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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.

02 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
02 - TN Court of Criminal Appeals
03 - 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.

JAMES G. THOMAS, JR., Brother and Next of Kin of Karen G. Thomas, Deceased v. ELIZABETH OLDFIELD, M.D. ET AL.

Court: TSC

Attorneys:

William D. Leader, Jr., and Erin P. McDaniel, Nashville, Tennessee, for the appellant, James G. Thomas, Jr.

Darrell G. Townsend, Nashville, Tennessee, for the appellees, Charles V. Love, M.D., and Emergency Coverage Corporation.

Bradford D. Box and Spencer R. Barnes, Jackson, Tennessee, for the amicus curiae, Tennessee Defense Lawyers Association.

H. Anthony Duncan, Nashville, Tennessee, for the amicus curiae, Tennessee Association for Justice.

Judge: HOLDER

The plaintiff filed interrogatories and requests for production seeking information concerning the defendants' liability insurance coverage. When the defendants objected to providing this information, the plaintiff filed a motion to compel discovery pursuant to Tennessee Rule of Civil Procedure 37.01. The trial court ruled that the information was subject to discovery pursuant to Tennessee Rule of Civil Procedure 26.02 and granted the plaintiff's motion to compel and the defendants' request for an interlocutory appeal. The Court of Appeals reversed the trial court's order, holding that information concerning the defendants' liability insurance coverage was not discoverable under Rule 26.02. We affirm the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2009/thomasj_020309.pdf


U.S. BANK, N.A., as servicer for the TENNESSEE HOUSING DEVELOPMENT AGENCY v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY
CORRECTION


Court: TSC

Attorneys:

Michael F. Rafferty, Memphis, Tennessee, for the appellant, U.S. Bank, N.A., as Servicer for the Tennessee Housing Development Agency.

Charles L. Trotter, Jr., Huntingdon, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Michael R. Campbell and Kathryn M. Russell, Chattanooga, Tennessee, for the Amicus Curiae, Property Casualty Insurers Association of America.

Daniel W. Small, Paul Allen England, and Timothy L. Amos, Nashville, Tennessee, for the Amicus Curiae, Tennessee Bankers Association.

Robert V. Redding, Jackson, Tennessee, for the Amicus Curiae, Mortgage Bankers Association.

Judge: LEE

The issue presented in this case is whether the commencement of foreclosure proceedings constitutes an increase in hazard for notice purposes under a standard mortgage clause in an insurance policy. The parties to this dispute are the bank that loaned funds to a homeowner for the purchase of a house and the insurance company that issued a personal fire and extended coverage insurance policy on the premises. After the homeowner became delinquent on her payments, the bank began foreclosure proceedings by notifying the homeowner of its intent to foreclose on the house. No notification of the foreclosure was given to the insurance company which insured the house against fire loss. Before the foreclosure process was complete, the homeowner filed for bankruptcy, which stayed the foreclosure proceedings. Thereafter, the house was destroyed by fire. The insurance company refused to pay the insurance proceeds to the bank on the theory that the commencement of foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company under the policy. The bank filed suit against the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act. The trial court granted partial summary judgment to the bank, concluding that the bank's failure to give the insurer notice of the foreclosure proceedings did not invalidate the insurance coverage. The Court of Appeals reversed, finding that the bank's initiation of foreclosure proceedings amounted to an increase in hazard under the policy and the bank's failure to provide notice precluded coverage. After careful review, we conclude that commencement of foreclosure proceedings does not constitute an increase in hazard under the terms of the insurance policy or the applicable statutory provisions, and therefore, no notice was required to be given to the insurance company. Accordingly, we reverse the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2009/usbank_Corr_020309.pdf


LISA MADDEN v. THE HOLLAND GROUP OF TENNESSEE, INC.

Court: TWCA

Attorneys:

Kirk L. Clements, Goodlettsville, Tennessee, for the appellant, Lisa Madden.

Kitty Boyte, Nashville, Tennessee, for the appellee, The Holland Group of Tennessee, Inc.

