Watch for TBA ballots in your mail

Tennessee Bar Association members who did not vote electronically earlier this month should receive a paper ballot in the mail this week giving them an opportunity to vote in the contested race to choose a new TBA vice president. Members this year are choosing from two candidates -- Jackson attorney Linda Warren Seely and Memphis attorney Danny Van Horn. The winner will advance to become president-elect in 2010 and then TBA president in 2011. Paper ballots must be returned by May 1.
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.

01 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
04 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2009/certlist_033009.pdf


LISA HOLT v. MAXIM HEALHCARE SERVICES, INC. ET AL.

Court: TWCA

Attorneys:

Stephen W. Elliott and Alison Deshae Hunley, Nashville, Tennessee, for the appellants, Maxim Healthcare Services, Inc. and Hartford Underwriters Insurance Company.

Jay E. DeGroot, Jackson, TennessJay E. DeGroot, Jackson, Tennessee, for the appellee, Lisa Holt.

Judge: HARRIS

In this workers compensation action, the trial court found that the employee, Lisa Holt, had sustained a compensable injury and awarded 50% permanent partial disability to the body as a whole. The employer, Maxim Healthcare Services, Inc., has appealed, contending that the evidence preponderates against the trial courts finding of a compensable injury. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2009/holtl_033009.pdf


TRINIDY WARE v. McKESSON CORPORATION

Court: TWCA

Attorneys:

Christopher L. Taylor, Memphis, Tennessee, for the appellant, Trinidy Ware.

Thomas P. Cassidy, Jr. and Cliston V. Bodine, III, Memphis, Tennessee, for the appellee, McKesson Corporation.

Judge: HARRIS

In this workers' compensation action, the employee alleged that he sustained an injury to his lower back on May 1, 2002. The trial court ruled that the employee had failed to carry his burden of proving that he had sustained a compensable injury. The employee appealed, contending that the evidence preponderates against the trial court's finding. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/waret_033009.pdf


METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. THE ALLEN FAMILY TRUST ET AL.

Court: TCA

Attorneys:

Winston S. Evans, Nashville, Tennessee, for the appellants, Allen Family Trust, Dean R. Allen and Shirlee A. Allen, Trustees.

James Earl Robinson and Philip Daniel Baltz, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: BENNETT

Metropolitan government instituted condemnation proceedings against property owners to acquire an easement for the construction of a sewer line. The trial court granted Metro's request for an order of possession. On appeal, property owners challenge the trial court's determination that the power of eminent domain was being exercised for a public use. We affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2009/allenfamily_033009.pdf


BARBARA AUSTIN, ET AL. v. STEVE ALLEN, ET AL.

Court: TCA

Attorneys:

Frank M. Fly, James Bryan Moseley, and Luke A. Evans, Murfreesboro, Tennessee, for the appellants, Stephen B. Austin and Barbara Austin.

W. Stanley Bennett and Dinah J. Michael, Murfreesboro, Tennessee, for the appellees, Steve Allen and Pam Allen.

Judge: DINKINS

Plaintiffs' complaint raised several causes of action relating to the removal of Defendants' fence and the enforcement of a drainage easement. The jury found that the Plaintiffs were not entitled to relief under any cause of action. The trial court entered judgment in accordance with the jury's verdict and awarded discretionary costs to the Defendants. On appeal, the Plaintiffs challenge the verdict form and jury instructions as improper; the lack of material evidence in support of the verdict; the trial court's abuse of its role as thirteenth juror; the trial court's reliance on an affidavit containing false statements in denying Plaintiffs' motion for partial summary judgment; the trial court's abuse of its discretion in making evidentiary and argument decisions; and the award of costs as improper. Finding that the award of costs under Rule 68 was an abuse of discretion, we vacate the award; we modify the award of costs under Rule 54. The decision of the trial court in all other respects is affirmed.

http://www.tba2.org/tba_files/TCA/2009/austinb_033009.pdf


RITCHIE BENNETT v. NISSAN NORTH AMERICA, INC.

