Tag Archives: ruling

Mosque Ruling Brings No Cheers from Open Government Advocates

By Travis Loller, Associated Press
NASHVILLE, Tenn. — A court ruling that sets higher standards for a central component of the Tennessee’s open meetings law hasn’t drawn loud cheers from government transparency advocates.
In part that’s because the legal effort to stop construction of a mosque in Rutherford County is widely seen as being driven by fear of Muslims. But some good government groups also think the county government didn’t do anything wrong.
Rutherford County Chancellor Robert Corlew ruled May 29 that county officials violated the state’s Sunshine Law by not providing adequate public notice of the meeting where the Islamic Center of Murfreesboro’s new building was approved.
Corlew’s order does not require greater notice for all meetings in Rutherford County or even all meetings of the Planning Commission but specifically refers to meetings that involve either the Islamic Center or “further matters of significant public interest.”

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Supremes OK Award in PTSD Worker’s Comp Case

News release from Administrative Office of the Courts:
Nashville, Tenn. – In a unanimous opinion, the Tennessee Supreme Court ruled that the statute of limitations on a workers’ compensation claim does not begin to run until an employee discovers or, in the exercise of reasonable diligence, should have discovered that he has a claim.
On June 23, 2008, Steven Ratliff was diagnosed with Post-Traumatic Stress Disorder (PTSD) caused by viewing bodies of two co-workers who died in separate workplace accidents earlier that year. Exactly one year after the diagnosis, Ratliff requested a benefit review conference. The employer, Gerdau Ameristeel, Inc., argued that the statute of limitations began to run from the date of the second accident and that the claim was barred. Ratliff contended that the statute of limitations did not begin to run until his diagnosis date. The trial court agreed with employer. However, the trial court determined that Ratliff could not have discovered his injury until his diagnosis and if the statute of limitations did not bar his claim, Ratliff was entitled to an award of 20 percent permanent partial disability.
Today, the Court reversed the trial court’s decision, holding that the statute of limitations began to run on the date of the accident but was tolled until Ratliff discovered his injury. The statute of limitations therefore does not bar Ratliff’s claim because the trial court found that Ratliff could not have discovered his injury prior to his diagnosis. The case is remanded for entry of a judgment awarding Ratliff permanent partial disability consistent with the trial court’s alternative findings.
To read the Gerdau Ameristeel, Inc. v. Steven Ratliff opinion authored by Justice Janice M. Holder, visit http://www.tncourts.gov/sites/default/files/gerdauopn.pdf.

Court Agrees to Expedite Appeal of Breeding Candidacy Case

The Tennessee Court of Appeals today approved a fast-track schedule for Shelley Breeding’s appeal of a lower-court ruling that prevents her from running as a Knox County candidate for the General Assembly, reports the News Sentinel.
But the case could still go directly to the Tennessee Supreme Court, if Breeding’s lawyers ask the higher court to intercede and it does so. Her lawyers are contemplating making such a request.
Breeding wants to run as a Democrat in the newly formed 89th House District, which lies entirely in Knox County.
KGIS maps show that part of her residential property, including all of her house, is in Anderson County, while her mailbox and driveway are in Knox County.
A chancellor recently held she is legally an Anderson County resident and cannot run from Knox County.
Today the Court of Appeals said it would expedite its appeals process in the case, and ordered all briefs filed no later than June 8.

Judge Promises Quick Ruling in Knox Candidacy Case — Maybe

A Chattanooga judge has promised a quick decision in the Shelley Breeding residency case — if he first decides he has the jurisdiction to do so.
From Jim Balloch’s report:
At the start of Wednesday’s hearing on the Democrat hopeful’s qualification to run for the new 89th House District seat in Knox County, Hamilton County Chancellor W. Frank Brown gave lawyers copies of a Tennessee Supreme Court decision that raises the jurisdiction issue.
Lawyers have stipulated a number of facts and exhibits in the case. Brown heard oral arguments so he will be prepared to rule if he decides he can. He told lawyers to file any more briefs filed by Friday, so he can make a decision “very, very quickly” thereafter
. “If she gets on the ballot, our work is over,” said Breeding’s led lawyer, Bill Stokes. “If she doesn’t, then we’ve got a lot more work to do.”
Stokes said the jurisdictional issue is if a judge can rule on a local election commission matter that the commission has not voted on.
“The only fair thing to do is to put her on the ballot,” Stokes’ fellow attorney Jon Cope told the judge. In the meantime, Breeding’s campaign plans are in limbo. She said she is “tentatively trying to plan” fundraising activities.

