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Tuesday, December 15, 2009

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2010 rules package includes discovery of insurance limits

The Tennessee Supreme Court today published rules amendments to be effective July 1, 2010, subject to approval by resolutions of the Tennessee General Assembly.

As signaled in the proposed rule published by the court in November, the civil procedure rules amendment includes a provision permitting discovery of insurance limits. The amendment to the civil procedure rules also includes new provisions allowing lawyers to accomplish service of pleadings and other papers electronically and permission to file electronically if permitted by local rule. In addition, the rules package includes an amendment to the Rules of Appellate Procedure requiring that briefs include a statement as to the applicable standard of review. The Rules of Criminal Procedure would be modified to clarify the entitlement to a preliminary hearing and addressing the administration of competency hearings. Evidence rules would be changed to protect against inadvertent disclosure of privileged information working a waiver of the privilege.

Read the rules amendment proposals

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
04 - TN Court of Criminal Appeals
02 - 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.

LaFRANCINE GIBSON, as Surviving Relative and Next Friend of GEORGIA JONES, Deceased v. METRO COMMUNITY CARE HOME, INC., ET AL.

Court: TCA

Attorneys:

Les Jones, R. Porter Feild and Frank B. Thacher, III, Memphis, Tennessee, for the appellant, LaFrancine Gibson.

Christopher S. Campbell and Michael F. Rafferty, Memphis, Tennessee, for the appellees, Yellow Cab Company.

Linda J. Mathis, Memphis, Tennessee, for the Appellee, Wassie W. Wassie.

Judge: FARMER

The trial court awarded summary judgment to Defendant common carrier, finding that Defendant had no notice that Decedent was mentally incapacitated and holding that Defendant had no duty to assess or probe Decedent in order to discover a latent or non-apparent psychological condition. We affirm.

http://www.tba2.org/tba_files/TCA/2009/gibsonl_121509.pdf

ROMONA D. GORE, ET AL. v. MEMPHIS LIGHT, GAS and WATER, DIVISION OF THE CITY OF MEMPHIS

Court: TCA

Attorneys:

Fred E. Jones, Jr., Memphis, Tennessee, for the Appellant, Memphis Light Gas and Water.

Ramona D. Gore, Hernando, MS, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Michael E. Moore, Solicitor General, Lindsey O. Appiah, Assistant Attorney General and Angela Spinella Bonovich, Staff Attorney, Nashville, Tennessee, for Appellee, Tennessee Department of Labor and Workforce Development.

Judge: STAFFORD

This is a claim for unemployment benefits. The claimant was denied unemployment benefits based on a finding that she falsified company records and therefore was discharged for misconduct connected with her employment. The claimant appealed the administrative decision to the Chancery Court. The Chancery Court reversed the administrative decision, finding that there was not substantial and material evidence to support the decision. Upon reviewing the record, we find that the administrative record contains substantial and material evidence to support the finding that the claimant falsified company records. Accordingly, we reverse the decision of the Chancery Court and remand for further action consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2009/gorer_121509.pdf

DEBBIE HARRIS, individually and as next of kin to her son JEREMY WOOTEN; CHRISTOPHER HARRIS, individually and as next of kin to his brother, JEREMY WOOTEN; CHASITY BROWN, individually and as next of kin to her brother JEREMY WOOTEN v. DON HORTON and ROBERTSON COUNTY

Court: TCA

Attorneys:

David L. Cooper and H. Anthony Duncan, Nashville, Tennessee, for the Plaintiffs/Appellants Debbie Harris, Christopher Harris, and Chasity Brown

Ed R. Davies and A. Chad Davidson, Nashville, Tennessee, for the Defendants/Appellees Don Horton and Robertson County

