Corporate Counsel Pro Bono Gala set, award nomination deadline this week

The Second Annual Corporate Counsel Pro Bono Initiative Gala will be May 22 at the Loew's Vanderbilt Hotel in Nashville. The event will celebrate the pro bono partnership among Tennessee's corporate legal departments, law firms and access to justice organizations. Nominations for the awards must be received by April 4. Find our more about Tennessee's Corporate Counsel Pro Bono Initiative
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
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
11 - TN Court of Appeals
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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.

IDA CUMMINGS v. M-TEK, INC., ET AL.

Court: TWCA

Attorneys:

Thomas W. Tucker, III, Nashville, Tennessee, for the appellant, M-Tek, Inc. and Royal & Sunalliance Insurance Company.

Mark Stewart, Winchester, Tennessee, for the appellee, Ida Cummings.

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 reporting to the Supreme Court of findings of fact and conclusions of law. On appeal, M-Tek, Inc. ("Employer") contends that the trial court erred in finding that Ida Cummings ("Employee") sustained a compensable permanent partial right shoulder disability. In the alternative, Employer contends that the trial court erred in relying on the evaluating physician's impairment rating instead of the rating given by the treating physician, and in awarding Employee a 27.5% impairment to the body as a whole. Because the evidence does not preponderate against the findings, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2008/cummingsi_033108.pdf


TROY SEPULVEDA v. WESTERN EXPRESS, INC. and SUE ANN HEAD, Administrator of the Division of Workers' Compensation for the State of Tennessee

Court: TWCA

Attorneys:

Richard C. Mangelsdorf, Jr., Nashville, Tennessee, for the appellant, Western Express, Inc.

John L. Lowery, Nashville, Tennessee, for the appellee, Troy Sepulveda.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund.

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. Troy Sepulveda ("Employee") sustained an injury to his lower back while sleeping in the cab of his truck while waiting to make a delivery. The trial court found that he was a "traveling employee," found the injury to be compensable and awarded permanent partial disability benefits. Western Express, Inc. ("Employer") has appealed, contending that the injury did not arise from the employment. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2008/sepulvedat_033108.pdf


SHIRLEY J. ELLIOT V. LIFE OF THE SOUTH INSURANCE CO. , ET AL.

Court: TCA

Attorneys:

M.J. Hoover III, Knoxville, Tennessee, for the appellant, Shirley J. Elliot.

Christopher D. Heagerty, Knoxville, Tennessee, for the appellee, Life of the South Insurance Company.

Christopher W. Conner, Maryville, Tennessee, for the appellee, Amtrust Bank.

Linda J. Hamilton Mowles and Tara L. Dalton, Knoxville, Tennessee, for the appellees, Cappo Management, Inc. and Dave Lawson.

Judge: LEE

The Plaintiff was issued a credit disability insurance policy based upon an application she executed when she purchased a vehicle from an auto dealership. Thereafter, the Plaintiff was diagnosed with cancer which prevented her from working, and she applied for benefits under the policy. The insurer refused to pay, and the Plaintiff filed suit against the insurer, the bank that financed the vehicle purchase, the auto dealership, and the dealership employee who assisted the Plaintiff in preparing the insurance application. The Plaintiff's suit sought recovery on the policy and asserted various other causes of action, including alleged violations of the Tennessee Consumer Protection Act and the Americans With Disabilities Act. Upon the Defendants' motions for summary judgment, the trial court dismissed the case. After reviewing the record, we find that none of the Defendants' motions for summary judgment addressed the issue of whether the auto dealership employee engaged in deceptive practices in assisting the Plaintiff in her application for the credit disability insurance. Accordingly, we reverse the trial court's ruling as to the Plaintiff's causes of action against all of the Defendants for violation of the Tennessee Consumer Protection Act and as to Life of the South for violation of the Americans With Disabilities Act, and we affirm summary judgment in favor of the Defendants as to all of the Plaintiff's remaining causes of action.

http://www.tba2.org/tba_files/TCA/2008/elliots_033108.pdf


JAMES C. GEKAS, M.D. v. SETON CORPORATION, d/b/a BAPTIST HOSPITAL

Court: TCA

Attorneys:

James C. Gekas, M.D., Nashville, Tennessee, Pro Se.

