Judicial Selection Commission votes not to appeal ruling

The Judicial Selection Commission today voted not to appeal Chancellor Ellen Hobbs Lyle's decision regarding its procedures for submitting candidates to Gov. Bredesen to fill Supreme Court vacancies. A statement from commission chair Dale Tuttle said the commission will comply with the chancellor's order and send a third nomination to the governor by the end of July. The final panel will consist of Judge D'Army Bailey, Judge William C. Koch, Jr. and one additional name from this list of eligible applicants: Frank G. Clement Jr., David O. Day, Steve R. Dozier, John T. Fowlkes, Sean Antone Hunt, Andrei Ellen Lee, C. Creed McGinley, J.C. McLin, Russell Taylor Perkins, Nathan B. Pride, Stephanie R. Reevers, Lillie Ann Sells and Steven R. Walker.
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
06 - TN Court of Appeals
08 - 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


Court: TWCA


Van French, Murfreesboro, Tennessee, for the Appellant, Nissan North America, Inc.

Susan K. Bradley, Murfreesboro, Tennessee, for the Appellee, Bobby Brown


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 50-6-226(e)(3) for hearing and reporting of findings of fact and conclusions of law. In determining the appropriate vocational disability rating, the trial court considered conflicting medical testimony, the employee's work duties, and other factors such as the employee's education, age, and skill level. The employer contends the trial court erred when it awarded a 10% vocational disability rating to the plaintiff's right leg. After a careful review of the record, we conclude that the trial court's judgment should be affirmed.



Court: TCA


Dean Hill Rivkin and Brenda McGee, Knoxville, Tennessee, for the appellants, C.S.C., a minor, by his next friend and Mother, L.C., on behalf of C.S.C. and all others similarly situated, and M.A.M., a minor, by his next friend and Mother, B.M., on behalf of M.A.M. and all others similarly situated.

Martha Haren McCampbell, Knoxville, Tennessee, for the appellees, Knox County Board of Education, and Dr. Charles Lindsey, Superintendent.


In this class action lawsuit, the plaintiffs alleged that the defendants, the Knox County Board of Education and its superintendent, were guilty of statutory, regulatory, and constitutional violations in the design and implementation of the Board's evening alternative education program for students who are expelled or suspended from their regular schools. The trial court rejected the plaintiffs' challenges. The plaintiffs appeal. We affirm.



Court: TCA


Ann Marie Gillespie Ward, Kodak, Tennessee, Pro Se Appellant.

Rebecca D. Slone and J. Derrick Whitson, Dandridge, Tennessee, for the Appellee, Andrew Mark Gillespie.

Judge: LEE

The issue presented in this case is whether the Wife's alimony award is modifiable due to her remarriage when the divorce decree does not classify the alimony award, stating only that "the [Husband] shall pay alimony to the [Wife] in the amount of five hundred dollars per month for a period of two years." The trial court, presented with Husband's petition to modify spousal support, held that the alimony award was "periodic/rehabilitative alimony," and terminated Husband's spousal support obligation to Wife because of her remarriage. We hold that the award of alimony is properly classified as alimony in solido, because (1) both the alimony award in the divorce decree and the parties' marital dissolution agreement provided for a sum certain - $500 per month for two years - with no contingencies that would cause termination of the alimony, such as Wife's death or remarriage; and (2) the trial court made no finding in the divorce judgment regarding the relative economic status of the parties, nor of the Wife's need or potential for rehabilitation. Therefore, because an award of alimony in solido is not subject to modification, we reverse the judgment of the trial court terminating Wife's alimony payments.



Court: TCA


Daniel G. Boyd, Rogersville, Tennessee, for the Appellant, Bobby C. Johnson.

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellee, Tabitha G. Lawson Johnson.

