Civics education, legal aid to benefit from legislation

Civics education study: Legislation creating a commission to study and make recommendations for improving civics education in Tennessee passed out of the Senate Government Operations Committee today without a dissenting vote. Senator Jamie Woodson, R-Knoxville, and Representative Les Winningham, D-Huntsville, who chair their respective chambers' education committees, sponsored the bill which now moves to the Senate floor.

Cy pres: Legislation creating a state fund into which left-over class action awards and other monies could go and be used to benefit legal aid and pro bono programs received its final nod today and now goes to the governor for signing.
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, 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 If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

02 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

PAULA P. KING BOOKER v. THE BOEING COMPANY, d/b/a BOEING-OAK RIDGE COMPANY

Court: TSC

Attorneys:

David R. Wigler, Knoxville, Tennessee, for the Appellant, Paula P. King Booker.

E. H. Rayson and John C. Burgin, Jr., Knoxville, Tennessee, for the Appellee, The Boeing Company.

Judge: ANDERSON

We accepted a question certified to this Court from the United States District Court for the Eastern District of Tennessee to clarify the operation of the statute of limitations for discriminatory pay claims under the Tennessee Human Rights Act. After considering the arguments of the parties and the applicable authority, we hold that a claim of discriminatory pay may be brought at any time within one year that a plaintiff has received discriminatory pay and that backpay is available for the duration of the unequal pay.

http://www.tba2.org/tba_files/TSC/2006/bookerp041906.pdf


MAE ELLEN WILLIAMS, ET AL. v. BAPTIST MEMORIAL HOSPITAL, ET AL.

Court: TSC

Attorneys:

Mimi Phillips and R. H. "Chip" Chockley, Memphis, Tennessee, for the Appellants, Mae Ellen Williams, Percy Williams, and Mytina Singleton, Conservator for Mae Ellen Williams.

Harold W. McLeary, Jr., Kenneth O. Cooper, W. Bradley Gilmer, and M. Beth Rainwater, Memphis, Tennessee, for the Appellees, Becky Wright, M.D., and Metropolitan Anesthesia Alliance.

Judge: ANDERSON

We granted this appeal to determine whether the trial court erred in denying the plaintiffs' motion for an enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure and in granting summary judgment to the defendants. A majority of the Court of Appeals affirmed the judgment. After reviewing the record and applicable authority, we conclude (1) that the trial court did not abuse its discretion in denying the plaintiffs' motion for an enlargement of time because the plaintiffs failed to show excusable neglect under Rule 6.02 and (2) that the trial court properly granted summary judgment to the defendants. As a result, we affirm the Court of Appeals' judgment.

http://www.tba2.org/tba_files/TSC/2006/williamsm041906.pdf


ROYAL & SUNALLIANCE v. RICHARD L. LOYD

Court: TWCA

Attorneys:

Van French, Murfreesboro, Tennessee, for Appellant, Royal & Sunalliance.

Robert P. Gritton, Murfreesboro, Tennessee, for Appellee, Richard L. Loyd.

Judge: INMAN

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and conclusions of law. The Employee suffered a carpal tunnel injury to both hands. Surgery was performed on both hands with good results. The same medical impairment was awarded for each arm, but the trial court awarded 8 percent vocational disability to the left arm, and 32 percent to the right arm. The Employer appeals arguing that there is no factual basis for the 400 percent difference. We affirm.

http://www.tba2.org/tba_files/TSC_WCP/2006/loydr041906.pdf


THOMAS A. DOBSON, ET AL. v. MARION COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

K. Stephen Powers, Chattanooga, Tennessee, for the appellant, Lofty Construction Company.

Edwin Z. Kelly, Jr., Jasper, Tennessee, for the appellees, Thomas A. Dobson, Louise Dobson, and Fil Thach.

H. Graham Swafford, Jr., Jasper, Tennessee, for the appellee, Marion County, Tennessee.

Judge: FARMER

Lofty Construction Company (Lofty) sought rescission of a 1969 Right-of-Way Deed issued by Lofty’s predecessor in title, Tennessee Metallurgical Corporation (TMC) to Marion County, Tennessee. At trial, Lofty argued that TMC executed the Right-of-Way Deed in exchange for Marion County's agreement to enter into an agreement with the State of Tennessee to fund and construct an industrial access highway to an alloy plant operated by TMC. Lofty asserted that the access highway was never constructed and, thus, the deed should be rescinded due to a failure of consideration. The trial court held that Lofty was not entitled to rescind the deed. Lofty appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/


IN RE J.J.C., D.M.C, AND S.J.K., a/k/a K STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JOHN CALABRETT

Court: TCA

Attorneys:

Claiborne H. Ferguson, Memphis, Tennessee, for the Respondent/Appellant, John Calabretta.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Petitioner/Appellee, Tennessee Department of Children's Services.