Charles J. Mataya; Karyn C. Bryant, Nashville, Tennessee, for the appellee, Seton Corporation d/b/a Baptist Hospital.

Judge: COTTRELL

The plaintiff physician sued the defendant hospital for breach of contract after the hospital declined to promote him to a permanent position on its medical staff. He claimed that the hospital's bylaws were part of his employment contract, and that the manner in which the hospital reached its decision violated those bylaws. The trial court granted summary judgment to the hospital. We agree that the bylaws formed part of his contract, but since the record clearly shows that the hospital substantially complied with its bylaws we affirm the trial court.

http://www.tba2.org/tba_files/TCA/2008/gekasj_033108.pdf


SANDRA E. HARBER V. TRACY K. HARBER

Court: TCA

Attorneys:

J. Phillip Harber, Clinton, Tennessee, for the appellant, Tracy K. Harber.

Dail R. Cantrell, Clinton, Tennessee, for the appellee, Sandra E. Harber.

Judge: SUSANO

The respondent, Tracy K. Harber ("Father"), appeals an order of the trial court holding him in civil contempt and ordering him to pay a net child support arrearage of $67,510 plus accrued interest of $143,852.51. Father appeals. We have determined that the correct amount of interest is $74,618.62. Therefore, so much of the trial court's judgment as awards interest is modified to reflect interest of $74,618.62. As modified, the judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2008/harbers_033108.pdf


STATE EX REL. TRACY RENEE JACKSON v. SHANNON MICHAEL JACKSON
CORRECTION


Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, for the appellant, State of Tennessee, Department of Human Services, ex rel. Tracy Renee Jackson.

Shannon Michael Jackson, not represented on appeal.

Judge: COTTRELL

This appeal involves a chancery court's modification of a pendente lite child support order and the forgiveness of arrearages resulting from that order. Because the modified order was interlocutory by nature and therefore subject to modification at any time prior to the entry of a final judgment, we affirm.

http://www.tba2.org/tba_files/TCA/2008/jacksont_Corr_033108.pdf


LINDA JOHNSON v. THE LENOIR CITY HOUSING AUTHORITY, ET AL.

Court: TCA

Attorneys:

David H. Dunaway, LaFollette, Tennessee, for the appellant, Linda Johnson.

John E. Winters, Knoxville, Tennessee, for the appellee, the Lenoir City Housing Authority.

James T. Williams, William A. Harris, III, and Robert F. Parsley, Chattanooga, Tennessee, for the appellee, Sun Life Assurance Company of Canada.

Judge: SUSANO

Linda Johnson ("Ms. Johnson"), former executive director of the Lenoir City Housing Authority ("LCHA"), seeks damages against LCHA and its disability insurance provider, Sun Life Assurance Company of Canada ("Sun Life"), arising out of Sun Life's denial of her application for disability coverage, which application was filed more than two years after her termination by LCHA. As to Sun Life, Ms. Johnson argues that her belatedly-submitted claim was wrongfully rejected because she was, she now says, disabled at the time of her termination. As to LCHA, Ms. Johnson argues that LCHA failed to provide her with proper notice of the available disability benefits while she was still employed, and further failed to assist her in filing a timely disability claim. Both defendants moved for summary judgment. Sun Life and LCHA both argue that Ms. Johnson was not disabled when she was terminated, and that she is judicially estopped from asserting otherwise, due to several prior statements by her in which she indicated she was not disabled. In addition, LCHA argues that Ms. Johnson in fact knew about the disability policy, and that LCHA was under no duty to provide her with additional information or help her file a claim. The court granted summary judgment with respect to both defendants. Ms. Johnson appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/johnsonl_033108.pdf


MARK L. PECK v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Mark L. Peck, Clifton, TN, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Joshua D. Baker, Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

This appeal involves the chancery court's dismissal of a prisoner's petition for writ of certiorari. The chancery court found that it lacked subject matter jurisdiction because the prisoner did not file his petition within sixty days from the entry of the order. We affirm the chancery court's dismissal.

http://www.tba2.org/tba_files/TCA/2008/peckm_033108.pdf


CONNIE R. (DAVIS) PHILLIPS, ET AL., V. LAWRENCE WOODS, ET AL.