Judge: LEE

In this post-divorce case, the father petitioned the trial court to modify the parties' permanent parenting plan and designate him as the primary custodial parent of the parties' two minor children. The father alleged that the relationship between the mother and the teenage children was deteriorating to the point that the children had threatened to run away from home, that the children had expressed a desire to live with their father, and that the mother had numerous men come to her residence and spend the night. After a hearing, the trial court held there had been no material change in circumstances justifying a change of custody from the mother to the father. After review, we find that the fatherís allegations were largely not substantiated by the proof at the hearing. We do not find that the evidence preponderates against the trial courtís conclusion. The judgment of the trial court is affirmed.


EDWIN R. OLIVER, Individually as Next Friend of EDWIN C. OLIVER, A Minor v. PROLOGIS TRUST

Court: TCA


Clyde W. Keenan, of Memphis, TN, for the Appellant.

Dennis Patrick Hawkins, of Memphis, TN, and John Robert Cannon, Jr., of Memphis, TN, for the Appellee.


In this premises liability case, the minor plaintiff received a severe foot injury while assisting an independent contractor straighten concrete poles with a forklift on defendant premises owner's property. The plaintiff's father sued the independent contractor and the premises owner on his minor son's behalf, alleging negligence and workers' compensation liability. The trial court tried the workers' compensation claim first and entered a judgment for the plaintiff. The Special Workers' Compensation Panel of the Tennessee Supreme Court reversed as to the premises owner, finding that the premises owner was not the statutory employer of the plaintiff. The case returned to the trial court for trial of the negligence claim. The plaintiff voluntarily dismissed the independent contractor from the action, leaving the premises owner as the only defendant. The trial court granted summary judgment in favor of the premises owner, finding that the premises owner owed no duty to prevent the independent contractor from hiring the plaintiff, and finding that the facts of the case did not fall into any exception to the general rule that a premises owner is not liable for the negligence of its independent contractor. The plaintiff filed a notice of appeal, alleging that the trial court improperly granted summary judgment. We affirm.



Court: TCA


Charles D. Buckholts, Nashville, Tennessee, for appellant.

Jennifer E. Raby, Rockwood, Tennessee, attorney ad litem.

Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for Department of Children's Services.


Appellant, who was married to the mother at the birth of the child, claims the Trial Court erred in failing to engage in a comparative fitness test in awarding the child to a person who by DNA testing was shown to be the biological father. We affirm.



Court: TCA


Joseph E. May, Mount Carmel, Tennessee, Timothy E. Scott and Frank A. Johnstone, Kingsport, Tennessee, for appellants.

Anthony R. Steele, Knoxville, Tennessee, for appellee, 21 Mortgage Corporation.

Daniel M. Gass, Knoxville, Tennessee, for appellees, Southern Showcase Housing, Inc., d/b/a Homes America.


In this case defendants moved to arbitrate the dispute since plaintiff signed a contract to arbitrate. Plaintiff pled incompetence to contract, but the Trial Court held that issue was subject to arbitration. We vacate and remand and instruct the Trial Court to decide the issue of incompetency.



Court: TCCA


Patrick McGill, Dyersburg, Tennessee, for the Appellant, Nathaniel Benton, a/k/a, Nathan Gray.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee.


The Petitioner, Nathaniel Benton, a/k/a, Nathan Gray filed a pro se petition for a writ of habeas corpus. The habeas court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that his conviction and subsequent sentence for being a habitual criminal is void because the underlying convictions upon which the habitual criminal conviction is based are void. Finding no reversible error, we affirm the judgment of the habeas court.



Court: TCCA


J. Liddell Kirk (on appeal), Knoxville, Tennessee, and Mack Garner (at trial), Maryville, Tennessee, for the appellant, Carl Wesley Carter.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Ellen Berez, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Carl Wesley Carter, pled guilty in the Blount County Circuit Court to domestic assault, a Class A misdemeanor, and the trial court sentenced him to eleven months, twenty-nine days to be served as thirty days in jail and the remainder on supervised probation. Subsequently, the trial court revoked the appellant's probation and ordered that he serve his sentence in confinement. On appeal, the appellant claims that the trial court abused its discretion by revoking his probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.



