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| Thursday, February 16, 2012 |
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Steen to lead TBA in 2014-2015
Jackson attorney Jonathan Steen will be Tennessee Bar Association president in 2014-2015, according to election-qualifying results released today. No other candidate filed for the vice president position by the Feb. 15 deadline. After serving a year as vice president, Steen will ascend to president-elect in 2013-2014 before taking over the organization's leadership in June 2014.
Others who will be elected without opposition are:
-- Grand Division Governor, West Tennessee (one-year term): Michelle Sellers, Jackson.
-- Grand Division Governor, Middle Tennessee (one-year term): James Crumlin, Nashville.
-- Grand Division Governor, East Tennessee (one-year term): Jason Long, Knoxville.
-- Governor, Third District (three-year term): Chris Varner, Chattanooga.
-- Governor, Ninth District (three-year term): Carl Carter, Memphis.
-- TBA Delegate to the ABA House of Delegates, Position 2: Buck Lewis, Memphis.
-- TBA Delegate to the ABA House of Delegates, Position 4: John Tarpley, Nashville.
-- TBA Delegate to the ABA House of Delegates, Position 5: Paul Campbell III, Chattanooga.
No candidate filed to fill the Sixth District Governor position.
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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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03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
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DOYLE ALLEN CASTLE v. SULLIVAN COUNTY SHERIFF'S DEPARTMENT
Court: TWCA
Attorneys:
Anthony A. Seaton, Amanda Inman Lowe, and Robert D. Bates, II, Johnson City, Tennessee,
for the appellant, Doyle Allen Castle.
Daniel P. Street, Blountville, Tennessee, for the appellee, Sullivan County Sheriff's
Department.
Judge: WADE
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, a sheriff's deputy, alleged that he
sustained a mental injury as a result of a confrontation that occurred while he was serving an
eviction warrant. His employer denied the claim and filed a motion for summary judgment,
contending that the injury was not compensable because the alleged precipitating event was
not unusual or abnormal for a deputy. The trial court granted summary judgment for the
employer. On appeal, the employee contends that the trial court erred by concluding that
there was not a genuine issue of material fact as to whether the incident in question was
sufficiently extraordinary or unusual to support a mental injury claim. Because there is a
genuine issue of material fact as to whether the injury qualified as extraordinary and unusual
or was merely the result of stress ordinarily experienced in the line of duty, the judgment is
reversed, and the cause is remanded for trial.
http://www.tba2.org/tba_files/TSC_WCP/2012/castled_021612.pdf
GEORGE McGOWAN v. STATE OF TENNESSEE
Court: TWCA
Attorneys:
Robert E. Cooper, Jr., Attorney General & Reporter; Martha A. Campbell, Associate Deputy
Attorney General, for the appellant, State of Tennessee.
Andrew L. Wener, Memphis, Tennessee, for the appellee, George McGowan.
Judge: CHILDRESS
An employee was exposed to smoke as a result of a fire at his workplace. Testing revealed
the presence of bullous emphysema, a dangerous condition caused by cigarette smoking.
Surgery was required to treat that condition. The Claims Commission ruled that the smoke
exposure at work had aggravated and advanced his preexisting lung disease and awarded
permanent total disability benefits. The employer has appealed, contending that the
evidence preponderates against the Commissioner's finding of causation. We agree and
reverse the judgment.
http://www.tba2.org/tba_files/TSC_WCP/2012/mcgowang_021612.pdf
KENNETH STEWART v. WESTFIELD INSURANCE COMPANY
Court: TWCA
Attorneys:
Randolph A. Veazey and Janis O. Mize, Nashville, Tennessee, for the appellant, Westfield
Insurance Company.
Ricky L. Boren, Jackson, Tennessee, for the appellee, Kenneth Stewart.
