Tuesday, February 28th, 2012

 
 

Onsite CLE Available 7 to 7 on Wednesday

Need a few CLE hours fast? The Tennessee Bar Association is offering programs from 7 a.m. to 7 p.m. on Wednesday. The Mid-Winter CLE Blast will offer 11 hours of dual CLE credit. Take as many or as few hours as you need. The registration desk will be open all day. Learn more from TennBarU.

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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
05 - TN Court of Criminal Appeals
12 - 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 Supreme Court

ROGER DALE WILLIAMSON v. BAPTIST HOSPITAL OF COCKE COUNTY, INC.

Court: TN Supreme Court

Attorneys:

James M. Davis, Morristown, Tennessee, for the appellant, Roger Dale Williamson.

Reuben N. Pelot, IV, Knoxville, Tennessee, for the appellee, Baptist Hospital of Cocke County, Inc.

Judge: WADE

The employee, a certified nursing assistant, sustained an injury to his shoulder while moving a patient. Six months later, the employee returned to work with significant restrictions on the use of his right arm. After two weeks of on-the-job training as a phlebotomist, which offered a higher pay grade, the employee notified the employer of his resignation, believing that he would be unable to handle the duties associated with his new position. When he made a claim for workers’ compensation benefits, the trial court, accrediting the testimony of the employee, held that he did not have a meaningful return to work and applied a multiplier of six to the assigned impairment rating. A special workers’ compensation panel reversed, concluding that the evidence preponderated against the trial court’s ruling that the employee had not made a meaningful return to work and reducing the award to one-and-one-half times the impairment rating. Because the evidence demonstrates that the employee did have a meaningful return to work, the judgment of the panel is affirmed.


TN Workers Comp Appeals

TIMOTHY D. CUNNINGHAM v. CITY OF SAVANNAH, TENNESSEE ET AL.

Court: TN Workers Comp Appeals

Attorneys:

John D. Burleson and James V. Thompson, Jackson, Tennessee, for the appellants, City of Savannah, Tennessee, and Savannah Police Department.

Curtis F. Hopper, Savannah, Tennessee, for the appellee, Timothy D. Cunningham.

Judge: HOLDER

The employee, an undercover drug investigator for the City of Savannah, alleged that he sustained a heart attack as a result of a physical confrontation with a suspect on March 2, 2005, during which he experienced tightness in his chest and shortness of breath. He experienced pressure in his chest and low energy but continued to work the following two days. On March 5, while engaged in activities unrelated to his job, he experienced nausea, profuse sweating, and severe pain in his chest, jaw, and left arm. His wife took him to a hospital emergency room where he was treated for an acute myocardial infarction. At trial, one of his treating physicians testified that the heart attack began on March 2 and continued until March 5. A second treating physician and an evaluating physician testified that the March 2 incident did not cause the March 5 heart attack. The trial court found that the heart attack began on March 2, and the employer appealed. On appeal, the employer 1 contends that the trial court erred in finding that the statutory presumption had not been overcome, erred in concluding that employee’s heart attack began on March 2, 2005, and erred by finding that employee’s heart attack was causally related to his employment. Although we agree that the trial court erred in its application of the statutory presumption, we affirm the judgment of the trial court.


TN Court of Appeals

EDITH WENCZL SIMPKINS v. OTTO KENT SIMPKINS

Court: TN Court of Appeals

Attorneys:

D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for the appellant, Otto Kent Simpkins.

Rose Palermo and Elizabeth G. Tannenbaum, Nashville, Tennessee, for the appellee, Edith Wenczl Simpkins.

Judge: CLEMENT

Husband appeals his conviction of fourteen counts of criminal contempt for violations of the Marital Dissolution Agreement and the imposition of fourteen consecutive ten-day sentences for a total of 140 days in jail. Husband also appeals an award of attorney’s fees to Wife. We affirm the award of attorney’s fees to Wife and the finding that Husband was guilty of fourteen separate counts of criminal contempt; however, we find the imposition of the maximum sentence was excessive and employ our authority under Thigpen v. Thigpen, 874 S.W.2d 51, 54 (Tenn. Ct. App. 1993) to modify the sentence. Applying contempt sentencing principles found in In re Sneed, 302 S.W.3d 825 (Tenn. 2010) and sentencing considerations under Tennessee Code Annotated § 40-35-103 and 115(b), the sentences for twelve of the counts are reduced to four (4) days each, which will run consecutive to each other, the sentences for the two remaining counts are reduced to one (1) day each, which will run concurrent to each other but consecutive to the other twelve counts for an effective sentence of forty-nine (49) days. We also award Wife her reasonable attorney’s fees on appeal pursuant to the enforcement provision contained in the parties’ marital dissolution agreement.


