Ash spill dominates legal, legislative news

One of the nation's leading class-action attorneys has joined lawyers in Knoxville and Clinton to file a federal suit against TVA on behalf of those who own waterfront property along the Clinch and Emory rivers and were affected by the Kingston Fossil Plant's ash spill. The lawyers are seeking class-action status for the suit and more than $5 million in damages. Meanwhile in Washington, D.C., the U.S. Senate Environment and Public Works Committee today held a hearing on the spill. Sen. Barbara Boxer, D-Calif., who chairs the committee, called for TVA to live up to its environmental stewardship mission and said the federal government should begin regulating coal ash. Sen. Lamar Alexander, R-Tenn., a member of the committee, said the TVA needs to regain the trust of area residents. Rep. Zach Wamp, R-Chattanooga, said the massive spill is "a Katrina-like event" and the federal government should help pay for cleanup and to compensate property owners. The News Sentinel covered these stories.
TODAY'S OPINIONS
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VIRGINIA PONDER v. G. F. OFFICE FURNITURE, LTD.

Court: TWCA

Attorneys:

Mark A. Baugh and Ben H. Bodzy, Nashville, Tennessee, for the appellant, G. F. Office Furniture, Ltd.

William J. Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Virginia Ponder.

Judge: HAYES

Employee, who was sixty-four years old at the time of trial, reported to Employer that she had been experiencing pain and numbness in her hands and pain in her shoulder over a period of time. Employee's primary job duties involved attaching upholstery to furniture for Employer. Employee had worked for Employer, a manufacturer of office furniture, for twenty-two years. Surgery was performed by an orthopaedic surgeon for carpal tunnel syndrome and left trigger thumb. The orthopaedic surgeon opined that the surgeries had resolved her conditions and assigned 0 percent permanent impairment. Employee, who subsequently reported continuing symptoms, received an evaluation by a second orthopaedic surgeon, who found her to have a 22 percent permanent partial disability to the body as a whole and recommended permanent physical restrictions. The trial court awarded Employee workers' compensation benefits based upon a finding of 80 percent permanent partial vocational disability. Employer argues the following on appeal: (1) that the trial court erred in declining to offset the award with social security benefits that Employee intends to receive upon reaching age sixty-six; (2) that the award is excessive; (3) that Employee failed to establish that her shoulder condition was a compensable injury; and (4) that the trial court erred by calculating Employee's award based upon 260 weeks of benefits, as opposed to 80 percent of 260 weeks of benefits. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2009/ponderv_010809.pdf


DEBRA M. BARKES ET AL. v. RIVER PARK HOSPITAL, INC., d/b/a RIVER PARK HOSPITAL (TN)
CORRECTION: On page 6, third paragraph, second line "be" changed to "been." On page 14, second paragraph, seventh line "principle" changed to "principal."


Court: TCA

Attorneys:

C. J. Gideon, Jr., Bryan Essary, and Brian Cummings, Nashville, Tennessee, for the appellant, River Park Hospital, Inc., d/b/a River Park Hospital.

David Randolph Smith and Edmund J. Schmidt III, Nashville, Tennessee, for the appellee, Debra M. Barkes, Individually and As Surviving Spouse of Jewell Wayne Barkes, Deceased.

Judge: CLEMENT

Wife of patient brought medical malpractice action for the wrongful death of her husband who died at home later in the same day that he was examined in the emergency room. The patient had been examined, diagnosed and discharged by a nurse practitioner without being seen by a physician. The only direct claim against the hospital was whether the hospital was liable because a written policy, which required that every patient presented to the emergency room be seen by a physician, was not followed by the health care providers in the Emergency Department. The jury returned a verdict exonerating all of the individual health care providers directly or indirectly involved with the care of the plaintiff's husband; however, the jury found that the hospital was 100% at fault for his death. The hospital appealed contending the jury's verdict must be set aside because it was inconsistent and irreconcilable. Because the jury found that none of the health care providers were at fault, the only basis for upholding the jury's verdict against the Hospital is upon the doctrine of corporate liability. Tennessee has not adopted the doctrine of corporate liability; therefore, the verdict, exonerating all individual health care providers of fault and finding the hospital 100 percent at fault, constitutes an inconsistent and irreconcilable verdict. We, therefore, reverse and remand the case for a new trial.

http://www.tba2.org/tba_files/TCA/2009/barkesd_Corr_010809.pdf


JAMES D. JACKS v. CITY OF MILLINGTON BOARD OF ZONING APPEALS

Court: TCA

Attorneys:

James D. Jacks, Pro se.

Timothy David Patterson and Edward J. McKenney, Jr., Memphis, Tennessee, for the appellee, City of Millington Board of Zoning Appeals.

Judge: FARMER

On appeal, the crux of Appellant's argument is that his local zoning board erred in determining that he could not use two structures on his property for human occupation. In support of this contention, Appellant argues that when reviewing the zoning board's decision, the trial court applied the wrong standard of review, misconstrued the zoning ordinances, excluded admissible evidence, and should have applied the doctrines of laches and equitable estoppel. On appeal, Appellee also asserted that Appellant's argument was moot. Because we do not agree that Appellee's case is moot, we review the merits of Appellant's claim. Finding no error, however, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/jacksj_010809.pdf


STATE OF TENNESSEE v. BEN THOMAS DOWLEN, JR.

