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| Wednesday, March 30, 2011 |
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Merit selection back on agenda
In a move that startled most Capitol Hill observers, Lt. Governor Ron Ramsey, R-Kingsport, on Tuesday broke a tie to move a bill that would require contested elections for all Tennessee judges out of the Senate Judiciary Committee. The bill, SB0127, would abolish every element of the merit selection, performance evaluation and retention election system and require contested, partisan elections for all trial, appellate and supreme court judges. In a prepared statement Ramsey said, "My hope is that my actions today will spur those who recognize the need for reform to craft a constitutional judicial solution in an expeditious manner." Ramsey continued, "Either we change the constitution or we change the Tennessee Plan. Sooner or later, this has to be addressed. I prefer sooner." The bill moved on to the Senate Finance Ways and Means Committee for consideration and has yet to be heard in the House.
Learn more from WSMV
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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.
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WILLARD J. WATERS v. LIBERTY MUTUAL INSURANCE COMPANY
Court: TWCA
Attorneys:
John G. Huisman, Chattanooga, Tennessee, for the appellant, Liberty Mutual Insurance Company.
Herbert A. Thornbury, Chattanooga, Tennessee, for the appellee, Willard Waters.
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. The employee sustained a work-related injury to his back in 1988. The settlement of his claim included the right to future medical treatment. During the subsequent years, he received treatment from various physicians for his back. In 2006, his treating physician recommended a spinal fusion. His employer's insurer, Liberty Mutual, denied that the proposed surgery was necessary for the treatment of the 1988 injury.
The employee filed a motion to compel the insurer to pay for the proposed surgery, which was granted by the trial court. The insurer has appealed, contending that the evidence
preponderates against the trial court's decision. We affirm the decision.
http://www.tba2.org/tba_files/TSC_WCP/2011/watersw_033011.pdf
IN RE CARLIE G. C.
Court: TCA
Attorneys:
Brandy Boyd Slaybaugh, Knoxville, Tennessee, for the appellant, Philip C.
Casey A. Sears, II, Johnson City, Tennessee, for the appellees, Jessica B. and Brandon G. B.
Lissette Tant, Johnson City, Tennessee, Guardian Ad Litem for Carlie G. C.
Judge: SUSANO
Philip C. ("Father") appeals from the termination of his parental rights to his minor child, Carlie G. C. ("the Child"), who was five years old at the time of trial. The court found, by clear and convincing evidence, that statutory grounds for termination exist and that termination of Father's parental rights is in the best interest of the Child. Father appeals and
challenges the trial court's findings. We affirm.
http://www.tba2.org/tba_files/TCA/2011/carliegc_033011.pdf
COLLATERAL PLUS, LLC, ET AL. v. MAX WELL MEDICAL, INC.
With Dissenting Opinion
Court: TCA
Attorneys:
Michael L. Dagley, Joshua R. Denton, Wendee M. Hilderbrand, Nashville, Tennessee, for the appellant, MAX Well Medical, Inc.
Robert J. Walker, John C. Hayworth, Erin Palmer Polly, Nashville, Tennessee, for the appellees, Collateral Plus, L.L.C., and Collateral Guaranty Fund, L.P.
Judge: COTTRELL
This is an appeal of the grant of a motion for summary judgment. The parties entered into a loan management agreement providing that a placement fee would be paid only upon the occurrence of certain conditions. The agreement explicitly provided that it would terminate when the underlying bank loan was satisfied. When the underlying loan was repaid, the conditions precedent to the payment of the placement fee had not occurred. The Appellee sought payment of the placement fee when the Appellant was acquired a year later, which the Appellant refused on the grounds that the agreement had terminated. Because the
agreement states unequivocally that it terminates upon repayment of the underlying loan, making the placement fee provision unenforceable, we reverse the summary judgment award in favor of the Appellee. We hold that, instead, summary judgment should have been entered in favor of the Appellant.
http://www.tba2.org/tba_files/TCA/2011/collateral_033011.pdf
DINKINS dissenting
http://www.tba2.org/tba_files/TCA/2011/collateral_DIS_033011.pdf
IN THE MATTER OF: JALEIA M. R.
Court: TCA
Attorneys:
Tiffany M. Johns, Nashville, Tennessee, for the appellant, M. R.
Michael Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellees, C. W. and H. W.