Judge: KIRBY

A young man died in a motor vehicle accident on a public highway. The defendant county's emergency medical services unit, including the defendant paramedic, responded to the accident. Photographs were taken of the accident scene, including photographs of the young man's body. Three months later, the defendant paramedic gave a presentation to a high school driver's education class. To aid his presentation, he circulated among the students photo albums containing photographs of automobile accident scenes. The albums included accident scene photographs of the young man's corpse. The young man's family then filed a lawsuit against the paramedic and the county, asserting claims for, inter alia, interference with and mishandling of human remains, invasion of privacy based on intrusion upon seclusion, invasion of privacy for publicizing private facts, and infliction of emotional distress. The trial court dismissed the claim for interference with human remains for failure to state a claim and granted summary judgment to the paramedic and the county on the other claims. The family now appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/harrisd_121509.pdf

R. G. W. ET AL. v. S. M.

Court: TCA

Attorneys:

Mark Baugh and Ben H. Bodzy, Nashville, Tennessee, for the appellant, S. M. ("Father").

James P. Romer and Melanie Stepp Lane, Jamestown, Tennessee, for the appellees, R. G. W. and S. W. ("Petitioners").

Judge: CLEMENT

Father of three children appeals the termination of his parental rights to his youngest child. Petitioners, the child's maternal aunt and uncle, filed this petition to terminate Father's parental rights and to adopt the child. The child's mother consented to termination of her rights and supported the petition to terminate Father's rights. The trial court terminated Father's rights on the grounds of abandonment by willful failure to support and willful failure to visit, and upon the finding that termination was in the child's best interest. We have determined that the trial court applied an erroneous legal standard and that the record does not contain clear and convincing evidence necessary to prove a ground for termination or that termination is in the child's best interest.

http://www.tba2.org/tba_files/TCA/2009/rgw_121509.pdf

JULIANNA WALKER and MARY S. WHITE v. CALVIN BEASLEY, JIMMIE BEASLEY, JACK S. HALL, JR., MARY HALL, JOHN CHORLEY, TAYLOR-MADE CONSTRUCTION, INC.,TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, WILLIAM R. PASCHALL, and JUNE RASMUSSEN

Court: TCA

Attorneys:

Bill M. Wade, Memphis, Tennessee for the Plaintiffs/Appellants Julianna Walker and Mary S. White

Don G. Owens, III, Memphis, Tennessee for the Defendant/Appellee Tennessee Farmers Mutual Insurance Company

Judge: KIRBY

This appeal involves insurance coverage. The plaintiffs purchased an undeveloped parcel of real property and hired a contractor to build a house on it. After the house was constructed, the plaintiffs discovered that cleared timber was buried underneath the land on which the house stood. Thereafter, the house developed structural problems, such as foundation cracks and non-alignment of doors and windows. The plaintiffs made a claim for coverage under their homeowners insurance policy; however, the insurer denied the claim, citing an exclusion of coverage for damages resulting from settling. The plaintiffs filed suit against inter alia the insurer alleging breach of contract and bad faith, and the plaintiffs and the insurer filed cross-motions for summary judgment. After conducting a hearing on the matter and considering expert testimony that the damage was caused by settling, the trial court granted the insurer's motion for summary judgment. The plaintiffs now appeal, arguing that the settlement in this case is so excessive as to remove it from the ordinary meaning of the term "settling." We affirm.

http://www.tba2.org/tba_files/TCA/2009/walkerj_121509.pdf

STATE OF TENNESSEE EX REL. COMMISSIONER OF THE TENNESSEE DEPARTMENT OF TRANSPORTATION v. WEST COAST, LLC

Court: TCA

Attorneys:

Suzette Peyton, Nashville, Tennessee, for the appellant, West Coast, LLC.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Larry M. Teague for the appellee, State of Tennessee ex rel. The Commissioner of the Tennessee Department of Transportation.

