Workers' Comp Overhaul Adopted; McNally Amendment Still Alive

The bill (SB 200) to overhaul the workers’ compensation system, transfer responsibility to an administrative judiciary and narrow the range of discretion in the system received easy final passage in the state House today.

Meanwhile, budget deliberations, which will formally resume on Monday afternoon, continue to include the McNally amendment. With only one week likely left in the session, and most notice and other rules suspended, advocates must now expand their focus to all members of the Senate Finance Committee to try to head off quick adoption of the proposal by the chair.

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
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

BELLSOUTH TELECOMMUNICATIONS, INC. v. ALONZO W. HOWARD

Court: TN Workers Comp Appeals

Attorneys:

Alonzo W. Howard, Nashville, Tennessee, pro se.

Sarah H. Best and Julie Cochran Fuller, Knoxville, Tennessee, for the appellee, BellSouth Telecommunications, Inc.

Judge: LEE

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. The employee reported to his employer that he had sustained bilateral carpal tunnel syndrome as a result of his work activities. The employer provided the employee with medical treatment. After the parties reached an impasse at the benefit review conference, the employer filed a petition seeking a determination of whether the employee was entitled to additional workers’ compensation benefits. The employee’s pre-trial motion to compel discovery was denied by the trial court. At trial, both sides presented expert medical evidence to support their positions as to the cause and nature of the employee’s condition. The trial court denied the employee’s claim, accrediting the testimony of the employer’s expert witness that the employee did not suffer from carpal tunnel syndrome and that his symptoms did not arise out of or occur in the course and scope of his employment. On appeal, the employee contends that the trial court abused its discretion in denying his motion to compel discovery and in accrediting the testimony of the employer’s expert witness. After careful review, we affirm the judgment of the trial court.


JAMES CARRIGAN v. DAVENPORT TOWING AND RECOVERY SERVICES, LLC, ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Thomas D. Yeaglin, Memphis, Tennessee, for the appellants, Davenport Towing and Recovery Services, LLC and Benchmark Insurance Company.

Stephen F. Libby, Memphis, Tennessee, for the appellee, James Carrigan.

Judge: CHILDRESS

In this workers’ compensation action, the employee alleged that he sustained a compensable injury to his lower back while using a sledge hammer. He had injured his back in a similar manner a year earlier, and his employer asserted that the earlier event was the cause of the employee’s symptoms and need for additional medical treatment. The trial court found that the employee had sustained a compensable injury and awarded additional temporary and permanent disability benefits. The employer has appealed, challenging both the temporary and permanent disability benefits awarded. The employee raises two additional issues: the adequacy of the vocational disability award and the trial court’s decision not to award certain discretionary costs. We reverse the trial court’s decision not to award the employee each of the discretionary costs requested; we affirm judgment of the trial court in all other respects.


JACKIE PERRY V. LENNOX HEARTH PRODUCTS

Court: TN Workers Comp Appeals

Attorneys:

R. Dale Thomas and Matthew R. Courtner, Jackson, Tennessee, for the appellant, Lennox Hearth Products.

Jeffrey P. Boyd, Jackson, Tennessee, for the appellee, Jackie Perry.

Judge: HOLDER

An employee alleged that he suffered a work-related hearing loss. After finding that the employee established a compensable injury, the trial court awarded 40% permanent partial disability benefits. The employer appealed, contending that the evidence preponderates against the trial court’s finding that the employee suffered a compensable injury. Alternatively, the employer contends that the award was excessive. We affirm the decision of the trial court.


TN Court of Appeals

KENNER D. ENSEY v. KARLA DAVIS, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT ET AL.

Court: TN Court of Appeals

Attorneys:

Kathryn A. Evans and Salmun Kazerounian, Tullahoma, Tennessee, for the appellant, Kenner Ensey.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Derek C. Jumper, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development.

Judge: BENNETT

Appellant appeals the trial court’s decision upholding the decision of the designee of the Commissioner of the Tennessee Department of Labor and Workforce Development, which denied appellant unemployment benefits. We reverse, finding that, while appellant did quit his job voluntarily, he had good cause for doing so.


IN RE ESTATE OF HAZEL N. LEDFORD

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Janet M. Kleinfelter, Deputy Attorney General, Public Interest Division, Nashville, Tennessee, for the appellant, Robert E. Cooper, Jr., Attorney General and Reporter.

