Nader to Build Tort Law Museum

Consumer advocate Ralph Nader says he is planning to build an American Museum of Tort Law in his Connecticut hometown of Winsted and has raised $2 million for the project. Nader told the Associated Press that he got the idea after trial lawyers said they had no place to put exhibits used in court cases. Nadar said he hopes to showcase the history of tort law with exhibits on significant cases such as the 1998 national settlement with tobacco companies and the Chevrolet Corvair featured in his 1965 book, Unsafe at Any Speed. Above all, Nader says, he hopes the museum will promote the legal system. “We’ll be puncturing a lot of myths and lies that it’s a cash cow for greedy tort lawyers,” he said. The Washington Post has the AP story.

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
05 - TN Court of Appeals
07 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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TN Supreme Court

ARTIS WHITEHEAD v. STATE OF TENNESSEE
CORRECTION: In the last line of the first full paragraph on page 10: 202(b)(1)-(3) has been corrected to read 102(b)(1)-(3)

Court: TN Supreme Court

Attorneys:

Sean G. Hord, Memphis, Tennessee, for the appellant, Artis Whitehead.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Aaron E. Winter, and Cameron L. Hyder, Assistant Attorneys General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: KOCH

Tennessee prisoners whose convictions and sentences are upheld on appeal have one year to file a petition for post-conviction relief to challenge their convictions and sentences. This appeal involves the narrow circumstances in which fundamental fairness demands the tolling of this deadline. A prisoner filed his petition for post-conviction relief after the statutory deadline had passed because his former attorney provided him the wrong deadline date and failed to give the prisoner his legal files until after the actual deadline had passed. Following a hearing, the Criminal Court for Shelby County dismissed the petition as untimely. The Court of Criminal Appeals affirmed. Whitehead v. State, No. W2010-00784-CCA-R3-PC, 2011 WL 3912856 (Tenn. Crim. App. Sept. 7, 2011). We granted the prisoner’s application for permission to appeal. We find that the facts of this case reflect that the prisoner was effectively abandoned by his appellate attorney after his petition for writ of certiorari was filed in the United States Supreme Court. This abandonment impeded the prisoner’s otherwise diligent efforts to file a timely post-conviction petition. Therefore, the statute of limitations should be tolled. We reverse the judgment of the Court of Criminal Appeals, and remand the prisoner’s case to the trial court so the prisoner may pursue his petition for postconviction relief.


TN Court of Appeals

JAMES E. BELL v. TENNESSEE DEPARTMENT OF CORRECTIONS

Court: TN Court of Appeals

Attorneys:

James Bell, Jr., Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Lee Pope, Assistant Attorney General, and Leslie E. Price, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

Judge: PER CURIAM

This is an appeal from the dismissal of 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.


BRENDA BENZ-ELLIOTT v. BARRETT ENTERPRISES, LP ET AL.

Court: TN Court of Appeals

Attorneys:

Peter V. Hall, Murfreesboro, Tennessee, for the appellant, Barrett Enterprises, LP, et al.

G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellee, Brenda Benz-Elliott

Judge: BENNETT

In this dispute concerning a real estate sale contract, we have concluded that the gravamen of the action is for injury to property and that, under the applicable legal principles, the evidence preponderates against the trial court’s finding as to when the statute of limitations began to run. Because the action is barred by the statute of limitations, we reverse the decision of the trial court.


ELIZABETH ANNE MCDANIEL v. ROBB ASHBY MCDANIEL

Court: TN Court of Appeals

Attorneys:

Gregory D. Smith and Corinne E. Martin, Nashville, Tennessee, for the appellant, Elizabeth Anne McDaniel.

Michelle Blaylock-Howser, Murfreesboro, Tennessee, for the appellee, Robb Ashby McDaniel.

Judge: CLEMENT

Mother appeals the designation of Father as the primary residential parent of the parties’ two minor children and the parenting schedule which gave Father substantially more parenting time. We affirm the trial court’s designation of Father as the primary residential parent finding that the evidence does not preponderate against the trial court’s decision which was primarily based on the importance of continuity in the children’s lives. As for the parenting schedule, which awards Father 245 days and Mother only 120 days a year, we find that the evidence preponderates against such a disparity of parenting time; therefore, we reverse the parenting schedule and remand this issue for the trial court to adopt a revised parenting schedule that permits each parent to enjoy the maximum participation possible in the children’s lives that is consistent with the factors set forth in Tennessee Code Annotated § 36-6-106(a).


