TBA Accepting Nominations for Public Service Awards

The TBA each year recognizes outstanding service by those who demonstrate an exceptional commitment to increasing access to justice for underserved individuals and communities. Awards are presented at the Annual Public Service Awards Luncheon in January. Awards recognize pro bono service in three categories: work performed by an attorney employed by an organization primarily involved in providing legal representation to the indigent, work performed by a private attorney and work performed by a law student volunteer. Nominations should be submitted via the TBA website or to Liz Todaro no later than Sept. 6. Submissions should include a narrative of the individual’s accomplishments, the nominator’s reasons for selecting the individual and a description of how the nominee meets the award criteria. Download details.

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
02 - TN Court of Appeals
05 - 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

LARRY KEITH BRAGG v. BEACH OIL COMPANY, INC., ET AL.

Court: TN Workers Comp Appeals

Attorneys:

D. Brett Burrow, Nashville, Tennessee, for the appellants, Beach Oil Company, Inc. and Federated Mutual Insurance Company.

Tim L. Bowden, Goodlettsville, Tennessee, for the appellee, Larry Keith Bragg.

Judge: CLARK

An employee sustained an injury to his back in the course of his employment on January 1, 2010. After a period of conservative treatment, the employee’s treating physician recommended surgery. The employer’s utilization review provider declined to approve the surgery, and the Medical Director of the Tennessee Department of Labor and Workforce Development affirmed the denial. The employee did not return to work for the employer. On September 1, 2010, the employee went to the emergency room complaining of severe back pain. An MRI revealed a herniated disc in the area of the employee’s spine for which his treating physician had previously recommended surgery. The following day, the employee’s treating physician performed the previously recommended surgery and opined that the herniated disc and surgery were causally related to the employee’s January 1, 2010 work injury. The employer denied that the work injury caused the herniated disc and surgery. The employee filed a workers’ compensation claim in the Chancery Court for Humphreys County. The primary disputed issues at trial were causation and the extent of the employee’s disability. The trial court ruled that the herniated disc was causally connected to the work injury and awarded permanent partial disability benefits of 36% to the body as a whole, as well as medical expenses. The employer appealed. 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the trial court’s finding that Employee’s September 1, 2010 herniated disc, and the fusion surgery performed as a result of it, were causally related to his January 1, 2010 work injury. We also affirm the trial court’s finding that Employee is not totally and permanently disabled. Because the trial court failed to make the findings required by statute when awarding permanent partial disability benefits of six times the medical impairment rating, we vacate the award of disability benefits and remand to the trial court for additional consideration and appropriate findings on this issue.


TN Court of Appeals

STATE OF TENNESSEE, EX REL., VALERIE ARLENE LAW v. MICHAEL LEE FERRELL

Court: TN Court of Appeals

Attorneys:

Patti B. Garner, Gallatin, Tennessee, for the appellant, Valerie Arlene Law.

John R. Phillips, Jr., Gallatin, Tennessee, and Jerry V. Smith, Dickson, Tennessee, for the appellee, Michael Lee Ferrell.

Judge: FARMER

This case involves an award of retroactive child support. Approximately seventeen years after the child's birth, the Tennessee Department of Human Services, acting on behalf of the child's Mother, filed a petition in the Sumner County Juvenile Court seeking to establish paternity and to obtain past and future child support from the Father. Genetic testing confirmed that Father was the child’s biological father. Thereafter, the juvenile court entered an order establishing paternity and ordering Father to pay $574.00 per month in child support. The juvenile court also awarded Mother seven years of retroactive child support totaling $48,216.00. On appeal, both Mother and Father take issue with the amount of the award of retroactive child support. Upon thorough examination, we conclude that the record does not support the amount of the award of retroactive child support. Accordingly, we vacate and remand the case to the juvenile court for further proceedings.


IN RE JAYDEN B.-H. ET AL.

Court: TN Court of Appeals

Attorneys:

Shawn Tyrell, Knoxville, Tennessee, for the appellant, Herman H.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Allison Starnes-Anglea, Knoxville, Tennessee, Guardian Ad Litem.

Judge: FRIERSON

This is a termination of parental rights case, which was heard by the trial court on January 29, 2013. The trial court entered an order terminating the parental rights of the father, Herman H. (“Father”), on February 1, 2013. Father did not file his notice of appeal until March 11, 2013. Because Father’s notice of appeal was not filed within thirty days of the date of entry of judgment, pursuant to Tennessee Rule of Appellate Procedure 4, it was untimely. We must therefore dismiss Father’s appeal.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. JIM GEORGE CONASER a.k.a. JIMMY GEORGE CONASER
With Concurring and Dissenting Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Joshua L. Brand (at trial and on appeal) and Nathan Colburn (at trial), Nashville, Tennessee, for the appellant, Jim George Conaser a.k.a. Jimmy George Conaser.

