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Friday, January 19, 2007

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Kurita gets No. 2 post; Beavers to head Judiciary

Newly elected Senate Speaker Ron Ramsey broke with the tradition of naming a lawyer to lead the Judiciary Committee today, instead naming Sen. Mae Beavers, R-Mt. Juliet, to the post. Ramsey also appointed Sen. Rosalind Kurita, D-Clarksville, as the Senate speaker pro tempore, but said the appointment was not the result of a prearranged deal for her vote in the speaker's election. Learn about Ramsey's other appointments in this story from the Tennessean:

http://www.tennessean.com/apps/pbcs.dll/article?AID=/20070119/NEWS0201/70119048

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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TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

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

STEVEN QUINCY MANCHESTER v. BRIDGESTONE FIRESTONE, INC., ET AL.

Court: TWCA

Attorneys:

B. Timothy Pirtle, McMinnville, Tennessee, for the Appellants, Bridgestone Firestone, Inc. and Insurance Company of the State of Pennsylvania.

Barry H. Medley and Frank D. Farrar, McMinnville, Tennessee, for the Appellee, Steven Q. Manchester.

Judge: HARRIS

This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court awarded the employee, Steven Quincy Manchester (Manchester), an eighteen percent permanent partial disability award based upon a twelve percent impairment rating. The trial court also determined the employer, Bridgestone Firestone, Inc. (Bridgestone) was not entitled to a credit for a portion of the temporary total benefits it paid to the employee. Bridgestone has appealed, contending the trial court erred in that the impairment rating was not supported by the medical evidence and in not allowing the credit it claimed. We modify the trial court's judgment by reducing the impairment rating to ten percent to conform to the evidence presented, and remand the case to the trial court for determination of permanent partial disability. We affirm the trial court's judgment disallowing a set off for the temporary total benefits paid by Bridgestone.

http://www.tba2.org/tba_files/TSC_WCP/2007/manchesters_011907.pdf

LONA SWINDLE v. UNIPRES U.S.A. and TENNESSEE DEPARTMENT OF LABOR AS CUSTODIAN FOR THE SECOND INJURY FUND OF THE STATE OF TENNESSEE

Court: TWCA

Attorneys:

M. Clark Spoden, Julie A. Schreiner-Oldham, Brian Neal, Frost Brown Todd, LLC, Nashville, Tennessee, for Appellant, Unipres, U.S.A., Inc. Paul G. Summers, Attorney General, Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for Appellant Second Injury Fund.

William Joseph Butler, E. Guy Holliman, Farrar, Holliman & Butler, Lafayette, Tennessee, for Appellee, Lona Swindle.

Judge: PEOPLES

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer asserts that the trial court erred in finding the employee�s back injury compensable, in finding the employee to be permanently and totally disabled, and in apportioning the permanent total disability award between the employer and the Second Injury Fund. The Second Injury Fund also asserts the trial court erred in finding employee to be permanently and totally disabled and in calculating the award. The employee asserts the trial court erred in allocating a setoff for disability insurance payments. We reverse in part and modify in part.

http://www.tba2.org/tba_files/TSC_WCP/2007/swindlel_011907.pdf

CARGO MASTER, INC. v. ACE USA INSURANCE COMPANY, STEVEN W. HINES, D/B/A S & A TRUCKING, AND S & A TRANSPORTATION, INC. D/B/A S & A TRUCKING

Court: TCA

Attorneys:

Christopher L. Nearn, Germantown, Tennessee, for Plaintiff/Appellant Cargo Master, Inc.

John D. Richardson, Memphis, Tennessee, and Wayne D. Taylor and Ruth M. Pawlak, Atlanta, Georgia, for Defendant/Appellee Ace USA Insurance Company.

Judge: KIRBY

This is an insurance case. The plaintiff cargo company entered into a carrier agreement with an independent trucking company to transport freight, in which the trucking company agreed to indemnify the plaintiff for any loss or damage to the freight transported. The trucking company obtained a motor truck cargo liability insurance policy, which insured property while in due course of transit. In the process of transporting a shipment of tires for the plaintiff, the driver for the trucking company parked the trailer portion of the tractor-trailer behind a shopping center and left it overnight. During the night, the cargo was stolen. The trucking company submitted a claim against its cargo insurance policy and the claim was denied. The plaintiff sued the trucking company and the cargo insurance company for breach of contract, seeking to recover the value of the stolen cargo. The plaintiff filed a motion for summary judgment against the defendant cargo insurance company and, in response, the defendant insurance company filed a cross-motion for summary judgment. The trial court granted summary judgment in favor of the cargo insurance company, finding that the shipment of tires was not "in transit" when it was stolen and that, consequently, there was no coverage under the policy. The plaintiff cargo company appeals. We reverse in part, affirm in part, and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/cargomaster_011907.pdf

DALE ANTHONY SCOTT, ET AL. v. MARION YARBRO, ET AL.

Court: TCA

Attorneys:

J. Michael Ivey, Parsons, Tennessee, for Plaintiffs/Appellants Dale Anthony Scott, et al.

Lloyd R. Tatum, Henderson, Tennessee, for Defendants/Appellees Marion Yarbro, et al. Tommy E. Doyle, Linden, Tennessee, for Defendant/Appellee Henry Yarbro.

