Wednesday, September 26, 2012

 
 

Campaign Against Florida Judges' Retention Heats Up

The conservative group Americans for Prosperity is set to run TV ads across Florida critical of three state Supreme Court justices up for retention election. The ads take aim at the justices’ joining a court ruling that removed from the ballot in 2010 a legislatively introduced measure intended to derail federal health care legislation. The Americans for Prosperity involvement follows the recent announcement of opposition from the Republican Party of Florida. Justice R. Fred Lewis, who is one of the justices targeted, told a bar group, “We cannot sacrifice fairness and impartiality and the court system to political whims." Gavel Grab has details

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 Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
10 - 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 Supreme Court

STATE OF TENNESSEE v. SUSAN RENEE BISE

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Amy L. Tarkington, Deputy Attorney General; C. Berkeley Bell, District Attorney General; and J. Chalmers Thompson, Assistant District Attorney General, for the appellant, the State of Tennessee.

Jonathan D. Cooper, Knoxville, Tennessee (on appeal before the Supreme Court) and Charles C. Harrison, Jr., Pigeon Forge, Tennessee (at trial and on appeal before the Court of Criminal Appeals) for the appellee, Susan Renee Bise.

Judge: WADE

Following a burglary in Greene County, the defendant was charged with two counts of aggravated burglary and two counts of theft of property. At the conclusion of the trial, the jury returned verdicts of guilt for one count of facilitation of aggravated burglary and for two counts of theft of property. After finding the presence of one enhancement factor, the trial court imposed concurrent three-year sentences for each offense. The Court of Criminal Appeals found that the enhancement factor did not apply and reduced each of the sentences to two years. Because we find that a sentence imposed by a trial court should be upheld so long as it is within the appropriate sentencing range and is otherwise in compliance with the purposes and principles of the sentencing statute, we reverse the sentence modification by the Court of Criminal Appeals and, upon review under an abuse of discretion standard with a presumption of reasonableness, reinstate the sentence imposed by the trial court.


TN Court of Appeals

CURB RECORDS, INC. v. SAMUEL T. MCGRAW

Court: TN Court of Appeals

Attorneys:

Jay S. Bowen, John L. Unger, Will Parsons and Amy J. Everhart, Nashville, Tennessee, for the appellant, Curb Records, Inc.

William T. Ramsey, Robert A. Peal and Russell A. Jones, Jr., Nashville, Tennessee, for the appellee, Samuel T. McGraw.

Judge: BENNETT

A recording company brought this breach of contract action against a recording artist. This appeal involves only the trial court’s decision to deny the recording company temporary and permanent injunctive relief. We find no error in the decision of the trial court.


STATE OF TENNESSEE EX REL. HEATHER JUNGHANEL v. ANDRES HERNANDEZ

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Warren Jasper, Senior Counsel, for the appellant, State of Tennessee ex rel. Heather Junghanel.

Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Andres Hernandez.

Judge: SWINEY

Andres Hernandez (“Father”) filed a petition seeking to terminate his child support obligation. The Trial Court held a hearing and entered an order on March 17, 2011 awarding a judgment against Father of $5,726.47 in child support arrearages but also providing for further hearing for a full review and calculation of arrearages. The case subsequently was heard before a Special Master who found that Heather Junghanel (“Mother”) was entitled to a judgment against Father of $21,976.27 in child support arrearages. Father appealed the Special Master’s report to the Trial Court. The Trial Court found that the March 17, 2011 order was a final order and awarded a judgment against Father of $5,726.47 in child support arrearages. The State of Tennessee ex rel. Mother appeals to this Court arguing that the Trial Court improperly retroactively modified Father’s child support obligation. We find and hold that the Trial Court erred in holding that the March 17, 2011 order was a final order. We vacate the Trial Court’s September 20, 2011 order and remand this case to the Trial Court for a hearing on Father’s objections to the Special Master’s report.