Court: TCCA


Julie K. Pillow and Periann Houghton, (on appeal), Somerville, Tennessee, and Richard D. Cartwright, (at trial), Covington, Tennessee, for the Appellant, Myrna Jill Johnson Halle.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; James Walter Freeland Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.


The Defendant, Myrna Jill Johnson Halle, was convicted of reckless aggravated assault and received an effective sentence of twelve years in prison to be served at sixty percent. On appeal, the Defendant contends that: (1) the evidence was insufficient to support her conviction and established that the Defendant acted in self-defense; and (2) the trial court erred when it sentenced her. Finding no reversible error, we affirm the judgment of the trial court.



Court: TCCA


Gerald C. Russell, Maryville, Tennessee, for the appellant, Daniel Darrell Inman.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Michael L. Flynn, District Attorney General; Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.


A Blount County Circuit Court jury convicted the defendant, Daniel Darrell Inman, of one count of arson, a Class C felony. The trial court sentenced the defendant to four years to be served in the Department of Correction as a Range I, standard offender. The defendant appeals, claiming that the trial court erred (1) in advising the defendant's father of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), with the jury present and telling the jury that the defendant's father had also been indicted for events related to the arson, (2) in allowing the admission of photographs, (3) in refusing to allow a juror to testify about the jury's use of photographs, (4) in denying the defendant's motion for a mistrial because the jury foreman knew the brother of the prosecutor, and (5) in allowing the impeachment of a defense witness through the use of prior inconsistent statements. We conclude that the trial court erred in telling the jury the defendant's father had been indicted and in allowing the admission of extrinsic evidence but that the errors were harmless. We affirm the judgment of the trial court.



Court: TCCA


J. Colin Morris, Jackson, Tennessee, for the appellant, Willie Johnson.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney General, for the appellee, State of Tennessee.


The petitioner, Willie Johnson, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief from his conviction of burglary and theft over $500, for which he is serving eight years. He was sentenced to eight years on the burglary conviction and four years for theft, to be served concurrently. The petitioner claims he received ineffective assistance of counsel and argues that his attorney: (1) failed to provide him a list of the grand jurors who indicted him, including their racial make-up; (2) failed to consult him on every peremptory challenge; (3) failed to advise him to testify on his own behalf; (4) failed to persuade him to wear something other than his prison uniform at trial; and (5) failed to fully investigate and interview the witnesses in his case. After careful review, we conclude that no basis to grant relief exists, and we affirm the post-conviction court.



Court: TCCA


Danny R. Ellis, Jackson, Tennessee, for the Appellant, Stephen D. Lamb.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Stephen D. Lamb, was convicted by a Madison County jury of burglary, a Class D felony, and the misdemeanor offenses of possession of burglary tools and evading arrest. Lamb received an eight-year sentence for burglary and an eleven month and twenty-nine day sentence for each misdemeanor conviction. The misdemeanor sentences were ordered to run concurrently with each other but consecutively to the felony conviction. On appeal, Lamb raises the following issues for our review: (1) whether the trial court erred in failing to suppress certain items found in Lamb's possession at the time of his arrest; (2) whether the trial court erred in admitting a police videotape; (3) whether the evidence is sufficient to support his convictions; and (4) whether Lamb's sentence for burglary is excessive and whether the imposition of consecutive sentences is warranted. After review, the judgments of conviction and resulting sentences are affirmed.



Court: TCCA


Brock Mehler, Nashville, Tennessee, and Joseph Ozment, Memphis, Tennessee, for the Appellant, Michael D. Rimmer.

