Judicial Redistricting Drawing Wide Concern

A number of local governments are expressing concern about efforts to redraw the state’s judicial districts. In Anderson County, officials have raised questions about whether judicial offices would have to move to another county, and whether they would lose their children’s advocacy center, crime task force, DUI prosecution grant and drug court, all of which are tied to the judicial district, Knoxnews reports. Meanwhile in Dayton, the Chattanooga Times Free Press reports that the city council voted Monday to oppose proposed judicial redistricting after hearing a presentation by the Rhea County clerk and master. And in Washington County, Circuit Court Judge Thomas J. Seeley Jr. is opposing the idea saying that changing the local district lines would involve “unknown administrative costs and logistical headaches.” An editorial by the Johnson City Press agrees with that assessment and urges state legislators to consider those issues. 

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
03 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - 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

LINDA LOU McDOUGAL v. GOODYEAR TIRE & RUBBER COMPANY

Court: TN Workers Comp Appeals

Attorneys:

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellant, Goodyear Tire & Rubber Company.

Jeffrey A. Garrety and Charles L. Holliday, Jackson, Tennessee, for the appellee, Linda Lou McDougal.

Judge: CLARK

In this workers’ compensation action, the employee alleged that she injured her neck in a forklift accident. Her employer did not deny that the event occurred but contended that her symptoms were caused by preexisting degenerative changes. The employee eventually had surgery and sought workers’ compensation benefits. In addition to causation, the employer asserted that the claim was barred by the statute of limitations. The trial court found that the employee had sustained a compensable injury and made a finding concerning the extent of her permanent disability. However, it held the record open to permit the taking of additional proof concerning the statute of limitations. After considering that evidence, the court found that the claim was timely and awarded benefits pursuant to its original ruling. The employer has appealed, challenging the trial court’s rulings on the statute of limitations and causation. Pursuant to Tennessee Supreme Court Rule 51, the appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. We affirm the judgment of the trial court.


LAWRENCE OWSLEY v. CON-WAY TRUCKLOAD, INC. ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Jennifer P. Keller and Christie M. Hayes, Johnson City, Tennessee, for the appellants, Con-Way Truckload, Inc. and Travelers Insurance Company.

David H. Dunaway, LaFollette, Tennessee, for the appellee, Lawrence Owsley.

Judge: ANDERSON

Pursuant to Tennessee Supreme Court Rule 51, this appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. In this appeal, the employee alleged that he injured his back as a result of a fall from his tractor trailer during the course and scope of his employment. The employer contended that the employee’s workers’ compensation claim was barred by the affirmative defense of misrepresentation of his physical condition, that a compensable injury had not been sustained and that his permanent partial disability award was excessive. The trial court found that the employee did not intentionally misrepresent his physical condition, that the employee had sustained a compensable injury and that the award should be 70% permanent partial disability benefits. The employer has appealed, contending that the evidence preponderates against each of the trial court’s findings. We affirm the judgment of the trial court.


TIMOTHY L. WILSON v. MEMPHIS LIGHT, GAS & WATER DIVISION

Court: TN Workers Comp Appeals

Attorneys:

Timothy L. Wilson, Memphis, Tennessee, pro se.

Shaterra Reed, Effie Bean Cozart, and Sean Antone Hunt, Memphis, Tennessee, for the appellee, Memphis Light, Gas & Water Division.

Judge: PARISH

The employee alleged that he sustained an on-the-job injury in June 2004. The settlement of that claim was approved in December 2004. The employee alleges in this case that he suffered additional compensable injuries in June 2005 and July 2006. The employer contends that the new allegations pertain not to new injuries but rather a continuation of symptoms from the 2004 injury. The employee also filed a third-party tort action arising from the 2004 injury. The employer intervened in the tort case to protect its medical subrogation lien. The parties settled all claims at a joint mediation that resulted in the tort defendant paying a sum of money, the employee dismissing with prejudice this workers’ compensation case, and the employer reducing its medical subrogation lien. Accordingly, the workers’ compensation case was dismissed with prejudice. More than a year later, the employee moved to vacate the dismissal, contending that he had not authorized it, and the employer moved to strike that motion. While these motions were pending, the employee sought to depose the mediator, the third party’s attorney, and the employer’s attorney. After an evidentiary hearing, the trial court found that the employee had agreed to the dismissal, and it granted the employer’s motion to strike. The trial court also quashed the deposition subpoenas issued at the employee’s request. The employee has appealed from these orders, and the appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.