DAVID A. PACZKO ET AL. v. SUNTRUST MORTGAGES, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

James Marshall, Spring Hill, Tennessee, and Carol A. Molloy, Lynnville, Tennessee, for the appellants, David A. Paczko and Barbara M. Paczko a/k/a Barbara McCafferty Paczko.

Kenneth M. Bryant and Kevin C. Baltz, Nashville, Tennessee, for the appellees, Suntrust Mortgage, Inc., Mortgage Electronic Registration Systems, Inc., and Federal National Mortgage Association.

Lori L. McGowan, Atlanta, Georgia, for the appellees, Nationwide Trustee Services, Inc., Prommis Solutions, LLC, and Johnson and Freedman, LLC.

Judge: CLEMENT

Plaintiffs filed this action seeking to enjoin the foreclosure of their residence and to quiet title. They also alleged slander of title and violations of the Tennessee Consumer Protection Act. The trial court dismissed the action upon the defendants’ motions to dismiss for failure to state a claim. We have determined that TCPA claims do not apply to allegedly deceptive conduct in foreclosure proceedings, thus the dismissal of the TCPA claim is affirmed. We have also determined that the plaintiffs never denied that they were in default of the Note and Deed of Trust and they admitted that, during the pendency of this action, the property was foreclosed upon and sold, thus they no longer have an interest in the property, which circumstances render the remaining claims moot. We, therefore, affirm the dismissal of this action.


WILLIAM PATRICK VAN ERPS v. HEATHER JACKSON

Court: TN Court of Appeals

Attorneys:

Jeffrey L. Levy, Nashville, Tennessee, for the Appellant, Heather Jackson.

Douglas T. Bates, III, Centerville, Tennessee, for the Appellee, William Van Erps.

Judge: DINKINS

Mother of child appeals the trial court’s designation of Father as primary residential parent and adoption of a residential parenting schedule which gave the parents equal parenting time. Finding no error, we affirm the trial court.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. ROBERT BLAKE BALL

Court: TN Court of Criminal Appeals

Attorneys:

Brent Hensley, (on appeal); Lindsey Wise-Lane, (at trial), Greenville, Tennessee for the Defendant-Appellant, Robert Blake Ball.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; C. Berkeley Bell, Jr., District Attorney General; Cecil Mills and Ritchie Collins, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Robert Blake Ball, was convicted by a Greene County jury of attempted second degree murder and sentenced to eleven years’ imprisonment. In this appeal, Ball challenges the sufficiency of the evidence supporting his conviction and the sentence imposed by the trial court. Upon our review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. MARIO JONES

Court: TN Court of Criminal Appeals

Attorneys:

Robin Ruben Flores, Chattanooga, Tennessee (on appeal), and Eileen M. Parrish, Nashville, Tennessee, and Daniel J. Ripper, Chattanooga, Tennessee (at trial), for the appellant, Mario Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Jerry N. Estes, District Attorney General; Stephen Hatchett, Dorothy At well, and Shari Taylor Young, Assistant District Attorneys General, for the appellee, the State of Tennessee.

Judge: WOODALL

A Hamilton County jury convicted Defendant, Mario Jones, of possession of more than 50 grams of a Schedule II controlled substance with intent to sell, a Class A felony. The trial court sentenced Defendant to serve twenty years as a Range I standard offender. In his appeal, Defendant presents the following issues for review: (1) the stop of Defendant’s vehicle and the subsequent detention of Defendant violated his constitutional rights, and the trial court erred by denying Defendant’s motion to suppress; (2) the evidence was insufficient to sustain Defendant’s conviction; (3) the trial court improperly allowed Lieutenant Queen to testify concerning the calendar, notes, and pills found in Defendant’s vehicle; (4) the trial court erred in finding that chain of custody had been established; and (5) the trial court erred in rejecting Defendant’s proposed mitigating factor. After a thorough review, we affirm the judgment of the trial court.


DARRYL LARKINS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Justin Johnson, Nashville, Tennessee, for the appellant, Darryl Larkins.