Court: TCA

Attorneys:

Wade M. Boswell, Knoxville, Tennessee, for the appellants, Lawrence Woods and Charlotte Woods.

Philip R. Crye, Jr., Clinton, Tennessee, for the appellees, Connie R. (Davis) Phillips and Carol J. (Davis) Miller.

Judge: SUSANO

This appeal involves a dispute over a boundary line and the ownership of a driveway. The plaintiffs, Connie R. (Davis) Phillips and Carol J. (Davis) Miller ("the plaintiffs" or "the Davis heirs"), and the defendants, Lawrence Woods and Charlotte Woods ("the defendants" or "the Woods"), own adjacent tracts of real property in Morgan County. When the initial complaint was filed, the northern tract of property was owned by the plaintiffs' mother, Stella Davis ("Mrs. Davis"), who had filed suit against the Woods, the owners of the southern tract, to quiet title, to establish the common boundary line, and for libel of title. After Mrs. Davis' death prior to trial, her daughters were substituted as plaintiffs. Upon the conclusion of a bench trial, the trial court found, inter alia, that the Davis heirs owned the property over which the driveway ran, but that the defendants retained an easement by necessity in the roadway, and that the Woods had committed libel of title. While the trial court agreed with the common boundary line described by the surveyor for the Davis heirs, the court reformed the boundary between the parties upon finding that the defendants were entitled to a portion of the Davis property as a result of adversely possessing it for over 30 years. The Woods appeal. We affirm. Case remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/phillipsc_033108.pdf


IRIS KAY SNODGRASS v. ROBERT H. SNODGRASS

Court: TCA

Attorneys:

Robert H. Green and Catherine E. Shuck, Knoxville, Tennessee, for appellant.

Craig L. Garrett, Maryville, Tennessee, for appellee.

Judge: FRANKS

In this divorce case the issues tried by the Trial Judge are essentially raised on appeal. The Trial Judge held that the parties respective 401(k) accounts after subtracting the premarital portion were marital property, that the monthly pension benefits at the time of the divorce were held to be defined benefit pensions and divided between the parties, and the Trial Court refused to consider an expert witness proffered by the husband.

http://www.tba2.org/tba_files/TCA/2008/snodgrassi_033108.pdf


PATRICIA B. STEWART v. CHALET VILLAGE PROPERTIES, INC., ET AL.

Court: TCA

Attorneys:

Eugene B. Dixon, Maryville, Tennessee, for the Appellant, Patricia B. Stewart.

Thomas L. Kilday and Jonathan E. Roberts, Greeneville, Tennessee, and Joshua M. Ball, Knoxville, Tennessee, for the Appellee, Chalet Village Properties, Inc.

Judge: LEE

The issue presented in this case involves the validity of an exculpatory clause contained in a short- term lease of a vacation rental house. The plaintiff was injured when she fell on an allegedly dangerous and negligently maintained walkway at a vacation rental house in Gatlinburg, Tennessee. The trial court granted the rental agency summary judgment on the sole ground of the exculpatory clause in the rental agreement that provided the plaintiff would not hold the rental agency responsible "for any injuries or damages resulting from accidents occurring at the property." Applying the analysis adopted by the Tennessee Supreme Court in Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977), and further discussed in Crawford v. Buckner, 839 S.W.2d 754 (Tenn. 1992), we conclude that the exculpatory clause is invalid as against court's summary judgment.

http://www.tba2.org/tba_files/TCA/2008/stewartp_033108.pdf


GEORGE W. SULLIVAN v. HILARIA B. SULLIVAN

Court: TCA

Attorneys:

Richard B. Teeter, Chattanooga, Tennessee, for the appellant, George W. Sullivan.

Jennifer A. Mitchell, Dunlap, Tennessee, for the appellee, Hilaria B. Sullivan.

