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Wednesday, January 31, 2007

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Kurita calls for election of AG, other constitutional officers

State Sen. Rosalind Kurita, D-Clarksville, says she wants to amend the Tennessee constitution to allow direct election of the state's constitutional officers -- the treasurer, secretary of state, comptroller and attorney general. The Nashville City Paper reports on her remarks to the Nashville Women's Political Caucus and on whether her newfound ties to the Republican leadership will help her.

http://www.nashvillecitypaper.com/index.cfm?section_id=9&screen=news&news_id=54369

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

LISA ANN (GALLAHAIRE) CARTWRIGHT v. ROBERT HOWARD CARTWRIGHT, SR.

Court: TCA

Attorneys:

Laura A. Keeton, Huntingdon, Tennessee, for the Appellant/Defendant, Robert Howard Cartwright, Sr.

W. Brown Hawley, Paris, Tennessee, for the Appellee/Plaintiff, Lisa Ann (Gallahaire) Cartwright

Judge: KIRBY

This is a divorce case involving the classification and division of marital property. The parties signed a prenuptial agreement. After they married, the parties operated a cattle and farming business, which was conducted in the wife's name only. After three years of marriage, the wife filed a petition for divorce. A trial was held primarily on issues related to property distribution. The husband argued that the cattle and farming equipment was purchased with his separate funds and therefore was his separate property under the prenuptial agreement. The husband also alleged that the wife had discarded or destroyed numerous items of his separate property. The trial court found that the cattle and farming equipment was marital property and divided it equally, and declined to find the wife responsible for the items that had been discarded or destroyed. The husband now appeals. We affirm, concluding that the evidence does not preponderate against the trial court's decision.

http://www.tba2.org/tba_files/TCA/2007/cartwrightl_013107.pdf

DOUGLAS F. CUNHA and wife, ELIZABETH D. CUNHA v. MIKE CECIL and BARRY J. WEBER

Court: TCA

Attorneys:

Jack M. Tallent and Paul E. Helton, Knoxville, Tennessee, for appellants

Edward H. Hamilton, Sevierville, Tennessee, for appellees

Judge: FRANKS

The Trial Court held the statute of repose, Tenn. Code Ann. Section 28-3-202, barred plaintiffs' claims pursuant to the Tennessee Consumer Protection Act. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/cunhad_013107.pdf

IN RE: D.J.R.

Court: TCA

Attorneys:

Christine Zellar Church, Clarksville, Tennessee, for the appellant, T.L.J.R.

Sharon T. Massey, Clarksville, Tennessee, for the appellees, J.R.R and L.C.R.

Judge: CLEMENT

The uncle and aunt of a child filed a dependent and neglect action in Juvenile Court seeking custody of the child. The Juvenile Court found the child dependent and neglected and awarded custody of the child to the uncle and aunt. The child's mother appealed. The Circuit Court affirmed, finding the existence of a substantial risk of harm if the child were to remain in his mother's custody. On appeal to this Court, the mother contends the evidence was insufficient. We have concluded the evidence in the record does not establish by clear and convincing evidence the requisite proof, that the child would more likely than not be exposed to a substantial risk of harm if left in the mother's care. We therefore, vacate and remand.

http://www.tba2.org/tba_files/TCA/2007/djr_013107.pdf

JOHNNIE MAE HALL AND THERESA DIANE JONES, CO-ADMINISTRATORS FOR THE ESTATE OF BILLY WAYNE JONES, DECEASED v. ANDREW STEWART, ET AL.

Court: TCA

Attorneys:

Gary R. Wilkinson and Russell C. Rutledge, Germantown, Tennessee and Christopher M. Norem, Chicago, Illinois, for the appellants, Johnnie Mae Hall and Theresa Diane Jones, Co-Administrators of the Estate of Billy Wayne Jones, Deceased

J. Kimbrough Johnson, Kyle M. Wiggins and Kevin O'Neal Baskette, Memphis, Tennessee, for the appellees, Andrew Stewart and Fullen Dock & Warehouse, Inc.

Judge: FARMER

This is a wrongful death case. On appeal, Ms. Theresa Diane Jones (Ms. Jones) and Ms. Johnnie Mae Hall (Ms. Hall) contend that two erroneous admissions of evidence unfairly influenced the jury's award of damages for the wrongful death of Mr. Billy Wayne Jones (Mr. Jones). The jury found that Mr. Jones suffered damages in the amount of $100,000 but also found that he was 49 percent at fault. The jury's verdict resulted in a net recovery of $51,000. Ms. Jones and Ms. Hall request a new trial of the action they instituted against Fullen Dock & Warehouse, Inc. (Fullen Dock), whose employee ran over Mr. Jones with a bulldozer, resulting in his death. Specifically, Ms. Jones and Ms. Hall argue that the trial judge abused her discretion in admitting evidence of Mr. Jones's prior medical history during the cross-examination of their own medical expert and of Mr. Jones's prior guilty plea and conviction for cocaine possession six years prior to his death. Finding no abuse of discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2007/hallj_013107.pdf

MALCOLM MIMMS, JR. v. MIRIAM ROSE PERRY MIMMS

Court: TCA

Attorneys:

William R. Willis, Jr. and Tyree B. Harris IV, Nashville, Tennessee, for the Appellant, Malcolm Mimms, Jr.

Michael W. Binkley, Nashville, Tennessee, for the Appellee, Miriam Rose Perry Mimms

Judge: LEE

In this post-divorce case, the issues presented are whether the trial court erred in reducing the husband's monthly rehabilitative alimony obligation from $7,000 to $5,000, where the husband's income from his employment declined from approximately $700,000 per year to approximately $100,000 per year; and whether the trial court erred in awarding the wife $4,000 in attorney's fees. After careful review, we modify the alimony award to $2,000 per month and reverse the award of attorney's fees.

http://www.tba2.org/tba_files/TCA/2007/mimmsm_013107.pdf

SHELLEY MARLENE SAMPSON, ET AL. v. WELLMONT HEALTH SYSTEM, dba HOLSTON VALLEY MEDICAL CENTER, ET AL.

