Commission accepting chancery court applications

The Judicial Nominating Commission is now accepting applications for the vacancy in the 11th Judicial District Chancery Court created by the impending retirement of Chancellor Howell Peoples. Interested parties should submit an application to the Administrative Office of the Courts by Feb. 16 at 12 noon CST. The commission will meet on Feb. 23 at 8:30 a.m. EST in Chattanooga for a public hearing on the applicants.

Learn more on the AOC web site

TODAY'S OPINIONS
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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.

THOMAS E. HALL v. TRW AUTOMOTIVE, U.S., LLC, ET AL.

Court: TWCA

Attorneys:

Richard Lane Moore, Cookeville, Tennessee, for the appellants, TRW Automotive U.S., LLC, and American Home Assurance Company.

Hugh Green and John Meadows, Lebanon, Tennessee, for the appellee, Thomas E. Hall.

Judge: HARRIS

In this workers' compensation action, the employee, Thomas Hall, alleged that he sustained hearing loss due to exposure to noise in the workplace. The employer, TRW Automotive U.S., LLC, contended that most of the hearing loss occurred after Mr. Hall began wearing hearing protection, and was therefore not caused by his employment. The trial court awarded 75% permanent partial disability of the hearing of both ears. TRW has appealed, arguing that the trial court erred in that it failed to apportion the award to the body as a whole, selected an incorrect injury date, declined to view a video recording of an evidentiary deposition, and made an excessive award of benefits. We conclude that the award should have been assigned to the body as a whole, and that the trial court selected an incorrect injury date. The judgment is modified accordingly.

http://www.tba2.org/tba_files/TSC_WCP/2010/hallt_020310.pdf


KIMBERLY WHEELER v. WHIRLPOOL CORPORATION

Court: TWCA

Attorneys:

Monica Mayo-Grinder, Nashville, Tennessee, for the appellant, Kimberly Wheeler.

David T. Hooper, Brentwood, Tennessee, for the appellee, Whirlpool Corporation.

Judge: HARRIS

In this workers' compensation action, the employee, Kimberly Wheeler, sustained repetitive trauma injuries to both arms. The injuries were accepted by her employer, Whirlpool Corporation, as compensable. After having surgery on both arms, she returned to work, initially in a light-duty status, and later to full duty. The product line on which she worked was then shut down and moved to another location. She was offered the option of accepting a voluntary layoff or moving to another product line. She chose the voluntary layoff. Under the terms of her employment contract, she continued to be an employee although she was not working. Eventually, the entire plant closed and Ms. Wheeler was terminated at that time. The trial court found that she had meaningful return to work and voluntarily left her employment. For that reason, it limited its award of permanent partial disability benefits to one and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(d)(1)(B). The employee has appealed, contending that the trial court erred by applying the one and one-half times impairment cap. We agree and modify the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/wheelerk_020310.pdf


DANA FOUST BOCHETTE v. MICHAEL LOUIS BOCHETTE

Court: TCA

Attorneys:

F. Michie Gibson, Jr., Nashville, Tennessee, for the appellant, Michael Louis Bochette.

Brody N. Kane and Angel P. Kane, Lebanon, Tennessee, for the appellee, Dana Foust Bochette.

Judge: FRANKS

In this divorce case, the Trial Court awarded the wife the divorce, and awarded her alimony in solido. One-half of the equity in the home was awarded to the wife, and other one-half of the equity in the home was awarded to the wife as alimony in solido. The Court also awarded the wife one-half of the workers' compensation settlement proceeds obtained by the husband during the marriage. On appeal, the husband questioned the distribution of the marital property and the Trial Court's ruling that the workers' compensation award was also marital property. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2010/bochetted_020310.pdf


GEORGE T. HAYNIE, JR. v. STATE OF TENNESSEE

Court: TCA

Attorneys:

George T. Haynie, Jr., Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela S. Lorch, Senior Counsel, for the appellee, State of Tennessee.

Judge: CLEMENT

Plaintiff, an inmate of the Tennessee Department of Correction, filed a claim for damages with the Division of Claims Administration alleging that he was arrested and unlawfully detained for weeks due to the erroneous actions of a state probation officer, who requested that a warrant for probation violation be issued against Plaintiff, and the judge of the criminal court who signed the warrant. He admits he was convicted of multiple felonies and sentenced to ten years; however, he contends he was not put on probation, and the State is liable pursuant to Tenn. Code Ann. section 9-8-307 for his arrest for an alleged probation violation. The Claims Commissioner dismissed the claim upon the State's Tenn. R. Civ. P. 12.02(6) motion upon findings that the claim did not constitute a cause of action for which relief could be granted against the State of Tennessee and the fact that the judge and probation officer had immunity for their actions. We affirm.

http://www.tba2.org/tba_files/TCA/2010/haynieg_020310.pdf


HERMANN HOLTKAMP GREENHOUSES, INC. v. METROPOLITAN NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, JO ANN NORTH, Assessor of Property for Davidson County, and TENNESSEE STATE BOARD OF EQUALIZATION

Court: TCA

Attorneys:

Larry D. Crabtree and Jo Ann Rosenblum, Nashville, Tennessee, for the appellant, Hermann Holtkamp Greenhouses, Inc.