Judge: KIRBY

This is the second appeal of a property case involving the ownership of three parcels of real property held by tenants-in-common. We dismissed the first appeal for lack of jurisdiction, finding that the trial court's order did not constitute a final judgment. On remand, the trial court entered a supplemental decree. After reviewing the record and the supplemental decree, we find that there is still not a final appealable judgment. We must, therefore, dismiss this second appeal for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2007/scottda_011907.pdf

WATSON'S CARPET AND FLOOR COVERING, INC. v. RICK WATSON'S CARPET AND FLOOR COVERING, INC. v. RICK McCORMICK, ET AL.

Court: TCA

Attorneys:

Alan Mark Turk, Brentwood, Tennessee, for the appellants, Rick McCormick and Carpet Den, Inc.; R Carl Cannon, William A. Blue, Jr., Kaz Kikkawa, Nashville, Tennessee, for the appellant, Mohawk Industries, Inc.

R. Scott Jackson, Jr., Nashville, Tennessee, for the appellee, Watson's Carpet and Floor Coverings, Inc.

This case involves questions of liability under the recently-recognized tort of intentional interference with existing or prospective business relationships. Because a necessary element of that tort is "improper motive" or "improper means," and because refusal to deal is not improper but is, instead, privileged, we reverse the judgment against the supplier. The judgments against both the supplier and the competitor for conspiracy based on the privileged conduct is also reversed. We affirm the judgment against the competitor for intentional interference with business relationships.

http://www.tba2.org/tba_files/TCA/2007/watsonsc_011907.pdf

STATE OF TENNESSEE v. ANTHONY DEWAYNE COTTON

Court: TCCA

Attorneys:

Kari I. Weber, Somerville, Tennessee, for the Appellant, Anthony Dewayne Cotton.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; Tracey Brewer-Walker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Anthony Dewayne Cotton, pled guilty to possession of a schedule II controlled substance with intent to deliver .5 grams or more, unlawful possession of a weapon by a convicted felon, and possession of drug paraphernalia. Pursuant to Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the trial court erred when it denied his motion to suppress. Finding no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/cottona_011907.pdf

VIVIAN EARL McDANIEL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Vivian Earl McDaniel, Leavenworth, Kansas, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Vivian Earl McDaniel, filed a pro se petition for a writ of habeas corpus. The habeas court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that the convicting court lacked jurisdiction over him because he was improperly shuttled between state and federal custody in violation of the Interstate Agreement on Detainers. Finding no reversible error, we affirm the judgment of the habeas court.

http://www.tba2.org/tba_files/TCCA/2007/mcdaniele_011907.pdf

RICKY DALE MCDONALD v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Ricky Dale McDonald, Tiptonville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Rachel E. Willis, Assistant State Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Ricky Dale McDonald, appeals the denial of his petition for writ of habeas corpus relief. He argues that he is currently held on an expired sentence that should be shortened due to post-conviction relief he was awarded in 1989. After careful review, we conclude that the petitioner is not presently held on an expired sentence and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mcdonaldrd_011907.pdf

STATE OF TENNESSEE v. TIMOTHY JOSEPH SIMPSON

Court: TCCA

Attorneys:

A. Wayne Carter, Assistant Public Defender, Cleveland, Tennessee, for the appellant, Timothy Joseph Simpson.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Kristie Luffman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Timothy Joseph Simpson, was convicted by a Bradley County jury of aggravated sexual battery, a Class B felony. He was sentenced to nine years in the Tennessee Department of Correction. On appeal, he argues that the trial court was in error for: (1) failing to compel the state to provide him with the victim's videotaped statement to the Children's Advocacy Center; (2) allowing Dr. Devane to testify concerning the medical history reported by the victim; (3) failing to instruct the jury on certain lesser-included offenses; and (4) sentencing him to a term of nine years. Upon our review of the record and the parties' briefs, we affirm the judgment of trial court.

http://www.tba2.org/tba_files/TCCA/2007/simpsont_011907.pdf

RONALD E. WALKER v. RICKY BELL, Warden

Court: TCCA

Attorneys:

Ronald E. Walker, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William L. Gibbons, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Ronald E. Walker, filed a pro se petition for a writ of habeas corpus. The habeas corpus court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that he received an illegal sentence that was used to enhance the sentence that he is presently serving. He also asserts that the sentence that he is presently serving is void on its face. Finding no reversible error, we affirm the judgment of the habeas court.

http://www.tba2.org/tba_files/TCCA/2007/walkerre_011907.pdf

Effect of County Powers Relief Act on County's Authority to Increase Development Tax

TN Attorney General Opinions

Date: 2007-01-17

Opinion Number: 07-06

http://www.tba2.org/tba_files/AG/2007/ag_07-06.pdf

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Legal News

Ragsdale plan a starting point for Knox commissioners

Knox County commissioners should use County Mayor Mike Ragsdale's plan as a starting place to replace term-limited office holders, the Knoxville News Sentinel says in an editorial.

Read the full piece

Legislative News

Haynes remains chair of Senate Democrats

State Sen. Joe Haynes, D-Nashville, has retained the chairmanship of the Senate Democratic Caucus, surviving an effort to unseat him, the Nashville Post reports. Speculation had centered on state Sen. Roy Herron, D-Dresden, as a likely replacement for Haynes, who had recently tried to push state Sen. John Wilder, D-Somerville, out as lieutenant governor.

Politics

Memphis lawyer to challenge Herenton for mayor

Memphis attorney and former legislator Carol Chumney is preparing to formally announce that she is challenging Willie Herenton in the race for city mayor, the Memphis Daily News reports.