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Wednesday, January 30, 2008

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Dinkins takes oath for Court of Appeals post

Judge Richard Dinkins was sworn in to the Tennessee Court of Appeals Middle Section during ceremonies today at the Tennessee State Capitol. Gov. Phil Bredeson administered the oath. In comments before the swearing in, Presiding Judge Hershel Franks noted that in the 83-year history of the Court of Appeals, no African American has served on that bench until Dinkins' appointment. In his comments, Dinkins joked that going through the Judicial Selection process makes sure that all of the candidates are "qualified, refried and bona fide." See a photo from the event on TBALink.

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.

00 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
02 - TN Court of Criminal Appeals
03 - 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.

BARBARA MITCHELL vs. MILAN SEATING SYSTEMS, assumed name for INTIER AUTOMOTIVE SEATING OF AMERICA, INC. ET AL.

Court: TWCA

Attorneys:

P. Allen Phillips, Jackson, Tennessee, for the Appellant, Milan Seating Systems, assumed name for Intier Automotive Seating of America, Inc.

Jay E. DeGroot, Jackson, Tennessee, for the Appellee, Barbara Mitchell.

Judge: HOLDER

In this case, the employer appeals the judgment of the trial court, which awarded a twelve percent permanent partial disability to the employee's left arm and found that the employee provided timely notice of her injury pursuant to Tennessee Code Annotated section 50-6-201(b)(1). At trial, the employee contended that she sustained a gradually occurring injury from her work with the employer over a fifteen-year period, causing ulnar nerve neuropathy in her left elbow. The employer argues on appeal that the employee failed to carry her burden of proof as to causation and did not provide timely notice of the injury to the employer. After careful consideration of the record in this case, we hold affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2008/mitchellb_013008.pdf

CORLEW dissenting
http://www.tba2.org/tba_files/TSC_WCP/2008/mitchellb_DIS_013008.pdf

DISCOVER BANK v. VIENCE McCULLOUGH ET AL.

Court: TCA

Attorneys:

John M. Richardson, Jr. and Steven T. Richardson, Clarksville, Tennessee, for the appellant, Discover Bank.

Dwight G. McQuirter, Spring Hill, Tennessee, for the appellees, Vience McCullough and Sharon McCullough.

Judge: KOCH

This appeal involves a dispute between the holders and the issuer of a bank card regarding an $8,549.01 unpaid balance. This straightforward collection case has been complicated by the cardholders' decision to represent themselves and by the inattentiveness of the issuer's lawyer. The issuer of the card filed suit in the Williamson County General Sessions Court seeking to recover the unpaid balance. The cardholders, representing themselves, mailed a response to the general sessions court but failed to appear at the hearing specified in the summons. Accordingly, on July 11, 2005, the general sessions court entered an $8,838.27 default judgment against the cardholders. The cardholders filed many other unintelligible papers in the general sessions court, including a "writ of praecipe." On November 9, 2005, after the general session courts declined to grant them relief, the cardholders filed a notice of appeal to the Circuit Court for Williamson County. The issuer of the bank card filed a motion requesting the circuit court to dismiss the de novo appeal because it was not timely filed. After the issuer's lawyer failed to appear for several hearings, the circuit court vacated the July 11, 2005 default judgment. On this appeal, the issuer of the card asserts that the circuit court lacked subject matter jurisdiction over the cardholders' de novo appeal because the appeal was not perfected within ten days following the entry of the default judgment. The cardholders insist that their de novo appeal was timely because it was filed within ten days after the entry of the general sessions court's order denying the "writ of praecipe." We have determined that the cardholders failed to perfect a timely de novo appeal from the default judgment and, therefore, that the circuit court lacked subject matter jurisdiction over this case. Accordingly, we reverse the circuit court's orders vacating the July 11, 2005 default judgment and remand the case with directions to dismiss the cardholders' de novo appeal.

http://www.tba2.org/tba_files/TCA/2008/discoverbank_013008.pdf

IN RE E.E.S.

Court: TCA

Attorneys:

John W. Routh, Knoxville, Tennessee, for the appellant, V.D.H.

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

Judge: SUSANO

This is a parental rights termination case. The Department of Children's Services ("DCS") filed a petition to terminate the parental rights of V.D.H. ("Mother") as to her son, E.E.S. The juvenile court granted the petition and Mother appealed. We hold that the evidence does not preponderate against the juvenile court's finding, said by that court to have been made by clear and convincing evidence, that termination of Mother's parental rights is in the best interest of the child. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2008/ees_013008.pdf

MARTHA SMITH, ET AL. v. GREG BROOKS, ET AL.

Court: TCA

Attorneys:

J. D. Lee and Travis E. Venable, Knoxville, Tennessee, for the appellants, Martha Smith and Brian D. Smith.

Peggy L. Tolson, Brentwood, Tennessee, for the appellees, Greg Brooks, Tracy McAbee, and Grady Samples.

