Thursday, July 14, 2011
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TODAY'S OPINIONS
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00 - TN Supreme Court
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00 - TN Supreme Court - Rules
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JEFFERY IRONS v. K & K TRUCKING, INC. ET AL.

Court: TWCA

Attorneys:

Timothy A. Drown, Nashville, Tennessee, for the appellant, K & K Trucking, Inc.

B. Keith Williams and James R. Stocks, Lebanon, Tennessee, for the appellee, Jeffery Irons.

Judge: ANDERSON

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 an injury which resulted in a court-approved workers' compensation settlement. His authorized physician later recommended medical treatment. The employer's utilization review provider denied approval of the proposed treatment. The employer filed a motion for a medical examination pursuant to Tennessee Code Annotated section 50-6-204(d)(1) which is required if reasonable. The trial court found the employer's request to be unreasonable and denied the motion. The employer has appealed. We reverse the trial court's order and remand for entry of an order granting the motion.

http://www.tba2.org/tba_files/TSC_WCP/2011/ironsj_071411.pdf
LIBERTY MUTUAL INSURANCE CO. ET AL. v. RICHARD WARNOCK ET AL.

Court: TWCA

Attorneys:

C. Scott Johnson and Samuel T. Quattrochi, Chattanooga, Tennessee, for the appellants, Liberty Mutual Insurance Company and U.S. Xpress Enterprises, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua Davis Baker, Assistant Attorney General, for the appellee, Sue Ann Head, Administrator of the Tennessee Department of Labor and Workforce Development, Workers' Compensation Division.

Judge: ANDERSON

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 suffered an injury which the employer denied was in the course of employment. The employee filed a request for assistance with the Tennessee Department of Labor and Workforce Development. The Department ordered the employer to pay temporary disability benefits and medical expenses for the employee's injury pursuant to Tennessee Code Annotated section 50-6-238(a)(2)(3). Subsequently the employer, its workers' compensation carrier and the employee entered into a compromise and release agreement in Pennsylvania pursuant to which the employee was paid $130,000. The employer filed this action against the employee and the Department of Labor requesting reimbursement of payments made pursuant to the Department's order, as permitted by section 50-6-238(b). The trial court granted the Department's motion for summary judgment and dismissed the action. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/libertymutual_071411.pdf
PARRIS ROOFING & SHEET METAL CO., INC. ET AL. v. TIMOTHY SPURLING

Court: TWCA

Attorneys:

M. George Waters and James Allen Callison, Lawrenceville, Georgia, for the appellants, Parris Roofing & Sheet Metal Co., Inc. and Gallagher Bassett Services.

R. Jerome Shepherd, Cleveland, Tennessee, for the appellee, Timothy Spurling.

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 and his employer filed separate workers' compensation complaints on the same day at different times,in different courts,and in different counties. The employer filed its cause of action in McMinn County Chancery Court on April 29, 2010, at 3:53 p.m. The employee's action was filed in Polk County Circuit Court on the same day, but the time of filing was not noted by the court clerk. The employee moved to dismiss the employer's action on the basis of prior suit pending. The employee's motion was supported by an affidavit from his attorney's assistant stating that the employee's suit was filed before 3:03 p.m. on April 29, 2010 and therefore prior to the time the employer filed suit as designated by the court clerk in McMinn County. The trial court granted the employee's motion and dismissed the employer's action. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/parrisroofing_071411.pdf
SWIFT ROOFING, INC. v. STATE OF TENNESSEE, COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT

Court: TCA

Attorneys:

Charles J. Mataya and Shana G. Fonnesbeck, Nashville, Tennessee, for the appellant, Swift Roofing, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; Warren A. Jasper, Senior Counsel, Daniel A. Bailey, General Counsel for appellee, State of Tennessee, Commissioner of Labor and Workforce Development.

