Summit focuses on crisis striking state court systems

Leaders from Tennessee's legal community are joining delegations from across the country at a summit on state courts this week in Charlotte, N.C. Courts are cutting their hours and some are even closing permanently, American Bar Association president H. Thomas Wells Jr. said before the event opened. Probation and parole services are being curtailed, and sentencing proceedings are being delayed because of the budget crunch, he also said. "The economy is wreaking havoc with state budgets, adversely affecting our courts' ability to deliver justice." The summit is being held to discuss these concerns and to enlist help from all branches of government in solving the crisis.

Read more from the National Law Journal on Law.com

TODAY'S OPINIONS
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GARRY W. CROWELL v. TRW, INC. ET AL.

Court: TWCA

Attorneys:

Richard Lane Moore, Cookeville, Tennessee, for the appellants, TRW, Inc., TRW Automotive U. S., LLC, and American Home Assurance Company.

Hugh Green and John Meadows, Lebanon, Tennessee, for the appellee, Garry W. Crowell.

Judge: koch

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. An employee who experienced both hearing loss and tinnitus filed suit in the Criminal Court for Wilson County seeking workers' compensation benefits. Following a bench trial, the trial court assigned the injury to the employee's hearing as a scheduled member and awarded the employee a 33% permanent partial disability to his hearing. The employer asserts on appeal that the trial court erred by assigning the injury to the employee's hearing rather than to the body as a whole. We agree with the employer and reverse the trial court's decision to assign the injury to the employee's hearing rather than to the body as a whole.

http://www.tba2.org/tba_files/TSC_WCP/2009/crowellgw_050809.pdf


LYNNE SUMMERS v. NISSAN NORTH AMERICA, INC., ET AL.

Court: TWCA

Attorneys:

T. Franklin Gilley, Murfreesboro, Tennessee, for the appellants, Nissan North America, Inc. and Ace Insurance Company.

Sonya W. Henderson, Murfreesboro, Tennessee, and Howard Romaine, Nashville, Tennessee, for the appellee, Lynne Summers.

Judge: WALLACE

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 alleged that she sustained a gradual injury to her hip as a result of her work. She ultimately required a total hip replacement. The doctor who performed that surgery testified that she had a congenital condition which caused the hip to become arthritic, and which usually caused the need for hip replacement surgery. He gave conflicting testimony concerning the effect of her employment on the condition. The trial court held that she had sustained a compensable aggravation of the congenital condition and awarded 22.5% permanent partial disability. Employer has appealed, contending that the evidence preponderates against the trial court's decision. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/summersl_050809.pdf


TERETHA AKINS v. STATE FARM INSURANCE COMPANY, ET AL.

Court: TCA

Attorneys:

Teretha Akins, Johnson City, Tennessee, Pro Se.

Michael K. Atkins, Knoxville, Tennessee, for Appellee, State Farm Insurance Company.

John S. Taylor, Johnson City, Tennessee, for Appellee, Bill Gatton Chevrolet-Cadillac-Isuzu.

W. Mitchell Cramer and Carrie S. O'Rear, Knoxville, Tennessee, for Appellee, Hartford Insurance Company.

Judge: MCCLARTY

The plaintiff filed a civil warrant alleging that the defendants were guilty of "conversion, fraud, negligence, Consumer Protection Act [violations, and] breach of contract . . . ." After a trial in the General Sessions Court, that court dismissed with prejudice all causes of action against the defendants. The plaintiff then appealed to the Law Court, which found that the plaintiff's claims were time barred and granted the dispositive motions of the defendants. The plaintiff has appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2009/akins_050809.pdf


JUDITH ANNE LAWS v. SHANNON TODD COFFEY

Court: TCA

Attorneys:

Douglas T. Jenkins, Rogersville, Tennessee, for appellant, Shannon Todd Coffey.

No attorney of record for appellee.

Judge: FRANKS

The Trial Court granted petitioner's Petition for an Order of Protection. Respondent has appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2009/lawsj_050809.pdf


CITY OF OAK RIDGE v. DIANA RUTH BROWN

Court: TCA

Attorneys:

Hal Rounds, Somerville, Tennessee, for the Appellant, Diana Ruth Brown.

Tammy M. Dunn, Oak Ridge, Tennessee, for the Appellee, City of Oak Ridge.

Judge: MCCLARTY

The defendant was stopped by a City of Oak Ridge police officer and cited for speeding. Following an adverse decision in municipal court, the defendant appealed to the trial court. The defendant attempted to raise the defense that the posted speed limit of 45 mph was not legally established, but the trial court would not allow the argument. Subsequently, the trial court found the defendant guilty of speeding and imposed its judgment. On the initial appeal to this court, we vacated the trial court's judgment and remanded the matter to allow the defendant the opportunity to present the defense. At the second trial, the defendant failed to put on proof that the posted speed limit was invalid. Once again, the trial court found her guilty of speeding. We affirm.

http://www.tba2.org/tba_files/TCA/2009/oakridge_050809.pdf


STATE OF TENNESSEE v. MARIO ANDRE McELRATH

Court: TCCA

Attorneys:

James T. Powell, Union City, Tennessee, attorney for appellant, Mario Andre McElrath.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Mario Andre McElrath, was convicted of the attempted sale of .5 grams or more of cocaine within one thousand feet of a school zone. On direct appeal, this court found plain error in the trial court's imposition of a ten-year, Range I sentence for a Class B felony and remanded for resentencing for a Class C felony. State v. Mario Andre McElrath, No. W2006-02621-CCA-R3-CD, 2007 WL 4245723 (Tenn. Crim. App. Dec. 3, 2007). On resentencing, the trial court imposed a sentence of four years for a Class C felony for a violation of the Drug Free School Zone Act (DFSZA). In this appeal as of right, the defendant argues that the exemption from increased incarceration provided in Tennessee Code Annotated section 39-17-432(b)(3) should apply to the release eligibility provision of section -432(c). Following our review, we conclude that the exemption does not apply to the release eligibility provision and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mcelrathm_050809.pdf


