Monday, November 01, 2010
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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.

01 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
01 - TN Court of Criminal Appeals
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00 - Formal Ethics Opinions - BPR
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_110110.pdf
SANDRA JANE GARDNER v. RANDSTAD NORTH AMERICA, L.P.

Court: TWCA

Attorneys:

Kent E. Krause, Nashville, Tennessee, for the appellant, Randstad North America, L.P.

Raymond W. Fraley, Fayetteville, Tennessee, for the appellee, Sandra Jane Gardner.

Judge: KURTZ

Employee alleged that she injured her left arm in the course of her employment. Employer denied liability, contending employee's injuries were not causally related to or arising from her employment. The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed. We affirm as to the arm injury but conclude that the evidence preponderates against the trial court's finding that employee's shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.

http://www.tba2.org/tba_files/TSC_WCP/2010/gardners_110110.pdf
KENNETH BEAL v. NASHVILLE ELECTRIC SERVICE a/k/a ELECTRIC POWER BOARD OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Henry D. Fincher, Cookeville, Tennessee, for the appellant, Kenneth Beal

Parks T. Chastain, Gordon C. Aulgur, Nashville, Tennessee, for the appellee, Nashville Electric Service a/k/a Electric Power Board of Nashville and Davidson County

Judge: HIGHERS

Employee had been absent from work on paid sick leave for an extended period of time when Employer conducted an investigation and learned that he was working as a real estate agent. An administrative law judge conducted a hearing and recommended termination. The Board unanimously upheld the ALJ's findings and terminated Employee. The chancery court affirmed. We affirm.

http://www.tba2.org/tba_files/TCA/2010/bealk_110110.pdf
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. DIANNE P.

Court: TCA

Attorneys:

Anne M. Davenport, Nashville, Tennessee, for the Respondent/Appellant, Dianne P.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General;and Elizabeth P. McCarter, Senior Counsel, for the Petitioner/Appellee, State of Tennessee Department of Children's Services

Judge: KIRBY

This is an appeal from a finding of dependency and neglect. An off-duty employee of the petitioner Tennessee Department of Children's Services witnessed the respondent mother hitting the subject child in the parking lot of a retail store. After an investigation, the State filed a petition for dependency and neglect, alleging abuse based on the parking lot incident. The juvenile court determined that the child had been abused and held that the child was dependent and neglected. The mother appealed to the circuit court, which conducted a two-day trial de novo. After hearing the evidence, the circuit court below entered an order finding by clear and convincing evidence that the child had been abused and declaring the child to be dependent and neglected. The mother now appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/diannep_110110.pdf
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. EBONY M.

Court: TCA

Attorneys:

Shantell S. Suttle, Cordova, Tennessee, for the appellant, Ebony M.

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

Judge: HIGHERS

Mother appeals from the termination of her parental rights on the grounds of abandonment, substantial noncompliance with permanency plans, and mental incompetence. We affirm.

http://www.tba2.org/tba_files/TCA/2010/ebonym_110110.pdf
JANSON POPE v. SAYURI POPE

Court: TCA

Attorneys:

Connie Reguli, Brentwood, Tennessee, for the appellant, Sayuri Pope.

Phillip Leon Davidson and Mary Francis Lyle, Nashville, Tennessee, for the appellee, Janson Pope.

Judge: DINKINS

In this divorce action, Wife appeals the trial court's division of property and award of alimony and attorney's fees to Husband and asserts that the manner and conduct of the hearing violated her right to procedural due process. We reverse the judgment in part and remand the case for the court to classify the parties' property, to value and divide the property it determines to be marital property, and to redetermine the amount of attorney's fees to Husband.

http://www.tba2.org/tba_files/TCA/2010/popej_110110.pdf
JAMES RAINWATER, ET AL. v. SUMNER COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

Bruce N. Oldham, Gallatin, Tennessee, for the appellants, James Rainwater, et al

Leah May Dennen, Gallatin, Tennessee, A. Scott Derrick, Nashville, TN, for the appellees, Sumner County, et al

John A. Beam, III, Kristin Fecteau, Nashville, TN, for the appellees, C. Russell Bridges and Janet C. Bridges Mark T. Smith, Gallatin, Tennessee, for the appellees, William Hardaway and Judy Hardaway and Dry Fork Creek Cumberland Presbyterian Church

Judge: HIGHERS

Plaintiffs sought a declaratory judgment that a gravel drive running through their property is a private easement rather than a public road. The trial court granted summary judgment in favor of the defendants, finding that the drive is a public road. Finding this case inappropriate for summary judgment, we reverse the trial court's grant of summary judgment and remand for a trial on the merits.

http://www.tba2.org/tba_files/TCA/2010/rainwaterj_110110.pdf
ESTATE OF DAVID HOLT RALSTON, DECEASED, BY JOHN A. RALSTON, PERSONAL REPRESENTATIVE v. FRED R. HOBBS ET AL.

