Friday, February 24th, 2012

 
 

Mashburn Sworn In to Bankruptcy Bench

Family, friends and colleagues gathered in Nashville this afternoon for the investiture of Randal Mashburn as U.S. Bankruptcy Judge for the Middle District of Tennessee. Mashburn, who had practiced at Baker, Donelson, Bearman, Caldwell & Berkowitz PC in Nashville, was given the oath by the Hon. Keith Lundin, Chief U.S. Bankruptcy Judge for Middle District of Tennessee. Presentations were made by TBA President-Elect Jackie Dixon and Robert Mendes, immediate past president of the Nashville Bar Association. See photos from the event

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.

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









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.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. TYESHIA STEWART

Court: TN Court of Criminal Appeals

Attorneys:

Bruce E. Poston and Jamie Poston, Knoxville, Tennessee, for the appellant, Tyeshia Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant was convicted in a jury trial of voluntary manslaughter, a Class C felony, for killing her boyfriend following an altercation. She was sentenced as a Range I, standard offender to six years, split one year in jail with the balance to be served on probation. The defendant now appeals her conviction and sentence, claiming that the evidence was insufficient to support her conviction and that the trial court erred by failing to sentence her to the minimum sentence. After carefully reviewing the record and the arguments of the parties, we affirm the judgment of the trial court.


CHRIS ALLEN DYKES v. DAVID A. SEXTON, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Chris Allen Dykes, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel West Harmon, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Chris Allen Dykes, appeals as of right from the Johnson County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends (1) that the habeas corpus court erred by dismissing his petition on procedural grounds and (2) that the judgments against him are void because they reflect a conviction of criminal responsibility for first degree murder when he was indicted for criminal responsibility for attempted first degree murder. Following our review, we conclude that the habeas corpus court erred by summarily dismissing the petition on the grounds stated in its order. However, we affirm the summary dismissal based upon other grounds stated in this opinion.


GERALD LEE POWERS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Donald E. Dawson, Joanne L. Diamond, and Kertyssa Austin, Office of the Post-Conviction Defender, Nashville, Tennessee, for the appellant, Gerald Lee Powers.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Gerald Lee Powers, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. In 1998, he was convicted of first degree felony murder and aggravated robbery. His convictions and death sentence were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Powers, 101 S.W.3d 383, 387 (Tenn. 2003), cert. denied, 538 U.S. 1038, 123 S. Ct. 2083 (2003). On appeal, the petitioner presents a number of issues: trial counsel were ineffective in selection of jurors; the trial court erred in not allowing individual voir dire and limiting counsel’s voir dire questioning; trial counsel were ineffective because they had excessive caseloads and did not object to long trial days; trial counsel failed to investigate certain evidence; trial counsel were ineffective as to expert witnesses; trial counsel were ineffective in presentation of other suspects to the homicide; trial counsel were ineffective in their witness interviews and failed to locate certain relevant witnesses; the trial court erred in instructing the jury as to reasonable doubt; the State failed to produce exculpatory evidence and to preserve certain evidence; the trial court should have disqualified itself; trial counsel failed to object to the applicability of Tennessee Code Annotated section 39-13-204(c); and imposition of the death penalty is unconstitutional. We have carefully reviewed each of these claims and conclude, as did the post-conviction court, that they are without merit. Accordingly, we affirm the order of that court denying the petition for post-conviction relief.


KHALFANI S. MARION v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Khalfani S. Marion, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Gregg Carman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, Khalfani Marion, appeals the summary dismissal of his petition for post-conviction relief, arguing that he should have been afforded an evidentiary hearing to consider whether due process tolled the statute of limitations in his case. The State concedes that an evidentiary hearing should have been held to determine whether the statute of limitations should be tolled due to the petitioner’s trial counsel’s having failed to timely inform him of our supreme court’s denial of his application for permission to appeal. We agree. Accordingly, we reverse the summary dismissal of the petition and remand for an evidentiary hearing to determine whether the circumstances require that the statute of limitations be tolled in this case.


KENNETH FORD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Kenneth Ford, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

A Madison County Jury convicted Petitioner of three counts of aggravated assault and one count of reckless endangerment resulting from an altercation Petitioner had with his live-in girlfriend and her three daughters. State v. Kenneth Ford, No. W2007-02149-CCA-R3-CD, 2009 WL 1034522, at *1-3 (Tenn. Crim. App., at Jackson, Apr. 17, 2009). The trial court sentenced Petitioner to an effective sentence of twenty-two years. Id. at *3. Petitioner was unsuccessful in his direct appeal of his sentence to this Court. Id. at *1. Petitioner filed a timely petition for post-conviction relief arguing that he was afforded the ineffective assistance of counsel. The post-conviction court held a hearing and denied the petition. Petitioner now appeals the denial of his petition. After a thorough review of the record, we determine that the evidence does not preponderate against the post-conviction court’s findings. In addition, several issues raised by Petitioner were not raised in front of the postconviction court. In addition they were not raised during direct appeal but could have been and are now waived; or were addressed on direct appeal. Therefore, we affirm the denial of the petition.


