Action picking up as legislature enters 12th week

The Tennessee General Assembly, now in its 12th week of the session, is beginning to pick up the pace. Several bills of interest to lawyers were on the agenda for this week:

Court reporter licensure
The bill being brought forward (SB2925/HB2905) would require that a licensed court reporter be involved in recording any testimony for presentation to any court or other body. It will be up for consideration in the Family and Children's Affairs Committee at 8:30 in the morning. The bill establishes a full-blown court reporter licensure regime that grandfathers in all who practice court reporting now. The bill has an initial testing requirement but sets no conduct or ethical standards.

Nursing home liability caps
The House Judiciary's Civil Practice Subcommittee today deferred again until next week a bill (SB4075/HB4053) that would cap damages in negligence actions involving nursing home residents. Sponsors have announced that they are dropping provisions that would have permitted requirements for binding arbitration, and requiring that all actions be maintained as medical malpractice cases. They have also offered to raise the cap on non-economic damages to $500,000. The TBA has traditionally opposed lids on damages.

Expenses in shareholder derivative actions
The TBA bill to enact the balanced approach of the Model Business Corporations Act provisions dealing with expenses in shareholder derivative actions was adopted on third and final consideration in House action last night. The Senate adopted the bill on March 24.

Construction liens
The House Commerce Committee recommended for passage the TBA bill (HB3102/SB2950) that makes technical corrections to last year's rewrite of the construction lien law. The Senate has already passed the bill.
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Court: TWCA


David T. Hooper, Nashville, Tennessee, for the Appellants, United Parcel Service and Liberty Mutual Insurance Company

Robert J. Martin, Clarksville, Tennessee, for the Appellee, Rex Brown

Judge: SCOTT

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 Appellant suffered a stroke while performing his job as a package car driver for his Employer. The stroke occurred while he was being trained to take over a new delivery route. The Employee sought workers' compensation benefits, alleging that the stroke was precipitated by stress associated with his job, particularly with the adjustment to the new route. In preparation for trial, the Employer took discovery depositions of two medical experts identified as potential witnesses by its Employee. The Employee did not take evidentiary depositions of those witnesses, but sought to introduce their discovery depositions as evidence at trial. The trial court admitted the depositions into evidence over the objection of the Employer. The trial court found that the Employee's stroke was the result of an occupational disease, precipitated by work-related stress, and awarded permanent total disability benefits. The Employer has appealed, contending that the trial court erred by admitting the discovery depositions into evidence, and finding that the Employee's stroke was a compensable event. We find that the depositions should not have been admitted into evidence, in accordance with Rule 32.01(3) of the Tennessee Rules of Civil Procedure. After a review of the record without consideration of the depositions, we reverse the judgment of the trial court awarding permanent disability benefits for the stroke and dismiss the portion of the complaint relating to the stroke. The award for an injury to the Employee's shoulder is not questioned and that portion of the judgment is affirmed.


Court: TWCA


Joe Lee Wyatt and William J. Wyatt, Memphis, Tennessee, for the appellant, Federal Express Corporation.

John F. Canale, III, and Donald A. Donati, Memphis, Tennessee, for the appellee, Sandra Deller.


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 sustained an injury to her lower back in the course of her employment as a pilot. Her treating physician placed permanent restrictions upon her activities which prevented her from returning to that job. While recovering from her injury, she obtained three licenses concerning sale and appraisal of real estate in California. She testified that she was unable to work in that field because the physical demands conflicted with her restrictions. The trial court awarded permanent total disability benefits. The trial court also declined to grant Employer a set-off pursuant to Tennessee Code Annotated section 50-6-114(b) for payments made pursuant to its long-term disability plan. Employer has appealed, contending that the trial court erred in awarding permanent total disability and also in declining to grant a set-off. We agree and modify the judgment accordingly.


Court: TCA


Larry E. Parrish, Memphis, Tennessee, for the appellant, Nancy J. Strong.

William S. Walton, Nashville, Tennessee, for the appellee, John H. Baker, III, Esq., and Bullock, Fly & Hornsby.


In this legal malpractice action, the trial court denied the former client's motion to stay proceedings and granted summary judgment in favor of the attorney. The former client asserts on appeal that summary judgment was not proper because the underlying case in which the malpractice allegedly occurred is still pending, and therefore, damages cannot be established. We affirm the decision of the trial court.


Court: TCCA


Richard A. Spivey, Kingsport, Tennessee, for the Appellant, David Marzell Beatty.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Senior Counsel; H. Greeley Welles, District Attorney General; Joseph Eugene Perrin, Assistant District Attorney General, for the Appellee, the State of Tennessee.


The Defendant, David Marzell Beatty, pled guilty on December 10, 2001, to one count of selling a counterfeit controlled substance and two counts of selling over .5 grams of cocaine (case No. S44,185). The trial court sentenced him to eight years on each count of selling cocaine and two years for selling a counterfeit controlled substance, all to run concurrently. The trial court ordered the first 364 days to be served in prison, with the remainder on probation. On that same day, the Defendant pled guilty to failure to appear (case No. S43,165), for which the trial court sentenced him to two years probation to run consecutively to the eight year sentence. On August 4, 2007, the trial court revoked the Defendant's probation after he pled guilty to two counts of misdemeanor domestic assault. On appeal, the Defendant alleges the following: (1) the trial court did not credit the Defendant for time spent in the Sullivan County Jail and in the Tennessee Department of Correction boot camp; (2) the trial court failed to consider mitigating factors; and (3) the Defendant is serving an indeterminate sentence. After a thorough review of the record and applicable law, we affirm the revocation of probation, but we remand to allow re-computation of jail credits.