Judge: STAFFORD

This appeal arises from a petition seeking judicial review of an administrative agency order, which affirmed citations for workplace safety violations. The Chancery Court affirmed the citations. After reviewing the appellate record, we conclude that the administrative agency did not provide the required findings of fact, conclusions of law, and reasons for its decision. Consequently, judicial review is not possible based on the record before this Court. Therefore, we vacate the order of the Chancery Court and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2011/swiftroofing_071411.pdf
DAVID LARKIN WALL V. AMY BALLESTEROS WALL

Court: TCA

Attorneys:

Rachel Emily Putnam, Memphis, Tennessee, for the Petitioner/Appellant David Larkin Wall.

Amy Balesteros Wall, Collierville, Tennessee, Respondent/Appellee, Pro Se.

Judge: KIRBY

This is a post-divorce petition to modify a parenting plan. In the divorce decree, the mother was designated as the primary residential parent of the parties' daughter. Two years later, the father filed this petition to modify the decree to designate him as the primary residential parent, alleging that the mother had inadequate child care arrangements while the mother was at work, and that the mother had not been adequately caring for the child's basic personal and educational needs. The parenting plan was temporarily modified to designate the father as the temporary primary residential parent. Nevertheless, the father was ordered to continue paying child support to the mother pending the trial, in order to maintain the status quo. After a hearing, the trial court found a material change in circumstances, but found it was not sufficient to change the designation of primary residential parent to the father on a permanent basis. The father was awarded substantially more parenting time. The father now appeals the denial of his petition to change the designation of primary residential parent and the award of child support to the Mother while he was the temporary primary residential parent. We affirm the award of child support, but reverse the denial of the petition to change the designation of the primary residential parent based on the mother's consistently poor judgment in decisions related to the care of the child.

http://www.tba2.org/tba_files/TCA/2011/walld_071411.pdf
STATE OF TENNESSEE v. RONALD EUGENE BREWER, JR.

Court: TCCA

Attorneys:

Greg W. Eichelman, Morristown, Tennessee, for the appellant, Ronald Eugene Brewer, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and John D. Godbee, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Ronald Eugene Brewer, Jr., was convicted of first degree premeditated murder, first degree murder in the attempt to perpetrate a first degree murder, and criminal attempt to commit first degree murder. Following a sentencing hearing, the jury sentenced the Defendant to life imprisonment without the possibility of parole for each count of first degree murder. The trial court merged the two counts of first degree murder and imposed a concurrent twenty-five-year sentence for the third count. In this direct appeal, the Defendant raises the following issues for our review: (1) The State presented insufficient evidence to sustain a conviction for first degree murder; (2) The indictment alleging the intent to directly kill the victim was improperly before the jury; (3) The trial court erred when it refused a change of venue; (4) The trial court erred when it allowed the 911 tape to be admitted into evidence; (5) The trial court erred when it allowed the Defendant's signed statement, and a comment he made to a police officer while being transported, to be admitted into evidence; (6) The trial court erred when it allowed material related to gangs and gang activity to be admitted into evidence; (7) The trial court erred when it allowed purported expert testimony about gangs; (8) The trial court erred when it allowed testimony about a shell casing found in the Defendant's vehicle; (9) The trial court erred when it allowed the State to use and present two aggravating circumstances to the jury; and (10) The evidence was insufficient to support a sentence of life imprisonment without the possibility of parole. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/brewerr_071411.pdf
STATE OF TENNESSEE v. IROKO PHILLIPS

Court: TCCA

Attorneys:

Michael Johnson (at trial), Memphis, Tennessee, and Tony N. Brayton (on appeal), Memphis, Tennessee, for the Appellant, Iroko Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; Damon Griffin, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Defendant, Iroko Phillips, of one count of aggravated kidnapping and two counts of attempted aggravated rape. The trial court merged the two counts of attempted aggravated rape and imposed on the Defendant as a Range III, Persistent Offender an effective sentence of sixty years in the Tennessee Department of Correction. On appeal, the Defendant contends the evidence is insufficient to support his convictions and that his convictions violate due process principles. Having thoroughly reviewed the record and relevant authorities, we conclude the evidence is sufficient to support the Defendant's convictions and that his convictions do not violate his due process rights. As such, the trial court's judgments are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/phillipsi_071411.pdf
CHARLES E. SHIFFLETT, SR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Brad Sproules, Kingsport, Tennessee, for the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; H. Greeley Wells, District Attorney General, Blountville, Tennessee; and Barry Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