Judge: SUSANO

In 2005, Martha Smith and her husband, Brian D. Smith, filed suit ("the First Lawsuit") in the trial court against four individuals and the Polk County Board of Education ("PCBE"). Each of the four counts in the complaint includes an allegation that defendants Greg Brooks, Tracy McAbee, and Grady Samples "were acting in their official capacity while engaging in their illegal and tortious activity and . . . these defendants . . . are duly elected members of PCBE." An order of voluntary nonsuit without prejudice was entered in the First Lawsuit as to PCBE and all of the individual defendants except a non-board member, Shane Wooten. In 2006, the plaintiffs again filed suit ("the Second Lawsuit"). The "illegal and tortious activity" alleged in the Second Lawsuit is identical to that alleged in the First Lawsuit. The Second Lawsuit names Brooks, McAbee, and Samples ("the defendants") as the sole defendants. They are sued as individuals and not as members of PCBE. The defendants filed a motion to dismiss -- citing Tenn. R. Civ. P. 12.02(6) -- asserting that the Second Lawsuit had been filed outside the period of the applicable statute of limitations. The trial court agreed and dismissed the Second Lawsuit. The plaintiffs appeal, relying upon Tenn. Code Ann. section 28-1-105(a) (2000), a part of the so-called Tennessee saving statute. We hold that, under the facts of this case, the saving statute is not available to the plaintiffs to preserve their causes of action against the defendants in their individual capacities. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2008/smithm_013008.pdf

IN RE ADOPTION OF W.J.P.

Court: TCA

Attorneys:

Theodore R. Kern, Knoxville, Tennessee, for the appellants, A.L.M. and R.L.M.

Kevin C. Angel, Clinton, Tennessee, for the appellee, M.J.T.

Judge: SUSANO

This is an appeal as of right in a parental rights termination case. We hold that the evidence in the record does not preponderate against the trial court's conclusion that the evidence fails to establish by clear and convincing proof that statutory grounds exist to terminate the father's parental rights or that the child would be exposed to a substantial risk of harm if placed in the father's care. We therefore affirm.

http://www.tba2.org/tba_files/TCA/2008/wjp_013008.pdf

STATE OF TENNESSEE v. ERIC D. CHARLES

Court: TCCA

Attorneys:

Danny R. Ellis, Jackson, Tennessee, for the appellant, Eric D. Charles.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Eric D. Charles, pled guilty in Madison County Circuit Court to aggravated robbery and was sentenced as a Range I, standard offender to ten years in the Department of Correction. The defendant challenges the trial court's application of two enhancement factors; the State concedes that one of the factors was improperly applied. We conclude that the record supports the trial court's application of the second enhancement factor and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/charlese_013008.pdf

STATE OF TENNESSEE v. ABBY RENEE DUGGAN

Court: TCCA

Attorneys:

Tommy K. Hindman, Knoxville, Tennessee, for the Appellant, Abby Renee Duggan.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Abby Renee Duggan, appeals the judgment of the Knox County Criminal Court ordering sentences of confinement. Duggan's effective six-year sentence of confinement stems from her guilty pleas to two counts of robbery and one count of fraudulent use of a credit card. Following a sentencing hearing, the trial court denied all forms of alternative sentencing and ordered confinement in the Department of Correction. Duggan appeals this ruling, arguing that the trial court erred in denying "probation and alternative sentencing." After de novo review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/dugganabby_013008.pdf

Judicial Commissioners Conducting Preliminary Hearings under Tenn. Code Ann. section 40-1-111

TN Attorney General Opinions

Date: 2008-01-30

Opinion Number: 08-12

http://www.tba2.org/tba_files/AG/2008/ag_08_12.pdf

Liquor by the Drink Referendum

TN Attorney General Opinions

Date: 2008-01-30

Opinion Number: 08-13

http://www.tba2.org/tba_files/AG/2008/ag_08_13.pdf

Senate Joint Resolution 127

TN Attorney General Opinions

Date: 2008-01-30

Opinion Number: 08-14

http://www.tba2.org/tba_files/AG/2008/ag_08_14.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News

Tennessee leads nation in bankruptcy filings

Tennessee had the highest number of bankruptcy filings per household of any state last year according to a new report from the National Bankruptcy Research Center. A Vanderbilt University Law School professor says the statistic is nothing new. Why does he think the state frequently tops the list?

Find out in the News Sentinel

Mukasey declines to pass judgment on waterboarding

Appearing before the Senate Judiciary Committee today Attorney General Michael Mukasey declined to say whether waterboarding is illegal, focusing his testimony instead on current interrogation techniques, which he said are lawful and do not include the questionable tactic. Beyond that, it would be irresponsible to say more and possibly reveal details about the classified program, he said.

The New York Times has coverage of the hearing

Report confirms downturn in legal work

Fears of a recession and the subprime mortgage crisis have led to a downturn in corporate legal work and litigation at big law firms, according to a report to be released this week by legal consultancy Hildebrandt and Citi Private Bank. But rather than laying off lawyers en masse, the report found firms were more likely to weed out less productive workers and trim partners.

The Wall Street Journal's law blog has the story

Primary set for Knox County law director

Next Tuesday, Bill Lockett hopes people will remember last year's turmoil over term limits and support his bid to unseat Knox County Law Director John Owings. For his part, Owings believes voters will understand the positions he took were based on the obligations of office.

Read about the candidates in the News Sentinel

Solo attorney offers clients task-based billing

A Memphis business litigation attorney has boldly gone where his peers may never go: scrapping hourly billing and charging clients based on work done. So-called value billing or task-based billing is rare in the practice of business litigation. Read how this attorney is making it work.

The Memphis Business Journal has the story

Monitoring ruling under fire

Knox County Probation and Pretrial Release chief Todd Cook wants three teenagers accused of rape out of his program unless a judge orders the boys to follow the rules and submit to drug testing. The judge who ordered the teens to be fitted with monitoring bracelets did not specifically require them to follow pretrial rules and the boys' attorneys say they don't have to be monitored by staff in order to be enrolled in the electronic monitoring program.