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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.

03 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
03 - 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.

ALISIA ARIAS v. DURO STANDARD PRODUCTS COMPANY ET AL.

Court: TSC

Attorneys:

William F. Kendall and Hailey H. David, Jackson, Tennessee, for the appellants, Duro Standard Products Company and Federal Insurance Company.

David M. Hardee, Jackson, Tennessee, for the appellee, Alisia Arias.

Judge: HOLDER

The employee sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace. The employee offered into evidence the written report of a physician who performed an independent medical evaluation of the employee at the request of the employee's attorney. The employer objected to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235 is the exclusive method of introducing medical proof in workers' compensation cases and that this statute permits the employer to depose the expert whose report is offered into evidence. Overruling the objection, the trial court admitted the report into evidence pursuant to Tennessee Rule of Evidence 803(6) and awarded workers' compensation benefits to the employee based on the physician's report. The employer appealed. We conclude that the trial court erred by admitting the evaluating physician's report into evidence and that the remaining admissible evidence is insufficient to establish either causation or permanency. Accordingly, the judgment of the trial court awarding workers' compensation benefits is vacated, and the complaint is dismissed.

http://www.tba2.org/tba_files/TSC/2010/ariasa_012210.pdf


ANDREW CARTER v. QUALITY OUTDOOR PRODUCTS, INC. ET AL.

Court: TSC

Attorneys:

Alex C. Elder, Memphis, Tennessee, for the appellants, Berkley Regional Insurance Company and Quality Outdoor Products, Inc.

Charles L. Hicks, Camden, Tennessee, for the appellee, Andrew Carter.

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

Judge: HOLDER

The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2010/cartera_012210.pdf


SMITH COUNTY REGIONAL PLANNING COMMISSION V. HIWASSEE VILLAGE MOBILE HOME PARK, LLC

Court: TSC

Attorneys:

R.H. Pursell and Edward Hadley, Nashville, Tennessee, for the appellant, Hiwassee Village Mobile Home Park, LLC.

Jack O. Bellar and J. Branden Bellar, Carthage, Tennessee, for the appellee, Smith County Regional Planning Commission.

Judge: CLARK

A county planning commission sued to enjoin the operation of a mobile home park that did not comply with the county's Private Act. At trial, the successor-in-interest stipulated to the mobile home park's noncompliance but claimed the park was grandfathered as a prior legal commercial use pursuant to Tennessee Code Annotated section 13-7-208(b)(1), arguing that a previous owner had established the park before the Private Act took effect. The trial court granted injunctive relief to the planning commission, finding both that the park was not in operation prior to the Private Act, and that the park was later abandoned. The Court of Appeals determined that the mobile home park was a residential use to which section 13-7- 208(b)(1) did not apply but nonetheless affirmed the trial court's findings concerning abandonment. We hold that this mobile home park is a commercial use within the scope of section 13-7-208(b)(1). We further hold that the evidence does not preponderate against the trial court's finding that the mobile home park was not grandfathered because it was not yet in operation when the Private Act took effect. This finding was sufficient to warrant the injunction, and we need not reach the issue of abandonment. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC/2010/smithco_012210.pdf


JUDITH ANN LESKO v. TENNESSEE SCHOOL BOARD, ET AL.

Court: TWCA

Attorneys:

Barry H. Medley, McMinnville, Tennessee, for the appellant, Judith Ann Lesko.

John W. Barringer, Jr. and Heather Hardt Douglas, Nashville, Tennessee for the appellees, Tennessee School Board and Bedford County EMS.

