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Monday, August 30, 2010

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Court says yes to suspension of rulemaking

As recommended by the Tennessee Bar Association, the Board of Professional Responsibility and state student loan authorities, the Tennessee Supreme Court continues to wait for legislative and administrative action before adopting rules to allow the BPR to revoke law licenses for lawyers who are believed to be in default on student loan obligations. The "recommending parties" suggested to the court that a change in state law was needed to place the program on a sound constitutional footing. Legislation to adopt the necessary authorization died at the end of the legislative session in June. To read more about the issue, download the amendment and read a Tennessee Bar Journal article on the subject.

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.

02 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
01 - TN Court of Criminal Appeals
02 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_083010.pdf

DON NICHOLS v. JACK COOPER TRANSPORT COMPANY, INC. ET AL.

Court: TSC

Attorneys:

Larry R. McElhaney and J. Nicholas Harris, Nashville, Tennessee, for the appellee, Don Nichols.

Richard C. Mangelsdorf, Jr. and J. Paul Brewer, Nashville, Tennessee, for the appellants, Jack Cooper Transport, Inc. and Liberty Mutual Insurance.

Judge: WADE

The employee, who suffered two separate injuries during the course of his employment as a truck driver for the employer, settled his first claim for workers' compensation and filed suit on the second. Shortly after being laid off because of an unexpected work shortage, the employee elected to retire in order to maintain medical insurance coverage rather than face an indefinite furlough without pay or benefits coverage. When the trial court reconsidered the settlement and awarded benefits in excess of the lower statutory cap on the second claim, resolving the issues in favor of the employee, the employer appealed, and the Special Workers' Compensation Appeals Panel reversed. Because we have concluded that the employment relationship terminated when the employee was laid off, rather than when he subsequently retired, the employee was not meaningfully returned to work, and, therefore, qualifies for reconsideration of his first injury and is not subject to the lower cap on the second. The judgment of the Panel is reversed, and that of the trial court is reinstated.

http://www.tba2.org/tba_files/TSC/2010/nichols_083010.pdf

LEE MEEKS v. HARTFORD INSURANCE COMPANY OF THE MIDWEST

Court: TWCA

Attorneys:

William B. Walk, Memphis, Tennessee, for the appellant, Hartford Insurance Company of the Midwest.

Ricky L. Boren, Jackson, Tennessee, for the appellee, Lee Meeks.

Judge: WALLACE

The employee sustained two compensable injuries on the same day. Before he reached maximum medical improvement, all of the stock in his employer was sold to another corporation. The trial court held that this transaction caused a loss of employment for purposes of Tennessee Code Annotated section 50-6-241(d) and awarded 33% permanent partial disability to the left arm, an amount in excess of one and one-half times the anatomical impairment. On appeal, the employer contends that the trial court erred in finding that a loss of employment occurred as a result of the change of ownership and that the award is excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2010/meeksl_083010.pdf

SUSIE TOMLINSON v. ZURICH AMERICAN INSURANCE

Court: TWCA

Attorneys:

William B. Walk, Memphis, Tennessee, for the appellant, Zurich American Insurance.

Ricky L. Boren, Jackson, Tennessee, for the appellee, Susie Tomlinson.

Judge: WALLACE

The sole issue presented in this workers' compensation claim is whether a corporate transaction involving the sale of the employer amounted to a loss of employment for purposes of Tennessee Code Annotated section 50-6-241(d). The trial court found that it did and awarded permanent disability benefits in excess of one and one-half times the anatomical impairment. On appeal, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2010/tomlinsons_083010.pdf

DEBBIE BAKIR, et al., v. STEVEN BRENT MASSENGALE, Individually and d/b/a MASSENGALE BONDING COMPANY

Court: TCA

Attorneys:

Carol Ann Barron, Dayton, Tennessee, for the appellant, Steven Brent Massengale, Individually, and d/b/a Massengale Bonding Company.

Michael E. Richardson, Chattanooga, Tennessee, for the appellees, Debbie Bakir and Mostafa Bakir.

Judge: FRANKS

The plaintiffs advanced monies for the creation and operation of a bonding company, in which plaintiffs were to be partners with the defendant. A dispute arose between them about the bonding operation, and plaintiff sued defendant for a percentage of the profits of the bonding company and defendant counter-sued for a monetary judgment as well. The Trial Court ruled that no partnership existed, but plaintiffs were entitled to recover $15,000.00 from defendant. Defendant's counter-action was dismissed. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2010/bakirb_083010.pdf

STATE OF TENNESSEE v. DENNIS B. REECE

Court: TCCA

Attorneys:

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Dennis B. Reece.

