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| Monday, February 28, 2011 |
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Judge says confirmation delay 'injuring' judiciary
The chief judge of the U.S. District Court for the District of Columbia today added his voice to those calling for the Senate and the White House to find a long-term solution to the delays in the judicial confirmation process. "I say to both Republicans and Democrats: You're injuring the federal judiciary," U.S. District Judge Royce Lamberth said. "Our country needs a fair and impartial federal judiciary."
The Blog of Legal Times has more
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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.
02 - TN Supreme Court
03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of 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/2011/certlist_022811.pdf
THOMAS M. GAUTREAUX v. INTERNAL MEDICINE EDUCATION FOUNDATION, INC.
Court: TSC
Attorneys:
Frederick L. Hitchcock and Douglas S. Griswold, Chattanooga, Tennessee, for the appellant, Internal Medicine Education Foundation, Inc.
James Scott McDearman, Matthew D. Brownfield, and John P. Konvalinka, Chattanooga, Tennessee, for the appellee, Thomas M. Gautreaux.
Tricia Herzfeld, Nashville, Tennessee, for the amicus curiae, The American Civil Liberties
Union of Tennessee.
Judge: HOLDER
Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act. The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in chancery court, which held that the records were available
because the nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed. We hold that the nonprofit foundation's records are not available pursuant to the Tennessee Public Records Act because it is not the functional equivalent of a government agency. We also hold that its records are not available pursuant to Tennessee Code Annotated section 10-7-503(d) (1999) because the nonprofit foundation has no more than two full-time staff members. We therefore reverse the judgment of the lower courts and dismiss the case.
http://www.tba2.org/tba_files/TSC/2011/gautreauxt_022811.pdf
SARAH LOUISE BEAN v. TEPRO, INC.
Court: TWCA
Attorneys:
Jonathan R. Bunn, Tullahoma, Tennessee, for the appellant, Sarah Louise Bean.
A. Gregory Ramos and Lauren Smith, Nashville, Tennessee, for the appellee, Tepro, Inc.
Judge: BLACKWOOD
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. Sarah Louise Bean ("Employee") sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. ("Employer"). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability
benefits. When she was called back to work after four months of layoff, she declined to return. At trial, the trial judge heard proof regarding the extent of Employee's permanent
physical impairment from Employee's evaluating physician, Employee's treating physician, and a Medical Impairment Registry ("MIR") physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and
that she was entitled to an award of 28% permanent partial disability ("PPD") benefits. Both parties challenge the trial court's decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court's judgment.
http://www.tba2.org/tba_files/TSC_WCP/2011/beans_022811.pdf
LINDA LEE KENNEY v. SHIROKI NORTH AMERICA, INC. ET AL.
Court: TWCA
Attorneys:
Sonya W. Henderson, Murfreesboro, Tennessee, for the appellant, Linda Lee Kenney.
Mary Dee Allen, Cookeville, Tennessee, for the appellees, Shiroki North America, Inc. and Strategic Comp Services.
Judge: KURTZ
The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner
of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial
court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial
court's findings. We affirm the judgment.
http://www.tba2.org/tba_files/TSC_WCP/2011/kenneyl_022811.pdf
DAVID WEACHTER v. HARTFORD UNDERWRITERS INSURANCE COMPANY
Court: TWCA
Attorneys:
Blakely D. Matthews and Jason K. Currie, Nashville, Tennessee, for the appellant, Hartford Underwriters Insurance Company.
William B. Jakes III, Nashville, Tennessee, for the appellee, David Weachter.
Judge: BLACKWOOD
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. Employee was injured in a motor vehicle accident. It is undisputed that his injuries were compensable and that he is permanently and
totally disabled as a result of the accident. The issues on appeal are the propriety of the trial court's calculation of the average weekly wage, the trial court's denial of a set-off to
Employer for a settlement with the third party tortfeasor, and the award of vocational expert witness fees. We find that the trial court correctly calculated the average weekly wage, but
erred by denying the set-off and awarding the expert's fees. The judgment is modified accordingly.
http://www.tba2.org/tba_files/TSC_WCP/2011/weachterd_022811.pdf
DOUGLAS EDWARD CORDER v. VALERIE JEAN CORDER
Court: TCA
Attorneys:
William Bryan Penn, Penn & Associates, PC, Memphis, Tennessee, for Respondent/Appellant, Douglas Edward Corder.
Julie C. Bartholomew, Somerville, Tennessee, for Petitioner/Appellee, Valerie Jean Corder
Judge: KIRBY
This appeal involves post-divorce modification of child support. After a prior appeal, the case was remanded to the trial court to determine whether the father was entitled to a
reduction in his child support obligation when one of the parties' children reached majority. On remand, the trial court declined to reduce the father's child support. The father appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2011/corderd_022811.pdf
NANCY GATES v. KATIE WILLIAMS ET AL.