Sue B. Cain, Director of Law, J. Brooks Fox, and Christopher M. Lackey, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County and Jo Ann North, Assessor of Property for Davidson County.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Gregory O. Nies, Nashville, Tennessee for the appellee, Tennessee State Board of Equalization.

Judge: KIRBY

This appeal concerns the classification of property for taxation purposes. The petitioner commercial business grows plants in large greenhouses erected on its land. The county assessor of property classified the greenhouses as real property, to be taxed as such. The petitioner taxpayer appealed the assessor's classification, contending that the greenhouses are personal property. An administrative law judge concluded that the greenhouses are personal property, taxed at a lower rate than real property. The assessor appealed to the state board of equalization. The state board of equalization reversed the ALJ's decision and concluded that the greenhouses are real property. The petitioner taxpayer then filed a petition for judicial review of the state board's decision. On cross motions for summary judgment, the trial court concluded that the greenhouses are real property and dismissed the taxpayer's petition. The petitioner taxpayer now appeals. Utilizing the common law of fixtures, we find that the greenhouses are properly classified as real property. Thus, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2010/holtkamph_020310.pdf


BEVERLY MORAN v. ELLIOT WILLENSKY

Court: TCA

Attorneys:

T. Holland McKinnie, Franklin, Tennessee, and Mark M. Mizell, Nashville, Tennessee, for the appellant, Elliot Willensky.

Anne C. Martin and William T. Cheek, III, Nashville, Tennessee, for the appellee, Beverly Moran.

Judge: STAFFORD

This case arises from a partnership gone bad. The trial court found that the Appellant wrongfully dissociated from the partnership. Pursuant to the Tennessee Uniform Partnership Act, Tenn. Code Ann. section 61-1-101 et seq., the trial court awarded Appellee project costs, and winding up costs, including attorney's fees. Appellant appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/moranb_020310.pdf


STATE OF TENNESSEE v. MICHAEL EDWARDS

Court: TCCA

Attorneys:

Kevin R. Askren, Assistant Public Defender, Tullahoma, Tennessee, for the appellant, Michael Edwards.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Mickey Layne, District Attorney General; and Marla Holloway, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: WELLES

On December 16, 2008, after pleading guilty to two counts of sale of marijuana and one count of aggravated assault, the Defendant, Michael Edwards, was sentenced to four years in the Department of Correction, all but 120 days of which was ordered to be served on probation. The trial court issued probation violation warrants for the Defendant on March 13 and April 14, 2009. Following an evidentiary hearing on April 23, 2009, the Coffee County Circuit Court revoked his probation. In this appeal, the Defendant contends that his probation was revoked in error. After our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/edwardsm_020310.pdf


STATE OF TENNESSEE v. STEVEN BERNARD SYDNOR

Court: TCCA

Attorneys:

Jeffrey A. DeVasher (on appeal), Jonathan F. Wing (at trial), and Tyler Chance Yarbro (at trial), Nashville, Tennessee, for the appellant, Steven Bernard Sydnor.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Sarah Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, Steven Bernard Sydnor, of second degree murder and theft of property valued between $1,000 and $10,000. He received a total effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, the appellant contends: (1) The trial court erred by denying a motion to suppress statements he made to police. (2) The trial court erred by denying a motion to suppress evidence found in his apartment because consent to search was obtained immediately after he had invoked his right to remain silent. (3) The trial court erred in admitting a photograph of the victim taken prior to her death. (4) The trial court erred in admitting as substantive evidence testimony regarding alleged incidents of threatening conduct by the appellant. (5) The trial court erred in allowing the State to present testimony regarding the victim's plans to attend a memorial service in Pennsylvania for her recently deceased grandparents. (6) The trial court erred in admitting graphic photographs of the victim's face and body. (7) The evidence contained in the record is not sufficient to support the appellant's conviction for theft of property of the value of $1,000 or more, but less than $10,000. (8) The trial court erred in imposing the maximum sentence for second degree murder. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/sydnors_020310.pdf


STATE OF TENNESSEE v. BARBARA JEAN TOTTY

Court: TCCA

Attorneys:

Barbara Jean Totty, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Kim R. Helper, District Attorney General; and Michael J. Fahey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Appellant was convicted in the Hickman County Circuit Court of driving under the influence. She was sentenced to 11 months and 29 days, to be served on probation. She appeals, asserting she received ineffective assistance of counsel. Because both her brief and the record she provided are inadequate under our rules, we affirm.