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

Judge: MCLIN

The petitioner, Dennis B. Reece, pled guilty to second degree murder in October 2005. In September 2008, he filed a petition for post-conviction relief in the convicting court. The post-conviction court dismissed the petition as untimely. On appeal, the petitioner argues that the Tennessee Supreme Court's opinion in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) ("Gomez II"), created a new constitutional rule entitled to retrospective application and that this court should deem the one-year statute of limitations period to extend from the publication of Gomez II. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/reeced_083010.pdf

Local Employee Running for Elective Office

TN Attorney General Opinions

Date: 2010-08-30

Opinion Number: 10-94

http://www.tba2.org/tba_files/AG/2010/ag_10_94.pdf

Retroactive Effect of Amendment to Sheriff's Civil Service Law

TN Attorney General Opinions

Date: 2010-08-30

Opinion Number: 10-95

http://www.tba2.org/tba_files/AG/2010/ag_10_95.pdf

TODAY'S NEWS

Legal News
Election 2010
Upcoming
Clarification
TBA Member Services

Legal News

Commerce Secretary Locke discusses intellectual property piracy in Nashville

U.S. Commerce Secretary Gary Locke met with music industry representatives in Nashville today "to discuss the Obama Administration's commitment to global enforcement of laws against intellectual property piracy," according to the U.S. Department of Commerce. Locke was joined by Congressman Jim Cooper and Nashville Mayor Karl Dean for a tour of Music Row. After the tour, Gov. Phil Bredesen planned to join the group for a discussion with musicians, songwriters, students and other industry representatives at Belmont University.

NewsChannel 5 reports

Protestors recall 'kneel-in' of civil rights movement

Fifty years after the "the kneel-in" at The Shell in Memphis's Overton Park, demonstrators went back to recall the night they were arrested for going into a white crowd at a religious rally sponsored by First Assembly of God Church. Their group of African-American students were from LeMoyne College and Owen Junior College. It was an incident from the Memphis civil rights movement that resulted in criminal convictions that were not dropped or overturned on appeal, although the group had a skilled team of lawyers -- legal pioneers such as A.W. Willis, Benjamin Hooks, Russell Sugarmon and H.T. Lockard -- who appealed the convictions all the way to the U.S. Supreme Court.

Read more in the Commercial Appeal

Editorial: Holder should get on with cold case initiative

In an editorial, The Commercial Appeal calls on Attorney General Eric H. Holder Jr. to make good on his predecessor's promise that as many as 100 unresolved cold cases would be reviewed when the Civil Rights-Era Cold Case Initiative was announced more than three years ago. Holder "has had enough time to address this issue. He should put the wheels of justice in motion and deliver a full accounting of where the cold case initiative stands today," the paper says. "The South still is waiting for thorough investigations of crimes that were not given the serious attention they deserved because the victims were black."

Read the editorial

UT Law IL class 27 percent 'students of color'

The University of Tennessee College of Law has one of its largest classes in years, with 169 students enrolling. The class of 2013 was selected from more than 1,500 applicants. The class also is the most diverse in the college's history, with 45 students of color, which represents 27 percent of the entering class. Class members range in age from 20 to 40. Approximately 40 percent of the class is female and 60 percent is male, tracking the national applicant pool that is predominantly male this year.

Learn more about the class from UT

Assistant D.A. fired amid sex allegations

Assistant District Attorney for Tennessee's 25th District Terry Dycus was fired last week, shortly after TBI agents began investigating what went on inside the Hardeman County Courthouse. Two weeks ago, two female defendants with cases in court reported Dycus to the Bolivar police chief, for trying to coerce them into having sex in exchange for getting their cases thrown out of court.

WMC-TV has this update

Don't post on Facebook until trial is over, please

Attention jurors: Do not post your verdict on Facebook -- especially before the trial is over -- or you will hear from an angry judge, like this Michigan woman did. While serving as a juror, Hadley Jons wrote on her Facebook page that it was "gonna be fun to tell the defendant they're guilty." She was dismissed from the jury the next day.

WKRN.com carried this AP story

Sevier County clerk resigns while comptroller investigates

Sevier County Clerk Joe Keener announced his resignation today, less than a week after saying he was taking a leave of absence amid a state audit of his office. Deputy Clerk Karen Cotter has taken over day-to-day operations. The state comptroller's office began its routine survey of the clerk's office books about a month and a half ago and found "something interesting" that prompted it to move into a more detailed investigation, officials said.

The News Sentinel has the details

Election 2010

Anderson race still tied, commission set to vote despite protest

Zach Farrar, the Republican nominee who tied Democrat Brandon Fisher in the election for Anderson County's juvenile judge, on Friday filed the legal actions seeking both a recount and a restraining order blocking a scheduled commission vote set to break the tie. Chancellor William Lantrip denied the restraining order, ruling the commission's special vote wouldn't cause "irreparable harm." The vote is set for today (Aug. 30).

The News Sentinel has more

Loudon Co. General Sessions: Russell retires, Dale sworn in

Judge William Russell announced his plans to retire earlier this year, which put the position onto the August ballot. Loudon County lawyer Rex Dale won and will be sworn in tonight (Aug. 30) at the Loudon County Courthouse along with the other winners in the county. Russell was elected to the position in 1998, and while in office he has promoted the Court Appointed Special Advocates program. He will serve on its board after he leaves the bench. The News-Herald reported these stories.

Black, Zelenik and Aegis ordered to mediation

Davidson County Judge Hamilton Gayden has ordered former congressional candidate Lou Ann Zelenik, state Sen. Diane Black and Aegis Sciences Corp. into mediation over lawsuits regarding campaign advertisements. Aegis filed a defamation lawsuit July 28 over Zelenik's commercials criticizing state contracts awarded to the drug testing company owned by Black's husband, Zelenik's main opponent in the 6th Congressional District Republican primary last month. Zelenik lost to Black in the primary.