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Thursday, May 28, 2009

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Legislature continues merit selection, retention elections

In a single day of dramatic action, both houses of the Tennessee General Assembly today adopted legislation to continue merit selection and retention elections until 2012. The action came on SB1573/HB1448 with the final vote in the Senate at 27-5 and final action in the House tallied at 58-38. Leading proponents of the plan in the Senate were Sen. Jamie Woodson, R-Knoxville, and Sen. Doug Overbey, R-Maryville. Sen. Mark Norris, R-Germantown, acted as floor spokesperson for the bill. In the House a trio of sponsors including Rep. Joe McCord, R-Maryville, Rep. Kent Coleman, D-Murfreesboro, and Jon Lundberg, R-Bristol, handled the bill.

"We are pleased that it now appears that Tennessee will continue to have a system of merit selection and retention elections for appellate judges," TBA President Buck Lewis said. "Selecting qualified judges is critical to our system of government."

One significant change made by the House to the Senate-adopted plan is elimination of the provision that allows the governor to "reach down" into the pool of applicants for any judgeship rather than choose from up to two panels of three names each in making judicial appointments. That amendment is expected to be considered by the Senate early next week, which should complete action on the legislation.

While the final vote would suggest a comfortable margin, the most significant vote in the Senate came on an amendment by Sen. Randy McNally, R-Oak Ridge, to substitute a system of contested nonpartisan elections and unchecked gubernatorial appointment authority for the plan offered by the Senate Judiciary and Government Operations committees. The vote on that amendment was 12 in favor to 19 opposed. In the House, an amendment to require contested elections offered by Brian Kelsey, R-Memphis, was defeated by a vote of 55-41.

The plan moving forward includes a 17-member Judicial Nominating Commission appointed by the two speakers. The commission will offer a panel of three names to the governor for any judicial vacancy. Appellate judges appointed to fill an unexpired term will stand for retention election at the next bi-annual election. For unexpired terms on the trial bench, the plan continues merit selection with contested elections to be held at the next bi-annual election. One change from the current system involves a contested election following a replacement vote.

Justices and judges already appointed under the current merit selection system will stand for retention elections in 2010. Any appellate judge appointed after the deadline for 2010 elections, will stand for retention election in 2012.

Read the amendments and see how your local lawmaker voted

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.

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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.

CHARLIE D. EVANS, JR. v. CHEROKEE INSURANCE COMPANY ET AL.

Court: TWCA

Attorneys:

Carl K. Wyatt and Kyle I. Cannon, Memphis, Tennessee for the appellant, Cherokee Insurance Company, and Builder's Transportation, Inc.

Christopher L. Taylor, Memphis, Tennessee, for the appellee, Charlie D. Evans, Jr.

Judge: HAYES

In 2005, the employee, a truck driver, sustained a compensable injury to his right leg that also aggravated a pre-existing low back condition. As a result of childhood polio, the employee's left leg and foot were substantially smaller and weaker than his right leg and foot. The employee reported this pre-existing condition to the employer when hired in 2003. Medical proof established the employee's combined anatomical impairment at 14% to the body as a whole. The trial court found that the employee was permanently and totally disabled. The trial court assigned 84% of the award to the employer's workers' compensation insurance carrier, Cherokee Insurance Company, and 16% to the Second Injury Fund. The employer appealed, arguing that the trial court erred by finding the employee to be permanently and totally disabled. The Second Injury Fund appealed, arguing that it is without liability because the employee performed his truck-driving duties without restrictions or accommodations, thus, the employer did not have "actual knowledge" of the employee's prior disability. Alternatively, the Second Injury Fund contends that the trial court's award of permanent and total disability is not supported by the evidence. After review, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2009/evansc_052809.pdf

WALTER WIGGINS, JR. v. DAL-TILE CORPORATION

Court: TWCA

Attorneys:

Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Walter Wiggins, Jr.

Byron K. Lindbergh, Nashville, Tennessee, for the appellee, Dal-Tile Corporation.

Judge: CHILDRESS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sought benefits for a right shoulder injury, which occurred after he had ceased working for Employer. He contended that his employment had caused a weakening of the structures of his shoulder, which contributed to his eventual injury. The trial court ruled that he did not sustain his burden of proof and entered judgment for Employer. On appeal, Employee asserts that the trial court erred in its ruling. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/wigginsw_052809.pdf

CAO HOLDINGS, INC. v. LOREN L. CHUMLEY, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Clark B. Thornton, Assistant Attorney General, Nashville, Tennessee, for the appellant, Loren L. Chumley, Commissioner of Revenue, State of Tennessee.

