Legal leaders gather to honor colleagues

Leaders from the Tennessee legal community are in Nashville this weekend for the annual TBA Leadership Conference. Along with educational programs on topics facing the profession, there will also be meetings of local bar association leaders, access to justice practitioners and the TBA House of Delegates and Board of Governors. The highlight of the weekend will be the annual Public Service Luncheon at the Tennessee State Capitol, during which law student Peggy Smith, attorney Russ Overby of the Legal Aid Society of Middle Tennessee and the Cumberlands, and attorney Ross Booher of Bass, Berry and Sims will be honored for their extraordinary pro bono and public service work.
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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

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

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. 2) 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.

STATE OF TENNESSEE v. SUSAN MARIE GILLIAM CAMPBELL

Court: TSC

Attorneys:

Greg W. Eichelman, Public Defender, for the appellant, Susan Marie Gilliam Campbell.

Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Douglas Godbee, Amber DePriest, and Virgil Everhart, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

We granted review to determine whether the Court of Criminal Appeals correctly determined that the evidence at trial was sufficient to support dual convictions of criminally negligent homicide and facilitating escape. Because the defendant, who was charged with the care of the five-year-old victim, took him swimming at a lake without notifying his parents, drank beer and used marijuana, and dared the victim into the water and then failed to supervise his activities, the evidence was sufficient to support the conviction of criminally negligent homicide. Because the defendant, after discovering the disappearance of the victim, discouraged immediate contact with the authorities so that her son, a fugitive from justice, could avoid the police, the evidence was also sufficient to support the conviction of facilitating escape. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TSC/2008/campbells_011808.pdf


RANDY L. MAY v. HOWARD W. CARLTON, WARDEN

Court: TSC

Attorneys:

Todd A. Shelton, Greeneville, Tennessee, for the appellant, Randy L. May.

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

Judge: WADE

Incident to a conviction for first degree murder, the petitioner was declared infamous, a status which involves the loss of rights of citizenship, including the right to vote. At the time of the offense, homicide was not listed as an infamous crime under the statute. We granted permission to appeal to determine whether the judgment could be corrected through the writ of habeas corpus. Because the illegal disenfranchisement of the petitioner qualifies as a "restraint on liberty," a threshold requirement under our statute, we grant limited habeas corpus relief but uphold the underlying conviction and the term of incarceration. The opinion of the Court of Criminal Appeals is reversed, and the cause is remanded to the trial court for modification of the judgment.

http://www.tba2.org/tba_files/TSC/2008/carltonh_011808.pdf

KOCH dissenting
http://www.tba2.org/tba_files/TSC/2008/carltonh_DIS_011808.pdf


AEROSTRUCTURES CORPORATION and ZURICH AMERICAN INSURANCE COMPANY v. DAVID RADER

Court: TWCA

Attorneys:

Mary Leech, Nashville, Tennessee for the appellant, David Rader.

Aaron S. Guin and Stephen W. Elliott, Nashville, Tennessee for the appellees, Aerostructures Corporation and Zurich American Insurance Company.

Judge: HARRIS

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 a hearing and a report of findings of fact and conclusions of law. The employee, David Rader, sustained a permanent hearing loss, which he alleged was caused by his work. The only doctor to testify completed a C-32 which stated that the hearing loss was more probably than not related to Mr. Rader's work, but had no specific knowledge of noise levels at Mr. Raders workplace other than Mr. Raderís subjective statements. The trial court ruled that Mr. Rader failed to sustain his burden of proof, and entered judgment for the employer, Aerostructures Corporation. Mr. Rader has appealed. We reverse the judgment of the trial court, and award 15% permanent partial disability to his binaural hearing.

http://www.tba2.org/tba_files/TSC_WCP/2008/aerostructures-rader_011808.pdf


AEROSTRUCTURES CORPORATION v. HARRY P. YORK

Court: TWCA

Attorneys:

D. Russell Thomas, Murfreesboro, Tennessee, for the appellant, Harry P. York.

Aaron S. Guin, Nashville, Tennessee, for the appellee, Aerostructures Corporation.

Judge: HARRIS

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. On appeal, the employee, Harry P. York, contends that the trial court erred in holding that he had a 13%, rather than a 30%, impairment rating to the body as a whole. Because the evidence does not preponderate against this finding, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2008/aerostructures-york_011808.pdf


WILLIAM RAINEY v. TENNSCO CORP.

