Dial in to great CLE seminars

The TennBarU Teleseminar series offers you the chance to hear leading national experts discuss timely topics from the convenience of your office or home. All TennBarU Teleseminars are broadcast via telephone at noon central time.

http://www.tba.org/TennBarU

  
TODAY'S OPINIONS: Tuesday, August 30, 2005
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. 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. 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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
THE CENTER FOR DIGESTIVE DISORDERS AND CLINICAL RESEARCH, P.C., v. RONALD J. CALISHER, Individually and NORMAN A. LAZERINE, Individually

Court: TCA

Attorneys:

John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee, for appellant.

G. Michael Luhowiak and Neil A. Brunetz, Chattanooga, Tennessee, for appellee, Norman A. Lazerine.

Sam D. Elliott, Chattanooga, Tennessee, for appellee, Ronald J. Calisher.

Judge: FRANKS

Plaintiff sued defendants alleging breach of contract and tortious conduct on the part of defendants resulting in damages to plaintiff. The Trial Court granted defendants summary judgment and plaintiff has appealed. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba.org/tba_files/TCA/2005/calisherr83005.pdf


IN RE ESTATE OF JEWELL TURNER, Deceased JOHN LECORNUv. DOLORES ARCHIE AND FREDE CLEMENTS

Court: TCA

Attorneys:

Larry A. Butler and Lisa A. Houston, Jackson, Tennessee, for the appellant, John LeCornu.

Jesse H. Ford, III, Jackson, Tennessee, for the appellees, Dolores Archie and Frede Clements.

Judge: KIRBY

This is a will contest. In May 2002, the decedent had a stroke at age ninety-five. She had nochildren, and the plaintiff nephew and the defendant niece and defendant nephew took over her care. The three parties established a conservatorship, became co-conservators, and placed thedecedent in a local nursing home. Later, the parties agreed to move the decedent to a nursing home closer to the defendants. Soon after the move, without informing the plaintiff, thedefendants brought a lawyer to the decedent so that she could draft a last will and testament. In October 2003, the decedent died. The decedentās will left her $550,000 residuary estate to thedefendants, and left only two pieces of furniture to the plaintiff. The plaintiff filed the instant petition to contest the will, alleging that the decedent was unduly influenced by the defendants.After a bench trial, the trial court upheld the will, concluding that the burden of proving undue influence had not been met. The plaintiff now appeals. We affirm, finding that the evidencesupports the trial courtās finding that the decedent received independent advice in the drafting of her will.

http://www.tba.org/tba_files/TCA/2005/lecornuj83005.pdf


STATE OF TENNESSEE v. MANDELL BENTON

Court: TCCA

Attorneys:

James F. Schaeffer, Jr., Memphis, Tennessee, for the appellant, Mandell Benton.

Paul G. Summers, Attorney General & Reporter, Renee W. Turner, Assistant Attorney General; and Michael Leavitt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Mandel Benton, who was originally charged with statutory rape, was convicted of attempted statutory rape. The trial court imposed a sentence of one hundred and eighty days to be served in the county jail. In this appeal, the defendant asserts that the evidence is insufficient to support the conviction. The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/2005/bentonm83005.pdf


STATE OF TENNESSEE v. CORTEZ D. HUBBARD

Court: TCCA

Attorneys:

Robert Wilson Jones, Chief Public Defender; and Phyllis Aluko, Assistant Public Defender, Memphis, Tennessee, for the Appellant, Cortez D. Hubbard.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Cortez D. Hubbard, appeals the sentencing decision of the Shelby County Criminal Court which resulted in the imposition of an effective eight-year sentence of incarceration. On appeal, Hubbard challenges the trial courtās denial of alternative sentencing. After review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/hubbardc83005.pdf


JAMES RIMMER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Juni S. Ganguli, Memphis, Tennessee, for the Appellant, James Rimmer.

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, James Rimmer, appeals from the Shelby County Criminal Courtās denial of his petition seeking post-conviction relief on the ground of ineffective assistance of counsel. After a thorough review of the issues and applicable law, we affirm the judgment of the lower court.

http://www.tba.org/tba_files/TCCA/2005/rimmerj83005.pdf


STATE OF TENNESSEE v. KEVIN SMITH

Court: TCCA

Attorneys:

George M. Googe, District Public Defender, and David H. Crichton, Assistant Public Defender, for the appellant, Kevin Smith.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Kevin Smith, was convicted of two counts of spousal rape and one count of aggravated assault, both Class C felonies. After merging the aggravated assault conviction with one of the spousal rape convictions, the trial court sentenced the defendant as a Range I, standard offender to six years for each rape conviction, to be served consecutively, for an effective sentence of twelve years. The issues on appeal are whether the trial court properly concluded that the defense would open the door for the victim to testify about the defendantās prior bad acts if asked why she did not resist the assault and whether the trial court properly sentenced the defendant. Following our review, we affirm the trial courtās judgments.

http://www.tba.org/tba_files/TCCA/2005/smithk83005.pdf


PAULA STALLINGS v. TACO BELL CORPORATION

Court: TWCA

Attorneys:

Robert O. Binkley, Jr., and James V. Thompson, Jackson, Tennessee, for the appellant Taco Bell Corporation.

David Hardee, Jackson, Tennessee, for the appellee Paula Stallings.

Judge: WEATHERFORD

This workersā compensation appeal has been referred to the Special Workersā Compensation Appeals Panel 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. In this case, the employee slipped and fell at work injuring her right arm. The employeeās medical expert testified she had developed reflex sympathetic dystrophy (RSD) in her right arm as a result of her on-the-job injury. The trial court found that she was ćpermanently disabled to the extent of 100% to the body as a whole.ä The employer contends that the trial court erred: 1) in finding that the employee developed RSD from the fall; and 2) in awarding benefits to the body as a whole instead of to the arm, a scheduled member. The employee contends that the judgment should be modified to find that the she sustained permanent and total disability as a result of her injuries. For the reasons as set out herein, we modify the trial courtās judgment to find that the employee is entitled to a permanent partial disability award for total loss of her right arm as a scheduled member.

http://www.tba.org/tba_files/TSC_WCP/2005/stallingsp83005.pdf


  PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the instructions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association