Court: TCA

Attorneys:

William Kennerly Burger, Murfreesboro, Tennessee, for the appellants, Fred R. Hobbs, Myrtle Ralston Hobbs, Amanda Hobbs Johnson, and Jonathan Johnson.

Mark S. Dessauer and Rachel E. Ralston, Kingsport, Tennessee, for the appellee, The Estate of David Holt Ralston, Deceased, by John L. Ralston, Personal Representative.

Judge: CLEMENT

The personal representative of a decedent's estate filed this action to rescind twelve deeds, all of which were executed by the decedent's attorney-in-fact without the decedent's knowledge and for which the decedent received no consideration, or alternatively for damages. The attorney-in-fact conveyed the property to himself, his mother, and his daughter. The personal representative alleges that the attorney-in-fact breached his fiduciary duty in making the transfers. The trial court agreed, and rescinded the conveyances for property still owned by the attorney-in-fact and awarded monetary damages against the attorney-in-fact for the value of property subsequently conveyed to innocent third parties. The attorney-in-fact appeals claiming, inter alia, the personal representative lacks standing to bring a claim on behalf of the estate involving real property, that the action is barred by the statute of limitations, and that the trial court erred in finding that the durable power of attorney did not authorize him to transfer the property. We have determined the personal representative has standing to maintain this action and the action was timely filed. We affirm the trial court's finding that the attorney-in-fact breached his fiduciary duty by conveying the property to himself, his mother, and his daughter for no consideration to the decedent. We also affirm the rescission of the deeds to property the attorney-in-fact still owns and the award of damages against the attorney-in-fact for the value of the real property that has since been conveyed to innocent third parties.

http://www.tba2.org/tba_files/TCA/2010/ralstond_110110.pdf
TERESA L. WEAVER, ET AL. v. TRAVIS K. PARDUE, M.D., ET AL.

Court: TCA

Attorneys:

Nanette Joan Gould, Nashville, Tennessee, for the appellant, Teresa L. Weaver.

Dixie W. Cooper, Nashville, Tennessee, for the appellee, Travis K. Pardue, M.D.

Judge: FARMER

This appeal arises out of a primary care physician's alleged negligent and tortious treatment of a longtime patient. The trial court granted summary judgment in favor of the physician, questioning the credibility of the patient's allegations and holding in part that the physician's alleged conduct could not support a cause of action for intentional infliction of emotional distress. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2010/weavert_110110.pdf
STATE OF TENNESSEE v. CALVIN EUGENE BRYANT, JR.

Court: TCCA

Attorneys:

James O. Martin, III (on appeal); Joy Kimbrough, Don Himmelberg, and John Higgins (at trial), Nashville, Tennessee, for the appellant, Calvin Eugene Bryant, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero and Rob McGuire, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Calvin Eugene Bryant, Jr., was convicted by a Davidson County Criminal Court jury of two counts of sale of a Schedule I controlled substance in a Drug-Free School Zone and two counts of delivery of a Schedule I controlled substance in a Drug-Free School Zone, all Class A felonies. The delivery counts were merged with the sale counts, and the defendant was sentenced to concurrent terms of seventeen years in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his convictions; the trial court erred in declaring one of the State's witnesses unavailable and allowing the witness's prior testimony to be read to the jury; the trial court erred in failing to instruct the jury on the lesser-included offense of facilitation; and the trial court erred in ordering that he serve 100% of his effective seventeen-year sentence. After review, we affirm the defendant's convictions but remand for entry of corrected judgments showing that 100% service only applies to fifteen years of the seventeen-year sentence.

http://www.tba2.org/tba_files/TCCA/2010/bryantc_110110.pdf
Relationship Between Social Security Disability Claims and Unemployment Insurance Benefits

TN Attorney General Opinions

Date: 2010-11-01

Opinion Number: 10-106

http://www.tba2.org/tba_files/AG/2010/ag_10_106.pdf
POST Certification Of Bailiffs and Court Officers

TN Attorney General Opinions

Date: 2010-11-01

Opinion Number: 10-107

http://www.tba2.org/tba_files/AG/2010/ag_10_107.pdf
Zoning Appeals by County Legislative Body under Tenn. Code Ann. section 13-7-108

TN Attorney General Opinions

Date: 2010-11-01

Opinion Number: 10-108

http://www.tba2.org/tba_files/AG/2010/ag_10_108.pdf
Annexation under Metropolitan Form of Government