Judge: BLACKWOOD

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 had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/leskoj_012210.pdf


DURA AUTOMOTIVE SYSTEMS, INC. v. JAMES G. NEELEY, Commissioner of the Tennessee Department of Labor and Workforce Development, and EUSEBIO FLORES

Court: TCA

Attorneys:

Andrae Crismon, Murfreesboro, Tennessee, and David Kozlowski, Columbia, Tennessee, for the appellant, Eusebio Flores

Tara L. Ferguson, Thomas Anthony Swafford, Nashville, Tennessee, for the appellee, Dura Automotive Systems, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Warren A. Jasper, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Labor and Workforce Development

Judge: HIGHERS

This appeal involves a terminated employee's claim for unemployment compensation. The Department of Labor and Workforce Development initially determined that the employee was ineligible for unemployment benefits on the basis that he was discharged for misconduct connected with his work. However, the Department's Appeals Tribunal and its Board of Review both concluded that the employee's actions did not constitute work-related misconduct. The chancery court reversed, finding misconduct connected with work. We reverse the chancery court, finding that substantial and material evidence supports the Board of Review's decision, which is hereby reinstated.

http://www.tba2.org/tba_files/TCA/2010/duraautomotive_012210.pdf


CAROL MCKEE-LIVINGSTON v. MARK LIVINGSTON

Court: TCA

Attorneys:

Barbara Jones Perutelli, Nashville, Tennessee, for the appellant, Carol McKee-Livingston.

William Gary Blackburn, Nashville, Tennessee, for the appellee, Mark Livingston.

Judge: BENNETT

In an attempt to collect money due from her ex-husband on a judgment for back child support and spousal support, ex-wife had a writ of garnishment served upon a corporation making quarterly payments to the ex-husband under a settlement agreement. The issue on appeal is whether the January 30, 2008 garnishment notice attached payments due the ex-husband in May 2008. Because the corporation had a debt to the ex-husband at the time of the garnishment notice, although the debt was not payable until a later time, we have determined that the garnishment notice attached the May 2008 payment. Since the corporation made the May 2008 payment directly to the ex-husband, the corporation is liable to the ex-wife. We, therefore, reverse the decision of the circuit court.

http://www.tba2.org/tba_files/TCA/2010/livingstonc_012210.pdf


RICHARD MADKINS v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Richard Madkins, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Martha A. Campbell, Associate Deputy Attorney General; and Stephanie A. Bergmeyer, Assistant Attorney General; for the appellee, State of Tennessee.

Judge: BENNETT

Inmate filed an action against the State of Tennessee seeking money damages for his allegedly erroneous incarceration on multiple offenses. In a previous habeas corpus action, it was determined that the criminal court erred in making some of the sentences concurrent, and the relevant criminal indictments were ultimately nolle prossed. In the present case, the Claims Commission granted the State's motion to dismiss for failure to state a claim upon which relief can be granted. We affirm the decision of the Claims Commission.

http://www.tba2.org/tba_files/TCA/2010/madkinsr_012210.pdf


JERRY RAY BROCK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jerry Ray Brock, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jerry Ray Brock, pled guilty to aggravated burglary in Davidson County. The sentence imposed was ten years to be served as a Range III, persistent offender. Shortly thereafter, he was transported to Georgia to serve a previous sentence. Petitioner presented a petition for post-conviction relief two years after the entry of the judgment. The post- conviction court dismissed the petition as being time-barred. On appeal to this Court, Petitioner argues that the statute of limitations should be tolled because he was transferred to Georgia to serve his sentence there. We conclude that incarceration in another state is not a due process violation requiring tolling of the one year statute of limitations. Therefore, we affirm the post-conviction court's dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2010/brockj_012210.pdf


CARLOS HARDY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Carlos Hardy.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

A Davidson County jury convicted Petitioner, Carlos Hardy, of second degree murder, and the trial court sentenced him to twenty-five years as a Range I, violent offender. State v. Carlos Hardy, No M2004-02249-CCA-R3-CD, 2006 WL 359677, at *6 (Tenn. Crim. App., at Nashville, Feb. 10, 2006), perm. app. denied, (Tenn. Jul. 3, 2006). Petitioner was unsuccessful in his appeal to this Court. Id. at *15. He filed a petition for post-conviction relief raising a number of issues including an allegation that he was afforded the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition. On appeal, Petitioner argues that the post-conviction court erred in denying his petition with regard to the issue of ineffective assistance of counsel. We have reviewed the record on appeal and conclude that the post-conviction court did not err in denying the petition. Therefore, we affirm the decision of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/hardyc_012210.pdf