TN Court of Appeals

IN RE ESTATE OF FRIEDA LINDY FREEDMAN HAROLD FREEDMAN, AS EXECUTOR v. ANITA TARADASH

Court: TN Court of Appeals

Attorneys:

James Carson Hofstetter, Nashville, Tennessee, for the appellant, Anita Taradash.

William L. Harbison, Lisa K. Helton, and Cornell H. Kennedy, Nashville, Tennessee, for the appellee, Harold Freedman.

Judge: CLEMENT

A beneficiary of the decedent’s estate contends the Executor should be held personally liable for paying two debts of the decedent for which no claim was filed pursuant to Tennessee Code Annotated § 30-2-307. The Executor insists that Tennessee Code Annotated § 30-2- 318(b) afforded him the discretion to pay debts of the decedent because the estate was solvent and the time in which the claims could have been filed had not expired. The probate court ruled in favor of the Executor, finding the payment of the debts was authorized pursuant to Tennessee Code Annotated § 30-2-318(b). We affirm.


WENDY LEVERETTE, ET AL. v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY
CORRECTION: With concurring in part, dissenting in part opinion.

Court: TN Court of Appeals

Attorneys:

Michael Ross Campbell, Lauren Michelle Rutherford, Chattanooga, Tennessee; Patrick Arnold Flynn, Seth Michael Lasater, Columbia, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company.

Richard Thomas Matthews, Columbia, Tennessee, for the appellee, Wendy Leverette, et al.

Judge: COTTRELL

A woman who was severely injured in a collision with an automobile driven by an unlicensed minor filed suit against the minor. The minor’s parents’ insurance company denied coverage and refused to defend the suit on the basis of an exclusion in the insurance policy for damages caused by a party driving without permission of the owner or a person “in lawful possession” of the vehicle. No defense was offered, and the injured party obtained a $1 million default judgment against the minor driver. The injured party and the minor’s parents then jointly filed suit against the insurance company, alleging that the insurance company was liable for breach of contract, bad faith, violation of the Tennessee Consumer Protection Act, and violation of the Unfair Claims Practices Act based upon its denial of coverage. The trial court ruled that, as a matter of law, the minor was entitled to insurance coverage under her parents’ policy at the time of the accident. The remainder of the case was tried, and the plaintiffs were awarded compensatory and punitive damages on the bad faith claim. The jury also found the insurance company had violated the Tennessee Consumer Protection Act, and the trial court trebled the compensatory damages and awarded attorney fees under the Act. The insurance company has raised a number of issues in this appeal, inter alia, the grant of partial summary judgment to the plaintiffs on the question of coverage; the finding of liability for bad faith, the liability and enhanced penalty under the TCPA, and the requirement that plaintiffs should make an election between the punitive damages and the enhanced damages. We affirm the breach of contract holding, including the conclusion that the policy terms provided coverage. We reverse and vacate the holding of liability for bad faith, including the award of punitive damages thereunder, since the statutory cause of action was not plead. We also reverse the award of treble damages under the TCPA, but affirm the finding of a violation of the Act. We affirm as modified the award of attorneys’ fees.


JEREMY DATHAN PORT v. VERONICA L. HATTON

Court: TN Court of Appeals

Attorneys:

Cherie Cash-Rutledge, Murfreesboro, Tennessee, for the appellant, Veronica L. Hatton.

Joe M. Brandon, Jr., Laurie Young, Murfreesboro, Tennessee, for the appellee, Jeremy Dathan Port.

Judge: COTTRELL

The trial court granted the parties a divorce, named the father as the primary residential parent of their one and a half year old child, and permitted him to return with the child to North Carolina, where both parties originally came from and where their families still resided. The mother was granted three days of supervised visitation with the child each month in North Carolina. She argues on appeal that the trial court’s decision was flawed because the court failed to analyze the best interest of the child in accordance with the appropriate statutory factors. She also argues that by allowing Father to take the child to North Carolina and limiting her visitation so severely, the court deprived her of her right to maintain the parent-child relationship, and that its actions were inconsistent with case law stating that “the least restrictive visitation limits are favored in order to encourage the parent-child relationship.” We affirm the trial court’s designation of the father as the primary residential parent, and its finding that it was in the child’s best interest that the father be permitted to relocate with the child. We also affirm the parenting plan.


