Senate confirms Tate nomination to FCC board

The Senate Wednesday confirmed the nomination of Tennessee attorney Deborah Tate to fill an open seat on the Federal Communications Commission. Tate, a director on the Tennessee Regulatory Authority and its former chair, will fill the remainder of the term of former Chairman Michael Powell, who left the agency in March. Her term expires in June 2007.
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. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
14 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. 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. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

OFFICE OF THE ATTORNEY GENERAL, CONSUMER ADVOCATE AND PROTECTION DIVISION v. TENNESSEE REGULATORY AUTHORITY

Court: TCA

Attorneys:





Judge: WILLIAM C. KOCH, JR.

On November 29, 2005, this court issued an opinion finding that the Tennessee Regulatory Authority (Authority) failed to follow the requirements of then-existing law when it declined to convene a contested case proceeding with regard to BellSouth Telecommunications, Inc.’s “Welcoming Reward Program” tariff. Both the Authority and BellSouth have filed timely petitions for rehearing in accordance with Tenn. R. App. P. 39 with regard to portions of that opinion.

http://www.tba2.org/tba_files/TCA/2005/consumera122205.pdf


FRANKLIN CAPITAL ASSOCIATES, L.P. v. ALMOST FAMILY, INC.

Court: TCA

Attorneys:





Judge: FRANK G. CLEMENT, JR.

This court issued an opinion on November 29, 2005 affirming in part and modifying in part the trial court’s judgment, the result of which was an award of damages against Almost Family, Inc., f/k/a Caretenders Health Corporation, (Caretenders) in the amount of $658,886.50 in favor of Franklin Capital Associates, L.P. See Franklin Capital Associates, L.P., v. Almost Family, Inc., f/k/a Caretenders Health Corporation, No. M2003-02191-COA-R3-CV, 2005 WL 3193688, (Tenn. Ct. App. Nov. 29, 2005). On December 9, 2005, Franklin filed a timely petition for this court to rehear that portion of the case relating to the application of a block discount to determine Franklin’s damages. Having considered the petition for rehearing, we have concluded the trial court did not err by applying a block discount to determine Franklin’s damages. Accordingly, we deny the petition for rehearing.

http://www.tba2.org/tba_files/TCA/2005/franklinc122205.pdf


EDDIE WAYNE GORDON v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Eddie Gordon, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jennifer L. Brenner, Assistant Attorney General, for the State of Tennessee.

Judge: DAVID R. FARMER

An inmate in custody of the Tennessee Department of Correction filed a complaint charging the department with negligently disposing of certain items of personal property. The claim was denied by the Tennessee Claims Commission and the claimant appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2005/gordone122205.pdf


LIPMAN BROTHERS, INC. v. ARETE AGENCIES, INC.

Court: TCA

Attorneys:

Eugene N. Bulso, Jr. And Barbara Hawley Smith, Nashville, Tennessee, for the appellant, Lipman Brothers, Inc.

Thomas I. Carlton, Jr. And Ben M. Rose, Nashville, Tennessee, for the appellee, The Hartford Insurance Company.

Judge: DAVID R. FARMER

Plaintiff Lipman Brothers, Inc. purchased 1,156 cases of French wine and hired Italia Di Navigazione, S.p.A. (“Italia”) to ship the wine to the United States from France. Italia subsequently hired Defendant Arete Agencies, Inc. (“Arete”) to transport the wine to Plaintiff’s Nashville warehouses. Arete placed the wine on a train bound for Nashville but, after reaching its destination, the wine was never delivered to Plaintiff and ultimately spoiled after setting outside in the summer heat for thirty-six days. Arete’s insurance provider, The Hartford Insurance Company (“Hartford”), denied coverage for the incident. Plaintiff later obtained a judgment against Arete and, after learning that Arete was unable to pay, issued a writ of garnishment against Hartford. The trial court subsequently quashed Plaintiff’s writ after concluding that the debt was “contingent” because Plaintiff failed to first institute a declaratory judgment action to interpret the disputed insurance contract before seeking garnishment. We reverse.

http://www.tba2.org/tba_files/TCA/2005/lipman122205.pdf


STATE OF TENNESSEE v. CHARLES BALDWIN

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Charles Baldwin.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Rob McQuire and Angie Dalton, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: JERRY L. SMITH