Judge: SUSANO

This case involves a Tenn. R. Civ. P. 60.02 attack on a Tennessee divorce judgment. Hilaria B. Sullivan ("Wife"), a resident of the South Pacific island of Palau, challenges the propriety of a 1993 default judgment secured by George W. Sullivan ("Husband"), which was entered in Husband's divorce suit after Wife failed to respond to notice by publication in a Tennessee newspaper. Wife seeks relief under Tenn. R. Civ. P. 60.02(4) and (5). She claims that Husband, who has since remarried, knew her mailing address in 1993 or easily could have discovered it, and that, therefore, notice by publication was inadequate. The trial court declined to set aside the divorce, but altered the property distribution in Wife's favor and applied its new distribution retroactively, thus resulting in Husband owing a substantial arrearage. Husband appeals. He argues that Wife's Rule 60.02 challenge is untimely because, according to him, she knew about the divorce by 1996, yet waited another six years before challenging it; that, in any event, Rule 60.02(4) does not allow retroactive relief and Rule 60.02(5) is not implicated by these facts; and that Husband should not have been ordered to designate Wife as the beneficiary of his survivorship plan. We affirm.

http://www.tba2.org/tba_files/TCA/2008/sullivang_033108.pdf


LARRY THORNTON v. JOE MARCUM, and wife, MONA MARCUM

Court: TCA

Attorneys:

Johnny V. Dunaway, LaFollette, Tennessee, for appellants.

Reid Troutman, LaFollette, Tennessee, for appellee.

Judge: FRANKS

Plaintiff and defendants entered into a verbal agreement wherein plaintiff would purchase two lots from the defendants at an agreed price. Plaintiff made payments as agreed over a period of time, but before the lots were completely paid for defendants sold one of the lots to a third party. Plaintiff brought this action for specific performance and the Trial Court ruled that the verbal agreement violated the Statute of Frauds. However, the Trial Court invoked the theory of equitable estoppel against defendants, ordered specific performance, and awarded damages for the lot sold, which was part of the purchase agreement. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2008/thorntonl_033108.pdf


STATE OF TENNESSEE v. CLAUDELL WATKINS CARPENTER

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney General, for the appellant, State of Tennessee.

Joseph P. Atnip, District Public Defender, for the appellee, Claudell Watkins Carpenter.

Judge: GLENN

Following a jury trial, the defendant, Claudell Watkins Carpenter, was convicted of second degree murder, first degree murder in the perpetration of a burglary, especially aggravated burglary, and aggravated assault. Additionally, the defendant pled guilty to evading arrest. Pursuant to Tennessee Rule of Criminal Procedure 29, he filed a motion for judgment of acquittal, which the trial court subsequently granted as to certain of the convictions, reducing the second degree murder conviction to voluntary manslaughter and dismissing the first degree murder and aggravated assault convictions. The defendant then was sentenced as a Range I, standard offender to six years for the voluntary manslaughter conviction, twelve years for the especially aggravated burglary conviction, and eleven months, twenty-nine days for the evading arrest conviction, with all sentences to be served concurrently. Thereafter, the State appealed the trial court's ruling on the motion for judgment of acquittal. Rule 29, pursuant to which the defendant filed the motion for judgment of acquittal, requires that, before a judgment is entered following the granting of a motion for judgment of acquittal, the court first should rule on the motion for new trial. Accordingly, we remand this matter to the trial court for disposition of the motion for new trial so that a single appeal will result from the defendant's trial. Since judgments were entered prematurely following the court's granting the motion, they are set aside, and the jury verdicts for second degree murder (Count 1), first degree murder in the perpetration of a burglary (Count 2), and aggravated assault (Count 4) are reinstated. Because the State's appeal is premature, it is dismissed.