Marcia M. McMurray, Cleveland, Tennessee, for the appellant, Bradley Healthcare and Rehabilitation Center Citizens’ Endowment Fund.

Joshua H. Jenne, Cleveland, Tennessee, for the appellee, Estate of Hazel N. Ledford.

Judge: SUSANO

Hazel N. Ledford died on June 22, 1991. Her will (“the Will”) was a joint holographic one made with her husband, Wilson A. Ledford, who predeceased her. Her stepdaughter, Martha Ledford Powell, became the sole personal representative (“the Personal Representative”) and executor of her stepmother’s estate (“the Estate”). The Will was admitted to probate in July 1991, but the Personal Representative did not file her first accounting until 2009. The final accounting was filed in February 2010. The final accounting revealed that the Estate had paid approximately $350,000 toward remediation of soil contamination caused by underground petroleum storage tanks (“the USTs”) on a parcel of land Mr. Ledford conveyed before his death to a family trust. While Mrs. Ledford was never a title owner of the property, she did join in the execution of the deed to the trust. The Will left a portion of Mrs. Ledford’s residuary estate to a charitable trust. The charitable trust and the Tennessee Attorney General (sometimes referred to collectively as “the Objectors”) objected to the final accounting on the ground that the remediation payments were not a proper expense of the Estate. The court denied the objections and approved the final accounting. The court also approved, in part, the Personal Representative’s request for attorney’s fees. The Objectors appeal. We reverse.


SYLVIA SUSANA MARQUEZ v. PEDRO MARQUEZ

Court: TN Court of Appeals

Attorneys:

William J. Taylor, Knoxville, Tennessee, for the appellant, Sylvia Susana Marquez.

Justin C. Angel, Pikeville, Tennessee, for the appellee, Pedro Marquez.

Judge: SWINEY

This appeal arises from a post-divorce dispute over custody of five children. Sylvia Susana Marquez (“Mother”) and Pedro Marquez (“Father”), divorced in 2003, are mother and father of the five minor children (“the Children,” collectively). Father was designated the primary residential parent of the Children. Mother filed a petition in the Probate and Family Court for Cumberland County (“the Trial Court”) to modify the parenting plan and for emergency custody based on allegations of violence involving Father. In her petition, Mother also argued that a material change of circumstances had occurred such as to justify her being designated the primary residential parent of the Children. The Trial Court found an emergency had arisen and awarded temporary emergency custody of the Children to Mother. Later, after a hearing, the Trial Court entered an order restoring custody to Father after stating that the emergency had been “removed by [Father].” Mother appeals. We affirm.


MORRIS L. MARSH v. NECX DISCIPLINARY BOARD, ET AL.

Court: TN Court of Appeals

Attorneys:

Morris L. Marsh, Wartburg, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and James Lee Pope, Assistant Attorney General, Civil Rights and Claims Division, Nashville, Tennessee, for the appellee, Northeast Correctional Complex Disciplinary Board (NECX).

Judge: PER CURIAM

The order from which the pro se incarcerated appellant, Morris L. Marsh, seeks to appeal was entered on November 28, 2012. The Notice of Appeal was filed more than thirty (30) days from the date of entry of the November 28, 2012 order, even considering the date upon which the appellant placed the Notice of Appeal in the mail for filing with the trial court clerk (February 10, 2013). See Tenn. R. App. P. 20(g). Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.


MACKENZY RUTH MURDOCK ET AL. v. FORT SANDERS REGIONAL MEDICAL CENTER ET AL.

Court: TN Court of Appeals

Attorneys:

Thomas S. Scott, Jr., Christopher T. Cain, Norman D. McKellar and Andrew S. Roskind, Knoxville, Tennessee, for the appellant, MacKenzy Ruth Murdock.

Rick L. Powers and Rachel Park Hurt, Knoxville, Tennessee, for the appellee, Fort Sanders Regional Medical Center.

Debra A. Thompson and Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the appellee, Donna L. Shine, M.D.

Judge: SUSANO

After a defense verdict in this medical malpractice case, the plaintiffs filed a motion asking the trial court, sitting as the thirteenth juror, to determine that the verdict was against the weight of the evidence and grant them a new trial. The court denied the motion. The plaintiffs appeal, arguing that the trial court’s remarks from the bench show that it did not properly perform its role as the thirteenth juror. We affirm.


