Communities Across Tenn. Celebrate Constitution Day

Today is Constitution Day and events across the state are exposing Americans to concepts enshrined in the nation’s founding document. Among the many activities taking place were the following:

  • In Chattanooga, events were scheduled throughout the week. Yesterday, Circuit Court Judge Neil Thomas III led the first of four seminars on the Constitution. Earlier, General Sessions Judge Lila Statom spoke to the local DAR chapter. Today, the county mayor spoke about the balance of power and responsibility in a federal system, while commission members were on hand to ring bells to celebrate constitutionally guaranteed freedoms. On Thursday, students will read the U.S. Constitution aloud on the steps of City Hall.
  • In Cookeville, nationally acclaimed constitutional law professor David Kopel will speak to students at Tennessee Tech University tonight about the right to bear arms.
  • In Franklin, Williamson College hosted a Constitution Day Lunch and discussion about the Brown v. Board of Education Supreme Court case, while representatives from the local DAR chapter visited classrooms to talk to students. That group also will hold a reenactment of the signing of the Constitution Sunday at 3 p.m. at the Historic Franklin Presbyterian Church.
  • Finally, in Murfreesboro, MTSU students focused on voter registration efforts and held a public debate on the proposed DREAM Act.

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
03 - TN Court of Appeals
05 - 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

KENNETH E. DIGGS v. LASALLE NATIONAL BANK ASSOCIATION, ET AL.

Court: TN Court of Appeals

Attorneys:

Kenneth E. Diggs, Memphis, Tennessee, Pro Se.

Lauren Paxton Roberts, Nashville, Tennessee, for the Appellees, Bank of America, N.A. and Bank of America Corporation.

John R. Wingo and Lauren Paxton Roberts, Nashville, Tennessee, for the Appellees, EMC Mortgage Corporation and J.P. Morgan Chase Bank, N.A.

Judge: STAFFORD

This appeal results from the trial court’s dismissal of a complaint on the basis of res judicata. However, in his appellate brief, the Appellant fails to raise as an issue the trial court's application of the doctrine of res judicata, or the resulting dismissal. Because the Appellant’s brief fails to raise and argue the dispositive issue in this case and does not otherwise comply with the requirements of the Tennessee Rules of Appellate Procedure, we decline to address the merits of the case and dismiss the appeal.


RONALD D. GRAHAM, ET. AL. V. BRADLEY COUNTY, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Michael E. Jenne, Cleveland, Tennessee, for the appellants, Ronald D. Graham and Winifred Marie Graham.

Thomas E. LeQuire, Cleveland, Tennessee, and Courtney E. Smith, Nashville, Tennessee, for the appellee, Bradley County, Tennessee.

Judge: MCCLARTY

This is a negligence case in which the Grahams were severely injured when the top portion of a tree collapsed, hitting their car while they were driving in Cleveland, Tennessee. Plaintiffs filed suit against the County, alleging that the County’s failure to maintain and inspect its roadways caused the accident. The County alleged that it could not be held liable pursuant to the Tennessee Governmental Tort Liability Act, codified at Tennessee Code Annotated section 29-10-101, et. seq. Following a trial, the trial court dismissed the complaint. The Grahams appeal. We affirm the decision of the trial court.


RICK P. NEWMAN v. THE KROGER COMPANY

Court: TN Court of Appeals

Attorneys:

Bruce D. Brooke, Memphis, Tennessee, for the appellant, Rick P. Newman.

Betty Ann Milligan, Bradford J. Spicer, Memphis, Tennessee, for the appellee, The Kroger Company.

Judge: HIGHERS

This is a slip and fall case. Plaintiff sued The Kroger Company after he fell in a puddle of water near a freezer at a local Kroger store. The trial court granted Kroger’s motion for summary judgment, but failed to include findings indicating the reason for its decision. We find that summary judgment was inappropriate and therefore reverse the trial court’s decision and remand for further proceedings.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. DICKIE RAY BAIN

Court: TN Court of Criminal Appeals

Attorneys:

James M. Judkins, Smithville, Tennessee, for the appellant, Dickie Ray Bain.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Randall A. York, District Attorney General; and Greg Strong, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Dickie Ray Bain, pled guilty in the DeKalb County Circuit Court to theft of property valued $1,000 or more, a Class D felony, and the trial court sentenced him as a Range III, career offender to twelve years to be served at sixty percent. On appeal, the appellant contends that the trial court committed reversible error by referring to the wrong offense during the sentencing hearing and that his sentence constitutes “cruel and unusual punishment.” Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.


