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Thursday, March 08, 2007

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https://www.tba2.org/tennbaru/prepare_032807.html

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.

00 - TN Supreme Court
03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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

SHERWOOD F. DOWD v. CASSENS TRANSPORT COMPANY, ET AL.

Court: TWCA

Attorneys:

Dale A. Tipps, Nashville, Tennessee, for Appellants, Cassens Transport Company and Insurance Company of the State of Pennsylvania

Donald Capparella, Nashville, Tennessee, for Appellee, Sherwood F. Dowd

Judge: HARRIS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. On this appeal, the sole issue presented is whether the trial court erred by failing to cap the recovery of the employee, Sherwood Dowd, at 2.5 times the medical impairment as required by Tennessee Code Annotated section 50-6-241(a)(1). The trial court found Mr. Dowd's retirement, based, in part, upon his fear of re-injury, was reasonably related to his injury and awarded compensation amounting to four times his medical impairment rating. Finding the employer offered employment that Mr. Dowd had the ability to perform and demonstrated a willingness to accommodate his medical restrictions, we find Mr. Dowd's decision to retire on the basis of an apprehension of re-injury was, within the framework of the statute, unreasonable. We reverse.

http://www.tba2.org/tba_files/TSC_WCP/2007/dowds_030807.pdf

JASON KEY v. CNA INSURANCE CO. & TRW COMMERCIAL STEERING DIVISION

Court: TWCA

Attorneys:

Richard Lane Moore, Moore, Rader, Clift & Fitzpatrick, Cookeville, Tennessee, for the Appellants, CNA Insurance Company and TRW Commercial Steering Division

William Joseph Butler, E. Guy Holliman, Farrar, Holliman & Butler, Lafayette, Tennessee, for the Appellee, Jason Key

Judge: BIVINS

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 contends that the trial court erred by (1) finding that the employee suffered any vocational disability; and (2) finding that the employee was entitled to the twenty-five percent (25%) bad faith penalty for certain medical expenses. Finding that the evidence preponderates against the finding of any vocational disability in this case, we reverse the trial court's award of permanent partial disability benefits. Because the employee never asserted a claim for the bad faith penalty prior to the trial in this case, we reverse the award of the bad faith penalty.

http://www.tba2.org/tba_files/TSC_WCP/2007/keyj_030807.pdf

GARY WAYNE ROGERS v. WINCHESTER UTILITIES AND TENNESSEE MUNICIPAL LEAGUE RISK MANAGEMENT POOL, INC.

Court: TWCA

Attorneys:

Clifton N. Miller, Christopher R. Moore, Henry, McCord, Bean, Miller, Gabriel and Carter, Tullahoma, Tennessee, for the Appellee, Gary Wayne Rogers

William N. Bates, J. Russell Farrar, Farrar & Bates, Nashville, Tennessee, for Appellants, Winchester Utilities and TMC Risk Management Pool, Inc.

Judge: BIVINS

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 contends that the trial court erred by (1) not excluding the expert testimony of Dr. Albert Brandon for lack of trustworthiness and for an opinion based upon unreliable principles and methodology; and (2) finding that the employee proved medical causation for the employee's medical condition. We affirm.

http://www.tba2.org/tba_files/TSC_WCP/2007/rogersg_030807.pdf

VICTORIA HINKLE v. THE ESTATE OF JACK LYLE HARTMAN by and through its Personal Representative, Lonas Overholt; BI-LO, L.L.C.; PRUDENTIAL INSURANCE COMPANY OF AMERICA; TYLER HARTMAN; BRAD HARTMAN, a minor, by and through his Guardian Ad Litem, Daphne Cornwell; and HEIDI HARTMAN

Court: TCA

Attorneys:

Melanie E. Davis, Maryville, Tennessee, for appellant

Robert N. Goddard, Maryville, Tennessee, for appellee, Heidi Hartman

Judge: FRANKS

At the time the deceased and plaintiff divorced, the deceased agreed to maintain the plaintiff as beneficiary of his life insurance policy with his employer. He subsequently left the employer, but returned to the employer and was issued another policy of life insurance on being re-employed, but made his then wife and his two children beneficiaries of that policy. Upon his death, plaintiff sued to enforce the terms of the Marital Dissolution Agreement, but the Trial Court refused and dismissed plaintiff's action. On appeal, we hold that plaintiff is entitled to benefits under the second policy to the extent of the benefits agreed to under the terms of the first policy.

http://www.tba2.org/tba_files/TCA/2007/hinklev_030807.pdf

FRANK SHIPP v. DITCH WITCH EQUIPMENT OF TENNESSEE, INC.

Court: TCA

Attorneys:

Frank Shipp, appellant, pro se

Aaron S. Guin, Nashville, Tennessee, for the appellee, Ditch Witch Equipment of Tennessee, Inc.

