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Thursday, March 03, 2011

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Tort revision comes into focus

With the end of the fourth full week of legislative action, calendars began to lengthen and serious discussions began on many pieces of legislation. With introduction of the governor's legislative package -- which includes SB 1522 by Sen. Mark Norris, R-Collierville, and its companion HB 2008 by Rep. Gerald McCormick, R-Chattanooga -- detailed discussion regarding changes that might be wrought to the civil justice system have begun. Tennessee Bar Association President Sam Elliott has indicated that the TBA Executive Committee has begun an in-depth focus on the tort revision issues. "We would urge members and the public to start with actually reading the bill. Then they should let us know specific examples of cases they think will be affected by the legislation," he said.

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

OMER LEE DIXON, JR. v. TRAVELERS INDEMNITY COMPANY

Court: TSC

Attorneys:

James M. Simpson and Heather W. Fletcher, Memphis, Tennessee, for the appellant, Travelers Indemnity Company.

David Hardee, Jackson, Tennessee, for the appellee, Omer Lee Dixon, Jr.

Judge: LEE

The primary issue presented in this appeal is whether an employee, who was injured when a tornado struck the tractor-trailer rig he was driving for his employer, has a compensable workers' compensation claim. The central dispute between the parties is whether the claim arose out of the employment relationship. After careful review, we conclude that the employee was injured when he was subjected to a hazard not common to the general public but peculiar to the nature of his employment and to the conditions under which his employment was required to be performed. Accordingly, the injury arose out of his employment. The trial court's judgment holding the employee's claim to be compensable and its award of benefits is affirmed.

http://www.tba2.org/tba_files/TSC/2011/dixono_030311.pdf

STATE OF TENNESSEE v. RICHARD ODOM

Court: TSC

Attorneys:

Brock Mehler, Nashville, Tennessee and Gerald Skahan, Memphis, Tennessee, for the appellant, Richard Odom.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

The defendant was convicted of first-degree murder in the perpetration of rape. In the penalty phase of the trial, the jury imposed a sentence of death, finding three aggravating circumstances beyond a reasonable doubt: (1) the defendant was previously convicted of one or more violent felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was committed during the defendant's escape from lawful custody or from a place of lawful confinement. The Court of Criminal Appeals affirmed the conviction, but reversed the death sentence, holding that the trial court's limitation on the mitigating evidence during the penalty phase required a new sentencing hearing. This Court affirmed. A second jury sentenced the defendant to death, concluding that the single aggravating circumstance, that the defendant had previously been convicted of one or more violent felonies, outweighed the mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals affirmed. This Court reversed, holding that because the trial court had erroneously admitted detailed evidence of the defendant's prior violent felony offense, a third sentencing hearing was required. The jury again imposed a sentence of death, concluding that two statutory aggravating factors, that the defendant had been previously convicted of a felony involving the use of violence to the person and that the murder was committed while the defendant was engaged in the commission of a robbery, had been established beyond a reasonable doubt, and further determining that the aggravating circumstances outweighed the evidence of the mitigating circumstances beyond a reasonable doubt. This sentence was affirmed by the Court of Criminal Appeals. Upon careful review of the entire record, we hold as follows: (1) the defendant's constitutional right to a fair and impartial jury was not violated by the disqualification of a prospective juror; (2) the prosecutor's closing argument did not result in the use of non-statutory aggravating factors in the jury's weighing process warranting reversal of the death sentence; (3) the admission of photographs of the body did not constitute error; (4) the trial court's instructions on parole did not violate the defendant's right to due process of law and heightened reliability; (5) the mandatory criteria of Tennessee Code Annotated section 39-13-206(c)(1) are satisfied; and (6) the reduction of the amount of compensation sought by appellate defense counsel by a judge on the Court of Criminal Appeals did not require his disqualification from participating in this case. The judgment of the Court of Criminal Appeals is, therefore, affirmed.

http://www.tba2.org/tba_files/TSC/2011/odomr_030311.pdf

BUILDERS MUTUAL INSURANCE COMPANY v. S & W BUILDERS, INC. ET AL.

Court: TWCA

Attorneys:

Amelia C. Roberts, Nashville, Tennessee, for the appellant, Builders Mutual Insurance Company.

