Court set for AG applications, interviews

The Tennessee Supreme Court will accept applications through the end of the business day July 17 from attorneys interested in becoming the state's next attorney general. Under the process outlined today by Chief Justice William M. Barker, the court will then review the applications and select candidates to interview Sept. 12-13. Learn more or download an application.

http://www.tba2.org/tbatoday/news/2006/aginstruct_2006.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.

01 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
07 - 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

DONNA J. COTTINGHAM v. WILLIAM B. COTTINGHAM

Court: TSC

Attorneys:

William B. Cottingham, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Stuart F. Wilson-Patton, Attorney General, for the Appellee-Plaintiff, Donna Cottingham, and the Appellee, State of Tennessee, Department of Human Services.

Judge: HOLDER

We granted this appeal to determine the propriety of the defendant's criminal contempt convictions arising out of his failure to pay child support and alimony. We conclude that: 1) the defendant was denied the right to counsel; and 2) the evidence is insufficient to support the defendant's criminal contempt convictions for the failure to pay both child support and alimony. Accordingly, we reverse the judgment of the Court of Appeals. Due to the insufficiency of the evidence, the criminal contempt charges are dismissed.

http://www.tba2.org/tba_files/TSC/2006/cottinghaj_052506.pdf


JEFFREY DEAN BLEDSOE v. CITY OF DICKSON-DEPARTMENT OF POLICE

Court: TWCA

Attorneys:

Robyn Beale Williams, Nashville, Tennessee, attorney for Appellant, City of Dickson.

Tonya M. Crownover, Nashville, Tennessee, for Appellee, Jeffrey Dean Bledsoe.

Judge: INMAN

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 Plaintiff, a thirty-seven year old police officer, suffers from mild hypertension, readily controlled by medication. He claims that the stress of his job causes his hypertension, and relies on the presumption created by Tennessee Code Annotated Section 7-51- 201(a)(1) to support this claim. The trial court held that this presumption was not rebutted and found that the Plaintiff retained a 3 percent anatomical disability owing to the hypertension. We find that the presumption was sufficiently rebutted, and that the evidence preponderates against a finding that the Employee's hypertension arose out of his employment. Accordingly, the judgment of the trial court is reversed.

http://www.tba2.org/tba_files/TSC_WCP/2006/bledsoej_052506.pdf


STATE OF TENNESSEE, ex rel. LATONYA CAMPBELL v. THOMAS CONLEY

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Juan Villasenor, Assistant Attorney General, for the State of Tennessee.

Joesph E. Tubbs, for the appellee, Thomas Conley.

Judge: FARMER

The trial court granted Respondent Father a downward deviation from the child support guidelines when setting retroactive child support. We reverse.

http://www.tba2.org/tba_files/TCA/2006/campbell_052506.pdf


MIRANDA LUNA, ET AL. v. WILLIAM H. SHERWOOD, M.D., ET AL.

Court: TCA

Attorneys:

Dixie W. Cooper and Amy D. Hampton, Nashville, Tennessee, for the appellants, William H. Sherwood, M.D., and Cripps, Hooper & Rhody, PLLC.

Donald Capparella, Anna B. Williams and Charles J. Williams, Nashville, Tennessee; and Henry E. Dugan, Jr., and Bruce J. Babij, Timonium, Maryland, for the appellees, Miranda Luna and Darlene and Bobby Luna.

Judge: CLEMENT

The issue on appeal is whether the doctrine of forum non conveniens applies in a transitory, intrastate tort action. This is a medical malpractice action in which all of the alleged negligent acts and omissions occurred in Dekalb County. Plaintiffs, White County residents, filed suit in Davidson County, where two of the four defendants have their principal offices. The two Dekalb County defendants filed a Motion to Dismiss based upon improper venue, or in the alternative, forum non conveniens. The trial court found forum non conveniens inapplicable to this intrastate forum dispute and venue proper. We affirm.

http://www.tba2.org/tba_files/TCA/2006/lunamiranda_052506.pdf


IN THE MATTER OF M.A.W.

Court: TCA

Attorneys:

Curtis D. Johnson, Jr., Memphis, Tennessee, for the appellant, T.H.W.

Paul G. Summers, Attorney General and Reporter and Douglas Earl Dimond, Senior Counsel, for the appellee, State of Tennessee Department of Children’s Services.

Judge: FARMER

In this termination of parental rights case, the juvenile court terminated the parental rights of T.H.W. ("Mother") and all potential fathers. Mother appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/maw_052506.pdf


CRAIG WHITE AND KARMEN WHITE v. KEVIN EARLY; V. H. ("HERB") PICKLE; STEVE C. PICKLE; LAKEWOOD MARINA, A GENERAL PARTNERSHIP; LAKEFRONT PROPERTIES, INC.; AND LAKEWOOD MARINA, A LIMITED PARTNERSHIP

Court: TCA

Attorneys:

Kenneth R. Jones, Jr., and William B. Hawkins, III, Nashville, Tennessee, for the appellants, V. H. "Herb" Pickle, Steve C. Pickle, and Lakefront Properties, Inc.

Shawn McBrien, Lebanon, Tennessee, for the appellant, Kevin Early.

