Upcoming CLE: Preventing Legal Malpractice 2009

Join the TBA's Preventing Legal Malpractice 2009 faculty for the latest malpractice review. This year's sessions will focus on avoiding the pitfalls of legal practice, and how to recognize client issues and avoid them before the gavel falls. Learn the importance of understanding your legal malpractice insurance coverage -- deductibles, tail coverage, and gaps in coverage. You will also discuss when to report a potential claim and other malpractice topics. In Nashville on Thursday, in Knoxville on Friday and in Memphis on Nov. 13.

Learn more about these and other CLE programs from TennBarU

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
00 - 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.

DAVID GOFF ET AL. v. ELMO GREER & SONS CONSTRUCTION CO., INC.

Court: TSC

Attorneys:

John C. Knowles, Sparta, Tennessee, Jon E. Jones, Cookeville, Tennessee, and John P. Pryor, Smithville, Tennessee, for the appellants, David Goff, Joyce Goff, and Agnes Goff.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for appellee, Elmo Greer & Sons Construction Co., Inc.

Judge: CLARK

The owners of real property filed suit against a construction company hired by the State of Tennessee to widen a highway adjacent to their property. The property owners had a contract with the construction company that allowed it to place equipment and construction materials on their land in exchange for compensation. Following the completion of the road project, the property owners filed suit claiming that the construction company failed to pay the amount due under the contract and caused blasting damage to their house and vehicles. They also claimed that the construction company illegally buried debris on their property. At trial, the parties stipulated that the construction company was liable for breach of contract in the amount of $5,355.50. A jury then determined that the construction company was strictly liable for harm caused by its blasting activities in the amount of $9,510, and that burying debris on the plaintiffs' property constituted a nuisance for which the company was liable for $3,305. The jury also returned an award of $2 million in punitive damages which the trial court modified to $1 million to conform to the amount requested in the pleadings. The Court of Appeals affirmed the trial court's judgment as to liability, but reversed the award of punitive damages based on a finding that the trial court improperly considered Tennessee's environmental laws in approving the award. After careful review, we conclude that the evidence supports the jury's award of punitive damages and that the trial court properly considered Tennessee's environmental statutes in approving that award. We further conclude that the amount of the punitive damages award does violate the construction company's due process rights and must be modified to $500,000. Finally, we find no error in the trial court's instructions to the jury regarding punitive damages or its denial of a motion for mistrial based on a mention of insurance during the trial. Accordingly, the decision of the Court of Appeals is reversed and the judgment of the trial court is reinstated as modified.

http://www.tba2.org/tba_files/TSC/2009/goffd_110309.pdf


PATRICIA B. STEWART v. CHALET VILLAGE PROPERTIES, INC. ET AL.

Court: TSC

Attorneys:

Jonathan E. Roberts, Thomas L. Kilday, and Deborah Roberts, Greeneville, Tennessee, and Joshua M. Ball, Knoxville, Tennessee, for the appellant, Chalet Village Properties, Inc.

Eugene B. Dixon, Maryville, Tennessee, for the appellee, Patricia B. Stewart.

Theodore Hadzi-Antich, Sacramento, California, for the amicus curiae, Pacific Legal Foundation.

Judge: HOLDER

This case involves the validity of an exculpatory clause in a short-term residential lease agreement between a rental agency and the plaintiff. The day after entering into the lease agreement, the plaintiff fell on a walkway leading to the entrance of the rental property. The plaintiff filed suit against the rental agency and the owner of the property alleging that they were negligent in failing to properly maintain the walkway and failing to warn the plaintiff of the walkway's condition. The trial court granted summary judgment to the rental agency, upholding the exculpatory clause in the lease agreement. In reversing the trial court, the Court of Appeals held that the exculpatory clause in favor of the rental agency was invalid as contrary to public policy. We conclude that the trial court failed to apply the factors adopted by this Court in Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977), for determining whether an exculpatory clause violates public policy and that the application of these factors is hampered by an incomplete record. We therefore reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2009/stewartp_110309.pdf


ROBBIE EDWINA ELMORE v. FLEETGUARD, ET AL.

Court: TWCA

Attorneys:

Frederick R. Baker, Cookeville, Tennessee, for the appellant, Fleetguard.

Craig P. Fickling, Cookeville, Tennessee, for the appellee, Robbie Edwina Elmore.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Second Injury Fund.

Judge: HARRIS

In this workers' compensation case, the employee, Robbie Edwina Elmore, sustained compensable gradual injuries to her neck, shoulders and arms. The trial court made three separate awards, which totaled 122% to the body as a whole. On appeal, the employer, Fleetguard, and the Second Injury Fund contend that the trial court erred by failing to make a single award pursuant to the concurrent injury rule, and by finding that she was not permanently and totally disabled. We conclude that the concurrent injury rule is applicable. We therefore modify the judgment to award 65% permanent partial disability, and find it unnecessary to address the remaining argument.

http://www.tba2.org/tba_files/TSC_WCP/2009/elmorer_110309.pdf


CHRIS GARNER v. CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE

Court: TCA

Attorneys:

J. Brooks Fox and Elizabeth Anne Sanders, Nashville, Tennessee, for the appellant, Civil Service Commission of the Metropolitan Government of Nashville.

