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Tuesday, July 26, 2011

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Ross Alderman honored by Senate resolution

State and local officials honored the life of Ross Alderman, the former Nashville Public Defender and late husband of Court of Appeals Judge Patricia Cottrell, with a ceremony Friday commemorating the adoption of a Senate Resolution. The resolution acknowledged Alderman's longstanding service to the Tennessee legal community -- most notably, his 20 years at the Nashville Public Defender's office. Senator Douglas Henry presided over the ceremony. Nashville Mayor Karl Dean and Tennessee Supreme Court Chief Justice Cornelia Clark also offered remarks.

See a picture from the Administrative Office of the Courts

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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01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
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00 - TN Supreme Court - Disciplinary Orders

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ROBERT LAZAR v. J.W. ALUMINUM

Court: TSC

Attorneys:

Blakely D. Matthews and J. Cole Dowsley, Jr., Nashville, Tennessee, for the appellant, J.W. Aluminum.

George L. Morrison III and Spencer Barnes, Jackson, Tennessee, for the appellee, Robert Lazar.

Judge: HOLDER

An employee settled his claim for workers' compensation benefits. The settlement stated that the award of vocational disability benefits to which the parties agreed was not based on the medical impairment rating of either the treating physician or the employee's independent medical examiner. After the employee was laid off, he sought reconsideration of his benefits pursuant to Tennessee Code Annotated section 50-6-241(d)(1)(B)(iv) (2008). The chancery court declined to use the impairment rating of the treating physician or the independent medical examiner. The court further declined to base its increased award on a rating from an independent medical evaluation of the employee conducted after the settlement by a physician listed in the Medical Impairment Rating registry of the Tennessee Department of Labor. The chancery court instead awarded additional permanent partial disability benefits based on an impairment rating computed from the percentage of permanent partial disability reflected in the settlement. The employer appealed. We affirm the chancery court.

http://www.tba2.org/tba_files/TSC/2011/lazarr_072611.pdf

JAMES E. STEM v. THOMPSON SERVICES, INC. ET AL.

Court: TWCA

Attorneys:

Michael Gigandet, Nashville, Tennessee, for the appellants. Thompson Services, Inc. and Benchmark Insurance Company.

R. Steven Waldron, Murfreesboro, Tennessee, for the appellee, James E. Stem.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(3)(3) (2008) for a hearing and report of findings of fact and conclusions of law. The appeal involves a dispute regarding the type and amount of temporary benefits an employee working two jobs is entitled to following an injury at one of the employee's jobs. After sustaining a work-related injury that required the employee to discontinue one but not both of his jobs, the employee filed suit in the Circuit Court for Rutherford County. After the trial court awarded temporary total disability benefits, the employer appealed and asserted that the employee was not entitled to temporary total disability benefits because he continued to work at his second job. We conclude that the employee is entitled to temporary partial, rather than temporary total, disability benefits and remand the case to the trial court to determine the amount of these benefits.

http://www.tba2.org/tba_files/TSC_WCP/2011/stemj_072611.pdf

RICHARD L. HOLLOW, TRUSTEE v. BEULAH BUTLER, ET AL.

Court: TCA

Attorneys:

J. Polk Cooley, Rockwood, Tennessee, for the appellant, Beulah Butler.

Jack H. McPherson, Jr., Kingston, Tennessee, for the appellee, Richard L. Hollow, Trustee.

E. H. Rayson, and Charles M. Finn, Knoxville, Tennessee, for the appellees, George Ed Wilson, III; Emmie Wilson Fisher; Chalmers R. Wilson; and Madge Cleveland.

Judge: SWINEY

Richard L. Hollow, Trustee ("Plaintiff") sued Beulah Butler with regard to a boundary line dispute. After a trial, the Trial Court entered its order finding and holding, inter alia, that the common boundary line between Plaintiff's real property and Ms. Butler's real property is as shown on a September 17, 2003 survey prepared by Plaintiff's surveyor, James Ogle, and that Ms. Butler had not proven adverse possession, laches, or gross laches. Ms. Butler appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2011/hollowr_072611.pdf

ROBERT MALLORY V. JIM KERAS CHEVROLET

Court: TCA

Attorneys:

Robert Mallory, Oakland, Tennessee, appellant, pro se

Ross Emerson Webster, Memphis, TN, Tennessee, for the appellee, Jim Keras Chevrolet

Judge: PER CURIAM

Appellant appealed the trial court's order granting a motion to stay proceedings and compel arbitration. We dismiss for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2011/malloryr_072611.pdf

SUSAN D. MALONE v. JAMES P. MALONE

Court: TCA

Attorneys:

Mitchell A. Byrd, Chattanooga, Tennessee, for the appellant, James P. Malone.