Judge: KIRBY

This is a condemnation case. The state filed a petition to condemn real property owned by the defendant, and the parties disputed the value of the property. The parties later agreed to a settlement. In accordance with the settlement agreement, the state drafted a proposed consent order and placed $400,000 into escrow for the defendant. The defendant then informed the state that the property was encumbered by a previously undisclosed mortgage, which interrupted resolution of the condemnation case. Meanwhile, the trial judge was also presiding over a separate case. The trial judge attached the $400,000 escrowed in the instant condemnation case upon the request of a party in the separate case. Shortly thereafter, the trial court disbursed $367,000 of the escrow monies to the party in the separate case. The attorney for the defendant in the instant case then filed a motion to enforce her attorney's lien over the remaining funds held in escrow. The trial court entered an order resolving the condemnation of the property, but stating that the issue of the attorney's lien would be decided in the context of the resolution of the separate case. The defendant now appeals. Because the trial court did not enter a final order in the instant case, we must dismiss the appeal for lack of subject matter jurisdiction.

http://www.tba2.org/tba_files/TCA/2009/westcoast_121509.pdf

STATE OF TENNESSEE v. RANDY BERNARD BRASWELL

Court: TCCA

Attorneys:

Donna Robinson Miller (on appeal) and Leonard Michele Caputo (at trial), Chattanooga, Tennessee, for the appellant, Randy Bernard Braswell.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William H. Cox, III, District Attorney General; and Rachel Winfrey and Mary Sullivan Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

A Hamilton County jury convicted the Defendant, Randy Bernard Braswell, of second degree murder and aggravated child abuse, both Class A felonies. The Defendant appeals, arguing that: (1) the evidence was insufficient to sustain his convictions; and (2) he was prejudiced by the manner in which a transcript of one of the Defendant's interviews with police-a transcript which was admitted into evidence for identification only-was redacted. After reviewing the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/braswellr_121509.pdf

WITT concurring
http://www.tba2.org/tba_files/TCCA/2009/braswellr_CON_121509.pdf

STATE OF TENNESSEE v. DERRELL F. NUNN, SR. and JAMILA NUNN

Court: TCCA

Attorneys:

Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Derrell F. Nunn, Sr. Melanie R. Snipes, Decatur, Georgia, for the appellant, Jamila Nunn.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; William H. Cox, III, District Attorney General; Boyd M. Patterson, Jr., and Leslie Anne Longshore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendants, Derrell F. Nunn, Sr. and Jamila Nunn, appeal from their convictions by a jury in the Criminal Court for Hamilton County for aggravated child abuse, a Class A felony. The trial court imposed a sentence of twenty years to be served at one hundred percent for each Defendant. On appeal, the Defendants contend that the evidence presented at trial was insufficient to convict them and that the trial court erred in not granting their motions for judgment of acquittal. We affirm the judgments of conviction.

http://www.tba2.org/tba_files/TCCA/2009/nunnd_121509.pdf

STATE OF TENNESSEE v. JESSICA PATTON PARKS

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; William A. Kennedy (at hearing and on appeal) and Leslie Hale (at hearing), Assistant District Public Defenders, attorney for appellant, Jessica Patton Parks.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kaylin Hortenstine, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Jessica Patton Parks, pled guilty to aggravated domestic assault in exchange for a three-year suspended sentence to be served on supervised probation. Following the filing of a revocation warrant and an evidentiary hearing, the trial court found that the Defendant had violated the conditions of her probation and ordered her to serve her sentence in incarceration. In this appeal as of right, the Defendant contends that the trial court abused its discretion by ordering her to serve her sentence in confinement. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/parksj_121509.pdf

STATE OF TENNESSEE v. GEORGE TIMMONS

Court: TCCA

Attorneys:

John G. McDougal, Chattanooga, Tennessee, attorney for appellant, George Timmons.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William H. Cox, III, District Attorney General; Boyd Patterson and Leslie Longshore, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, George Timmons, was convicted by a Hamilton County jury of two counts of rape, one count of aggravated sexual battery, one count of assault, and one count of aggravated domestic assault. The Defendant received an effective sentence of life without parole as a multiple rapist. In this appeal as of right, he argues that the evidence is insufficient to support his convictions and that the trial court erred in sentencing him to life without parole as a multiple rapist and in enhancing his other sentences beyond the presumptive minimum. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/timmonsg_121509.pdf

