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Wednesday, June 28, 2006

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Legal services funding restored

The U.S. House of Representatives adopted an amendment last night that restores $25 million to the Legal Services Corporation, bringing the total funding approved to $338 million for the coming fiscal year. The amendment, offered by Rep. David Obey, D-WI, passed by a vote of 237-185. Tennessee lawmakers who voted for the amendment were: Jim Cooper, Lincoln Davis, John Duncan, Harold Ford Jr., Bart Gordon and John Tanner. Representatives Marsha Blackburn, Bill Jenkins and Zach Wamp voted against it. The U.S. Senate still must consider the legislation and any funding differences between the two bills must be worked out in conference committee.

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. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. 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. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

BETTY G. BROWN v. GARY A. HUGO

Court: TCA

Attorneys:

Michael C. Skouteris, Memphis, Tennessee, for the appellant, Betty Brown.

Douglas A. McTyier, Germantown, Tennessee, for the appellee, Gary A. Hugo.

Judge: FARMER

Betty Brown (Plaintiff) was involved in an automobile accident where her car was struck in the rear by the vehicle driven by Gary Hugo (Defendant). Plaintiff subsequently filed suit against Defendant in order to recover medical expenses for injuries Plaintiff claims to have incurred as a result of the accident along with other damages. At trial, the jury found that Plaintiff was not entitled to recover from Defendant. Plaintiff appeals arguing that the jury's verdict was unsupported by competent and credible material evidence. For the reasons set forth below, we affirm.

http://www.tba2.org/tba_files/TCA/2006/brownb062806.pdf

DAVALON HIGGINS v. QUENTON WHITE, ET AL.

Court: TCA

Attorneys:

Davalon Higgins, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, Mark A. Hudson, Senior Counsel, for the appellees, Quenton White and Flora Holland; Brian L. Kuhn, Shelby County Attorney, Thomas E. Williams, Assistant County Attorney, Memphis Tennessee, for the appellee, Mark H. Luttrell, Jr.

Judge: COTTRELL

A prisoner in the custody of the Department of Correction was turned down for work release because an entry in his correctional record indicated that he was a member of a criminal gang. He subsequently filed a complaint under 42 U.S.C. Section 1983 contending that it was a violation of his civil rights to label him as a gang member without a hearing and without giving him any opportunity to challenge the classification. He claimed that he had never been a member of any such group, and that he did not even know until his work release application was rejected that he had been stigmatized by being mistakenly labeled with a gang affiliation. The trial court dismissed the prisoner's complaint, holding that he did not have a constitutional right to any particular security classification. We agree with the court's determination of the constitutional question, but reverse the dismissal because we believe that the trial court had the authority to review his claim under the common law writ of certiorari.

http://www.tba2.org/tba_files/TCA/2006/higginsd062806.pdf

JOHN FLOYD HOWELL, JR. v. REBECCA MOSELEY HOWELL

Court: TCA

Attorneys:

Karla C. Hewitt, Nashville, Tennessee, for the appellant, John Floyd Howell, Jr.

Marlene Eskind Moses and John D. Kitch, Nashville, Tennessee, for the appellee, Rebecca Moseley Howell.

Judge: CAIN

This appeal concerns Husband's efforts to reduce his alimony in futuro obligation following a twenty-two year marriage. Less than one year after the final decree of divorce, Husband's job was eliminated and he sought alternative employment. However, Husband incurred a significant reduction in compensation at his new job and thus he petitioned the court for a modification of spousal support. Wife counter-petitioned for arrearage and contempt asserting that Husband had ceased paying alimony and child support. Upon finding that a substantial and material change in circumstances had occurred, the trial court reduced Husband�s alimony payment. However, the court also found Husband in civil contempt for willful failure to pay alimony and child support. The court denied Husband's request for a retroactive reduction in alimony and entered a judgment against him for alimony arrears. Husband appealed. The judgment of the trial court is affirmed in part and reversed in part and remanded.

http://www.tba2.org/tba_files/TCA/2006/howellj062806.pdf

HRP OF TENNESSEE, INC., d/b/a HOSPITAL RESOURCE PERSONNEL v. STATE OF TENNESSEE, DEPARTMENT OF EMPLOYMENT SECURITY

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michael B. Schwegler, Assistant Attorney General, Nashville, Tennessee; for the appellant State of Tennessee, Department of Employment Security.

William A. Harris and Zachary H. Greene, Chattanooga, Tennessee, for the appellee, HRP of Tennessee, Inc., d/b/a Hospital Resource Personnel.

