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Wednesday, April 13, 2011

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AG: Voter ID bill likely unconstitutional

A proposed state law requiring voters to show photo identification "unduly burdens the right to vote" and probably would be held unconstitutional Attorney General Bob Cooper said Wednesday. Because the legislation includes no provision to pay for IDs for those who don't have them, Cooper said the requirement "constitutes a poll tax" -- a fee making voting difficult for poor people. Read about the ruling in the Nashville City Paper.

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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.

00 - TN Supreme Court
03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
04 - TN Court of Criminal Appeals
04 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders

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.

KARA BARNES v. PINNACLE FOODS GROUP

Court: TWCA

Attorneys:

William B. Walk, Jr., Memphis, Tennessee, for the appellant, Pinnacle Foods Group.

Steven W. Maroney and Matthew R. West, Jackson, Tennessee, for the appellee, Kara Barnes.

Judge: HARRIS

In this workers' compensation action, the employee sustained bilateral carpal tunnel syndrome as a result of her employment. She had two surgeries on her left arm to treat the condition. Prior to reaching maximum medical improvement, she voluntarily retired. The trial court found that her retirement was reasonably related to her work injuries, and therefore the statutory limit to permanent partial disability benefits contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) did not apply to her award. The employer, Pinnacle Foods Group, appealed. We affirm the judgment of trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/barnesk_041311.pdf

KATHLEEN EVANS v. SHAW INDUSTRIES GROUP, INC.

Court: TWCA

Attorneys:

Frederick R. Baker, Cookeville, Tennessee, for the appellant, Shaw Industries Group, Inc.

Joseph R. Ford, Winchester, Tennessee, for the appellee, Kathleen Evans.

Judge: BRYANT

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. Kathleen Evans ("Employee") alleged that she sustained an injury to her knee while at work. Her employer, Shaw Industries, ("Employer") denied the claim, contending that the injury could not have happened in the manner described by Employee. The trial court held that Employee had a compensable injury and awarded permanent partial disability ("PPD") benefits. Employer has appealed. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/evansk_041311.pdf

STANLEY JENKINS v. YELLOW TRANSPORTATION, INC., ET AL.

Court: TWCA

Attorneys:

Stephen K. Heard, Adam O. Knight, and Autumn L. Gentry, Nashville, Tennessee, for the appellant, Yellow Transportation, Inc.

Aubrey T. Givens, Nashville, Tennessee, for the appellee, Stanley Jenkins.

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. In this action, Stanley Jenkins ("Employee") sustained a compensable injury to his left leg in the course and scope of his employment with Yellow Transportation, Inc. ("Yellow Transportation"). Employee settled his workers' compensation claim with Yellow Transportation and returned to work. A few months later, Yellow Transportation merged with another corporation to create YRC Inc. ("YRC"), a completely new corporation. After the merger, Employee was laid off due to an economic downturn and thereafter sought reconsideration of his earlier settlement. The trial court ruled that Employee was no longer employed by his pre-injury employer after the merger and was entitled to reconsideration under Tennessee Code Annotated section 50-6-241. The trial court awarded him additional permanent partial disability benefits. Yellow Transportation has appealed, arguing that Employee is not entitled to reconsideration. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/jenkinss_041311.pdf

EASTER BAUGH v. BARBARA THOMAS, ET AL.

Court: TCA

Attorneys:

Larry Moore, Nashville, Tennessee, Pro Se.

Gerald Leighton Ewell, Jr., Tullahoma, Tennessee, for the appellee, Easter Baugh.

Judge: DINKINS

Nephew of grantor of quitclaim deed conveying property to grantor's sister appeals the declaration that the deed was null and void based on a finding that the nephew exercised undue influence on grantor. Finding that the evidence does not preponderate against the trial court's finding of a confidential relationship between grantor and nephew and in light of nephew's failure to rebut the presumption of undue influence raised thereby, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2011/baughe_041311.pdf

JAMES M. FLINN v. JON K. BLACKWOOD

Court: TCA

Attorneys:

James M. Flinn, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary M. Bers, Senior Counsel, for the appellee, Jon K. Blackwood.