IN RE TREASURE D. I.

Court: TN Court of Appeals

Attorneys:

Eric James Jackson, Knoxville, Tennessee, pro se.

Roberta I., Knoxville, Tennessee, pro se.

Judge: MCCLARTY

This appeal involves a child support arrearage. The father sought a retroactive modification of the child support order and forgiveness of the arrearage upon learning that he was not the biological father of the child. The trial court held that it was impermissible to modify the valid child support order. The father appeals. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE V. JOSHUA DANIEL BROOKSHIRE

Court: TN Court of Criminal Appeals

Attorneys:

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee, Assistant District Public Defender (on appeal); and Blake Murchison, Assistant District Public Defender (at trial), Chattanooga, Tennessee, for the appellant, Joshua Daniel Brookshire.

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney General; Bill Cox, District Attorney General; Brian Finlay, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: BIVINS

Joshua Daniel Brookshire (“the Defendant”) pled guilty to five counts of burglary of an automobile and entered nolo contendere pleas to two additional counts of burglary of an automobile. The trial court sentenced the Defendant as a Range I offender to concurrent terms of two years to serve in the Tennessee Department of Correction on each of the seven counts. The Defendant then reached his determinate release date and was released onto supervised probation. Subsequently, a probation revocation warrant was issued alleging that the Defendant had violated his probation by committing new driving offenses, changing residences without informing his probation officer, failing to report, failing to obtain permission to leave his county of residence, and failing to pay his probation fees. The Defendant was taken into custody, and the trial court later conducted a revocation hearing. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve his remaining sentence in confinement. The Defendant has appealed the trial court’s ruling. Upon our careful review of the record, we affirm the trial court’s judgment.


BENJAMIN ASHLEY RAY DICKENS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Benjamin Ashley Ray Dickens.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, D. Paul DeWitt and Dan Hamm, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury found the Petitioner, Benjamin Ashley Ray Dickens, guilty of first degree felony murder, and the trial court sentenced him to life imprisonment in the Tennessee Department of Correction. The Petitioner appealed, and this Court affirmed the conviction in State v. Benjamin Ashley Ray Dickens, No. M2006-01697-CCA-R3-CD, 2007 WL 1988024, at *4 (Tenn. Crim. App., at Nashville, May 28, 2003), perm. app. denied (Tenn. Nov. 19, 2007). The Petitioner filed a petition for post-conviction relief and filed two subsequent amended petitions. After the post-conviction court held an evidentiary hearing, it dismissed the petition. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because he received the ineffective assistance of counsel at trial, and he further argues that the State made improper arguments during its closing argument, amounting to prosecutorial misconduct. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.


ROGER DALE HARRIS v. DAVID SEXTON, WARDEN AND STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Roger Dale Harris, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Roger Dale Harris, appeals the Johnson County Criminal Court’s denial of his petition for habeas corpus relief from his 1991 conviction for first degree murder and resulting sentence of life imprisonment. He contends that the conviction is void because of a defective indictment and that the trial judge should have recused himself. The State has moved this court to affirm the trial court’s denial of relief by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The State’s motion for a memorandum opinion is granted, and the judgment of the trial court is affirmed.


STATE OF TENNESSEE v. MARCELL JERMAINE MARBURY

Court: TN Court of Criminal Appeals

Attorneys:

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee (on appeal) and Blake F. Murchison (at hearing), Assistant Public Defenders, Chattanooga, Tennessee, for the appellant, Marcell Jermaine Marbury.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; William H. Cox, III, District Attorney General; and William H. Hall, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In September 2006, the Defendant, Marcell Jermaine Marbury, pled guilty to voluntary manslaughter. He was sentenced as a Range I, standard offender to six years and was placed on probation. Subsequently, the Defendant was transferred to enhanced probation. In February 2011, a violation report was filed, the fourth against the Defendant, citing violations of an arrest for a new offense, failure to report, and possession of illegal drugs. Following a hearing, the trial court revoked the Defendant’s sentence of probation and ordered that he serve the remainder of his six-year sentence in the Department of Correction (“DOC”). On appeal, the Defendant challenges the trial court’s imposition of total incarceration. After a review of the record, we conclude that the trial court did not abuse its discretion and affirm the judgment of the trial court.