RUBEN PIMENTEL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ruben Pimentel, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Ruben Pimentel, appeals from the Warren County Circuit Court's summary dismissal of his petition for post-conviction relief, in which the petitioner had attacked his June 3, 2005 convictions of first degree murder and two counts of aggravated arson. The petition for post-conviction relief was not filed until March 9, 2009, and the post-conviction court dismissed the petition as time barred without appointing counsel and without holding a hearing. Because the petitioner adequately stated and supported claims in his petition that his poor mental health impeded his ability to present a timely post-conviction petition, thereby invoking principles of due process of law to toll the otherwise applicable post- conviction statute of limitations, and because the State of Tennessee concedes as much, we reverse and vacate the order of the post-conviction court and remand the case to that court for the appointment of counsel and the conducting of a hearing to determine the due process issue and any other issues that may follow in due course.

http://www.tba2.org/tba_files/TCCA/2010/pimentelr_012210.pdf


TODAY'S NEWS

Legal News
Legislative News
Your Practice
TBA Member Services

Legal News
Bristol Bar kicks off new year
The Bristol Bar Association elected Dan Coughlin of Massengill & Caldwell PC as president, and Ricky Curtis as vice president last month. Wes Edens of Icenhour & Edens was re-elected secretary/treasurer. The association's first meeting of 2010 was Jan. 11.

Government site adds lots of new info today
A year and a day after President Obama promised to have a more "transparent" government, large amounts of government data from all Cabinet-level departments is to be posted to the Internet today at the government's Web site, www.data.gov/. For example, the Transportation Department will post ratings for 2,400 lines of tires for consumer safety based on tire tread wear, traction performance and temperature resistance, and the Labor Department will release the names of 80,000 workplaces where injuries and illness have occurred over the past 10 years.
WKRN.com carried this AP story
On bathroom break, client gives lawyer the slip
If your client tells you he's gotta go, don't assume he means he needs to go to the bathroom. A Kentucky lawyer did just that as his client's trial was about to begin, and he went all right. And they are still looking for him.
The Tennessean carried this AP story
Just because you are granted bail, doesn't mean you can afford bail
Because Shadu Green has no money for bail, like hundreds of thousands nationwide, he is left with two options: He can fight his case -- but he'll have to do it from behind bars -- or he can plead guilty and take the 60-day sentence prosecutors are offering him and go home. But, Green points out, he is not guilty so he isn't inclined to do that. In this three-part series, National Public Radio examines bail rules in America.
Read the story on npr.org
Video highlights Memphis law school gala
If you missed last week's gala grand opening of the new University of Memphis Cecil C. Humphreys School of Law, you can hear interviews with some of the participants and see scenes from the event in a report from University of Memphis student Sarah Bleau.
See reports from the Memphis Law School gala
Legislative News
Casada bill ready to change state campaign finance law
Anticipating Thursday's U.S. Supreme Court ruling, state House Republican Caucus Chairman Glen Casada had already filed legislation that could open the door in Tennessee to corporate spending on campaigns. Casada said he had introduced HB2537 on opening day of the 2010 legislative session, expecting that the Supreme Court would strike down the federal law prohibiting direct corporate and union contributions to candidates. The 5-4 Supreme Court decision does not immediately impact Tennessee's law, but it sets the stage for changing Tennessee's ban.
The News Sentinel reports
Ophelia Ford misses start of session for flu
State Sen. Ophelia Ford, D-Memphis, who missed the legislature's special session on education reform the last two weeks, told Senate leaders that she was admitted to a Memphis hospital Sunday after a week of flu-like symptoms.
The Commercial Appeal has the story
Your Practice
Managing partners more confident about outlook, study shows
A "confidence index" developed by Citi Private Bank Law Watch shows that managing partners are becoming more confident about the economic outlook for their law firms -- in fact they haven't been this confident since 2007. About 64 percent of the managers surveyed expected demand for legal services to grow in the next 12 months.
ABAJournal.com tells you more
TBA Member Services
Open your door to FedEx residential shipping
Did you know that the FedEx portfolio of residential services can help you reach every residential address in the U.S., including Alaska and Hawaii? That's why you should Think FedEx First. And as a TBA member, you get a valuable discount on the select FedEx residential services.
Find out how to enroll today

 
 
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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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