Ricky L. Boren, Jackson, Tennessee, for the appellee, Timothy Morris.

George C. Rieger, III and Joey Johnson, Nashville, Tennessee, for the appellee, American Home Assurance Company.

Judge: HARRIS

In this workers' compensation action, the trial court held that the employee sustained a compensable injury to his neck. The trial court found that the employee had a 30% impairment as a result of the injury and awarded 75% permanent partial disability to the body as a whole. The employer had two policies of workers' compensation insurance in effect on the date of the injury. The trial court held each insurer liable for one-half of the benefits paid to the employee. One of the insurers has appealed, contending that the evidence preponderates against the finding that the employee sustained a compensable injury and that it erred in its apportionment of liability. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/buildersmutual_030311.pdf

PATRICK S. RILEY v. DARON HALL, SHERIFF

Court: TCA

Attorneys:

Patrick S. Riley, Wartburg, Tennessee, Pro Se.

Melissa S. Roberge, Nashville, Tennessee, for the appellee, Daron Hall, Sheriff.

Judge: CLEMENT

This is an appeal from a judgment dismissing an inmate's petition for writ of certiorari challenging a disciplinary decision. Because the appellant did not file his notice of appeal within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

http://www.tba2.org/tba_files/TCA/2011/rileyp_030311.pdf

STATE OF TENNESSEE v. DENNIS NEIL BIZZOCO

Court: TCCA

Attorneys:

Randall E. Reagan, Knoxville, Tennessee (on appeal), and Lee Davis, Brian H. Hoss, Donna Robinson Miller, and Jerry H. Summers, Chattanooga, Tennessee (at trial), for the appellant, Dennis Neil Bizzoco.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; William H. Cox, III, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Dennis Neil Bizzoco, pled guilty to vehicular homicide by intoxication, reckless homicide, vehicular assault, and driving under the influence (DUI). He received a total effective sentence of eight years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's denial of his request for alternative sentencing and the denial of his Tennessee Rule of Criminal Procedure 35 motion. Additionally, the appellant argues that his convictions for DUI, vehicular homicide by intoxication, and vehicular assault violate double jeopardy. We conclude that the appellant's double jeopardy claim has merit; therefore, we vacate his conviction for DUI. However, we affirm the appellant's remaining convictions and sentences.

http://www.tba2.org/tba_files/TCCA/2011/bizzocod_030311.pdf

STATE OF TENNESSEE v. RONNIE WAYNE BLAIR

Court: TCCA

Attorneys:

G. Frank Lannom, Lebanon, Tennessee, for the Appellant, Ronnie Wayne Blair.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Tom P. Thompson, District Attorney General; Linda D. Walls, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Williamson County jury convicted the Defendant, Ronnie Wayne Blair, of Driving Under the Influence ("DUI"), first offense. The trial court sentenced him to eleven months and twenty-nine days, all of which was suspended after the service of four days. On appeal, the Defendant contends that the trial court improperly limited his cross-examination of the arresting officer by preventing use of the National Highway Traffic Safety Administration ("NHTSA") manual and that the trial court improperly commented on the evidence. The State counters that this appeal should be dismissed because the Defendant failed to timely file his notice of appeal. After a thorough review of the record and applicable law, we conclude that the interests of justice require waiver of the Defendant's untimely filing of his notice of appeal. However, upon our consideration of the merits of the Defendant's issues, we conclude the Defendant is not entitled to relief. The judgment of the trial court is, therefore, affirmed.

http://www.tba2.org/tba_files/TCCA/2011/blairr_030311.pdf

STATE OF TENNESSEE v. BENJAMIN RANDOLPH HUBARD

Court: TCCA

Attorneys:

Benjamin S. Burton, Sevierville, Tennessee, for the appellant, Benjamin Randolph Hubard.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James B. Dunn, District Attorney General; and Gregory C. Eshbaugh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Benjamin Randolph Hubard, pled guilty to driving under the influence (DUI), first offense, a Class A misdemeanor, and violation of the implied consent law. The trial court merged the convictions and sentenced the Defendant to 11 months and 29 days with 100 percent service of his sentence. The trial court also ordered the Defendant to pay a $350 fine, complete DUI school, and to perform 24 hours of community service in the form of litter removal. In this appeal as of right, the Defendant contends (1) that the trial court erred in setting the length of his sentence and (2) that the trial court erred in ordering the additional penalties. Following our review, we conclude that the trial court erred in ordering the Defendant to complete DUI school and to perform 24 hours of community service. The judgment of the trial court is affirmed in part and reversed in part. The case is remanded.