P. Brocklin Parks, Nashville, Tennessee, for the appellee, Chris Garner.

Judge: CLEMENT

The appellee, a police officer employed by the Metropolitan Nashville Police Department, was terminated based upon a finding that he made a false oral report to his supervisor that was of an official nature in violation of General Order 04-05, Art. VIII (S). The Administrative Judge found that "Officer Garner intentionally lied to Sergeant Chestnut . . . in order to avoid further disciplinary action. Because disciplinary action taken by the Police Department constitutes business of an official nature, any oral or written reports pertaining to or that could result in disciplinary action constitute reports of an official nature." The Civil Service Commission upheld the administrative judge's findings and order. The trial court reversed the Commission, holding that "the Commission's findings of fact that petitioner made false statements to his supervisor are supported by substantial and material evidence but that the Commission erred in its conclusion of law that the statements constituted an official report." It is not disputed that the officer made false statements to his supervisor during four telephone conversations and thereafter in response to questions by this supervisor; the issue is whether any of the false statements to his supervisor constituted "an oral report of an official nature." We have determined that the Commission identified an appropriate legal principle to be applied to the facts of this case, the relevant factual findings by the Commission are supported by substantial and material evidence, and the Commission correctly applied the law to the facts in reaching the decision that the officer's employment should be terminated for violating General Order 04-05, Art. VIII (S). We, therefore, remand with instructions to affirm the decision of the Commission to terminate the appellee's employment with the Police Department.

http://www.tba2.org/tba_files/TCA/2009/garnerc_110309.pdf


EDGAR BAILEY, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Edgar Bailey, Jr., Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Edgar Bailey, Jr., appeals from the post-conviction court's summarily dismissing his petition for post-conviction relief as time-barred. On appeal, the petitioner argues that his petition was timely and, in the alternative, that due process requires the tolling of the statute of limitations for his post-conviction petition. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/baileye_110309.pdf


PATRICK HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Patrick Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alexia Fulgham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Patrick Harris, was convicted by a jury of one count of first degree murder. His conviction was affirmed on direct appeal. See State v. Patrick Harris, No. W2004-00469-CCA-R3- CD, 2005 WL 468324 (Tenn. Crim. App., Jackson, Feb. 25, 2005). He filed a timely petition for post-conviction relief. He was appointed counsel and filed an amended petition alleging that he received ineffective assistance of counsel at trial. The Criminal Court of Shelby County denied his petition for post-conviction relief after two evidentiary hearings. He now appeals this denial. We affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/harrisp_110309.pdf


TODAY'S NEWS

Celebrate Pro Bono
Legal News
Upcoming
Disciplinary Actions
TBA Member Services

Celebrate Pro Bono
National Pro Bono Celebration exceeds expectations
The first American Bar Association National Pro Bono Celebration week exceeded expectations, according to the ABA. It even received recognition from the White House. "Pro bono lawyers work tirelessly to break down barriers to opportunity and justice, volunteering countless hours to provide critical legal services to our most vulnerable citizens," President Barack Obama wrote in an Oct. 30 letter. The ABA reports that there were nearly 600 events across the country during Pro Bono Celebration week, Oct. 25-31, with activities in nearly every state. In Tennessee, early numbers indicate that more than 500 attorneys and non-attorney volunteers participated in events across the Volunteer State during the TBA's Celebrate Pro Bono month.
See pictures from the events
Legal Aid of East Tennessee reports successful events
Twenty eight attorneys turned out to assist 46 clients during a Saturday legal clinic in Chattanooga sponsored by Legal Aid of East Tennessee (LEAT). Also joining in were Judges Jeff Hollingsworth and Marie Williams, along with 11 paralegals and paralegal students. The Chattanooga Legal Assistants Society provided refreshments for the volunteers and Chattanooga Mayor Ron Littlefield read a proclamation. In another Celebrate Pro Bono Month program, LAET also presented free CLE progams in three locations as a thank you to pro bono attorneys.

Legal News
Til death do they pay ... but should they?
With women making up half the work force now and men being laid off in greater numbers, the whole world of family and marriage has been widely re-engineered as some states rewrite divorce laws. Wall Street Journal writer Jennifer Levitz discusses "The New Art of Alimony" with a University of Florida Levin School of Law professor and a family lawyer from Ohio on
National Public Radio's 'On Point'
State Library and Archives honored by Historical Society
The Department of State's Tennessee State Library and Archives division has been honored by the Tennessee Supreme Court Historical Society for its ongoing work on a Tennessee Supreme Court record preservation project. The project involves preserving, archiving and cataloging historical records of Tennessee Supreme Court cases dating back to 1796.
The Leaf-Chronicle reports
Group against public access asks for gun-carry permit holder's names
Supporters of blocking public access to the names and addresses of Tennesseans with handgun-carry permits have themselves requested the list. Records obtained and reviewed by the Associated Press show that copies of the state's database of more than 257,000 handgun-permit holders were recently requested by the state Republican Party and a direct mail contractor that has done extensive work for the GOP's legislative caucus.
The First Amendment Center carried these AP findings
Upcoming
'Order of Protection Day' is Thursday in Knoxville
In an effort to raise awareness about domestic violence, the Fourth Circuit Court for Knox County will hold Order of Protection Day on Nov. 5 at the University of Tennessee's College of Law. Court will begin at 8 a.m. with a lecture by Judge Bill Swann about domestic violence and orders of protection. Events are open to the public.
Learn more from UT
Disciplinary Actions
Blount County lawyer censured
Blount County lawyer Charles Deas received a public censure from the Board of Professional Responsibility on Nov. 2 for violating Rule of Professional Conduct 1.3 (diligence).
Read the BPR news release
TBA Member Services
New TBJ explains FONCE
The November Tennessee Bar Journal features a new law that closes exemptions for family-owned businesses; fiduciary fraud; party planning for tort lawyers; federal time computation and more. President Gail Vaughn Ashworth, with help from the TBA Environmental Law Section, kicks off a "Go Green" initiative and columnist Bill Haltom talks about the loss of civility in society, and how the example of one man -- Howard Baker Jr. -- should be followed.
Read it online
Unlimited free online legal research for TBA members
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
Access Fastcase now

 
 
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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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