G. Michael Yopp, Brett R. Carter, and Christopher A. Wilson, Nashville, for the appellee, CAO Holdings, Inc.

Judge: DINKINS

Commissioner of Revenue assessed a tax based on the taxpayer's use of an airplane which had been purchased out of state. Taxpayer sought review from the Department, but was denied relief following an informal hearing. Taxpayer appealed and the Chancery Court reversed, finding that, because (1) taxpayer provided the seller with a certificate of resale, (2) taxpayer immediately leased the airplane such that it transferred possession and control of the plane to the user, and (3) taxpayer was a validly organized business which observed all corporate formalities, the sale-for-resale exemption pursuant to Tenn. Code Ann. section 67-6-102(34)(A) applied to the transaction. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/chumleyl_052809.pdf

CLEMENT Dissenting
http://www.tba2.org/tba_files/TCA/2009/chumley_diss_052809.pdf

WOOTEN TRACTOR CO., INC. v. ARCON OF TENNESSEE, L.L.C., ET AL.

Court: TCA

Attorneys:

Robertson Morrow Leatherman, Memphis, Tennessee, for the Appellants, Arcon of Tennessee, L.L.C. and Whitney Slade.

C. Barry Ward and Whitney Meriwether Harmon, Memphis, Tennessee, for the Appellee, Wooten Tractor Co., Inc.

Judge: FARMER

This appeal arises out of a tractor lease. After lessee failed to make the required monthly payments, lessor filed this action alleging that lessee breached several different contract provisions. The trial court granted summary judgment and awarded lessor the unpaid rentals. Lessee appeals arguing that the trial court erroneously granted summary judgment on grounds which lessor failed to allege in its motion for summary judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2009/tractorw_052809.pdf

CHAURICE BAGLEY v. STEPHEN DOTSON, WARDEN (STATE OF TENNESSEE)

Court: TCCA

Attorneys:

Chaurice Bagley, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The Petitioner, Chaurice Bagley, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2009/bagleyc_052809.pdf

STATE OF TENNESSEE v. SHERRI E. FREELS

Court: TCCA

Attorneys:

Sherri E. Freels, Nashville, Tennessee, pro se.

Robert E. Cooper, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James B. Dunn, District Attorney General; and Emily Faye Abbott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Sherri E. Freels, appeals from the trial court's orders revoking her probation. Her counsel filed an initial brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moved this court for permission to withdraw as counsel pursuant to Rule 22 of the Rules of the Court of Criminal Appeals. On March 17, 2009, this court granted counsel's motion to withdraw and allowed the now pro se defendant an opportunity to file a brief on the merits. To this date, the defendant has not filed an advocate's brief. Accordingly, pursuant to Rules 22(F) and 20 of the Rules of the Court of Criminal Appeals, this court concludes that the trial court's revocation orders should be summarily affirmed.

http://www.tba2.org/tba_files/TCCA/2009/freelss_052809.pdf

MATTHEW M. JACKSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Matthew M. Jackson, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The Petitioner, Matthew M. Jackson, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2009/jacksonm_052809.pdf

Removal of Bail Bondsmen

TN Attorney General Opinions

Date: 2009-05-28

Opinion Number: 09-100

http://www.tba2.org/tba_files/AG/2009/ag_09_100.pdf

TODAY'S NEWS

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TBA Member Services

Legal News

Cohen, Tanner submit names for U.S. attorney

U.S. Reps. Steve Cohen and John Tanner, both D-Tenn., reportedly have submitted more than one name to the White House for the position of U.S. Attorney for the Western District of Tennessee. Cohen's office confirmed the move but would not say who is on the short list or how short of a list it is. The Commercial Appeal has identified 11 lawyers who have expressed interest or who have had their names put forward by others.

The Memphis paper has more

Lockett says he won't resign

Despite pressure from a growing number of Knox County commissioners, county Law Director Bill Lockett says he will not resign. So far, five commissioners have called on him to step down since Lockett revealed on Tuesday he had taken money from law clients that should have gone to his former firm. Commissioners agree on one thing: they cannot force Lockett to resign because he is an elected, not appointed, officer.

Read the latest from the News Sentinel

New legal advice clinic to help with debt issues

The Nashville Pro Bono Program and Nashville-based firm Waller Lansden Dortch & Davis plan to conduct monthly legal advice clinics for low-income families to better understand how to deal with debt problems. The clinics will be held on the first Tuesday of each month beginning June 2 at the Legal Aid Society office.

The AP has the story

CASA strives to build endowment

Williamson County Court Appointed Special Advocates (CASA) is working to fund an endowment named for founder Jane Crockett Franks. A dinner on May 21 kicked off the campaign, led by Tennessee Bank & Trust, to raise $100,000 for the agency. Franks, who was roasted at the dinner, served as the county's only general sessions and juvenile court judge for almost 20 years. She was instrumental in founding the CASA program as well as the county's comprehensive juvenile justice center.

The Williamson Herald reports

Yoga and the law

Something refreshing for body and soul is happening within the 119-year-old walls that house the Memphis law firm of Burch, Porter & Johnson: the law firm has started holding yoga sessions during the lunch hour. Another lunchtime activity -- the "fireside chat" -- brings lawyers and staff together to hear from local residents who are making a positive impact in the city. The firm said the efforts are aimed at helping employees find balance in the workplace.