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02 - TN Worker's Comp Appeals
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Court: TWCA


Nina Homer Parsley, Donald D. Zuccarello and Heather D. Wood, Nashville, Tennessee, for the appellant, Homer Hooper, Jr.

Michael Haynie, Nashville, Tennessee, for the appellees, Kathy Freeman Trucking, Inc. and Brookwood Insurance Company.


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, Homer Hooper, Jr., filed a motion to set aside a court-approved settlement of his workers' compensation claim. The trial court granted the motion, but ordered that Mr. Hooper repay the original settlement amount to his employer, Kathy Freeman Trucking, Inc., within thirty days. Mr. Hooper failed to do so and the trial court reinstated its previous order approving the settlement. On appeal, Mr. Hooper contends that the trial court erred in requiring repayment as a condition of setting the settlement aside. We reverse the trial court and remand the case for further proceedings.


Court: TWCA


Robert S. Peters, Winchester, Tennessee, for the appellant, Brian Machuta.

Frank C. Lynch, Winchester, Tennessee, for the appellee, Royal & Sunalliance Insurance.

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 Employee sustained a compensable injury to his lower back in February 2000. He had surgery to repair the injury in July 2000 and returned to work in September of that year. In April 2001, he completed a temporary day shift assignment. Shortly thereafter, he moved to Florida. The timing and cause of the move are disputed. In July 2002, he consulted a doctor in Florida for low back pain. He had a second surgery in May 2003. The Employer admitted liability for the February 2000 injury and surgery, but denied that the second surgery was compensable. The trial court found that the Employee had a meaningful return to work after the initial injury, that the second surgery was not compensable and awarded 25% permanent partial disability to the body as a whole. The Employee has appealed, contending that the trial court erred in finding that the second surgery was not related to the initial injury. We affirm the judgment of the trial court.


Court: TCA


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

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


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.

CORRECTION on page 1

Court: TCA


Francis A. Cain and Matthew A. Grossman, Knoxville, Tennessee, for the appellant, A.D.E. of Knoxville, LLC.

Ronald J. Berke, Chattanooga, Tennessee, for the appellees, Adam Sims and Carla Sims.

Judge: LEE

In this interlocutory appeal, the primary question presented is whether a party can be deemed served for the purpose of tolling the statute of limitations under Tenn. R. Civ. P. 3 and the saving statute when there has been no actual service of process. The plaintiffs filed a personal injury suit arising out of a car accident against Adesa Corporation in Knox County. Adesa Corporation was not served with process, and process was not reissued within one year in compliance with Tenn. R. Civ. P. 3. However, the trial court entered an order "deeming" the defendant served, and the plaintiffs then nonsuited their case. Within a year of the nonsuit, but more than a year from the date of the car accident, the plaintiffs re-filed the same suit in Loudon County. The defendant filed a motion for summary judgment arguing that the case was time-barred under the applicable statute of limitations. The trial court denied the motion, and we granted the defendant's request for interlocutory appeal. After review, we hold that the Loudon County Court erred in denying the motion for summary judgment. The defendant was not served with process in the original action, nor was process reissued within a year so as to toll the statute of limitations. Therefore, the second suit was time-barred, the Knox County trial court was not authorized to deem the defendant served in the absence of actual service, the saving statue was inapplicable, and summary judgment should have been granted to the defendant. The judgment of the Loudon County Circuit Court is reversed, and the case is dismissed.


Court: TCCA


Larry D. Wright, Assistant Public Defender, Cleveland, Tennessee, for the Appellant, Lisa Durbin Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Steven Bebb, District Attorney General; and John R. Bledsoe, Assistant District Attorney General, for the Appellee, State of Tennessee.


A jury found the Defendant, Lisa Durbin Howard, guilty of first degree premeditated murder, and the trial court sentenced her to life imprisonment. In this delayed appeal, she presents seven issues1 for our consideration: (1) whether the evidence was sufficient to support her conviction; (2) whether comments made by the trial court to the jury as it deliberated were improper; (3) whether the trial court erred by disallowing expert testimony proffered by the Defendant regarding her experiences with domestic violence; (4) whether it was plain error for the trial court not to address the State's striking of the onlyAfrican-American of the venire; (5) whether alleged juror misconduct deprived the Defendant of her right to a fair and impartial jury; (6) whether the trial court abused its discretion by not individually polling the jury; and (7) whether the State's failure to properly preserve the recordings of the preliminary examination, contrary to Tennessee Rule of Criminal Procedure 5.1(a), required the trial court to remand the case to the general sessions court. Following our review of the appellate record and the parties' briefs, we affirm the judgment of the trial court.


