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Join your colleagues from the Tennessee legal community at the state's largest and longest-running gathering - the annual Tennessee Bar Association convention. This year's event will be in Memphis, June 14-17 at the Peabody Hotel. The event will again be held in conjunction with gatherings of the Tennessee Judicial Conference, the Tennessee Trial Lawyers Association and the Tennessee Lawyers' Association for Women. Register or find out more now.

http://www.tba.org/convention2006/index.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.

00 - TN Supreme Court
03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
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00 - TN Attorney General Opinions
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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

C. ANNETTE GARLAND v. ST. MARY'S HEALTH SYSTEM, INC.

Court: TWCA

Attorneys:

John B. Dupree, Knoxville, Tennessee, for Appellant, St. Mary's Health System, Inc.

James S. MacDonald, Knoxville, Tennessee, for Appellee, C. Annette Garland.

Judge: THAYER

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded Plaintiff 54 percent permanent partial disability as a result of sustaining a latex allergy injury. Defendant contends the evidence established that Plaintiff did not have a latex allergy condition and if she did, her last employer would be responsible for compensation under the last injurious exposure rule. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2006/garlandc032206.pdf


CURTIS O. MCCONKEY v. VONORE POLICE DEPARTMENT

Court: TWCA

Attorneys:

John T. Batson, Jr., Knoxville, Tennessee, for Appellant, Vonore Police Department.

C. Edward Daniel, Knoxville, Tennessee, for Appellee, Curtis O. McConkey.

Judge: FRIERSON

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded plaintiff sixty (60) percent permanent, partial vocational disability to the right leg. On appeal, the employer contends that the employee's injury did not arise out of his employment and is therefore not compensable. The employer alternatively argues that the trial court's permanent, partial vocational disability award is excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2006/mcconkeyc032206.pdf


ELIZABETH NORTHERN v. SONOCO PRODUCTS COMPANY

Court: TWCA

Attorneys:

Kevin Washburn and Richard H. Allen, Memphis, Tennessee, for the Defendant-Appellant, Sonoco Products Company.

Jeffrey P. Boyd, Jackson, Tennessee, for the Plaintiff-Appellee, Elizabeth Northern.

Judge: PEEPLES

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant contends that the trial court erred in awarding the plaintiff a 25 percent permanent partial disability rating to both arms for bilateral carpal tunnel syndrome and right trigger thumb and ring finger. We disagree and therefore affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2006/northern032206.pdf


MARY ANN BAINES v. GREGORY TODD BAINES

Court: TCA

Attorneys:

Linda M. Anderson, Nashville, Tennessee, for the appellant, Mary Ann Baines.

Sandra Jones, Nashville, Tennessee, for the appellee, Gregory Todd Baines.

Judge: CLEMENT

In this divorce proceeding, the mother of the parties' only child seeks to declare void an order of the Circuit Court of Davidson County awarding father custody of the parties' child. She contends the Juvenile Court of Wilson County had exclusive jurisdiction because a dependent and neglect proceeding had been commenced. We have determined the Juvenile Court had relinquished its jurisdiction over the child and therefore affirm the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCA/2006/bainesm032206.pdf


LESLYN ELIZABETH MILLER BALLEW v. JOHN MICHAEL BALLEW

Court: TCA

Attorneys:

Barry J. McWhirter, Bradley W. Eskins, Memphis, TN, for Appellant .

Kay Farese Turner, Martin W. Cash, Jr., Memphis, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine the validity of a consent judgment entered by the chancery court granting a divorce to the parties. At trial, the parties voluntarily submitted their case to mediation. At the conclusion of the mediation, the mediator dictated the settlement terms onto a tape recorder, and the parties acknowledged onto the tape recorder that these terms were the understanding of the parties. The chancery court found that this acknowledgment was a modification of the mediation agreement and that the parties entered into a settlement agreement. On appeal, the husband asserts that the chancery court erred finding a settlement agreement because the mediation agreement specifically required that the parties would not be bound unless a written, executed settlement agreement was entered into by the parties. Second, the husband contends that, even if an oral settlement agreement was effective against the parties in this case, he had properly repudiated the agreement to his wife and the chancery court before the chancery court entered its judgment. In addition, both parties have requested attorney's fees on appeal. We reverse and remand for further proceedings and decline to award attorney's fees to either party.

http://www.tba2.org/tba_files/TCA/2006/ballewl032206.pdf


STATE OF TENNESSEE, TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. DAVID H., ET AL.
With Dissenting Opinion


Court: TCA

Attorneys:

Dana M. Ausbrooks, Franklin, Tennessee, for the appellant, David H.