WILLIAM H. RICHARDSON ET AL. v. BATES SHOW SALES STAFF, INC. D/B/A BATES RV EXCHANGE

Court: TN Court of Appeals

Attorneys:

Philip D. Irwin and Stephen M. Montgomery, Nashville, Tennessee, for the appellants, William H. Richardson and Donna L. Richardson.

William A. Blue, Jr., Nashville, Tennessee, for the appellee, Bates Show Sales Staff, Inc. d/b/a Bates RV Exchange

Judge: CLEMENT

Plaintiffs appeal the dismissal of their action for breach of contract, breach of express warranty, breach of implied warranty, violation of the Tennessee Consumer Protection Act, and fraudulent misrepresentation arising out of the purchase of a recreational vehicle from Defendant, a business located and incorporated in the State of Florida. The trial court dismissed the action on the finding that the court lacked personal jurisdiction over Defendant because the corporation had not purposely availed itself of doing business in Tennessee and did not have sufficient contacts with Tennessee. The trial court further found that the choice of venue clause in the purchase contract between the parties was enforceable and, thus, the proper venue for the action was Florida. Plaintiffs appealed arguing that the court may exercise personal jurisdiction over Defendant. We affirm the finding that the trial court lacks personal jurisdiction over Defendant as Plaintiffs did not establish the prima facie case of jurisdiction.


TN Court of Criminal Appeals

EDGAR BAILEY, JR. v. DWIGHT BARBEE, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Edgar Bailey, Jr., Henning, Tennessee, pro se.

Robert E. Cooper, Attorney General and Reporter, and Sophia S. Lee, Senior Counsel, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Edgar Bailey, Jr., appeals the Lauderdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. On appeal, the Petitioner claims entitlement to habeas corpus relief because of alleged defects in the felony murder count of his indictment and because the trial court dismissed the felony murder count after remand by this court on direct appeal. We conclude that there is no error in the judgment of the habeas corpus court and affirm.


STATE OF TENNESSEE v. ROBERT PRUITT

Court: TN Court of Criminal Appeals

Attorneys:

Jake Erwin and Terry Hensley, Memphis, Tennessee, for the appellant, Robert Pruitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kate Edmands and Jose Leon, Assistant District Attorneys General; for the appellee, State of Tennessee.

Judge: WILLIAMS

Defendant was convicted of possession of hydrocodone with intent to sell, a felony, possession of a firearm during the commission of a dangerous felony, a Class D felony, and possession of marijuana, a Class A misdemeanor. He received a total effective sentence of eight years. On appeal, the defendant challenges the sufficiency of the convicting evidence, the trial court’s denial of his motion to suppress, and numerous evidentiary rulings. The defendant also claims that the trial court erred by failing to find mitigating factors and by sentencing him for a Class C felony with respect to his conviction for possession of hydrocodone with intent to sell or distribute, when the crime at issue was in fact a Class D felony. After review, we conclude that the trial court committed no reversible error with respect to the defendant’s convictions. However, the trial court erroneously sentenced the defendant with respect to at least one of his offenses. Consequently, we remand the case to the trial court for re-sentencing.


STATE OF TENNESSEE v. VICTOR TREZEVANT

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. McClusky, (on appeal); Lorna McClusky, (on appeal and at trial); and William Massey (at trial), Memphis, Tennessee, for the Defendant-Appellant, Victor Trezevant.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Amy P. Weirich, District Attorney General; Reginald Henderson and Ray Lapone, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Victor Trezevant, appeals as of right his conviction for first degree murder committed during the perpetration of an attempted aggravated robbery, for which he received a life sentence. In this appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction of felony murder. Specifically, Trezevant contends that the State failed to corroborate the testimony of his accomplices. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. CHRISTOPHER BOMAR WENZLER

Court: TN Court of Criminal Appeals

Attorneys:

John B. Curtis, Germantown, Tennessee, (on appeal), and David Willis, Memphis, Tennessee (at trial), for the appellant, Christopher Bomar Wenzler.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Matt Hooper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Christopher Bomar Wenzler, was indicted by the Fayette County Grand Jury for driving under the influence of an intoxicant (DUI) in Count 1, and for DUI, third offense, in Count 2. Defendant pled guilty to DUI as charged in Count 1, and waived a jury trial and submitted to a bench trial as to the issues in Count 2. Count 2 alleged two prior DUI convictions: (i) in the Justice Court of DeSoto County, Mississippi on June 7, 2006, and (ii) in the General Sessions Court of Shelby County on February 9, 2006. Defendant argued in the trial court that the Mississippi conviction could not be lawfully used to enhance his current offense to DUI, third offense, but the trial court found Defendant guilty as charged. The trial court merged the conviction in Count 1 with the conviction in Count 2, and sentenced Defendant to serve 11 months and 29 days, with all but 120 days suspended as a third offense DUI offender. Defendant appeals, arguing that he should have been sentenced for DUI, second offense, because the judgment form used to prove Defendant’s prior conviction in DeSoto County, Mississippi is silent as to whether he was represented by counsel or waived his right to counsel. After review of the record, we affirm the judgment of the trial court.


