CLE Webcast: Contracts to be Enforced as Written -- or Not!

Knoxville attorney Francis L. Lloyd Jr. of Kramer Rayson LLP takes a new look at this Tennessee Code provision and at contractual language drafted in recognition of it, and perhaps amendment of the former, in the hope of rendering written "no oral modification" clauses truly enforceable as written. Register or find out more about Thursday's noon (CDT) program.
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
05 - TN Court of Appeals
01 - TN Court of Criminal Appeals
01 - 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.

DEW ROY NEAL v. TRW COMMERCIAL STEERING DIVISION

Court: TWCA

Attorneys:

Richard Lane Moore, Cookeville, Tennessee for the appellant, TRW Commercial Steering Division.

Debbie C. Holliman and E. Guy Holliman, Carthage, Tennessee, for the appellee, Dew Roy Neal.

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 trial court awarded 50 percent permanent partial disability for loss of hearing in both ears to the employee, Dew Roy Neal. The employer, TRW Commercial Steering Division (TRW), appealed, contending that the claim was barred by the statute of limitations; that the trial court erred in excluding excerpts from Mr. Neal's discovery deposition from evidence; that the trial court erred in apportioning the award to a scheduled member, rather than the body as a whole; that the amount of the award was excessive; and that the trial court did not have jurisdiction over the subject matter of the case. We hold that the award should have been apportioned to the body as a whole. As a result, Tennessee Code Annotated section 50-6-241(a)(1) limits the award to two and one-half times the impairment rating. The award is therefore modified to 5 percent permanent partial disability to the body as a whole. We also find that the trial court erred in excluding the deposition excerpts, but that the error was harmless. The judgment is affirmed in all other respects.

http://www.tba2.org/tba_files/TSC_WCP/2008/neald_060408.pdf


ANDREW H. BLACKBURN v. CSX TRANSPORTATION, INC.
CORRECTION on pages 7,8,14,15,16,19


Court: TCA

Attorneys:

James G. Thomas, William T. Ramsey, Nashville, Tennessee; Andrew Lampros, Atlanta, Georgia, for the appellant, Andrew H. Blackburn.

Christopher W. Cardwell, Mary Taylor Gallagher, Nashville, Tennessee, for the appellee, CSX Transportation, Inc.

Judge: COTTRELL

We granted an application for extraordinary appeal to determine whether the trial court erred when it granted a new trial in this case. The trial court granted the railroad a new trial based on insufficiency of the evidence, thereby setting aside an almost three million dollar verdict for plaintiff in this case under the Federal Employers' Liability Act ("FELA"). Since we find that the federal standard requiring the verdict to be against the "clear weight" of the evidence governs and that the trial court erroneously applied the Tennessee standard, we vacate the judgment granting a new trial and remand the case for consideration of the motion for new trial in accordance with this opinion.

http://www.tba2.org/tba_files/TCA/2008/blackburna_CORR_060408.pdf


TANYA GAY PIPPIN (YEARSLEY) v. DAVID C. PIPPIN, JR.

Court: TCA

Attorneys:

Mitchell A. Byrd, Chattanooga, Tennessee, for the Appellant, David C. Pippin, Jr.

Linda B. Hall, Soddy Daisy, Tennessee, for the Appellee, Tanya Gay Pippin (Yearsley).

Judge: SWINEY

Tanya Gay Pippin ("Mother") and David C. Pippin ("Father") were divorced in 2004 following a twelve year marriage. Mother was designated the primary residential parent for the parties' two children. In June of 2005, Father filed a petition seeking to change custody. The petition was resolved by agreement following mediation and a revised permanent parenting plan and accompanying order were entered in January of 2006. Mother remained the children's primary residential parent. In December of 2006, Father filed a second petition for change of custody. The Trial Court determined that Father had failed to establish that a material change in circumstances had occurred after entry of the January 2006 order. The primary reason for the Trial Court's ruling was that all but one of Father's alleged changes in circumstance either were known or reasonably anticipated when the January 2006 order was entered, and the one new change did not constitute a material change for purposes of changing custody. Father appeals raising various issues. We affirm.

http://www.tba2.org/tba_files/TCA/2008/pippint_060408.pdf


CHARLIE ROBERTSON v. TRACY MAYES

Court: TCA

Attorneys:

Jennifer L. Evans, Springfield, TN, for Appellant.