Court: TCCA

Attorneys:

Greg Galloway (at trial), Nashville, Tennessee, and Jeffry S. Grimes (on appeal), Clarksville, Tennessee, for the Appellant, Ben Thomas Dowlen, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; William C. Whitesell, District Attorney General; Thomas Parkerson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Ben Thomas Dowlen, Jr., pled guilty to attempted possession of a schedule I substance, a Class C felony, and agreed to a sentence of ten years as a Range II offender. The trial court imposed the agreed upon sentence, denied alternative sentencing, and ordered the Defendant to serve his ten-year sentence in prison. The Defendant appeals, contending the trial court erred when it denied the Defendant an alternative sentence. After thoroughly reviewing the record and applicable authorities, we conclude the trial court did not err when it denied alternative sentencing. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/dowlenb_010809.pdf


STATE OF TENNESSEE v. BENJAMIN MONROE

Court: TCCA

Attorneys:

G. Frank Lannom and Melanie R. Bean, Lebanon, Tennessee, for the appellant Benjamin D. Monroe.

Robert E. Cooper, Jr., Attorney General and Reporter; PrestonShipp, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General, and Laura Bush, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant pled guilty in the Wilson County Criminal Court to one count of vehicular homicide, one count of vehicular assault, and one count of leaving the scene of the accident. In exchange for the guilty pleas, Appellant received sentences of three years, two years, and one year, respectively. The trial court held a sentencing hearing to determine the manner of service of the sentence. The trial court ordered Appellant to serve eight months of the sentence day-for-day, followed by ten years of probation. Appellant seeks review of the sentence on appeal. We determine that the trial court erroneously deprived Appellant of good conduct credits by ordering him to serve eight months of the sentence day-for-day. Consequently, we reverse that portion of the sentence and remand to the trial court for entry of an order deleting the requirement that the sentence be served day-for-day. The remainder of the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/monroeb_010809.pdf


MAURICE WILSON v. JAMES FORTNER, WARDEN

Court: TCCA

Attorneys:

Maurice Wilson, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General; Kim Helper, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner, Maurice Wilson, appeals the trial court's dismissal of his second petition for habeas corpus relief. Upon a review of the record, we are persuaded that the trial court correctly found that the Petitioner is not entitled to habeas corpus relief. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wilsonm_010809.pdf


TODAY'S NEWS

Legal News
Politics
Disciplinary Actions
TBA Member Services

Legal News
Court to rule on medical liability
The legal cure for out-of-state patients suffering malpractice at the hands of interns and residents at Tennessee's teaching hospitals now rests with the state Supreme Court. The state attorney general's office is seeking a ruling that would make it difficult, if not impossible, for out-of-state patients to seek malpractice damages from state-employed medical students. The court heard arguments yesterday in Knoxville.
The News Sentinel has the story
Merger expands firms' services
Brentwood based McCann & Hubbard has merged with Stonegate Title LLC and Keith H. Solomon to form McCann, Hubbard & Solomon Attorneys At Law. In addition to residential commercial real estate, business law, contract law, non-profit law, probate, estate planning, and copyright and trademark, the firm will now provide support for general litigation and family law cases.
View a photo of the new team
Firm collects for Memphis government
As the economic crisis mounts and tax revenues plunge it is critical for cities to collect as much in back taxes as possible. A Texas-based law firm is doing what it can to meet that need. Linebarger, Goggan, Blair & Sampson has 1,900 local, state and federal governments -- including the city of Memphis -- as clients. In a little over four years, the firm has collected $114.3 million for the city.
The Commercial Appeal has more
Company ordered to set aside funds for claims
BlueHippo, a company that markets computers nationwide to people with poor credit, was ordered Wednesday to set aside $1 million to cover potential claims from Tennesseans. The state attorney general's office is suing the company, accusing it of misleading customers. It had asked for a deposit of $2.5 million after estimating that 4,500 customers were lured into buying computers that cost hundreds of dollars more than expected.
WJHL NewsChannel 11 has the story
Study links laptops, student engagement
Findings from a new national study show that law students who use laptop computers for academic activities in class are more likely to come to class prepared, contribute to class discussions, synthesize material across courses and work harder to meet faculty expectations. The report from the Law School Survey of Student Engagement is based on information from more than 29,000 law students at 85 law schools.
Read a summary of the report
Politics
Candidate undecided on Tennessee Plan
Meeting with Nashville reporters yesterday, Knoxville Mayor and gubernatorial candidate Bill Haslam said he wants to study the state system for selecting top judges before giving an opinion on the process.
The News Sentinel reports on the interview
Deputy governor steps down
Stuart Brunson, deputy governor and chief of staff to Gov. Phil Bredesen, will leave his post this week, according to the NashvillePost.com. Brunson has served as Bredesen's top aide for the past two years and previously managed both of Bredesen's successful gubernatorial campaigns. The governor has not named a replacement.
Read more
Disciplinary Actions
Nashville lawyer reinstated
Nashville lawyer Edward Victor Longinotti III has been reinstated to the practice of law after paying all delinquent fees and penalties.

TBA Member Services
UPL enforcement resources available
The TBA Committee on the Protection of the Public from the Unauthorized Practice of Law encourages local bar leaders to review the sample protocol for handling UPL complaints and to urge adoption by local bar associations. The sample protocol is available on the TBA website, along with the other UPL resources.
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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