Judge: FARMER

Plaintiff filed a cause of action against Defendant judge, alleging Defendant wrongfully refused to grant his petition for writ of habeas corpus. The trial court dismissed the action. We affirm.

http://www.tba2.org/tba_files/TCA/2011/flinnj_041311.pdf

ALICIA MATHES, ET AL. v. DRD KNOXVILLE MEDICAL CLINIC, ET AL.

Court: TCA

Attorneys:

Christopher T. Cain, Knoxville, Tennessee, for the appellants, Alicia Mathes and Scott Mathes.

James G. O'Kane, Knoxville, Tennessee, for the appellees, DRD Knoxville Medical Clinic, Dr. Steven Ritchie, and DRD Knoxville Medical Clinic, Inc.

Judge: STAFFORD

This is an appeal from the trial court's grant of separate motions to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that Appellants had failed to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act, and had failed to state a claim for vicarious liability based on theories of agency or joint venture. We affirm in part, reverse in part, and remand, concluding that Appellants' claims of direct negligence do not sound in medical malpractice, but that Appellants failed to state a claim upon which relief can be granted with respect to vicarious liability based on agency or joint venture.

http://www.tba2.org/tba_files/TCA/2011/mathesa_041311.pdf

STATE OF TENNESSEE v. BRONCHE BLAIR

Court: TCCA

Attorneys:

Joseph T. Howell, Jackson, Tennessee, for the appellant, Bronche Blair.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Benjamin C. Mayo, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Bronche Blair, was convicted by a Madison County Circuit Court jury of second degree murder, a Class A felony, and was sentenced as a Range I, violent offender to twenty-five years in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his conviction and that the trial court imposed an excessive sentence. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/blairb_041311.pdf

STATE OF TENNESSEE v. LEONARD LAMONT CURRIE

Court: TCCA

Attorneys:

David S. Stockton (on appeal and at trial); Parker Dixon and Lyle Jones (at trial), Assistant Public Defenders, for the appellant, Leonard Lamont Currie.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr. and Billy G. Burk, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Leonard Lamont Currie, was convicted of voluntary manslaughter, a Class C felony, and sentenced as a Range II, multiple offender to eight years in the Department of Correction. On appeal, he argues that the evidence was insufficient to support the jury's rejection of his claim of self-defense. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/curriel_041311.pdf

STATE OF TENNESSEE v. CHAD ALLEN KIRK

Court: TCCA

Attorneys:

Raymond Mack Garner, District Public Defender; Tiffany L. Deaderick, Assistant Public Defender (at trial); and J. Liddell Kirk, Knoxville, Tennessee (on appeal), for the appellant, Chad Allen Kirk.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tammy M. Harrington, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Chad Allen Kirk, pled guilty to one count of driving on a suspended license, a Class B misdemeanor, in the Blount County General Sessions Court. See Tenn. Code Ann. section 55-50-504(a)(1). The General Sessions Court sentenced the Defendant to six months with 75 percent of the sentence to be served in confinement. The Defendant appealed the decision to the Blount County Circuit Court, which dismissed the appeal and remanded the case back to the General Sessions Court for execution of the judgment. In this appeal as of right, the Defendant contends that the Circuit Court failed to conduct a de novo review of the sentence. Following our review, we reverse the decision of the Circuit Court and remand the case for a new sentencing.

http://www.tba2.org/tba_files/TCCA/2011/kirkc_041311.pdf

STATE OF TENNESSEE v. GARY WAYNE MCCULLOUGH

Court: TCCA

Attorneys:

Jerry H. Summers and Marya L. Schalk, Chattanooga, Tennessee, for the appellant, Gary Wayne McCullough.