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Susan D. Malone.

Judge: MCCLARTY

This is a divorce case. The husband appeals, challenging the trial court's determinations regarding the classification of property and the valuation and distribution of the marital assets. Wife raises additional issues concerning the property classification and attorney fees. As modified, the trial court's judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2011/malones_072611.pdf

JEFFERSON COUNTY, TENNESSEE v. MARGARET V. SMITH

Court: TCA

Attorneys:

Kelli L. Thompson, Knoxville, Tennessee, for the appellant, Margaret V. Smith.

S. Douglas Drinnon and Larry Ray Churchwell, Dandridge, Tennessee, for the appellee, Jefferson County, Tennessee.

Judge: MCCLARTY

Jefferson County, Tennessee filed a petition against Margaret Vance Smith, seeking to recover possession of the unexecuted marriage license issued to David ("Davy") Crockett and Margaret Elder by the county's clerk in 1805. The action was filed pursuant to Tenn. Code Ann. section 39-16-504, which prohibits the destruction of, tampering with, or fabrication of government records. The trial court entered a final judgment against Mrs. Smith, ordering the immediate return of the marriage license to Jefferson County. Mrs. Smith appealed. We affirm as modified.

http://www.tba2.org/tba_files/TCA/2011/smithm_072611.pdf

STATE OF TENNESSEE, by and through Robert E. Cooper, Jr., Attorney General and Reporter for the State of Tennessee v. NV SUMATRA TOBACCO TRADING COMPANY
CORRECTION on page 12 (see below)

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; and Joseph F. Whalen, Solicitor General; Rebekah A. Baker, Assistant Attorney General, for appellant, State of Tennessee.

Steven C. Douse, Nashville, TN and Christopher L. Rissetto, Washington. D.C, for the appellee, NV Sumatra Tobacco Trading Company.

Judge: STAFFORD

CORRECTION SUMMARY:
This corrected opinion makes the following changes: On page twelve (12) within the first paragraph the cite Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd., 823 S.W.2d 572, 577 (Tenn. Ct. App. 1992) has been corrected to the following: Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572, 577 (Tenn.Ct.App. 1992).

OPINION SUMMARY:
This appeal involves in personam jurisdiction over a foreign defendant. Appellant State of Tennessee brought suit against Appellee tobacco product manufacturer, under the Tobacco Escrow Fund Act, Tennessee Code Annotated Sections 47-31-101 et seq., alleging that Appellee had failed to make escrow deposits, as required under the Act, for cigarettes sold in Tennessee. Based upon the trial court's finding that it lacked personal jurisdiction over the Appellee, it entered summary judgment in favor of the manufacturer. The State appeals. Upon review, we conclude that: (1) the facts of this case show that the manufacturer intentionally used a distribution system with the desired result of selling its product in all fifty states, including Tennessee, so as to support a finding that the manufacturer had minimum contacts with the State necessary to invoke the exercise of personal jurisdiction; (2) the exercise of personal jurisdiction, under the facts of this case, is reasonable and fair; (3) the manufacturer is subject to regulation under the Act; and (4) the Act is not unconstitutional. Moreover, we conclude that: (1) Appellee is a tobacco products manufacturer, as defined by the Escrow Fund Act; (2) Appellee's cigarettes were sold in Tennessee; and (3) Appellee is, therefore, liable for escrow payments under the Escrow Fund Act. Consequently, we grant the State's motion for summary judgment. The order of the trial court is reversed, and the matter is remanded for entry of summary judgment in favor of Appellant State and for calculation of the escrow amount owed by Appellee and entry of judgment thereon.

