Eminent domain gets close look

The Special Joint Study Committee on Eminent Domain got down to business today with more than 36 bills on its agenda. The leading  bills  that would address the substance seem to be SB 3296 and SB 2420. Each takes a different approach, but each tries to limit the power of condemning entities. Another approach touted in committee is strengthening the landowners' hand procedurally. SB 3136 is an example of such an approach. The Tennessee Bar Association Real Estate Section has recommended that the TBA offer its assistance  in assuring that changes that might be made do not have unintended consequences. That move was approved this afternoon by the TBA  Executive Committee.

Follow bills of interest to lawyers with the TBA Bill Tracking Service at

http://www.tba.org/tba_legismain.html

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.

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

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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

SUPREME COURT DISCRETIONARY APPEALS

Court: TSC

http://www.tba2.org/tba_files/TSC/2006/certlist030606.pdf


CATHERINE LAYMAN v. VANGUARD CONTRACTORS, INC., ET AL.

Court: TSC

Attorneys:

William Lamar Aldred, Jr., Clarksville, Tennessee, for the Plaintiff-Appellant, Catherine Layman.

Richard Charles Mangelsdorf, Jr., Nashville, Tennessee, for the Defendants-Appellants, Vanguard Contractors, Inc. and Lumberman’s Underwriting Alliance.

Judge: JANICE M. HOLDER

The plaintiff sought workers’ compensation benefits for both cognitive impairment and a disfiguring scar resulting from a work-related accident. We conclude that the evidence does not preponderate against the trial court’s conclusion that the plaintiff did not suffer cognitive impairment as a result of the accident. With regard to the benefits for disfigurement, the trial court erred in calculating benefits as an award to the body as a whole pursuant to Tennessee Code Annotated section 50-6-207(3)(F) (1999). Injuries for disfigurement are instead governed by Tennessee Code Annotated section 50-6-207(3)(E) (1999), which limits the benefits for disfigurement to 200 weeks. Because the plaintiff’s disfigurement may not be classified as an injury to the body as a whole, the trial court erred in limiting the award to two and one-half times the impairment rating as set forth in Tennessee Code Annotated section 50-6-241(a)(1) (1999). After an independent review of the evidence, we conclude that the evidence supports a vocational disability of 20% due to the disfigurement. Accordingly, the trial court’s judgment is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/laymanc030606.pdf


STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. A.M.H. AND J.W.B.

Court: TCA

Attorneys:

Clifton L. Corker, Johnson City, Tennessee, for the Appellant, A.M.H.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee Department of Children’s Services.

Judge: SHARON G. LEE

This is a parental rights termination case. A.M.H. (“Mother”) appeals the trial court’s decision terminating her parental rights to her four children. On appeal, Mother argues, inter alia, that the “special judge” lacked judicial authority to terminate parental rights and that the evidence preponderates against the trial court’s finding that grounds for termination exist and that termination is in the best interests of the children. We conclude that the “special judge” must be considered a de facto judge with authority to preside over this juvenile court matter and that the record contains sufficient evidence to support the trial court’s decision. Therefore, we affirm.

http://www.tba2.org/tba_files/TCA/2006/amh030606.pdf


JACK TROTTER, ET AL. v. GRAND LODGE F. & A.M. OF TENNESSEE

Court: TCA

Attorneys:

Robert P. Rayburn, Chattanooga, Tennessee, for the appellant, Jack Trotter.

Reba Brown and Samuel L. Jackson, Nashville, Tennessee, for the appellee, Grand Lodge F. & A.M. of Tennessee.

Judge: SHARON G. LEE

The plaintiff in this case sued the fraternal organization of which he was a member for defamation and violation of due process in connection with his removal from an administrative office he held in one of the organization’s lodges. The plaintiff alleged defamatory statements related to his removal were contained in a letter and dispensation read to members of the organization and in a pamphlet subsequently distributed at the organization’s annual meeting. The trial court granted the defendant’s motion for summary judgment. We affirm summary judgment in part upon grounds that the allegedly defamatory statements contained in the letter and dispensation were not published and upon grounds that the plaintiff failed to present any evidence showing that the defendant’s actions were state actions or actions taken under color of state law as is required in a cause of action for violation of due process. We reverse summary judgment in part upon grounds that a factual issue exists as to whether the allegedly defamatory statements contained in the pamphlet were published and/or were conditionally privileged.

http://www.tba2.org/tba_files/TCA/2006/trotterj030606.pdf


STATE OF TENNESSEE v. ERIC BERRIOS

Court: TCCA

Attorneys:

William D. Massey, Memphis, Tennessee, for the Appellee, Eric Berrios.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; William L. Gibbons, District Attorney General; and Valerie Smith, Assistant District Attorney General, for the Appellant, State of Tennessee.

Judge: JAMES CURWOOD WITT, JR.