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

Judge: PAGE

Petitioner, Darryl Larkins, appeals the denial of post-conviction relief from his convictions1 for two counts of aggravated rape, one count of attempted aggravated rape, and one count of aggravated burglary. On appeal, petitioner argues that he received the ineffective assistance of counsel. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgment of the post-conviction court


STATE OF TENNESSEE v. JOSHUA PAUL LEWIS

Court: TN Court of Criminal Appeals

Attorneys:

Matthew Edwards, Crossville, Tennessee, for the appellant, Joshua Paul Lewis.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randy York, District Attorney General; and Gary McKenzie and Amanda Hunter, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Joshua Paul Lewis, was convicted by a jury of two counts of rape of a child and one count of attempted rape of a child. The trial court subsequently sentenced the Defendant to twenty-five years on each of the rape convictions and to ten years on the attempted rape conviction, all sentences to run concurrently, for an effective sentence of twenty-five years in the Department of Correction. In this direct appeal, the Defendant contends that (1) the trial court erred in denying his motion to suppress his statement to the police; (2) the trial court erred in denying his motion for judgment of acquittal due to variances between the bill of particulars and the proof at trial; and (3) he was denied a fair trial due to cumulative error. After a review of the record and relevant authorities, we have determined that the Defendant’s issue are waived for failing to preserve them in a timelyfiled motion for new trial. Accordingly, we affirm the trial court’s judgments.


STATE OF TENNESSEE v. SHERRI MATHIS

Court: TN Court of Criminal Appeals

Attorneys:

C. Brent Keeton (on appeal), Manchester, Tennessee; B.F. Jack Lowery, Lebanon, Tennessee; and Michael D. Galligan and John Partin (at trial), McMinnville, Tennessee, for the appellant, Sherri Mathis.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Brian Holmgren, District Attorney General Pro Tempore; and Kristen Menke, Assistant District Attorney General Pro Tempore, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Sherri Mathis, appeals her Warren County Circuit Court jury convictions of two counts of felony murder, see T.C.A. § 39-13-202(a)(2) (2006); two counts of aggravated child abuse of a child six years of age or less, see id. § 39-15-402(a)(1), (b); two counts of aggravated child neglect of a child six years of age or less, see id.; one count of child abuse of a child six years of age or less, see id. §39-15-401(a); and two counts of aggravated child abuse, see id. § 39-15-402(a)(1). At sentencing, the trial court imposed an effective sentence of life plus 32 years’ incarceration. In addition to challenging the sufficiency of the evidence on appeal, the defendant claims that (1) the trial court erroneously denied her motion for continuance, (2) the trial court erroneously admitted photographs of the deceased victim, (3) the trial court erroneously denied her motion to dismiss the indictment based upon a fatal variance, (4) the trial court erroneously denied a motion for mistrial, (5) the trial court erroneously allowed the State to call the defendant’s civil attorney as a witness knowing that the attorney would claim privilege, (6) the trial court erroneously limited testimony of defendant’s expert witness, (7) the State committed prosecutorial misconduct during opening statements and closing arguments, and (8) the trial court imposed an excessive sentence. Additionally, the defendant contends that the trial court erroneously dismissed her petition for writ of error coram nobis and erroneously denied her the right to depose Doctor Bruce Levy concerning the claims contained in the coram nobis petition. We discern that the trial court failed to merge certain counts and failed to enter judgments as corrected at the hearing on the motion for new trial. We further conclude that the State failed to establish serious bodily injury with respect to the defendant’s convictions of aggravated child abuse in Counts Eight and Nine and direct the trial court on remand to enter judgments reflecting convictions of child abuse and three-year sentences. Accordingly, the case is remanded for the trial court to enter modified judgments in Counts Eight and Nine, judgments effectuating proper merger, and judgments reflecting modified sentences, and we affirm the judgments in all other respects.


