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Tuesday, September 26, 2006

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Sign up now for U.S. Supreme Court admission ceremony

A select group of Tennessee attorneys will experience the honor of being admitted to practice before the U.S. Supreme Court this year as part of the 23rd Annual TBA Academy. Only a limited number of attorneys will be able to participate in the private swearing in ceremony on Dec. 6, so make your plans now.

https://www.tba.org/onsiteinfo/academy_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.

00 - 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

GARY NELSON v. NORANDAL USA, INC., ET AL.

Court: TWCA

Attorneys:

Jeffrey P. Boyd, Hill & Boren, Jackson, Tennessee, for the appellant, Gary Nelson.

Gregory D. Jordan and James V. Thompson, Rainey, Kizer, Reviere & Bell, Jackson, Tennessee, for the appellee, Norandal, USA, Inc.

Paul G. Summers, Attorney General & Reporter, and Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Labor and Workforce Development, Second Injury Fund.

Judge: LOSER

This workers' compensation appeal has been referred to 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. In this appeal, the employee insists the evidence preponderates against the trial court's finding that he knew or should have known he had a compensable injury more than a year before the action was commenced. As discussed below, the Panel concludes that the evidence preponderates against the finding of the trial court. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC_WCP/2006/nelsong_092606.pdf

ANESTHESIA MEDICAL GROUP, P.C. v. PAUL BURAS

Court: TCA

Attorneys:

Andrea Taylor McKellar, Katie A. Colley, Nashville, Tennessee, for the appellant, Anesthesia Medical Group, P.C.

J. Anthony Arena, Nashville, Tennessee, for the appellee, Paul Buras.

Judge: COTTRELL

This case involves a claim for liquidated damages arising from the breach of a contract. The defendant resigned from his position with the plaintiff medical group, thereby triggering the provisions in the contract for repayment of an educational loan and of a sign-up bonus the plaintiff employer had given him. The court ordered repayment of those items, but held that the medical group was not entitled to the liquidated damages for early resignation set out in the contract, reasoning that those damages were punitive in nature and were an unenforceable penalty. The medical group appealed, arguing that the court should have awarded the liquidated damages, or in the alternative, the damages it actually suffered from the defendant's resignation. We reverse the trial court and award the plaintiff the liquidated damages under the contract.

http://www.tba2.org/tba_files/TCA/2006/anesthesiamed_092606.pdf

CROM-CLARK TRUST v. J. PATRICK McDOWELL ET AL.

Court: TCA

Attorneys:

Donnie R. McFerren, Memphis, Tennessee, for the appellants, J. Patrick McDowell and JPM Properties, Inc.

Roger Abramson and Kevin H. Sharp, Nashville, Tennessee, for the appellee, Crom-Clark Trust.

Judge: KOCH

This appeal involves a dispute regarding a contract to manage real property located in Memphis. After the owner of the property obtained a default judgment against the management company in the Davidson County General Sessions Court, the management company filed a de novo appeal in the Circuit Court for Davidson County. The management company thereafter filed a motion to dismiss the suit. While that motion was pending, the trial court entered an order dismissing the appeal on the ground that the management company had not obtained a trial date in the manner required by Local Rule 20(b). Thereafter, the trial court denied the management company's Tenn. R. Civ. P. 60.02 motion. The management company has appealed. We have determined that the trial court erred by declining to grant the management company relief from the dismissal of its de novo appeal.

http://www.tba2.org/tba_files/TCA/2006/cromc_092606.pdf

CYNTHIA HEATHERLY RAULSTON v. PORTER STUART RAULSTON

Court: TCA

Attorneys:

Steven M. Jacoway, Chattanooga, Tennessee, for appellant.

B. Stewart Jenkins, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

In this divorce action, the Trial Court granted the divorce, and awarded the wife marital property and attorney's fees. On appeal, we affirm in part, reverse in part, reducing the award of marital property awarded to the wife, and reverse award of attorney's fees.

http://www.tba2.org/tba_files/TCA/2006/raulstonc_092606.pdf

STATE OF TENNESSEE v. LEMAR N. BROOKS

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender, and Fred W. Love, Assistant Public Defender, for the appellant, Lemar N. Brooks.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry and Helena Walton Yarbrough, Assistant Attorneys General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Lemar N. Brooks, was convicted by a Montgomery County Circuit Court jury of two counts of first degree premeditated murder and sentenced to consecutive terms of life imprisonment. In this consolidated appeal, he essentially presents the following issues for our review: (1) whether the trial court erred by not instructing the jury that the State's key witnesses were accomplices as a matter of law, whose testimony had to be corroborated by independent evidence; (2) whether the evidence was sufficient to show premeditation; and (3) whether the trial court erred by denying the defendant's petition for writ of error coram nobis on the basis of newly discovered evidence. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/brooksm_092606.pdf

STATE OF TENNESSEE v. RAYMOND KURT BRYANT

Court: TCCA

Attorneys:

Jeffrey A. DeVasher, Assistant Public Defender (on appeal), and Kyle Mothershead, Assistant Public Defender (at trial), for the appellant, Raymond Kurt Bryant.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Raymond Kurt Bryant, appeals the trial court's revocation of his probation and reinstatement of his original sentences for three counts of attempted aggravated sexual battery, the original sentences, three four-year terms, to be served consecutively. The defendant argues that because the sentences in two counts had expired, the trial court could not reinstate them. We agree that only the third of the consecutive sentences had not expired and, thus, only it could be reinstated. Accordingly, we reverse the trial court's reinstatement of the sentences in Counts 1 and 2 but affirm the reinstatement of the unexpired four-year sentence in Count 3 and remand for entry of corrected judgments.