Court: TCA
Attorneys:
Jeffery S. Greene, Newport, Tennessee, for the appellant, Nancy Gates.
Thomas V. Testerman, Newport, Tennessee, for the appellee, Katie Williams.
Judge: SUSANO
As this action was pleaded and tried, it was (1) a claim by Nancy Gates ("the plaintiff") seeking to be declared the owner of a life estate in a tract of property; and, as a consequence
of her estate, seeking the removal of Katie Williams ("the defendant"), the widow of the plaintiff's son, Tony, from the property; and (2) a counterclaim by the defendant alleging that she had become the owner of an interest in the property by adverse possession due to her having lived on the property since the late 1960s or early 1970s. The trial court held that, as to these claims, neither party was entitled to relief against the other. The court found, however, that the plaintiff did, in fact, have a life estate in the subject property, and that the
defendant had not proven adverse possession because her entry onto the property was with the plaintiff's permission. The court then held, sua sponte, that the defendant had a license in the property coupled with an interest therein that had been acquired by building numerous structures on the property with the plaintiff's knowledge and that it would not be equitable to require the defendant to move. The plaintiff appeals. We affirm the trial court's judgment in part and reverse in part and remand for a hearing on the issue of what it would take to do equity given the facts of this case.
http://www.tba2.org/tba_files/TCA/2011/gatesn_022811.pdf
DEAN G. HAFEMAN v. PROTEIN DISCOVERY, INC., A TENNESSEE CORPORATION
Court: TCA
Attorneys:
Danny P. Dyer, Knoxville, Tennessee, for the appellant, Dean G. Hafeman.
Ian K. Leavy, Chattanooga, Tennessee, for the appellee, Protein Discovery, Inc.
Judge: SUSANO
This is a breach of employment contract action filed by Dean G. Hafemen ("the Employee") against Protein Discovery, Inc., a Tennessee corporation ("the Employer" or "the Company")
after the Employer terminated the Employee's employment before the expiration of the term of his "Amended and Restated Employment Agreement" ("the Agreement"). The complaint alleges that the Employee is entitled to certain severance benefits provided for in the Agreement for any termination that does not qualify as a "Termination For Cause" as defined in the Agreement. After a bench trial, the court found that the termination was for cause and entered judgment in favor of the Employer. The Employee appeals. We reverse.
http://www.tba2.org/tba_files/TCA/2011/hafemand_022811.pdf
KIMBERLY M. HENDERSON v. GARY N. WILSON
Court: TCA
Attorneys:
Thomas H. Miller, Nashville, Tennessee, for the appellant, Gary N. Wilson.
William R. Underhill, Springfield, Tennessee, for the appellee, Kimberly M. Henderson.
Judge: COTTRELL
A divorced mother of two children filed a petition for child support, alleging that although the father had legal custody of the children and she had been under an order to pay child
support to him, the children had actually resided with her for the past six years. The father did not deny that the children had been living with the mother during that entire period.
After negotiation, the parties entered into an agreed order, whereby the father was to pay $35,000 in back child support to his former wife. Twenty-three months later, the father filed
a Rule 60.02 motion for relief, contending that the agreed order was void as against public policy because it amounted to an impermissible retroactive modification of child support.
The trial court denied the father's motion on the ground that it was entitled to presume that parties who are represented by counsel and who submit a signed agreement to the court have taken every pertinent factor into consideration. We affirm.
http://www.tba2.org/tba_files/TCA/2011/hendersonk_022811.pdf
IN RE NIRVANNA S.
Court: TCA
Attorneys:
Katherine L. Tranum, Kingsport, Tennessee, for the appellant, Heather S.
Robert E. Cooper, Jr., Attorney General and Reporter and Alexander S. Rieger, Assistant Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee,
Tennessee Department of Children's Services.
Judge: SUSANO
This is a dependent and neglected case concerning Nirvanna S. ("the Child"), the minor child of Heather S. ("Mother") and Mark S. ("Father"). Following the death of the Child's infant
sister, the Department of Children's Services ("DCS") filed a petition in juvenile court alleging that, in the care of Mother and Father, the Child was dependent, neglected and
severely abused. The juvenile court held an adjudicatory hearing and determined that the Child was dependent and neglected - but not severely abused - by her parents. The juvenile court awarded temporary custody of the Child to DCS and charged the department with undertaking reasonable efforts toward reunifying the Child with Mother and Father. DCS appealed the order to the trial court. Following a bench trial, the court found that both parents had committed severe abuse against the Child's sister pursuant to Tenn. Code Ann. section 37-1-102(b)(23)(A) and that the Child was dependent and neglected and "severely abused" within the meaning of the law. The court ordered DCS to retain custody of the Child; it relieved DCS of its obligation to work toward reunifying the Child with Mother and Father. Mother appeals. Following our review, we modify that part of the trial court's opinion finding that the Child was "severely abused." In all other respects, the judgment is affirmed.
http://www.tba2.org/tba_files/TCA/2011/nirvannas_022811.pdf
CHARLES PESCE v. EAST TENNESSEE CONSTRUCTION SERVICES, INC.