Judge: ANDERSON

We granted review in this workers' compensation appeal to determine whether the Employee was eligible for benefits under Tennessee law after she suffered a work-related injury in Kentucky. In affirming the trial court's dismissal of the complaint, a majority of the Special Workers' Compensation Appeals Panel concluded that the Employee failed to show that her contract for hire was formed in Tennessee or that there was a substantial connection between Tennessee and her employee-employer relationship at the time of injury. See Tenn. Code Ann. section 50-6-115. After reviewing the record and applicable authority, we affirm the Panel's judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/maddenl_020309.pdf


KENDALL JAEGER v. CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

P. Brocklin Parks and Bryan Stephenson, Nashville, Tennessee, for the appellant, Kendall Jaeger.

Sue B. Cain, J. Brooks Fox, and Elizabeth A. Sanders, Nashville, Tennessee, for the appellee, Civil Service Commission of the Metropolitan Government of Nashville and Davidson County, Tennessee.

Judge: DINKINS

Civil Service Employee challenged the removal of his name from a promotional eligibility list. Employee was fifth on the list when he resigned from civil service employment. Civil service policy was to remove an employee's name from the relevant promotional eligibility list upon his or her departure from civil service employment, except in the case of lay offs; however, due to human error Employee's name was not removed from the list. Employee subsequently returned to civil service employment and was told that he would be promoted from the promotional eligibility list upon the successful completion of a six-month probationary period. At the end of that period, Employee was told he would not be promoted because his name should not have remained on the list after he resigned. Employee filed a grievance and upon an administrative review by a Civil Service Commissioner, the Metropolitan Government was ordered to reinstate Employee to the promotional eligibility list at issue. A review by the full Civil Service Commission reversed the order of the Commissioner. Employee appealed to the Chancery Court for Davidson County which held that while Civil Service policy did not require Employee's name to be removed, the case was moot because the promotional eligibility list at issue had expired. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/jaegerk_020309.pdf


JEFFERY AARON LANE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellant, the State of Tennessee.

Jason R. McLellan, Kingsport, Tennessee, for the appellee, Jeffery Aaron Lane.

Judge: WOODALL

The State appeals the Sullivan County Criminal Court's grant of post-conviction relief to Petitioner, Jeffery Aaron Lane, from his conviction for identity theft, a Class D felony. After a thorough review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/lanej_020309.pdf


STATE OF TENNESSEE v. DAVID DWAYNE SMITH

Court: TCCA

Attorneys:

C. Douglas Fields, Crossville, Tennessee, for the appellant, David Dwayne Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randy York, District Attorney General; Gary McKenzie, Assistant District Attorney General; and Doug Crawford, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, David Dwayne Smith, was found guilty of first degree premeditated murder and conspiracy to commit first degree premeditated murder. Defendant was sentenced to life imprisonment with the possibility of parole for his murder conviction and a concurrent sentence of twenty years for his conspiracy conviction. On appeal, Defendant argues that (1) the evidence is insufficient to support his convictions; (2) the testimony of Defendant's accomplices was insufficiently corroborated; (3) the prosecutor engaged in prosecutorial misconduct during trial and during closing argument; (4) the State failed to fully disclose the terms of Hunter Oakes' negotiated plea agreement with the State; (5) the trial court erred in ruling inadmissible, testimony concerning the victim's and Lesa Regan's out-of-court statements; (6) the trial court's exclusion of these statements violated his constitutional right to present a defense; (7) the trial court erred in not allowing Defendant to introduce a video tape of the reconstruction of the offense; (8) the trial court erred in allowing the introduction of Defendant's verbal and nonverbal out-of-court statements; (9) the trial court erred in denying Defendant's request for a continuance; (10) the trial court erred in failing to require the State to make an election of offenses; and (11) there was a fatal variance between the bill of particulars and the proof presented at trial. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/smithd_020309.pdf


Effect of Preemption and Commerce Clause on State Law Concerning Toxic Substances in Toys