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

Judge: THOMAS

A Davidson County jury convicted the Defendant, Jim George Conaser a.k.a. Jimmy George Conaser, of separate counts of failing to timely register as a sexual offender and of failing to sign a Tennessee Bureau of Investigation (TBI) sexual offender registration form, both Class E felonies. The trial court imposed a consecutive terms of four years for these convictions. On appeal, the Defendant challenges the sufficiency of the evidence, the trial court’s refusal to dismiss count two, the trial court’s failure to merge the counts, the trial court’s jury instructions, and the sentences imposed. Following our review of the record and the applicable authorities, the judgment and four-year sentence in count one are affirmed. However, upon review of count two, we conclude that the evidence is insufficient to support the Defendant’s conviction and, therefore, reverse and dismiss his conviction and sentence as to that count.


STATE OF TENNESSEE v. JAMES MICHAEL NAIVE

Court: TN Court of Criminal Appeals

Attorneys:

James L. Elkins III, Assistant Public Defender, for the appellant, James Michael Naive.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Kim R. Helper, District Attorney General; and Mary Katharine White, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: WITT

The defendant, James Michael Naive, appeals his Williamson County Circuit Court conviction of first degree murder, claiming that the trial court erred by denying his motions to suppress both the statement he made to police and his bank records, that the evidence was insufficient to support his conviction, and that the trial court erred by admitting certain witness testimony and by permitting a witness for the State to remain in the courtroom prior to his testimony. In addition, the defendant claims that the prosecutor committed misconduct by impermissibly shifting the burden of proof to the defense during closing argument. Discerning no error, we affirm.


RUBEN PIMENTEL v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ruben Pimentel, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Rodney Strong, District Attorney General Pro Tem, for the appellee, State of Tennessee.

Judge: WOODALL

On June 3, 2005, Petitioner, Ruben Pimentel, pled guilty to first degree murder and two counts of aggravated arson. He filed a petition for post-conviction relief almost four years later on March 9, 2009. The trial court summarily dismissed the petition because it was filed outside the applicable statute of limitations of one year. On appeal, a panel of this court reversed and remanded the case to the trial court for the appointment of counsel and for a hearing to determine if due process concerns tolled the statute of limitations. See Ruben Pimentel v. State, No. M2009-00668-CCA-R3-PC, 2010 WL 271160 at *2 (Tenn. Crim. App. Jan. 22, 2010). In addition, this court instructed the trial court to determine whether the filing of the petition in 2009 was within the reasonable opportunity allowed by due process tolling of the statute of limitations if due process concerns required a reasonable tolling of the statute of limitations. Id. Upon remand, counsel was appointed, a hearing was held, and the trial court again dismissed the petition, from which order Petitioner appeals pro se, after waiving his right to counsel. After review, we affirm the judgment of the trial court.


DEREK LEE WHITE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Elaine Heard, Nashville, Tennessee, for the Appellant, Derek Lee White.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Derek Lee White, pled guilty to second degree murder, attempted first degree murder, and two counts of especially aggravated robbery, with an agreed effective sentence of thirty years in the Tennessee Department of Correction. The Petitioner timely filed a petition seeking post-conviction relief, claiming that he had received the ineffective assistance of counsel. The post-conviction court denied the petition after a hearing. On appeal, the Petitioner claims that his attorney failed to: (1) meet with him; (2) fully utilize exculpatory evidence; and (3) hire a private investigator to assist in the defense. After a thorough review of the record, the briefs, and relevant authorities, we affirm the postconviction court’s judgment.


ARCHIE T. WILSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Archie T. Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Hugh Ammerman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 2011, the Petitioner, Archie T. Wilson, pled guilty to attempted aggravated rape and attempted aggravated kidnapping, and the trial court sentenced him to a twenty-year effective sentence. The trial court also ordered that the Petitioner register as a sex offender and be placed on community supervision for life. The Petitioner filed a petition for post conviction relief, which the post-conviction court dismissed after a hearing. On appeal, the Petitioner contends that his guilty pleas were not knowingly and voluntarily entered and that he had received the ineffective assistance of counsel. After a thorough review of the record and applicable authorities, we conclude that the post-conviction court did not err when it dismissed the petition. The post-conviction court’s judgment is, therefore, affirmed.


Workers’ Comp Law Favoring Independent Exams Upheld

In a unanimous opinion this week, the Tennessee Supreme Court upheld the constitutionality of a workers’ compensation law that gives priority to the opinion of an independent medical examiner when parties cannot agree on a disability rating. The court found that the law does not violate principles of due process and does not constitute an infringement by the legislative branch on the exclusive powers of the judiciary. With regard to the specific facts of Mansell v. Bridgestone, the court also found that the employee did not provide evidence to contradict the independent examiner’s finding. Read more from the court.