Judge: LEE

The issue in this case is whether a nurse registry business that places nurses at medical facilities on a temporary, as-needed basis, owes unemployment insurance taxes on the nurses' earnings. The determinative factor is whether the nurses are independent contractors or employees pursuant to T.C.A. Section 50-7-207. Unemployment insurance taxes were assessed against the nurse registry business and paid under protest. The nurse registry business petitioned the Tennessee Claims Commission for a refund. An administrative law judge ruled that the nurses were independent contractors and ordered a refund. The State of Tennessee, Department of Employment Security appealed. After careful review, we hold that the nurses were independent contractors and that the nurse registry business was not required to pay unemployment insurance taxes related to services the nurses performed. Accordingly, we affirm the judgment of the administrative law judge and remand.

http://www.tba2.org/tba_files/TCA/2006/hrp062806.pdf

NANCY WOODALL HUNT v. GARY FRANKLIN HUNT

Court: TCA

Attorneys:

Lance B. Mayes, Nashville, Tennessee, for the appellant, Gary Franklin Hunt.

Helen S. Rogers and Audry L. Anderson, Nashville, Tennessee, for the appellee, Nancy Woodall Hunt.

Judge: CAIN

Husband appeals the action of the trial court asserting that the trial court erred in denying his pro se motion for a continuance after allowing his attorney to withdraw. He further asserts that the trial court erred in the disposition of marital property. The action of the trial court in denying a continuance and granting a divorce to Wife is affirmed. The action of the trial court on all other issues is reversed, and the cause remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/huntn062806.pdf

INDUSTRIAL PRODUCTS GROUP, INC., ET AL. v. AZTECH INDUSTRIAL SUPPLY, INC., ET AL.

Court: TCA

Attorneys:

Raymond G. Prince, Nashville, Tennessee, for the appellants, Aztech Industrial Supply, Inc., Philip Kelly, and Lesly Hart-Kelly.

Douglas Fisher, Nashville, Tennessee, for the appellee, Baker Donelson Bearman & Caldwell.

Judge: CLEMENT

The trial court summarily dismissed the plaintiffs' legal malpractice action against the law firm after finding no violations of the standard of care, that no causal link existed between the alleged negligent acts and omissions of the law firm and the harm suffered, and the action was barred by the statute of limitations. Finding no genuine dispute of material facts exists and the law firm is entitled to summary judgment as a matter of law, we affirm.

http://www.tba2.org/tba_files/TCA/2006/industrialproducts062806.pdf

STATE OF TENNESSEE, EX REL. DONNIE DIANE LITTLE v. JAMES GEARIN

Court: TCA

Attorneys:

Paul G. Summers, Attorney General & Reporter, and Lauren S. Lamberth, Assistant Attorney General, Nashville, TN, for the appellant, State of Tennessee, ex rel. Donnie Diane Little.

James Gearin, appellee, Pro Se.

Judge: KIRBY

This appeal involves a retroactive modification of a child support order. The legal custodian of the child at issue received state benefits on behalf of the child. The State, on behalf of the custodian, filed a petition against the father to set child support. In August 2000, the trial court granted the petition, set child support, and entered an order establishing that the father owed a child support arrearage of $14,000 as of the date of the order. This order was not appealed. Years later, the father filed a petition for custody of the child. After a hearing, the trial court granted him custody of the child and terminated his future child support obligation. The trial court�s order also gave the father a $2,962 credit toward the arrearage established in the August 2000 order. The State filed a motion to alter or amend, arguing that the trial court was not permitted to retroactively modify the arrearage established in the earlier order. This motion was denied. The State now appeals. We reverse, finding that the trial court erred in retroactively modifying the arrearage amount set out in the original order.

http://www.tba2.org/tba_files/TCA/2006/littled062806.pdf

JASON WAYNE MOUSER v. BUCKHEAD CONSTRUCTION CO., ET AL.

Court: TCA

Attorneys:

Eugene B. Dixon, Maryville, Tennessee, for the appellant, Jason Wayne Mouser.

Stephen E. Yeager and Chris D. Tucker, Knoxville, Tennessee, for the appellee, Buckhead Construction Co.

Trevor L. Sharpe, Knoxville, Tennessee, for the appellee, Knox-Tenn Rental & Sales Co.

Judge: SUSANO

Jason Wayne Mouser (the Employee) worked for CDE Electrical Contracting Company (the Subcontractor). He was injured while engaged in the work of his employer's subcontract with Buckhead Construction Co. (the Principal Contractor). The Employee sued the Principal Contractor in tort, alleging that the latter had negligently maintained the piece of equipment that allegedly caused the Employee's injury. In addition, the Employee sued Knox-Tenn Rental & Sales Co. (Knox-Tenn Rental), the lessor of the equipment, alleging that it, too, had negligently maintained the subject equipment. The trial court granted summary judgment to the Principal Contractor, finding that, under the workers' compensation statutory scheme, the Principal Contractor was the statutory employer of the Employee and, hence, could not be sued by him in tort. The trial court also dismissed the Employee's claim against Knox-Tenn Rental, holding that, as the lessor of the equipment, Knox-Tenn Rental could not be held liable to the Employee for a claim under the rubric of a product liability action. The Employee appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/mouserj062806.pdf

HERMAN S. PHILLIPS v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Herman S. Phillips, Whiteville, TN, appellant, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jennifer Brenner, Assistant Attorney General, Nashville, TN, for the appellee, Tennessee Department of Correction.