Court: TCA

Attorneys:

William J. Butler, Lafayette, Tennessee, for the appellant, Ritchie Bennett.

Keith D. Frazier, Nashville, Tennessee, for the appellee, Nissan North America, Inc.

Judge: DINKINS

Employee was placed on leave and not allowed to return to work as a production technician for an automobile manufacturer based on an individual holistic medical evaluation conducted at the request of Employer following Employee's recovery from a work-related injury and subsequent surgery. Employee filed suit against Employer alleging Employers failure to return Employee to work constituted a discriminatory action in the terms and condition of his employment due to Employee's physical handicap in violation of the Tennessee Handicap Act ("THA") and the Tennessee Human Rights Act ("THRA"). While the case was pending Employee accepted a voluntary termination that was offered to all employees. The trial court granted summary judgment for Employer finding Employee was not a "qualified" individual with a "disability" or regarded as such by Employer as required by the statute. We have determined that the trial court erred in granting summary judgment on the ground that Employee did not meet the statutory definition of "disabled." We have determined, however, that summary judgment on the ground that Employee was not a "qualified" individual for the position, as required by Tennessee anti-discrimination laws, was proper. Accordingly, we affirm the trial court's grant of summary judgment, as modified.

http://www.tba2.org/tba_files/TCA/2009/bennettr_033009.pdf


ROY B. PARSONS, JR., Individually, and as next of kin of EMMA JEAN PARSONS, deceased, v. DARLA JANE NEWTON

Court: TCA

Attorneys:

Daniel D. Coughlin, Bristol, Tennessee, for appellant, Darla Jane Newton.

Albert J. Harb, Knoxville, Tennessee, for appellee, Roy B. Parsons.

Judge: FRANKS

In this action plaintiff filed for uninsured motorist coverage for the death of his wife who was a passenger in her vehicle at the time of the accident from his insured, State Farm. The Trial Judge held State Farm's policy's uninsured motorist coverage was applicable to the deceased and defendant has appealed. We reverse the Judgment of the Trial Court on the grounds that only GMAC's policy on decedent's vehicle provided uninsured motorist coverage.

http://www.tba2.org/tba_files/TCA/2009/parsonsr_033009.pdf


ALLISON LYNN SIMMONS v. RICHARD LEE SIMMONS

Court: TCA

Attorneys:

J. Todd Faulkner, Nashville, Tennessee, for the appellant, Richard Lee Simmons.

Kimberly Lane Reed-Bracey, Goodlettsville, Tennessee, for the appellee, Allison Lynn Simmons.

Judge: DINKINS

Husband appeals two convictions of contempt of court and sentence of two days incarceration for each finding of contempt. Finding no error on the part of the trial court, we affirm the convictions.

http://www.tba2.org/tba_files/TCA/2009/simmonsa_033009.pdf


STATE OF TENNESSEE v. GREGORY A. FRYE

Court: TCCA

Attorneys:

Paul Edward Meyers, II, Assistant Public Defender, Jackson, Tennessee, for the defendant-appellant, Gregory A. Frye.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth D. Marney, Assistant Attorney General; James G. Woodall, District Attorney General; and Anna Cash, Assistant District Attorney General, for the appellee, State of Tennesseee.

