Register Now For 2012 TBA Annual Convention

Registration is now open for the TBA’s 131st Annual Convention, scheduled for June 6-9 at the Peabody Hotel in Memphis. Along with being the largest annual gathering of the Tennessee legal community, this year’s event is packed with interesting programming and fun activities. Highlights include a visit to the famed Stax Records Museum of American Soul Music, a Bench/Bar luncheon featuring Bill Courtney, the dynamic coach at the center of the Academy Award winning documentary “Undefeated,” and high-quality CLE programming on the new Code of Judicial Conduct, tips for growing your practice and more.

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
01 - 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 Appeals

VIVIAN KENNARD v. METHODIST HOSPITALS OF MEMPHIS a/k/a METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL.

Court: TN Court of Appeals

Attorneys:

Al H. Thomas, Memphis, Tennessee, for the appellant, Vivian Kennard.

William D. Domico, Victoria S. Rowe, Memphis, Tennessee, for the appellees, Methodist Hospitals of Memphis a/k/a Methodist Healthcare Memphis Hospitals, et al.

Judge: HIGHERS

Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others. Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the subsequent jury verdict.

In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we remand this case to the trial court for reconsideration of Dr. McLaughlin’s qualifications in light of Shipley. If the trial court determines that Dr. McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants. Finally, if the trial court determines that Dr. McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. ROBERT JASON BURDICK

Court: TN Court of Criminal Appeals

Attorneys:

John E. Herbison (at trial and on appeal), and Fletcher Long, and Carrie Gasaway (at trial), Springfield, Tennessee, for the appellant, Robert Jason Burdick.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Roger Moore, and Dana Shabayek, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: HARRIS

A Davidson County jury convicted the Defendant, Robert Jason Burdick, of one count of aggravated burglary and two counts of aggravated rape with bodily injury. The trial court sentenced him as a Range I standard offender to a cumulative sentence of thirty-two years in the Tennessee Department of Correction. On appeal, the Defendant argues that (1) the evidence is insufficient to support his convictions for aggravated rape with bodily injury, (2) the trial court erred by denying his pre-trial motions to suppress evidence, and (3) the trial court erred by imposing partial consecutive sentences. Upon review, we affirm the Defendant’s convictions and the length of his sentences but remand the case to the Criminal Court of Davidson County for additional findings regarding consecutive sentencing.


STATE OF TENNESSEE v. TIFFANY DAVIS

Court: TN Court of Criminal Appeals

Attorneys:

Emeterio R. Hernando, Lewisburg, Tennessee, for the appellant, Tiffany Davis.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney General; Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: BIVINS

The Defendant, Tiffany Davis, was indicted on eighteen felony drug counts following a series of controlled drug purchases conducted by law enforcement officers. The jury convicted the Defendant of one count of the sale of less than 0.5 grams of cocaine, a Class C felony; three counts of the sale of 0.5 grams or more of cocaine, all Class B felonies; three counts of the delivery of less than 0.5 grams of cocaine, all Class C felonies; three counts of the delivery of 0.5 grams or more of cocaine, all Class B felonies; two counts of conspiracy to sell 0.5 grams or more of cocaine, both Class C felonies; and one count of the lesser included offense of facilitation of the sale of 0.5 grams or more of cocaine, a Class C felony. She was found not guilty on the remaining five counts. At her sentencing hearing, the trial court found the Defendant to be a career offender based upon her seven prior Class B felony convictions, for which she previously had received a sixteen-year sentence. After merging alternative counts in this action, the trial court sentenced her to the mandatory sentence of fifteen years for each Class C felony and thirty years for each Class B felony. The trial court then ordered each of these sentences to run concurrently. After finding that the Defendant had an extensive prior record of criminal activity and that the present offenses were committed while she was on probation, the trial court ordered its effective thirty-year sentence in this case to run consecutively to the Defendant’s prior sixteen-year sentence. On appeal, the Defendant challenges the sufficiency of the evidence supporting each conviction. She also challenges her effective sentence, arguing that it is excessive. After a careful review of the record, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. TRAVIS WAYNE LANKFORD

Court: TN Court of Criminal Appeals

Attorneys:

Eric L. Davis, Franklin, Tennessee for the appellant, Travis Wayne Lankford.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Charles Crawford, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Travis Wayne Lankford, pled guilty in Marshall County to three counts of especially aggravated burglary, one count of robbery, one count of aggravated robbery, one count of assault and one count of criminal responsibility for aggravated assault. At the sentencing hearing, the trial court merged two of the especially aggravated burglary convictions into the third especially aggravated burglary conviction and merged the criminal responsibility for aggravated assault into the aggravated robbery conviction. At the conclusion of the sentencing hearing, the trial court sentenced Appellant to an effective sentence of sixteen years. On appeal, Appellant argues that the trial court erred in setting the sentence length at twelve years each for the especially aggravated burglary conviction and the aggravated robbery conviction by placing too much weight on the enhancement factors used. Appellant also argues that the trial court erred in imposing consecutive sentences. We have reviewed the record on appeal and conclude that the weighing of enhancement factors is in the discretion of the trial court under the law and that Appellant’s record of extensive criminal activity supports the imposition of consecutive sentences. Therefore, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. KENDRICK MILES

