Estate Planning Forum returns to Nashville

Some of the state's top estate planners will be sharing their knowledge on estate planning developments and topics important to Tennessee practitioners at the upcoming Estate Planning Forum, Feb. 26, in Nashville. This information-packed, full-day TennBarU program will provide seven CLE hours and include a luncheon address from Knoxville attorney Anne McKinney.

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03 - TN Supreme Court
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Court: TSC


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.


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.


Court: TSC


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.


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.


Court: TSC


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.


Court: TWCA


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.


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.

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

Court: TCA


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


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.


Court: TCA


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

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


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.


Court: TCA


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.


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.


Court: TCCA


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.


Court: TCCA


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.


Court: TCCA


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.


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