Anne C. Martin, Nashville, Tennessee, for the appellees, Craig and Karmen White.

Judge: KIRBY

This is a fraudulent misrepresentation/breach of contract claim involving the sale of a boat slip. The defendant owned a marina on a lake, which was subject to a twenty-year lease from the U. S. Army Corps of Engineers. The defendant marina owners sold boat "slips" at the marina, that is, space at a dock at which the owner could dock his boat. In May 2000, the plaintiffs purchased the defendant slip owner's boat slip at the marina. The defendant marina owners acted as brokers for the defendant owner of the slip and received a commission on the sale. Prior to the sale, the defendant marina owners represented to the plaintiffs that (1) the defendant slip owner had clear title to the boat slip, and (2) the Corps of Engineers lease, which allowed the marina to operate on the lake, would be in effect for another twenty years, when actually the lease was scheduled to expire in 2005. In August 2000, it was discovered that the breakwater barges surrounding the perimeter of the marina were in a dangerous condition, and the Corps ordered the defendants to remove the barges. A dispute arose about who was responsible for removing the barges, the defendant marina owners or the association of boat slip owners. The deteriorated barges were not removed. Consequently, the Corps revoked its lease, the marina closed, and the plaintiffs were no longer able to use their newly purchased boat slip. The plaintiffs filed this action against the defendant marina owners and the previous owner of the slip, alleging fraudulent misrepresentation, breach of contract, and violation of the Tennessee Consumer Protection Act. After a bench trial, the trial court held in favor of the plaintiffs, finding that the defendant marina owners made fraudulent misrepresentations and that the defendant slip owner transferred rights that were illusory. All of the defendants appeal. We reverse, finding, inter alia, that valuable rights were transferred and that the damages to the plaintiffs were not caused by the allegedly fraudulent misrepresentations.

http://www.tba2.org/tba_files/TCA/2006/whitec_052506.pdf


STATE OF TENNESSEE v. FESTUS BABUNDO

Court: TCCA

Attorneys:

James F. Logan, Jr., Cleveland, Tennessee, for the Appellant, Festus Babundo.

Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Dorothy Atwell, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Festus Babundo, appeals from the judgments of the Bradley County Criminal Court, which, pursuant to his guilty pleas, convicted him of felony possession of cocaine with intent to sell and misdemeanor possession of marijuana and sentenced him to a suspended, effective sentence of eight years. Prior to submitting his guilty pleas, the defendant moved the trial court to suppress evidence seized during a police officer’s search of the defendant’s vehicle. After the trial court apparently denied the motion to suppress, the defendant filed written guilty pleas, "reserving a certified question of law." Following the entry of judgments, the defendant filed a timely appeal. The state has requested that this court dismiss the appeal because no certified legal question was properly reserved for appellate review. Because the state is correct in its claim, this court is without jurisdiction, and the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2006/babund_052506.pdf


JEREMY CATRON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeremy Catron, Pro Se.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WILLIAMS

The Petitioner, Jeremy Catron, appeals the trial court's denial of his petition for post-conviction DNA testing. 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. Because Petitioner has failed to satisfy the qualifying criteria under the Post-Conviction DNA Analysis Act, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2006/catronJeremy_052506.pdf


ANDREW EWING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert B. Gaia, Memphis, Tennessee, for the appellant, Andrew Ewing.

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

Judge: GLENN

The Petitioner, Andrew Ewing, appeals the trial court's denial of 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, Rules of the Court of Criminal Appeals. Because the petition for post-conviction relief is barred by the statute of limitations, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2006/ewingandrewopn_052506.pdf


MOZELLA NEWSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lee Gerald, Memphis, Tennessee, for the Appellant, Mozella Newson.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jack Irving, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Mozella Newson, appeals the Shelby County Criminal Court's denial of her petition for post-conviction relief. Following a transfer hearing, Newson, who was fourteen years old at the time of the crimes, was transferred from the juvenile court to the Shelby County Criminal Court to be tried as an adult. She subsequently pled guilty to carjacking, especially aggravated robbery, and two counts of especially aggravated kidnapping, for which she received an effective fifteen-year sentence. On appeal, Newson argues that she was denied her Sixth Amendment right to the effective assistance of counsel, specifically arguing that the attorney representing her during the transfer hearing was ineffective by: (1) failing to advise the juvenile court of Newson’s age; (2) failing to challenge the transfer order which stated that Newson was sixteen years old or older; (3) failing to present any favorable evidence at the transfer hearing which might have prevented her transfer; (4) failing to object to the identification procedure employed at the transfer hearing; and (5) failing to advise Newson of her right to appeal the juvenile court's decision to transfer the case. After review, we conclude: (1) Newson's subsequent guilty pleas waived all issues regarding guilt; and (2) Newson's failure to prepare a complete record precludes review of her allegations of deficient performance which resulted in her transfer to the criminal court. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/newsonmozella_052506.pdf


