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Monday, August 28, 2006

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Bowers to resign from legislature

State Sen. Kathryn Bowers, who is awaiting trial on federal corruption charges, said today she is resigning from the legislature for health reasons and will not seek re-election this fall.

http://www.commercialappeal.com/mca/local/article/0,2845,MCA_25340_4951264,00.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.

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court: TSC

http://www.tba2.org/tba_files/TSC/2006/certlist082806.pdf

ROBERT STEVEN JOHNSON v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court: TSC

Attorneys:

John T. Johnson, Jr., Knoxville, Tennessee, and Michael Ross Campbell, Chattanooga, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company.

Bryan L. Capps and Sidney W. Gilreath, Knoxville, Tennessee, for the appellee, Robert Steven Johnson.

Judge: JANICE M. HOLDER

This action arises from a collision involving three vehicles. Judgment was rendered against the defendant Johnson. Johnson filed suit against his insurer alleging that the judgment in excess of his liability coverage was the result of the insurer�s bad faith in failing to adequately investigate and settle his case within the policy limits. The jury determined that the insurer acted in bad faith and awarded a judgment against the insurer. We affirm the judgment of the Court of Appeals that the insurer�s motion for a directed verdict was properly denied but reverse the Court of Appeals� judgment setting aside the jury verdict. We reinstate the jury verdict in favor of Johnson.

http://www.tba2.org/tba_files/TSC/2006/johnsonr082806.pdf

NICCOLE A. NAIFEH, ET AL. v. VALLEY FORGE LIFE INSURANCE COMPANY, ET AL.

Court: TSC

Attorneys:

J. Houston Gordon, Covington, Tennessee, for the Appellants, Niccole Naifeh and Henry Joseph Naifeh, Co-Administrators of the Estate of John H. Naifeh.

James S. Wilder, II, Dyersburg, Tennessee, and James J. Webb, Jr., Memphis, Tennessee, for the Appellant, Cathy Naifeh.

Sam B. Blair, Jr., and John B. Starnes, Memphis, Tennessee, for the Appellee, Valley Forge Life Insurance Company.

J. Kimbrough Johnson and John Dotson, Memphis, Tennessee, for the Appellees, Bill McGowan, Jr., and Bill McGowan and Company.

Walker T. Tipton, Covington, Tennessee, for the Appellee, Union Planters Bank.

Charles W. Cook, III, and James E. Gaylord, Nashville, Tennessee, for the Amicus Curiae, Tennessee Bankers Association.

Judge: E. RILEY ANDERSON

We granted this appeal to determine (1) whether a life insurance policy purchased by the insured as part of a divorce decree had been terminated before the insured�s death; and (2) whether the insurer or the insurance agent was negligent in failing to prevent the policy from lapsing after the insured issued an oral stop payment order and failed to pay a monthly premium. The Chancery Court concluded that the policy had not been terminated, that the insurer and insurance agent were negligent, and that the proceeds of the policy were to be paid to the beneficiary. The Court of Appeals, reversing the Chancellor�s judgment, concluded that the policy had been backdated by agreement of the parties and had been terminated by the insured before his death. The Court of Appeals also concluded that the insurer and the insurance agent were not negligent because their actions were not a proximate cause of the damages. After reviewing the record and applicable authority, we conclude that the life insurance policy remained valid at the time of the insured�s death and that the beneficiary was entitled to the proceeds under the policy. However, we agree with the Court of Appeals� conclusion that the insurer and the insurance agent were not negligent because there was no evidence that their acts were a proximate cause of the damages. Accordingly, the Court of Appeals� judgment is affirmed in part and reversed in part for the reasons stated herein.

http://www.tba2.org/tba_files/TSC/2006/naifehn082806.pdf

STATE OF TENNESSEE v. BRUCE WARREN SCARBOROUGH

Court: TSC

Attorneys:

Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, Knoxville, Tennessee, for the Appellant, Bruce Warren Scarborough.

Mike Mosier (at trial on No. 02-359) and Richard L. Finney (at trial on No. 02-360 and on appeal in both cases), Jackson, Tennessee, attorneys for the Appellant, Mack T. Transou.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General, and Kevin Allen, Assistant District Attorney (Scarborough); Jerry Woodall, District Attorney General, and Jody S. Pickens, Assistant District Attorney General (Transou), attorneys for the Appellee, State of Tennessee.

Judge: CORNELIA A. CLARK

We granted these appeals to determine whether the extraction of blood from a convicted and incarcerated felon for DNA analysis pursuant to Tennessee�s DNA collection statute, Tenn. Code Ann. � 40-35-321 (2003), is constitutional under both the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution. These three cases come before us upon Defendant Scarborough�s interlocutory appeal from the denial of his motion to suppress evidence and upon Defendant Transou�s direct appeals from his convictions in two separate cases. Transou also challenges the sufficiency of the evidence supporting his convictions of rape and aggravated burglary in one of his cases and the sentences he received for those offenses. We conclude that the DNA collection statute is constitutional as applied here. We further hold that Transou consented to having his blood drawn; that the evidence is sufficient to support Transou�s convictions of rape and aggravated burglary; and that his sentences for those crimes are valid. The judgments of the Court of Criminal Appeals in all three cases are affirmed.

http://www.tba2.org/tba_files/TSC/2006/scarboroughb082806.pdf

IN RE: T.K.Y.