STATE OF TENNESSEE v. CLAY ROBERTSON

Court: TN Court of Criminal Appeals

Attorneys:

Donna Orr Hargrove, District Public Defender; and William J. Harold, Assistant Public Defender, for the appellant, Clay Robertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Charles Crawford, District Attorney General; and Hollyn Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Much aggrieved by the Lincoln County Circuit Court’s sentencing decision following his plea to a community corrections violation warrant, the defendant, Clay Robertson, appeals the trial court’s imposition of an effective sentence of seven years’ incarceration for his guilty-pleaded convictions of theft of property valued at more than $1,000 but less than $10,000 and facilitation of aggravated robbery. Discerning no error, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. JOHN SMITH

Court: TN Court of Criminal Appeals

Attorneys:

Harry E. Sayle, III (on appeal); and Sanjeev Memula and Clifford T. Abeles, Jr. (at trial), Assistant Public Defenders, for the appellant, John Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Gregory Gilbert and Lora Fowler, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, John Smith, was convicted by a Shelby County Criminal Court jury of first degree felony murder, second degree murder, aggravated burglary, and employing a firearm during the commission of a felony and was sentenced to an effective term of life imprisonment plus six years. On appeal, he argues that: (1) the trial court erred in denying his motion to suppress his statements; (2) the evidence is insufficient to sustain his felony murder conviction; (3) the trial court erred in its instruction given on the defense of defense of others; and (4) the trial court erred in denying his request for a jury instruction on the defense of ignorance or mistake of fact. After review, we affirm the judgments of the trial court.


ELIJAH TRUITT v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Elijah Truitt, Henning, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Elijah Truitt, appeals the summary dismissal of his motion to correct his sentence, claiming that his sentence is illegal. The petitioner’s claim that the trial court erroneously imposed a day-for-day service requirement to his 11-year effective sentence is without merit. Thus, the trial court’s summary dismissal of the petitioner’s motion to correct his sentence is affirmed. The record suggests, however, that the trial court failed to grant him credit for time spent on community corrections as required by law. In consequence, we remand the case to afford the pro se petitioner the opportunity to amend his original pleading to a petition for writ of habeas corpus and for the trial court to determine whether the petitioner was given credit to which he is statutorily entitled.


STATE OF TENNESSEE v. MYRON LEE WEBB

Court: TN Court of Criminal Appeals

Attorneys:

Donna Orr Hargrove, District Public Defender; and William J. Harold, Assistant Public Defender, for the appellant, Myron Lee Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Charles Crawford, District Attorney General; and Hollyn Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Following the defendant’s open guilty pleas to two counts of driving under the influence (“DUI”) (fifth and sixth offenses), see T.C.A. § 55-10-401(2008); three counts of driving while his license was revoked (“DWLR”) (one fourth and two fifth offenses), see id. § 55-10- 504; one count of violating the implied consent law, see id. § 55-10-406; one count of violating the open container law, see id. § 55-10-416; and one count of reckless driving, see id. § 55-10-205, the Lincoln County Circuit Court imposed an effective sentence of eight years’ incarceration as a Range II, multiple offender. On appeal, the defendant challenges the length and alignment of the sentences. Discerning no error, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. ROBIN ELIZABETH WILLIS
With Dissenting Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Douglas T. Jenkins, Rogersville, Tennessee, for the Defendant-Appellant, Robin Elizabeth Willis.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Kevin D. Keeton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Robin Elizabeth Willis, was convicted by a Hawkins County jury of theft of property valued at $1000 or more but less than $10,000, a Class D felony. The trial court sentenced her as a Range I, standard offender and ordered her to serve three years in the Tennessee Department of Correction. On appeal, Willis argues: (1) the evidence was insufficient to support her conviction; and (2) her sentence was excessive. Upon review, we affirm the judgment of the trial court.


Appeals Court: Army Corps Not at Fault for Katrina Flooding

A three-judge panel of the 5th Circuit Court of Appeals reversed an earlier ruling that found the Army Corps of Engineers to be at fault for Hurricane Katrina's catastrophic flooding. In 2005, flooding from the hurricane because of an improperly maintained shipping channel, devastated New Orleans and killed 1,400 citizens. The court claims federal law gives the corps immunity against flood-related lawsuits, and also could make it  difficult to force the government to pay damages for future mishaps.. Read more about the ruling at WRCBtv.com.