TN Court of Criminal Appeals

JEFFERY GAYLON DOUGLAS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the appellant, Jeffery Gaylon Douglas.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. (“Jerry”) Woodall, District Attorney General; and Beth C. Hall, Assistant District Attorney General Pro Tem, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Jeffery Gaylon Douglas, filed a petition for post-conviction relief attacking his convictions for rape and sexual battery on the basis of ineffective assistance of trial counsel. The post-conviction court denied relief following an evidentiary hearing, finding that the Petitioner had failed to prove his allegations by clear and convincing evidence. In this appeal as of right, the Petitioner contends that trial counsel was ineffective by improperly advising him to testify at his trial. After our review, we affirm the judgment of the post-conviction court.


QUINCY DEANGELO GARDNER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Marie Stacey, Nashville, Tennessee, for the appellant, Quincy Deangelo Gardner.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Quincy Deangelo Gardner (“the Petitioner”) filed for post-conviction relief from his conviction of first degree felony murder, arguing that he received ineffective assistance of counsel at trial. Following an evidentiary hearing, the post-conviction court denied relief. The Petitioner now appeals. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. DONALD VAUGHN

Court: TN Court of Criminal Appeals

Attorneys:

Mark Anthony Kovach, Nashville, Tennessee (at plea submission hearing); and Robert J. Turner, Nashville, Tennessee (at sentencing hearing and on appeal), for the appellant, Donald Vaughn.

Robert E. Cooper, Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Janice Norman and Robert Elliott McGuire, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Donald Vaughn, pled guilty to two counts of aggravated rape, a Class A felony. See Tenn. Code Ann. § 39-13-502. Following a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of forty-eight years, to be served at 100%. In this appeal as of right, the Defendant contends (1) that the trial court erred by denying his motion to withdraw his guilty pleas; (2) that his guilty pleas were not valid because the State failed to prove an essential element of the offense; and (3) that the trial court erred by imposing consecutive sentences. Following our review, we conclude that these issues are without merit and affirm the judgments of the trial court.


MICHAEL YOUNG v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Marvin Adams, III, Memphis, Tennessee, for the appellant, Michael Young.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Jennifer Morris, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Michael Young, pleaded guilty to two counts of attempted first degree murder and one count of aggravated robbery in exchange for an effective forty-year sentence. Subsequently, petitioner filed a petition for post-conviction relief. After an evidentiary hearing, the post-conviction court denied relief. On appeal, petitioner argues that trial counsel provided ineffective assistance by failing to file a motion to suppress petitioner’s statement to police based on his being a juvenile and by failing to ensure that petitioner understood the sentence alignment included in the plea agreement. He also contends that his guilty plea was rendered involuntary because of trial counsel’s ineffective assistance. Discerning no error, we affirm the judgment of the post-conviction court.


Judge Receives Censure and Reprimand

The Tennessee Board of Judicial Conduct has issued a public censure and public reprimand to Third Judicial District Circuit Court Judge John K. Wilson. The board reports that the censure is a result of Wilson’s conduct at a 2011 deposition as well as his failure to abide by a resolution and agreement previously reached with the Court of the Judiciary (the board’s predecessor organization). The reprimand was due to an improper ex parte hearing and improper ex parte relief granted with respect to a petition to modify a permanent parenting plan. A public censure requires Wilson to personally appear before the board, which will meet next in August. Read more or download the censure and reprimand.


Philyaw Named Juvenile Court Judge

The Hamilton County Commission this morning selected Robert D. Philyaw as the county’s new juvenile judge. The Chattanoogan reports that he was one of 10 applicants seeking to replace retiring Judge Suzanne Bailey. Philyaw, a solo practioner and municipal judge in Graysville, will serve until the next general election set for August 2014. A 2001 graduate of the University of Memphis School of Law, Philyaw has focused his practice on estate and probate cases, litigation and criminal defense. He is a member of the Tennessee Bar Association Access to Justice Committee and co-chair of its Hometown Support Subcommittee.


Justice Seeks to Shut Down Tax Prep Group

U.S. Justice Department attorneys were in Memphis federal court this week seeking to shut down a Memphis-based business that operates tax preparation companies. The civil action was filed Tuesday against Mo’ Money Taxes and four other connected businesses: MoneyCo USA LLC, Caymau Service Bureau LLC, Marquis Taxes and Southern King Taxes. The filing also names two business owners and a manager as defendants. The Justice Department alleges that the companies promote and encourage “the preparation of false and fraudulent income tax returns,” the Memphis Daily News reports.