Judge: MCMULLEN

The Defendant-Appellant, Gregory A. Frye ("Frye"), pled guilty in the Madison County Circuit Court to driving under the influence ("DUI"), third offense, and was sentenced to eleven months, twenty- nine days in confinement. The sole issue presented for our review is whether the trial court erred in ordering Frye to serve his sentence consecutively to unrelated convictions for which he was currently serving a sentence. Following our review of the record and the applicable authorities, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/fryeg_033009.pdf


STATE OF TENNESSEE v. KELLY HILL

Court: TCCA

Attorneys:

Claudia S. Jack, District Public Defender, and Sharon D. Aizer, Assistant Public Defender, for the appellant, Kelly Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Kelly Hill, by means of a Rule 10 interlocutory appeal, seeks review of the Maury County Circuit Court's ruling that the assistant district attorney general did not abuse his discretion in denying her application for pretrial diversion. Following review of the record, we conclude that the relevant factors were properly considered by the assistant district attorney general and that no abuse of discretion occurred. Accordingly, we affirm the trial court's denial of the defendant's application for diversion.

http://www.tba2.org/tba_files/TCCA/2009/hillk_033009.pdf


MARVIN LEE HOLT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

D. Scott Wilder, Nashville, Tennessee, for the appellant, Marvin Lee Holt.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Marvin Lee Holt, appeals the post-conviction court's denial of his petition for post- conviction relief in which he alleged that his best interest pleas of guilty were not voluntarily and knowingly entered into, and that his trial counsel rendered ineffective assistance. After a thorough review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/holtm_033009.pdf


STATE OF TENNESSEE v. HERMAN JONES

Court: TCCA

Attorneys:

Garland Erguden, (on appeal), Michael Johnson (at trial), Assistant Public Defenders, Memphis,Tennessee, for the appellant, Herman Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Damon Griffin, Michelle Parks and Patience Branham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

Pursuant to a negotiated plea agreement, the defendant, Herman Jones, pleaded guilty to theft of property over $1,000 and evading arrest, Class D felonies. As a result, he was sentenced to concurrent sentences of four years as a Range II offender to be served in community corrections with the first year to be served in the Synergy drug treatment program. Subsequently, the trial court revoked the community corrections sentences and resentenced the defendant to concurrent twelve year sentences as a career offender. From that order, the defendant appeals. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court but modify the defendant's concurrent sentences to eight years in the Department of Correction as a Range II offender. The case is remanded for entry of corrected judgments consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/jonesh_033009.pdf


State Legislator Contracting with Non-Profit State Grant Recipient

TN Attorney General Opinions

Date: 2009-03-30

Opinion Number: 09-44

http://www.tba2.org/tba_files/AG/2009/ag_09_44.pdf

TODAY'S NEWS

Legal News
Justice 4ALL
Legislative News
Passages
Disciplinary Actions
TBA Member Services

Legal News
Lewis makes the case for merit selection in new TBJ
TBA President Buck Lewis writes in the April issue of the Tennessee Bar Journal that we "need to guard against financial influence and the appearance of impropriety in judicial elections." He points out the pitfalls associated with electing judges, as seen in the recent West Virginia case, Hugh M. Caperton et al v. A.T. Massey Coal Company Inc.
Download the column
KBA Board speaks out for merit selection
In an opinion piece, the Board of Governors of the Knoxville Bar Association "strongly urges our legislators to reconsider their position and work toward the continuation of some form of merit selection for appellate judges ... that maintains the faith of our citizens in Tennessee's judicial system."
Read it in the News Sentinel
DeParle talks about why she took 'health care czar' job
Nancy-Ann DeParle had settled into a private-sector job after holding down influential government positions in Washington and Nashville. But when Barak Obama called to ask her to direct the newly created White House Office of Health Care Reform, she took it. DeParle, who grew up in Roane County and graduated from the University of Tennessee, talks about why she accepted the job and how she plans on tackling it.
Read about her in the News Sentinel
Maury County elects officers
The Maury County Bar Association has chosen John Russell Parkes of Hardin, Parks, Kelley & Carter PLLC as its new president, and solo practitioner Dalton Mounger as vice president. Cheryl Church, the Maury County Clerk & Master, is the new treasurer. All are from Columbia.

