Municipal and juvenile judges get ethics seat,
term of chief justice reduced to 2 years


Under orders released today, the membership of the Judicial Ethics Committee was expanded to include a municipal and a juvenile judge, and the term of the chief justice of the Tennessee Supreme Court was reduced from four to two years. Under the state constitution, the Supreme Court elects the chief justice and may set forth the term and method of his selection. The court amended Rule 32 making this change without comment. The court also amended Rule 10A, which sets forth the structure of the Judicial Ethics Committee, to expand its membership from five to seven members. The court now will appoint a member of the Municipal Judges Association and the Juvenile and Family Court Judges Association to the panel, which issues advisory ethics opinions interpreting the Code of Judicial Conduct. Download the Rule 32 order and the Rule 10 order


TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

LARRY GARNER V. THE GOODYEAR TIRE & RUBBER COMPANY, ET AL

Court: TWCA

Attorneys:

Kirk L. Moore and Randy N. Chism, Union City, Tennessee, for the appellant, Goodyear Tire & Rubber Co.

James H. Bradberry, Dresden, Tennessee, for the appellee, Larry Garner.

Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for Defendants, Tennessee Department of Labor/Workforce Development and Sue Head, Director.

Judge: DANIEL

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. On appeal, the employer contends that the trial court erred in failing to dismiss this claim based on the statute of limitations. After carefully reviewing the record, we agree and reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2006/garnerl_103106.pdf


LARRY L. CRAIN v. JEWEL CHAMBERS

Court: TCA

Attorneys:

Brian Schuette, Bowling Green, Kentucky, for the appellant, Larry L. Crain.

Barbara J. Moss and D. Andrew Amonette, Nashville, Tennessee, for the appellee, Jewel Chambers.

Judge: KIRBY

This is a petition to vacate the decision of an arbitration panel. The plaintiff attorney represented the defendant client in her efforts to nullify a prenuptial agreement and obtain an elective share of her deceased husband's estate. The parties executed a retainer agreement. In the agreement, the client agreed to pay the attorney a contingency fee for all of his legal services, except for the collection of a promissory note due from her deceased husband's estate. As to the promissory note, the client agreed to pay an hourly rate. The attorney then facilitated a settlement between the client and her husband's estate as to all issues. After that, a dispute between the attorney and the client arose as to the amount that the client owed the attorney under their contingency fee arrangement. The parties submitted their fee dispute to arbitration. After a hearing, the arbitration committee determined that the attorney was not entitled to a fee, because the client received no assets from the estate in the settlement. The attorney then filed the instant petition to vacate the decision of the arbitration committee, alleging that the committee exceeded its powers in determining whether he was entitled to any fee whatsoever, rather than simply determining the amount of the fee to which he was due. The trial court dismissed the petition for failure to state a claim on which relief could be granted. The attorney now appeals. We reverse, finding that the petition properly avers a claim for relief.

http://www.tba2.org/tba_files/TCA/2006/crainl_110106.pdf


BERNARD GRAY v. SHONEY'S, LLC, f/d/b/a SHONEY'S, INC.

Court: TCA

Attorneys:

Matthew J. Sweeney and April Y. Berman, Nashville, Tennessee, for the appellant, Shoney's, LLC.

John P. Branham and Rebecca C. Blair, Brentwood, Tennessee, for the appellee, Bernard Gray.

Judge: CLEMENT

This appeal concerns the respective rights of a former executive employee and his employer arising from a Management Retention Agreement. The issue is whether the former executive, who voluntarily terminated his employment for what he claimed to be good cause, as defined in the Management Retention Agreement, is entitled to severance compensation. The agreement afforded the executive the right to voluntarily terminate his employment, for which he would be entitled to receive severance compensation, if a significant change in the nature or scope of his authority as an executive occurred. Contending the conditions precedent occurred, the executive terminated his employment and made a demand for the severance compensation. When the employer denied the claim, the executive filed this action. Following discovery, the executive moved for summary judgment. The trial court granted the motion finding the material facts were not in dispute concerning whether good cause existed, specifically whether a significant change in the nature or scope of the executive's authority had occurred, and the executive was entitled to severance compensation. The employer appeals contending summary judgment was improper. We affirm.

http://www.tba2.org/tba_files/TCA/2006/grayb_110106.pdf


WILLIAM M. KINCAID, ET AL. v. SOUTHTRUST BANK, ET AL.

Court: TCA

Attorneys:

John L. Miller and Martin B. Bailey, Nashville, Tennessee; and Kenneth J. Catanzarite, Anaheim, California, for the appellants, William M. Kincaid, individually; Storage Florida, LP; and Aegis Self Storage, LLC, f/k/a Derby Self Storage, LLC.