Judge: KURTZ
The appellant insurance company asserts on appeal that the employee failed to prove that his
spinal infection was causally related to any work-place injury and that he also failed to
provide the employer with timely notice of his injury. Based upon our review of the record,
we conclude that the expert medical proof establishes causation and that the evidence
supports the trial court's finding that the employee gave timely notice of his injury. We
affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TSC_WCP/2012/stewartk_021612.pdf
NEAL LOVLACE and NORMA JEAN LOVLACE v. TIMOTHY KEVIN COPLEY AND BETH COPLEY
CORRECTION: Citation in footnote 5 on page 18 has been corrected
Court: TCA
Attorneys:
Thomas F. Bloom, Nashville, Tennessee and Grant C. Glassford, Brentwood, Tennessee, for
the appellants, Neal Lovlace and Norma Lovlace.
Rebecca K. McKelvey and Gregory D. Smith, Nashville, Tennessee, for the appellees,
Timothy Kevin Copley and Beth Copley.
Judge: STAFFORD
CORRECTION SUMMARY
This newly-released opinion corrects a citation found in footnote 5 on page 18. The original majority opinion cited
Scott v. Scott, 971 P.2d 395 (Ok. 2001). The corrected opinion cites Scott v. Scott, 19 P.2d 273 (Ok. 2001).
OPINION SUMMARY
This is a modification of child visitation case, involving grandparent visitation. The
Appellant grandparents appeal the trial court's order, denying their request for more
visitation with the minor child, as well as the failure of the trial court to find the Appellee
Mother guilty of all alleged incidents of civil contempt. In the posture of Appellees, the
mother and her husband (the child's adoptive father) argue that the Appellants are not
entitled to any visitation. We conclude that in modification of grandparent visitation cases,
if the parent is the movant, his or her burden is to show, by a preponderance of the evidence,
that there has been a material change in circumstance affecting the child's best interest.
However, where the movant is the non-parent, we hold that the grandparent visitation statute
provides that the burden is on the non-parent to show, by a preponderance of the evidence,
that there has been a material change in circumstance that would present a substantial risk
of harm to the child if modification is denied. Because the trial court incorrectly applied the
best interest standard, we vacate its order modifying the visitation arrangement. We also
conclude that the trial court did not abuse its discretion in finding the mother in civil
contempt on five counts; however, we conclude that the award of attorney's fees for that
contempt is not clear as to what portion, if any, of those fees was expended for prosecution
of the contempts, and what portion, if any, was expended in pursuit of the Appellees' attempt
to modify the visitation order. Therefore, we also vacate the award of attorney's fees and
remand for an award of those fees associated only with the prosecution of the contempts.
Vacated in part, affirmed in part, and remanded.
http://www.tba2.org/tba_files/TCA/2012/lovlacen_CORR_021612.pdf
MARSHA McDONALD v. PAUL F. SHEA M.D. AND SHEA EAR CLINIC
With a Concurring and Dissenting Opinion
Court: TCA
Attorneys:
Albert C. Harvey, John H. Dotson, and Justin N. Joy, Memphis, Tennessee, for
Defendants/Appellants Paul F. Shea, M.D. and Shea Ear Clinic.
Gary K. Smith and Janelle C. Clark, Memphis, Tennessee for Plaintiff/Appellee Marsha
McDonald.
Judge: KIRBY
This is a medical malpractice appeal. The plaintiff patient was treated by the defendant
physician for ear problems. After the treatment, she had a complete loss of hearing in one
ear. The plaintiff patient filed this lawsuit against the physician, alleging medical
malpractice and lack of informed consent. After potential experts in Tennessee and
contiguous states declined to testify against the defendant physician, the trial court permitted
the plaintiff to use an expert physician witness from a non-contiguous state. At the jury trial,
after the jury was sworn and counsel gave opening statements, a juror notified the trial judge
of the her concern about an upcoming social event she planned to attend, at which a relative
of the defendant physician would be present. After voir dire, the trial judge noted that the
plaintiff patient had unused remaining peremptory challenges and excused the juror. The
trial court denied the defendant physician's motion for directed verdict on informed consent.