BRYAN PEARSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Bryan Pearson, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Leslie Price, Assistant Attorney General; and James Michael Taylor, District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Bryan Pearson, filed a 2005 Bledsoe County Circuit Court petition for habeas corpus relief from his 1993, guilty-pleaded, Knox County conviction of second degree murder and alleged that he was improperly sentenced. The 1993 Knox County judgment appended to the petition showed that the defendant was convicted of an offense occurring on March 29, 1989, and was sentenced pursuant to the 1982 sentencing act as a standard offender to a term of 25 years in the Department of Correction. The habeas corpus court entered an order summarily dismissing the petition, after holding that the petitioner's claims were previously adjudicated. We affirm the order.

http://www.tba2.org/tba_files/TCCA/2006/pearson_052506.pdf


STATE OF TENNESSEE v. BRADLEY DAVID TOWNSEND

Court: TCCA

Attorneys:

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the appellant, Bradley David Townsend.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; J. Scott McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Bradley Townsend, was indicted by the Roane County Grand Jury on one count of aggravated sexual battery and twenty-one counts of rape of child based on acts he committed against his eight-year-old stepdaughter over the course of a five-month period. Following a jury trial, he was convicted of the aggravated sexual battery count and of the lesser-included offense of aggravated sexual battery in one of the rape counts, but acquitted of the remaining rape counts of the indictment. The trial court subsequently sentenced him as a violent offender to concurrent eight-year terms at 100% release eligibility for each conviction. On appeal, the defendant contends that the evidence was insufficient to sustain his convictions, the trial court erred in not instructing the jury on misdemeanor assault and child abuse as lesser-included offenses of both rape of a child and aggravated sexual battery, and the State made improper and prejudicial comments in closing. Based on our review, we conclude that the evidence was sufficient to sustain the convictions, that the failure to instruct on the lesser-included offenses does not rise to the level of plain error, and that the prosecutor engaged in improper closing argument by referring to matters that were not in evidence but that the improper comments could not have influenced the jury's verdict. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/Townsen_052506.pdf


STATE OF TENNESSEE v. SUSAN WALLACE

Court: TCCA

Attorneys:

Jason B. Rudd and Jon A. York, Jackson, Tennessee, for the appellant, Susan Wallace.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; James G. Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Susan Wallace, a special education teacher, was indicted by the Henderson County Grand Jury for fourteen counts of child abuse and fourteen counts of assault. She filed a motion to dismiss the indictment, arguing that the State had not complied with the School Discipline Act, Tennessee Code Annotated Section 49-6-4101, et seq. The trial court denied the motion, finding that any procedural defects were cured by the return of the grand jury indictment, and this Rule 9 interlocutory appeal followed. Following our review, we affirm the order of the trial court denying the motion to dismiss the indictment.

http://www.tba2.org/tba_files/TCCA/2006/wallacesusan_052506.pdf


TODAY'S NEWS

Legal News
Legislative News
Online CLE
TBA Member Services

Legal News
TBA petitions court for disaster assistance rule
The TBA has filed a petition with the Tennessee Supreme Court urging the court to adopt a rule that would permit out-of-state lawyers to offer pro bono services when disaster strikes. The proposal was developed by the TBA committee that studied the bar's emergency preparedness and disaster recovery in the wake of Hurricanes Katrina and Rita.
Read the petition
District attorney launches web site
District Attorney General J. Scott McCluen of the 9th Judicial District has launched a web site to provide information and services to the public and law enforcement. The site includes court documents filed in high-profile cases, trial and sentencing hearing schedules for cases being prosecuted by the office and a summary of victims' services, among other resources.
Visit the site
Mempis lawyer saw need for immigration practice
Immigration issues may be dominating headlines today, but when Barry Frager first started a Memphis practice dealing with it in 1994, many doubted he would find enough business to succeed.
Read the Memphis Daily News interview
Beware of the blog
Internet blogs can be useful research tools for lawyers, but experts warn to be wary of the validity of postings and be aware of privacy issues.
Read the full story in the Memphis Daily News
Panel considers banning free trips for judges
An investigatory panel headed by U.S. District Judge D. Brock Hornby of Maine is reviewing the propriety of federal judges receiving free trips to judicial seminars. The review was triggered by allegations that business interests funnel money to foundations and policy organizations for these events, reports the Associated Press.

Legislative News
Senate passes budget; House still working
Thanks to about $400 million in excess revenues, the state Senate easily passed a $26 billion state budget on Wednesday. The House is still considering its version of the budget, which the City Paper reports has some key differences from the Senate's.
Read the full story
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
Online CLE
Build your internet research skills with online course
Everyone uses the Internet, but are you taking full advantages of the research capabilities that are available? Carole Levitt, a nationally recognized author and founder of Internet for Lawyers, has developed a special course for Tennessee lawyers that is now available from TennBarU. This one-hour interactive course teaches you how to efficiently search the Tennessee Code, perform historical legislative research, search municipal codes and more.
Register or find out more now
TBA Member Services
TBA members see big savings in Office Depot plan
Office Depot is offering significant savings off of list prices to TBA members. All firms -- large and small -- that participate in the program are eligible for member discounts. On average, each participating member is saving more than $441 per year -- an average of 27% per month. Remember, even if you are already an Office Depot customer, you need to sign up for the program to take advantage of this member-only savings program!
Sign up online today

 
 
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