Hearing set in judicial selection case

A hearing before Chancellor Ellen Hobbs Lyle has been set for Dec. 13 in the matter of Phil Bredesen vs. the Tennessee Judicial Selection Commission. The state is asking the court to determine the governor's rights and legal duties in making appointments to fill vacancies on the Tennessee Supreme Court under the Tennessee Plan. Read more in the Memphis Commercial Appeal.


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


Court: TSC


Jimmy F. Rodgers, Jr., and Arnold A. Stulce, Jr., Chattanooga, Tennessee, for the Appellant, Anna Sue Correll, Individually and as Administrator Ad Litem for the Estate of Edward H. Correll.

John R. Lewis, Nashville, Tennessee, for the Appellee, E.I. DuPont de Nemours and Co.


We accepted this appeal prior to its review by the Special Workers' Compensation Appeals Panel primarily to determine whether an employer's subrogation right under Tennessee Code Annotated section 50-6-112(c) extends to the recovery an employee's surviving spouse obtains in a products liability action filed by the employee in Georgia prior to his death. We uphold the trial court's determination that the employer's statutory subrogation extends to the surviving spouse's products liability recovery. In addition, we affirm the trial court's disposition of the plaintiff's claim concerning a Medicare lien for medical expenses, the trial court's holding that an offset for Social Security old-age benefits applies to the award of workers' compensation death benefits, and the trial court's resolution of the surviving spouse's claim for attorneys' fees. We remand this case to the trial court to determine the amount of the recovery the employee's surviving spouse obtained in the Georgia products liability action and to allocate a reasonable portion of the recovery to the surviving spouse's claim for loss of consortium, to which the employer's subrogation right does not extend. Finally, upon remand the parties may submit for the trial court’s consideration proof concerning the amount of the deceased employee's medical expenses for which the employer is responsible.



Court: TCA


Thomas C. Jessee, Johnson City, Tennessee, for the Appellants, Pete and Ben Paduch.

Kent Erickson Herrin, Johnson City, Tennessee, for the Appellee, City of Johnson City.

Judge: LEE

Pete and Ben Paduch constructed a 15,000-square-foot addition and, later, a 5,000-square-foot addition, to a building they co-own in Johnson City, Tennessee. The City issued both of the Paduchs a citation for violating a city ordinance by failing to obtain a building permit before constructing the 5,000-square-foot addition. Because of the increased size of the building after the construction of the 15,000-square-foot addition, the building became subject to building code requirements for the installation of a fire control device, such as a sprinkler system throughout the building or a fire wall. The City denied Pete Paduch’s request that the Pauduchs be granted a variance with regard to installation of such a device and, thereafter, the city court, by substitute judge, fined each of the Paduchs fifty dollars for failing to obtain a building permit and ruled that the Paduchs be fined fifty dollars per day until they complied with the building code requirement that a fire control device be installed in the building. The Paduchs appealed the ruling to circuit court. The circuit court accepted the Paduchs’ guilty plea to the charges that they constructed the 5,000-square-foot addition without a building permit and ordered that each pay a fifty dollar fine. The circuit court further ordered that the Paduchs pay retroactive and prospective fines of fifty dollars per day because of their failure to install a fire control device as required by the building code. On appeal, the Paduchs argue numerous issues: that the substitute city court judge was not appointed in accordance with the city charter; that the city court, and therefore the circuit court, erred by assessing fines in excess of fifty dollars; that the circuit court erred in failing to find that the charges against Pete Paduch were barred under the statute of limitations; that the circuit court erred by requiring that the Paduchs affirmatively modify their building; that the evidence preponderated in favor of waiving the ordinance requirement regarding the installation of a fire control device; and that the circuit court abused its discretion by taxing them with discretionary costs. We find no merit in any of these arguments and affirm the judgment of the circuit court. We further deny the City’s request for damages upon grounds that this was a frivolous appeal.



Court: TCCA


Greg W. Eichelman, District Public Defender (on appeal), and Michael C. Murphy, Morristown, Tennessee (at trial), for the appellant, Tara L. Beffrey.

Michael E. Moore, Acting Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Kimberly Lane, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Tara L. Beffrey, was convicted of driving under the influence (DUI), second offense, a Class A misdemeanor, for which she received an eleven-month, twenty-nine-day sentence; violation of the implied consent law, a Class A misdemeanor, for which she received a five-day consecutive sentence; and driving on a revoked license, a Class B misdemeanor, for which she received a six-month concurrent sentence. On appeal, the defendant argues that: (1) the convicting evidence was insufficient to prove DUI and (2) the vehicle stop that led to her arrest was unconstitutional. We conclude no error exists, and we affirm the judgments of the trial court.



Court: TCCA


Robert Jones, District Public Defender, and Trent Hall, Assistant Public Defender (at trial); and Phyllis Aluko, Assistant Public Defender (on appeal), for the Appellant, Lisa Marie Butler.

Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

A Shelby County jury convicted the defendant, Lisa Marie Butler, of first degree felony murder and aggravated child abuse, see T.C.A. §§ 39-13-202, -15-402 (2003), in connection with the June 17, 2003 death of her eight-month-old child, Dewayne Butler. The trial court sentenced the defendant as a Violent Offender to life imprisonment at 100 percent for the felony murder conviction and to 20 years and six months at 100 percent for the aggravated child abuse conviction, with concurrent service of the sentences. On appeal, the defendant contests the legal sufficiency of the convicting evidence at trial and argues that her sentence for the aggravated child abuse conviction is excessive. After our review of the record and the parties’ briefs, we affirm the defendant’s convictions.



