| |
Register online now for 125th Annual TBA Convention
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
10 - TN Court of Criminal Appeals
00 - 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
|
|
|
|
|
|
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
|
| |
|