Supreme Ruling Eases Rules for Homeowner Lawuits Against Contractors

KNOXVILLE, Tenn. (AP) — A ruling from the Tennessee Supreme Court has made it easier for homeowners to hold contractors responsible for shoddy work by subcontractors.
The court has found that contractors have a duty to perform services in a “careful, skillful, diligent and workmanlike manner” that can’t be fully delegated to another contractor they hire.
The 5-0 ruling in a case from Chattanooga over a botched roof repair job that caused a fire could have broad implications for homeowners and contractors because most home construction and repair work involves bringing in subcontractors to handle parts of the job.
The opinion written by Justice Gary Wade and released last week said this was the first time the state Supreme Court had taken up the issue of whether a contractor was absolved from liability under the contract by hiring a subcontractor.
The case began when Robert and Joanie Emerson signed a contract with Winters Roofing Co. to replace a roof. Company owner Martin Winters subcontracted out the work. When the Emersons complained that the new roof leaked, Winters brought in a different subcontractor for repairs.
The subcontractor used a propane torch on the roof and a few hours later the house caught fire. A fire investigator for the insurance company concluded the open flame roofing work started the fire, which caused more than $870,000 in damages to the home on Sept. 26, 2007.
Neither Winters nor the subcontractor had liability insurance, although Winters tried to obtain it the day after the fire and then filed a claim that said the fire happened seven days later, the ruling said.
The Emersons’ insurance company sued Winters, who argued that he wasn’t at the site while the subcontractor was working and wasn’t responsible for his mistakes.
The trial court dismissed the lawsuit, saying the couple’s insurance company couldn’t recover damages because the fire wasn’t a foreseeable part of the contract. It also said that the only way Winters could be held responsible was if it was shown that he was negligent in his hiring or supervision of the subcontractor.
Last year the Tennessee Court of Appeals overturned that decision.
“The defendant had an implied duty to perform the services required by his contract with the Emersons in a careful, skillful, diligent, and workmanlike manner,” the Supreme Court ruling says.
It concluded that while Winters had lawfully delegated his responsibility to install a proper roof to the subcontractors, he still was liable for the shoddy work.

Supreme Court Rules Against Alimony in Controversial Case

News release from Administrative Office of the Courts:
Nashville, Tenn. – The Tennessee Supreme Court today issued an opinion reversing the Court of Appeals’ decision to award lifetime and lump-sum alimony support to a divorced spouse who is in good health, has a well-paying job and received significant property assets in the divorce.
In 2009, Johanna Gonsewski and Craig Gonsewski were granted a divorce after 21 years of marriage. Both spouses were college educated and held well-paying jobs. The trial court divided the marital property between the two parties, awarding slightly more than half to Johanna Gonsewski, but denied spousal support and the payment of attorneys’ fees to either spouse.
On appeal, the Court of Appeals reversed the trial court’s judgment regarding spousal support and awarded Johanna Gonsewski $1,250 per month in alimony until her death or remarriage. Additionally, the Court of Appeals awarded the wife lump-sum alimony to cover her attorneys’ fees and expenses for both the trial and appeal.
In its unanimous opinion, the Supreme Court determined the award of lifetime alimony and attorneys’ fees to be inappropriate because Johanna Gonsewski held a stable job, earned considerable income, and was awarded a significant amount of assets in the division of property.
The Court recognized that, although Craig Gonsewski’s income was historically greater than Johanna Gonsewski’s in recent years, both parties were likely to suffer some reduction in lifestyle following the divorce. Rejecting the wife’s claim that she was entitled to exactly the same standard of living after the divorce as before, Chief Justice Cornelia A. Clark wrote that, “in many instances, the parties’ assets and incomes simply will not permit them to achieve the same standard of living after the divorce as they enjoyed during the marriage.”
The Supreme Court also held that Johanna Gonsewski was not entitled to the lump-sum alimony award of her attorney fees because she was partially responsible for generating the fees and had the financial resources to pay them.
The Supreme Court determined that the trial court was correct in denying transitional alimony, because Johanna Gonsewski had received temporary spousal support in the 16 months leading up to the divorce and, with her share of the marital assets and her income, had sufficient financial resources to establish her separate household.
The opinion also emphasized that the trial courts have broad discretion in awarding alimony, stating that “an appellate court should not reverse a trial court’s alimony decision unless the trial court has abused its discretion.” In the Supreme Court’s view, the trial court did not abuse its discretion in this case when it decided to award no alimony to either party, and reinstated the judgment of the trial court.
In its opinion, the Court also reiterated the guidelines for awarding the four types of spousal support – alimony in futuro, which provides spousal support until remarriage or death; alimony in solido, long-term support that is paid in lump sums or installments; rehabilitative alimony, intended to provide training or support to help the spouse achieve a comparable standard of living; and transitional alimony, short-term support that helps the spouse adjust to the divorce.
Writing for the Court, Clark emphasized that “the statutory framework for spousal support reflects a legislative preference favoring short-term spousal support over long-term spousal support, with the aim being to rehabilitate a spouse who is economically disadvantaged relative to the other spouse and achieve self-sufficiency where possible.”
Students attending Girls State heard the oral arguments in the case as part of the SCALES Program, which stands for Supreme Court Advancing Legal Education of Students. This was the first time the Supreme Court brought the SCALES Program to Girls State, which was held at Lipscomb University in June.