The jury awarded the plaintiff substantial compensatory damages. The defendant physician
now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert
from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after
trial was underway, in permitting the informed consent claim to go to the jury, and in denying
the defendants' motion to exclude the expert retained by the plaintiff. We affirm on all issues
except the dismissal of the juror. We hold it would be error to permit the exercise of a
peremptory challenge after the trial is underway, but find that any error was harmless under
the facts of this case. Therefore, we affirm.
http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_021612.pdf
HIGHERS concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_CON_021612.pdf
LARRY D. WILLIAMS v. CITY OF BURNS, TENNESSEE
Court: TCA
Attorneys:
Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Larry D. Williams.
Fetlework S. Balite-Panelo and Stephen W. Elliott, Nashville, Tennessee; and Timothy
Valton Potter, Dickson, Tennessee; for the appellee, City of Burns, Tennessee.
Judge: BENNETT
A former employee brought a retaliatory discharge action against the employer city, asserting
a claim under the Tennessee Public Protection Act. The trial court granted summary
judgment in the city's favor and the employee appealed. Because genuine issues of material
fact preclude summary judgment, we reverse.
http://www.tba2.org/tba_files/TCA/2012/williamsl_021612.pdf
STATE OF TENNESSEE v. THOMAS W. MEADOWS
Court: TCCA
Attorneys:
Michael J. LaGuardia, Kingsport, Tennessee (on appeal); and Thomas W. Meadows, pro se
(at trial), for the appellant, Thomas W. Meadows.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; H.
Greeley Wells, Jr., District Attorney General; and Kaylin Render, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: THOMAS
The Defendant, Thomas W. Meadows, appeals as of right from his conviction for one count
of indirect criminal contempt. The Defendant contends that the evidence was insufficient
to sustain his conviction. Following our review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2012/meadowst_021612.pdf
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| TODAY'S NEWS |
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Legal News
General Assembly News
Election 2012
Upcoming
Career Opportunities
TBA Member Services
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| Legal News |
| Improvements coming to TBA website |
| The Tennessee Bar Association will be making improvements to its website this weekend, so the site and its companion TennBarU CLE website will be unavailable some of that time, beginning Friday at 6 p.m. Look for new features and more user control on the revised site starting next week. |
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| Payday lender allegedly using bogus court documents |
| Hamilton County Circuit Court Clerk Paula Thompson reports that a local payday loan company is sending delinquent customers to court using bogus documents for cases that don't exist. More than 20 customers of Cash Express have called or showed up at the courthouse concerned that they might be arrested. Thompson says the fake documents bear her name and are similar to official forms. Judge Clarence Shattuck reportedly has contacted the attorney for Cash Express to get to the bottom of the issue.
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Chattanoogan.com has the story
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| Student files suit against LMU law school |
| Morgan Crutchfield, a part-time student at Lincoln Memorial University's Knoxville-based John J. Duncan Jr. School of Law, is suing the institution, claiming college administrators negligently allowed her to enroll in the school even though she is ineligible to sit for the state bar exam. Crutchfield says that school officials told her she could enroll despite lacking 12 credit hours in her undergraduate degree -- so long as she completed the hours during her first year of law school. Last month, the Board of Law Examiners informed her that she had to complete her undergraduate degree before beginning law school in order to sit for the state bar exam. She is asking for as much as $750,000 in damages.
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Read more in the News Sentinel
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| New juvenile judge could be in place in early 2013 |
| The Williamson County Commission voted unanimously this week to ask local representatives to the Tennessee General Assembly to sponsor a private act creating a new county juvenile court. If approved, the court could begin operating in January 2013 with an appointed judge. Juveniles matters currently are handled by one full- and one part-time magistrate and two General Sessions judges -- Denise Andre and Judge Al Nations. Andre told the commission that she supports the idea as a more cost-effective way to meet growing demand than adding another General Sessions judge.