In October 2009, the Petitioner, Charles E. Shifflett, Sr., filed a petition for post-conviction relief challenging his convictions for first degree murder and robbery. The Petitioner alleged nine grounds of ineffective assistance of trial counsel and three grounds of prosecutorial misconduct at trial. The post-conviction court summarily dismissed the petition, finding that some of the issues had been raised on direct appeal, and that other allegations were conclusory and failed to sufficiently allege prejudice. Following our review of the record, we reverse the judgment of the Sullivan County Criminal Court and remand for further proceedings.

http://www.tba2.org/tba_files/TCCA/2011/shifflettc_071411.pdf
IN RE: FRANK G. ABERNATHY, BPR 013692

Court: TSC-Disciplinary_Order

Judge: CLARK

Reinstatement

http://www.tba2.org/tba_files/TSC/2011/abernathyf_071411.pdf
IN RE: JOHN WILBURN CASTLEMAN JR., BPR 023551

Court: TSC-Disciplinary_Order

Judge: CLARK

Suspension

http://www.tba2.org/tba_files/TSC/2011/castlemanj_071411.pdf
IN RE: FREDDIE NEWELL JACKSON, BPR 022402

Court: TSC-Disciplinary_Order

Judge: CLARK

Suspensions Vacated

http://www.tba2.org/tba_files/TSC/2011/jacksonf_071411.pdf
IN RE: JERRY L. MAYNARD II, BPR 017473

Court: TSC-Disciplinary_Order

Judge: CLARK

Suspension

http://www.tba2.org/tba_files/TSC/2011/maynardj_071411.pdf
IN RE: ROBERT PAUL WILLIAMS, BPR 026939

