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Court: TWCA


Timothy W. Conner, Knoxville, Tennessee, for the appellants, Lockheed Martin Energy Systems, Inc. and Union Carbide Corporation.

Loring E. Justice, Knoxville, Tennessee, for the appellee, Areties McKamey.

Stephen P. Miller and Lisa A. Overall, Memphis, Tennessee, for amicus curiae, Tennessee Defense Lawyers' Association.

Rocky McElhaney, Nashville, Tennessee, for amicus curiae, Tennessee Association for Justice.

Judge: LEE

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 trial court found that the employee had sustained a hearing loss as a result of exposure to noise during her work from 1944 to 1989 as a telephone operator for her employer, and awarded 50% permanent partial disability ("PPD") of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding on the issue of causation. Alternatively, it argues that the award is excessive. We reverse the judgment and dismiss the complaint.


Court: TCA


Michael Keith Davis, Dunlap, Tennessee, for the appellant, Robert Alan Austin.

Kathryn R. Leiderman, Jasper, Tennessee, for the appellee, Amanda Yvette Austin.


After the divorced mother of an eight year-old boy moved almost 100 miles away from the parents' home county, the father filed a petition to be designated as the child's primary residential parent in her place. The trial court found that there was no proof that the mother's move posed a threat of "specific and serious harm to the child," and accordingly concluded that the father did not meet the threshold requirement for modification of an established parenting arrangement. We reverse the trial court's order because a threat of specific and serious harm is not the correct standard to apply in modification proceedings. We find there was a material change of circumstances and remand for determination of the best interests of the child.


Court: TCCA


Glen R. Funk, Nashville, Tennessee, for the appellant, Victor Wayne Browning.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; John W. Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.


Following a bench trial, the Defendant, Victor Wayne Browning, was found guilty of assault, a Class A misdemeanor. See Tenn. Code Ann. section 39-13-101. He received a sentence of eleven months and twenty-nine days. The trial court ordered him to serve thirty days of his sentence in the Robertson County Jail, with the sentence thereafter to be suspended and the Defendant placed on supervised probation. In this direct appeal, the Defendant (1) challenges the sufficiency of the convicting evidence; (2) asserts that a sentence of thirty days confinement was improper; and (3) argues that the proof did not sufficiently establish the amount of restitution awarded and, furthermore, that the trial court did not consider the Defendant's financial resources or ability to pay as required by statute. After a review of the record, we conclude that the evidence is sufficient and that the trial court did not err in ordering the Defendant to serve thirty days in confinement. With regard to the order of restitution, we conclude that, while the amount of restitution ordered was properly established, remand is necessary for a determination of the Defendant's financial resources and his future ability to pay.


Court: TCCA


Ronald G. Freemon, Columbia, Tennessee, for the appellant, Johnny Menifee.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Johnny Menifee, was convicted in 2004 of Class D felony evading arrest with risk of injury, misdemeanor theft, Class E felony reckless endangerment with a deadly weapon, and resisting arrest. He received an effective sentence of eighteen years as a persistent offender. After his convictions and sentences were affirmed by this court in 2006, he filed a petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied the petition; and, after our review, we affirm that denial.


Court: TCCA


Donald W. Schwendimann, Hohenwald, Tennessee, for the appellant, Gary Schwendimann.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Ron Davis, District Attorney General, and Jeff Long, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

When a city worker was changing the water meter at Appellant's home, he discovered a second meter buried about two feet underground with two bypass pipes attached to the main water line. These two bypass pipes were installed in such a manner so that water coming to those two pipes would not be registered by Appellant's water meter as water consumption. The Lewis County Grand Jury indicted Appellant for one count of theft of services over $1,000. This charge was later amended to theft of services of $500 or less. After a jury trial, Appellant was convicted of theft of services of $500 or less, a Class A misdemeanor. Following a separate sentencing hearing, Appellant was sentenced to eleven months and twenty-nine days. He was ordered to serve five days in jail, five days on house arrest, and the remainder on probation. Appellant now appeals, arguing that the evidence is insufficient to support his conviction and that the State violated his due process rights by failing to turn over exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). After a thorough review of the record, we conclude that the evidence was sufficient and that there was no violation of the rules as set out in Brady. Therefore, we affirm the judgment of the trial court.

Constitutionality of Tenn. Code Ann. Section 2-19-132

TN Attorney General Opinions

Date: 2010-03-12

Opinion Number: 10-30

Exceptions for Citations Under Tenn. Code Ann. Section 40-7-118

TN Attorney General Opinions

Date: 2010-03-12

Opinion Number: 10-31

Standards for Nursing Services in Residential Hospices

TN Attorney General Opinions

Date: 2010-03-12

Opinion Number: 10-32


Legal News
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Legal News
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Download the opinion
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Learn more here
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Legislative News
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The ABA Journal has the story
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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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