MARIO THOMAS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Mario Thomas, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Benjamin A. Ball, Assistant Attorney General for the Appellee, State of Tennessee.

Judge: PAGE

The Petitioner, Mario Thomas, appeals the Obion County Circuit Court’s denial of his motion to reopen post-conviction proceedings. The State has filed a motion requesting that this Court affirm the post-conviction court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the post-conviction court.


TN Court of Appeals

CHRISTA GODDARD v. THOMAS E. GODDARD

Court: TN Court of Appeals

Attorneys:

Lisa Z. Bowman, Chattanooga, Tennessee, for the appellant, Thomas E. Goddard.

J. Christopher Clem, Chattanooga, Tennessee, for the appellee, Christa Goddard.

Judge: SUSANO

This is a post-divorce case. Thomas E. Goddard (“Father”) appeals the trial court’s order granting Christa Goddard (“Mother”) permission to move to Florida with the parties’ minor child, Emma Elizabeth (DOB: July 1, 2004)(“the Child”). Based upon finding that Mother was spending the greater amount of time with the Child, the court applied Tenn. Code Ann. § 36-6-108(d)(1)(2010). The court found that the proposed relocation (1) had a reasonable purpose, (2) posed no threat of specific and serious harm to the Child, and (3) was not motivated by a vindictive effort to defeat Father’s parenting rights. Father appeals. We affirm.


IN RE REBEKAH R.W.

Court: TN Court of Appeals

Attorneys:

Barry K. Maxwell, Madisonville, Tennessee, for the appellant, Perley W., Jr.

Peter Alliman, Madisonville, Tennessee, for the appellee, Arlin H. and Emma H.

Judge: SUSANO

Perley W. Jr., (“Father”) appeals the termination of his rights to his minor daughter, Rebekah R.W. (DOB: Oct. 7, 2005) (“the Child”). The petition to terminate was filed by Arlin H. and Emma H. (collectively “the Grandparents”), the Child’s maternal grandparents, who were the Child’s temporary custodians. At the time of the bench trial, Father was serving an effective 40-year prison sentence pursuant to two convictions for attempted murder and a conviction for attempted aggravated arson. The court terminated Father’s rights based upon the ground that Father was incarcerated under a sentence of ten or more years while the Child was under eight years of age, and its finding that termination was in the best interest of the Child. Father appeals the trial court’s best interest determination. Finding no error, we affirm the judgment.


WILSON SPORTING GOODS CO. v. U.S. GOLF & TENNIS CENTERS, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Henry D. Fincher, Cookeville, Tennessee, for the appellants, U.S. Golf & Tennis Centers, Inc., Arthur H. Bell, and Louise Bell.

Frederick L. Conrad, Jr., Knoxville, Tennessee, for the appellee, Wilson Sporting Goods Co.

Judge: SUSANO

Wilson Sporting Goods Company brought suit in the Cumberland County General Sessions Court on an open account against U.S. Golf & Tennis Centers, Inc. (“the Company”) and its owners, Arthur H. Bell and Louise Bell (collectively “the Guarantors”). The account resulted from a large shipment of golf balls. After delivery, the Company questioned the price charged and refused and failed to make any payments. In response to Wilson’s suit, the defendants filed a counterclaim in which they denied owing the amount sought and moved the court to modify or rescind the contract with Wilson. Following a bench trial, the general sessions court entered judgment in favor of Wilson. On appeal to the trial court, both sides sought summary judgment; both motions were denied. After a bench trial, the court entered judgment in favor of Wilson for $33,099.28. The defendants appeal. We affirm.


DAVIS JEREMY USELTON v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TN Court of Appeals

Attorneys:

Davis Jeremy Uselton, Clifton, Tennessee, Pro Se.

J. Lee Pope, Office of Attorney General & Reporter, for the appellee, Tennessee Department of Correction. Attorney 3: James I. Pentecost, Jackson, Tennessee, for the appellee, Corrections Corporation of America.

Judge: PER CURIAM

This is an appeal from a final judgment dismissing an inmate’s petition for common law writ of certiorari. Because the inmate did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.


SHAWN HARRIS v. TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Court: TN Court of Appeals

Attorneys:

Shawn Harris, Only, Tennessee, Pro Se.