Court: TWCA

Attorneys:

Gordon C. Aulgur and D. Brett Burrow, Nashville, Tennessee, for the appellant, Tennsco Corporation.

Nathan T. Brown, Dickson, Tennessee, for the appellee, William Rainey.

Judge: HARRIS

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 a hearing and a report of findings of fact and conclusions of law. The employee, William Rainey, reported a gradual injury to his arms in August 2000. He received medical treatment for arm and neck symptoms through workers' compensation and returned to work. Mr. Rainey alleged that he sustained a second injury, to his neck, in May 2002. Tennsco denied that a new injury was reported. Mr. Rainey was examined by two doctors through workers' compensation. Neither doctor considered him to be a surgical candidate. Mr. Rainey sought additional treatment on his own. Eventually, surgery was performed on his cervical spine. At trial, the employer, Tennsco Corporation (Tennsco) denied that Mr. Rainey had sustained a permanent disability as a result of his work injury. The trial court awarded 50% permanent partial disability to the body as a whole. Tennsco has appealed, contending that the evidence preponderates against the award. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2008/raineyw_011808.pdf


ROGER BALL and CARROL E. ROSE, LLC., v. BRUCE MCDOWELL, Individually and as Next Friend for D.B., C.B., B.B., Children under the age of Eighteen (18) years, PENNY CAYLOR, GARY ESTES, BRYAN KEITH BROCK, WARREN YONTS and PAULINE YONTS and JAMES D. YONTS

Court: TCA

Attorneys:

Harold G. Jeffers, and Jim Terry, Oneida, Tennessee, for appellants, Penny Caylor, Brian Keith Brock and James D. Yonts.

Robert M. Estep, Tazewell, Tennessee, for appellees, Roger Ball and Carrol E. Rose, LLC.

Judge: FRANKS

In this action, plaintiffs ask the Court to declare their easement across defendants' lands be cleared of all encroachments and that defendants be barred from interfering with their use. The Trial Court ruled for plaintiffs. Defendants appeal on the grounds they proved adverse possession of the easement for more than seven years, and plaintiffs are barred from interfering with their use by Tenn. Code Ann. section 28-2-103. We reverse the Trial Court's Judgment.

http://www.tba2.org/tba_files/TCA/2008/ballr_011808.pdf


STATE EX REL. JOHN W. CARNEY, JR. v. DANNY J. CROSBY

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and William R. Lundy, Jr., Assistant Attorney General, for the appellant, State of Tennessee.

W. Timothy Harvey and Steven J. Christopher, Clarksville, Tennessee, for the appellee, Danny J. Crosby.

John B. Holt, Springfield, Tennessee, for the Amicus Curiae, City of Coopertown.

Judge: CLEMENT

The plaintiff appeals the decision of the trial court to not issue a writ of ouster against the mayor of Coopertown. The issue on appeal is whether the trial court correctly concluded that the plaintiff had failed to prove by clear and convincing evidence that the mayor knowingly or willfully committed misconduct that would constitute grounds for removal from office under the ouster statute. The mayor also raises the issue on appeal of whether the trial court erred in denying the mayor's request for attorney fees. We affirm.

http://www.tba2.org/tba_files/TCA/2008/carneyj_011808.pdf


PAIGE TOWNSON LYLES v. JOSHUA PAUL LYLES

Court: TCA

Attorneys:

David C. Lee, Knoxville, Tennessee, for appellant.

Gary Fox, Lenoir City, Tennessee, for appellee.

Judge: FRANKS

The Trial Judge awarded primary residential custody of the parties' child, d.o.b. 2/14/05, to the father. The mother appealed the award of custody. We affirm the Trial Court's Judgment.

http://www.tba2.org/tba_files/TCA/2008/lylesp_011808.pdf


MEYER LAMINATES (SE), INC. v. PRIMAVERA DISTRIBUTING, INC.

Court: TCA

Attorneys:

Elisabeth B. Donnovin, Chattanooga, Tennessee, for the Appellant, Primavera Distributing, Inc.

Cynthia D. Hall, Chattanooga, Tennessee, for the Appellee, Meyer Laminates (SE), Inc.

