Lawyers needed to volunteer services for tornado victims

Many of our fellow Tennesseans suffered complete devastation from the tornadoes and violent storms that ripped through Gibson and Dyer counties two weeks ago. Last week's multiple tornadoes in middle Tennessee also have left victims in need of basic legal resources. Beginning today, the TBA is recruiting lawyers to provide legal services to these victims. Volunteer your services at:

http://www.tba.org/tornadoes/volunteer.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 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
02 - 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

BRENDI ERIN KAPLAN (formerly BUGALLA) v. JOHN A. BUGALLA

Court: TSC

Attorneys:

Gregory D. Smith, James G. Martin, III, and Aminah M. Collick, Nashville, Tennessee, for the appellant, Brendi Erin Kaplan.

David W. Garrett, Nashville, Tennessee, for the appellee, John A. Bugalla.

Judge: CORNELIA A. CLARK

This case involves a post-divorce petition to modify child support to include payment of the children’s extraordinary educational expenses. The trial court denied relief, and the Court of Appeals affirmed. We accepted this case to determine whether an obligee-parent is required to prove a “significant variance”, as defined in the Child Support Guidelines, in the obligor-parent’s income before the trial court can order the obligor-parent to pay a portion of the children’s private school tuition and expenses. We hold that the “significant variance” standard is inapplicable to a modification of child support for payment of extraordinary educational expenses. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/kaplanb041306.pdf


TAMMY SEARLE v. JUVENILE COURT FOR WILLIAMSON COUNTY, TENNESSEE

Court: TSC

Attorneys:

John E. Herbison, Nashville, Tennessee, for the Appellant, Tammy Searle.

Lisa M. Carson, Franklin, Tennessee, for the Appellee, Juvenile Court for Williamson County, Tennessee.

Judge: ADOLPHO A. BIRCH

Pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, we granted permission to appeal in this case in order to address a question of first impression: whether the petitioner’s current status as a fugitive prevents consideration of her habeas corpus petition. Because we conclude that the fugitive disentitlement doctrine bars consideration of this habeas corpus petition, we affirm the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2006/searlet041306.pdf


TAMMY D. NORRIS, ADMINISTRATRIX OF ESTATE OF DAVID P. NORRIS, DECEASED, ET AL. v. JAMES MICHAEL STUART, ET AL.

Court: TCA

Attorneys:

Peggy D. Mathes, Nashville, Tennessee, for the appellant, James Michael Stuart, and Orchard Fence Company, G.P., a Partnership.

Lee M. Greer, Paris, Tennessee, for the appellees, Tammy D. Norris, Administratrix of the Estate of David P. Norris, deceased, and Tammy D. Norris, individually, and on behalf of Jacob P. Norris, a minor.

Judge: FRANK G. CLEMENT, JR.

This appeal arises from the dissolution of a two-person general partnership. The partnership dissolved in 2000 upon the death of David Norris; however, instead of winding up the affairs of the partnership, the surviving partner, James Stuart, continued to operate the business without accounting to Norris’ estate. Nine months after the death of Norris, his estate filed this action seeking an accounting of the partnership, liquidation of its assets, and settlement of accounts. The partnership assets included an on-going business and real estate. The trial court appointed a receiver to take control of the assets. After the receiver provided a report, the trial court ordered the receiver to wind up the affairs of the partnership and to sell its assets. The court also allocated partnership liabilities and assets between Stuart and the estate from which order Stuart appeals. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2006/norrist041306.pdf


JACK WOOD ET UX VICKIE E. WOOD v. DAN G. STARKO, ET UX LAURIE D. STARKO, ET AL.

Court: TCA

Attorneys:

James A. DeLanis, Nashville, Tennessee, for the appellants, Dan G. Starko and Laurie D. Starko.

Wayne Detring, Hendersonville, Tennessee, for the appellees, Jack Wood and Vickie E. Wood.

Judge: WILLIAM B. CAIN

This action seeks a declaration placing the boundary between two adjacent properties and a claim for damages by one landowner against the other. The trial court placed the boundary line based on pins marking the Corps of Engineers’ line, an adjacent landowner, and denied the award of damages. We reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/woodj041306.pdf


DERRICK L. BROWN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Derrick L. Brown, pro se.

Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: J.C. MCLIN

The Petitioner Derrick L. Brown appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to establish his entitlement to habeas corpus relief. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2006/brownd041306.pdf


STATE OF TENNESSEE v. RONNIE DALE GENTRY

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Frank A. Harvey, Assistant District Attorney General, for the appellant, State of Tennessee.

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the appellee, Ronnie Dale Gentry.

Judge: JOSEPH M. TIPTON

The state appeals from the Loudon County Criminal Court’s dismissal of the indictments against the defendant, Ronnie Dale Gentry, for driving under the influence (DUI), violation of the implied consent law, driving on a revoked license, and speeding pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure requiring mandatory joinder. We reverse the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/gentryr041306.pdf


JOSEPH GRANDERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Crossnoe, Assistant District Attorney General, for the appellant, State of Tennessee.

Marty B. McAfee, Memphis, Tennessee, for the appellee, Joseph Granderson.

Judge: JERRY L. SMITH

The petitioner, Joseph Granderson, was convicted by a jury of first degree murder and sentenced to life imprisonment. This Court affirmed the petitioner’s conviction and sentence on appeal. State v. Joseph Granderson, No. 02C01-9712-CR-00466, 1998 WL 506658 (Tenn. Crim. App. at Jackson, Aug. 20, 1998), perm. app. denied, (Tenn. Mar. 8, 1999). Subsequently, the supreme court denied permission to appeal. The petitioner filed a pro se petition for post-conviction relief alleging ineffective assistance of counsel on numerous grounds. Counsel was appointed and several amended petitions were filed. After hearing evidence on the petition over the course of several months, the post-conviction court entered an order granting post-conviction relief on the basis that trial counsel was ineffective because she failed to properly inform the petitioner of his potential sentence if convicted of first degree murder. The State appeals the post-conviction court’s decision. We affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/grandersonj041306.pdf


ALLEN HODGKINSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David F. Bautista, District Public Defender, and Ivan M. Lilly, Assistant Public Defender, for the appellant, Allen Hodgkinson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General, pro tem; and Charles L. Murphy, Assistant District Attorney General, pro tem, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

The petitioner, Allen Hodgkinson, appeals the Washington County Criminal Court’s dismissal of his petition for post-conviction relief from his 1986 convictions for first degree murder and conspiracy to sell cocaine and resulting consecutive sentences of life imprisonment and twenty years. On appeal, the petitioner contends that he received the ineffective assistance of counsel because (1) his attorney denied him his right to testify, (2) his attorney failed to present critical evidence in the form of telephone records to support his claim that he had an ongoing business relationship with a co-defendant, and (3) his attorney failed to discuss his defense with him adequately during the trial. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/hodgkinsona041306.pdf


ISAAC JONES v. STATE OF TENNESSEE AND WARDEN STEPHEN DOTSON

Court: TCCA

Attorneys:

Isaac Jones, pro se.

Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: J.C. MCLIN

The Petitioner, Isaac Jones, appeals the trial court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/jonesi041306.pdf


STATE OF TENNESSEE v. JAMES LEON MILLER

Court: TCCA

Attorneys:

Harold R. Gunn, Humboldt, Tennessee, for the appellant, James Leon Miller.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Gary Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JERRY L. SMITH

On May 15, 2004, the victim, Charles Lawuary, was shot and killed in Humboldt, Tennessee in an area known as “the crossing.” A bystander was grazed by a bullet. The defendant, James L. Miller, and a co-defendant, Charles Lewis, were later arrested for the shootings. The Gibson County Grand Jury indicted the defendant for criminal responsibility for first degree murder and criminal responsibility for aggravated assault. Following a jury trial held on March 21, 2005, the jury found the defendant guilty as charged. The defendant was sentenced to life in prison for the murder conviction and six years for the aggravated assault conviction, to be served concurrently with the life sentence. The defendant appeals, arguing that, the State failed to prove the venue of the crime, the trial judge failed to charge the natural and probable consequences rule to the jury, there was juror misconduct when one juror felt she was coerced into voting for a guilty verdict, and there was insufficient evidence to support the defendant’s conviction. We have reviewed the record in this case and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/millerj041306.pdf