DAVID G. HOUSLER, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Joseph Baugh, District Attorney General, for the appellant, State of Tennessee.

Paul A. Hemmersbaugh, Bryson Bachman, James Owens, Jason Vendel, and Michael J. Flanagan, Washington, DC, and Susan L. Kay and Ben Bolinger, Nashville, Tennessee, for the appellee, David G. Housler, Jr.

Judge: OGLE

The Petitioner, David G. Housler, Jr., filed petitions for post-conviction relief and writ of error coram nobis in the Montgomery County Circuit Court, seeking relief from his convictions for four counts of felony murder and resulting consecutive sentences of life in confinement. After an evidentiary hearing, the post-conviction court granted the petitions. On appeal, the State contends that the court erred by finding that the Petitioner was entitled to any relief. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the post-conviction court’s granting the petition for post-conviction relief but conclude that the court erred by granting the petition for writ of error coram nobis. Nevertheless, because the Petitioner has shown that he is entitled to post-conviction relief based upon his receiving the ineffective assistance of counsel at trial, the case is remanded to the trial court for further proceedings consistent with this opinion.


DAVID ALLEN LACKEY V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Kara Everett, Mt. Juliet, Tennessee, for the appellant, David Allen Lackey.

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

Judge: WILLIAMS

The petitioner, David Allen Lackey, appeals the determination of the post-conviction court that due process did not mandate a waiver of the statute of limitations. The petitioner is currently serving a life sentence in the Department of Correction following his conviction for first degree murder and theft of property valued under $500. Following a direct appeal, the petitioner filed an untimely petition for post-conviction relief. After the petition was denied by the post-conviction court, this court remanded the case for a determination of whether the petitioner’s due process rights required that the statute of limitations be tolled. After a hearing, the post-conviction court determined that the petitioner had failed to carry his burden of establishing his right to a tolling of the statute of limitations and dismissed the petition. The petitioner contends that the court’s determination was error. Following review of the record, we affirm the dismissal of the petition as untimely.


FRED MORGAN V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Fred Morgan, Whiteville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Fred Mogan, appeals the summary dismissal of his petition for postconviction relief as untimely. He pled guilty to one count of aggravated sexual battery in 2008 and was sentenced to twelve years in the Department of Correction. In September 2012, the petitioner filed what appears to be his second petition for post-conviction relief in this case. The post-conviction court dismissed the petition as untimely. On appeal, the petitioner contends that the court should have considered his petition because due process requires tolling the statute of limitation. Following review of the somewhat scant record before us, we affirm the dismissal of the petition for relief.


STATE OF TENNESSEE v. DEMETRIUS D. WALTON

Court: TN Court of Criminal Appeals

Attorneys:

Kimberly G. Turner, Clarksville, Tennessee, for the appellant, Demetrius D. Walton.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Chris Dotson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Demetrius D. Walton, pled guilty in the Montgomery County Circuit Court to one count of reckless aggravated assault. The trial court sentenced the appellant as a Range II, multiple offender to seven years in the Tennessee Department of Correction. On appeal, the appellant challenges the sentence imposed by the trial court and the trial court’s denial of his motion to reduce his sentence. Upon review, we affirm the length of the sentence imposed. However, we must remand to the trial court for a correction of the judgment to reflect that the appellant was sentenced as a Range II, multiple offender who was to serve a minimum of thirty-five percent of his sentence in confinement before being eligible for release.


Groups Urge ‘Necessary’ Resources for Federal Judiciary

The nonprofit group Justice at Stake and 26 other nonpartisan organizations joined together in a letter to members of the U.S. Congress today urging them to provide proper resources for the federal judiciary. The appeal cites data from the Administrative Office of the U.S. Courts that sequestration already has resulted in cuts of $350 million. “These cut threaten to erode several core constitutional values, including the right to a jury trial and due process, and threaten to make illusory key statutory rights, such as the right to a speedy trial,” the groups wrote. Read more from Gavel Grab or download a copy of the letter, which includes the list of participating groups.