HENRY J. NAGORNY v. SHERIFF SCOTT LAYEL

Court: TN Court of Appeals

Attorneys:

Henry Joshua Nagorny, pro se appellant.

Grainger County Sheriff Scott Layel, appellee.

Judge: SWINEY

This appeal arises from a dispute over the calculation of jail time credits. Henry J. Nagorny (“Nagorny”), an incarcerated individual, filed a petition for writ of mandamus in the Circuit Court for Grainger County (“the Trial Court”) seeking to compel Sheriff Scott Layel to award him jail behavior credits that allegedly were due him. The Trial Court dismissed Nagorny’s petition sua sponte, stating that the calculation of credits is an administrative matter. Nagorny filed this appeal. We hold that the Trial Court, stating no compelling substantive basis for its decision, erred in dismissing Nagorny’s petition sua sponte. Therefore, we reverse the judgment of the Trial Court and remand for proceedings consistent with our Opinion.


WILLIAM H. WORLEY, ET AL. v. RARITY COMMUNITIES, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellants, Rarity Communities, Inc., Nickajack Shores Holdings, LLC, and Michael L. Ross.

John P. Konvalinka, David E. Harrison, Katherine H. Lentz, Chattanooga, Tennessee, for the appellees, William H. Worley, Rebecca A. Worley, and Bill Worley Construction Co., Inc.

Judge: COTTRELL

Following a trial where Plaintiffs were awarded compensatory and punitive damages, Defendants filed a motion seeking a new trial based on juror misconduct. Defendants alleged the jurors arrived at the punitive damages amount using a quotient, or gambling, verdict. The trial court denied Defendants’ motion for a new trial and Defendants appealed. We affirm the trial court’s judgment because the jurors’ affidavits indicate that not all jurors agreed in advance to be bound by the mathematical process involved in arriving at a quotient verdict.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. STEPHEN BAKER
CORRECTION: The District Attorney's name has been changed.

Court: TN Court of Criminal Appeals

Attorneys:

Randy Chaffin, Cookeville, Tennessee, for the appellant, Stephen Baker.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Randall A. York, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Stephen Dewayne Baker, was indicted by the Putnam County Grand Jury in January of 2010 for one count of first degree murder, one count of felony murder, one count of aggravated robbery, one count of arson, and one count of tampering with evidence. Appellant was convicted by a jury of all offenses as charged in the indictment. At a sentencing hearing, the trial court merged the first degree murder conviction with the felony murder conviction and imposed a life sentence. Appellant was also ordered to serve twelve years for the aggravated robbery conviction, six years for the arson conviction, and six years for the tampering with evidence conviction. The trial court ordered the arson and tampering with the evidence convictions to be served concurrently with each other but consecutively to the life sentence and sentence for aggravated robbery, for a total effective sentence of life imprisonment plus eighteen years. After the denial of a motion for new trial, Appellant initiated this appeal. On appeal, Appellant contends: (1) the trial court erred by denying a change of venue; (2) the trial court erred by denying Appellant’s motion to suppress; (3) the evidence was insufficient to support the convictions; (4) the trial court erred by admitting evidence of Appellant’s prior bad acts; (5) the trial court erred in admitting the dying declarations of the victim; (6) the trial court erred in admitting testimony of Harold Harp about Appellant’s behavior; and (7) the trial court erred in admitting a photograph of the victim’s body. After a review of the record, we conclude that the trial court: (1) did not err in denying a change of venue where there was no proof that the jury pool was tainted from exposure to information about the incident; (2) did not abuse its discretion in denying the motion to suppress where consent for the search was valid and the search warrant was properly procured; (3) properly admitted evidence of Appellant’s drug use and past violent behavior; (4) properly admitted the dying declaration and excited utterances of the victim; (5) properly admitted the testimony of Mr. Harp; and (6) properly admitted photographs of the victim’s body. Additionally, we determine that the evidence was sufficient to support the convictions. Accordingly, the judgments of the trial court are affirmed.