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

Judge: WITT

Following a preliminary hearing in Hamilton County General Sessions Court, a Hamilton County grand jury charged the defendant, Gary Wayne McCullough, with operating a boat without lights, see T.C.A. section 69-9-209 (2004), boating under the influence, see id. section 69-9-217(a), violating the implied consent law, see id. section 69-9-217(f)(1), and simple possession of marijuana, see id. section 39-17-418 (2006). In the trial court, the defendant contended in a motion to dismiss the indictment that the actions of the Tennessee Wildlife Resources Agency (TWRA) in setting their own cases in a disproportionate number before certain general sessions judges constituted "judge-shopping" and resulted in a violation of the defendant's due process rights. Following an evidentiary hearing on the defendant's motion, the trial court agreed and remanded the case for a new preliminary hearing before a division of the general sessions court not implicated by the judge-shopping allegation. On interlocutory appeal, the defendant contends that the trial court should have dismissed his indictment with prejudice instead of remanding the case for a new preliminary hearing. The State contends that the trial court erred in dismissing the indictment and remanding the case. Because we conclude that the trial court's findings of fact are not supported by the record, we reverse the judgment of the trial court and direct the trial court to reinstate the indictment on remand.

http://www.tba2.org/tba_files/TCCA/2011/mcculloughg_041311.pdf

Constitutionality of Proposed "Victims of Crime Executive Clemency Notification Act"

TN Attorney General Opinions

Date: 2011-04-13

Opinion Number: 11-31

http://www.tba2.org/tba_files/AG/2011/ag_11_31.pdf

Constitutionality of "Exclusionary Rule Reform Act"

TN Attorney General Opinions

Date: 2011-04-13

Opinion Number: 11-32

http://www.tba2.org/tba_files/AG/2011/ag_11_32.pdf

Termination of Parental Rights Under Tenn. Code Ann. Section 36-1-113(g)(6)

TN Attorney General Opinions

Date: 2011-04-13

Opinion Number: 11-33

http://www.tba2.org/tba_files/AG/2011/ag_11_33.pdf

Constitutionality of Requiring Voter Photo Identification

TN Attorney General Opinions

Date: 2011-04-13

Opinion Number: 11-34

http://www.tba2.org/tba_files/AG/2011/ag_11_34.pdf

TODAY'S NEWS

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Legal News

Paper looks at Martin's first year in office

As U.S. Attorney Jerry Martin closes in on his first year in office, the Tennessean looks at how he has spent his time. Martin, who was nominated to the Middle District post by President Barack Obama in April 2010, has decided to make prosecution of health-care fraud a top priority. To bolster that effort he has doubled the number of prosecutors in the civil division who handle such cases.

Read the profile in the Tennessean

Judge Moon recuses himself in murder case

General Sessions Court Judge Bob Moon on Wednesday morning agreed to step aside from hearing the Jesse Mathews murder case. A public defender previously had suggested Moon might be biased after writing a poem in honor of the victim. Red Bank Municipal Judge Johnny Houston will take over handling of the case.

Read Moon's rationale on Chattanoogan.com

Failure to collect court fee hurts victims' center

Almost three years ago, the Knox County Commission signed off on a new court fee that would have meant millions of dollars for the Knoxville Family Justice Center, which provides services to victims of domestic violence. The assessment was to have added a $45 fee to most criminal convictions. Yet to date, the county has not collected any money and the center has not received any funding. County officials say this is due to the fact that the state law authorizing the fee does not apply to the county because of its form of government.

Learn more in the News Sentinel

Suspended lawyer appeals hearing panel makeup

Knoxville lawyer James L. Milligan was suspended for two years in 2005 for loose accounting practices. He applied for reinstatement in 2007. The hearing panel that heard his case included lawyer Bill Lockett, who later assumed the office of Knox County law director. Now that Lockett is under disciplinary action for misconduct that occurred while in private practice, Milligan claims that Lockett was "unfit" to serve as "a jurist" against him.

The News Sentinel reports

Budget deal cuts $15.8 million from legal aid

The Legal Services Corporation (LSC) reports that the budget deal negotiated between Congress and the White House last week to avoid a government shutdown cuts $15.8 million from legal aid programs. The budget bill, which funds the government for the remainder of the current fiscal year, is scheduled to come before both the U.S. House and Senate this week.