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Thursday, February 22, 2007

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Young lawyers interested in building the skills needed to help business clients will get that information and more at the TennBarU/YLD Skills Enhancement Seminar coming March 14 to Knoxville, Nashville, Memphis and Chattanooga. The class is designed to provide an introduction to the basics of business law, including such topics as choosing the appropriate form of business entity, organizing a business and operating an on-going business. Learn more or register today.

https://www.tba.org/tennbaru/skills_03_14_2007.html

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

PHIL BREDESEN, Governor of the State of Tennessee v. TENNESSEE JUDICIAL SELECTION COMMISSION, ET AL.

This is a corrected opinion.

Court: TSC

Attorneys:

Charles W. Bone and Charles Robert Bone, Nashville, Tennessee; Lyle Reid, Brownsville, Tennessee; and Irma Merrill Stratton and Timothy W. Smith, Memphis, Tennessee, for the appellant, J. Houston Gordon.
John Spaulding Hicks, Nashville, Tennessee, for the appellant, George T. Lewis, III.

Robert E. Cooper, Jr., Attorney General and Reporter, and Janet M. Kleinfelter, Senior Counsel, for the appellee, Governor Phil Bredesen.
Ben H. Cantrell, Nashville, Tennessee, for the appellee, Tennessee Judicial Selection Commission.

Judge: BARKER

This appeal concerns the process for appointing a new justice to become the fifth member of the Tennessee Supreme Court. The issues in this case involve the proper interpretation of sections 17-4-101 to 17-4-118 of the Tennessee Code Annotated ("the Tennessee Plan") and matters of constitutional law. For the reasons stated below, we hold that: (1) the first list of nominees certified to the Governor under the Tennessee Plan was not rendered invalid upon one nominee's subsequent withdrawal from consideration for appointment; (2) an individual listed on a panel of nominees certified to the Governor by the Tennessee Judicial Selection Commission ("the Commission") which has been rejected by the Governor may not be included on the second panel of nominees certified to the Governor under the Tennessee Plan; (3) the Governor's rejection of Lewis and Gordon did not violate the Tennessee Human Rights Act ("THRA") because a nominee or applicant to fill a judicial vacancy is not an "employee" for purposes of the THRA; (4) the equal protection challenge to the Governor's rejection of the first panel is a non-justiciable political question; (5) the equal protection challenge to the Governor's rejection of the first panel is otherwise without merit; (6) the Governor's letter rejecting the first list of nominees did not encroach on the powers assigned to the Commission by the Tennessee Plan; and (7) the trial court erred in its determination of the appropriate remedy.

http://www.tba2.org/tba_files/TSC/2007/bredesenCORR_022207.pdf

SCOTTIE R. BROWN V. INTERNATIONAL COMFORT PRODUCTS CORPORATION (USA) AND TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, WORKERS' COMPENSATION DIVISION, SECOND INJURY FUND

Court: TWCA

Attorneys:

Gene Hallworth, Hallworth & Associates, Columbia, Tennessee, for the Appellant, Scottie R. Brown.

Terry L. Hill, Manier & Herod, P.C., Nashville, Tennessee, for the Appellee, International Comfort Products Corporation (USA), et al.

Paul G. Summers, Attorney General and Reporter, Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Second Injury Fund.

Judge: BIVENS

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 trial court found that the employee was entitled to a permanent partial disability award of eighty-five percent (85%) to the left lower extremity. The employee contends that the trial court erred by (1) finding that the employee was not permanently and totally disabled, and (2) commenting upon the reputation of an expert witness. The parties also raise the issue of the apportionment of liability to the Second Injury Fund if the employee is found to be permanently and totally disabled. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TSC_WCP/2007/browns_022207.pdf

TERRY WAYNE CAGLE v. TDY INDUSTRIES, INC., et al.

Court: TWCA

Attorneys:

Thomas J. Dement, II, Nashville, TN, for the Appellants, TDY Industries, Inc., et al.

Stanley A. Davis, Nashville, TN, for the Appellee, Terry Wayne Cagle.

Judge: DROWOTA

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 to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer, TDY Industries Inc., asserts that the trial court erred in awarding the employee 60% permanent partial disability to the right upper extremity and 40% permanent partial disability to the left upper extremity for injuries he incurred during the course of his employment. We conclude that the evidence presented does not preponderate against the findings of the trial judge, and, in accordance with Tennessee Code Annotated section 50-6-225(e)(2), affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2007/caglet_022207.pdf

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. BARRY CONSTRUCTION COMPANY, INC. ET AL.

Court: TCA

Attorneys:

J. Brooks Fox and John Kennedy, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County.

Christopher W. Cardwell and Mary Beth Hagan, Nashville, Tennessee, for the appellee, Barry Construction Company, Inc.
Shawn R. Henry, Nashville, Tennessee, for the appellee, JCH Development Company, Inc.