Judge: KIRBY

This is a petition for a common law writ of certiorari arising out of prison disciplinary proceedings. The prison disciplinary board charged the petitioner with money laundering, a state offense. After a hearing, he was found guilty of the charge and sentenced to punitive and administrative segregation. He filed this petition for a common law writ of certiorari, challenging the board's disciplinary decision. The writ was granted, and the record of the disciplinary proceedings was sent to the trial court for review. Subsequently, the petitioner filed a motion for summary judgment. The respondent filed a notice that it did not intend to respond to the motion, because the record had already been sent to the trial court for review. The trial court dismissed the petition on the merits without first addressing the petitioner's motion for summary judgment. The petitioner now appeals, arguing that the trial court was required to decide his motion for summary judgment before addressing the merits of his petition. We affirm, concluding that, under the circumstances, the trial court was under no obligation to address the petitioner's motion for summary judgment prior to dismissing the action.

http://www.tba2.org/tba_files/TCA/2006/phillipsh062806.pdf

BONNIE REECE v. LINDA ELLIOTT and DIANE DEMPSY, Individually and as Co-Executrixes of the Estate of Eugene Reece

Court: TCA

Attorneys:

B.J. Reed, Knoxville, Tennessee, for appellant.

Johnny V. Dunaway, LaFollette, Tennessee, for appellees.

Judge: FRANKS

Plaintiff's Declaratory Judgment suit to declare the antenuptial agreement invalid was dismissed by the Trial Court which held the agreement enforceable. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2006/reeceb062806.pdf

DONLEY D. SIDDALL, M.D. v. TENNESSEE BOARD OF MEDICAL EXAMINERS

Court: TCA

Attorneys:

John S. Hicks, Timothy L. McIntire, Nashville, TN, for Appellant.

Paul G. Summers, Attorney General & Reporter; Sue A. Sheldon, Senior Counsel, Nashville, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine if the chancery court erred when it upheld the Tennessee Board of Medical Examiners' decision to revoke a physician's medical license. On appeal, the physician asserts that there was not material and substantial evidence to support the charges against him (1) because the Tennessee Board of Medical Examiners failed to present expert medical testimony in compliance with Section 29-26-115 of the Tennessee Code to establish a standard of care as to the gross malpractice and unprofessional, dishonorable, or unethical conduct charges, (2) because the Tennessee Board of Medical Examiners failed to articulate a professional standard of care for the sound medical practices exception to rule 0880-2-.14(7) of the Official Compilation of Rules & Regulations of the State of Tennessee, and (3) that he did not provide sound medical practices under the express exceptions under rule 0880-2-.14(7) of the Official Compilation of Rules & Regulations of the State of Tennessee. We affirm.

http://www.tba2.org/tba_files/TCA/2006/siddalld062806.pdf

Open Meetings Act Application to a Task Force Committee

TN Attorney General Opinions

Date: 2006-06-26

Opinion Number: 06-105

http://www.tba2.org/tba_files/AG/2006/ag_06-105.pdf

TODAY'S NEWS

Legal News

Ruling critical of tactics in white collar cases

A federal judge in New York has ruled that a tactic used by prosecutors to crack down on corporate misconduct violates the constitution. This may change the way the government pursues white-collar cases.

Read the International Herald Tribune article

State holds second execution in 46 years

Tennessee carried out only its second execution in 46 years early today when it administered a lethal injection to convicted killer Sedley Alley. Two hours before Alley was scheduled to die, Sixth Circuit Court of Appeals Judge Gilbert Merritt issued a stay after a last-minute appeal was delivered to his Nashville home. His hasty order, half-typed and half-handwritten, was quickly reversed by his colleagues, Chief Judge Danny J. Boggs and Judge James L. Ryan.

Read the AP story in the Daily News Journal

Reid execution still pending

The state has filed motions with the Sixth Circuit Court of Appeals and the U.S. Supreme Court seeking to vacate a stay issued yesterday in the Paul Dennis Reid case. If the stay is not vacated before midnight tonight, a new execution date will have to be set.

The Tennessean has the story

Knox charter news

Knox County Chancellor John Weaver today granted the county's request for a stay of his ruling that invalidated the county charter. In a written opinion, Weaver said the stay would be in effect for 180 days or for the duration of the appeals process, whichever takes longer. Meanwhile, U.S. District Court Judge James H. Jarvis used a federal lawsuit as a basis for asking the Tennessee Supreme Court to rule whether Weaver was correct in striking down the charter. Jarvis also asked the high court for guidance on how to prop up the county government if justices agree the charter is invalid.

The Knoxville News Sentinel has both stories

Judicial candidates object to survey

Thomas Boyers V, president of the Sumner County Bar Association and independent candidate for criminal court judge in the 18th Judicial District, responded to the Family Action Council's recent judicial questionnaire by saying that the questions have "absolutely nothing to do with the position that I am seeking." But he pledged to abide by the canons and rules of Tennessee, including Canon V as well as the TBA�s Code of Conduct. Mike Carter, another independent candidate for criminal court judge, said the majority of the questions involved issues that he might possibly be required to rule upon and, therefore, declined to respond.