Accusations Fly Over Agency's Failure to Report Child Deaths

Former Legislative Director Aaron Campbell says he personally briefed Department of Children's Services (DCS) Commissioner Kate O'Day about her responsibility to inform lawmakers of each child fatality and near-fatality in the state — which DCS now acknowledges it has not done in nearly two years. The agency last week released partial information about 31 children who died in the first six months of 2012. The children had all either been in state custody, the subject of an open DCS investigation or had been investigated but whose cases had been closed before they died. DCS lawyer Douglas Dimond conceded that the agency had been violating the law in its requirements to report child deaths. The Tennessee has the story


LSC to Give $3.4 Million in Grants

The Legal Services Corporation (LSC) has announced new technology grants to increase access to Web-based resources, enhance pro bono, expand websites for veterans and disaster recovery, and -- a new category this year -- improve data collection and analysis. Through its Technology Initiative Grants program, LSC plans to award 43 grants in 2012, totaling more than $3.4 million. The grants will fund LSC grantee programs in 25 states and the territory of Guam. Learn more


Horse Abuse Case Postponed, McConnell Entering Plea Deal

David Douglas, the attorney representing Tennessee Walking Horse trainer Jackie McConnell says they are now in a plea deal discussion, the JacksonSun reports. McConnell faces 17 state misdemeanor charges of animal cruelty and was sentenced Sept.18 for violating the U.S. Horse Protection Act. His case has been postponed until Nov. 13.


DOJ: Parking Giants Must Divest Before Merging

The U.S. Justice Department today said that in order for a merger of two parking facility giants to proceed, Nashville-based Central Parking Corp. and Chicago-based Standard Parking Corp. must sell 107 of their garages and lots in the central business districts of 28 cities. The department’s complaint alleges that the proposed acquisition would lessen competition in certain areas -- and Nashville is one of them. The two companies are the largest parking management companies in the nation. The Commercial Appeal reports.


Chemist's Alleged Perjury May Discredit Cases

Thousands of criminal cases are in question after an investigation of a Massachusetts chemist revealed she falsified her education. According to the ABA Journal, Annie Dookan is being investigated for purposely mishandling 60,000 drug samples involving 34,000 defendants. She has not been charged with a crime at this time.


Watch and Discuss First Debate at Baker Center

The Howard H. Baker Jr. Center for Public Policy on the UT campus in Knoxville will host a group to watch the upcoming presidential debate and discuss it via videoconference with crowds gathered statewide. DebateWatch begins at 8 p.m. Central Time on Oct. 3, with a viewing of the first of the 2012 presidential debates, moderated by Jim Lehrer of PBS NewsHour. After the debate concludes, those attending will connect with other college campuses statewide by videoconference. Schools confirmed to participate with UT are the University of Tennessee-Martin and East Tennessee State University.  The event is free and open to the public. Learn more from UT


5K to Support Public Interest Law

The Bly Roll Race for Justice will take place Friday on the campus of University of Tennessee Knoxville and will support students pursuing work in public interest law. The 5k event is named in memory of Roll, a member of the 2012 College of Law class. Read more or register for the event at The Informant.


Knox County Lawyer on Disability Inactive Status

Knoxville lawyer William Preston Snyder's law license was transferred to disability inactive status pursuant to Section 21 of Tennessee Supreme Court Rule 9 on Sept. 24. He cannot practice law while on disability inactive status, but may return to the practice of law after reinstatement by the Tennessee Supreme Court upon showing of clear and convincing evidence that the disability has been removed and he is fit to resume the practice of law. Download the BPR release


Nashville Senate Candidates Talk About Per Diem, Other Issues

The two candidates for Senate District 20 -- Republican Steve Dickerson, a doctor, and Democrat Phillip North, a lawyer -- both say they would refuse per diem money if elected, but each has a different idea about what to do with it. The Tennessean interviewed them both about this and many other subjects in their quest to fill the seat of Sen. Joe Haynes, who is retiring after 28 years.


 
 

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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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