Judge: KIRBY

This is a termination of parental rights case. This is the second appeal in this matter. In the first appeal, the trial court had terminated the father's parental rights based on abandonment for failure to support his two children. On appeal, this Court reversed the termination on that ground, but remanded the case for further proceedings on the ground of persistent conditions. On remand, the trial court conducted further proceedings and determined that clear and convincing evidence established persistent conditions that prevented the children's safe return to the father. The father now appeals. We affirm, finding that the ground of persistent conditions was established by clear and convincing evidence.

http://www.tba2.org/tba_files/TCA/2006/calabrettaj041906.pdf


CHRISTUS GARDENS, INC. v. BAKER, DONELSON, BEARMAN & CALDWELL, A PROFESSIONAL CORPORATION, ET AL.

Court: TCA

Attorneys:

John S. Bryant, Clisby Hall Barrow and Kathryn Hays Sasser, Nashville, Tennessee, for the appellants Baker, Donelson, Bearman & Caldwell, A Professional Corporation, and Stephen G. Anderson.

George H. Nolan and Joseph G. Degaetano, Nashville, Tennessee, for the appellee, Christus Gardens, Inc.

Judge: CAIN

This interlocutory appeal involves a client's malpractice claim against a law firm and attorney as a result of the attorney's failure to file a timely notice of appeal in a federal copyright case. The trial court denied the law firm's Motion for Summary Judgment as to Causation, finding that the appeal would have been successful had counsel filed a timely notice. We granted interlocutory appeal to determine as a matter of law whether the appeal would have been successful. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/christusgardens041906.pdf


STATE EX. REL. PAULA A. FLOWERS v. TENNESSEE TRUCKING ASSOCIATION SELF INSURANCE GROUP TRUST, ET AL.

Court: TCA

Attorneys:

Roland M. Lowell and Mary B. Langford, Nashville, Tennessee, for the appellants, Ocoee River Transport, Western Express, Inc., and DCI Transportation, LLC.

Renard A. Hirsch, Sr. and William H. Stover, Nashville, Tennessee, for the appellee, Paula M. Flowers, Commissioner of Commerce and Insurance for the State of Tennessee and Liquidator, Mark E. Jaquish, Special Deputy Liquidator and Joseph P. Keane, Special Deputy Liquidator.

Judge: CLEMENT

Three members of a workers' compensation self-insured group trust in liquidation appeal from two orders of the trial court. They contend the trial court erroneously held each of them in contempt and imposed sanctions due to their failure to make periodic payments of assessments as ordered by the court. One of the appellants additionally contends the trial court erred by assessing the Liquidator's administrative fees without affording it the opportunity to conduct discovery as to the reasonableness and necessity of the fees. We affirm the finding of contempt and the imposition of sanctions for the period the appellants are in contempt. As for the administrative fees, the burden of proof of the reasonableness and necessity of the administrative fees is on the Liquidator, and those opposing the fees should be afforded the opportunity to conduct appropriate discovery. If the Liquidator contends certain records are subject to protection, the trial court must conduct an in camera inspection to determine the propriety of a protective order. Such an inspection and determination not having occurred, we remand the issue of administrative fees for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/flowersp041906.pdf


IN RE: ADOPTION OF K.B.H. WILLIAM ANTHONY FISHER and SHELBY LYNN HATTER FISHER v. JONATHON YOUNG

Court: TCA

Attorneys:

Jeremy B. Epperson, Pinson, Tennessee, for Respondent/Appellant Jonathon Young.

Jennifer Twyman King, Jackson, Tennessee, for Petitioner/Appellees William Anthony Fisher and Shelby Lynn Hatter Fisher.