No appearance by Appellee.

Judge: HIGHERS

This appeal involves a petition for custody of two minor children. The juvenile court named the father primary residential parentwe affirm.

http://www.tba2.org/tba_files/TCA/2008/robertsonc_060408.pdf


JAMES G. THOMAS, JR., EX REL. KAREN G. THOMAS v. ELIZABETH
CORRECTION: Judge Kurtz's middle initial changed from J. to C.


Court: TCA

Attorneys:

William D. Leader, Jr., and John B. Carlson, Nashville, Tennessee, for the appellant, James G. Thomas, Jr., brother and next of kin of Karen G. Thomas, deceased.

C. J. Gideon, Jr., and Margaret Moore, Nashville, Tennessee, for the appellee, Crockett Hospital, LLC.

Judge: CLEMENT

The issue on appeal in this medical malpractice action is whether the hospital is vicariously liable for the acts or omissions of an emergency room physician. The trial court summarily dismissed all claims against the hospital finding that it was not vicariously liable for the conduct of the emergency room physician because he was neither its actual or apparent agent. We find the trial court correctly granted summary judgment to the hospital on the issue of actual agency because there are no material facts in dispute and the hospital is entitled to summary judgment on the issue of actual agency as a matter of law. We, however, find that material facts are in dispute concerning whether the hospital held itself out to the public as providing medical services; whether the plaintiff looked to the hospital rather than to the individual physician to perform those services; whether the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee; and, if so, whether the hospital provided meaningful notice to the plaintiff at the time of admission that the emergency room physician was not its agent. Accordingly, we have determined the hospital was not entitled to summary judgment on the issue of apparent agency. Therefore, we remand to the trial court the issue of apparent agency for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2008/thomasj_CORR_060408.pdf


PATTI AND JAMES WEIDMAN v. BRITTANY RENEE CHAMBERS

Court: TCA

Attorneys:

Thomas H. Miller, Nashville, Tennessee, for the appellant, Brittany Renee Chambers.

C. Michael Cardwell, Nashville, Tennessee, for the appellees, Patti and James Weidman.

Gayle Dimmick, Nashville, Tennessee, Guardian Ad Litem.

Judge: BENNETT

Mother appeals the trial court's decision terminating her parental rights, arguing that the trial court erred in finding that she abandoned the children and in finding that the conditions that led to the children's removal from her custody persisted and were not likely to be remedied at an early date. Because we have concluded that the petitioners failed to provide sufficient notice regarding the abandonment grounds and did not present clear and convincing evidence of the other ground for termination, we reverse the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2008/weidmanp_060408.pdf


STATE OF TENNESSEE v. JASON LEBRON ROGERS

Court: TCCA

Attorneys:

Robin Ruben Flores, Chattanooga, Tennessee, for the Appellant, Jason Lebron Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; William H. Cox, III, District Attorney General; M. Neal Pinkston and Rachel L. Winfrey, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Hamilton County jury found the Defendant, Jason Lebron Rogers, guilty of facilitation to commit first degree felony murder and especially aggravated robbery. The trial court sentenced him to twenty-three years for the facilitation conviction and twenty-four years for the especially aggravated robbery conviction and ordered the sentences to run concurrently. On appeal, the Defendant contends: (1) the trial court did not properly rule on his motion for a directed verdict; (2) the evidence is insufficient to sustain his conviction of facilitation to commit first degree felony murder; (3) the trial court should have declared a mistrial based upon a biased juror; (4) the trial court committed several evidentiary errors; (5) the State's closing argument constituted prosecutorial misconduct; and (6) the trial court erred in sentencing the Defendant when it applied two enhancement factors. We affirm the Defendant's convictions. With regard to sentencing, we conclude that, pursuant to Blakely v. Washington, 542 U.S. 296 (2004), the trial court erred when it applied two enhancement factors. We, therefore, reduce the Defendant's sentences from twenty-four and twenty-three years respectively to twenty-one years, and we remand to the trial court for entry of amended judgments reflecting the modified sentences.