Judge: COTTRELL
The trial court terminated the parental rights of both parents of a four year old girl on the ground of abandonment. The court also found that an additional ground that applied to the
father was his failure to legitimate the child, and an additional ground that applied to the mother was her failure to remedy the conditions which led her to lose custody of the child, with little likelihood that those conditions would be remedied in the immediate future. Only the mother appealed. We reverse.
http://www.tba2.org/tba_files/TCA/2011/jaleiamr_033011.pdf
JESSE R. MILTIER v. BANK OF AMERICA, N.A.
Court: TCA
Attorneys:
Jason L. Holly and Travis B. Holly, Elizabethton, Tennessee, for the appellant, Jesse R. Miltier (trial counsel and on the brief); Jesse R. Miltier, Grand Junction, Colorado, appellant, pro se (oral argument).
Lawrence W. Kelley, Atlanta, Georgia, for the appellee, Bank of America, N.A.
Robert E. Cooper, Jr., Attorney General and Reporter, and Steven A. Hart, Special Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.
Judge: SUSANO
This is a tort action for wrongful foreclosure. Suit was filed by Jesse R. Miltier against his lender, Bank of America, N.A. ("BOA"). In his complaint, Miltier demanded $200,000 in
compensatory damages and $10,000,000 in punitive damages. The jury awarded Miltier $750,000 compensatory damages itemized on the verdict form as $350,000 out of pocket
money losses "related solely to foreclosure," $100,000 out of pocket losses "related solely to lawsuit," $150,000 emotional distress "related solely to foreclosure" and $150,000
emotional distress "related solely to lawsuit." The jury also awarded Miltier $300,000 in punitive damages. BOA filed post-judgment motions asking that the compensatory damages
be remitted to eliminate "amounts related solely to the lawsuit" and amounts awarded in excess of the $200,000 demanded in the complaint. Miltier responded asserting that the issue of damages over $200,000 was tried by consent. The trial court entered an order reducing the award of compensatory damages to $200,000. Later, the court entered a final order approving the jury's award of punitive damages in the amount of $300,000. Miltier appeals challenging the reduction of the verdict. His issues include a challenge to the
constitutionality of Tenn. R. Civ. P. 15.02 which forbids amendment of pleadings after verdict to increase the ad damnum clause. The Attorney General has appeared on appeal to defend the constitutionality of Rule 15.02. We affirm.
http://www.tba2.org/tba_files/TCA/2011/miltierj_033011.pdf
SHERRY C. SLOAN v. WILLIAM CHADWICK POFF
Court: TCA
Attorneys:
Connie Reguli, Brentwood, Tennessee, for the appellant, Sherry Sloan.
William Chadwick Poff, appellee, did not file a brief.
Judge: COTTRELL
The Juvenile Court found the mother in criminal contempt for violating two orders. The first order governed the manner of the mother's communications with her son's father, and the
second order governed the father's right to visit with the child on specific dates. The Juvenile Court sentenced the mother to the Davidson County workhouse for ten days for violating the earlier order, but suspended the sentence for so long as the mother continued to comply with orders. The court fined the mother $50 for violating the second order. On appeal, the mother challenged: the sufficiency of the evidence supporting both findings of contempt; an evidentiary ruling; the suspension of her sentence; the appointment of a guardian ad litem for the child; and the trial court's recusal without request. We affirm the Juvenile Court in all respects.
http://www.tba2.org/tba_files/TCA/2011/sloans_033011.pdf
ROBERTO CARLOS URTUZUASTEGUI a/k/a Jose M. Carrion-Casillas v. GEORGE D. KIRKLAND, ET AL.
CORRECTION: The attorney line on page 1 is corrected to reflect the proper names of the attorneys
Court: TCA
Attorneys:
Michael C. Skouteris, Russell W. Lewis, IV, and William B. Walk, Jr., Memphis, Tennessee, for the appellant, Roberto Carols Urtuzuastegui.
Carl Wyatt and Lewis W. Lyons, Memphis, Tennessee, for the appellees, George D. Kirkland and Vickers Distributing and Transfer, Inc.