STATE OF TENNESSEE v. MATTHEW BRIAN GRAHAM

Court: TN Court of Criminal Appeals

Attorneys:

Luke A. Evans and Heather Parker, Murfreesboro, Tennessee, for the Defendant- Appellant, Matthew B. Graham.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; William Whitesell, District Attorney General; Laural Hemenway, Assistant District Attorney General for the Appellee, State of Tennessee.

Judge: SUMMERS

Appellant, Matthew B. Graham, pled guilty to attempted abuse of a child, under 8 years of age, in violation of Tennessee Code Annotated, section 39-15-401, a Class E felony. On the same day, he pled guilty to three informations, each charging him with possession of a controlled substance in violation of Tennessee Code Annotated, section 53-11-402. Appellant received a two-year sentence in the Tennessee Department of Correction for the attempted child abuse and each of the possession of a controlled substance pleas. Appellant’s total effective sentence was 8 years, to be suspended on state supervised probation. Appellant violated his probation and was ordered to serve the remainder of his 8 year sentence in the Tennessee Department of Correction. Appellant filed a motion to modify sentence to allow him to go back on probation. The trial court denied the motion. We affirm the trial court’s denial of the motion to modify the sentence.


TIMOTHY WILLIAM JELKS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr. Attorney General and Reporter; Clark B. Thorton, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; Sallie Wade Brown, Assistant District Attorney General for the appellee, State of Tennessee.

Mr. Eric Scott Mauldin, Gallatin, Tennessee, for appellant, Timothy William Jelks.

Judge: SUMMERS

Timothy William Jelks seeks post-conviction relief from a guilty plea and conviction for aggravated child neglect, a Class A felony. Tenn. Code Ann. § 39-15-402. Jelks claims his counsel failed to advise him properly during his plea bargain and asserts the one (1) year statute of limitations should be tolled due to new constitutional rights established by the United States Supreme Court. Finding no merit to the assertions of the appellant, we affirm the judgment of the Circuit Court in all aspects.


STATE OF TENNESSEE v. JAMES ANTHONY JOHNSON, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, James Anthony Johnson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and TaKisha Monette Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, James A. Johnson Jr., pleaded guilty in the Criminal Court for Knox County to possession with the intent to sell marijuana within 1000 feet of a school, a Class E felony, possession of a firearm during the commission of a dangerous felony, a Class D felony, possession of drug paraphernalia, a Class A misdemeanor, and driving on a suspended license, a Class B misdemeanor. The Defendant was sentenced to three years for possession with the intent to sell marijuana with two years of the sentence to be served at 100% and the remaining year to be served at 30%, three years for possession of a firearm during the commission of a dangerous felony to be served consecutively to the marijuana sentence, eleven months and twenty-nine days for possession of drug paraphernalia to be served concurrently with the marijuana sentence, and six months for driving on a suspended license to be served concurrently with the marijuana sentence. On appeal, the Defendant presents a certified question of law regarding the legality of the traffic stop and subsequent arrest and searches that led to his convictions. Because the certified question was not properly reserved, we dismiss the appeal for lack of jurisdiction.


STATE OF TENNESSEE v. TERRY MARCUM

Court: TN Court of Criminal Appeals

Attorneys:

Randall E. Reagan (on appeal) and Jordan Long (at revocation hearing), Knoxville, Tennessee, for the appellant, Terry Marcum.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; James B. “Jimmy” Dunn, District Attorney General; and George C. Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Terry Marcum, appeals the Sevier County Circuit Court’s revoking his probation for two counts of domestic assault and ordering him to serve his consecutive sentences of eleven months, twenty-nine days. The Defendant contends that the trial court abused its discretion in revoking his probation. We affirm the judgments of the trial court.