The appellant, Charles Baldwin, pled guilty to two counts of theft over $10,000. The trial court sentenced the appellant as a Range II offender to concurrent sentences of eight years on each count. The trial court ordered nine months in incarceration followed by community corrections. After violating the conditions of community corrections, the trial court increased the appellant’s sentence from eight years on each conviction to ten years on each conviction. The trial court ordered the appellant to serve thirty days of the increased sentence in incarceration before being placed back on community corrections. After the appellant violated the conditions of community corrections for a second time, the trial court simply reinstated the appellant to community corrections. Subsequently, a third violation warrant was issued against the appellant. The trial court determined that the appellant violated, for the third time, the conditions of community corrections and re-sentenced the appellant to ten years on each conviction to be served consecutively in the Department of Correction. The appellant filed a timely notice of appeal challenging the trial court’s decision to increase his sentence and order incarceration. For the following reasons, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/baldwinc122205.pdf


KEVIN B. BURNS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Donald E. Dawson and Marjorie Bristol, Nashville, Tennessee, for the appellant, Kevin B. Burns.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle Chapman McIntire, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: ALAN E. GLENN

The petitioner, Kevin B. Burns, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. He was convicted of two counts of felony murder and two counts of attempted felony murder and sentenced to death on one count of felony murder and to life imprisonment on the second count of felony murder. His convictions and sentences for first degree felony murder, including the sentence of death, were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Burns, 979 S.W.2d 276 (Tenn. 1998). However, this court reversed the attempted felony murder convictions and sentences, finding these convictions did not constitute a crime in this state. See State v. Kevin Burns, No. 02C01-9605-CR-00170, 1997 WL 418492, at *9 (Tenn. Crim. App., at Jackson, July 25, 1997), aff’d, 979 S.W.2d 276 (Tenn. 1998). The pro se petition for post-conviction relief resulted in the appointment of counsel and the filing of two amended petitions. An evidentiary hearing was conducted, and the post-conviction court denied the petitions. On appeal, the petitioner presents a number of claims in four broad categories: (1) he was denied a fair post-conviction evidentiary hearing; (2) he was denied due process; (3) trial counsel were ineffective; and (4) the imposition of the death penalty is unconstitutional. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2005/burnsk122205.pdf


STATE OF TENNESSEE v. BRENT LEMANE DUNCAN

Court: TCCA

Attorneys:

Harriet S. Thompson, Bolivar, Tennessee, for the appellant, Brent Lemane Duncan.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; Joe Van Dyke, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: THOMAS T. WOODALL

Following a jury trial, Defendant, Brent Lemane Duncan, was found guilty of aggravated assault, a Class C felony, and domestic assault, a Class A misdemeanor. Defendant received a sentence of three years for the felony and eleven months, twenty-nine days for the misdemeanor, to be served concurrently. The trial court ordered Defendant to serve sixty (60) days periodic confinement, to be served on weekends, and assessed fines against Defendant in the amount of $2,500.00 for each conviction. In his appeal, Defendant challenges the sufficiency of the evidence and argues that the trial court committed reversible error by (1) sustaining the State’s objection to cross examination of the victim regarding her background; (2) sustaining the State’s objection to the testimony of Defendant’s mother regarding the reputation of the victim and the victim’s propensity for truthfulness and veracity; and (3) sustaining the State’s objection to Defendant’s attempt to cross-examine the victim regarding prior inconsistent statements. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/duncanb122205.pdf


STEVE G. HUTTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steve G. Hutton, pro se, Whittenville, Tennessee.

Paul G. Summers, Attorney General and Reporter, Brent C. Cherry, Assistant Attorney General, for the Appellee, State of Tennessee

Judge: ROBERT W. WEDEMEYER

Over a span of several years, the Petitioner, Steve G. Hutton, was convicted of eight counts of passing worthless checks, one count of theft, one count of forgery, one additional count of passing a worthless check, and one count of reckless endangerment. The Petitioner filed a petition for a writ of habeas corpus, alleging that his continued confinement is illegal. The trial court dismissed the petition, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/huttonsg122205.pdf


STATE OF TENNESSEE v. GARY TIMOTHY LAWLER

Court: TCCA

Attorneys:

John Pellegrin, Gallatin, Tennessee, for the appellant, Gary Timothy Lawler.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Charles Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS T. WOODALL

The Defendant, Gary Timothy Lawler, pled guilty to one count of attempted aggravated sexual battery, a Class C felony; one count of attempted rape, a Class C felony; and one count of attempted sexual battery by an authority figure, a Class D felony. He received a sentence of seven years for each conviction. The sentence for the attempted aggravated sexual battery conviction was ordered to be served consecutively to the remaining two sentences, which were ordered to be served concurrently with each other. Thus, the total effective sentence is fourteen years. Defendant argues that the trial court erred in denying him alternative sentencing and requiring him to serve the entire sentence in the Tennessee Department of Correction. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/lawlerg122205.pdf


STATE OF TENNESSEE v. FRANK MCDONNELL

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the Appellant, Frank McDonnell.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: JAMES CURWOOD WITT, JR.