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The Williamson Herald reports
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| Moncier faces two tests on law license |
| Knoxville lawyer Herb Moncier continues to fight for his legal career on two fronts. In Knoxville this week, a panel appointed by the Board of Professional Responsibility is hearing arguments on whether probation conditions imposed on Moncier are excessive. Meanwhile, in Washington, D.C., an arm of the U.S. Supreme Court on Friday will begin a review process to determine if the court will hear a related petition by Moncier, who argues that decisions by the Tennessee Supreme Court that support the board's actions are contrary to rulings by the U.S. Supreme Court.
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Learn more in the News Sentinel
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| Speculation centers on next Supreme Court opening |
| Court observers are speculating on who will be the next justice to retire and who the president would nominate to replace that person. SCOTUSblog went public this week with its prediction that Justice Ruth Bader Ginsburg will be the next supreme to retire and that President Barak Obama -- assuming he wins a second term -- would look to California Attorney General Kamala Harris as her replacement.
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Read why the blog thinks Harris is the most likely candidate
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| First online L.L.M. to be offered this fall |
| The John Marshall Law School in Chicago will offer a new online LL.M. in Estate Planning this fall. It will be the first online LL.M. in the practice area, and only the third offered in the country. The faculty will include law school professors, academics and practitioners. Students must complete 24 credit hours to earn the degree.
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The National Jurist reports
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| General Assembly News |
| 'Occupy' eviction bill passes House |
| A proposal aimed at stopping Occupy Nashville protesters from staying overnight on the Capitol complex has passed the state House. The measure was approved 70-26 after a lengthy debate on Thursday. A companion bill was to be heard on the Senate floor, but the upper chamber adjourned before considering it. Under the legislation, violators could be fined as much as $2,500 and face up to nearly a year in jail. Democrats called that level of punishment punitive and argued the bill was an unprecedented attack on First Amendment rights.
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The Nashville Scene reports
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| Election 2012 |
| Paper analyzes Nashville General Sessions race |
| In the Democratic primary for a seat on the Davidson County General Sessions Court, Jack Byrd boasts the most day-to-day experience in the court, while Rachel L. Bell's candidacy provides voters with their only chance this year to diversify the Nashville bench. But both face an uphill battle in their attempts to defeat Judge Mike Jameson and take over the judgeship vacated by the death of Judge Leon Ruben, the Tennessean reports. |
The Tennessean has more
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| 3 Vandy grads seek circuit judge seat |
| Three Vanderbilt law school graduates -- Mike Binkley, Judy Oxford and Derek Smith -- are vying for a position on the bench in the 21st Judicial District. All live in Williamson County and will face each other in the Republican primary. No Democrats or independents have qualified to run, so the candidate who wins the March 6 primary will be the only one listed on the ballot in August.
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Learn more about the candidates
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| Hawkins judicial candidates talk about bid for office |
| Candidates for the Hawkins County General Sessions Court recently responded to a survey from The Rogersville Review, commenting on why they are running for office, what they see as the most important issue for the court to address and why they believe they would do the best job. Read the responses from Renfro "Buddy" Baird, Terry Risner, J. Todd Ross and James "Jay" Taylor in the paper.
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Learn more here
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| Upcoming |
| Portrait of Judge Bailey to be unveiled |
| The official portrait of former Shelby County Circuit Court Judge D'Army Bailey will be unveiled Feb. 24 at 1 p.m. in the Division 8 Circuit Court courtroom of the county courthouse. A reception sponsored by Wilkes & McHugh PA will follow the ceremony in Room 227. Bailey is now an attorney with the firm, which he joined after retiring from the bench.
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| Career Opportunities |
| U.S. Department of Labor seeks litigator |
| The U.S. Department of Labor is seeking an experienced litigator for its Nashville office. The position will be responsible for all phases of trial litigation involving the Mine Safety and Health Act in a multi-state area. Travel is required. Compensation will be at the GS-12/13 level, depending on experience. Candidates must have at least one year of trial experience. Send resume and writing sample by Feb. 29 to Pamela Reedus, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219 or by email to reedus.pamela@dol.gov.
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Learn more on JobLink
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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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Questions, comments: Email us at TBAToday@tnbar.org
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.
© Copyright 2012 Tennessee Bar Association
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