STATE OF TENNESSEE v. CLIFTON WILLIAMS, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Gerald Lynn Melton, District Public Defender; and John Driver and S. Ray White, Assistant District Public Defenders, for the appellant, Clifton Williams, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Senior Counsel; William C. Whitesell, District Attorney General; and Jennings H. Jones and Jude P. Santana, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SUMMERS

A jury convicted the defendant, Clifton Williams, Jr., of voluntary manslaughter, a Class C felony. The defendant also pled guilty to unlawful possession of a firearm by a felon, a Class E felony. He was sentenced as a Range II offender to eight years’ confinement for the manslaughter conviction and four years’ confinement for the felon in possession of a firearm conviction, to be served consecutively. The defendant appeals, challenging the sufficiency of the evidence supporting his conviction for manslaughter. The defendant also asserts that the trial court erred in failing to include the definition of curtilage in the self-defense instruction, in enhancing the defendant’s sentences, and in imposing consecutive sentences. After a thorough review of the record, we affirm the judgments of the trial court.


DAVID SCOTT WINFREY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

William Bart Highers and Jason B. Elliott, Gallatin, Tennessee (at hearing); and David Scott Winfrey, Gallatin, Tennessee, Pro Se (on appeal) for the appellant, David Scott Winfrey.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; L. Ray Whitley, District Attorney General; and Bryna Grant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SUMMERS

On April 10, 2008, the petitioner entered a no contest plea to twenty-nine Class A misdemeanors consisting of one count of aggravated criminal trespass, one count of stalking, thirteen counts of harassment, and fourteen counts of violation of an order of protection. State v. Winfrey (Winfrey II), No. M2009-02480-CCA-R3-CD, 2010 WL 4540288, at *1-2 (Tenn. Crim. App. Nov. 10, 2010). The petitioner was ultimately sentenced to eleven months and twenty-nine days for each conviction, with ten of the sentences to be served consecutively for an effective sentence of just under ten years. The trial court ordered three of the consecutive sentences to be served in confinement and the remaining seven to be served on probation. The petitioner was arrested on December 8, 2010, during the pendency of his appeal; and after a hearing held in April 2011, the trial court revoked the petitioner’s probation and ordered him to serve his remaining seven consecutive eleven-month-twentynine- day sentences in confinement. The petitioner did not file a direct appeal. Instead, on March 15, 2012, the petitioner filed a motion to serve the balance of his sentence on probation. In the alternative, the petitioner sought to have the court set aside the probation revocation pursuant to the writ of error coram nobis based on the expunction of the record of his December 2010 arrest due to a stay of probation in effect at the time. The trial court denied both the motion to serve the remaining sentence on probation and the petition for the writ of error coram nobis, as well as an oral motion for the judge’s recusal. The petitioner appeals. After a thorough review of the record, we find no error and accordingly affirm the judgments of the trial court.


TN Attorney General Opinions

Admission of Service Dogs in Places of Public Accommodation

Court: TN Attorney General Opinions

Date: 2013-07-26

Opinion Number: 59


Civil Liability for Family Life Educators under Tenn. Code Ann. § 49-6-1306

Court: TN Attorney General Opinions

Date: 2013-07-26

Opinion Number: 60


Knoxville Defense Lawyer Dead at 69

Knoxville lawyer Ralph Harwell, who practiced law for decades and acted as mentor to a generation of attorneys, died today (July 30) at the age of 69. Harwell grew up in Savannah and moved to Knoxville to attend the University of Tennessee, where he earned his law degree in 1969. He served as a law clerk to the chief justice of the Tennessee Supreme Court and later practiced as a Knox County assistant district attorney general. Harwell entered private practice in 1976 and became known for his work as a defense lawyer. He spent his last few years battling cancer but continued to practice law at Harwell & Harwell, and remained active in his practice until the last two weeks. Funeral arrangements were pending at press time. Knoxnews has more on his life.


Funeral Arrangements Set for Late Rep. DeBerry

The family of the late Tennessee Rep. Lois DeBerry announced plans for her funeral today. Family members are invited to a graveside service at Elmwood Cemetery Saturday at 11 a.m. A public “legacy celebration” will follow at noon at First Baptist Church Broad, located at 2835 Broad Ave., Memphis 38112. In lieu of flowers, the family has requested donations be made to the Pancreatic Cancer Action Network, the National Black Caucus of State Legislators’ Lois M. DeBerry Memorial Fund or Greater Abyssinia Baptist Church. The Commercial Appeal reported the details.


