Shelby Juvenile Court Judge Turner dies

Retired Memphis-Shelby County Juvenile Court Judge Kenneth Turner died at his home late this afternoon following a long illness. He was 79. His wife, Mary Sue, was at his side, said longtime colleague and current Juvenile Court Judge Curtis Person. After suffering a broken hip and shoulder in a 2005 fall, Turner reluctantly announced the following year that he would be retiring after 42 years of running Juvenile Court. He was 77 at that time and was the longest-serving active officer holder in Shelby County. Read more about Judge Turner in the Commercial Appeal.
TODAY'S OPINIONS
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AEROSTRUCTURES CORPORATION v. DENNIS F. McGUIRE

Court: TWCA

Attorneys:

Jamie D. Winkler and Jacky O. Bellar, Carthage, Tennessee, for the appellant, Dennis F. McGuire.

Aaron S. Guin and Stephen W. Elliot, 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 a hearing and a report of findings of fact and conclusions of law. The employee, Dennis F. McGuire, alleged that he had sustained a compensable aggravation of a previous work- related back injury. The employer, Aerostructures Corporation (Aeorostructures), took the position that the pre-existing condition had not been advanced or accelerated by the claimed work injury. The trial court found that Mr. McGuire failed to establish by a preponderance of the evidence that he had aggravated or advanced his pre-existing back injury, and granted Aerostructures's motion for involuntary dismissal at the conclusion of the proof. Mr. McGuire has appealed, contending that the evidence preponderates against the judgment of the trial court. We disagree, and so we affirm.

http://www.tba2.org/tba_files/TSC_WCP/2008/aerostructuresmcguire_021208.pdf


TREBION LINDSAY v. UNITED PARCEL SERVICE, INC. and LIBERTY MUTUAL INSURANCE COMPANY

Court: TWCA

Attorneys:

Trebion Lindsay, Nashville, Tennessee, appellant, pro se.

David T. Hooper, Brentwood, Tennessee, for the appellees, United Parcel Service, Inc., and Liberty Mutual Insurance Company.

Judge: WALLACE

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. Employee sought workers' compensation benefits for a June 2000 injury to his right shoulder and a November 2000 injury to both shoulders. He had surgery to repair a torn labrum of the right shoulder in November 2003. The trial court dismissed the November 2000 claim based upon the statute of limitations, and found that the labral tear was not caused by the June 2000 injury. Employee has appealed, contending that the evidence preponderates against the trial court's decision. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2008/lindsayt_021208.pdf


SHARON PRINCE v. STATE STREET BANK & TRUST CO. andAMERICAN ZURICH INSURANCE COMPANY

Court: TWCA

Attorneys:

Gordon C. Aulgur, Nashville, Tennessee, for the appellants, State Street Bank & Trust Co. and American Zurich Insurance Company.

Stanley Davis, Nashville, Tennessee, for the appellee, Sharon Prince.

Judge: WALLACE

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 a report of findings of fact and conclusions of law. Employee developed bilateral carpal tunnel syndrome as a result of her employment. The trial court awarded 55% permanent partial disability to the right arm and 35% permanent partial disability to the left arm. Her employer has appealed, contending that the award is excessive. We conclude that the evidence in the record does not preponderate against the trial court's award, and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2008/princes_021208.pdf


DANNY JONES, ET AL. v. SHELBY COUNTY DIVISION OF CORRECTIONS

Court: TCA

Attorneys:

M. Dell Stiner, Assistant Shelby County Attorney and Eugene C. Gaerig, Assistant Shelby County Attorney, Memphis, Tennessee, for the appellant, Shelby County Division of Corrections.

Kenneth M. Margolis, Memphis, Tennessee, for the appellees, Danny Jones and Kevin Longelo.

Judge: FARMER

The Appellant, Shelby County Division of Corrections ("SCDC"), appeals the judgment of the trial court in favor of Appellee inmates. Appellee inmates filed suit against the SCDC, under the Tennessee Governmental Tort Liability Act ("GTLA"), for injuries sustained when a metal ventilation system fell from the ceiling while officers were performing a search of the cell block. The SCDC asserts three points of error: (1) that the SCDC is not a governmental entity, as defined by T.C.A.section 29-20-102(3)(A) of the GTLA so as to be subject to suit thereunder; (2) that expert testimony was required as to the cause of the system's collapse; and (3) that the trial court erred in not considering the fault of unknown inmates in manipulating the ventilation system. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/jonesd_021208.pdf


EMMANUAL SMALL, by Next Friend, and Mother, JUANITA SMALL RUSSELL v. SHELBY COUNTY SCHOOLS, a/k/a BOARD OF EDUCATION OF SHELBY COUNTY SCHOOLS

Court: TCA

Attorneys:

Henry L. Klein, Memphis, TN, for Appellant

Robert L. J. Spence, Jr., Kristina A. Woo, Memphis, TN, for Appellee

Judge: HIGHERS

This is a negligence claim brought by a student against a school board pursuant to the Tennessee Governmental Tort Liability Act. The plaintiff, a student at Millington Middle School, began experiencing breathing problems after physical education class. The physical education teacher was unaware of the student's asthma, or the fact that the student was mentally retarded. The mother came to school and picked up her son, who was later taken to Le Bonheur Children's Medical Center in Memphis, where he remained for six months. The mother then brought a negligence claim on behalf of her son against the school board. During discovery, the student's attorney failed to disclose the student's treating doctor as an expert witness. The school board sought to exclude testimony from the doctor concerning causation of the student's injuries and the reasonableness and/or necessity of the medical charges. The court allowed the testimony concerning causation and necessity, but excluded testimony related to reasonableness. In its answer, the school board failed to raise the affirmative defense of comparative fault. On the first day of trial, the court granted the school board leave to amend its complaint to include the comparative fault of other individuals, including the student's mother. After a bench trial, the circuit court entered a judgment in favor of the student in the amount of $3 million dollars, but reduced that award to $130,000 pursuant to the Governmental Tort Liability Act. The student's attorney then moved for an award of discretionary costs, which the court denied. The school board appeals, alleging that it is immune from suit because its employees were performing a discretionary function. Next, the school board argues that the court erred by allowing the doctor to testify concerning causation and necessity because the student's attorney failed to disclose the doctor as an expert witness. Finally, the school board argues that the only witness that corroborated the student's claim was not credible. The student raises the issue of whether the court erred in allowing the school board to amend its answer to include comparative fault, and whether the court erred in refusing to award discretionary costs. For the following reasons, we affirm.

http://www.tba2.org/tba_files/TCA/2008/smalle_021208.pdf


IN RE Z.T.S.

Court: TCA

Attorneys:

Ben H. Houston II, Knoxville, Tennessee, for the Appellant, D.A.S.

Robert E. Cooper, Jr., Attorney General and Reporter; Amy T. McConnell, Assistant Attorney General, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: LEE

The mother appeals the trial court's judgment terminating her parental rights. Upon our determination that the trial court did not have subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Tenn. Code Ann. section 36-6-201 et seq., the judgment of the trial court is vacated and the termination petition is dismissed.

http://www.tba2.org/tba_files/TCA/2008/zts_021208.pdf


WILLIAM C. BROTHERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William C. Brothers, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, William C. Brothers, appeals the circuit court's order summarily dismissing his pro se petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm the court's order.

http://www.tba2.org/tba_files/TCCA/2008/brothersw_021208.pdf


RICKY FLAMINGO BROWN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Ricky Flamingo Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Ricky Flamingo Brown, was convicted in 1986 of rape of his twelve year old daughter. The trial court sentenced him in abstentia to life in prison after he escaped from jail. After his capture in 1990, he began to serve his sentence. Upon agreement by the State, the Petitioner proceeded with a delayed direct appeal, which this Court dismissed. The Petitioner subsequently filed a number of collateral appeals, all of which were denied by the trial court, with some of those judgments appealed and affirmed in this Court. In 2006, the Petitioner then filed this habeas corpus petition alleging a void sentence. The habeas corpus court denied the petition without a hearing. After a thorough review of the applicable record and law, we affirm the judgment of the habeas court.

http://www.tba2.org/tba_files/TCCA/2008/brownr_021208.pdf


STATE OF TENNESSEE v. SHANDA ALENE WRIGHT

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the Appellant, Shanda Alene Wright.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; W. Michael McCown, District Attorney General; Weakley E. Barnard and Brooke Grubb, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Shanda Alene Wright, was convicted by a Marshall County jury of especially aggravated burglary, especially aggravated robbery, and aggravated robbery and received an effective sentence of sixteen years in the Department of Correction. On appeal, Wright alleges as error: (1) the introduction of non-admissible hearsay evidence; (2) the evidence is insufficient to establish proof of serious bodily injury, an essential element of both especially aggravated burglary and especially aggravated robbery; and (3) the trial court's refusal to submit a requested special jury instruction regarding serious bodily injury. After review, we conclude that Wright's issues as raised on appeal are without merit. However, compliance with Tennessee Code Annotated section 39-13- 404(d), following plain error review, requires modification of Wright's conviction of especially aggravated burglary to that of aggravated burglary. The Appellant's remaining convictions of especially aggravated robbery and aggravated robbery are affirmed.