Judge: LEE

The plaintiff brought this action for the unpaid purchase price of goods sold and delivered to the defendant. The defendant failed to timely respond to plaintiff's discovery requests, including a request for admission, and failed to comply with the trial court's order compelling its discovery response. The trial court held that the matters plaintiff sought to have admitted in its discovery request were conclusively admitted pursuant to Tenn. R. Civ. P. 36 and further deemed the matters established as a sanction for failure to comply with its order under Tenn. R. Civ. P. 37. We find no abuse of discretion in the trial court's judgment sanctioning defendant under Rule 37 and consequently affirm the trial court's grant of summary judgment in plaintiff's favor.

http://www.tba2.org/tba_files/TCA/2008/meyerlaminates_011808.pdf


KATHERINE DELORIESE OLINGER, ET AL. v. UNIVERSITY MEDICAL CENTER, ET AL.

Court: TCA

Attorneys:

David R. Smith and Edmund J. Schmidt, III, Nashville, Tennessee, for the Appellants, Katherine Deloriese Olinger and Perry Michael Hale, individually and as next friends of Michael Eugene Hale, a minor.

John F. Floyd and Mandy Langford, Nashville, Tennessee, for the Appellee, StarMed Health Personnel, Inc.

C. Bennett Harrison, Jr., and Brian W. Holmes, Nashville, Tennessee, for the Appellee, Charles B. Lanning, Jr., M.D.

Mark T. Smith and Andree Sophia Blumstein, Nashville, Tennessee, for the Appellee, National Medical Hospital of Wilson County, Inc., d/b/a University Medical Center.

Judge: SWINEY

This medical malpractice action was filed by Katherine Deloriese Olinger and Perry Michael Hale ("Plaintiffs") after their son was born with brachial plexus palsy. Plaintiffs claim the injury occurred because the defendants failed to take the proper medical steps to resolve a delivery complication known as shoulder dystocia. Following a trial, the jury returned a verdict in favor of all of the defendants. Plaintiffs appeal claiming the Trial Court erred when it gave a jury instruction on the sudden emergency doctrine, and further erred by refusing to permit cross-examination of a witness by the use of medical literature which Plaintiffs maintain had been established as a reliable authority pursuant to Tenn. R. Evid. 618. We affirm.

http://www.tba2.org/tba_files/TCA/2008/olingerk_011808.pdf


IN THE MATTER OF S. T. T.

Court: TCA

Attorneys:

J. Hilton Conger, Smithville, Tennessee, for the appellant, R. M. S.

Robert E. Cooper, Jr., Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Judge: CLEMENT

Father appeals the termination of his parental rights to his biological child, S. T. T. The trial court terminated Father's parental rights on the grounds of abandonment by willfully failing to support, substantial non-compliance with permanency plan, and failure to establish parentage. The trial court also found that the termination of Father's parental rights was in the childís best interest. We affirm the trial court's termination of parental rights based upon Father's abandonment by willfully failing to support and the fact that termination of his parental rights is in the child's best interest.

http://www.tba2.org/tba_files/TCA/2008/stt_011808.pdf


JAN MARIE VAUGHN v. WILLIAM DANIEL VAUGHN

Court: TCA

Attorneys:

William D. Vaughn, Pro Se.

Lanis Karnes of Jackson, Tennessee for Appellee, Jan Marie Vaughn.

Judge: CRAWFORD

In this divorce case filed by the Appellee/Mother, she was granted a divorce on the grounds of inappropriate marital conduct. The trial court divided the marital property and ordered the Appellant/Father to pay alimony in futuro and child support for the parties' two minor children, the oldest of whom is severely disabled. The trial court ordered the Father to acquire the equipment necessary to take care of the child while visiting in his home and to begin intensive training in the use of equipment. Both parties were to maintain term life insurance in the face amount of $250,000. Additionally, the trial court awarded Mother attorneys' fees in the amount of $15,000.00 and ordered Father to pay child support arrearages in the amount of $4,756.00. Father appeals the decision of the trial court regarding the award of alimony, the upward deviation of child support, the award of attorneys' fees, and the award of support arrearages. We reverse in part, affirm in part and remand.

http://www.tba2.org/tba_files/TCA/2008/vaughnj_011808.pdf


STATE OF TENNESSEE v. MELISHA MOORE

Court: TCCA

Attorneys:

Nancy Meyer, Assistant District Public Defender, Clinton, Tennessee, for the appellant, Melisha Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; David Clark, District Attorney General; and Sandra Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