A Humphreys County Circuit Court jury convicted the defendant, Frank McDonnell, of reckless endangerment committed with a deadly weapon, a Class E felony. See Tenn. Code Ann. § 39-13-103(b) (2003). The trial court sentenced the defendant as a standard offender to one year in confinement, suspended the sentence, and placed the defendant on probation for a term of one year, which the defendant has completed. In the instant appeal, the defendant claims that the trial court erred in denying judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. See Tenn. Code Ann. § 40-35-313 (Supp. 2004). Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2005/mcdonnellf122205.pdf


BILLY MERLE MEEKS v. RICKY J. BELL, WARDEN

Court: TCCA

Attorneys:

Billy Merle Meeks, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; and Victor S. (Torry) Johnson III, District Attorney General, for the appellee, the State of Tennessee.

Judge: THOMAS T. WOODALL

In 1990, Appellant, Billy Merle Meeks, was convicted, following a jury trial, of aggravated kidnapping, especially aggravated robbery, especially aggravated burglary, and extortion. He received an effective sentence of thirty-nine (39) years. On October 29, 2004, he filed a petition for writ of habeas corpus in the Circuit Court of Davidson County. A “Motion to Dismiss” was filed by Respondent on November 29, 2004, and the trial court entered an order summarily dismissing the petition on March 10, 2005. Appellant has appealed from the trial court’s dismissal of the petition. The State has filed a motion for this Court to affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Finding merit in the motion, we grant same and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/meeksb122205.pdf


JOE CLARK MITCHELL v. STATE OF TENNESSEE, KEVIN MYERS, WARDEN

Court: TCCA

Attorneys:

Joe Clark Mitchell, Pro Se, Clifton, Tennessee

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General; Mike Bottoms, District Attorney General; and Richard H. Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JERRY L. SMITH

The petitioner, Joe Clark Mitchell, filed a petition for writ of habeas corpus alleging that he was being held illegally after the expiration of two consecutive six-year sentences. The trial court dismissed the petition. The petitioner appeals, seeking review of the trial court’s dismissal of the petition. Following a review of the record and applicable authorities we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/mitchellj122205.pdf


JASON E. MIZE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason E. Mize, Pro se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General, John H. Bledsoe, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Petitioner, Jason Mize, pled guilty in the Union County Criminal Court to aggravated robbery. In accordance with the plea agreement, the Petitioner was sentenced to an eight year sentence, to run concurrently with “Knox and Anderson County cases.” Subsequently, the Petitioner pled guilty to two aggravated robbery charges in the Anderson County Criminal Court and received concurrent eight year sentences on each count. The Anderson County judgment contains the notation, “This sentence may run concurrent with defendant’s Knox County sentence if legally possible.” The Petitioner filed a petition for a writ of habeas corpus alleging that the Union County conviction is illegal and void because at the time he entered his guilty plea in Union County, he had not yet been convicted in the “Knox and Anderson cases.” The Petitioner filed an additional petition for a writ of habeas corpus alleging that the Anderson County judgments of conviction are illegal and void because it is not “legally possible” for the Anderson County sentences to be run concurrently with the Knox County sentence. Both petitions were assigned the same docket number in the Morgan County Criminal Court and subsequently were transferred to the Davidson County Circuit Court, where they were assigned the same Davidson County docket number and ultimately summarily dismissed. On appeal, the Petitioner contends that he is entitled to habeas corpus relief because his sentences are illegal and the judgments from the Union County Court and the Anderson County Court are void on their faces. After reviewing the record and relevant authorities, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/mizej122205.pdf


JAMES L. MOORE v. KEVIN MYERS, WARDEN

Court: TCCA

Attorneys:

James L. Moore, Clifton, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and T. Michel Bottoms, District Attorney General, for the appellee, the State of Tennessee.

Judge: THOMAS T. WOODALL

Petitioner, James L. Moore, has appealed from the trial court’s summary dismissal of the petition for writ of habeas corpus filed by Petitioner. The State has filed a motion, pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals, for affirmance of the trial court’s judgment. Petitioner opposes the motion. After a thorough review of the record, we grant the State’s motion and accordingly affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/moorej122205.pdf


J. C. OVERSTREET, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, J. C. Overstreet, Jr.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian K. Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JOHN EVERETT WILLIAMS

The petitioner appeals the denial of his post-conviction petition, contending that: (1) counsel was ineffective in failing to adequately inform him of the consequences of his plea; and (2) his pleas were coerced by counsel’s assurances that he would be placed in the DeBerry Special Needs Facility. Upon review, we conclude that counsel explained the consequences of the pleas with the petitioner and that his plea was knowingly and voluntarily entered, as it was made clear to the him that placement was not part of his plea agreement but was within the discretion of the Department of Correction. Therefore, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2005/overstreetj122205.pdf