Court: TN Court of Criminal Appeals

Attorneys:

Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Kendrick Miles.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; William Whitesell, District Attorney General; and Jude Santana, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Kendrick Miles, pled guilty in the Rutherford County Circuit Court to one count of aggravated assault, a Class C felony. Pursuant to his plea agreement, the trial court sentenced Appellant as a Range I, standard offender to four years. The trial court held a sentencing hearing specifically for the purpose of addressing Appellant’s request for alternative sentencing. The trial court denied Appellant’s request and ordered Appellant to serve the sentence in incarceration. On appeal, Appellant argues that the trial court erred in denying an alternative sentence. After a thorough review of the record, we conclude that the trial court considered the pertinent sentencing guidelines and principles and properly denied Appellant’s request for alternative sentencing. Therefore, we affirm the judgment of the trial court.


LAWRENCE RALPH, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Lawrence Ralph, Jr., Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and Lisa Zavagiannis, District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

Between the years of 1988 and 1996, the Petitioner, Lawrence David Ralph, Jr., pled guilty to the offenses of public drunkenness, resisting arrest, interfering with the duties of a police officer, disturbing the peace, two counts of assault, driving under the influence, and harassment. On May 17, 2011, the Petitioner filed five separate pro se petitions for postconviction relief. In five separate orders, the post-conviction court summarily denied relief, concluding that the petitions were not filed within the applicable statute of limitations. On appeal, the Petitioner contends the post-conviction court erred when it summarily dismissed his petitions. After thoroughly reviewing the record and the applicable authorities, we affirm the post-conviction court’s judgment.


LARRY EUGENE SCALES, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Judith Lojek, Nashville, Tennessee, for the appellant, Larry Eugene Scales, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Larry Eugene Scales, Jr., was convicted by a jury of the sale of less than .5 grams of cocaine within 1,000 feet of a school zone and sentenced to twelve years at 100%. Petitioner filed a motion for new trial but subsequently waived his right to appeal. Petitioner then sought post-conviction relief, in part on the basis of ineffective assistance of counsel at trial. After a hearing, the post-conviction court denied relief on the basis that Petitioner failed to show by clear and convincing evidence that he received ineffective assistance of counsel. Petitioner appeals from the denial of post-conviction relief, arguing that he received ineffective assistance of counsel because counsel failed to: (1) get an independent measurement to determine whether the drug sale took place within 1,000 feet of a school zone; (2) request a jury instruction on the lesser included offense of casual exchange; (3) raise, preserve, or present any issues on direct appeal. After a review of the record, we determine that Petitioner failed to present clear and convincing evidence that he is entitled to post-conviction relief. Specifically, Petitioner failed to introduce proof at the postconviction hearing that the sale of cocaine occurred outside the school zone. Petitioner entered a knowing and voluntary waiver of his right to appeal in accordance with Tennessee Rule of Criminal Procedure 37(d)(2) and therefore cannot show prejudice from a lack of an objection by counsel to a denial of a jury instruction on casual exchange. Accordingly, we affirm the judgment of the post-conviction court.


SC Firm Opens Nashville Office

Nelson Mullins Riley & Scarborough, a law firm based in South Carolina with 400-plus attorneys, is expanding into Nashville. The firm will occupy space on the 18th floor of the Regions Center in downtown Nashville. Former Baker Donelson Bearman Caldwell & Berkowitz attorney Larry Papel will lead the new office, according to the firm’s website. The general services firm also has offices in Atlanta, Boston, Charlotte and Washington D.C. The Nashville Business Journal reported the news today.


New Managing Partner Named at Bass Berry

Todd Rolapp has been elected managing partner at Bass Berry & Sims, Nashville's largest law firm. Rolapp will take the helm Jan. 1, 2013, succeeding Keith Simmons. Simmons announced last year that he’d relinquish his position of managing partner at the end of 2012, after 17 years of service. He will remain a member of the firm. Rolapp, 45, currently chairs the firm’s corporate and securities practice and heads the firm's executive compensation group. Read more from the firm


Project Preserves Supreme Court History

The Tennessee State Library and Archives has taken on the monumental task of preserving 10,000 boxes of Supreme Court cases from the state’s birth to the 1950s. More than 20 employees are devoting half a day each day to the project. The case files largely were neglected in the attic of the Capitol until the Tennessee Supreme Court Historical Society began funding the effort in 2006. Read more about the project and some of the documents uncovered in the Chattanooga Times Free Press