Court: TSC-Disciplinary_Order

Judge: WADE

Reinstatement

http://www.tba2.org/tba_files/TSC/2011/williamsr_071411.pdf
TODAY'S NEWS
Legal News
Upcoming
Disciplinary Actions
TBA in the News
TBA Member Services
Legal News
Vanderbilt ranks high for grads' standard of living
A new study by The National Jurist ranks the top 50 law schools based on graduates' standard of living. Vanderbilt University Law School, the only Tennessee school on the list, ranked in third place behind the University of Texas and the University of Georgia. The magazine used starting salaries, average debt payments, estimated federal and state taxes and cost of living adjustments for attorneys who entered private practice to calculate the rankings.
Read more from the study
Nashville plaintiffs join Google suit
Three Nashville residents and two local attorneys are part of a nationwide class-action suit against Internet giant Google. The class, which is being represented by Lieff Cabraser Heimann & Bernstein, alleges that the company violated federal and state wiretap laws while collecting images for its Google Maps' street view feature. Google has admitted that its collection vehicles were outfitted with software that harvested personal information from residents' and businesses' open wireless networks, but claims it never intended to collect or use the information.
The Tennessean has the story
Moncier asks judge to block monitoring fees
Knoxville lawyer Herbert S. Moncier was in federal court this week seeking to block the state Board of Professional Responsibility from forcing him to pay fees to lawyers at Baker, Donelson, Bearman, Caldwell & Berkowitz who have been appointed to serve as his practice monitors. Moncier was suspended by the Tennessee Supreme Court for 45 days and directed to utilize a practice monitor for nearly a year after he was found to be in contempt of court. More than two dozen lawyers showed up at the hearing yesterday to support Moncier.
Read more in the News Sentinel
Wiretap usage soars in Tennessee
In Tennessee and across the nation, police and prosecutors are relying more heavily on wiretaps, says a new study by the Administrative Office of the U.S. Courts. The report found that there has been a 168 percent jump in wiretaps since 1997. In Tennessee, wiretaps have gone from zero a decade ago to one every 11 days in 2010. Prosecutors say wiretaps are the most effective way to infiltrate and disrupt drug cartels, gangs and traffickers, but defense attorneys warn the government not to go too far.
The Tennessean has more
Shelby County youth court seeks volunteers
The Juvenile Court of Memphis and Shelby County has launched its first youth court and is seeking attorney volunteers to work with the program. Lawyers already involved are Constance Alexander, April Bostick, Asia Diggs, Jocelyn Henderson, Elbert Jefferson Jr., Samuel Jones, Andre Mathis, David McKinney, Kimbrough Mullins, Mozella Ross James Sanders, Pamela Skelton, Valerie Smith, Alicia Washington and Rachel Scott Woodall. Those interested in assisting with the program should contact Youth Court Coordinator Avis Lamar at (901) 405-8720.
Read more about the new court
ACLU suit sparks changes by Sumner schools
The Sumner County Board of Education will change some of its policies -- imposing stricter rules for personnel, visitors, organizations and clubs -- in response to a lawsuit filed by the American Civil Liberties Union (ACLU). The revisions are not a compromise with the ACLU but a clarification of policies and procedures, according to the school's legal representative. The school still faces a jury trial scheduled for June 2012.
The Gallatin News Examiner reports
Disabled sue state over cuts in service
Thirty-nine disabled Tennesseans who are set to have home assistance services cut by the state are plaintiffs in a suit filed in federal court this week. The suit alleges that the Department of Intellectual and Developmental Disabilities' plan to cut services to Tennesseans with mental and developmental disabilities violates the Americans with Disabilities Act. The group is being represented by the National Health Law Project and various legal aid offices across the state.
Learn more in the News Sentinel
Memphis awarded $4.8M to address gun violence
The city of Memphis was awarded a $4.8 million grant today from the New York-based Bloomberg Philanthropies. The funding is part of the organization's Mayors Project, a new government innovation program. The city will use the funds to implement new approaches to handgun violence and revive areas of the city cut off by highway construction.
The Commercial Appeal reports
Foreclosure activity down due to delays
Foreclosure activity in Tennessee declined 25 percent in the first half of the year compared to the first six months of 2010, according to a midyear report released today by RealtyTrac. Nationwide, foreclosure activity declined by 25 percent from the previous six months and 29 percent from the first half of 2010. According to the report, though, the decline is not a sign of a rallying economy, but due to processing delays. RealtyTrac estimates that because of the delays potentially one million foreclosures that should have occurred in 2011 will now happen in 2012 or later.
The Memphis Business Journal reports
Upcoming
Chattanooga group holds criminal justice event
The Chattanooga Hamilton County NAACP will hold its 4th Annual Criminal Justice Seminar this Saturday at the Chattanooga Choo Choo from 9 a.m. to 2 p.m. The seminar will feature presentations by Hamilton County District Public Defender Ardena Garth, representatives of the Chattanooga Crime Suppression Unit and National NAACP Criminal Justice Director Robert Rooks. The event is free and open to the public. Call (423) 267-5637 to register.
Disciplinary Actions
Suspensions vacated for Texas lawyer
On June 28, the Tennessee Supreme Court vacated two administrative suspensions imposed on Houston, Texas, lawyer Freddie Newell Jackson. The court vacated an Oct. 25, 2010, suspension imposed for non-payment of the annual registration fee and a June 14 suspension imposed for non-compliance with the 2010 IOLTA requirement. The court directed the Board of Professional Responsibility to remove the suspensions from Jackson's record and pay the costs of the proceeding.
Download the court's order
Mississippi lawyer reinstated
Robert Paul Williams of Oxford, Miss., was reinstated to the practice of law on July 13. He had been suspended on Sept. 7, 2010, for noncompliance with continuing legal education requirements.
Download the court order
TBA in the News
Law Day essay winner featured in article
Chattanooga student Ashton Banta won first place in both the Chattanooga Bar Association's and Tennessee Bar Association's 2011 Law Day Essay Contest. Her essay looked at the impact John Adams had on the U.S. legal system when he chose to defend British soldiers who killed civilians in the Boston Massacre. In an article in the Hamilton County Herald, Banta talks about her plans for the future, which include attending the University of Alabama's Honors College and one day pursuing a law degree.
Read more about Banta here
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.

 
 
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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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