Paul G. Summers, Attorney General and Reporter; Mark Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General, and Thomas D. Henderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

Capital Appellant Michael Dale Rimmer appeals as of right his sentence of death resulting from the 1997 murder of Ricci Ellsworth. In November 1998, Appellant Rimmer was convicted of theft of property, aggravated robbery and premeditated first degree murder. He was sentenced to death for the murder conviction. On direct appeal, a panel of this Court affirmed Appellant Rimmer's convictions but, concluding that the sentencing verdict was "enigmatic and uncertain," vacated the sentence of death and remanded for a new sentencing hearing. See State v. Michael D. Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *1 (Tenn. Crim. App., at Jackson, May 25, 2001). Accordingly, the case was remanded to the Criminal Court for Shelby County for re-sentencing. At the conclusion of the re-sentencing hearing in January 2004, the jury found the presence of one statutory aggravating circumstance, i.e., that the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person, T.C.A. Section 39-13-204(i)(2) (1997). The jury further determined that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt and imposed a sentence of death. The trial court approved the sentencing verdict. Appellant Rimmer timely appeals presenting for our review the following issues: (1) whether the trial court erred in denying the motion for recusal; (2) whether the trial court erred in denying the motion for a continuance; (3) whether the trial court erred in excluding mitigation evidence; (4) whether the prosecutor engaged in misconduct; (5) whether the jury instruction on reasonable doubt was error; (6) whether the Appellant knowingly and voluntarily waived his right to testify; (7) whether it was error for the jury to be informed that the Appellant had been on "death row;" (8) whether the jury verdict was complete; (9) whether cumulative error requires reversal; and (10) whether the Tennessee death penalty statutes are constitutional. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury's imposition of the sentence of death in this case.



Court: TCCA


Tulinague Thandiwe, pro se, Tiptonville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Tulinague Thandiwe, proceeding pro se, appeals the sentencing decision of the Shelby County Criminal Court which resulted in the imposition of an eight-year sentence of incarceration. On appeal, Thandiwe challenges the trial court's denial of alternative sentencing. After review of the record, we affirm the judgment of the trial court.



Legal News
Legislative News
BPR Actions
Online CLE

Legal News
Comments sought on bankruptcy judges
The current 14-year terms of U.S. Bankruptcy Judges George Harvey Boswell (Western District of Tennessee at Jackson) and Marcia Phillips Parsons (Eastern District of Tennessee at Greeneville) are due to expire in November 2007. The U.S. Court of Appeals for the Sixth Circuit is considering whether to reappoint the judges to new 14-year terms and invites members of the bar and public to submit comments. The comments, which are kept confidential, should be submitted no later than Jan. 31, 2007 to: the Office of the Circuit Executive, 503 Potter Stewart U.S. Courthouse, 100 East Fifth Street, Cincinnati, OH 45202. For more information, contact the court at (513) 564-7200.

Memphis council members indicted
Grand jury indictments were returned late today charging Memphis City Councilmen Rickey Peete and Edmund Ford with bribery and extortion, the Commercial Appeal reports. The move formalizes criminal charges that federal agents filed against the pair late last month.
Read more
Jackson County sheriff under investigation
The Tennessee Bureau of Investigation is looking into claims that the Jackson County sheriff and some deputies gave preferential treatment, such as furloughs and drugs, to female inmates in return for sex. Agents were in Gainesboro last week conducting interviews.
The News Sentinel reports on the story
Nashville officials respond to criticism of juvenile system
Faced with recent high-profile violence by juveniles and criticisms about how the state handles youth offenders, the head of the state's juvenile justice programs has vowed to work with Nashville police to address problems. The first joint initiative will be a roundup this weekend of 11 juveniles missing from state custody.
Read more in the Tennessean
Judge insists juvenile court does not discriminate
Shelby County Juvenile Court Judge Curtis Person insisted today that his court does not discriminate against juvenile offenders in urban areas. In fact, he argued that he was the one who first warned suburban jurisdictions to end programs that kept offenders out of the county-wide system.
The Commercial Appeal has the story
In related news, the juvenile court has again warned officials in Germantown and Bartlett that they no longer can put first-time juvenile offenders in suburban diversion programs in lieu of processing them through the county system. According to the Commercial Appeal, suburban leaders now have agreed to end their alternative programs.
Read more
CASA director wins conflict management scholarship
Laura Swanson, executive director of Wilson County Court Appointed Special Advocates (CASA), will receive the first scholarship to Lipscomb University's Institute for Conflict Management, the Tennessean reports. Swanson will use the $36,000 scholarship to complete a Master's of Arts in conflict management at Lipscomb.