RONKEIVIUS WILLIAMSON V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Caesar Cirigliano, Nashville, Tennessee, for the appellant, Ronkeivius Williamson.

Robert E. Cooper, Jr., Attorney General & Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. Johnson III, District Attorney General; Kathy Morante, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: BIVINS

Ronkeivius Williamson (“the Petitioner”) filed for post-conviction relief from his conviction of second degree murder, and the resulting sentence of twenty-five years, on the grounds that he received ineffective assistance of counsel in conjunction with his guilty plea. After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed. Upon our careful review of the record, we affirm the judgment of the post-conviction court.


TN Attorney General Opinions

Annexation in Shelby County

Court: TN Attorney General Opinions

Date: 2012-02-09

Opinion Number: 12


Scope of County Litigation Tax

Court: TN Attorney General Opinions

Date: 2012-02-10

Opinion Number: 13


Constitutionality Of Legislation Requiring Governor To Designate "Tennessee's Day Of Prayer"

Court: TN Attorney General Opinions

Date: 2012-02-14

Opinion Number: 14


Interlocal Agreements to Provide Cable Services

Court: TN Attorney General Opinions

Date: 2012-02-15

Opinion Number: 15


Right to Appointed Counsel for Probation Revocation

Court: TN Attorney General Opinions

Date: 2012-02-17

Opinion Number: 16


Rights of Persons Who File Attorney Disciplinary Complaints

Court: TN Attorney General Opinions

Date: 2012-02-21

Opinion Number: 17


County Wheel Taxes

Court: TN Attorney General Opinions

Date: 2012-02-22

Opinion Number: 18


Same Individual Serving as County Finance Director and Member of School Board

Court: TN Attorney General Opinions

Date: 2012-02-22

Opinion Number: 19


Confidentiality of Hotel/Motel and Gross Receipts Tax Information

Court: TN Attorney General Opinions

Date: 2012-02-22

Opinion Number: 20


Unmanned Traffic Enforcement Cameras

Court: TN Attorney General Opinions

Date: 2012-02-22

Opinion Number: 21


Revocation of Professional Licenses Due to Student Loan Arrears

Court: TN Attorney General Opinions

Date: 2012-02-22

Opinion Number: 22


Appeals of General Sessions Court Decisions

Court: TN Attorney General Opinions

Date: 2012-02-23

Opinion Number: 23


Bill to Oust Occupiers Goes to Governor

A proposal designed to evict Occupy Nashville protesters is headed to the governor for his consideration. The legislation passed the House 68-21 on Monday evening after lawmakers agreed to a change by the Senate, which approved the bill 20-10 last week. The measure makes it a crime to camp on any state-owned land that is not specifically designated for camping. WKRN has the story.


Sen. Berke will not seek re-election

Senator Andy Berke announced today that he will not seek re-election to the State Senate District 10 seat he has held since 2007. He has not announced his future political plans, but there is much speculation that he may run in the Chattanooga mayoral race. Chattanoogan.com has more.


Will There Be a Trial for Schools Segregation Suit?

Davidson County's long-running schools rezoning suit is set for trial in May before U.S. District Court Judge Kevin Sharp. Metro attorneys recently filed a motion to dismiss the case, but in a response filed Feb. 22, plaintiffs’ attorneys stand by claims that “significant segregation” of minorities resulted from implementation of a controversial 2009 student assignment plan. “It’s time to get to the merits of this issue of whether the school board racially discriminated. Let’s have a trial and find out,” plaintiffs’ attorney Larry Woods said. The City Paper details the issues.