David M. Ausbrooks, Franklin, Tennessee, for the appellant, Mary Ellen H.

Paul G. Summers, Attorney General and Reporter; Dianne Stamey Dycus, Deputy Attorney General, for the appellee, Tennessee Department of Children's Services.

Judge: COTTRELL

After a hearing, the Circuit Court declared seven children to be dependent and neglected and determined that their parents had committed severe child abuse. The parents claim on appeal that the court erred by refusing their request that counsel be appointed to represent them at the hearing. After carefully reviewing the record, we find that the trial court failed to conduct a sufficient inquiry to determine whether or not the parents were financially able to retain their own counsel, and we accordingly vacate the order concluding that the children were dependent and neglected.

http://www.tba2.org/tba_files/TCA/2006/dcs1043_032206.pdf

Clement Dissenting
http://www.tba2.org/tba_files/TCA/2006/dcs1043_diss032206.pdf


IN RE GIORGIANNA H., STUART H., SABRINA H., SAVANNAH H., VICTORIA H., BENJAMIN H., & SARAHANNA H.
With Concurring Opinion


Court: TCA

Attorneys:

B. Kyle Sanders, Dickson, Tennessee, for the appellant, Mary Ellen H.

Patricia J. Wilsdorf, Centerville, Tennessee, for the appellant, David H.

Paul G. Summers, Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, for the Tennessee Department of Children’s Services.

Judge: KOCH

This appeal involves the parental rights of the biological parents of seven minor children. After the children had been removed from their biological parents' custody for approximately one year, the Tennessee Department of Children's Services filed a petition in the Circuit Court for Perry County seeking to terminate the parental rights of the biological parents. The trial court conducted a bench trial and then entered an order terminating the biological parents' parental rights because the conditions that caused the children to be removed from the parents' custody continued to persist and because the parents had committed severe child abuse. Both parents appealed. We have determined that the record contains substantial and material evidence supporting the trial court's conclusions that the biological parents' conduct provides substantive grounds for terminating their parental rights and that the termination of the biological parents' parental rights is in the children's best interests.

http://www.tba2.org/tba_files/TCA/2006/giorgiannah032206.pdf

Cain Concurring
http://www.tba2.org/tba_files/TCA/2006/giogiannah_con032206.pdf


BETTY WALKER v. CLEO HUFF, ET AL.

Court: TCA

Attorneys:

Mark A. Cowan, Morristown, Tennessee, for the Appellants, Cleo Huff, Mary Jo Taylor, Betty Ann Huff, Frances Jane Cureton, Jessie Lee Ellison and John Stephen Huff.

William S. Nunnally, Greeneville, Tennessee, for the Appellee, Betty Walker.

Judge: LEE

In this adverse possession case, the primary issues presented are whether the trial court correctly ruled that the Plaintiff, Betty Walker, had established prescriptive title to the real property at issue by open, exclusive, uninterrupted, and hostile possession for longer than 20 years; and whether the trial court correctly ruled that the Defendants, the heirs of the Huff family, had established a prescriptive easement for access to part of their land via a roadbed passing across real estate owned by the Walker family. Our review of the record indicates that the trial court's resolution of these factually-driven issues was heavily dependent upon its assessment of the credibility of the various witnesses, and that the evidence does not preponderate against the trial court's conclusions. We consequently affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/walkerb032206.pdf


STATE OF TENNESSEE v. MICHAEL FORREST BANDY

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender, and David S. Stockton, Assistant Public Defender, for the appellant, Michael Forrest Bandy.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and James W. Freeland, Jr. and Colin A. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Michael Forrest Bandy, appeals his convictions of first degree felony murder and aggravated child abuse, a Class A felony. The sole issue on appeal is the sufficiency of the evidence. Upon review, we conclude that the evidence is sufficient to support the convictions and affirm the same.

http://www.tba2.org/tba_files/TCCA/2006/bandym032206.pdf


STATE OF TENNESSEE v. MICHAEL BURNETTE

Court: TCCA

Attorneys:

Steve McEwen (on appeal), Mountain City, Tennessee; and Charles B. Hill, II (at trial), Kingston, Tennessee, for the Appellant, Michael Burnette.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; J. Scott McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Michael Burnette, was convicted by a Roane County jury of aggravated robbery and sentenced to ten years in the Department of Correction. On appeal, Burnette raises two issues for our review: (1) whether the evidence is sufficient to support the conviction; and (2) whether his sentence is excessive. After review, the judgment of conviction and resulting sentence are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/burnettem032206.pdf


STATE OF TENNESSEE v. STEVE ALLEN CLICK

Court: TCCA

Attorneys:

Kristi M. Davis, Knoxville, Tennessee (on appeal) and Mack Garner, District Public Defender (at trial), for the appellant, Steve Allen Click.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Robert Headrick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Steve Allen Click, was convicted of three counts of aggravated rape and one count of evading arrest. The trial court imposed consecutive sentences of forty years for each aggravated rape and a concurrent sentence of eleven months and twenty-nine days for evading arrest. The effective sentence is, therefore, 120 years. In this appeal, the defendant asserts (1) that the trial court erred by failing to merge two of the aggravated rape convictions; (2) that the evidence is insufficient to support the convictions for aggravated rape; (3) that the prosecutor's closing argument was improper; and (4) that the trial court erred by imposing consecutive sentences. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/clicks032206.pdf


STATE OF TENNESSEE v. EVERETT J. DENNIS

Court: TCCA

Attorneys:

Paul D. Cross, Monteagle, Tennessee, for the Appellant, Everett J. Dennis.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry D. Gouger, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Everett J. Dennis, appeals his conviction by a Marion County jury of driving a motor vehicle while his blood alcohol concentration was .08% or more. See T.C.A. Section 55-10-401(a)(2) (2003). On appeal, he argues: (1) that the police stop of his vehicle is not supported by "probable cause or reasonable suspicion;" (2) that his sentence violates Blakely v. Washington; and (3) that his conviction under Tennessee Code Annotated Section 55-10-401(a)(2), driving under the influence per se, is unconstitutional because it violates due process. After review, the conviction and sentence are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/dennise032206.pdf


RONNIE FINCH v. STATE OF TENNESSEE
Corrected Case


Court: TCCA

Attorneys:

James P. McNamara, Nashville, Tennessee, for the appellant, Ronnie Finch.

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

Judge: SMITH

The petitioner, Ronnie Finch, was convicted by a jury of facilitation of first degree murder, two counts of attempted first degree murder and two counts of aggravated assault. As a result, the petitioner was sentenced to a total of forty-nine years in incarceration. The petitioner's convictions and sentence were affirmed by this Court on appeal. See State v. Frank E. Huey, et al, No. M2000- 02793-CCA-R3-CD, 2002 WL 517132 (Tenn. Crim. App. at Nashville, Apr. 5, 2002), perm. app. denied, (Tenn. Oct. 14, 2002). The petitioner subsequently filed a pro se petition for post-conviction relief, alleging inter alia ineffective assistance of counsel. After an evidentiary hearing, the post- conviction court denied the petition. On appeal, the petitioner challenges the post-conviction court's denial of the petition. For the following reasons, the judgment on post-conviction petition is reversed; the judgment of acquittal is entered; and verdicts of guilt are vacated and dismissed.

Corrected case. Replace page 6 from case filed 1/31/2006.
http://www.tba2.org/tba_files/TCCA/2006/finchr_corr032206.pdf


JOHN C. JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Wendy S. Tucker, Nashville, Tennessee, for the appellant, John C. Johnso

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Katrin Novak Miller and Bret Gunn, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, John C. Johnson, filed a petition for post-conviction relief and a petition for a writ of error coram nobis. After an evidentiary hearing, the post-conviction court denied the petition for post-conviction relief. The petition for writ of error coram nobis was dismissed without a full evidentiary hearing. In this consolidated appeal, the petitioner challenges the post-conviction court's rulings on both petitions. Upon our review of the record and the parties' briefs, we affirm the dismissal of the petition for a writ of error coram nobis. However, we reverse the denial of post-conviction relief and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2006/johnsonj032206.pdf