Judge: KIRBY

This is a breach of contract case. The defendant equipment company sells and leases underground construction equipment. The plaintiff worked for the defendant company as an outside salesman with a sales territory. The plaintiff salesman operated under a verbal employment agreement and was paid a minimum weekly salary plus commissions. During his employment, the plaintiff actively marketed equipment to a customer in his sales territory, and the customer ultimately signed a lease for several pieces of equipment. Soon after the lease was executed, the plaintiff quit working for the defendant. Subsequently, he sought his commissions due on the lease. The defendant equipment company refused to pay the commissions, claiming that the plaintiff salesman was not due any commissions on the lease because he quit work before the customer made any payments on the lease. The plaintiff filed the instant lawsuit for the commissions. After a bench trial, the trial court held that the plaintiff was entitled to commissions on the lease, but only with respect to one of the pieces of leased equipment. The plaintiff now appeals, arguing that he is entitled to commissions on two other pieces of equipment. We reverse, finding that the evidence preponderates in favor of a finding that the plaintiff was entitled to commissions for all three pieces of equipment.

http://www.tba2.org/tba_files/TCA/2007/shippf_030807.pdf

MARY KAY THOMPSON v. CLAYTON THOMPSON, JR.

Court: TCA

Attorneys:

Lori Thomas Reid, Phillip R. Newman, Franklin, Tennessee, for the appellant, Clayton Thompson, Jr.

Kenneth J. Sanney, Franklin, Tennessee, for the appellee, Mary Kay Thompson

Judge: CAIN

This is a post-divorce proceeding wherein Appellee sought to enforce the provisions of a marital dissolution agreement and Appellant sought to modify alimony and child support provisions because of an alleged change of circumstances. The trial court ruled that Appellant was intentionally underemployed and attributed income that was comparable to his income at the time of divorce. Finding that the evidence in the record does not support a finding of willful underemployment, we vacate the judgment of the trial court and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/thompsonm_030807.pdf

CURTIS R. THRAPP v. MARY ELIZABETH THRAPP (SCHOEDEL)

Court: TCA

Attorneys:

Elizabeth K.B. Meadows, and Mandy M. Hancock, Knoxville, Tennessee, for appellant

Hilary Williams Burgin and Charles A. Carpenter, Maryville, Tennessee, for appellee

Judge: FRANKS

The parties were divorced in Oregon where the Court ordered the custodial arrangement for the only child of the marriage. The Mother then moved to Colorado, where she filed suit in Colorado in the custody dispute. She then moved to Tennessee, where the Father sued her over the ongoing dispute. The Colorado Court ultimately declined jurisdiction and the Tennessee Court ordered a change of the custody. The mother has appealed. We affirm the change of custody.

http://www.tba2.org/tba_files/TCA/2007/thrappc_030807.pdf

STATE OF TENNESSEE v. BARTON LANE FOWLER

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender; Patrick R. McGill, Assistant District Public Defender, for the appellant, Barton Lee Fowler

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; C. Phillip Bivens, District Attorney General; Lance E. Webb, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: THOMAS

The defendant, Barton Lane Fowler, pleaded guilty to violation of the Motor Vehicle Habitual Offenders Act and was sentenced to two years in prison. On appeal, the defendant argues that the trial court erred in refusing to impose an alternative sentence. We conclude that the trial court acted properly in sentencing the defendant to prison and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/fowlerb_030807.pdf

EDWARD JOHNSON v. MARK LUTTRELL, SHERIFF and STATE OF TENNESSEE

Court: TCCA

Attorneys:

Edward Johnson, Memphis, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William Gibbons, District Attorney General; Paul Hagerman, Assistant District Attorney General, for appellee, State of Tennessee

Judge: THOMAS

The petitioner, Edward Johnson, appeals the Shelby County Criminal Court's denial of his petition for writ of habeas corpus that he filed while incarcerated awaiting trial for two counts of aggravated assault. Following our review, we affirm.

http://www.tba2.org/tba_files/TCCA/2007/johnsone_030807.pdf

WENDELL DANIEL WASHINGTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Wendell Daniel Washington

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; James G. Woodall, District Attorney General; and Alfred Earls, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The petitioner, Wendell Daniel Washington, pled guilty in the Madison County Circuit Court to nine counts of child rape and one count of especially aggravated kidnapping and, pursuant to the plea agreement, received an effective forty-five-year sentence to be served at one hundred percent. In this appeal, he contends that he received the ineffective assistance of counsel and that he did not knowingly, intelligently, and voluntarily plead guilty. Upon review of the record and the parties' briefs, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2007/washingtonw_030807.pdf

TODAY'S NEWS

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TBA Member Services

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ABA president testifies against DOJ policies

Testifying before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, ABA President Karen Mathis today called for changes in Department of Justice (DOJ) policy for dealing with corporate targets of federal criminal investigations. She said DOJ procedures are "inconsistent with the fundamental legal principle that all prospective defendants ... are presumed to be innocent."