Before the court is an interlocutory appeal by the State, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The defendant, Eric Berrios, moved to suppress evidence seized during a search of his automobile. The trial judge concluded that the evidence had been illegally seized and granted the motion to suppress. We affirm the judgment of the trial court and remand this case for further proceedings.

http://www.tba2.org/tba_files/TCCA/2006/berriose030606.pdf


STATE OF TENNESSEE v. LARRY DAVIS

Court: TCCA

Attorneys:

Randall B. Tolley (on appeal) and Johnny Pritchard (at trial), Memphis, Tennessee, for the appellant, Larry Davis.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jack Irvine and Greg Gilbert, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: NORMA MCGEE OGLE

The appellant, Larry Davis, was convicted by a jury in the Shelby County Criminal Court of driving under the influence (DUI), a Class A misdemeanor. He received a sentence of eleven months and twenty-nine days in the Shelby County Workhouse. On appeal, the appellant raises several issues relating to the sufficiency of the evidence. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/davisl030606.pdf


LUTHER E. FOWLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Luther E. Fowler, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

Judge: GARY R. WADE

The petitioner, Luther E. Fowler, appeals the trial court’s order dismissing his petition for post-conviction relief. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The pleading is barred as a successive petition attacking the same judgment and by the statute of limitations and was properly dismissed. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/fowlerl030606.pdf


STATE OF TENNESSEE v. BERNARDINO LIRA, also known as JOSE FERNANDEZ

Court: TCCA

Attorneys:

Leslie I. Ballin and Gray W. Bartlett, Memphis, Tennessee, for the appellant, Bernardino Lira, also known as Jose Fernandez.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kirby May and David Zak, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: ALAN E. GLENN

The defendant, Bernardino Lira, pled guilty to DUI, third offense, and driving on a revoked license, receiving concurrent sentences of eleven months and twenty-nine days and ten days, with all but four months suspended. He reserved as a certified question whether the trial court erred in denying his motion to suppress the fruits of the stop of his vehicle. We conclude that the question is properly certified and that the trial court ruled correctly in denying the motion to suppress.

http://www.tba2.org/tba_files/TCCA/2006/lirab030606.pdf


STATE OF TENNESSEE v. DAVID WAYNE NEAL

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender, Clarksville, Tennessee, for the Appellant, David Wayne Neal.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; and Art Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: DAVID G. HAYES

The Appellant, David Wayne Neal, appeals the sentencing decision of the Montgomery County Circuit Court. Neal entered a “best interest” guilty plea to one count of aggravated burglary and a guilty plea to forgery. He was sentenced to an effective term of six years in the Department of Correction. The aggregate six-year sentence was then ordered to be served consecutively to an unserved two-year sentence resulting from a revocation of probation in a separate case. On appeal, Neal argues that the trial court erred by ordering that his sentences be served in confinement. The judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2006/neald030606.pdf


STATE OF TENNESSEE v. JERALD M. SEAY

Court: TCCA

Attorneys:

Robert Wilson Jones, Shelby County Public Defender; William Robilio, Assistant Public Defender (at trial); and Garland Ergüden, Assistant Public Defender (on appeal), for the appellant, Jerald M. Seay.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lora Fowler and Alexia Fulgham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: ALAN E. GLENN

The defendant, Jerald M. Seay, was found guilty by a Shelby County jury of unlawful possession of cocaine with intent to sell and unlawful possession of cocaine with intent to deliver, Class C felonies. After merging the two counts together into a single conviction for unlawful possession of cocaine with intent to sell, the trial court sentenced the defendant as a Range II, multiple offender to ten years in the Department of Correction and fined him $2,000. On appeal, he argues: (1) the evidence was insufficient to support his conviction; and (2) the trial court erred in allowing him to be impeached with stale convictions. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/seayj030606.pdf


JOHNNY SHIELDS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Johnny Shields, pro se, Whiteville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Petitioner, Johnny Shields, appeals the post-conviction court’s dismissal of his petition for post-conviction relief as time-barred. We affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/shieldsj030606.pdf


STATE OF TENNESSEE v. JAMES VANOVER

Court: TCCA

Attorneys:

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, James Vanover.

Paul G. Summers, Attorney General and Reporter; Jane L. Beebe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin J. Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

A Knox County Criminal Court jury convicted the defendant, James Vanover, of one count of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him to twenty years for the rape and eight years for each aggravated sexual battery to be served consecutively at 100% for an effective sentence of thirty-six years in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that his sentence is excessive. We conclude that the evidence is sufficient, but we conclude that the trial court improperly ordered consecutive sentencing. We remand the case to the trial court for resentencing.

http://www.tba2.org/tba_files/TCCA/2006/vanoverj030606.pdf


STATE OF TENNESSEE v. CHRISTOPHER A. WILLIAMS, a/k/a “BOOGER”

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appellant, Christopher A. Williams, a/k/a “Booger.”

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS T. WOODALL

Defendant, Christopher A. Williams, a/k/a “Booger,” pled guilty to three counts of selling .5 grams or more of cocaine, two counts of selling less than .5 grams of cocaine, and one count of possession of more than .5 grams of cocaine with the intent to sell. He received a total effective sentence of seventeen years. In his appeal, Defendant challenges the trial court’s denial of community corrections. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/williamsc030606.pdf


Constitutionality of Bills Prohibiting Picketing, Protesting, or Demonstrating at Funerals

TN Attorney General Opinions

Date: 2006-03-06

Opinion Number: 06-43

http://www.tba2.org/tba_files/AG/2006/ag_06-43.pdf

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Survey wasn't intended to get judges in trouble
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TBA 'senior counselor' Painter honored in Cleveland
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Lawyers in nearly all types of practices can face immigration issues in today's climate. A new course from TennBarU offers basic information on immigration issues as they apply to domestic relations, criminal law, civil rights isues, employment and more. Coming this Friday to Nashville, March 31 to Memphis and May 3 to Knoxville.
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