Judge Releases DCS Record, Redaction Questions Raised

Davidson County Chancellor Carol McCoy on Monday turned over to The Tennessean and other media dozens of state records of children who died or nearly died under the supervision of the Department of Children’s Services. “The department is back on track,” McCoy said. But Nashville Public Radio reports that the state may have released too much information, failing to delete details like children’s ages and addresses. Commissioner Jim Henry says the department hired outside paralegals to go through the files and that “everybody doesn’t redact in the same way” but assured those concerned it was not their intent to release information that should have been protected. The Tennessean reports that 90 additional case files will be released on Aug. 21.


Cooper: Annex Laws are Constitutional

Tennessee cities’ use of annexation by ordinance generally meets muster under both the state and U.S. Constitutions, State Attorney General Robert Cooper said in an opinion released last week. The Times Free Press reports that Cooper found that “absent invidious discrimination or an intent to circumvent the ‘one person, one vote’ principle, annexation by municipal ordinance is constitutional.” Legislation proposed this year would have imposed a temporary moratorium on annexation to give the Tennessee Advisory Commission on Intergovernmental Relations time to study the state’s current procedures.


FBI Trafficking Sting Hits 11 in Tennessee

In 76 cities across the country, FBI agents arrested more than 150 people — including at least three in Memphis and eight in Chattanooga — who were involved in sex trafficking. The operation, conducted over the weekend, also freed more than 100 sexually exploited minors, officials said. In Memphis, three were arrested for forcing a 14-year-old girl into prostitution according to The Commercial Appeal. In Chattanooga, eight people were arrested on pimping charges while 11 women were arrested for prostitution, Knoxnews reports.


Deadline Extended for NLADA Nominations

The National Legal Aid & Defender Association (NLADA) has extended the nomination period for positions on its board of directors and civil and defender policy groups until Aug. 16. A description of positions that are open for nomination as well as criteria for each is available for download from the group's website. Nominations should be sent to Leadership Development Committee, 1140 Connecticut Ave. NW, Suite 900, Washington, D.C. 20036. NLADA is a national membership organization devoted to equal justice for all. It represents legal aid and public defender programs as well as individual advocates in public policy and legislative debates.


Florida Bar Supports Admission for Immigrant Lawyer

Florida Bar leaders have voted to support a petition seeking to amend state bar rules to allow the admission of undocumented immigrants. The effort was organized by Talbot "Sandy" D'Alemberte, former president of the ABA and Florida State University, who is representing bar applicant Jose Godinez-Samperio. A petition in support of admission was signed by 106 members of the state bar, including a former state governor, top judges, two former ABA presidents and five former bar presidents. Godinez-Samperio, who was brought to this country as a child, has passed the state bar exam and is awaiting a ruling on the issue by the state supreme court. The ABA Journal has more on the story.


Obama in Chattanooga to Speak on Job Creation

President Barack Obama gave the first in a series of policy speeches "on his better bargain for the middle class" during a visit to Chattanooga today, Chattanoogan.com reports. Advance information indicated he would talk about manufacturing and high-wage jobs, proposals for jumpstarting private sector job growth, making America more competitive and creating American jobs. The event took place at the Amazon fulfillment center in Chattanooga just as that company announced a hiring spree.


Mosque Opponents Appeal to State Supreme Court

Plaintiffs opposed to construction of a mosque in Murfreesboro have filed an appeal with the Tennessee Supreme Court hoping it will overturn an appeals court ruling that construction may begin on the site. The appeals court earlier had overturned a trial court finding that the county failed to provide adequate public notice before commissioners approved the plans. Joe Brandon Jr., attorney for the plaintiffs, said opponents of the mosque “…got robbed by the Department of Justice and the federal court. They tried to strong arm and bully everyone in sight, and we’re not going to tolerate that,” he said.


Davidson County Lawyer Censured

Davidson County lawyer Scott David Johannessen received a public censure from the Board of Professional Responsibility on July 29 for practicing law while on administrative suspension. On Nov. 29, 2012, Johannessen was suspended for failure to pay his professional privilege tax for two or more years. Though his license was reinstated on Dec. 19, 2012, the board found that he engaged in the unauthorized practice of law during the suspension period. His actions violated Rule of Professional Conduct 5.5. Download the BPR notice.


 
 

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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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