Judge: STAFFORD
This is an appeal from the trial court's grant of summary judgment in favor of Appellees and from the trial court's grant of a Tennessee Rule of Civil Procedure 41.02(1) motion for involuntary dismissal in favor of Appellees. The trial court granted both motions upon its finding that Appellant had committed fraud upon the court in filing his complaint under an assumed name. Specifically, the court granted the motion for summary judgment finding that the statute of limitations had expired because the amended complaint did not relate back to the original complaint, which the court determined was a nullity ab initio. The Rule 41.02 motion was granted based upon the court's finding that the Appellant had perpetrated a fraud upon the court in filing the complaint under an assumed name. Concluding that there is a dispute of material fact as to whether Appellant committed fraud and, specifically, as to whether Appellant's alleged mental incapacity negates a finding of fraud, we reverse both the order on the motion for summary judgment and the order granting the Rule 41.02 motion. We remand for further hearing on the issues of fraud and mental incapacity. Reversed and remanded.
http://www.tba2.org/tba_files/TCA/2011/urtuzuasteguir_COR_033011.pdf
STATE OF TENNESSEE v. DEANNA MACHELLE FLETCHER
Court: TCCA
Attorneys:
Steve McEwen, Mountain City, Tennessee (on appeal), and William A. Kennedy, Assistant Public Defender (at trial), for the appellant, Deanna Machelle Fletcher.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Teresa Nelson, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Deanna Machelle Fletcher, pled guilty to three counts of identity theft, a Class D felony; burglary of an automobile, a Class E felony; three counts of forgery, a Class
E felony; and three counts of theft of $500 or less, a Class A misdemeanor. See T.C.A. sections 39-14-150, 39-14-402, 39-14-114, 39-14-103 (2010). She was sentenced as a Range II,
multiple offender to eight years' confinement for identity theft, four years' confinement for burglary of an automobile, four years' confinement for forgery, and eleven months and
twenty-nine days' confinement for theft, all to be served concurrently. On appeal, she contends that the trial court erred by denying alternative sentences and ordering confinement. Without the guilty plea hearing transcript, we presume the trial court's determinations were correct. We affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/fletcherd_033011.pdf
ANTONIO KENDRICK v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Antonio Kendrick, Joliet, Illinois, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The petitioner, Antonio Kendrick, appeals the Criminal Court of Shelby County's dismissal of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that
this court affirm the trial court's dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/kendricka_033011.pdf
STATE OF TENNESSEE v. ANDREW REGINALD MacKINNON
With Dissenting Opinion
Court: TCCA
Attorneys:
Bryan E. Delius (at trial) and Richard L. Burnette (on appeal), Sevierville, Tennessee, for the appellant, Andrew Reginald MacKinnon.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James B. Dunn, District Attorney General; and George C. Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
A Sevier County Circuit Court jury found that the Defendant, Andrew Reginald MacKinnon, violated the implied consent law. See T.C.A. section 55-10-406 (2006) (amended 2008, 2009, 2010). The trial court ordered that his driving privileges be revoked for one year. On appeal, the Defendant contends that (1) the trial court erred by failing to grant his motion to suppress because the State failed to lay a proper foundation for admitting a witness's opinion testimony into evidence and (2) the jury instructions for violation of the implied consent law were insufficient because the trial court failed to define "reasonable grounds." Because the trial court failed to determine the issue of the implied consent violation, submitting it to the jury instead, we vacate the judgment.
http://www.tba2.org/tba_files/TCCA/2011/mackinnona_033011.pdf
OGLE dissenting
http://www.tba2.org/tba_files/TCCA/2011/mackinnona_DIS_033011.pdf
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| TODAY'S NEWS |
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Legal News
General Assembly News
U.S. Supreme Court
Career Opportunities
Upcoming
TBA Member Services
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| Legal News |
| Jury to deliberate case of alleged threat to judge |
| A federal jury in Knoxville today began deliberating the case of an Army sergeant accused of using a YouTube video to threaten Knox County Chancellor Mike Moyers. Sgt. Franklin Delano Jeffries Jr. made and posted a video containing violent content about an unnamed judge while he was in a bitter custody fight with his ex-wife. Prosecutors allege the video was in effect a threat against Moyers.
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The News Sentinel has more
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| Tenn. law prof makes list of 23 who inspire and intrigue |
| An article in the March issue of the National Jurist features 23 law professors the magazine says everyone should take a class from before they die. While acknowledging that the profs may not be the best in their field, the magazine promises they will "entertain, inspire and intrigue you." Among the group is Glenn Reynolds, who specializes in law, science and technology at the University of Tennessee College of Law. The magazine notes that Reynolds' writings have appeared in scholarly journals and popular publications, but that it is his weekly podcast -- co-produced with his wife, a forensic psychologist -- that is not be missed.
