Tenn. lawyers give nearly 300,000 hours, report shows

Tennessee lawyers volunteered nearly 300,000 hours of service last year, according to a report released today from the Tennessee Board of Professional Responsibility. In the first year of voluntary reporting of pro bono information, 3,698 Tennessee lawyers -- about 18 percent of all who are licensed in the state -- reported that they had performed some type of voluntary service, BPR Chief Disciplinary Counsel Nancy Jones said. Additionally, about 30 percent of these lawyers reported that they contributed financial support to organizations that provide legal services to clients with limited means. Having this benchmark reporting data is one way the court and the bar will evaluate if steps being taken to eliminate barriers to pro bono service are having a significant impact.

Read the full BPR report

TODAY'S OPINIONS
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BUILDERS MUTUAL INSURANCE COMPANY v. ROBERT W. DAUGHTREY

Court: TWCA

Attorneys:

John T. Rice, Chattanooga, Tennessee, for the appellant, Builders Mutual Insurance Company.

Keith Grant, Dunlap, Tennessee, for the appellee, Robert W. Daughtrey.

Judge: BELL

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee alleged that he sustained a compensable injury to his left arm. His employer denied the claim, contending that the injury was not caused by the employment, and also that the employee had failed to provide notice of his injury as required by the workers' compensation statute. The trial court found that the injury was work-related, and awarded 60% permanent partial disability ("PPD") to the left arm. On appeal, the employer argues that the evidence preponderates against the trial court's findings on these issues, and that the trial court erred by failing to apply the missing witness rule as to the potential testimony of the treating physicians. We find no error, and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/daughtrey_082510.pdf


JOE LYNN HUGHES v. ROBERT BRENT d/b/a APARTMENT MAINTENANCE SPECIALISTS, ET AL.

Court: TWCA

Attorneys:

Anthony A. Seaton and Mary M. Renfroe, Johnson City, Tennessee, for the appellant, Joe Lynn Hughes.

Ricky L. Apperson, Knoxville, Tennessee, for the appellees, Robert Brent, d/b/a Apartment Maintenance Specialists and American Zurich Insurance Company.

Judge: HARRIS

In this workers' compensation action, the trial court granted the employer's motion for summary judgment on the grounds that the employee's claim was barred by the statute of limitations, Tennessee Code Annotated section 50-6-203, because the employee had not filed a request for benefit review conference within one year of the date of injury. The employee, Joe Lynn Hughes, has appealed, contending that the statute was tolled by his timely filing of a request for assistance. We agree, reverse the grant of summary judgment, and remand the case to the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2010/hughesj_082510.pdf


ROY T. McGAHA v. COCKE COUNTY HIGHWAY DEPARTMENT ET AL.

Court: TWCA

Attorneys:

Stuart James and Todd Hasty, Chattanooga, Tennessee, for the appellant, Cocke County Highway Department.

Ben W. Hooper, III, Newport, Tennessee, for the appellee, Roy T. McGaha.

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

Judge: HARRIS

In this workers' compensation action, the employee, Roy McGaha, sustained a work-related back injury in June 2004, while employed by the Cocke County Highway Department. He was able to return to work, and his claim for benefits was settled within the one and one-half times impairment cap contained in Tennessee Code Annotated section 50-6-241(a). He alleged that he sustained a new compensable injury to his back in November 2007. The county denied the claim, asserting that Mr. McGaha did not sustain a new injury, but that his condition was the result of his earlier injury, and his remedy was, therefore, limited to reconsideration of his previous settlement. The trial court held that a new injury occurred in 2007 and that Mr. McGaha was permanently and totally disabled as a result of it. The court assigned 76% of the liability for the award to the county and 24% to the Second Injury Fund. The county has appealed, asserting that the trial court erred by finding that Mr. McGaha sustained a new injury and by finding that he was permanently and totally disabled. The Fund asserts, on appeal, that the trial court used an incorrect method to apportion liability. We affirm the award of benefits. We conclude, however, that the trial court did not use the correct method of apportioning liability between the Fund and the county. That portion of the order is vacated, and the case is remanded for further proceedings with regard to that issue.

http://www.tba2.org/tba_files/TSC_WCP/2010/mcgahar_082510.pdf


GAIL TUTEN v. JOHNSON CONTROLS, INC., ET AL.

