new cases and she must stop representing existing clients by July 26. This suspension remains in effect until dissolution or modification by the Supreme Court. Download the BPR release


Law Camp Needs Volunteers in Nashville

Volunteers are needed for the 2nd annual Boys and Girls Law Camp in Nashville. Sponsored by the Napier-Looby Bar Association’s Student Outreach Committee, the camp will be held July 26-28 at Hartman Park Community Center. It will feature courthouse and law firm visits, oral advocacy workshops, and will culminate in an oral advocacy competition. For more information, contact Dannelle Walker or Hamilton Patrick.


 
 

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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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