Funeral Services Held for Memphis Judge

Judge Audrey M. Scott died Feb. 26 at the age of 65 at Methodist University Hospital. She was a long-time judge, serving the local EEOC and Social Security Administration Memphis Hearings Office. A Memphis native, Scott attended LeMoyne-Owen College before transferring to Howard University where she graduated with honors. She earned her law degree from Catholic University of America and returned to Memphis to begin her legal career with Memphis Area Legal Services. Visitation was held Tuesday,  with funeral services Wednesday at Temple of Deliverance Church of God in Christ. In lieu of flowers, contributions can be made to Pillow Street C.M.E Church, Youth Development. 1590 Pillow Street, Memphis,TN 38106.


ABA Joins Legal Groups in Condemning Cuts to Judiciary

The American Bar Association has joined two other legal groups in condemning the impact that “severe and indiscriminate federal court budget reductions through sequestration” will have on the judicial system. The statement, jointly released with the American Association for Justice and DRI-The Voice of the Defense Bar, says that sequestration will cause “costly delays,” affecting “the federal judiciary and every individual and business that depends on our courts” and urges policymakers on Capital Hill and statehouses across the county to ”provide adequate funding for our federal and state judiciaries.”


DCS Reports More on Child Fatalities

The Department of Children’s Services has released new details about the deaths of 25 children in state custody in 2011 and 2012, the Tennessean reports. The 113-page report was released in advance of hearings at the state legislature next week in which the DCS is expected to answer wide-ranging questions about the agency’s ability to serve the state’s children, data problems, rumored difficulties about DCS staff cooperating with law enforcement and unanswered calls at its child abuse hotline. Critics of the agency point out that the report does not answer lawmakers’ questions regarding the number of children who died after being investigated for abuse or neglect but who were not taken from their homes into custody. Interim Commissioner Jim Henry and other DCS officials are expected to answer questions at a separate hearing next week as well.


Pro Bono Seminar Promotes Launching, Expanding Legal Clinics

The Pro Bono Legal Clinic Seminar held in Nashville recently helped attendees address issues and questions that arise in starting or growing a pro bono clinic. More than 50 lawyers, paralegals, judges, court clerks, and administrative staff had the opportunity to learn from each other about successful clinic operations and ways to expand or improve their clinics. Legal service providers were highlighted as a possible and viable partner for beginning a legal clinic. Read more about the seminar rom the Tennessee Supreme Court Access to Justice Commission, which sponsored the program.


Real Estate Law Keeps Memphis Lawyer on his Toes

Clay Purdom didn't begin his professional career as an attorney, but the director and shareholder with Martin, Tate, Morrow & Marston PC in Memphis has found the commercial work he does challenging and immensely enjoyable. “There’s always something new, there are hardly ever two sets of facts that are identical so it keeps you on your toes,” the Kentucky native told the Memphis Daily.


Senate Delays Action on Voter ID Bill

Legislation allowing state-college issued student IDs to be permissible for voting was postponed one week, the Commercial Appeal reports. The Tennessee Senate rejected an amendment by Minority Leader Jim Kyle, D-Memphis, to allow city and county local governments like Memphis and Shelby County to create secure photo identification cards acceptable for use. The Tennessee Supreme Court is expected to issue a ruling soon on the 2011 Memphis case involving the use of library cards for voter identification that started the debate.


Track Legislation of Interest to Tennessee Attorneys

The TBA has a number of tools to help you track action in the Tennessee General Assembly. Read TBA Today for regular news updates and follow the TBA Action List to track bills in the General Assembly that the TBA has a direct interest in -- those it has initiated, taken a position on, or has a policy on. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.


 
 

Questions, comments: Email us at TBAToday@tnbar.org

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.


© Copyright 2013 Tennessee Bar Association