Court: TCCA


Larry E. Copeland, Jr., Memphis, Tennessee, for the appellant, Larry Dickerson.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; C. Phillip Bivens, District Attorney General, pro tem, for the appellee, State of Tennessee.


The petitioner, Larry Dickerson, filed a petition for post-conviction relief from his conviction for first degree murder and resulting life sentence. The trial court dismissed his petition. On appeal, the petitioner argues that he received the ineffective assistance of counsel at trial. We affirm the judgment of the trial court.



Court: TCCA


Leo H. Odom, Pro Se, Tiptonville, Tennessee.

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

Judge: HAYES

The Appellant, Leo H. Odom, appeals the Lake County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. Odom was indicted for first degree murder and subsequently pled guilty in the Davidson County Criminal Court to second degree murder, receiving an agreed sentence of thirty years with service of 100% as a violent offender. He is currently an inmate at Northwest Correctional Complex at Tiptonville. On appeal, Odom argues that his 1997 murder conviction and resulting thirty-year sentence are void because his sentence is “erroneous as being contrary to the express provisions of the 1989 Sentencing Reform Act.” After review, we affirm the judgment of the Lake County Circuit Court.



Court: TCCA


M.J. Werner, Memphis, Tennessee (on appeal) for the appellant, Michael Small.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee.


Following a jury trial, the Defendant, Michael Small, was convicted of two counts of aggravated robbery. At the sentencing hearing, the trial judge ordered the Defendant to proceed pro se because he allegedly physically attacked his appointed trial counsel. The trial court merged the two counts of aggravated robbery and sentenced the Defendant as a Range II, multiple offender to twenty years in the Department of Correction. On appeal, the Defendant asserts that (1) his failure to file a motion for new trial should not constitute waiver of trial errors on appeal because he was wrongfully denied his right to counsel, (2) the trial court erred in allowing the appointed counsel to represent him during trial because the attorney-client relationship became “adversarial,” (3) the trial court violated his right to counsel by requiring him to proceed pro se post-trial, and (4) the evidence is insufficient to support the jury’s finding the Defendant guilty beyond a reasonable doubt of aggravated robbery. We conclude that the trial court did not make sufficient findings of fact to permit our review of whether the Defendant was properly required to proceed pro se. Therefore, we remand to the trial court for further factual determinations regarding the alleged attack on the Defendant’s trial counsel and any other pertinent information on the issue of whether the Defendant implicitly waived or forfeited his right to counsel.



Court: TCCA


André C. Wharton, Memphis, Tennessee, for the Appellant, Louis Steele.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scott Bearup, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Louis Steele, appeals the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. Steele pled guilty to misdemeanor vandalism, harassment, and three counts of driving under the influence (DUI). On appeal, Steele contends that his pleas were not knowingly and voluntarily entered due to trial counsel’s ineffectiveness in: (1) failing to inform him of the consequences of his pleas, specifically that three DUI convictions automatically qualified him as a Motor Vehicle Habitual Offender; (2) failing to seek court-ordered medical treatment while he was in jail or to pursue his release on bail; and (3) failing to properly conduct a pretrial investigation. Following review, we affirm the judgment of the post-conviction court.



Court: TCCA


Brock Mehler, Nashville, Tennessee, and William D. Massey, Memphis, Tennessee, for the appellant, Heck Van Tran.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney General; William Gibbons, District Attorney General, and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.


This matter is before this court following the Petitioner Heck Van Tran’s motion to reopen his post-conviction petition for the limited purpose of determining whether the Petitioner is mentally retarded and thus ineligible for the death penalty. The lower court entered an order denying relief. The Petitioner appeals asserting that the proof established by a preponderance of the evidence that the Petitioner is mentally retarded renders his sentence of death unconstitutional. After a review of the record and the applicable law, we affirm the lower court’s denial of relief.



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Legal News
Judicial nominees resubmitted
The Bush administration, trying to push through judicial nominations before Republicans lose control of the Senate, resubmitted six nominees deemed by Democrats too conservative for the federal bench.
Read the Associated Press report in Law.com
Senator turns lawman to catch thieves
State Sen. Tim Burchett says he caught a group of youngsters late Wednesday breaking into a warehouse he uses to store old motorcycles and parts. He held them at gunpoint -- and fed them chocolate-chip cookies -- until Knox County sheriff's deputies arrived to make the arrests.
Read about it in the Knoxville News Sentinel
National Adoption Day activities planned
As the nation prepares to celebrate National Adoption Day on Nov. 20, Shelby County Chancellor Arnold Goldin will legalize the adoptions of 20 children and Hamblen County Chancellor Thomas (Skip) Frierson will do the same for seven children on Saturday. In keeping with an annual tradition, the judges also will give each child a new family certificate and a special teddy bear. A celebration with refreshments will follow the proceedings.
The Cleveland Daily Banner has the story
Baker Donelson founder to receive Boy Scout award
Lewis R. Donelson III, co-founder of the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz PC, will receive a Distinguished Citizen Award from the Boy Scouts of America on Nov. 21 at a ceremony at the Memphis Hilton. Former Tennessee Senator Fred Thompson will be the featured guest speaker and award presenter. The award, which is being given by the Chickasaw Council, honors an individual who has given service to the community, state and nation. For more information on the event, contact Woody Woodward at 901-327-4193 or hwoodwar@bsamail.org.

Election 2006
Tuke leaving Democratic post; Davis want to stay as GOP chief
Nashville attorney Bob Tuke is leaving his post as state Democratic Party chairman, but another Nashville lawyer -- Gray Sasser -- may be in line for the job, the Tennessean reports. On the Republican side, chairman Bob Davis is seeking a second two-year term.
Read more
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