http://www.tba2.org/tba_files/TCCA/2008/wrights_021208.pdf


TODAY'S NEWS

Legal News
Legislative News
Knox Term Limits
TBA Member Services

Legal News
Justice Scalia weighs in on constitutionality of torture
Supreme Court Justice Antonin Scalia says he doesn't see anything in the Constitution that prohibits the torture of detainees for the purpose of getting information. Scalia told a BBC interviewer that torture would be unconstitutional if it were inflicted as a punishment.
BBC America reports
Chancery court applicant list now final
Five more candidates met yesterday's 4:30 p.m. deadline for applying to fill the 20th Judicial District Chancery Court vacancy. They are: Katherine Dent Boyte of Howard, Tate, Sowell, Wilson & Boyte PLLC; William Joseph Haynes III of Bone McAllester Norton PLLC; Renard A. Hirsch Sr. of Smith & Hirsch PLC; Alan D. Johnson of Willis & Knight PLC; and Irwin J. Kuhn of Dobbins & Venick. They are all of Nashville. Applicants previously reported are Julie M. Burnstein, Jefre S. Goldtrap, Russell T. Perkins, Cristi Eileen Scott, Sarah Stein and Matthew Sweeney. The opening was created by the appointment of Judge Richard Dinkins to the Court of Appeals.

Headley resigns, faces hearing tomorrow
Williamson County Sheriff Ricky Headley announced he will resign on Wednesday. He will also appear before Knoxville Judge Jon Kerry Blackwood for a special hearing that day at noon at the Williamson County Judicial Center. Headley faces 37 criminal charges in Davidson and Williamson counties stemming from allegations that he illegally obtained prescription medication from a Nashville pharmacy.
The Tennessean reports
Bradley County gets high-rated parenting program
A program the American Bar Association has recognized as the strongest parent involvement program for adjudicated youth in the nation, has come to Bradley County. "The Parent Project" is designed for parents who need to learn effective prevention and intervention techniques to help their children. "This is not to control children but to influence them to make better choices," program director Sonny Moss said.
The Cleveland Daily Banner has the story
ABA agrees to bar pass rate standards
The American Bar Association's policy-making House of Delegates has concurred in a revision to the Standards for Approval of Law Schools relating to bar passage rates, making numerical pass rates a factor in accreditation of law schools by the Section of Legal Education and Admissions to the Bar. Without passage, the Department of Education would not renew the ABA's role as the accrediting agency later this year.
The ABA Journal reports
Hagler tape ruling will not be appealed
The Chattanooga Times Free Press and the city of Chattanooga say they will not appeal a chancellor's order to return a tape of graphic fantasies to former Circuit Judge John Hagler. Hamilton County Chancellor Frank Brown ruled Jan. 17 that the recording did not relate to Hagler's former duties in the 10th Judicial District and that its possession by the Chattanooga Police Department did not make it a public record. He also ruled the tape could not be kept as police evidence.
Read more from the newspaper
Welch to fill president elect post at LAW
The Lawyers' Association for Women in Nashville has appointed Bernadette Welch as its president elect. The Chief Administrative Hearing Office for the Tennessee Department of Revenue will fill the remainder of the term previously held by Jude White, who resigned the post for personal reasons. Welch will also continue as treasurer of the organization for the remainder of that term.

Editorials back merit selection
The method used to select judges is becoming a hot topic across the country, thanks to a growing concern with expensive, special interest driven campaigns. A pair of newspapers recently came out in support of merit systems similar to Tennessee for their state. Read what the Huntington Herald Dispatch had to say about the issue in West Virginia and the Minneapolis Star Tribune called for in Minnesota.

Legislative News
Rep. Buck to leave legislature
Longtime state Rep. Frank Buck announced today that he will not seek re-election after 36 years and 18 terms in the General Assembly, the Tennessean reports. The 64-year-old Dowelltown Democrat wrote to his constituents that since his first election in 1972, "I have been everything from the ethical hero to the illegitimate child at the family reunion."
Read more in the Tennessean
Wilder out of hospital, expected back in Senate
State Sen. John Wilder, the 86-year-old former lieutenant governor, was released from the hospital Monday after battling pneumonia, said Sen. Joe Haynes. Haynes, the chairman of the Senate Democratic Caucus, said he spoke with Wilder on Monday and expects him to be back participating in the Senate's business today.
The Nashville City Paper has the story
Knox Term Limits
Candidates line up for Knox Commission continue
Candidates continued to surface Monday -- 41 so far -- for 12 vacant offices to be filled by Knox County Commission appointment on Feb. 20. The appointments will be made to eight County Commission seats and the offices of sheriff, trustee, county clerk and register of deeds. The positions are vacant because the officeholders were removed when a state Supreme Court ruling upheld term limits. Appointments made Jan. 31, 2007, violated the state Open Meetings Act, and a chancellor ordered the offices vacated again on Oct. 5, 2007.
The News Sentinel has the details
TBA Member Services
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