Law Scholarship Named for Wilder, Presented to Kyle

Glen Alan Kyle, a third-year student at the University of Memphis Cecil C. Humphreys School of Law, is the first recipient of the Wilder Law School Scholarship, which is sponsored by BankTennessee. The bank, with offices in Memphis, Collierville and Ripley, reports that the scholarship is named in memory of former Tennessee Lt. Gov. John Wilder, a former vice chairman of its board of directors and one of its founders. The endowed scholarship will be awarded annually to a third-year University of Memphis law student and Tennessee resident who has demonstrated a commitment to public service and enhancing the common good, the Memphis Daily News reports. Kyle is from Murfreesboro. After graduation he hopes to clerk for a judge, work in elder law or bankruptcy, or serve with a government agency.


Memphis Earns Final 4 Finish at Trial Competition

The University of Memphis Cecil C. Humphreys School of Law’s National Trial Team competed in the 38th Annual National Trial Competition in Texas last weekend after defeating Vanderbilt Law School at the regional tournament in Arkansas. Out of 320 teams in San Antonio, the Memphis team advanced to the semifinal round, after defeating number one seed Cumberland School of Law in the quarterfinals. With just four teams left, the team fell to eventual national champion Georgetown University Law Center in a close split decision. The team, comprised of Drew Davis, Sam Hinson and Brigid Welsh, had the school’s best finish in the competition since 1998.


DA Looks into Animal Abuse Allegations

The Cumberland County district attorney is setting ground rules for animal abuse allegations after animal rights activists say animal control officers are not charging people who abuse animals. "It appeared to me that there was some misunderstanding on both sides on what the rights and responsibilities of the protocol were," said District Attorney Randall York. WATE News Channel 6 also reports that the county may be looking at forming a task force to oversee animal abuse cases.


Paper Profiles Probate Judge Gomes

An article in today’s Memphis Daily News looks at the career of Shelby County’s new probate judge Kathleen Gomes, who was appointed April 1 to replace retiring Probate Court Judge Robert Benham. Gomes says the recent appointment was the fulfillment of a lifelong dream. Though she worked for a number of elected officials and explored a career in entertainment law, Gomes finally settled into a probate practice at Peppel, Gomes & MacIntosh. She says probate law goes back to the root of why she became a lawyer. “In Probate Court you really do get to help people. It’s one of the few areas of the law … that you can sit back and finish the day and know that you helped someone.” Gomes says she will run next year when the position, an eight-year term, comes up again for a vote.


Water Border Fight Makes National News

The ongoing fight over the border between Tennessee and Georgia near the edge of the Tennessee River, is making national news. An article streaming on the Wall Street Journal website looks at the history of the dispute and the Georgia lobbyist who is making the border fight his own personal crusade.


Bebb Probe May Last Past Session

With state lawmakers hoping to adjourn next week or soon after, House Speaker Beth Harwell said Wednesday that House members might not have time to consider a review of 10th Judicial District Attorney Steve Bebb even if they decide it's needed. While efforts to access files from the Tennessee Bureau of Investigation’s four-month probe of Bebb have been blocked in the House, the state Senate Judiciary Committee earlier this week directed the TBI to let members examine the files. Lawmakers say their investigation is necessary given the public nature of the allegations and a report by Attorney General Robert Cooper that Bebb’s office exhibited poor judgment, mismanagement and deficient record keeping. The Times Free Press and Cleveland Banner have the news.


Federalist Society Hosts Forum on Electoral College Proposals

The Memphis Lawyers’ Chapter and University of Memphis Law Students’ Chapter of the Federalist Society will present “Current Proposals to Change the Electoral College System” on April 18 from 11:30 to 1 p.m. at the University of Memphis School of Law. The seminar will feature panelists John L. Ryder with Harris Shelton Hanover Walsh, James Bopp Jr. with The Bopp Law Firm, and associate Memphis law professor Steven J. Mulroy. Jon P. McCalla, chief judge of the U.S. District Court for the Western District of Tennessee, will moderate the program. The event is free to the public and refreshments will be served. To attend, contact Greg Grisham at (901) 462-2616 or gregory.grisham@jacksonlewis.com.


 
 

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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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