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

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.

ARETIES McKAMEY v. LOCKHEED MARTIN ENERGY SYSTEMS, INC., ET AL.

Court: TWCA

Attorneys:

Timothy W. Conner, Knoxville, Tennessee, for the appellants, Lockheed Martin Energy Systems, Inc. and Union Carbide Corporation.

Loring E. Justice, Knoxville, Tennessee, for the appellee, Areties McKamey.

Stephen P. Miller and Lisa A. Overall, Memphis, Tennessee, for amicus curiae, Tennessee Defense Lawyers' Association.

Rocky McElhaney, Nashville, Tennessee, for amicus curiae, Tennessee Association for Justice.

Judge: LEE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee had sustained a hearing loss as a result of exposure to noise during her work from 1944 to 1989 as a telephone operator for her employer, and awarded 50% permanent partial disability ("PPD") of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding on the issue of causation. Alternatively, it argues that the award is excessive. We reverse the judgment and dismiss the complaint.

http://www.tba2.org/tba_files/TSC_WCP/2010/mckameya_031210.pdf


ROBERT ALAN AUSTIN v. AMANDA YVETTE AUSTIN

Court: TCA

Attorneys:

Michael Keith Davis, Dunlap, Tennessee, for the appellant, Robert Alan Austin.

Kathryn R. Leiderman, Jasper, Tennessee, for the appellee, Amanda Yvette Austin.

Judge: COTTRELL

After the divorced mother of an eight year-old boy moved almost 100 miles away from the parents' home county, the father filed a petition to be designated as the child's primary residential parent in her place. The trial court found that there was no proof that the mother's move posed a threat of "specific and serious harm to the child," and accordingly concluded that the father did not meet the threshold requirement for modification of an established parenting arrangement. We reverse the trial court's order because a threat of specific and serious harm is not the correct standard to apply in modification proceedings. We find there was a material change of circumstances and remand for determination of the best interests of the child.

http://www.tba2.org/tba_files/TCA/2010/austinr_031210.pdf


STATE OF TENNESSEE v. VICTOR WAYNE BROWNING

Court: TCCA

Attorneys:

Glen R. Funk, Nashville, Tennessee, for the appellant, Victor Wayne Browning.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; John W. Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a bench trial, the Defendant, Victor Wayne Browning, was found guilty of assault, a Class A misdemeanor. See Tenn. Code Ann. section 39-13-101. He received a sentence of eleven months and twenty-nine days. The trial court ordered him to serve thirty days of his sentence in the Robertson County Jail, with the sentence thereafter to be suspended and the Defendant placed on supervised probation. In this direct appeal, the Defendant (1) challenges the sufficiency of the convicting evidence; (2) asserts that a sentence of thirty days confinement was improper; and (3) argues that the proof did not sufficiently establish the amount of restitution awarded and, furthermore, that the trial court did not consider the Defendant's financial resources or ability to pay as required by statute. After a review of the record, we conclude that the evidence is sufficient and that the trial court did not err in ordering the Defendant to serve thirty days in confinement. With regard to the order of restitution, we conclude that, while the amount of restitution ordered was properly established, remand is necessary for a determination of the Defendant's financial resources and his future ability to pay.

http://www.tba2.org/tba_files/TCCA/2010/browningv_031210.pdf


JOHNNY MENIFEE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ronald G. Freemon, Columbia, Tennessee, for the appellant, Johnny Menifee.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Johnny Menifee, was convicted in 2004 of Class D felony evading arrest with risk of injury, misdemeanor theft, Class E felony reckless endangerment with a deadly weapon, and resisting arrest. He received an effective sentence of eighteen years as a persistent offender. After his convictions and sentences were affirmed by this court in 2006, he filed a petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied the petition; and, after our review, we affirm that denial.

http://www.tba2.org/tba_files/TCCA/2010/menifeej_031210.pdf


STATE OF TENNESSEE v. GARY SCHWENDIMANN

Court: TCCA

Attorneys:

Donald W. Schwendimann, Hohenwald, Tennessee, for the appellant, Gary Schwendimann.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Ron Davis, District Attorney General, and Jeff Long, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

When a city worker was changing the water meter at Appellant's home, he discovered a second meter buried about two feet underground with two bypass pipes attached to the main water line. These two bypass pipes were installed in such a manner so that water coming to those two pipes would not be registered by Appellant's water meter as water consumption. The Lewis County Grand Jury indicted Appellant for one count of theft of services over $1,000. This charge was later amended to theft of services of $500 or less. After a jury trial, Appellant was convicted of theft of services of $500 or less, a Class A misdemeanor. Following a separate sentencing hearing, Appellant was sentenced to eleven months and twenty-nine days. He was ordered to serve five days in jail, five days on house arrest, and the remainder on probation. Appellant now appeals, arguing that the evidence is insufficient to support his conviction and that the State violated his due process rights by failing to turn over exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). After a thorough review of the record, we conclude that the evidence was sufficient and that there was no violation of the rules as set out in Brady. Therefore, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/schwendimanng_031210.pdf