STATE OF TENNESSEE v. TONY ALLAN PHIPPS

Court: TCCA

Attorneys:

Larry R. Dillow, Kingsport, Tennessee, attorney for the appellant, Tony Allan Phipps.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Barry P. Staubus, Assistant District Attorney General; Joseph Eugene Perrin, Assistant District Attorney General; and Brian Todd Martin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS T. WOODALL

On May 31, 2002, following a jury trial, Defendant, Tony Allan Phipps, was convicted of voluntary manslaughter. Defendant was sentenced to serve eleven (11) years in the Department of Correction and ordered to pay a fine in the amount of five thousand ($5000.00) dollars. Defendant filed a motion for new trial which the trial court granted on October 14, 2002. On August 11, 2004, following another jury trial, Defendant was convicted of reckless homicide, ordered to pay a five thousand ($5000.00) dollar fine and sentenced to ten (10) years in the Department of Correction. Defendant appeals his conviction for reckless homicide. In his appeal, Defendant argues (1) the evidence in the record is insufficient to sustain a conviction for reckless homicide; (2) the evidence in the record does not support the jury verdict; (3) the jury verdict is contrary to law and evidence; and (4) the State did not prove beyond a reasonable doubt that Defendant did not act in self-defense as required by Tennessee Code Annotated section 39-11-611(b) (2003). The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/phippst041306.pdf


STATE OF TENNESSEE v. CLARENCE DAVID SCHREANE, ALIAS ISSAC CLARENCE EDMOND, ALIAS ISAAC EDMOUND, ALIAS DAVID L. SCHREANE

Court: TCCA

Attorneys:

Owen Stuart Brown, Chattanooga, Tennessee, for the appellant, Clarence David Schreane, alias Issac Clarence Edmond, alias Isaac Edmound, alias David L. Schreane.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; William H. Cox, III, District Attorney General; Boyd M. Patterson, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

A Hamilton County Criminal Court jury convicted the defendant, Clarence David Schreane, of first degree felony murder and especially aggravated robbery, a Class A felony, and the trial court sentenced him to life imprisonment for the murder and sixty years for the robbery, ordering the defendant to serve his sixty-year sentence as a career offender consecutively for an effective sentence of life plus sixty years. The defendant appeals, claiming the trial court erred in failing to suppress his confession. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/schreanec041306.pdf


PATRICK THURMOND v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Patrick Thurmond, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; and Joe C. Crumley, Jr., District Attorney General, for the appellee, Howard Carlton, Warden.

Judge: JOSEPH M. TIPTON

The petitioner, Patrick Thurmond, appeals pro se from the Johnson County Criminal Court’s dismissal of his petition for habeas corpus relief from his convictions for one count of aggravated burglary, two counts of aggravated rape, one count of attempted aggravated rape, and one count of aggravated sexual battery and effective sentence of fifty years. The petitioner claims (1) that his sentences for attempted aggravated rape and aggravated sexual battery are illegal because the offenses are not subject to the multiple rapist classification under Tennessee Code Annotated section 39-13-523, (2) that his judgments of conviction are void on the two counts of aggravated rape and attempted aggravated rape because his classification as a multiple rapist is an enhanced punishment that was not charged in the indictment as required by Tennessee Code Annotated section 40-35-203(e), and (3) that the trial court violated Tennessee Code Annotated section 29-21-108(b) in failing to grant a writ. We conclude that the sentences for attempted aggravated rape and aggravated sexual battery are illegal. We affirm the trial court’s judgment in part, reverse the judgment in part, and remand the case.

http://www.tba2.org/tba_files/TCCA/2006/thurmondp041306.pdf


Membership on Tennessee Ethics Commission

TN Attorney General Opinions

Date: 2006-04-11

Opinion Number: 06-065

http://www.tba2.org/tba_files/AG/2006/ag_06-065.pdf

Whether the Tennessee Risk Management Trust is an LEA or “person” under the Education Truth in Reporting and Employee Protection Act of 1989, Tenn. Code Ann. §§ 49-50-1401 et. seq.