Court: TWCA

Attorneys:

Jeffrey G. Foster and David E. Goudie, Jackson, Tennessee, for the appellant, Manufacturers Industrial Group.

Edward L. Martindale, Jr., Jackson, Tennessee, for the appellee, Gail Tuten.

Judge: ALISSANDRATOS

Employee developed carpal tunnel syndrome while employed as a factory worker by Johnson Controls, Inc. ("JCI"). After employee gave notice of her injury and received some treatment, Manufacturers Industrial Group ("MIG") bought the factory and became her employer. She had surgery on both arms and returned to work, but was then permanently laid off. Employee brought an action against both JCI and MIG for workers' compensation benefits due to injuries sustained to her right and left hands and wrists. JCI and MIG each argued that the other should be liable for her workers' compensation benefits. The trial court found that MIG was liable and awarded 48% permanent partial disability to both arms. MIG appealed. It contends that the trial court erred by assigning liability to it and by adopting the impairment rating of a physician chosen through the Medical Impairment Registry. MIG further argues that the award was excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2010/tuteng_082510.pdf


ROY G. BUTLER v. DAVID A. STILL

Court: TCA

Attorneys:

Steven J. Meisner, Nashville, Tennessee, for the appellant, David A. Still.

C. Dewees Berry, IV and C. David Killion, Nashville, Tennessee, for the appellee, Roy G. Butler.

Judge: CLEMENT

This is a dispute to quiet title to 5 acres between the owners of adjacent tracts. Both parties claim ownership of the disputed property along their common boundary by color of title. At issue is whether the plaintiff satisfied the requirements of Tennessee Code Annotated section 28-2-105 for quieting title to lands under color of title by establishing the deed had been recorded for at least 30 years and the property at issue had been adversely possessed by the plaintiff or his predecessors in title for at least 7 years. The trial court ruled in favor of the plaintiff finding that the plaintiff and his predecessors had adversely possessed the disputed property for more than 7 years and that the plaintiff's claim derived from a metes and bounds description in a 1961 deed, which was of record for more than 30 years. Finding the evidence preponderates in favor of the trial court's ruling, we affirm.

http://www.tba2.org/tba_files/TCA/2010/butlerr_082510.pdf


SHARI HARP V. DARRYELLE E. MILLS
Memorandum Opinion


Court: TCA

Attorneys:

Darryelle E. Mills, Talbott, Tennessee, pro se appellant.

Christopher P. Capps, Morristown, Tennessee, for the appellee, Shari Harp.

Petitioner, Shari Harp, filed this action to recover personal property and for an injunction related to her deceased mother's estate. Respondent, Darryelle E. Mills, is surviving spouse of the decedent. The trial court entered a partial default judgment in Ms. Harp's favor after Mr. Mills failed to answer the complaint or otherwise plead - despite ample notice of the consequences of failing to answer. Upon appeal, this court entered a show cause order directing Mr. Mills, acting pro se, to show cause why this appeal should not be dismissed for lack of jurisdiction, among other things. Mr. Mills has failed to respond to the show cause order within the time allotted. Accordingly, we dismiss this appeal because it is premature and because Mr. Mills has neglected to file a cost bond and has not paid the litigation tax associated with the appeal.

http://www.tba2.org/tba_files/TCA/2010/harps_082510.pdf


IN RE: TRISTYN K.
CORRECTION in the concurring opinion changes the word "unartfully" to "inartfully" on the second to last line of page 1


Court: TCA

Attorneys:

Keith Lowe, Knoxville, Tennessee, for the Appellant, Linsie K.

Joseph F. Della-Rodolfa, Knoxville, Tennessee, for the Appellees, Christopher W. and Sara R.