http://www.tba2.org/tba_files/TCCA/2006/bryantr_092606.pdf

STATE OF TENNESSEE v. MICHAEL ANTHONY LEWIS

Court: TCCA

Attorneys:

Dwight Scott, Nashville, Tennessee, for the appellant, Michael Anthony Lewis.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Michael Anthony Lewis, was convicted of attempted first degree murder. He was sentenced as a career offender to sixty years in the Department of Correction (DOC). On appeal, the Defendant argues that (1) the trial court improperly denied his motion to dismiss for lack of a speedy trial, (2) the evidence was insufficient to support his conviction, (3) the trial court improperly sentenced the Defendant as a career offender, and (4) the trial court committed plain error by admitting a photograph that the State did not produce in response to a defense discovery request. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/lewism_092606.pdf

STATE OF TENNESSEE v. DAVID EARL NIXON

Court: TCCA

Attorneys:

B. F. �Jack� Lowery and G. Jeff Cherry, Lebanon, Tennessee, for the appellant, David Earl Nixon.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, David Earl Nixon, pled guilty to two counts of especially aggravated sexual exploitation of a minor (Class B felony) and one count each of marijuana possession and possession of drug paraphernalia (Class A misdemeanors). He was sentenced to consecutive ten-year sentences for the two felony convictions, with the first ten years to be served in confinement and the second ten years on supervised probation. He received concurrent sentences of eleven months and twenty-nine days in confinement for the misdemeanor convictions. The defendant contends on appeal that the trial court erred in requiring him to serve his sentence in confinement rather than on probation and argues that the sentence of confinement constitutes an excessive sentence. We note that the laws concerning sentencing changed on June 7, 2005, and that this defendant did not execute any written waiver to be allowed to be sentenced under the new law. A ten-year sentence on probation under the old law is unauthorized, making the second ten-year sentence on supervised probation illegal. Because the trial judge is required to consider the aggregate sentence imposed, we reverse the sentences imposed and remand for new sentencing. We found no other reversible error.

http://www.tba2.org/tba_files/TCCA/2006/nixond_092606.pdf

STATE OF TENNESSEE v. HAROLD D. NOEL

Court: TCCA

Attorneys:

Jeffrey Jones, Bartlett, Tennessee, for the appellant, Harold Noel.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Harold D. Noel, was convicted of voluntary manslaughter. See Tenn. Code Ann. Section 39-13-211 (2003). The trial court imposed a sentence of six years to be served in the Department of Correction. In this appeal, the defendant asserts that the trial court erred by denying his motion to suppress. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/noelh_092606.pdf

STATE OF TENNESSEE v. MARCUS D. SHIELDS

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender (on appeal), and Russel A. Church, Assistant Public Defender (at trial), for the appellant, Marcus D. Shields.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

Following a jury trial, the defendant, Marcus D. Shields, was convicted of second degree murder, aggravated assault, which the trial court merged into the second degree murder conviction, and two counts of reckless endangerment. The trial court sentenced the defendant as a violent offender to twenty-five years for the second degree murder conviction and eleven months, twenty-nine days for each of the reckless endangerment convictions, with all sentences to be served concurrently. The defendant�s sole issue on appeal is whether the evidence is sufficient to support his second degree murder conviction. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/shieldsm_092606.pdf

STATE OF TENNESSEE v. BILLIE JOE WELCH

Court: TCCA

Attorneys:

Andrew Nathan Hall, Wartburg, Tennessee, for the appellant, Billie Joe Welch.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Scott McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Billie Joe Welch, was convicted of second degree murder, and the trial court sentenced him to eighteen years in the Tennessee Department of Correction. The Defendant now appeals, contending that: (1) the evidence was insufficient to support his conviction; (2) he received ineffective assistance of counsel; (3) the trial court improperly charged the jury on second degree murder; (4) the trial court erred when it answered a jury question off the record; and (5) the trial court improperly sentenced him. Finding no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/welchb_092606.pdf

TODAY'S NEWS

Legal News
Supreme Court Watch
BPR Actions
Upcoming

Legal News

What's next for DA Gibson?

What would happen if District Attorney General Bill Gibson loses his license? A Tennessean story looks at what steps will follow yesterday's Supreme Court action that suspended his license for 30 days. The suspension stems from a series of personal letters between Gibson and a murder defendant, which caused the TBI to begin an investigation.

Read the full story

State settles with discount healthcare telemarketer

Tennessee has entered into an agreement with Direct Benefit, a discount healthcare telemarketing company, for alleged deceptive marketing of insurance and healthcare cards. The company, which no longer is in business, has paid full restitution to an estimated 91 Tennesseans who paid for the fraudulent service.

Read the attorney general's full statement

Columnist advocates merger between TSU and NSL

Tennessean columnist Gail Kerr says Tennessee State University and the Nashville School of Law should merge since the 38-year-old desegregation case against TSU came to a close last week.

Read about her rationale

Divorcing gay couples create new legal issues

Gay and lesbian couples can only marry in Massachusetts, but many states legally recognize same-sex couples and send them to divorce court if they break up. A report in the Knoxville News Sentinel indicates that attorneys are shying away from these cases for fear of their own liability.

Learn more about the issues involved

'Light cigarette' smokers get class-action status

A federal judge on Monday granted class action status to tens of millions of "light cigarette" smokers for a potential $200 billion lawsuit against tobacco companies.

Read about the case from WSMV-TV

Legal aid auditor claims retaliation

Inspector General Kirt West, the auditor who alleged lavish spending by Legal Services Corp. executives, now says the agency is trying to fire him. A spokesperson for the LSC denied that anyone is trying to retaliate against West.