In February 2006, the Defendant, Melisha Moore, was arrested for simple possession of a Schedule IV controlled substance. As a condition of her release on bond, she agreed to random drug testing. In May 2006, she appeared in court and, after informing the court that she could pass a drug test, the general sessions court ordered her to submit to testing. She tested positive for marijuana. Thereafter, the general sessions court found that she had violated the conditions of her bond and ordered her to serve ten days in jail. She now appeals to this Court, arguing that random drug testing was an improper bond condition and that the general sessions court erred by ordering her to serve jail time. After a review of the scant record, we conclude that the Defendant's appeal concerning the propriety of random drug testing as a bond condition is not properly before this Court. However, because the general sessions court exceeded its authority by imposing a ten-day jail sentence and violated the Defendant's due process rights, we must grant the Defendant a writ of certiorari and reverse and vacate the order sentencing her to ten days in jail.

http://www.tba2.org/tba_files/TCCA/2008/moorem_011808.pdf


TODAY'S NEWS

Legal News
Politics
Upcoming
TBA Member Services

Legal News
Sweeney first to apply for Kurtz seat
Nashville attorney Matthew Sweeney has applied for the 20th Judicial Chancery Court vacancy, the only application so far according to the Administrative Office of the Courts. The vacancy is created with the retirement of Judge Walter C. Kurtz. Information on the application, which is due Feb. 13, can be found on the
AOC web site
Petition started to keep Shelby posts elected
The Shelby County Election Commission has approved the wording of a new petition drive to keep the job of sheriff and four other countywide positions elected posts. A 2007 decision by the Tennessee Supreme Court leaves open the possibility that certain county offices could be converted to appointed positions or abolished in Shelby County. The ruling is unique to the home rule county charters adopted by Shelby County as well as Knox County.
The Memphis Daily News reports
Sweat charges to be reinstated
A special Criminal Court judge has reinstated the criminal record of a Putnam County woman whose expungement of charges was central to one of the complaints filed against suspended District Attorney General William (Bill) Gibson. Donald P. Harris was appointed by the Tennessee Supreme Court to hear the state attorney general's motion that the convictions against Tina Marie Sweat be reinstated. He heard arguments during a hearing in Cookeville in December and released his ruling last week.
The Crossville Chronicle has the story
Cumberland County approves money for new justice center
Cumberland County will expand its jail and justice center after the finance committee accepted the low bid on the project last week. Construction is set to begin Feb. 1. The design will blend historic architecture with new by including the old Cumberland High School in the project.
The Crossville Chronicle has more
VU Law names new registrar
Vanderbilt Law School has named Donna L. Pavlick as its new director of academic programs and registrar.
Learn more about Pavlick
High court will hear 'whistleblower' case
The Supreme Court decided today that it would hear arguments in the case of a woman who is suing the Nashville metro government for firing her after she blew the whistle on sexual harassment in her workplace. The central issue in the case is whether federal civil rights laws that protect whistleblowers also protect workers who cooperate with an employer's internal sexual harassment investigations.
The Tennessean has the story
Exhumation of former Knox DA's body still in question
Criminal Court Judge Richard Baumgartner said today he needed more information before deciding whether or not the body of former Knox County District Attorney General Ed Dossett should be exhumed. His 1992 death was ruled an agricultural accident at the time but new questions have arisen since his wife is now on trial, charged with premeditated first-degree murder in the death of her second husband, a popular West Knoxville barber who was shot to death at home in March 2003.
The News Sentinel has the story
Politics
Mayor will challenge 1st district rep
Johnson City Mayor Phil Roe will take on first district U.S. Rep. David Davis in the upcoming Republican primary, the Kingsport Times News reports. Roe finished fourth in the 2006 GOP congressional primary won by Davis.

Upcoming
Dinkins investiture set
The investiture ceremony for newly appointed Tennessee Court of Appeals Judge Richard Dinkins will be held at 1:30 on Jan. 30, in the old Supreme Court chambers in the state Capitol.

TBA closed for MLK holiday
The Tennessee Bar Association offices will be closed on Monday, Jan. 21, in observance of the Martin Luther King Jr. holiday.

Discussion of genocide case coming to Vanderbilt
The judges who presided over the Anfal genocide proceedings, including the president of the Iraqi High Tribunal and the presiding judge of Trial Chamber II, are coming to Vanderbilt Law School Jan. 31 to participate in a panel discussion, which will provide analysis of the case. Many survivors of the Anfal live in the Nashville area.
Read more about the event
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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