Judge: KOCH

This appeal arises from a dispute involving an unfinished public road in a large residential and commercial development in southeast Davidson County. The road was an integral part of the plans used by the developers to induce the city to rezone the property to accommodate the project and to approve the planned unit development overlay. After the developers declined to complete the road, the Metropolitan Government of Nashville and Davidson County filed suit in the Chancery Court for Davidson County seeking to force the developers either to complete the road or to pay damages equal to the cost that city would incur if it completed the road itself. The trial court dismissed the city's complaint after concluding that the city had failed to provide any legal basis for requiring the developers to complete the road. The city appealed. We have determined that the ordinance approving the rezoning of the property to accommodate the development provides sufficient legal basis to require the developers to complete the road.

http://www.tba2.org/tba_files/TCA/2007/barryconstruction_022207.pdf

CAROLYN JEAN GAMBLE and CAROLYN JEAN GAMBLE on behalf of Deceased, GEORGE GAMBLE v. LENETTE PERRA, M.D., BAPTIST HOSPICE, BAPTIST HOSPITAL OF EAST TENNESSEE, PIERCE ALEXANDER, M.D., HILLCREST WEST ON MIDDLEBROOK PIKE, CAROLYN SUE TOWNSEND, R.N., of HOSPICE, JAMES WORDEN, DIRECTOR OF BAPTIST HOSPICE

Court: TCA

Attorneys:

Carolyn Gamble, Knoxville, Tennessee, pro se.

Wynne C. Hall and Joshua R. Walker, Knoxville, Tennessee, for appellee, Lenette Perra, M.D. Gary G. Spangler and Zachariah N. Stansell, Knoxville, Tennessee, for appellees, Baptist Hospital of East Tennessee and Sue Townsend, R.N. Debra A. Thompson, Knoxville, Tennessee, for appellee, Dr. Brian Hughes.

Judge: FRANKS

Plaintiff sued defendants alleging their negligence caused the wrongful death of her husband. The Trial Court granted defendants summary judgment on the grounds that plaintiff's responses did not raise any disputed issues of material fact. We affirm.

http://www.tba2.org/tba_files/TCA/2007/gamblec_022207.pdf

GARNETT LYNN GOFORTH, R. LYNN GOFORTH and wife, SUSAN D. GOFORTH v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Thomas C. Jessee, Johnson City, Tennessee, for appellants.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Heather C. Ross, Nashville, Tennessee, for appellee.

Judge: FRANKS

Plaintiffs, parents and son brought suit against the University for injuries to the son sustained while practicing football, charging the coaches were negligent in allowing practice to continue under dangerous conditions. The Commissioner ruled in favor of the University, except as to the dispute over insurance, and awarded plaintiffs $3,600.00 under the contract of insurance with the University.

http://www.tba2.org/tba_files/TCA/2007/goforthg_022207.pdf

SHARON KAY JACKSON V. RANDALL D. JACKSON

Court: TCA

Attorneys:

Stuart Breakstone and Kathy Baker Tennison, Memphis, Tennessee, for Plaintiff/Appellant Sharon Kay Jackson.

Charles W. McGhee, Memphis, Tennessee, for Defendant/Appellee Randall D. Jackson.

Judge: KIRBY

This is a divorce case. The parties had a long-term marriage and their children are now adults. During the marriage, the husband worked in the telecommunications industry and the wife was primarily a homemaker. The parties' marital estate consisted largely of real property. They had incurred a substantial debt to the Internal Revenue Service. After a three-day hearing, the trial court declared the parties divorced and ordered that the real property be sold to satisfy the debt owed to the IRS. The trial court equally divided the IRS debt and any remaining proceeds from the sale of the properties. The trial court also awarded the wife a lump sum judgment representing temporary support during the pendency of the action, ordered the husband to pay the wife transitional alimony for five years, and denied the wife's request for attorney's fees. The wife now appeals the division of the marital estate, the decision to make the alimony award transitional rather than in futuro, and the denial of her request for attorney's fees. The husband appeals the amount of the alimony award and the judgment for temporary support awarded to the wife. We modify the alimony to award alimony in futuro instead of transitional alimony, and affirm the remainder of the trial court's decision.

http://www.tba2.org/tba_files/TCA/2007/jacksons_022207.pdf

THOMAS WALTER ROWE v. ROBERTA ANN HOSEY ROWE

Court: TCA

Attorneys:

David B. Hamilton and Christopher Rowe, Knoxville, Tennessee, for the Appellant, Thomas Walter Rowe.

J. Elaine Burke, Knoxville, Tennessee, for the Appellee, Roberta Ann Hosey Rowe.

Judge: SWINEY

This appeal involves the Trial Court's pre-trial award of temporary alimony to Wife and the property distribution following trial. Thomas Walter Rowe ("Husband") and Roberta Ann Hosey Rowe ("Wife") were married in 1996, and were divorced a few years later. While the divorce was pending and following a hearing, the Trial Court ordered Husband to pay temporary alimony pending a final decision in the divorce proceedings. Following the trial, the Trial Court first classified the property and then divided the marital property. Husband appeals challenging the award of temporary alimony as well as the property division. We affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2007/rowet_022207.pdf

FREDRICK L. BROWN, JR. v. VIRGINIA LEWIS, WARDEN and STATE OF TENNESSEE

Court: TCCA

Attorneys:

Fredrick L. Brown, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Fredrick L. Brown, Jr., appeals the summary dismissal of his petition for writ of habeas corpus. The Petitioner claims that the concurrent life sentences he is serving for two first degree murder convictions are illegal and void because the second offense was committed while he was out on bail for the first offense and that, under these circumstances, Tennessee law mandates consecutive sentencing. A recent decision of the Tennessee Supreme Court compels our conclusion that summary dismissal was proper. The judgment of the Bledsoe County Circuit Court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/brownf_022207.pdf

TODAY'S NEWS

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Legal News

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The Commercial Appeal has the story

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The Nashville City Paper reports

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WMC-TV Memphis has more

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