Court: TCCA


M. Jeffrey Whitt, Knoxville, Tennessee, for the appellant, Maron Donta Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Joseph Hoffer and Andrew Freiberg, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Maron Donta Brown, pled guilty in the Bradley County Criminal Court to one count of possession of more than .5 grams of cocaine with the intent to sell or deliver and one count of speeding. The appellant received a total sentence of fifteen years as a Range II multiple offender. As part of the plea agreement, the appellant properly reserved a certified question of law, challenging the stop and subsequent search of his vehicle during which the cocaine was discovered. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

SMITH dissenting


Court: TCCA


Mark C. Scruggs, Nashville, Tennessee, for the appellant, William Michael Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Hugh Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, William Michael Clark, pled guilty in the Davidson County Criminal Court to attempted rape of a child, attempted aggravated sexual battery, and sexual battery. The trial court imposed a total effective sentence of twelve years and ordered the appellant to serve one year of his sentence in confinement and the remainder on probation. On appeal, the appellant challenges the trial court's failure to grant full probation. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.


Court: TCCA


Samuel B. Dreiling, Franklin, Tennessee, for the Appellant, Christopher James Dodson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Ronald L. Davis, District Attorney General; Derek K. Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.


The Petitioner, Christopher James Dodson, pled guilty to facilitation of robbery, a class D felony. The trial court sentenced the Petitioner, a Range I offender, to four years to be served at thirty percent. The Petitioner filed a petition for post-conviction relief in which he alleged that the parties and the trial court agreed at sentencing that the Petitioner should receive thirteen months of jail credit, which he was not given by the Tennessee Department of Correction. Because he was not given this jail credit, the Petitioner alleged he was entitled to post-conviction relief because his guilty plea was not voluntarily entered, and he had received the ineffective assistance of counsel. The post-conviction court dismissed the petition after a hearing. The Petitioner appeals that dismissal, and we affirm the judgment of the post-conviction court.

TIPTON dissenting


Court: TCCA


Kenneth Paul Dykas, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John Bledsoe, Senior Counsel; Deshea Dulany, Assistant Attorney General, for the Appellee, the State of Tennessee.


The Petitioner, Kenneth Paul Dykas, was convicted by a jury of first degree premeditated murder, especially aggravated robbery, and conspiracy to commit especially aggravated robbery and sentenced to life without the possibility of parole plus twenty-four years. This Court affirmed those judgments on direct appeal. He filed a petition for post-conviction relief claiming he failed to receive the effective assistance of counsel because counsel allegedly failed to properly strike a juror, failed to prepare him for trial, and failed to prepare a witness for examination. The post-conviction court dismissed the petition, and we affirmed that decision. The Petitioner subsequently filed a petition for habeas corpus relief, again claiming that his trial counsel was ineffective for failing to properly strike a juror and for failing to object to a jury instruction. The habeas court dismissed the petition, and, after a thorough review, we affirm the judgment of the habeas court.


Court: TCCA


Robert L. Vogel, Knoxville, Tennessee, for the appellant, Bobby Ray Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; and Jennifer L. Bledsoe and John Bledsoe, Assistant Attorneys General, for the appellee, State of Tennessee.


The petitioner, Bobby Ray Graves, appeals the Morgan County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we conclude that the state’s motion is well-taken, and the judgment of the trial court is affirmed.


Court: TCCA


Albert J. Newman, Jr. (on appeal), and J. Liddell Kirk (at trial), Knoxville, Tennessee, for the appellant, Faron Douglas Pierce.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

Petitioner, Faron Douglas Pierce, appeals the post-conviction court's denial of his petition for post- conviction relief in which he alleged the ineffective assistance of counsel at trial when he was convicted of robbery. After a thorough review, we affirm the denial of post-conviction relief.


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Legal News
Court requests comment on public defender
The Sixth Circuit Court of Appeals requests comment on the reappointment of Stephen Shankman, federal public defender, Western District of Tennessee. Comments must be received by April 30.
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Divorce guardian ad litem rule proposed
The Tennessee Supreme Court today published for comment a proposed new rule dealing with guardians ad litem for minor children in divorce proceedings. The proposed rule lays out general guidelines and standards for appointment, establishes rules on conflict of interest by guardians ad litem, and spells out duties and compensation of lawyers appointed as guardians ad litem. The TBA Family Law and Juvenile Law Sections and the Ethics and Professional Responsibility Committee will be asked to look at and develop recommendations for TBA comments on the proposal.
Read the proposed rule
GAL issue also before General Assembly
The court's proposed rule (above) comes at a time when the Tennessee General Assembly is also considering legislation that addresses perceived concerns about the appointments of guardians ad litem in divorce cases. The TBA has expressed the view that addressing the issues through court rule is much preferable to any proposed legislative action.

Drunk driving sentences given with student audience
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Commissioner requests AG opinion on what's public record
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Lawyer files suit to allow his own assisted suicide
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The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
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James to run for House seat
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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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