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Read more from the magazine
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| Memphis moot court needs volunteer judges |
| The University of Memphis School of Law's Moot Court Board is hosting its final competition of the year -- The Freshmen Moot Court Competition. This year's problem involves First Amendment issues, including school-sponsored speech and content/viewpoint neutral regulation. The board is seeking attorneys to judge rounds through April 6. For more information or to volunteer contact LaChina Algers at memphismootcourt@hotmail.com for more information. |
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| Forgotten photos of James Earl Ray surface |
| Dozens of black-and-white photos of James Earl Ray, taken shortly after his capture in 1968, document his incarceration following the death of Dr. Martin Luther King Jr. The photos, which have never been seen publicly, will be released next week by the Shelby County archives, along with newly discovered letters Ray wrote from jail and papers from his defense file. The collection provides an insider's view into Ray's jail cell in the days following King's murder in Memphis.
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The Commercial Appeal has more
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| No song for Nelson's defense |
| A Texas judge says Willie Nelson won't have to sing in court to resolve marijuana possession charges and that a suggestion that he do so was a joke. Hudspeth County Attorney Kit Bramblett had said Nelson could resolve the charges by pleading guilty, paying a fine, and singing "Blue Eyes Crying in the Rain" for the court. Judge Becky Dean-Walker told The Associated Press she thinks the prosecutor was trying to be funny, "and it got out of hand." |
WSMV TV carried the news
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| General Assembly News |
| Track legislation of interest to Tennessee attorneys |
| The 107th Tennessee General Assembly is now in session and the TBA has a number of tools to help you track the status of legislation. Watch TBA Today for regular news updates and follow the TBA Action List to track bills in the General Assembly that the TBA has a direct interest in -- those it has initiated, taken a position on, or has a policy on. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community. |
Find complete TBA legislative resources
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| Thompson says tort bill needs more work |
| A proposed compromise to limit lawsuit damages in Tennessee is a step in the right direction, but there's still work to be done, says former U.S. Sen. Fred Thompson. In the last week, Gov. Haslam's legislative team released changes to its tort reform proposal to create a special category for "catastrophic loss," which would include spinal cord injuries, severe burns, and death of a minor's parent. In these cases, the cap for non-economic damages would be higher than the limit applied to other cases. Among his concerns, Thompson says brain injuries should be included in the new category. |
The Jackson Sun reports
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| U.S. Supreme Court |
| Court hears Walmart discrimination case |
| The women of Walmart had their day before the Supreme Court yesterday. Whether their case -- the biggest employment discrimination class action in history -- goes forward is now the question. NPR's On Point program reviews the hearing and looks at the impact of the case on class actions and employment law in the future.
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Listen to the program
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| Career Opportunities |
| Nashville firm seeks workers' comp lawyer |
| Special Counsel Inc. is seeking a workers' comp defense attorney for a full-time, contract position at a boutique law firm in Nashville. Candidates should have a minimum of three years of experience defending claims. Interested individuals should submit resumes to nashville@specialcounsel.com. |
Learn more on JobLink
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| Upcoming |
| Career forum planned for Memphis students |
| Memphis Challenge Inc. invites high schools students to a legal careers forum on Thursday night. The event, "Legal Careers Forum: The ABCs -- Advocates, Barristers and Counselors," will be held at the Cecil Humphreys School of Law's Wade Auditorium at 5 p.m. Students will have the opportunity to learn about the legal profession from a diverse group. The program will include a reception, moderated discussion, and question and answer period. The event is free but tickets are required, reports the Memphis Commercial Appeal. Call the Memphis Challenge office at (901) 312-9621 for details and tickets.
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| Camp TLAP set for April 1-3 |
| Camp TLAP 2011 will be held April 1-3 at Montgomery Bell State Park. Topics include anger management for trial lawyers and others, healing a devastating grief, and understanding TLAP and lawyer discipline in Tennessee. On Saturday night, a banquet will be held. The speaker will be Michael Cohen, executive director of the Florida Lawyers Assistance Program, and a member of the ABA Commission on Lawyer Assistance Programs. The registration fee is $100. For more information contact the TLAP office at 615-741-3238 or 877-424-TLAP, or email emily.lacey@tncourts.gov.
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| TBA Member Services |
| CompuPay offers deals for TBA members |
| CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees. |
Learn more about CompuPay's benefits
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| TBA launches express renewal for members |
| The TBA today launched its 2011-2012 membership renewal program with an email offering members the opportunity to take part in the Express Renewal program. This online renewal option lets members quickly ensure that they will continue receiving all of the services and benefits provided through the TBA. It also saves a great deal of printing and postage costs for your association. If you did not receive an Express Renewal email, please contact TBA Membership Director Colleen O'Connell. For those not taking part in the Express Renewal program, printed membership renewal forms will be arriving your mailboxes in mid April.
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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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