http://www.tba2.org/tba_files/TCA/2011/sumatra_COR_072611.pdf

CLARA JEAN WEST, BY AND THROUGH JANET L. HARVEY, CONSERVATOR; AND ESTATE OF ROBERT STOKES WEST, BY AND THROUGH JANET L. HARVEY, ADMINISTRATOR V. REGIONS BANK

Court: TCA

Attorneys:

John D. Horne, Memphis, Tennessee, for the Plaintiffs/ Appellants Clara Jean West, by and through Janet L. Harvey, Conservator; and Estate of Robert Stokes West, by Janet Harvey, Administrator

Randall D. Noel and Melody McAnally, Memphis, Tennessee, for the Defendant/Appellee Regions Bank

Judge: KIRBY

This appeal involves a claim against a bank for conversion. The decedent signed a durable power of attorney appointing his nephew as his attorney-in-fact. Both the decedent and the nephew had accounts at the defendant bank. Using the power of attorney, the nephew endorsed checks made payable to the decedent and deposited them into his own bank accounts at the defendant bank. By the time the decedent died a few months later, the nefarious nephew had almost completely depleted the decedent's estate. The estate of the decedent and the decedent's wife filed this lawsuit against the bank. The trial court granted summary judgment in favor of the bank, based on the statutory immunity granted to banks for recognizing a power of attorney in T.C.A.section 45-2-707(d). The plaintiff now appeals, arguing that the immunity statute is inapplicable because her claim arose under the UCC, T.C.A. sections 47-3-307 and 47-3-420. We reverse, finding that T.C.A. section 45-2-707 is inapplicable to the transactions at issue in this appeal.

http://www.tba2.org/tba_files/TCA/2011/westc_072611.pdf

STATE OF TENNESSEE v. JOHN ERIC GARVIN, JR.

Court: TCCA

Attorneys:

B. Nathan Hunt, Clarksville, Tennessee, for the Appellant, John Eric Garvin, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; John W. Carney, Jr., District Attorney General; John Finklea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 2007, the Defendant, John Eric Garvin, Jr., pled guilty to reckless aggravated assault, but the trial court suspended the entry of his judgment of conviction and placed the Defendant on judicial diversion for a term of three years. The Defendant subsequently violated the terms of his diverted sentence by, among other things, possessing a Schedule II drug, possession of marijuana with the intent to sell, and driving on a suspended license, second offense. The Defendant pled guilty to each of these offenses and admitted violating the terms of his diversion. The trial court revoked the Defendant's judicial diversion and imposed a sentence of two years for his reckless aggravated assault conviction. The trial court ordered the Defendant to serve nine additional years for the offenses he committed while on diversion, ordering those sentences to be served consecutively to his two-year sentence for reckless aggravated assault. The trial court ordered the Defendant to serve his total effective sentence of eleven years in the Tennessee Department of Correction. On appeal, the Defendant contends the trial court erred when it denied his request for alternative sentencing. Having reviewed the record and applicable law, we conclude the trial court properly denied alternative sentencing. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/garvinj_072611.pdf

STATE OF TENNESSEE v. ERIK GUERRERO

Court: TCCA

Attorneys:

J. Russell Parkes, Columbia, Tennessee, for the Appellant, Erik Estrada Guerrero.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Michel T. Bottoms, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Maury County jury convicted the Defendant, Erik Guerrero, of two counts of first degree premeditated murder, two counts of first degree felony murder, and nine counts of attempted first degree murder, and the trial court sentenced the Defendant to an effective sentence of life in the Tennessee Department of Correction. The Defendant appeals his conviction claiming that: (1) the evidence is insufficient to support his convictions; (2) the trial court erred when it allowed proof of the Defendant's gang membership to be admitted into evidence at trial; (3) the trial court erred when it allowed a recorded telephone conversation between the Defendant and a co-defendant to be admitted into evidence at trial; (4) the trial court erred when it allowed the Defendant's statements made at the scene of the crime to be admitted into evidence at trial; and (5) the trial court erred when it failed to instruct the jury as to the natural and probable consequences rule. After a thorough review of the record and applicable law, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/guerreroe_072611.pdf

STATE OF TENNESSEE v. DANNY OSBORNE
CORRECTION to the original opinion was the State Attorney General who wrote the brief was Clarence Lutz, not Brent Cherry.