Buuck Tapped as Deputy Knox Law Director

Knoxville government and property rights attorney David Buuck will serve as chief deputy in the Knox County Law Director's Office, helping to run the office and ensure a smooth transition when Bud Armstrong takes over. Outgoing Law Director Joe Jarret said he hired Buuck at Armstrong's request. Buuck, a University of Tennessee College of Law graduate, has practiced more than 30 years, including several decades as attorney for the town of Louisville. Read more in the News Sentinel


Law Firm Holds RESPECT Contest for Students

The Nashville law firm of Kinnard Clayton & Beveridge recently announced the results of its annual RESPECT Contest, which asks area fifth-graders to answer two questions through original artwork: "What is respect"? and "Why is it important"? Law firm partner Randy Kinnard recognized contest winners at ceremonies at the Historic Williamson County Courthouse and Montgomery County Courthouse last week. Winners received a U.S. Savings Bond and were able to designate funding for their favorite charity. Read more about the contest and see the winning art entries


Appropriations Panel Approves $402M for LSC

The U.S. Senate Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies yesterday approved the president's request of $402 million for the Legal Services Corporation (LSC) in Fiscal Year 2013 -- a $54 million increase from current levels. 
LSC funding was approximately $404 million in Fiscal Year 2011 before falling to $348 million in Fiscal Year 2012. Read more from the agency


Court Takes Up Cocaine Sentencing Issue

The U.S. Supreme Court seemed split Tuesday on whether criminals who were arrested but not yet sentenced for crack cocaine offenses should be able to take advantage of reduced sentences authorized under the Fair Sentencing Act, which took effect August 2010. The case centers on two defendants who were arrested in 2007 and 2008 for selling crack cocaine but had not yet been sentenced at the time the bill took effect. Much of the court’s discussion focused on whether Congress intended the new law to apply retroactively. WRCB TV3 has more


DUI Proposal Headed to Governor

A proposal that may increase the penalty for drunken driving when a child under 18 is a passenger in the vehicle is headed to the governor. The measure, sponsored by Rep. Tony Shipley, R-Kingsport, was unanimously approved in the state House on Tuesday. The companion bill unanimously passed the Senate last month. Under current law, a person arrested for DUI with a minor in the vehicle is sentenced to a mandatory minimum incarceration of 30 days and a fine of $1,000. The new proposal requires the incarceration be served consecutively with any sentence for DUI, vehicular assault, vehicular homicide or aggravated vehicular homicide. The Memphis Daily News has more


Georgia Lawyer Disbarred

The Tennessee Supreme Court disbarred Georgia lawyer Stephen V. Fitzgerald Jr. on April 17, after the Supreme Court of Georgia accepted his decision to voluntarily surrender his license. Pursuant to the Rules of Discipline of the State Bar of Georgia, a voluntary surrender of license is tantamount to disbarment. With regard to his Tennessee license, Fitzgerald must pay the Board of Professional Responsibility’s costs and wait five years before seeking reinstatement. Download the BPR release


Shelby Lawyer Censured

Shelby County lawyer Wendy Nicole Villafana was censured by the Tennessee Supreme Court on April 18 for failing to file a client's application for cancellation of deportation, failing to diligently prepare for a hearing, failing to promptly inform the client about alleged weaknesses in the case and failing to respond to the client's requests for information. The court found she violated Rules of Professional Conduct 1.3 and 1.4. Read the BPR release


Women Rainmakers Host Knoxville Event

The ABA Women Rainmakers Committee is holding events across the country this week to help female attorneys increase their visibility and attract business opportunities. In Tennessee, the event “Building a Buzz and How to Do It” will be held Friday in Knoxville at the law firm of London & Amburn. The free session will run from 8 to 9:30 a.m. Speakers and panelists will address issues such as the importance of public relations, picking the right media outlet, publishing articles, using social media and perfecting the elevator pitch. The firm is located at 607 Market St., Suite 900 Knoxville 37902. Learn more online


Juvenile Delinquency Forum on Tap for Saturday

The Montgomery County Disproportionate Minority Contact Task Force will host the 2nd Annual Joint Conference on Juvenile Justice this Saturday from 8:30 a.m. to 4:30 p.m. The purpose of the conference is to prevent juvenile delinquency by increasing awareness of issues, programs and available resources. The task force operates under the umbrella of the Tennessee Commission on Children & Youth and the APSU Juvenile Justice Grant. This year the guest speaker will be Lowell Perry Jr., executive director of Big Brothers/Big Sisters of Middle Tennessee. The event is free and open to the public. Learn more in the Leaf Chronicle


 
 

Questions, comments: Email us at TBAToday@tnbar.org

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.


© Copyright 2012 Tennessee Bar Association