Expedited Probate Docket Called a ‘Success’

In August, the Davidson County Trial Court established an expedited probate docket to handle uncontested matters such as name change petitions, small estate administrative proceedings, petitions to administer intestate estates, and petitions to probate wills, codicils and other testamentary instruments. To date, more than 100 cases have been tried by Special Probate Master Jennifer Surber and Special Master John Manson, who alternately preside over and conduct hearings on these cases. The experience thus far has been a success according to Court Administrator Tim Townsend. “We have received very positive feedback from everyone. As a result, this program will continue for the foreseeable future,” Townsend said yesterday. Chattanoogan.com has the court's news release.


Rutherford Judge Follows Suspect After Hit-and-Run

Rutherford County General Sessions Judge Larry Brandon was the victim of a hit-and-run accident this week, WGNS Radio reports. According to a Murfreesboro police report, Brandon was driving on Middle Tennessee Boulevard when he was rear-ended by a Ford E-250 van. The van pushed the judge’s car into the vehicle in front of him and then sped away. The judge followed the suspect’s vehicle and police met him at the suspect’s address minutes later. Officers issued two citations to the van driver: one for driving on a revoked license and one for leaving the scene of an accident. No one was injured in the crash.


Baby Messiah Case Back in Court

An appeal of Child Support Magistrate Lu Ann Ballew’s decision to change a baby’s name from Messiah to Martin will be heard tomorrow in Cocke County Chancery Court. A brief filed on behalf of the family argues that Ballew originally ruled to keep the baby’s first name but later that decision was "whited out" in the court record. Ballew later called a second hearing where she changed the child's name to Martin saying, "Messiah is a title that is held only by Jesus Christ." Fox News reports on the story.


Early Voting Starts Wednesday for DeBerry Seat

Early voting opens tomorrow in the Democratic primary for State House District 91 and runs through Oct. 3, with regular voting following on Oct. 8. The winner in the seven-way primary to fill the seat vacated by Lois DeBerry will advance to a Nov. 21 special general election and face Jim Tomasik, who is running as a Libertarian. No candidates filed in the Republican primary. The Democratic primary race shrank by one earlier this week when Dwight DeBerry, who claims he is related to the late legislator, was disqualified based on a conviction for aggravated robbery and assault in 1992. The Memphis Daily News has more on both stories.


Rutherford D.A. Won’t Seek Re-election

Rutherford County District Attorney General Bill Whitesell announced Monday that he will not seek re-election in 2014, the Daily News Journal reports. “I want to retire with good health, which I have right now, and after 34 years, somebody else probably has a fresh idea.” So far, two assistant district attorney generals -- Trevor Lynch and Jennings Jones -- have announced their intention to run as Republicans.


New Date Set for Judiciary Museum Unveiling

The Tennessee Supreme Court Historical Society has rescheduled the unveiling of Phase II of the Tennessee Judiciary Museum. The event now will take place on the evening of Dec. 4. It will feature a short program honoring Supreme Court Justice Janice Holder for her service on the court, as well as cocktails and heavy hors d’oeuvres. The event was moved back one day so as to not conflict with the Nashville Bar Association’s Annual Meeting set for the evening of Dec. 5. To purchase tickets for the museum event contact Linda Knight at lknight@gsrm.com or (615) 244-4994. Download a flyer with more details.


NBA Member Picnic Set for Thursday

The Nashville Bar Association's free Annual Member Picnic will take place Thursday at the Hall of Fame Park, located between the Country Music Hall of Fame, Hilton Hotel and Schermerhorn Symphony Center. The event begins at 5:30 p.m. with dinner from the Copper Kettle to be served at 7 p.m. This year’s picnic, cosponsored by the Metro Law Department, will feature a sports theme with trivia and activities provided by event sponsors. Attendees are encouraged to show support for their favorite sports team by wearing a jersey or team hat.


Retired Federal Judge Dies in Germantown

Retired federal judge Michael A. Lasher Jr. of Germantown died Sunday (Sept. 15). Lasher, 81, graduated from the University of Louisville School of Law and practiced law in Phoenix before becoming a judge with the Bureau of Mine Safety. His work took him to Washington, D.C., and Denver. Lasher moved to Germantown 20 years ago after retiring from government service. A private graveside service will be held at Calvary Cemetery in Memphis. The family suggests that memorials be made to the Memphis Humane Society, 935 Farm Rd., Memphis, TN 38134. The Commercial Appeal has more on his life.


Knoxville Lawyer Suspended; Failed to Answer Complaint

The Tennessee Supreme Court suspended Knoxville lawyer Steven Edward Sams on Sept. 12 after finding that he had failed to respond to the Board of Professional Responsibility regarding a complaint of misconduct. 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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