Courtney H. Gilmer, Nashville, Tennessee, for the appellee, PNL Storage, LLC.

Charles W. McElroy and Dudley M. West, Nashville, Tennessee, for the appellee, Wachovia Bank, National Association, successor by merger to SouthTrust Bank; and SC Realty, LLC.

Judge: CLEMENT

Plaintiffs appeal the dismissal of their eleven-count complaint against SouthTrust Bank and two other nominal defendants. The trial court dismissed the complaint, finding the plaintiffs had failed to state a claim upon which relief can be granted. The plaintiffs contend the bank's dealings with Ed H. Street, Jr., the chief manager of Derby Self Storage LLC, following Derby's default on a secured indebtedness to the bank, constituted a conspiracy to breach fiduciary duty, a conspiracy to commit constructive fraud and actual fraud. The complaints relate to the fact that Ed Street was relieved of his personal guarantee of Derby's indebtedness when he executed on behalf of Derby a deed in lieu of foreclosure. The plaintiffs contend the bank's actions constituted a conspiracy to breach fiduciary duty, conspiracy to commit constructive fraud, and fraud. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2006/kincaidw_110106.pdf


DALLAS R. ATWOOD v. STATE OF TENNESSEE, STEPHEN DOTSON, WARDEN

Court: TCCA

Attorneys:

Dallas R. Atwood, pro se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Mark A. Fulks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Dallas R. Atwood, appeals from the trial court's summary dismissal of his petition seeking 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 State's motion is granted. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/atwoodd_110106.pdf


TERRY D. BREWER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Terry D. Brewer, Tiptonville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Terry D. Brewer, filed a pro se petition for writ of habeas corpus, challenging his forty-five-year sentence stemming from his 1989 convictions for aggravated rape with pregnancy occurring, aggravated sexual battery, and incest. The trial court summarily dismissed the petition for writ of habeas corpus. The petitioner appeals the trial court's dismissal and refusal to appoint counsel. The petitioner contends that his sentences are void because he was improperly sentenced under the 1982 Sentencing Reform Act instead of the 1989 Sentencing Reform Act. We conclude that the petition states no cognizable claim for relief, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/brewert_110106.pdf


STATE OF TENNESSEE v. MARGIE LYNN CLARK

Court: TCCA

Attorneys:

Branch H. Henard, III, (on appeal) and V. Michael Fox (at trial), Nashville, Tennessee, for the appellant, Margie Lynn Clark.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Bill Cloud and Joel Perry, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Margie Lynn Clark, pled guilty in the Montgomery County Circuit Court to driving under the influence (DUI), a Class A misdemeanor. The trial court sentenced her to eleven months and twenty-nine days in the county jail, to be suspended after serving forty-eight hours, and imposed a three hundred fifty dollar fine. Pursuant to the plea agreement, the appellant reserved the right to appeal a certified question of law challenging the trial court's denial of her motion to suppress. 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/clarkm_110106.pdf


DARRYL FORD v. CHERRY LINDAMOOD, WARDEN

Court: TCCA

Attorneys:

Darryl Ford, Clifton, Tennessee, pro se, for the appellant.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Darryl Ford, appeals the trial court's denial of his petition for writ of habeas corpus. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/fordd_110106.pdf


STATE OF TENNESSEE v. JOHN GREEN

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, and Garland Erguden and Dianne Thackery, Assistant Public Defenders, for the appellant, John Green.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reginald Henderson and Paul Hagerman; Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

John Green, the defendant, appeals his jury convictions of first degree felony murder and aggravated robbery (Class A felony). The defendant was sentenced to life in prison for first degree felony murder with a ten-year concurrent sentence for aggravated robbery. The defendant presents two issues: insufficient evidence to support the convictions, and error by the trial court in failing to suppress the defendant's statements. We conclude from our review that the evidence was sufficient and that the defendant's statements were properly admitted. The judgments of conviction are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/greenj_110106.pdf


STATE OF TENNESSEE v. RONALD EUGENE HALL

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Ronald Eugene Hall.

Paul G. Summers, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Ronald Eugene Hall, was convicted by a Davidson County jury of second-degree murder and sentenced as a violent offender to twenty-five years in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/hallr_110106.pdf


STATE OF TENNESSEE v. ANTONIO D. IDELLFONSO-DIAZ

Court: TCCA

Attorneys:

Amy Harwell and Kathy Evans, Nashville, Tennessee, for the appellee, Antonio D. Idellfonso-Diaz.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Jeff Burkes and Roger Moore, Assistant District Attorneys General, for the appellant, State of Tennessee.

