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Tuesday, October 31, 2006

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Ethics Roadshow back by popular demand

This fall's TBA Ethics Roadshow will be a double feature, with sessions on "Cells, Lies, and Videotape: The Ethics of Investigations" and "The Accidental Client." The program will again be led by Memphis attorney and ethics expert Brian Faughnan and will features stops in Knoxville (Nov. 16), Nashville (Nov. 30), Chattanooga (Dec. 8) and Memphis (Dec. 15). Find out more or register today.

https://www.tba.org/onsiteinfo/ethics2006.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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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

KELLY LEE BOWERS v. G. BEELER AUTO DELIVERY, INC.

Court: TWCA

Attorneys:

Pamela B. Johnson and Kenny L. Saffles, Knoxville, Tennessee, for the Appellant, G. Beeler Auto Delivery, Inc.

Tony Farmer and John P. Dreiser, Knoxville, Tennessee, for the Appellee, Kelly Lee Bowers.

Judge: LEE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Chancellor determined that the plaintiff was permanently and totally disabled as a result of his work-related injury. The defendant appeals, arguing that the evidence preponderates against the trial court's determination of disability. After careful review of the record and applicable authorities, we find no error and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2006/bowersk_103106.pdf

LEONARD HARTMAN v. CLARENCE EVERETT

Court: TCA

Attorneys:

David B. Hamilton and Christopher E. Rowe, Knoxville, Tennessee for the Appellant, Leonard Hartman.

C. Dwaine Evans, Morristown, Tennessee for the Appellee, Clarence Everette "Bud" Cunningham.

Gene P. Gaby, Greeneville, Tennessee for the Appellee, Thomas L. Kilday.

Judge: SWINEY

Leonard Hartman (Plaintiff) sued his previous attorney Clarence Everett "Bud" Cunningham (Defendant Cunningham) and Attorney Thomas L. Kilday (Defendant Kilday) regarding an affidavit obtained by Defendant Kilday from Defendant Cunningham in another case. Both defendants filed motions for summary judgment, which the Trial Court granted finding and holding, inter alia, that the affidavit given by Defendant Cunningham (the Affidavit) does not contain privileged information; even if the Affidavit did contain privileged information, the communication was permissible pursuant to Tenn. Sup. Ct. R. 8, RPC 1.6(b); and that Tenn. Code Ann. Section 23-3-105 does not provide Plaintiff a private right of action. Plaintiff appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2006/hartmanl_103106.pdf

IN RE ESTATE OF DREWRY E. HASKINS, JR.

Court: TCA

Attorneys:

John P. Konvalinka, Mathew D. Brownfield, and Jennifer Hooks Lawrence, Chattanooga, Tennessee, for the Appellant, Drewry E. Haskins III.

Charles J. Gearhiser, R. Wayne Peters, and Robin L. Miller, Chattanooga, Tennessee, for the Appellee, Estate of Drewry E. Haskins, Jr.

Judge: LEE

At his death, Drewry E. Haskins, Jr., owned shares of capital stock in Catoosa Bancshares, Inc. He bequeathed the corporate shares to his son, Joseph M. Haskins, and provided in his will that another son, Drewry Haskins III, should take nothing from his estate. Drewry Haskins III filed a claim against his father's estate alleging that his father promised him he would receive his father's ownership interest in the corporation upon his father's retirement or death. The trial court determined that Mr. Haskins failed to prove the existence of an oral contract with his father and denied the claim. We hold the trial court did not err and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/haskinsd_103106.pdf

IN RE I.C.G., B.M.D., T.N.C., & T.L.C.

Court: TCA

Attorneys:

Robert B. Pyle, Chattanooga, Tennessee, for the Appellant, S.L.B.

Paul G. Summers, Attorney General and Reporter, and William N. Helou, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: LEE

In this appeal, S.L.B. (Mother) contends that the trial court erred in terminating her parental rights to four of her five children. Mother does not challenge the propriety of the trial court's order terminating her parental rights as to the fifth child. After careful review of the evidence and applicable authorities, we hold that the evidence does not preponderate against the trial court's finding by clear and convincing evidence that termination of Mother's parental rights was in the best interest of her children. Therefore, we affirm.

http://www.tba2.org/tba_files/TCA/2006/slb_103106.pdf

LEE ANDERSON WATKINS, ET A., v. WOODS MEMORIAL HOSPITAL, ET AL.

Court: TCA

Attorneys:

W. Holt Smith, Madisonville, Tennessee, for appellants, Lee Anderson Watkins and wife, Christi Lynn Watkins.

Jennifer H. Lawrence, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

Plaintiffs' medical malpractice action against Dr. Stuart Sullins was dismissed upon the Trial Court's granting summary judgment to defendant. Plaintiffs have appealed. We affirm the Trial Court's Judgment.