http://www.tba2.org/tba_files/TCCA/2008/carpenterc_033108.pdf


TODAY'S NEWS

Legal News
Legislative News
Politics
TennBarU CLE
TBA Member Services

Legal News
Judge declares mistrial for lawyer's comments
R. Sadler Bailey, a plaintiff's personal-injury lawyer and president of the state's trial lawyers organization, was cited for criminal contempt of court by Circuit Court Judge Karen Williams after he expressed his disagreement with some of her rulings in a medical-malpractice case. Williams then declared a mistrial.
Read more in the Commercial Appeal
Opinion: Judges wrongly criticized
Chattanooga lawyer Tonya Kennedy Cammon offers her opinion on the Knoxville News Sentinel's coverage of a lawyer's disciplinary treatment by the federal court. Cammon writes that "a lack of information about the procedures for attorney disciplinary proceedings has resulted in misplaced anger and criticism of the federal judiciary."
Read Cammon's piece in the News Sentinel
Ceremonies set for new Davidson County judges
Swearing in ceremonies for recently appointed Circuit Court Judge Joe P. Binkley Jr., and Chancellor Russell Perkins, both of the 20th Judicial District, will begin at 2 p.m. April 8, in the old Supreme Court Chambers on the first floor of the State Capitol.

Is life mirroring fiction in Wisconsin?
What's going on with the Wisconsin Supreme Court is a lot like the plot of John Grisham's newest novel, "The Appeal."
WMCT-TV has the AP story.
Bell Buckle gets new judge, attorney
Bell Buckle's board of Mayor and Aldermen has hired a municipal judge and a new city attorney. Bill Haywood, who is Chapel Hill's municipal judge and city attorney for Lewisburg, will be the new judge. Greg Perry of Manchester is Bell Buckle's new city attorney.
The Shelbyville Times-Gazette has more
Napier-Looby elects officers
The Napier-Looby Bar Association recently elected new officers for 2008-09. They are: Jonathan E. Richardson of Smith & Hirsch PLC as president; Isaac T. Conner of Lewis, King, Krieg & Waldrop PC as vice president/president-elect; William H. Stover as treasurer; and Kinika Young of Bass, Berry & Sims PLC as secretary. All are from Nashville.

Bankruptcy hot growth area, survey says
A new survey has found that lawyers expect bankruptcy to be the hottest growth area for law firms this year. That's no secret to law firm managers who are already beefing up bankruptcy practices. One out of four lawyers surveyed said the fastest area of growth would be in bankruptcy work, exceeding the number who designated corporate governance and litigation as the sectors most likely to see increases.
The ABA Journal reports on the Wall Street Journal story
Legislative News
Exemptions to Public Records Act may increase
Since Tennessee declared government records open to the public in 1957, lawmakers and judges have spent the last 50 years closing some of those records. Today, there are more than 250 exemptions to the Tennessee Public Records Act. A bill making its way through the legislature this year proposes to close records identifying Tennesseans licensed to carry handguns. "Any special interest who has a friend in the legislature can get records closed fairly easily," said Frank Gibson, executive director for the Tennessee Coalition for Open Government.
The Tennessean reports
Politics
Newspaper calls for quick answers to Herenton scandal
In an editorial, the Commercial Appeal calls for the investigation of "one of the sleaziest political dirty-tricks allegations in the city's history" to wrap up quickly.The paper urges special prosecutor Joe Baugh to hurry with the findings regarding allegations that Gwendolyn Smith was involved in a plot to blackmail Mayor Willie Herenton.
Read the editorial
Opinion: A lesson in how the legislature works
Columnist Larry Daughtrey explains why a bill to permit wine sales in grocery stores will not pass this year and will be back again. "To understand this situation," he writes, "you have to view it from the twisted logic of some of our legislators."
Read the opinion in the Tennessean
Faulk gets in Senate race
Church Hill attorney Mike Faulk declared his candidacy for Tennessee's 4th Senatorial District seat on Friday. "You all have your favorite lawyer jokes," he told the crowd gathered in Rogersville. "Here's mine: Do you know what you call a lawyer gone bad? 'Senator!'"
The Kingsport Times-News reports
TennBarU CLE
Labor & Employment Law Forum offers strong lineup
It's not too late to sign up for the TBA's Annual Labor & Employment Law Forum this Thursday. This year's program focuses on the unique issues impacting labor and employment law, including bankruptcy, sports and entertainment law. It will also include an ethics panel of distinguished in-house attorneys from a Tennessee Fortune 100 company, plus recent case law developments and related issues. Use the prepaid CLE credits that come with your TBA Complete Membership to save money on this course.
Learn more or register now
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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