STATE OF TENNESSEE v. LOREN NICHOLS

Court: TCCA

Attorneys:

Martin J. Levitt, Chattanooga, Tennessee, for the appellant, Loren Nichols.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Steven Bebb, District Attorney General; and Paul Rush, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Loren Nichols, pleaded guilty in the McMinn County Circuit Court to one count of conspiracy to obtain a controlled substance by misrepresentation, see T.C.A. Sub Section 39-12-103, 53-11-402 (2003), and one count of obtaining a controlled substance by misrepresentation, see id. Section 53-11-402. Pursuant to a plea agreement with the State, the defendant agreed to a sentence of two years' probation and a $2,000 fine. Further, the plea agreement provided that the defendant would be allowed to apply for judicial diversion; however, the judgments of conviction reflecting his two-year sentence were entered on the day of the defendant's plea, and the trial court subsequently refused to hear his motion for judicial diversion. The defendant appeals, arguing that "the trial court erred in refusing to rule on the merits of [his] request for judicial diversion." Prior to this court's ruling on his direct appeal, the defendant filed a petition for post-conviction relief which was summarily dismissed by the post-conviction court on the grounds that final action had not yet been taken by this court in his direct appeal. See T.C.A. Section 40-30-102(a) (2006). The defendant appeals from the denial of his post-conviction petition, which this court consolidated with his direct appeal. After review of this procedurally complex case, we dismiss the defendant's direct appeal, case number E2007-02806-CCA-R3-CD, as untimely. In light of this, we hold that the trial court erred by dismissing his post-conviction petition because the defendant's judgments became final prior to his untimely notice of appeal. In case number E2008-01976-CCA-R3-PC, we reverse and remand with instructions that trial counsel, Martin J. Levitt, withdraw as post-conviction counsel.

http://www.tba2.org/tba_files/TCCA/2009/nicholsl_050809.pdf


STATE OF TENNESSEE v. TOMMIE SIMMONS

Court: TCCA

Attorneys:

Scottie O. Wilkes, Memphis, Tennessee, for the appellant, Tommie Simmons.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilbert and Summer Morgan, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Tommie Simmons, was convicted by a Shelby County jury of two counts of robbery, a Class C felony, and sentenced by the trial court as a Range I offender to concurrent terms of three years and six months, with six months to serve followed by supervised probation. In a timely appeal to this court, the defendant challenges the sufficiency of the convicting evidence and argues that the trial court erred by denying judicial diversion. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/simmonst_050409.pdf


Constitutionality of Retention Election for Governor and State Legislators

TN Attorney General Opinions

Date: 2009-05-07

Opinion Number: 09-74

http://www.tba2.org/tba_files/AG/2009/ag_09_74.pdf

TODAY'S NEWS

Legal News
Legislative News
TennBarU CLE
TBA Member Services

Legal News
Vanderbilt honors retiring law faculty
Vanderbilt University honored three retiring law professors today during commencement ceremonies and bestowed on them the title of emeritus or emerita faculty. Those honored were Robert Belton, Jon W. Bruce and James W. Ely.
Read more about the faculty being honored
Court acquits chemical company on criminal charges in asbestos case
A federal court jury today acquitted the big chemical products company, W.R. Grace, and three of its executives on all criminal charges that they had knowingly contaminated the small Montana mining town of Libby with asbestos, then conspired to cover up the deed. At least 200 people have died of asbestos-related diseases in the town, but the jury unanimously concluded that the disaster was not a matter of criminal culpability by the company.
Read more in the New York Times
TBA leaders take part in ABA Washington event
TBA leaders from across the state were in Washington recently as part of the ABA Day on the Hill effort, where bar leaders from across the country met with their representatives to discuss legislation of interest to the legal community. Among those present were TBA President Buck Lewis, TBA President-elect Gail Vaughn Ashworth, TBA YLD President Michelle Sellers, Legal Aid Society of Middle Tennessee General Counsel Neil McBride and former TBA President Al Harvey.
See a photo from the event
Prison reimbursement program may be cut
Tennessee's state prisons and Davidson County's jails could lose a combined $600,000 a year if a federal reimbursement program for illegal immigrant prisoners is eliminated. President Obama's new budget proposes cutting the State Criminal Alien Assistance program, which provides $400 million annually to cover the costs state and local facilities incur in keeping in jail illegal immigrants who are also criminal offenders. In Tennessee, the state Department of Correction got more than $350,000 from the program. The Davidson County Sheriff's Office received $274,000.
The Tennessean reports
Legislative News
U.S. House approves foreclosure legal assistance
The U.S. House of Representatives passed a mortgage reform bill yesterday that includes a $35 million grant program for legal aid organizations to provide foreclosure legal assistance to low-income homeowners and tenants. The program would be administered by the Department of Housing and Urban Development with funds going first to the 100 metropolitan areas with the highest rates of foreclosure.
Read more
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
TennBarU CLE
New CLE tackles challenges of trust account management
If you manage a trust account, you know the challenge of meeting ethics requirements as well as following the rules used in trust accounting. To help you in this difficult task, the TBA's TennBarU now has a pair of interactive text programs from management consultant Suzanne Rose. Her "Avoiding Ethics Violations in Trust Account Management" has been updated with new information on the basics of trust account management. A new advanced program is also now available, offering the latest developments, such as what it means today for an account to be FDIC insured and how a recent Supreme Court decision relative to fee disputes affects attorneys.
Learn more about this TennBarU course or register now
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.
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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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