Court: TCCA

Attorneys:

Eunus Alton Howell, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter, Clarence E. Lutz, Assistant Attorney General; Mike Flynn, District Attorney General, and Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Danny Osborne, pled guilty to promotion of methamphetamine manufacture, possession of drug paraphernalia, possession of a schedule II controlled substance, and criminal impersonation. As a result, he received a two-year sentence in the Department of Correction. Appellant was subsequently released to probation. One month later, a warrant was issued for violation of probation. After a hearing, the trial court revoked Appellant's probation and ordered him to serve the balance of the original sentence in confinement. After a review of the record, we determine that the trial court did not abuse its discretion where there was substantial evidence to support the revocation of probation. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/osborned_COR_072611.pdf

STATE OF TENNESSEE v. STEVEN DANIEL PACK

Court: TCCA

Attorneys:

James Threet, Manchester, Tennessee, for the Defendant-Appellant, Steven Daniel Pack.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Michael Payne, District Attorney General; and Marla Holloway, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Steven Daniel Pack, pled guilty in the Circuit Court of Coffee County to driving under the influence, third offense, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. He was sentenced to eleven months and twenty-nine days for driving under the influence, third offense, all of which was suspended after service of 180 days in confinement. In regard to the driving on a revoked license conviction, Pack was sentenced to six months, all of which was suspended after service of 60 days in confinement. These sentences were to be served consecutively. Pursuant to Rule 37 of the Tennessee Rules of Criminal Procedure, Pack reserved as a certified question of law whether there was reasonable suspicion to support the stop and detention of the defendant as required by the 4th Amendment of the U.S. Constitution and Article 1 Section 7 of the Tennessee Constitution. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/packs_072611.pdf

STATE OF TENNESSEE v. REGINOLD STEED

Court: TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), and George Morton Googe and Gregory D. Gookin, Jackson, Tennessee (at trial and on appeal), for the appellant, Reginold Steed.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; James G. Woodall; District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Madison County Circuit Court jury convicted the appellant, Reginold Steed, of aggravated assault, and the trial court imposed a sentence of four years and six months in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence underlying his conviction, the length of the sentence imposed by the trial court, and the trial court's denial of judicial diversion and alternative sentencing. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/steedr_072111.pdf

TODAY'S NEWS

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TBA Member Services

Legal News

Remain calm: Bar exam grading is mostly the same

The news site, "Above the Law," mocked Tennessee a bit today with its humorous characterization of the state's slight changes in the bar exam grading system, saying there had been recent rumors that grading would again be different for the July exam. The February 2011 exam did mark a change in grading, according to the Board of Law Examiners, where "all essay scores will be scaled to the Multistate Bar Examination (MBE). A combined total of 270 points will be needed to pass the Tennessee Bar Examination." The tiny change for July, as explained by Vanderbilt Law School's dean of students is "that the grade of 'zero' for the essay answers has been eliminated (which will actually be a benefit to bar takers)." The exam is July 27 and 28.

Read the story in Above the Law

Suit threatened if Amazon not made to pay taxes, too

Bill Hubbard, a Nashville-based attorney for the Retail Industry Leaders Association, says the group may file suit if state officials don't require Amazon to collect sales taxes when the company begins using two Tennessee-based distribution centers now under construction. In an opinion issued June 28, Tennessee Attorney General Bob Cooper said an out-of-state retailer's use of in-state distribution centers would support a finding of physical presence -- or "nexus" in legal terms -- if its activities are "significantly associated" with the retailer's ability to establish a market for the sales. Hubbard has argued that the two $139 million distribution centers Amazon is building in Hamilton and Bradley counties constitute physical presence.

The Times Free Press reports

Reagan Farr cleared of charges

Former Tennessee Revenue Commissioner Reagan Farr has been cleared of criminal wrongdoing following an 11-month investigation. The Tennessee Bureau of Investigation found no evidence that Farr broke any laws in the handling of investigations into sales tax revenues of some businesses, Davidson County District Attorney Torry Johnson and 15th Judicial District Attorney General Tommy Thompson said in a joint statement.