Jefferson County jail costs rise
The new Jefferson County Justice Center is scheduled to open Feb. 5, but officials are scrambling to staff and furnish it. According to the county commission, operational and equipment costs were not factored into the original project estimate, forcing commissioners to dig into reserve funds to purchase computers, software and furniture. To keep cost overruns down, the commission already has reduced the number of approved staff.
WATE News Channel 6 reports
Law student Katrina effort wins national award
Following Hurricane Katrina's devastation to the Mississippi Gulf Coast, a University of Mississippi law student from Memphis launched a nationwide network to provide legal aid to victims. The resulting Student Hurricane Network, involving more than 65 law schools, was recognized recently with the Lexis-Nexis Martindale-Hubbell Exemplary Public Service Award.
WLMT Memphis has the story
Violent crime on the rise
Murders and robberies continued to rise across the country during the first six months of 2006, preliminary FBI data show. Statistics released Monday indicate that the lull in crime between 2001 and 2004 appears to be over, according to the Bristol Herald Courier.
Read the preliminary report
Legislative News
Flinn appointed to Senate
The Shelby County Commission yesterday appointed Democrat George Shea Flinn to fill the seat of outgoing state Senator Steve Cohen, who was elected to the U.S. Congress. Flinn will represent Senate District 30 until March when voters will elect a permanent replacement, according to Chattanoogan.com. Flinn is general counsel with Flinn Broadcasting Company. He earned his law degree from the University of Memphis.

Senator Kilby to retire
State Senator Tommy Kilby, D-Wartburg, said last week he has decided not to seek another term and would like to see Rep. Dennis Ferguson, D-Midtown, elected as his successor. Kilby said he was announcing his decision early to be "upfront" with voters and intends to be "fully engaged" in Senate duties for the next two years.
The News Sentinel has more
Dunn named coordinator for new GOP House members
Rep. Bill Dunn, R-Knoxville, was named freshman coordinator for the House Republican Caucus, reports Chattanoogan.com. In this role he will work with the 11 new Republican members of the General Assembly, helping them learn the ropes in Nashville.

BPR Actions
Nashville lawyer disbarred
On Dec. 12, Stuart W. Fields was disbarred from the practice of law for misappropriation of funds, forgery, check fraud, failing to perform work for clients, acting on behalf of clients without consent, failing to provide clients with case updates and missing court dates.
Read the BPR's release
Administrative suspension lifted for two lawyers
Ellen Hassell Goodwin of Columbia, S.C. and David W. Hutton Jr. of San Antonio have been reinstated to the practice of law in Tennessee after paying their annual BPR fee.
View all attorneys suspended for fee violations
Knoxville attorney dies
Brian K. Warren, a well-known Knoxville real estate attorney, died Nov. 6 at the age of 46. A native of Virginia, he earned his law degree from the Cumberland School of Law of Samford University in 1988 and practiced law in Knoxville for 20 years. Memorials may be made to the Brian Warren Children's Education Trust Fund in care of AmSouth Bank, 9206 Parkwest Blvd., Knoxville, TN 37923.

Online CLE
New ethics programs now available online
A pair of new ethics courses have just become available through TennBarU online. Memphis attorney and ethics expert Brian S. Faughnan takes on the ethics of investigations in his two-hour program "Cells, Lies, and Videotape." A second one-hour program from Faughnan deals with "The Accidental Client."
Learn more or register now

But if you must, visit the TBALink web site at: https://www.tba2.org/tbatoday/unsub_tbatoday.php

TBALink HomeContact UsPageFinderWhat's NewHelp
© Copyright 2006 Tennessee Bar Association