http://www.tba2.org/tba_files/TCA/2006/watkinsl_103106.pdf

STATE OF TENNESSEE v. SAMANTHA MARIE DANIEL

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender, Jasper, Tennessee, for the Appellant, Samantha Marie Daniel.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, fifteen-year-old Samantha Marie Daniel, was convicted by a Marion County jury of the first degree murder of her grandfather, Eugene Daniel, and the attempted first degree murder of her grandmother, Mattie Jo Daniel. She was later sentenced to concurrent sentences of life and twenty years for the respective convictions. On appeal, Daniel raises the following issues for our review: (1) whether she was denied her right to due process in the juvenile court of Marion County; (2) whether the trial court erred in denying her motions to quash the indictment and strike the jury venire; (3) whether the trial court erred in denying her motion to suppress her confession; (4) whether she was unfairly denied a bench trial; (5) whether the trial court erred in denying her request for a jury instruction on the presumption of second degree murder; (6) whether the evidence was sufficient to support her convictions; (7) whether the trial court erred in admitting a hearsay statement as an excited utterance; (8) whether she was denied the right to a fundamentally fair trial due to the introduction of misleading or intentionally false testimony; (9) whether the trial court erred in admitting evidence of her prior allegations of abuse against a third party; and (10) whether she was denied due process because her confession was not tape recorded. After a review of the record, we affirm Daniel's convictions for first degree murder and attempted first degree murder.

http://www.tba2.org/tba_files/TCCA/2006/daniels_103106.pdf

STATE OF TENNESSEE v. JIMMIE LEE HART

Court: TCCA

Attorneys:

James T. Powell, Union City, Tennessee, for the appellant, Jimmie Lee Hart.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Karen Waddell Burns, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Jimmie Lee Hart, was convicted of possession of one-half gram or more of cocaine with the intent to sell or deliver, a Class B felony, and was sentenced to thirty years imprisonment as a career offender. He appeals his conviction, contending (1) that the convicting evidence was insufficient and (2) that the trial court erred in refusing to instruct the jury on the meaning of the use of the Fifth Amendment right against self-incrimination. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/hartj_103106.pdf

SHINNY LEVERETTE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Shinny Leverette, pro se.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: MCLIN

The Petitioner, Shinny Leverette, appeals the lower court's denial of his petition for writ of error coram nobis 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. Upon review of the record and the accompanying pleadings, this Court concludes that the trial court properly dismissed the petition for writ of error coram nobis. Accordingly, the State's motion is granted and the trial court's dismissal is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/leverettes_103106.pdf

STATE OF TENNESSEE v. DAVID L. MONROE, JR.

Court: TCCA

Attorneys:

Jeffrey A. DeVasher, Assistant Public Defender (on appeal), and Willow Fort, Assistant Public Defender (at trial), for the appellant, David L. Monroe, Jr.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Angelita Dalton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, David L. Monroe, Jr., appeals the trial court's revocation of his probation and reinstatement of his original sentence, arguing that the court abused its discretion in reinstating his sentence based on what he characterizes as relatively minor violations of the terms of his probation. Following our review, we affirm the trial court's revocation of the defendant's probation and reinstatement of his eight-year sentence for attempted aggravated sexual battery of a three-year-old child.

http://www.tba2.org/tba_files/TCCA/2006/monroed_103106.pdf

STATE OF TENNESSEE v. CORNELIUS D. PIERCE

Court: TCCA

Attorneys:

Nathan S. Moore (on appeal) and Willow Fort (at trial), Nashville, Tennessee, for the appellant, Cornelius D. Pierce.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Angelita Dalton and Rob McGuire, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Cornelius D. Pierce, pled guilty in the Davidson County Criminal Court to selling less than one-half gram of crack cocaine, a Class C felony, and received an eight-year sentence as a Range II, multiple offender, to be served on intensive probation. Subsequently, the trial court revoked the appellant's probation and ordered that he serve his entire sentence in the Tennessee Department of Correction (TDOC). On appeal, the appellant claims that the trial court erred by ordering him to serve his sentence in confinement and that the trial court should have counted his time on probation as jail credit. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/piercec_103106.pdf

STATE OF TENNESSEE v. MACK T. TRANSOU

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant.

Paul G. Summers, Attorney General & Reporter, for the appellee, the State of Tennessee.

Judge: HAYES

This matter is before the Court upon the motion of appointed counsel seeking permission to withdraw from further representation of the Appellant in the above-captioned appeal pursuant to Rule 22, Rules of the Tennessee Court of Criminal Appeals. Counsel claims that there are no meritorious issues available for appellate review. Counsel has complied with the procedural requirements of Rule 22, Rules of the Tennessee Court of Criminal Appeals. The Petitioner, Mack T. Transou, has filed a responsive brief pursuant to Rule 22(E), Rules of the Tennessee Court of Criminal Appeals. After careful review of the motion, the accompanying Anders brief, and the appellate record, we agree with counsel�s assertion that the appeal has no merit and is, accordingly, frivolous within the meaning of Rule 22, Rules of the Tennessee Court of Criminal Appeals. Counsel's motion to withdraw is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2006/transoum_103106.pdf

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Legal News

Supreme Court rejects Housler appeal

The U.S. Supreme Court rejected without comment Monday the appeal of a man convicted of acting as a lookout for someone who killed four workers in a 1994 restaurant robbery in Clarksville. David G. Housler Jr. argued that his rights were violated when prosecutors used his confession despite factual errors. The Tennessee Supreme Court ruled in May that a jury could determine whether the defendant was telling the truth as long as the confession was voluntary and any discrepancies were peripheral.

Investigation launched into bugging of federal office

Shelby County sheriff's investigators have begun a criminal investigation into reports that the local Homeland Security office was bugged with secret listening devices. Authorities have disclosed that four devices were found earlier this month above ceiling tiles in the office, reports the Tennessean.