Collections by Juvenile and General Sessions Courts; Conflicts of Interest

TN Attorney General Opinions

Date: 2009-12-15

Opinion Number: 09-186

http://www.tba2.org/tba_files/AG/2009/ag_09_186.pdf

Garagekeeper's Or Towing Firm's Lien Under Tenn. Code Ann. section 66-19-103

TN Attorney General Opinions

Date: 2009-12-15

Opinion Number: 09-187

http://www.tba2.org/tba_files/AG/2009/ag_09_187.pdf

TODAY'S NEWS

Politics
Legal News
Upcoming
TBA Member Services

Politics

Tracy definitely running

Republican State Sen. Jim Tracy of Shelbyville made it official on Monday by filing papers to seek the Sixth District U.S. House seat, on the same day that incumbent Democrat U.S. Rep. Bart Gordon revealed he will not seek re-election.

The Shelbyville Times-Gazette has a picture and the story

Legal News

You can be a friend of judges, but not a Facebook friend

Florida's Judicial Ethics Advisory Committee says lawyers and judges should not "friend" other lawyers and judges on Facebook, and that if they already have, they should "unfriend" immediately. The committee ruled in November that online "friendships" could create the impression that lawyers are in a special position to influence their judge friends.

Find out more from the AP

The South Carolina Advisory Committee on Standards of Judicial Conduct took up a similar discussion earlier in the fall -- but it addressed the question of whether a judge may "friend" law enforcement officers and employees who work in the judge's office.

Law.com Legal Blog Watch has more

Tennesseans admitted to U.S. Supreme Court

Nine Tennessee attorneys were admitted to practice before the U.S. Supreme Court yesterday in Washington, D.C. TBA President and Nashville attorney Gail Vaughn Ashworth introduced the group to the court. The lawyers were in the nation's capital as part of the TBA Academy program, which includes continuing legal education seminars, a tour of the Supreme Court and the swearing in ceremony.

Those who were admitted are Dixie W. Cooper, Jackie Dixon, Sam Elliott, Tildon Wayne Hood, William Doak Patton, Thomas Pennington, Susan Joanne Sheldon, Warren Maxey Smith and James Randolph Tomkins. To qualify for admission to the Supreme Court bar, an attorney must present a personal statement, proof that he or she has been admitted to practice before the highest court in his state for at least three years and a certificate of good standing from that court. In addition, each attorney must be sponsored by two existing members of the Supreme Court bar who can vouch for their moral and professional character. Because of these high standards, less than one percent of the nation's attorneys are admitted to practice before the Supreme Court.

Desegregation suit meeting postponed

U.S. District Judge Samuel H. Mays Jr. granted the Jackson-Madison County School Board's motion this morning to extend the Dec. 31 deadline to try to resolve student assignment in the system's desegregation suit. The judge wants the two sides to confer but there's a difference of opinion about who is responsible for the delay. "The only reason we didn't have a meeting is because the board didn't do anything," plaintiffs' attorney Richard Fields said during this morning's teleconference with the judge. "I know other counsel blame me for not having a meeting. But I have no faith in this board or in two of the opposing counsel."

The Jackson Sun reports

New edition of Hot List now available

Check out the new edition of Raybin and Richter's Tennessee Supreme Court Hot List to find an analysis of three cases recently granted review by the state Supreme Court.

Go to the Hot List now

Owens granted more time to respond to motion for execution date

Today Tennessee's Supreme Court granted an extension of time to attorneys for convicted killer Gaile Owens, whom the state intends to put to death for her part in the 1985 murder-for-hire plot that left her husband dead. Owens' team now has until Feb. 5 to respond to Tennessee Attorney General Bob Cooper's motion to set an execution date.

The Nashville City Paper has more

Cancelled grand jury meeting may be good sign for Herenton

Former Memphis mayor Willie Herenton's attorney Robert Spence said this morning he was "very much encouraged" that a grand jury meeting scheduled for today was canceled, a sign that his client won't be indicted, he says, at least not this year.