http://www.tba2.org/tba_files/TCCA/2011/hubardb_030311.pdf

STATE OF TENNESSEE v. STEPHANO L. WEILACKER

Court: TCCA

Attorneys:

Jordon D. Mathies, Nashville, Tennessee, for the appellant, Stephano L. Weilacker.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; John Carney, Jr., District Attorney General; and Robert Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Stephano L. Weilacker, was indicted by the Montgomery County Grand Jury for aggravated robbery and especially aggravated kidnapping for his role in the robbery of Triangle Kwik Stop in Montgomery County, Tennessee. At the conclusion of a jury trial, Appellant was found guilty of both offenses. Appellant was sentenced by the trial court to ten years for aggravated robbery and twenty years for especially aggravated kidnapping, to be served concurrently. The sentences were ordered to be served consecutively to an eleven-year sentence for aggravated robbery in another case. Appellant filed a motion for extension of time in which to file a motion for new trial more than thirty days after the entry of the judgments. The trial court granted the motion. Appellant filed a motion for new trial. After a hearing, the trial court denied the motion. On appeal, Appellant argues that the evidence was insufficient to support the convictions; that the trial court failed to properly charge the jury with lesser included offenses; and that the trial court improperly ordered consecutive sentencing. After a review of the record as a whole, we determine that the trial court improperly ruled on an untimely motion for new trial. Therefore, Appellant has waived all issues on appeal with the exception of sufficiency of the evidence, sentencing, and issues that would result in the dismissal of the prosecution. Because the evidence was sufficient to support the convictions and the trial court properly sentenced Appellant, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/weilackers_030311.pdf

TODAY'S NEWS

Legal News
General Assembly News
TBA Member Services

Legal News

Hearing a breeze for Sharp

Nashville lawyer Kevin Sharp and three other federal judicial nominees breezed through confirmation hearings Wednesday before the Senate Judiciary Committee. His part of the procedure lasted only 15 minutes and was conducted by only two senators who still remained at the end of the day. Democratic Sen. Dianne Feinstein of California and Republican Sen. Chuck Grassley of Iowa each asked the four nominees a single question: Feinstein asked for Sharp's view on stare decisis. Sharp agreed with the concept, saying, "If judges start using their will instead of judgment, the system breaks down."

The Tennessean has details

Chattanooga ranks high in ABA survey, but look closely

An American Bar Association study that reports what attorneys earn in different cities is making a big splash. Drawing headlines in Tennessee is the ranking of Chattanooga as having the 10th highest-paid lawyers in the nation. But some caution is necessary. The survey excludes many lawyers and uses terms like "earned" loosely. For example, equity partners and solo practitioners are not included in the survey.

Here is the ABA's survey information

Date set to liquidate Reciprocal of America claims

Justice Russell Perkins of Tennessee's 20th Judicial District court has imposed a final deadline of May 16 to liquidate all outstanding claims against three insolvent risk retention groups that were closed in 2003 after the failure of their Virginia reinsurer, Reciprocal of America. Three Tennessee companies -- the American National Lawyers Reciprocal, the Doctors Insurance Reciprocal and the Reciprocal Alliance -- were risk-retention groups that reinsured virtually all their business with Reciprocal of America (ROA), a company that was placed in receivership in January 2003 after regulators discovered its liabilities exceed its assets by more than $200 million.

The Insurance Journal has the story

Case that cost White her court seat upheld again

The Tennessee Supreme Court today upheld the death sentence of Richard Odom, who was convicted of raping and murdering an elderly woman in 1991 in a parking garage. The case has been up and down the appellate court ladder several times and at one stage cost Penny White her seat on the Tennessee Supreme Court, when opponents accused her of being soft on crime and voted her off of the court in a retention election.