With Concurring Opinion
Court: TCA
Attorneys:
D. Mitchell Bryant, Athens, Tennessee, for the appellant, Charles Pesce.
Jerry M. Martin, Knoxville, Tennessee, for the appellee, East Tennessee Construction Services, Inc.
Judge: SUSANO
Charles Pesce ("the Owner") is a practicing dentist. He contracted with East Tennessee Construction Services, Inc. ("the Builder") to build him a new office for his practice on a lot owned by him. The Builder constructed the building, but with numerous undisputed defects. The Owner filed this action which culminated in a bench trial that lasted several days. Based upon diminution in value, the trial court awarded the Owner $282,000 in damages. The trial court expressly found that the cost to repair the structure was an unacceptable measure of damages because it "is disproportionate . . . to the difference in the value of the structure actually constructed and the one contracted for." The court awarded the Owner discretionary costs of over $10,000. The Owner appeals challenging the measure of damages as well as the amount awarded under the diminution in value measure. The Owner also challenges the trial court's failure to order the Builder to reimburse him for fees charged by one of the Owner's experts in connection with his discovery deposition taken by the Builder. The Builder challenges the award of discretionary costs and argues that the damages awarded are excessive. We reverse in part and affirm the remaining judgment as modified.
http://www.tba2.org/tba_files/TCA/2011/pescec_022811.pdf
SWINEY concurring
http://www.tba2.org/tba_files/TCA/2011/pescec_CON_022811.pdf
CAROL DENICE PETTIJOHN v. PATRICK CARL PETTIJOHN
Court: TCA
Attorneys:
D. Mitchell Bryant, Athens, Tennessee, for the appellant, Patrick Carl Pettijohn.
Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Carol Denice Pettijohn.
Judge: SUSANO
In this divorce case, the trial court's judgment ended the relatively-long marriage of Carol Denice Pettijohn ("Wife") and Patrick Carl Pettijohn ("Husband"). Husband appeals the trial
court's division of the marital property, its award of alimony in solido to Wife, and the duration of the alimony in futuro award. We affirm.
http://www.tba2.org/tba_files/TCA/2011/pettijohnc_022811.pdf
NATHAN E. STEPPACH, JR. v. WILLIAM H. THOMAS, JR., ET AL.
Court: TCA
Attorneys:
David Wade and J. Lewis Wardlaw, Memphis, Tennessee, for the appellant, Nathan E. Steppach, Jr.
Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellees, City of Memphis and Memphis City Council.
Judge: STAFFORD
This is the second appeal of this case, which arises from the grant of a writ of certiorari by the Shelby County Chancery Court. Upon review of the Memphis City Council's record, the
trial court found that the Appellee City had not acted arbitrarily, capriciously, or illegally in either approving a planned development, or in approving the companion street closure. The trial court granted partial summary judgment in favor of the City, thereby affirming the City Council's action in approving the planned development. The issue of the companion street closure proceeded to hearing, with the trial court ultimately affirming the City Council's decision. Appellant appeals, arguing that the City Council's decision was made in violation of the Memphis City Charter and ordinances, and that the decision was the product of
corruption within the City Council. Discerning no error, we affirm the action of the trial court and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2011/steppachn_022811.pdf
STATE OF TENNESSEE v. JOANN WILLIAMSON
Court: TCCA
Attorneys:
David M. Pollard, Jacksboro, Tennessee, for the appellant, Joann Williamson.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William Paul Phillips, District Attorney General; Michael O. Ripley,
Senior Assistant District Attorney General; and Leif Jeffers, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Joann Williamson, pled guilty to facilitation of the manufacture of methamphetamine, a Class C felony, and two counts of child abuse and neglect, a Class D
felony. See T.C.A. section 39-17-417 (2010); T.C.A. section 39-15-401 (Supp. 2008) (amended 2009). She was sentenced as a Range I, standard offender to six months' incarceration and three years, six months' probation for the facilitation conviction and four years' probation for each of the child abuse convictions, to be served consecutively to the facilitation conviction for an effective twelve-year sentence. The Defendant's plea agreement reserved a certified
question of law regarding the legality of the warrantless search of her home. The Defendant contends that the trial court erred in denying her motion to suppress evidence and that the State should not be allowed to rely on more than one exception to the warrant requirement. The State contends that the Defendant did not properly reserve the certified question. We hold that the Defendant's certified question was not properly reserved. The appeal is dismissed.
http://www.tba2.org/tba_files/TCCA/2011/williamsonj_022811.pdf
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| TODAY'S NEWS |
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Passages
Legal News
General Assembly News
U.S. Supreme Court
Congressional News
TBA Member Services
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| Passages |
| Services Tuesday for former Judge Balitsaris |
| Former Knox County Criminal Court Judge George Peter Balitsaris died Friday. He was 87. Balitsaris was elected Criminal Court Judge in Knox County in 1976. He served on the bench until his retirement in 1990. Prior to his judgeship, Balitsaris worked in private practice in Knoxville.