http://www.tba2.org/tba_files/TCCA/2008/rogersj_060408.pdf


Clerks Fees in Department of Human Services Child Support Enforcement Actions

TN Attorney General Opinions

Date: 2008-06-04

Opinion Number: 08-115

http://www.tba2.org/tba_files/AG/2008/ag_08_115.pdf

TODAY'S NEWS

Legal News
Practice Management
TBA Member Services

Legal News
Sept. 11 suspects to be arraigned Thursday
The alleged mastermind of the Sept. 11 attacks and four accused conspirators are scheduled to be arraigned tomorrow at Guantanamo Bay as prosecutors seek a Sept. 15 trial date. Military law experts tell the Washington Post the case could be one of the most important criminal trials in modern U.S. history.
Read the article
Judge's recusal sought over election year politics
A Blount County attorney has asked Circuit Court Judge Mike Meares to recuse himself from a pending criminal case given the highly politicized atmosphere surrounding the judge's election bid. Also at issue is the fact that the attorney openly supports Meares' election opponent, Blount County General Sessions Judge David Duggan, and was one of the late night recipients of a order to produce documents related to a local rule controversy.
Read more from the News Sentinel
Volunteers needed for Wills for Heroes
During the TBA's annual convention in Gatlinburg next week, the Young Lawyers Division will produce the state's first Wills for Heroes program. On Friday, June 13, volunteer lawyers will provide basic estate planning services on a pro bono basis to law enforcement and fire fighters from Sevier County and your assistance is needed. Even if you are not attending the convention, please consider helping out with this effort. Shifts will run from 9 a.m. to noon and again from 2 to 4 p.m. For more information or to volunteer contact Knoxville lawyer Chris W. McCarty at cmccarty@lewisking.com
Learn more about Wills for Heroes
Former Blount magistrate pleads guilty
Former Blount County magistrate Dustin Hatcher pleaded guilty Tuesday to one charge of sexual exploitation of a 17-year-old girl as part of an agreement with prosecutors, reports the Knoxville News Sentinel. According to the terms of the plea, Hatcher accepted the maximum sentence for the felony -- up to four years in prison. He will be sentenced in August. The girl, who won a $45,000 civil judgment last year, claimed Hatcher forced her to don lingerie and then photographed her in his government office.

Bonnyman wins economic justice award
Gordon Bonnyman Jr., executive director and co-founder of the Tennessee Justice Center, has received the Economic Justice Award from the National Center for Law and Economic Justice (NCLEJ). The award was presented to Bonnyman last night during the organization's annual awards dinner in New York City. He is the first Tennessean to receive the award. NCLEJ advances the cause of economic justice for low-income families, individuals and communities across the country.
Learn more about the organization
Legal analyst predicts future Justice Obama
CNN legal analyst Jeffrey Toobin is predicting higher office for Sen. Barack Obama, saying he will be on the U.S. Supreme Court someday. Toobin argued in a speech Monday night that the court needs public officials, not just appeals court judges among its ranks.
Read about his comments in the Saginaw News
Youth commission director wins child advocacy award
Linda O'Neal, executive director of the Tennessee Commission on Children and Youth, has been honored by the Coalition for Juvenile Justice in Washington, D.C. for her work on behalf of children. The coalition is a national nonprofit association representing governor-appointed, state advisory groups on juvenile justice.
The Tennessean reported the award
Practice Management
Firms get creative with summer associates
Despite the economic downturn, some law firms are planning to provide memorable activities for their new recruits. Summer associates at a New York firm attended the play Thurgood about the late Justice Thurgood Marshall and met with its star, Laurence Fishburne. Another New York firm is renting out an entire Nintendo store for a Wii competition. A D.C. firm will offer a Segway tour of the nation's capital, while another office will host a wine and cheese party with art lessons. But it's not good news everywhere. Many firms are cutting back on summer associates and law students are increasingly circumspect about the job market.
Legal Times reports
TBA Member Services
Free Fastcase CLE helps build research skills
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.

Online training sessions are also available. The TBA and Fastcase offer free one-hour CLE webinars to help you use Fastcase online research more effectively in your practice.
Access Fastcase now

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2008 Tennessee Bar Association