Constitutionality of Tenn. Code Ann. Section 2-19-132

TN Attorney General Opinions

Date: 2010-03-12

Opinion Number: 10-30

http://www.tba2.org/tba_files/AG/2010/ag_10_30.pdf

Exceptions for Citations Under Tenn. Code Ann. Section 40-7-118

TN Attorney General Opinions

Date: 2010-03-12

Opinion Number: 10-31

http://www.tba2.org/tba_files/AG/2010/ag_10_31.pdf

Standards for Nursing Services in Residential Hospices

TN Attorney General Opinions

Date: 2010-03-12

Opinion Number: 10-32

http://www.tba2.org/tba_files/AG/2010/ag_10_32.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
New trial granted to death row inmate
The Tennessee Court of Criminal Appeals on Tuesday granted a new trial to a Memphis man convicted and sentenced to die in the fatal shooting of an off-duty city police officer. The court ruled that Timothy McKinney deserved a new trial because his lawyers presented such a weak defense that his constitutional right to competent counsel was violated. The Commercial Appeal reports.
Download the opinion
Ford won't testify as doctor changes plea to guilty
Dr. Roger Morgan, a psychologist who was set for trial Monday for allegedly lying to federal investigators in a case involving former state Sen. John Ford, has indicated he will plead guilty instead. Morgan was indicted for not being truthful about offering Ford a payoff in 2005 to pass a law that would have allowed psychologists to prescribe drugs. Ford recently had been moved to a Memphis prison leading to speculation he might testify in the case.
The Commercial Appeal has more
Suit claims CCA condones beatings
The American Civil Liberties Union has filed suit against Nashville-based Corrections Corporation of America, saying an Idaho prison run by the company is so violent it is known as "gladiator school" by inmates. The suit claims that guards deliberately expose inmates to brutal beatings from other prisoners as a management tool, and that injured inmates are denied medical care to save money and hide injuries.
Read more from the Tennessean
Annual report filing system upgraded
The Tennessee secretary of state's office has unveiled a new system that streamlines the online filing of annual reports. While businesses have been able to file online in the past, information still had to be keyed into a computer by state employees. The new system transfers the filing automatically to the office's database. The office predicts it will save staff time -- perhaps as much as $25,000 in overtime costs -- save $50,000 on printing and mailing, and reduce the volume of paper records.
Learn more here
Second Nashville law firm moves to Pinnacle
The Nashville office of Sherrard & Roe will move into the Pinnacle at Symphony Place, joining Bass Berry & Sims, which was one of the first tenants to occupy the building. Sherrard & Roe will occupy the 11th and 12th floors of the city's newest high-rise building, which is adjacent to the Nashville Symphony. While the firm was happy at its current location, the new building offered attractive features: attorneys would be on one floor, the floors could be accessed by an internal staircase and employees and clients would have expanded parking.
The Nashville Post reports
AG didn't reveal all legal papers to Senate
As part of last year's confirmation process for attorney general, then nominee Eric Holder submitted to the Senate Judiciary Committee legal papers he had signed or written while in private practice. Today, the Justice Department alerted the committee that seven cases in which Holder signed or filed legal briefs were inadvertently not disclosed. The documents have been provided, but Holder is sure to face questions about the oversight when he appears on Capitol Hill next week.
WTVC Channel 9 has this AP story
W. Va. court sticks with decision in Massey case
The West Virginia Supreme Court decided Thursday not to rehear the controversial $50 million case that sparked a nationwide debate about judicial recusal standards. In a 4-1 vote, the justices decided to let stand their decision to overturn a Boone County verdict in favor of Harman Mining. The Supreme Court heard the matter three times and ruled for Massey Energy each time.
Read more about the decision from LegalNewsline.com
Legislative News
Lawmakers seek to revive 'crack tax'
Tennessee lawmakers are trying to revive a state law taxing illegal drugs that the state Supreme Court declared unconstitutional last year for exceeding the state's taxing power. The measure, sponsored by Rep. Charles Curtiss, D-Sparta, and Sen. Randy McNally, R-Oak Ridge, would rewrite the law known as the "crack tax" to specifically target drug dealers. The pair believes the changes address concerns raised by the justices, while others predict another long and expensive legal battle over the proposal.
Tri-Cities.com has this AP story
Fashion copyright bill may get new life
U.S. Senator Charles Schumer, D-NY, and Harvard law professor Jeannie Suk are developing a fashion copyright bill that would give fashion houses and designers a right of action against the copying of their designs. Schumer first introduced legislation on the issue in 2007, but differences in opinion over how similar an article of clothing must be to another before being considered a "knockoff" has kept the bill from moving. Suk, who authored "The Law, Culture, and Economics of Fashion" in the Stanford Law Review last year, is considered an expert on the subject and likely to unite the parties around one legislative proposal.
The ABA Journal has the story
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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