TN Attorney General Opinions

Date: 2009-02-02

Opinion Number: 09-09

http://www.tba2.org/tba_files/AG/2009/ag_09-09

Scope of Tenn. Code Ann. Section 56-7-120 on Assignment of Benefits

TN Attorney General Opinions

Date: 2009-02-02

Opinion Number: 09-10

http://www.tba2.org/tba_files/AG/2009/ag_09-10.pdf

Consumption of Alcoholic Beverages on the Premises in Unincorporated Areas of a County

TN Attorney General Opinions

Date: 2009-02-03

Opinion Number: 09-11

http://www.tba2.org/tba_files/AG/2009/ag_09_11.pdf

TODAY'S NEWS

Legal News
Legislative News
Passages
TBA Member Services

Legal News
Henley asks U.S. Supreme Court for delay until other case is decided
Steve Henley, who is scheduled to be executed Wednesday at 1 a.m., has asked the U.S. Supreme Court to intervene. The justices currently have before them another capital case from Tennessee that concerns whether poor death row inmates seeking mercy from state officials have a right to lawyers paid for by federal taxpayers. Henley is asking the court to prevent his execution at least until that case is decided. Read Henley's application for stay and appendices, and the respondent's brief in opposition.
Follow the news in the Tennessean
Many states now use daytime executions instead of midnight
Of the 34 states where the death penalty has been carried out, 15 states, including Tennessee, still execute inmates in the middle of the night. Many states have adjusted their schedules in recent years, and the vast majority of U.S. executions now occur during daylight or early evening hours when courts are more accessible, according to an Associated Press review. Double-murderer Steve Henley is set to die by injection at 1 a.m. CST Wednesday at Riverbend prison in Nashville. Advocates for changing the time of executions say it's easier for judges and staff, with better access for last-minute questions.
The Daily Times reports
Holder is confirmed
Eric Holder won Senate confirmation today as the nation's first African-American attorney general. Holder was a federal prosecutor, judge and the No. 2 Justice Department official in the Clinton administration.
Read more about him and the process in this AP story
AG reissued opinion, still no liquor by the drink in Knox
The state attorney general has reaffirmed a legal opinion declaring that liquor-by-the-drink cannot be sold in unincorporated areas of Knox County, even though voters authorized such sales in a November referendum. "While there were differences of opinion, the belief held by many was that if the citizens of Knox County voted to approve this measure, then it would happen," said Senate Speaker Pro Tempore Jamie Woodson. "It's unfortunate that legal scholars disagree on it, but we have a remedy and we will pursue it." Read the AG opinion.
The News Sentinel reports
10 vie to fill 30th Judicial Court seat
Ten candidates have filed to fill the 30th Judicial Court seat left vacant by the death of Judge Rita Stotts. The deadline for applications was today. Those who have filed are: Mischelle Alexander-Best of the Shelby County Public Defender's Office in Memphis; Jeff A. Crow Jr., attorney at law; Michael G. Floyd of the Memphis and Shelby County Juvenile Court; Gina Carol Higgins of Higgins & Johnson; Sean Antone Hunt of Spicer, Flynn & Rudstrom; Memphis City Schools attorney Monika Lorice Johnson; Venita Marie Martin of Glankler Brown; Antonio L. Matthews of Baker, Donelson, Bearman, Caldwell & Berkowitz; Lorrie K. Ridder of Luckett Pinstein Ridder; Gerald Daniel Skahan of Lucchesi & Skahan.

Legislative News
DeBerry hospitalized
House Speaker Pro Tem Lois DeBerry was hospitalized this afternoon. Her husband, Charles Traughber, wouldn't specify the reason for her hospitalization, but told The Associated Press today that "she is doing well." DeBerry, 63, has been a member of the House since 1973. She's the first black woman to hold the chamber's No. 2 position.
The Tennessean reports
Passages
Parsons attorney dies Sunday
Parsons attorney Edwin Clay Townsend died Sunday at his home. He was 84. A World War II veteran, Mr. Townsend earned bachelors and law degrees from Cumberland University in Lebanon and later a doctorate in law from Samford University in Birmingham. Throughout his career, he served in various professional, civic and community organizations, including the Board of Professional Responsibility of the Supreme Court of Tennessee. He was also a member of the 1977 Limited Constitutional Convention.
Read more about Mr. Townsend in the Jackson Sun
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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