DWIGHT K. PRITCHARD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight K. Pritchard, Pro Se.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: DAVID H. WELLES

The Petitioner, Dwight K. Pritchard, appeals the summary dismissal of his petition for a writ of habeas corpus. The Petitioner contends that the guilty pleas he entered were not knowing and voluntary because the sentences imposed by the trial court are illegal. Following a thorough review of the record and applicable law, we reverse the judgment of the trial court summarily dismissing the petition. We remand this case to the trial court for further proceedings.

http://www.tba2.org/tba_files/TCCA/2005/pritchardd122205.pdf

Judge Hayes DISSENTING
http://www.tba2.org/tba_files/TCCA/2005/pritcharddDIS122205.pdf


STATE OF TENNESSEE v. DESHAWN TURNER

Court: TCCA

Attorneys:

Lloyd R. Tatum, Henderson, Tennessee, for the Appellant, Deshawn Turner

Paul G. Summers, Attorney General and Reporter; Jane L. Beebe, Assistant Attorney General; Robert “Gus” Radford, District Attorney General; John W. Overton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, Deshawn Turner, was convicted of one count of possession of .5 grams or more of cocaine a schedule II controlled substance, with the intent to manufacture, deliver or sell, and the trial court sentenced him to sixteen years in prison. On appeal, the Defendant contends that the trial court erred when it refused to grant his motion to sever his trial from the trial of his co-defendant and that the evidence is insufficient to sustain his conviction. Finding that there exists no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/turnerd122205.pdf


STATE OF TENNESSEE v. R. L. WILLIAMS

Court: TCCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the Appellant, R. L. Williams.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bernard McEvoy, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: DAVID G. HAYES

The Appellant, R. L. Williams, was convicted by a Davidson County jury of one count of rape by force, see T.C.A. § 39-13-503(a)(1), and one count of rape without consent, see T.C.A. § 39-13-503(a)(2), and was sentenced to twelve years in the Department of Correction. On appeal, he raises three issues for our review: (1) whether double jeopardy precluded dual convictions based upon a single act; (2) whether the trial court properly discharged its duty as thirteenth juror; and (3) whether the twelve-year sentence imposed was excessive. After review of the record, we conclude that entry of dual convictions was error. Accordingly, we remand for entry of corrected judgment forms whereby the conviction for rape without consent is merged with the conviction for rape by force. As to Williams’ remaining assertions, we find no merit. Accordingly, the judgment of conviction for rape by force in Count 1 and the resulting twelve-year sentence are affirmed.

http://www.tba2.org/tba_files/TCCA/2005/williamsr122205.pdf


Government Entity's Authority to Contract with Private Firm to Audit, Assess or Collect Taxes

TN Attorney General Opinions

Date: 2005-12-22

Opinion Number: 05-181

http://www.tba2.org/tba_files/AG/2005/ag_05-181.pdf

TODAY'S NEWS

Legal News
Online CLE

Legal News
TBA closed for holidays
The Tennessee Bar Association will be closed Dec. 23-26, and Jan. 2, 2006, for the holidays.

Teen Court program gets airtime
WBIR, the NBC affiliate in Knoxville aired a story on the developing teen court program in Cumberland County last week.
news.aspx?storyid=30764
Judge praises jury service
Sumner County Criminal Court Judge Jane Wheatcraft writes that juries are the backbone of the judicial system and that jury service is a small way to give back to society in a recent opinion piece in the Gallatin News Examiner.
article?AID=/20051209/MTCN0405/312090017/1314
Sevier County Bar chooses new leaders
Steve Marshall of Marshall, Delius & Taylor in Sevierville has been chosen present of the Sevier County Bar Association for the coming year. He replaces Richard Wallace of Wallace, Sexton & Koester. Charles Edwards was elected vice president and Melissa Moore was named secretary/treasurer.

Online CLE
TennBarU End-of-Year CLE Blowout offers 150+ courses
If you still need a few hours of CLE credit to meet your 2005 obligations, TennBarU is ready to help. From Dec. 27 to Dec. 30, TennBarU will be showing videos of our top CLE programs from 7 a.m. to 7 p.m. every day. Drop in and take as many hours as you need. Four programs will be showing at all times.
endofyear_2005.html
New online video courses focus on legal malpractice
Learn about current developments in the area of legal malpractice and common (but often avoidable) mistakes lawyers make in a new online video course from TennBarU. A second new courses focuses on emerging issues in legal malpractice.
tnbar/

 
 
UNSUBSCRIBE TO TBAToday? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba2.org/tbatoday/unsub_tbatoday.php

TBALink HomeContact UsPageFinderWhat's NewHelp
 
 
© Copyright 2005 Tennessee Bar Association