Judge: KIRBY

This a termination of parental rights and adoption case. Before the minor child at issue was born, the biological father was sentenced to ten years imprisonment in a correctional facility. The biological mother and her husband filed a petition to terminate the parental rights of the biological father and permit the mother's husband to adopt the minor child. The trial court granted the petition. We affirm, finding grounds for termination established by the father's confinement to prison for a ten year sentence when the minor child was less than eight years old, and finding clear and convincing evidence to support the trial court's conclusion that termination was in the best interest of the child.

http://www.tba2.org/tba_files/TCA/2006/kbh041906.pdf


MCMURRAY DRIVE AREA HOMEOWNERS ASSOCIATION, ET AL. v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

Court: TCA

Attorneys:

George A. Dean, Nashville, Tennessee, for the appellant, McMurray Drive Homeowners Association.

J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County, Tennessee.

Douglas A. Brace, Nashville, Tennessee, for the appellee, Gertrude Tibbs Ezell.

Thomas V. White, Nashville, Tennessee, for the appellee, Centex Homes.

Judge: CAIN

Area residents' association filed a petition for a writ of certiorari, seeking judicial review of the Planning Commission of the Metropolitan Government of Nashville, Davidson County, Tennessee's revision to an existing residential Planned Unit Development. Respondents filed a motion for summary judgment based on the expiration of the statute of limitations. The trial court granted the motion and Petitioners appeal. The judgment of the trial court is reversed and the case is remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/mcmurrayhomeowners041906.pdf


SATURN CORPORATION v. RUTH JOHNSON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Frank N. Stockdale Carney, Katharine A. Jungkind, Memphis, Tennessee; Paul D. Krivacka, Nashville, Tennessee, for the appellant, Saturn Corporation.

Paul G. Summers, Attorney General and Reporter; Jonathan N. Wike, Assistant Attorney General; for the appellee, Rule Johnson, Commissioner of Revenue, State of Tennessee.

Judge: CAIN

Saturn Corporation appeals the Chancery Court's entry of summary judgment in the Commissioner's favor. Saturn filed its action in Chancery Court seeking a refund of a percentage of franchise and excise taxes paid in fiscal year 1999-2000. In this de novo review of the trial court's judgment, we hold that the exemption claimed does not apply to the taxpayer, that the exemption as applied does not violate the equal protection provisions of state and federal constitutions, and affirm the trial court's judgment in all respects.

http://www.tba2.org/tba_files/TCA/2006/saturn041906.pdf


STATE EX. REL. PAULA A. FLOWERS v. TENNESSEE TRUCKING ASSOCIATION SELF INSURANCE GROUP TRUST, ET. AL.

Court: TCA

Attorneys:

Roland M. Lowell, Nashville, Tennessee, for the appellants, Christenberry Trucking, Inc., DCI Transportation, LLC, Empire Express, Inc., Fineline Carriers, Inc., Ocoee River Transport, Inc., Specialized Transportation Services, Inc., and Western Express, Inc.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Sarah Ann Hiestand, Senior Counsel, Office of the Attorney General; Hugh O. Brock, Tennessee Department of Commerce and Insurance; and Renard A. Hirsch, for the appellee, State of Tennessee.

Judge: CLEMENT

Seven members of the Tennessee Trucking Association Self-Insurance Group Trust appeal the post-liquidation assessment against members of the self-insured group to fund a $2.8 million deficit. The self-insured group trust was declared insolvent in 2004 by the Chancery Court, following which the Commissioner of Commerce and Insurance was appointed Liquidator of the Trust. In the capacity of Liquidator, the Commissioner was responsible for administering the Trust, which included making assessments of the members of the Trust to satisfy its financial obligations. The appellants contend the assessment methodology employed by the Liquidator, which modified the proportionate financial obligations of the members, constituted an impermissible modification of the premium structure the members agreed upon. The trial court determined the only proscription upon making assessments was a requirement the methodology be equitable. Finding the methodology utilized by the Liquidator was equitable, the trial court approved the assessments. We affirm.

http://www.tba2.org/tba_files/TCA/2006/tenntruck041906.pdf


STATE OF TENNESSEE v. CHARLES EDWARD WILKERSON

Court: TCCA

Attorneys:

Shana Johnson, Somerville, Tennessee, for the appellant, Charles Edward Wilkerson.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Terry Dycus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Charles Edward Wilkerson, was charged in a three count indictment with possession of .5 grams or more of cocaine with the intent to deliver, evading arrest, and possession of drug paraphernalia. Prior to trial, the appellant pled guilty to evading arrest and possession of drug paraphernalia. After a jury trial, the appellant was found guilty of criminal responsibility for the facilitation of the possession of .5 grams or more of cocaine with the intent to deliver, a Class C felony. The appellant received a total effective sentence of three years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his facilitation conviction. After a review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/wilkersonc041906.pdf


TODAY'S NEWS

Legislative News
Election 2006
Legal News

Legislative News
Senate votes to oust Ford
The state Senate voted 26-6 this afternoon to unseat Sen. Ophelia Ford, accepting the recommendation of a committee that found her election "incurably uncertain," reports the Tennessean. Ford was not available for comment, but her lawyer has said in the past that she would file a new petition with the court if the Senate voted to oust her.

Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Election 2006
Supreme Court asked again to intervene in Knox County
Lawyer Herbert S. Moncier filed a motion Tuesday in the state Supreme Court on behalf of four plaintiffs, asking the court whether it is constitutional to hold an election in which disqualified candidates are on the ballot. Read more in the
Knoxville News Sentinel
Commissioners sue to stay on August ballot
Five Knox County commissioners today filed suit in chancery court to keep their names on the August general election ballot if they are nominated in next month's primary. According to the Knoxville News Sentinel, Commissioners Diane Jordan, David Collins, Billy Tindell, Phil Guthe and John Griess contend in the suit that Knox County did not properly adopt charter government in 1990, making the charter void and commissioners not subject to term limits.

Bar association releases poll results for two elections
The Rutherford-Cannon Bar Association recently polled area attorneys to determine their preferences in two judicial elections. Results show incumbent Circuit Court Judge James Clayton favored for re-election and candidate Toby Gilley favored for election as the new general sessions judge. Clayton, who is running as an independent, faces Republican Keith Siskin and Democrat Larry Trail. Gilley, who is a Democrat, is in a primary contest with Randall Bennett, Larry Brandon and Carla Ford. For more on the candidates see the
Murfreesboro Daily News Journal
Judicial candidates explain motivation
The candidates running to replace retiring Judge Ben Wexler as 3rd Judicial District Circuit Court Part II judge recently expounded on their reasons for seeking the position. In interviews with the Kingsport Times-New, Hawkins County Juvenile Court Judge Herb Holcomb and Greene County Sessions Judge Tom Wright explain why they want the job.
Read the interview with Holcomb
Read the interview with Wright
Legal News
Group says Judge Daughtrey made ethical mistake
The Washington, D.C.-based judicial watchdog group Community Rights Counsel cited six federal appellate judges, including Judge Martha Daughtrey of the 6th U.S. Circuit Court of Appeals, for alleged conflicts of interest based on stock ownership. According to the group, Daughtrey owned stock in JPMorgan Chase & Co. at the same time she ruled on a large stock fraud case involving the company. Daughtrey has responded that any conflict was inadvertent. As reported by the Tennessean, the group does not plan to file an official complaint but is seeking federal legislation requiring judges to post financial holdings in public places.
Read more
Knoxville judge elected to ABA position
Knoxville city court Judge John Rosson Jr. recently was elected to the executive committee of the American Bar Association's National Conference of Specialized Court Judges. He will also be chairing a committee seeking nominations for awards for leadership, education and technology. For nomination information, contact Judge Rosson at 865-522-2070 or jrosson@cityofknoxville.org

Law professors explore politics
Three University of Memphis law professors are standing for election this cycle. Steven Mulroy, an assistant professor who teaches civil rights and criminal procedure, is running for the Shelby County Commission. Lawrence Pivnick, who also serves as the law school's clinic director, is seeking the circuit court judgeship for Division 6 in Shelby County. And Lee Harris, an assistant professor who teaches contracts, corporations and social welfare policy, is hoping to replace U.S. Representative Harold Ford in the U.S. Congress. Read about their campaigns in the school's paper,
the Daily Helmsman
Sequatchie jailers go high-tech
Jailers at the new Sequatchie County Justice Center will be going from cell-door key rings, handwritten logs and a lot of legwork to touch screens, remote control and computerized booking, reports the Chattanooga Times Free Press.
Read about the upgrades
Public service day projects announced
The TBA Young Lawyers Division has announced the statewide public service projects for this year's Law Day. For a list of activities in your area, visit the
YLD's webpage

 
 
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