Judge: SWINEY

This parental rights termination case was filed by Christopher W. ("Father") and Sara R. ("Stepmother") seeking to terminate the parental rights of Linsie K. ("Mother") to her daughter Tristyn K. ("the Child"). Stepmother also seeks to adopt the Child, who currently is four years old. Following a trial, the Trial Court terminated Mother"s parental rights after finding various grounds had been proven by clear and convincing evidence and that termination of Mother's parental rights was in the Child's best interest. For the reasons discussed in this Opinion, we vacate the Trial Court's judgment finding grounds to terminate Mother's parental rights, and we remand this case for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2010/tristynk_082510.pdf

SUSANO concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/tristynk_CON_CORR_082510.pdf


IN THE MATTER OF ZMARIA C. ET AL.

Court: TCA

Attorneys:

Kevin S. Latta, Pulaski, Tennessee, for the appellant, Francoi C.

Samantha Guzall, Spring Hill, Tennessee, for the appellant, Darncia M.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth C. Driver, Senior Counsel, for the appellee, Tennessee Department of Children's Services.

Judge: CLEMENT

The parents of the two children at issue appeal the termination of their parental rights. The issues on appeal pertain to the trial court's findings that both parents were in substantial non-compliance with the permanency plans and that termination was in the children's best interests. Also at issue is whether the requirements of the Permanency Plans were not reasonable, related and relevant to the stated goals. We find the requirements of the Permanency Plans were appropriate and that the efforts of the Department of Children's Services constituted reasonable attempts to reunify the family. We also find the evidence clearly and convincingly supports the trial court's findings that the parents failed to substantially comply with the permanency plans and that termination of their parental rights is in the best interests of the children. We, therefore, affirm the termination of the parental rights of both parents.

http://www.tba2.org/tba_files/TCA/2010/zmariac_082510.pdf


STATE OF TENNESSEE v. JAMES ARTHUR JOHNSON

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, attorney for appellant, James Arthur Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Robert McGuire, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, James Arthur Johnson, was charged with two counts of premeditated first-degree murder, two counts of felony murder, and one count of aggravated robbery for events that occurred on the evening of June 18, 2006. Co-defendant Rodney Lenier Williams was also charged in all five counts, but his case was severed from the Defendant's case before trial. A jury sitting in the Criminal Court for Davidson County found the Defendant not guilty of the two counts of premeditated first-degree murder, guilty of the two counts of felony murder, and guilty of the count of aggravated robbery. The Defendant was given concurrent life sentences for the felony murder convictions. For the aggravated robbery conviction, the Defendant was given an eleven year sentence to run consecutively to the two life sentences. In this appeal as of right, the Defendant argues (1) that the evidence was insufficient to sustain his convictions, (2) that the trial court erred in allowing a non-expert witness to give his opinion, and (3) that the trial court erred in sentencing the Defendant. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/johnsonj_082510.pdf


TODAY'S NEWS

Election 2010
Legal News
Upcoming
Passages
TBA Member Services

Election 2010
Second suit filed in Shelby County election
Late yesterday afternoon, 10 candidates who were on the Aug. 5 ballot in Memphis filed a legal challenge to the election. The suit is the second to challenge validity of the election. The first, filed on Aug. 9, dealt with the alleged issue of voters being turned away from the polls. This suit alleges a litany of Election Day problems, which, according to the plaintiffs, made the election "incurably uncertain." Among those bringing the suit are Democratic nominees for countywide office and several candidates from the five judicial special elections.
The Memphis Daily News reports
Legal News
Nominations for TALS awards due this Friday
Friday is the deadline for nominating individuals for two Tennessee Alliance for Legal Services' (TALS) awards: the B. Riney Green Award, which recognizes those who strengthen access to justice in Tennessee and effectively promote inter-program cooperation, and the New Advocate of the Year Award, which recognizes energetic, effective advocacy by an individual in the first four years of their career. Nominations must be submitted by 5 p.m. Central time to Erik Cole at ecole@tals.org or by fax to (615) 627-0964.
Learn more on the TALS website
UT Law prof named to DOJ, ABA panels
University of Tennessee College of Law Professor Penny White has been named to the advisory committee for a U.S. Department of Justice project creating training programs for the nation's public defenders. The committee will conduct a needs assessment, design curriculum, select trainers and locations, and report back to the department. White also has been named co-chair of an ABA task force charged with creating trial advocacy training materials for firms to use when conducting in-house training. The university announced the news in its weekly e-newsletter.
Read more here
Former TBA presidents named fundraising chairs
Both Memphis Area Legal Services and the Legal Aid Society in Nashville have named fundraising campaign chairs who previously served as presidents of the Tennessee Bar Association. In Memphis, Buck Lewis, a lawyer with Baker, Donelson, Bearman, Caldwell & Berkowitz PC, is co-chair of the 2011 fundraising campaign. He will work with co-chair Amy Amundsen, a lawyer with Rice, Amundsen & Caperton PLLC. In Nashville, Gail Vaughn Ashworth, founding member of Wiseman Ashworth Law Group PLC, will serve as chair of the Legal Aid Society's Campaign for Equal Justice. Lewis served the TBA from 2008 to 2009. Ashworth held office from 2009 to 2010.