Court: TCCA


Lonnie Maclin, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Lonnie Maclin, was convicted of first degree felony murder, attempted aggravated robbery, misdemeanor reckless endangerment, especially aggravated kidnapping, aggravated robbery, reckless aggravated assault, and two counts of aggravated assault, and received an effective sentence of life imprisonment. Following an unsuccessful direct appeal, he filed a petition for post-conviction relief alleging that the trial court's instructions to the jury were erroneous. Finding that the issue was waived because it was not raised on direct appeal, the post-conviction court summarily dismissed the petition without appointing counsel or holding an evidentiary hearing. The petitioner argues that the post-conviction court erred in those determinations and in dismissing his petition without affording him an opportunity to amend or supplement it. He also argues that we should not find waiver because he is seeking to vindicate a federal constitutional right. Following our review, we affirm the judgment of the post-conviction court.


Court: TCCA


James E. Lanier, District Public Defender; and Patrick R. McGill, Assistant District Public Defender, Dyersburg, Tennessee, for the Appellant, Michael DeWayne Mann.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Lance Webb, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Michael D. Mann, appeals his misdemeanor conviction by a Dyer County jury for aggravated criminal trespass. Mann challenges the sufficiency of the evidence underlying this conviction. The State argues that Mann has waived his right to appeal this issue by failing to file a timely motion for new trial or notice of appeal. We agree, but, in the interest of justice, we waive the timeliness requirement for the notice of appeal. After review, we conclude that the evidence at trial was legally sufficient to support Mann's conviction for aggravated criminal trespass. Alternatively, the State appeals the trial court's grant of Mann's motion for judgment of acquittal as to a separate charge of simple assault. However, there is no authority which permits the State to appeal, as of right, from a trial court's grant of a motion for judgment of acquittal when the grant is entered prior to a verdict of guilty. See Tenn. R. App. P. 3(c). Accordingly, the judgment of the trial court is affirmed in all respects.


Court: TCCA


John Willie Partee, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Leslie E. Price, Assistant Attorney General, attorneys for appellee, State of Tennessee.


The pro se petitioner, John Willie Partee, appeals as of right the Hickman County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The petitioner alleges that he is entitled to habeas corpus relief because the Board of Paroles violated his constitutional rights by the retroactive use of release eligibility standards. Following our review, we affirm the judgment of the habeas corpus court.


Court: TCCA


J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Floyd Antonius Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and P. Neal Oldham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Floyd Taylor, was convicted of aggravated robbery, a Class B felony, and sentenced as a Range I, standard offender to eight years in the Department of Correction. He argues that the evidence was insufficient to support his conviction because the State did not offer adequate proof that he intentionally or knowingly robbed the victim. Following our review, we affirm the judgment of the trial court.


Court: TCCA


Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District Attorney General, for the appellant, State of Tennessee.

John H. Parker, II, Memphis, Tennessee, for the appellee, Kevin Wilkins.

Judge: OGLE

The petitioner, Kevin Wilkins, filed in the Shelby County Criminal Court a petition for post- conviction relief, challenging trial counsel's failure to appeal the petitioner's conviction for especially aggravated kidnapping. The post-conviction court granted the petitioner post-conviction relief, and the State appeals. Upon our review of the record and the parties' briefs, we reverse the judgment of the post-conviction court.


Legal News
Legislative News
Your Practice
Disciplinary Actions
TBA Member Services

Legal News
Judge Hayes to retire, process to fill seat begins
Court of Criminal Appeals Judge David G. Hayes will retire from the appellate bench June 30 to become one of Tennessee's five senior judges. Hayes, 64, was appointed to the Court of Criminal Appeals in April 1994 and was reelected three times.

Read more about Hayes and find information on the process for filling his Court of Criminal Appeals seat on the court's web site. Applicant questionnaires and TBI background applications should be submitted to the Administrative Office of the Courts no later than May 16.