Knox Application for ICE Program Denied

The Knox County Sheriff’s Office application to participate in a controversial immigration enforcement program has been rejected by federal officials, Knoxnews reports. U.S. Immigration and Customs Enforcement (ICE), which runs the program, attributes its decision to budgetary constraints. “Due to resource concerns, including the impacts of sequestration, ICE is limiting 287(g) participation to those law enforcement agencies with existing [programs].” The 287(g) program authorizes and trains local police to enforce federal immigration laws.


City to Hire Interim Counsel While Weighing Options

Spring Hill officials say they will hire an interim law firm to serve the city while the Board of Mayor and Aldermen decides how to find permanent counsel. The city does not have an attorney in place because the lawyer selected in July declined the position. The board is considering whether to select a firm that previously applied, ask for new applications or hire an in-house attorney, the Columbia Daily Herald reports. On Monday, board members voted to allow the mayor to hire a law firm for up to six months while they consider options.


DOJ Readying New Cases Related to Financial Meltdown

U.S. Attorney General Eric Holder says he expects to announce new cases related to the financial meltdown in the coming months. Speaking with the Wall Street Journal, Holder said, "My message is, anybody who's inflicted damage on our financial markets should not be of the belief that they are out of the woods because of the passage of time. If any individual or if any institution is banking on waiting things out, they have to think again." According to the story, recent disclosures indicate the government is pursuing prosecutions related to suspected wrongdoing in the mortgage-backed securities industry and manipulation of the energy market. (Subscription required)


Jury Scam Back After Run in 2009

Reports of a telephone scam threatening prosecution and fines for not fulfilling federal jury service are prompting courts around the country to remind the public that they rarely contact jurors by phone. “Federal courts do not require anyone to provide any sensitive information in a telephone call,” David R. Herndon, chief judge of the Southern District of Illinois, wrote in a recent release. “Most contact between a federal court and a prospective juror will be through the U.S. mail, and any phone contact by real court officials will not include requests for social security numbers, credit card numbers or any other sensitive information.”  Anyone receiving a scam call should contact the clerk's office of the U.S. district court. This is not the first time that scammers have targeted potential jurors. The U.S. courts released a video in 2009 warning of similar schemes.


Fears of Surveillance Shutter Legal Technology Blog

The founder of the legal technology blog Groklaw has decided to shut down the service over fears that email communications could be subject to government surveillance. Former paralegal Pamela Jones founded Groklaw in 2003 to cover legal news of interest to the free software and open source community. In her final post Jones says she made the decision after learning that the government captures emails sent to and from foreign countries. Groklaw won the most reader votes in its niche in the ABA Journal’s 2012 Blawg 100. Jones says in the final post that she is now using an email service in Switzerland, where the laws offer greater privacy. ABA Journal links to several sources for the story.


Kagan: Justices Have More to Learn about Technology

Members of the U.S. Supreme Court continue to communicate with one another through memos printed on ivory paper even as they face cases related to emerging technology and electronic snooping, Justice Elena Kagan admitted Tuesday. In an appearance at Brown University, Kagan said the justices have a ways to go to understand technologies such as Facebook, Twitter and even email. While clerks email one another, she said, "The court hasn't really 'gotten to' email." When asked how the court will approach issues such as technology and privacy, Kagan said, "I think we're going to have to be doing a lot of thinking about that." WRCB-TV has more from the AP.


Legal Clinics Happening Around Nashville Saturday

Five free legal clinics will take place in Nashville this Saturday. Attorneys will be on hand to provide legal advice in all areas of the law from 11 a.m. to 2 p.m. Locations are as follows: St. Luke's Community House, 5601 New York Ave.; Bethel AME Church, 1300 South St.; Northwest YMCA, 3700 Ashland City Hwy.; East Park Community Center, 700 Woodland St.; and Legal Aid Society, 300 Deaderick St. Debt-related matters will be handled at the Legal Aid Society and St. Luke's locations. The clinics are sponsored by The Legal Aid Society, Nashville Pro Bono Program, Nashville Bar Association YLD, Napier-Looby Bar Association, Tennessee Coalition to End Domestic and Sexual Violence and The Law Offices of James Flexer. For more information visit Flexer's Facebook page.


NBA to Hold Member Picnic in September

The annual Nashville Bar Association Member Picnic will be held Sept. 19 at Hall of Fame Park. This year’s event is co-sponsored by the Metro Law Department. Festivities kick off at 5:30 p.m. with dinner following at 7 p.m. The Hall of Fame Park is located downtown between the Country Music Hall of Fame, Downtown Hilton Hotel and Schermerhorn Symphony Center. The picnic is free for members and their children but responses are requested. Register at the link above.


Fastcase: Free Premium-Level Legal Research

Have you been using your unlimited access to online legal research through Fastcase? It comes free with your TBA membership. Court opinions are available from all 50 states, the U.S. Supreme Court, all federal district and appellate courts, and the U.S. bankruptcy courts. Framed statutes, regulations, court rules and constitutions from all 50 states also are free. Log in through your TBA.org account and start saving money on your online legal research.


 
 

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.


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