TN Attorney General Opinions

Date: 2010-11-01

Opinion Number: 10-109

http://www.tba2.org/tba_files/AG/2010/ag_10_109.pdf
TODAY'S NEWS
Legal News
Career Opportunities
Election 2010
Passages
Upcoming
Disciplinary Actions
TBA Member Services
Legal News
Ramsey named Supreme Court Advisory Commission reporter
The Tennessee Supreme Court today appointed Lee Ramsey as reporter for the court's Advisory Commission on the Rules of Practice and Procedure. Ramsey replaces Don Paine, who retired from the position last year after 35 years of service to the commission. Paine continues as reporter emeritus. Ramsey is a staff attorney for the Tennessee Supreme Court, a position he has held for nearly 20 years. Ramsey has served as chair of the American Bar Association's Council of Appellate Staff Attorneys and has also served three years on the program committee of the Appellate Judges Education Institute.
Learm more from the Administrative Office of the Courts
Firm sets up loan repayment help for public service work
Baker, Donelson, Bearman, Caldwell & Berkowitz PC has committed $208,000 to a new program aimed at helping legal graduates pursuing public service careers. The firm has established a loan repayment assistance program at the University of Tennessee College of Law for law students or alumni pursuing legal careers in the public service sector. The fund for the program was established through individual contributions from Baker Donelson attorneys that were then matched by the firm. Loans will be paid for one or two such students or alumni who are "about to be employed or are already employed in an area of public interest law, such as public defender, district attorney, legal aid organizations, government agencies and nonprofit organizations."
The Memphis Business Journal has more
Opinion: Reforms needed in judicial, legislative branches
Columnist Gail Kerr jumps on the bandwagon to suggest reforms are needed in the Court of the Judiciary, but cautions lawmakers that when the General Assembly decides to "climb up on a high horse and pass new regulations on the judicial branch, it might want to look in the mirror, too."
Read her column in the Tennessean
Murder trial to cost taxpayers $450k
A recent murder trial is believed to be the most expensive in Memphis history. To date, the cost to taxpayers stands at nearly $450,000.
The Commercial Appeal reports
Soddy-Daisy protestors pray in spite of ban
Soddy-Daisy's mayor and a city commissioner, escorted by a police officer, joined a group of students and supporters on the town's public high school's football field to pray over the loud speaker before the game on Friday. Hamilton County Schools Superintendent Jim Scales recently ordered a stop to prayers over the loudspeaker at football games and other school events after some Soddy-Daisy students complained to the Freedom From Religion Foundation, citing the First Amendment.
Tri-Cities.com reported this AP story
Montgomery Co. to decide on new juvenile judge position
Montgomery County has seen explosive growth over the past decade, and as the county has grown, juvenile case loads have grown with it. Cases have increased from 3,965 in 1996 to more than 15,017 cases in 2010. County judges have said $81,000 is needed to fund a juvenile court magistrate, but other positions like youth services officers are also needed. County commissioners are set to address the request for a juvenile court magistrate's position tonight.
WSMV.com reports
Kernell asks for probation in email hacking case
Knoxville attorney Wade Davies, who represents the former Tennessee college student convicted of hacking Sarah Palin's e-mail during the 2008 campaign, is asking for probation. But federal prosecutors are recommending an 18-month prison term for David Kernell. His sentencing is set for Nov. 12 in Knoxville.
WBIR.com has the story
Career Opportunities
Apply for CLE executive director by Nov. 12
The Tennessee Commission on Continuing Legal Education (CLE) and Specialization is seeking a licensed attorney to fill the executive director position vacated by David Shearon, who announced his resignation last month. Shearon, who will leave Dec. 31, has held the position for 23 years. The Administrative Office of the Courts is accepting applications through Nov. 12. The new executive director will begin on Jan. 1, 2011.
See details of the job
Election 2010
Political ads sinking to new lows, nonpartisan group says
Political ads this year seem to take distortion to new heights, including outright falsehoods, according to the independent nonpartisan FactCheck.org, a project of the Annenberg Public Policy Center of the University of Pennsylvania. In races in all parts of Tennessee, the mud is slinging.
The Commercial Appeal takes a look at them
Lawyers ready for probable election recounts, aftermath
Washington lawyers who specialize in election law are bracing for recounts, complaints and other aftermath expected from the midterm elections on Tuesday. "I would be surprised if there weren't a number of statewide contests that went at least to the recount stage," said Sandler, Reiff & Young partner Joseph Sandler.
The Blog of Legal Times comments
Passages
BPR's Woodroof dies
Long-time executive secretary at the Tennessee Board of Professional Responsibility, Mary Woodroof, died Saturday. Details were not immediately available.
Upcoming
Killian to be sworn in Thursday
An investiture for William C. "Bill" Killian is set for Nov. 4 as new U.S. Attorney for the Eastern District of Tennessee at the Chattanooga Trade and Convention Center. He says in an interview that it was Otis Stephens, then a political science professor at the University of Tennessee and now a law professor there, who inspired him to pursue a law degree at UT.
Read more about Killian in this News Sentinel profile
Disciplinary Actions
Memphis lawyer reinstated
Memphis lawyer Geoffrey Lee Lewter was reinstated to the practice of law on Sept. 23 after complying with requirements for continuing legal education. He was suspended on Sept. 7 for failing to meet 2009 CLE requirements.
View all attorneys suspended and reinstated for 2009 CLE violations
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
Visit the 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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