Arthur Crownover, Office of the Attorney General, for the appellee, Tennessee Department of Correction.

Judge: PER CURIAM

This is an appeal from a final judgment dismissing an inmate’s petition for writ of certiorari. Because the inmate did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.


TN Supreme Court

CALVIN GRAY MILLS, JR. ET AL. v. FULMARQUE, INC.
With dissenting opinion.

Court: TN Supreme Court

Attorneys:

Andrew H. Owens, Memphis, Tennessee, for the appellant, Fulmarque, Inc.

Irma Merrill Stratton, Memphis, Tennessee, and J. Houston Gordon, Covington, Tennessee, for the appellees, Calvin Gray Mills, Jr. and Linda Mills.

Judge: CLARK

We accepted this appeal to determine whether the phrase “a defendant named . . . within the applicable statute of limitations” in Tennessee Code Annotated section 20-1-119(a) (2009) refers only to a defendant sued within the statute of limitations applicable to the plaintiff’s claim or also refers to defendants not sued within the statute of limitations applicable to the plaintiff’s claim, but added to the lawsuit during the ninety-day period provided by section 20-1-119(a). Whether section 20-1-119(a) affords successive ninety-day windows during which a plaintiff may amend a complaint to add a new nonparty defendant as a comparative tortfeasor is an issue of first impression. Because we answer that question in the negative, we reverse the Court of Appeals and reinstate the judgment of the trial court granting Fulmarque’s motion for summary judgment and dismissing this action.


Harwell Not Sure 'Don't Say Gay' is Needed

House Speaker Beth Harwell said Thursday that she and her colleagues are looking closer at the "Don't Say Gay" bill, and reviewing the current curriculum "to see if this bill is necessary or if we have unintended consequences with this." Gov. Haslam also told reporters earlier this week he'd prefer that the issue just be dropped. The News Sentinel has this AP story.


Knox Commissioners to Ask Legislators to Open Baumgartner Records

Knox County commissioners on Monday are expected to adopt a resolution asking state leaders to request the case files about former Criminal Court Judge Richard Baumgartner. Then, commissioners say, they hope officials will enact legislation that removes exemption for closed Tennessee Bureau of Investigation files "in matters considered to be of great public importance." The News Sentinel reports.


Supreme Court Grants Review to Six Cases

Five cases granted review by the Tennessee Supreme Court this week involve criminal issues, including two Fourth Amendment cases, a statute of limitations question, a technical application of certified questions, and a case involving improper juror communication. One civil case involves termination of parental rights. The Raybin-Perky Hot List reviews them.


Edwards' Sex Tape Destroyed Per Settlement

The sex tape of John Edwards and Rielle Hunter will be shredded, as they and the couple who found it claimed to be getting what they wanted from a legal settlement signed Thursday to end a two-year legal battle. A long list of criminal charges still hangs over the former presidential candidate, tied to the extramarital affair that ended his political career. WKRN has the AP story.


Andrews Asks for Stay in Secret Video Suit

ESPN sideline reporter Erin Andrews has requested a stay of her Davidson County lawsuit against the Nashville Marriott at Vanderbilt University, where she was unknowingly videotaped nude in 2008 by convicted stalker Michael Barrett. In response, the hotel’s owners have accused Andrews of forum shopping. The Tennessean reports.


Class Action Over Denial of Autism Treatment May Proceed

The U.S. Court of Appeals for the 6th Circuit ruled today that a class action against Blue Cross Blue Shield of Michigan over the company's denial of a particular therapy for autism can move ahead.  The plaintiffs initially sued Blue Cross in 2010 for reimbursement for what is known as Applied Behavior Analysis therapy, under the Employee Retirement Income Security Act of 1974 (ERISA). They also sought a court ruling that they're entitled to future coverage for the therapy costs. The National Law Journal has the details.


Thomas Wiseman: Like Father, Like Son

Nashville lawyer Thomas Wiseman says that he always admired what his father did and wanted to follow in his footsteps. He watched his father, Thomas A. Wiseman Jr., now a Nashville federal court judge, work on all types of cases, from murder to divorce to car accident cases as a general civil/criminal attorney, and this gave the younger Wiseman the drive to be an attorney, too. Read about him in the Tennessean.


Editorial: Haslam Plan is ‘Sensible’

An editorial in the Times Free Press endorses the “sensible plans” proposed by Gov. Bill Haslam to stem the state’s troubling issues of violent crime and the use of illegal drugs. Read the editorial.


Correction

An item in Wednesday's issue of TBA Today incorrectly identified the firm of Lisa A. Tomlinson, who recently was elected secretary of the 15th Judicial Bar Association. Tomlinson practices in Lebanon with the firm of MacPherson & Youmans PC.


 
 

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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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