Judge: OGLE

The appellant, State of Tennessee, charged the appellee, Antonio D. Idellfonso-Diaz, with two counts of first degree premeditated murder and one count of first degree felony murder. In this interlocutory appeal, the State argues that the trial court erred by ruling that the appellee could present expert testimony at trial about his diminished mental capacity at the time of the crimes. Upon review of the record and the parties' briefs, 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/TCCA/2006/idellfonsoa_110106.pdf


BRETT ALLEN PATTERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brett A. Patterson, pro se, Only, Tennessee.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; John Carney, District Attorney General; and Art Beiber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: SMITH

Both the petitioner and his co-defendant were convicted by a jury of two counts of first degree murder, one count of aggravated rape and one count of first degree burglary. The petitioner was unsuccessful in his direct appeal to this Court. He subsequently filed a petition for post-conviction relief, which the post-conviction court denied. The petitioner was also unsuccessful in his appeal of that judgment. The petitioner filed a motion to amend his post-conviction petition to request DNA testing of evidence. The second post-conviction court denied that motion. The petitioner appeals this decision. We affirm the decision of the second post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/pattersonb_110106.pdf


LOUIS TYRONE ROBINSON v. RICKY BELL, Warden

Court: TCCA

Attorneys:

Louis Tyrone Robinson, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Michael Rohling, Assistant District Attorney General; for the Appellee, State of Tennessee.

Judge: WEDEMEYER

This matter is before the Court upon the State's motion to affirm the judgment of the habeas corpus court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner has appealed the habeas corpus court's order dismissing the petition for writ of habeas corpus. Upon a review of the record in this case, we are persuaded that the habeas corpus court was correct in dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/robinsonl_110106.pdf


STATE OF TENNESSEE v. MAURICE SHAW

Court: TCCA

Attorneys:

Lowe Finney, Jackson, Tennessee (on appeal), and James T. Allison, Memphis, Tennessee (at trial), for the appellant, Maurice Shaw.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Colin A. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Maurice Shaw, the defendant, appeals his jury convictions for delivery and possession with intent to deliver over .5 grams of a Schedule II drug (cocaine), both offenses being Class B felonies. The defendant was sentenced as a standard offender to eleven years on each offense. The defendant contends that the evidence was insufficient to support the convictions. Specifically, he contends that no drugs were found on him; that the only eyewitness lacked credibility; and that no foundation was made for identification of the defendant's voice during the drug transaction. Our review indicates that sufficient evidence existed that the defendant did have cocaine in his possession and that the other issues were matters of credibility determination which were resolved by the jury. Accordingly, we affirm the convictions.

http://www.tba2.org/tba_files/TCCA/2006/shawm_110106.pdf


WILLIAM THOMPSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Cynthia M. Fort, Nashville, Tennessee, for the appellant, William Thompson.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, William Thompson, is serving a life sentence for his 1985 conviction of rebellion with intent to kill or escape. He appeals from the Davidson County Criminal Court's entry of an amended judgment which effectively modified his life sentence at forty percent release eligibility to a life sentence with no specified release eligibility, which took place after the petitioner successfully challenged the original sentence in a habeas corpus petition in the Bledsoe County Circuit Court. He claims that the Davidson County Criminal Court's resentencing was in error because the Bledsoe County Circuit Court's grant of habeas corpus relief rendered both his sentence and conviction void. We hold that the Davidson County Criminal Court did not err, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/thompsonw_110106.pdf


STATE OF TENNESSEE v. JOHN F. WALLACE

Court: TCCA

Attorneys:

Robert C. Brooks, Memphis, Tennessee, for the appellant, John F. Wallace.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General, and Tiffani Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, John Wallace, was convicted of four counts of assault. As a result, the trial court sentenced him to four, concurrent sentences of eleven months and twenty-nine days. The trial court then placed the appellant on probation for the length of the sentence and imposed a fine of $500 for each conviction. On appeal, the appellant challenges the sufficiency of the evidence and the trial court's imposition of the $500 fine for each conviction. Because the evidence is sufficient to support the convictions, we affirm the judgment of the trial court in that regard. However, because the trial court improperly fined the appellant $500 for each conviction when the jury was not instructed to impose a fine and the appellant did not waive his right to a jury-imposed fine, we remand the matter to the trial court for the proper assessment of a fine.

http://www.tba2.org/tba_files/TCCA/2006/wallacej_110106.pdf


STATE OF TENNESSEE v. WALLACE WAYNE WILLINGHAM

Court: TCCA

Attorneys:

Stanley K. Pierchoski (on appeal), Lawrenceburg, Tennessee, and Keith R. Peterson (at trial), Pulaski, Tennessee, for the appellant, Wallace Wayne Willingham.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Mike Bottoms, District Attorney General; and Patrick Butler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Wallace Wayne Willingham, was convicted by a Giles County jury of possession of more than .5 grams of cocaine with the intent to sell, a Class B felony. He was sentenced to thirty years in the Department of Correction as a career offender. On appeal, he challenges the sufficiency of the convicting evidence. Upon our review of the record and the parties' briefs, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2006/willinghamw_110106.pdf


JOSEPH W. WILSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Benjamin C. Mayo, Jackson, Tennessee, for the appellant, Joseph W. Wilson.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Jerry Woodall, District Attorney General; Alfred Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Joseph W. Wilson, was convicted of one count of attempted second degree murder, three counts of aggravated rape, especially aggravated robbery, especially aggravated burglary, conspiracy to commit aggravated burglary, and misdemeanor vandalism. He was sentenced to seventy-one years confinement. On appeal, this Court affirmed the Petitioner's convictions and sentences. The Petitioner petitioned for post-conviction relief claiming that he had received the ineffective assistance of counsel. The post-conviction court dismissed the post-conviction petition as untimely, and we affirm that judgment.

http://www.tba2.org/tba_files/TCCA/2006/wilsonj_110106.pdf


TODAY'S NEWS

Legal News
BPR Actions
Upcoming
TennBarU CLE Programs
TBA Member Services

Legal News
Legal aid grant funds new attorneys
Legal Aid of East Tennessee has received a $249,998 grant from the federal Office on Violence Against Women. The money will fund two new attorneys, one to be located in Cleveland and one to be placed in Johnson City, reports the Cleveland Daily Banner.
Learn more about the grant and the work of the organization
High court grapples with record verdict
The U.S. Supreme Court grappled Tuesday with whether to allow a $79.5 million verdict against a cigarette company, a case that business groups are pointing to in asking the justices to clamp down on large damage awards. The award in question was imposed against Philip Morris USA in connection with the death of a lifetime smoker.
Read the AP story in the Kingsport Times News
November TBJ covers electronic filing, ADR
Electronic filing is great if you do it right, but knowing how can be tricky. Learn to set up your office system so that you comply with new court rules. Also start thinking about ADR in a new way, with a new attitude. Read this and more in the November Tennessee Bar Journal, online and on the way to your mailbox.
Read the Journal online
Husch & Eppenberger expands in Chattanooga
The law firm of Husch & Eppenberger LLC has added 21 new lawyers to its Chattanooga office, all of whom formerly practiced with the firm of Shumacker Witt Gaither & Whitaker PC. With the expansion, Husch will have 39 lawyers practicing in Chattanooga.

New circuit judge not likely option
While the addition of a new circuit court judge in Wilson County has been discussed, it appears that the locality's best chance for relief from overcrowded dockets is the addition of a new general sessions judge.
Read about the issues facing the county in the Lebanon Democrat
China alters death penalty law
Under legislation enacted yesterday, China's highest court now must approve all executions in the country. Human rights activists reacted favorably, saying they hoped the change would reduce use of the death penalty. China is believed to carry out most of the world's court-ordered executions, putting to death hundreds, and possibly thousands, of people each year for crimes ranging from murder to such nonviolent offenses as tax evasion, the Associated Press reports.
The Memphis Commercial Appeal has the story
BPR Actions
Knoxville lawyer transferred to inactive status
At the request of Knoxville lawyer Sheryl Clark Rollins, the Tennessee Supreme Court transferred her law license to disability inactive status on Oct. 30. Rollins has a medical condition that incapacitates her from continuing the practice of law.
Read the BPR's release
Upcoming
UT series turns to technology trends
Phillip Hampton, president of LogicForce Consulting, will speak at the University of Tennessee College of Law at 12:30 p.m. on Nov. 15. His topic, "Technology Trends Affecting the Practice of Law," is presented as part of the Skills for Successful Advocates series from the UT Center for Advocacy and Dispute Resolution. For more information email center director Penny White at pwhite4@utk.edu

TennBarU CLE Programs
Entertainment and sports law program set for tomorrow
Join TBA in Nashville tomorrow for an entertainment & sports law seminar that will ensure you stay current on important issues in the field. The program includes lunch at 12 noon and a solid line-up of speakers and panelists from 1:30 to 5:15 p.m. For more information or to register for the seminar, visit the
TennBarU web site
TBA Member Services
Upgrade your telecommunications
Save on telecommunications costs and upgrade your existing system with the TBA member benefits program from American Communications Services. ACS works with BellSouth and a variety of providers to bring you savings on telecom.
Find out more

 
 
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