STATE OF TENNESSEE v. JOHNNY MACK LAMB

Court: TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee, for the Appellant, Johnny Mack Lamb.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall E. Nichols, District Attorney General; and John Halstead, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Johnny Mack Lamb, appeals the sentencing decision of the Knox County Criminal Court which resulted in the imposition of an effective four-year sentence of incarceration. On appeal, Lamb challenges the trial court's denial of alternative sentencing. After review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/lambj032206.pdf


STATE OF TENNESSEE v. ROGER ALAN LAWSON

Court: TCCA

Attorneys:

William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the Appellant, Roger Alan Lawson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Roger Alan Lawson, appeals the sentencing decision of the Sullivan County Criminal Court following the revocation of his suspended sentences. While on supervised probation, a violation warrant was issued alleging that Lawson had failed to obey the law by driving on a revoked license. After a revocation hearing, Lawson was found to be in violation of his probation, and his original effective eight-year sentence to the Department of Correction was reinstated. On appeal, Lawson argues that the trial court abused its discretion by ordering confinement of the eight-year sentence instead of reinstating his probation. After review, we find no error and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/lawsonr032206.pdf


STATE OF TENNESSEE v. COURTNEY MEANS

Court: TCCA

Attorneys:

Robert Jones, Shelby County Public Defender; Trent Hall, Assistant Public Defender; and Phyllis Aluko, Assistant Public Defender, for the appellant, Courtney Means.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; Paul Hagerman, Assistant District Attorney General; and Valerie Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Courtney Means, was convicted of three aggravated robberies and sentenced to twelve years in each case, with two of the sentences to be served consecutively. On appeal, he argues that the evidence is insufficient to sustain the convictions; the trial court erred in allowing the hearsay statement of a deceased victim to be admitted as an excited utterance; and the court erred in sentencing. Following our review, we affirm the judgments.

http://www.tba2.org/tba_files/TCCA/2006/meansc032606.pdf


STATE OF TENNESSEE v. COURTNEY PARTIN

Court: TCCA

Attorneys:

Douglas A. Trant, Knoxville, Tennessee, for the appellant, Courtney Partin.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael Olin Ripley, Senior Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

A Campbell County Criminal Court jury convicted the defendant, Courtney Partin, of one count of attempted first degree murder, a Class A felony, and two counts of aggravated assault, a Class C felony. The trial court merged one of the counts of aggravated assault into the attempted first degree murder count and sentenced the defendant to twenty-four years for the attempted first degree murder and five years for the aggravated assault to be served consecutively in the Department of Correction for an effective sentence of twenty-nine years. The defendant appeals, claiming that the trial court erred in not granting his motion to suppress, that the trial court erred in its instructions to the jury on lesser included offenses, that his trial counsel was ineffective, and that the trial court improperly sentenced him in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Concluding that no reversible error exists, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/partinc032206.pdf


TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
State Supreme Court hears arguments on term limits
Lawyers for Shelby County argued in favor of term limits Tuesday before the Tennessee Supreme Court, the Associated Press reports. The lawyers urged the justices to find that voter-approved term limits for county commissioners are permitted by the state constitution. Several county commissioners sued the county and the election commission a year ago, arguing that the term limits law was unconstitutional.

Dickson considers increase in judge's pay
The Dickson City Council's Finance and Management Committee voted this week to consider a pay raise for its municipal judge at the council's April 3 meeting. The judge currently makes $18,000. The proposal would increase the salary to $45,140. Read more in the
Dickson Herald
Parents can be liable for youth drinking
Former TBA President Pamela Reeves writes about a 2004 Tennessee Supreme Court decision that holds adults liable for underage drinking and any damages that occur because of that behavior in Sunday's
Knoxville News Sentinel
County takes no action against Vandercook
The Sumner County Commission decided Monday night not to weigh in on whether Sheriff J.D. Vandercook should stay on the job, despite federal criminal charges of mail fraud, money laundering and obstruction of justice. Read more about the commission's decision in the
Hendersonville Star News
Court makes it harder for investors to sue
The U.S. Supreme Court on Tuesday blocked class action lawsuits by stockholders who contend they were tricked into holding onto declining shares. The decision does not shut the door to lawsuits filed by individual stockholders, but rather to suits brought on behalf of large groups.
The Associated Press has the story
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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