Court: TSC

Attorneys:

Eric J. Burch, Manchester, Tennessee, for the Appellant, T.P.

J. Stanley Rogers and Christina Henley Duncan, Manchester, Tennessee, for the Appellees, K.Y. and D.Y.

Judge: E. RILEY ANDERSON

We granted review in this parental termination case to decide whether the Court of Appeals erred in determining that the parentage petition filed by the minor child�s biological father should be denied and that the husband of the child�s biological mother should be declared the father. Having reviewed the record and applicable authority, we reverse the Court of Appeals and hold that the biological father is both the �father� under the parentage statutes and the �legal father� for purposes of the adoption and termination statutes. We also modify the trial court�s order of support under the unique circumstances of this case. We remand for a modification of the support order consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/tky082806.pdf

GREG LANDAICHE and wife, COLLEEN LANDAICHE, Plaintiffs/Appellees, v. JERRY JENKINS and wife, BELINDA JENKINS, Defendants, and WAYNE BYRD, Defendant/Appellant, and BUDDY MARTIN, JERRY JENKINS, BELINDA JENKINS and LEONARD F. BROWN, Intervening Petitioners, and JACK ELKINS, MARILYN ELKINS, JANIE V. LOVE, JOSEPH P. PAYNE, CHARLES PYLE, MARY HOLLINGSWORTH BYRD, KYLE ROBINETTE, WANDA ROBINETTE, and GARY WARDEN, Intervening Petitioners/Appellants, v. GREG LANDAICHE and wife, COLLEEN LANDAICHE, Respondents/Appellees

Court: TCA

Attorneys:

Greg Leffew, Rockwood, Tennessee, for Appellants.

Jeffery H. Wicks, Kingston, Tennessee, for Appellees.

Judge: HERSCHEL PICKENS FRANKS

The Trial Court held that the easement at issue in this case had been abandoned. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2006/landaicheg082806.pdf

STATE OF TENNESSEE v. ANTONIO ARNOLD

Court: TCCA

Attorneys:

Phyllis Aluko (on appeal), Assistant Public Defender, Memphis, Tennessee, and Larry Nance (at trial), Memphis, Tennessee, for the appellant, Antonio Arnold.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Zak and Patience Branham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: J.C. MCLIN

The defendant, Antonio Arnold, was convicted by a Shelby County jury of felony murder, voluntary manslaughter, aggravated burglary, and aggravated assault. On appeal, he challenges the sufficiency of the convicting evidence and four evidentiary rulings of the trial court. Upon our review of the record and the parties� briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/arnolda082806.pdf

STATE OF TENNESSEE v. GREGORY O. CHERRY

Court: TCCA

Attorneys:

Richard W. DeBerry, Assistant Public Defender, Camden, Tennessee, for the appellant, Gregory O. Cherry.

Paul G. Summers, Attorney General and Reporter; Sophia Lee, Assistant Attorney General; Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: DAVID H. WELLES

The Hardin County grand jury returned two indictments against the Defendant, Gregory O. Cherry,charging him with thirteen drug offenses. In separate plea agreements, the Defendant pled guilty to five offenses: (1) possession with intent to manufacture, deliver, or sell .5 grams or more of cocaine, (2) simple possession of marijuana, (3) possession of drug paraphernalia, (4) selling a Schedule IV controlled substance, and (5) delivering less than .5 grams of cocaine. The plea agreements provided that the Defendant would receive an effective sentence of ten years with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the Defendant�s ten-year sentence be served in the Department of Correction. On appeal, the Defendant argues that the trial court erred in denying an alternative sentence. Finding no error, we affirm the judgments of the Hardin County Circuit Court.

http://www.tba2.org/tba_files/TCCA/2006/cherryg082806.pdf

TODAY'S NEWS

Legal News

Ethics Commission settles on new executive director

The Tennessee Ethics Commission today named Bruce Androphy, general counsel of the New York State Ethics Commission, as its new executive director. Ethics Commission chair Tom Garland said "Mr. Androphy brings a wealth of talent as well as practical experience in the area of ethics to Tennessee's Ethics Commission. We are very fortunate to have an individual of his abilities to provide leadership during this critical start-up phase of the Commission's operations."

Ex-judge blames his actions on wife's affair

A former Roane County judge, captured on videotape taking thousands of dollars in kickbacks, is blaming his estranged wife's affair with a woman for his foray into public corruption. Thomas Alva Austin, 58, who pleaded guilty earlier this year to forcing kickbacks from men he handpicked to head up a traffic school and probation office, contends it was his second wife's fling that drove him over the legal edge.