Previous post HERE.

Dept. of Revenue Rulings ‘Secretly Twisting the Tax Code?’

News Sentinel Editor Jack McElroy offers some thoughts on the secrecy surrounding Amazon’s dealings with the state on tax collections and the Department of Revenue’s private letter ruling policy.
An excerpt:
In fact, a legal agreement apparently does exist between the state and Amazon, a document called a “private letter ruling,” which was issued to the retailer by the state Department of Revenue.
What it says, though, we citizens don’t know. Details of private letter rulings — such as who’s involved — are secret.
There’s a reason for that. Private letter rulings are confidential communications between taxing authorities and individual taxpayers about their tax liability. As the name says, they are private, just as tax returns are.
Often such rulings occur at the federal level. A taxpayer can request a private letter ruling to find out how the IRS will treat a particular transaction. The IRS website explains:
“A private letter ruling, or PLR, is a written statement issued to a taxpayer that interprets and applies tax laws to the taxpayer’s specific set of facts.”
The key word there is “laws.” A PLR interprets and applies the laws; it doesn’t rewrite or bend them to make special deals go through.
Stop and think. How it would be if the IRS based its interpretation of the tax code on handshake deals the president made with individual companies?
Yet that, apparently, is what has happened in Tennessee. One governor, Bredesen, promised Amazon a favorable tax ruling, and the revenue commissioner delivered. Now another governor, Haslam, wants to renegotiate that ruling, perhaps by limiting it to a few years
But how can the law be open to such negotiations?
…Secretly twisting the tax code to benefit one company is a bad approach to business recruiting, and one that ultimately will prove destructive.

Judge Rules in Favor of Memphis Schools Merger

From the Commercial Appeal:
A federal judge ended the first round of the school-consolidation legal battle Monday by ruling that the Memphis City Schools charter was properly surrendered in February and that the current all-suburban-member Shelby County Board of Education is unconstitutional because it lacks Memphis representation.
U.S. District Court Judge Samuel “Hardy” Mays also ruled valid a new state law, known as Norris-Todd, aimed at guiding the merger of MCS and Shelby County Schools with the appointment of a 21-member transition committee.
Mays said consolidation must be completed in time for the beginning of the 2013-14 school year. MCS and SCS currently have about 150,000 enrolled students combined.
Mays directed the parties involved in the lawsuit — MCS, SCS, the Shelby County Commission, the Memphis City Council, the city of Memphis and the Tennessee Department of Education — to submit by Friday ideas about how to create a countywide school board giving Memphis proportional representation. Mays will discuss the case with the parties today. SCS filed the lawsuit in February.
See also Jackson Baker, who observes the judge follows the exact timetable set for the merger in legislation passed by the General Assembly earlier this year and known as the Norris-Todd law.