http://www.tba2.org/tba_files/TCCA/2010/tottyb_020310.pdf


County's Responsibility for Payment of Court-Ordered Mental Health Evaluations

TN Attorney General Opinions

Date: 2010-02-03

Opinion Number: 10-13

http://www.tba2.org/tba_files/AG/2010/ag_10_13.pdf

TODAY'S NEWS

Legal News
Passages
Supreme Court Report
TBA in the News
Legislative News
TBA Member Services

Legal News
New site offers federal appeals court opinions
A new American Bar Association (ABA) web site provides summaries of "newsworthy and legally significant" opinions from three of the nation's 12 circuit courts of appeal. The site, maintained by the ABA Standing Committee on Federal Judicial Improvements, currently covers the Third, Fifth and Ninth circuits. If the effort is successful, it will be expanded to include the other circuits. The service is available to all interested individuals. ABA membership is not required.
Sign up for free case alerts
LSC requests $516.5 million for FY 2011
The Legal Services Corporation (LSC) recently submitted its 2011 budget request to Congress. It calls for $516.5 million in funding, with more than 95 percent of the funds going to nonprofit legal aid programs. The budget request breaks down as follows: $484.9 million for civil legal assistance, $6.8 million for technology grants, $1 million for student loan repayment assistance to legal aid lawyers, $19.5 million for management and grants oversight, and $4.35 million for the office of the Inspector General.
Learn more here
Bartlett judge proposes docket change
Bartlett Judge Freeman Marr wants to move both of the court's hearing dockets to Monday mornings. Division 1 currently meets at 7 a.m. on Wednesdays, while Division 2 meets at 2 p.m. on Mondays. Marr is pursuing the idea as he adds -- in addition to his current Division 1 duties -- the duties of Division 2 Judge George McCrary, who died last October. But some city officials reacted cautiously to the idea saying issues to be considered include overtime for police officers and court clerks who might have to work late or over the weekend in order to have all cases ready for Monday morning.
The Commercial Appeal reports
ABA hiring for Haiti relief and legal reform effort
The American Bar Association (ABA) and other legal groups are pushing to rebuild and support Haiti's legal system after the earthquake destroyed the courthouse in Port-au-Prince and reportedly killed several judges, including the country's chief judge. The Haitian Lawyers Association and the international section of the Florida Bar met last week to discuss plans to rebuild the courthouse. Meanwhile, the ABA is recruiting a program manager, translators and other personnel for a new Rule of Law Initiative in Haiti. The program will support local justice-sector institutions in processing criminal cases and civil petitions during the recovery.
Learn more here
Mukasey disgusted with terrorism venue indecision
Former U.S. Attorney General Michael Mukasey, who served in the second Bush Administration, hit the Justice Department hard this week for its indecision on where to try five accused Sept. 11 plotters. Saying it looked "like amateur night down there," he said the military courts at Guantanamo Bay are better equipped than U.S. civilian courts for the trials.
The ABA Journal has the story
Judge addresses UTC basketball team
Hamilton County General Sessions Court Judge Bob Moon spoke to University of Tennessee Chattanooga basketball players yesterday, reminding them they are role models for young people across the state: "Who you are as a person will always be much more important than who you are as a player. Fouling out in the game of basketball is never fatal, but fouling out in the game of life usually is."
Read more of his remarks from Chattanoogan.com
Passages
Update: Inman family adds visitation
The family of retired Chancellor and Senior Judge William H. Inman, who died Jan. 31, has added an additional visitation session on Saturday, Feb. 6. The family will now receive friends prior to the memorial service as well as immediately following the service. Visitation will begin at 1 p.m. at St. Paul Presbyterian Church, 4540 St. Paul Road, Morristown, TN 37813. The service will begin at 3 p.m. For more information please contact the Stetzer Funeral Home, which is in charge of the arrangements.

Supreme Court Report
Thomas: State of the Union speeches uncomfortable
U.S. Supreme Court Justice Clarence Thomas doesn't attend State of the Union speeches for one simple reason: the partisanship, catcalls and muttering makes the night "very uncomfortable for a judge." His remarks come at a time when his colleague Justice Samuel A. Alito Jr. is in the news for reacting to a statement made by President Barack Obama last week.
Read reports of Thomas's speech from the Florida media
TBA in the News
TBA members tackle conduct rules update
A recent article in the Nashville Business Journal looks at proposed changes to attorney professional conduct rules proposed by the TBA. The article quotes President Gail Vaughn Ashworth, who speaks in support of the changes, and cites the work of Memphis attorneys Lucian Pera and Brian Faughnan, who are leading the reform effort. Other TBA members quoted in the story are Vanderbilt University Law School Associate Dean Susan Kay, Nashville attorney Tom Lawless and Nancy Jones, chief disciplinary counsel of the Tennessee Board of Professional Responsibility.
Read the article here (subscription required)
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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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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