Nomination continues to fuel negative charges
The battle over the confirmation of Gus Puryear to a federal judgeship has turned personal, with charges of conflicts of interest and hidden business agendas flying between supporters and opponents of the nomination. Read why Democrat leaders are dismissing statements of support from fellow Democrats.
The City Paper has the story
Cashion is president-elect of construction group
Nashville lawyer Greg Cashion was nominated to the Governing Committee of the American Bar Association Forum on the Construction Industry and was selected as president-elect of the Tennessee Association of Construction Counsel. Read about this and related honors in
The Elk Valley Times
Volunteer brings life to after-care program
Maurise McCraw is program facilitator at the Justice Center After Care Program, sponsored by the Public Defender's Office in Memphis. The recovery program offers a variety of services to help those who have been in trouble. Those who attend 12-step meetings can get assistance with job referrals, regaining driving privileges and rebuilding credit histories. McCraw does her work for free in the basement of the Criminal Justice Center in Memphis, which she's been doing for 16 years.
Read more about her in the Commercial Appeal
NJ high court: Internet users expect privacy
Even police in New Jersey will need a subpoena to access personal information about Internet service providers' customers the state's Supreme Court ruled Monday. Grayson Barber, a lawyer who helped six groups file an amicus brief in the case, says the ruling is the first in the country to recognize a reasonable expectation of privacy for Internet users.
The ABA Journal has the story
Legislative News
Proposal would ban DUI advertising
Defense attorneys would be banned from advertising their expertise with drunken driving cases under a bill advancing in the Senate. Sen. Rosalind Kurita, D-Clarksville, successfully added the provision to a bill that would create an online registry of repeat DUI offenders in Tennessee, reports the Tennessean. Senate Democratic Leader Jim Kyle, a Memphis attorney, argued that Kurita's proposal would violate commercial free speech rights.

Track legislation of interest to Tennessee attorneys
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.
TBA Bill Tracking Service
NBA Law Day lunch set for next week
The Nashville Bar Association hosts its annual Law Day Luncheon on April 29 at the Renaissance Hotel. Registration begins at 11:30 a.m. with lunch served at noon. The keynote address will be given by Judge Gil Merritt, senior judge of the U. S. Court of Appeals for the Sixth Circuit.
Learn more or register here
Memphis party to kick off Law Week activities
Join in the celebration of Law Week with a free kickoff party on April 25 in downtown Memphis. All members of the legal community are invited to the Court Square party, which will run from 5 to 7 p.m. and feature free barbeque, wine, beer, soft drinks and live music. The event is hosted jointly by the Tennessee Bar Association, Memphis Bar Association, Association for Women Attorneys, Ben F. Jones Chapter of the National Bar Association, Memphis/Mid-South Chapter of the Federal Bar Association, Memphis Bar Foundation, Young Lawyers Division of the Memphis Bar Association, Association of Legal Administrators, Greater Memphis Paralegal Alliance and Memphis area court reporters.
Download the flyer for more information
Your Practice
Excercise caution by using e-discovery
An article in the National Law Journal focuses on the unique aspects of electronic discovery in employment-related litigation. "All is not 'gloom and doom' for employers, but they should certainly exercise caution," writes the author.
Find out the details
Disciplinary Actions
Knoxville attorney suspended
On April 17, Knoxville lawyer John Earl Rainwater was suspended by the Tennessee Supreme Court for one year, retroactive to Sept. 1, 2007. Rainwater submitted a conditional guilty plea and agreed to accept the one-year suspension.
Read the BPR release
Memphis lawyer censured
On April 17, Memphis lawyer John Edward Dunlap received a public censure from the Tennessee Supreme Court. The court found that Dunlap failed to comply with applicable local rules before the U.S. Bankruptcy Court for the Eastern District of Arkansas, failed to comply with orders and instructions issued by the court, and demonstrated a pattern of dilatoriness in cases he handled before the court.
Read the BPR release
TBA Member Services
UPL enforcement resources available
The TBA Standing Committee on the Protection of the Public from the Unauthorized Practice of Law encourages all lawyers in Tennessee to be alert to the unauthorized practice of law (UPL), which harms Tennessee consumers. Resources now are available to help lawyers report UPL to local bar associations and the state attorney general. Local bars that do not already have a process in place for handling UPL complaints, may want to check out a sample protocol on TBALink.
Visit the UPL webpage for more information

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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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