Judge Tells Defendant to Stick with Court-Appointed Attorney

Cumberland County Criminal Court Judge David Patterson explained to a 20-year-old defendant that she can't get another court-appointed attorney two weeks before her trial especially since she had gotten this lawyer after not being satisfied with the public defenders' office. Melanie Nichole Lewis wanted to fire Jeff Vires, but the judge said no, describing Vires as a very capable and competent attorney who would serve her well. Patterson told Lewis she was welcome to hire and pay for a lawyer of her choosing.  The Crossville Chronicle has the story.


Dickenson Wright Increases Nashville Space by 40 Percent

National law firm Dickinson Wright has expanded its Nashville office in the Fifth Third Center to encompass some 23,000 square feet, a 40 percent increase. Governing board member Tom Donnell said the expansion was necessary to accommodate growth through lateral hires that occurred in 2010 and 2011. NashvillePost.com has it.


Batts Elected President of Drug Court Group

The Tennessee Association of Drug Court Professionals (TADCP) has elected attorney Kevin Batts as president of the statewide group. Batts is the Drug Court coordinator for the 23rd Judicial District, based in Dickson County, and an adjunct professor at Lipscomb University where he teaches legal research, reasoning and evidence and criminal investigation. He is also a former employee of the state's Public Defenders Conference. Learn more about him.


Haynes Reflects on Her Life as a Judge

Former Circuit Judge Barbara Haynes talks with News 2’s Ann Holt, reflecting on Haynes's retirement from the bench. She said her most rewarding challenge during her tenure was chairing the state sentencing commission, which rewrote Tennessee’s Criminal Code. In an interview while she was still on the bench, Haynes said, “I love this job. I pray every day that I’m wise, and tolerant and patient and learned.” Watch the interview.


Trainer Sentenced for Violation of Federal Horse Protection Act

Likening the abuse of "horse soring" to cockfighting, U.S. District Judge Harry "Sandy" Mattice said on Monday that Congress has promoted disrespect for the federal Horse Protection Act by criminalizing the conduct but not enforcing it. Mattice sentenced a Shelbyville trainer, Barney Davis, 39, to one year in federal prison and a $4,000 fine for conspiracy to violate the act, witness tampering and transporting and entering a sored horse into a walking horse competition. Soring is a process involving metal chains, bolts, and acid, kerosene or other chemicals to make horses' hooves tender in an effort to create the false, high-stepping movements popular in Tennessee Walking Horse shows. The Times Free Press reports.


Court Convenes at UT Law School

The Court of Criminal Appeals' Eastern Section will hear cases Wednesday at the University of Tennessee College of Law. The court normally meets at a Supreme Court office in Knoxville. The judges were invited to UT by Dean Doug Blaze and professor Penny White, a former state Supreme Court justice. Students will have the chance to ask questions after the day's two sessions. The judges will include Roger A. Page, Jerry L. Smith and Thomas T. Woodall.


Catholic Sex Abuse Case Can Move Forward

Sexual abuse proceedings against the Catholic Diocese of Memphis can now continue following an order issued Monday by the Tennessee Supreme Court. The court has ruled that the charges brought by Norman Redwing, a Memphis man who alleges he was sexually abused in the 1970s by Father Milton Guthrie, can continue. The News Sentinel has the story.


West is Department of Justice Acting Associate AG

Tony West, who has led the Justice Department's Civil Division since April 2009, has been named acting associate attorney general. West, as the third in command at Justice, will replace Thomas Perrelli, Attorney General Eric Holder Jr. announced. Perrelli, who managed the Washington office of Jenner & Block, recently announced his plans to leave DOJ. The Blog of Legal Times has more.


Judge John Bell Reprimanded

The Court of the Judiciary has issued a public reprimand against Cocke County General Sessions Court Judge John Bell in response to a complaint filed against the judge involving appointment of substitute judges while he was on active military duty. The Administrative Office of the Courts has the order.


Arkansas Lawyer Suspended in Tennessee

The Tennessee Supreme Court on Feb. 23 entered an order of reciprocal discipline suspending Arkansas lawyer Scott Douglas Fletcher from the practice of law in Tennessee for 60 months. The Board of Professional Responsibility filed a petition for reciprocal discipline with the court after the Arkansas Supreme Court Committee on Professional Conduct suspended Fletcher’s license to practice law in Arkansas for 60 months. Download the BPR release.


 
 

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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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