TN Attorney General Opinions

Date: 2006-04-11

Opinion Number: 06-066

http://www.tba2.org/tba_files/AG/2006/ag_06-066.pdf

TODAY'S NEWS

Legislative News
Legal News
Passages
Election 2006

Legislative News
Senate committee votes 4-1 to overturn Ford election
A Senate committee voted 4-1 today to recommend the full Senate overturn the special election in Shelby County's District 29 that Democrat Ophelia Ford won by 13 votes. Read the story in the
Commercial Appeal.
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
Legal News
Judge tells lawyers in March case not to talk
A restraining order was issued yesterday prohibiting attorneys of record, as well as those in their offices, involved in the upcoming Perry March trials from "any discussion about these cases with any media outlets." The order says that on April 11 media aired details of the deposition of the co-defendant and a potential witness, Arthur March, when only attorneys and the defendants were present during the deposition. The court made the move because "public comments ... would be likely to expose potential jurors to unnecessary and possibly unethical information which could prevent all sides from obtaining a fair trial." The court had discussed this with the attorneys on four previous occasions.
Read the order.
Immigrants sue local business owners for $8M
A Nashville businesswoman and 13 other members of the Hispanic community were named in a lawsuit filed by a group of immigrants. Nashville attorney Sean Lewis, a member of the Tennessee Bar Association's Special Committee on Unauthorized Practice of Law Enforcement, filed the suit on behalf of four people who said they were victims of an immigration scam.
NewsChannel 5 has the story.
New UM program combines degrees
There is a new avenue open for University of Memphis political science students who would like to earn a law degree while working on their Master of Arts. The Tennessee Board of Regents recently approved the Dual M.A.-J.D. Program offered by the Department of Political Science and the Cecil C. Humphrey's School of Law. Read the story in
The Daily Helmsman.
Chief justice named 'Distinguished Alumni' at two schools in two states
State Supreme Court Chief Justice William M. Barker has been tapped by the University of Tennessee at Chattanooga and the University of Cincinnati School of Law as recipient of each school's 2006 Distinguished Alumni Awards. Read the
Supreme Court news release.
Death row inmate files suit challenging method
A man set to be executed in Nashville May 17 for the 1985 rape and murder of a female marine at a Naval base near Memphis has filed a civil suit in federal court challenging the state's lethal injection method. The City Paper has the
story.
Court dress code makes good sense
If you're in municipal court in Pigeon Forge you better be dressed right. A recent decision by the Pigeon Forge City Commission established a dress code for the court that would "stop people from entering the municipal courtroom wearing clothing that depicts nudity, obscenity or vulgarity." Read the editorial in support of the dress code in
The Mountain Press.
Passages
Memphis lawyer Herschel L. Feibelman dies
Longtime Memphis lawyer Herschel L. Feibelman died Sunday at his home. He was 86. The family requests that any memorials be made to the Rabbi's Discretionary Fund at Temple Israel or the Church Health Center. Read about his colorful 57-year legal career -- that included being licensed to practice law in the Supreme Court of Korea -- in the
Commercial Appeal.
Election 2006
Another suit filed to change Knox elections
Knoxville lawyer Herbert S. Moncier has filed a new lawsuit in Knox County Chancery Court seeking to have Sheriff Tim Hutchison's name removed from the ballot and to have the May 2 countywide primary reset to June 19. The lawsuit is similar to a number of legal actions denied Tuesday by Chancellor John Weaver. He ruled that the May 2 primary can continue on schedule with the ballot as is. Read more in the
Knoxville News Sentinel.
Number of write-in campaigns hits 42 in Knox Co.
In an unprecedented development, 42 people are mounting write-in campaigns for the May 2 Knox County primaries. Their campaigns are the result of a term-limits decision from the state Supreme Court and the apparent likelihood that two-thirds of County Commission incumbents will be booted from the August ballot. Read about it in the
Knoxville News Sentinel.

 
 
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