Debunking prayer in school 'myth': kids can pray anytime
A Florida crowd protesting a court order ending the involvement of local school officials in prayers, proselytizing and a school-sponsored baccalaureate service were angry -- both at the American Civil Liberties Union for bringing the lawsuit and a federal judge for issuing an injunction that will change how things have been done in Santa Rosa County for a very long time. "We want the children to know we are for them," said one pastor, "even though they took Baccalaureate away from them." But Charles Haynes, senior scholar at the First Amendment Center, points out the flaw in the group's premise. "The Court has never outlawed prayer or banned religion from public schools. Students always have been and are today free to pray in public schools alone or in groups, as long as their prayers don't disrupt the school or interfere with the rights of others."
Haynes's column is in the Jackson Sun
Immigration cases have huge backlogs, some take 10 years to resolve
In a review of immigration cases since 2003, USA Today found 14,000 cases that took more than five years and some that took more than a decade to reach disposition. And getting calendared by one of the 224 immigration judges can take more than a year.
USAToday has the story
Johnson does not get hearing from high court
The U.S. Supreme Court, without comment today, turned down an appeal from Cecil Johnson Jr., an inmate on Tennessee's death row. This inaction will leave Johnson's death sentence in place. He was convicted of killing three people in 1980. A divided panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals previously upheld the sentence, despite the failure of prosecutors to turn over police interviews with witnesses that could have cast doubt on their testimony. Johnson did not receive the interviews until 1992.
WKRN.com carried this AP story
Justice 4ALL
Columbia clinic provides kickoff for campaign
Statewide Pro Bono Public Service activities kicked off this week with a successful legal clinic in Maury County on Saturday morning. Event coordinator Patrick Carter said the clinic drew good coverage in local media and the eight volunteer attorneys gave assistance in seven cases during the Saturday morning clinic, and additional cases earlier in the week by telephone. Originally scheduled for April 4 to coincide with other events in the statewide 4-4 campaign, the clinic was moved up a week to avoid conflict with Columbia's popular Mule Day activities.

In East Tennessee, the Daily Times previewed 4-4 activities that will be taking place in Blount County. Many groups around the state will provide free legal services this Saturday -- 4/4 -- including Blount County.
Learn about other 4-4 events across Tennessee
Rallying attorneys for April 4 help in Knoxville
Knoxville attorney Jason Long has been a leader in helping put together the statewide Pro Bono Public Service Day event, but he hasn't lost his sense of humor while putting in long hours twisting arms for volunteer support. His recent column in the Knoxville Bar Association's Dicta magazine is sure to generate plenty of volunteers and plenty of laughs.
Read Long's Dicta column
Legislative News
Budget buzz about prisons, taxes, judges
Last week, Gov. Phil Bredesen produced the budget that he wants the legislature to approve, but some details are causing distress among elected officials. One budget item that is starting to get the most buzz in the capitol is Bredesen's proposal to close an "overflow" prison in West Tennessee, that a prison not be built in Trousdale County, and construction on a state-run facility in Bledsoe County be stopped.
Nashville City Paper has more
Passages
Whit LaFon dies
Former Judge Whit Simpson LaFon of Jackson has died of declining health following a stroke, the Jackson Sun reports. A 1948 graduate of Vanderbilt University Law School, he was 91. LaFon was the brother of Pauline Gore, former Vice President Al Gore's mother. Visitation will be from 10:30 a.m. to 12:30 p.m. April 4 at the George A. Smith Funeral Home's North Chapel. Graveside services will be held at 1:30 p.m. April 4 at Hollywood Cemetery.
Read the obituary
Disciplinary Actions
Nashville lawyer suspended
On March 25, Nashville lawyer Elijah Blaine Sprouse was suspended from the practice of law for one year by order of the Tennessee Supreme Court, effective April 4. Sprouse entered into a conditional guilty plea admitting to disciplinary violations related to two incidents of criminal conduct: a misdemeanor charge of domestic assault and in another event, for driving under the influence and child endangerment.
Read the BPR release
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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 2009 Tennessee Bar Association