Memphis anti-discrimination policy withdrawn
An ordinance that would have prevented the city of Memphis from discriminating based on sexual orientation or gender identity in the hiring or promoting of employees appears to have lost momentum. The sponsor of the measure, citing lack of support for the proposal, withdrew it from consideration yesterday during a city council meeting. Also withdrawn was a ordinance that would have required the same language in city contracts.
The Commercial Appeal reports
Conflict management institute gets new director
Nashville's Lipscomb University has named Steve Joiner as the new managing director of its four-year-old Institute for Conflict Management (ICM). Joiner has been a faculty member for two years, teaching classes on negotiation, conflict in religious settings and leadership. He succeeds Larry Bridgesmith, who led the institute since its founding. Bridgesmith now will focus on teaching and promoting the ICM within the legal community. The ICM specializes in minimizing the costs of unresolved conflict and offers graduate courses and professional mediation training to students, lawyers, managers and judges.
The Nashville Post has the news (subscription required)
Putnam bar installs new officers
The Putnam County Bar Association has named new officers for the year. They are: President Lindsay Gross, Vice President Jason Hicks, Secretary Jennifer Kollstedt and Treasurer Dale Bohannon. All are solo practitioners in Cookeville.

New members join LAS community council
The Legal Aid Society announced this week that five new members have joined the organization's Community Advisory Council, which provides guidance to the council as it seeks to fulfill its mission. The new members are: Sumita Banerjee, policy advocate with the Tennessee Commission on Children & Youth; Julie Boehm, community volunteer; Mahalia Howard, executive director of the Grace M. Eaton Childcare Center; and Sylvia Rapoport, executive director of The Conservancy for the Parthenon & Centennial Park.

Upcoming
Justice Clark to speak at UT law school
One day after being sworn in as chief justice of the Tennessee Supreme Court, Justice Cornelia Clark will speak at the University of Tennessee College of Law. In doing so, she continues a tradition set by Chief Justice Janice Holder who also addressed the law school community the day after she took office as chief justice. For more information about Clark's Sept. 2 appearance contact the college at (865) 974-2521.

Passages
Jackson lawyer dies
Jackson lawyer Buff Wayne Handley died recently at the age of 62. Originally from Paducah, Ky., Handley earned her law degree from the Louisville School of Law and served as law clerk to two judges on the federal bankruptcy court. She went on to work for PSI-Child Support Services of Tennessee. The family asks that contributions in her honor be made to Immanuel Baptist Church, 3465 Buckner Lane, Paducah, KY 42001.
Read Handley's obituary
Nixon's fourth AG dies
William Saxbe, the fourth attorney general to serve under President Richard M. Nixon, died at his home near Columbus, Ohio, yesterday. He as 94. Saxbe was serving in the U.S. Senate at the time he was nominated to the post. Replacing two AGs who had been accused of Watergate-related offenses and one who resigned in protest, Saxbe served for just longer than a year. He resigned six months after President Gerald Ford took office to become ambassador to India, a post he held until 1977. Saxbe was known for strong opinions and blunt comments, accusing Nixon of lying and being inept, and referring to certain presidential aides as "Nazis."
Read the AP story from WRCB-TV Chattanooga
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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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