A visitation was held this afternoon at the Rose Mortuary Mann Heritage Chapel. A graveside service will be held on Tuesday at 3 p.m. at the Highland Memorial Cemetery. |
Read his obituary in the News Sentinel
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| Legal News |
| Law practice made more flexible by internet |
| Law offices now, like most businesses, can operate wherever there is a computer with an internet connection. Adams and Reese plans to leverage teleconferencing technology and a national network of experts to its advantage, which will keep local head count low, said Chuck Adams, managing partner of the firm.
"Every office is linked by videoconferencing, so we can staff things based on specialty, without regard to where people are," Adams said. This trend is increasingly common in the world of law, said Allan Ramsaur, executive director of the Tennessee Bar Association. |
The Times Free Press has this story
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| Schools commemorate civil rights struggle as part of Black History Month |
Two Nashville schools have had month-long commemorations of Black History Month.
Trevecca University recently hosted and honored
Fred Gray, the Alabama attorney who represented Rosa Parks after her arrest in 1955 for refusing to move to the back of a Montgomery, Ala., city bus.
"If you ever get a chance to hear the now 80-year-old lawyer, I hope you will take the opportunity to do so," columnist Dwight Lewis writes. "He's that important."
Father Ryan High School is also hosting an event, featuring famous figures from Nashville's civil rights movement.
The panel -- made up of Justice A.A. Birch, retired chief justice of the Tennessee Supreme Court; Russell Wigginton, vice president of college affairs at Rhodes College; John Seigenthaler; and Father Phillip Breen, pastor of St. Ann's Church -- will appear from 10 to 11 a.m. Tuesday at the school. The event is open to the public.
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The Tennessean reports
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| Pilot project will try to make criminal court more pleasant |
| An initiative funded by a $400,000 Justice Department grant is intended to make a trip to criminal court more pleasant, partly by teaching judges and court personnel how to be more polite.
The Center for Court Innovation plans to get the pilot project under way this fall in a medium-size city, the New York Times reports. The center's director, Greg Berman, says the project will train judges and other court personnel how to communicate better.
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ABAJournal.com connects you to more
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| U.S. Supreme Court |
| Dying words admissible |
| The U.S. Supreme Court reinstated a Michigan man's murder conviction that had been overturned because the victim's dying words were used in the trial.
The justices concluded the mortally wounded man's statements to police were "non-testimonial" and therefore admissible in court. |
CNN reports
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| General Assembly News |
| Unemployment claims harder to get under proposed bill |
| A recently proposed law would make it tougher for fired workers to win claims and easier for business owners to avoid paying unemployment benefits.
There are several bills that pro-business lobbying interests are bringing before the Republican majorities in the state Senate and House this year, more evidence of a sweeping national movement tipping the workplace scales back in the favor of business owners who argue that unnecessary regulations inflate costs, suck up profits and retard job growth.
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Learn more from the Tennessean
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| Teachers' union fight to keep collective bargaining rights |
| This week, the Tennessee teachers union is planning a rally at the state capitol to try and stop Republican lawmakers from taking away their collective bargaining rights. WPLN's state capitol correspondent Joe White and Jacqueline Fellows discuss how the fight in Tennessee is different from what unions may lose in Wisconsin. |
Listen to the report
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| Congressional News |
| Senate to consider overhaul to patent law |
| The U.S. Senate is taking up the Patent Reform Act, which would significantly overhaul a 1952 law and, supporters say, bring the patent system in line with 21st century technology of biogenetics and artificial intelligence. The most sweeping, and controversial, change is the transition from a first-to-invent application system to a first-to-file system that is used by every other industrialized nation, but has been opposed by independent inventors. |
The News Sentinel carried this AP story
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| TBA Member Services |
| Your customers expect you to deliver -- the new FedEx Tracking makes it easy |
| Lets face it. Information about your in-transit shipments is critical to your business. Now when you track a package on fedex.com, you have even greater visibility into the status of your shipments. You can customize your tracking results page, organize your shipments by status, easily send and receive proactive e-mail notifications on shipments, and save time with the updated and streamlined Signature Proof of Delivery request process. |
Take advantage of your member discounts on select FedEx shipping services and FedEx Office business services
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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.
© Copyright 2011 Tennessee Bar Association
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