Court: TCA

Attorneys:

Mark D. Harris, Kingsport, Tennessee, for the appellants, Shelley Marlene Sampson and Edward V. Sampson

Russell W. Adkins, Kingsport, Tennessee, for the appellees, Wellmont Health System, dba Holston Valley Medical Center, and Elizabeth Perry, R.N.

Judge: SUSANO

This is a medical malpractice case. Shelley Marlene Sampson (the plaintiff) and her husband, Edward V. Sampson, sued the defendants, Wellmont Health System (Wellmont), doing business as Holston Valley Medical Center, and Elizabeth Perry, R.N. (Nurse Perry), alleging that the plaintiffs suffered damages as a result of Nurse Perry's failure to promptly check and empty the plaintiff's catheter bag during her postoperative stay at Holston Valley Medical Center. The trial court granted the defendants summary judgment, finding that the plaintiff's cause of action was filed outside the period of the applicable statute of limitations. We affirm.

http://www.tba2.org/tba_files/TCA/2007/sampsons_013107.pdf

ANN MARGARET KALISZ SHOFNER v. ROBERT STEWART SHOFNER

Court: TCA

Attorneys:

James L. Weatherly, Jr., Nashville, Tennessee, for the appellant, Robert Stewart Shofner

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Ann Margaret Kalisz Shofner

Judge: CLEMENT

The mother of the parties' three children filed a Dependent and Neglected Petition against the father in Juvenile Court seeking to remove the two children that were in the father's custody pursuant to an order of the Circuit Court. The Juvenile Court dismissed the Petition following which the father sought to recover his attorney's fees incurred in defending the action. The Juvenile Court denied the father's request for attorney's fees, finding no statutory basis for such an award in a dependency and neglect action, which ruling the Circuit Court affirmed. In his appeal to this Court, the father contends courts have authority pursuant to Tenn. Code Ann. Section 36-5-103(c) in any suit or action to award attorney fees incurred in enforcing a decree concerning the adjudication of the custody or the change of custody of a child. Finding the father's reliance on Tenn. Code Ann. Section 36-5-103(c) correct, we reverse and remand for the award of the father's attorney's fees at trial and on appeal.

http://www.tba2.org/tba_files/TCA/2007/shofnera_013107.pdf

STATE OF TENNESSEE v. ALBERT BUCHANAN

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender and Charles Doug Curtis, II, Assistant Public Defender, Jasper, Tennessee, for the appellant, Albert Buchanan

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Julia Sanders, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

The Defendant, Albert Buchanan, pled guilty to two counts of aggravated burglary and was sentenced to serve four years and six months on probation. The Defendant violated his probation by committing a theft of a vehicle over $10,000 in value, and pled guilty to serve one year in the Department of Correction and three years on supervised probation to run consecutively to his initial probationary sentence. Once released from his incarceration, the Defendant was again found to have violated the terms of his probation by committing domestic violence against his parents. The trial judge ordered that the Defendant serve his sentence in the Department of Correction. The Defendant now argues that the trial court abused its discretion by revoking the Defendant's probation. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/buchanana_013107.pdf

STATE OF TENNESSEE v. TAVARSKI CHILDRESS
Corrected Opinion

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, (on appeal); and Coleman Garrett and Michelle Betserai, Memphis, Tennessee, (at trial), for the appellant, Tavarski Childress

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; Patience Branham, Assistant District Attorney General; and Gregg Gilluly, Assistant District Attorney General, for the appellee, the State of Tennessee

Judge: WOODALL

Following a jury trial, Defendant, Tavarski Childress, was convicted of first degree felony murder, reckless homicide, and especially aggravated robbery. The trial court merged Defendant's conviction of reckless homicide with his felony murder conviction, and Defendant was sentenced to life with the possibility of parole for his felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-two years for his especially aggravated robbery conviction, and ordered that this sentence be served consecutively to his life sentence. After filing a petition for post-conviction relief, Defendant was granted a delayed appeal. In his appeal, Defendant argues as plain error that the admission of his co-defendant's statements to the police during the State's re-direct examination of Sergeant Shemwell violated his constitutional right of confrontation. Defendant also argues that the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm Defendant's convictions of first degree felony murder and especially aggravated kidnapping. We affirm the trial court's judgment as to the length of Defendant's sentences, but remand for a new sentencing hearing to reconsider whether consecutive sentencing is appropriate.

Corrected Version
http://www.tba2.org/tba_files/TCCA/2007/childresst_corr_013107.pdf

STATE OF TENNESSEE v. DAVID MICHAEL CHUBB
With Dissenting Opinion

Court: TCCA

Attorneys:

Patrick T. McNally, Nashville, Tennessee (on appeal), and Michael W. Edwards, Hendersonville, Tennessee (at trial), for the appellant, David Michael Chubb

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sally Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The appellant, David Michael Chubb, was convicted by a jury in the Sumner County Criminal Court of four counts of aggravated sexual battery, one count of attempted aggravated sexual battery, one count of possession of marijuana, and one count of possession of drug paraphernalia. The trial court sentenced the petitioner to a total effective sentence of fourteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the trial court erred in failing to inquire into the conflict of interest when it was revealed at trial that the appellant's trial counsel had previously represented the mother of the minor victim; (2) whether the trial court erred in allowing the State to admit a videotape into evidence; (3) whether the trial court erred in denying the appellant's motion for a bill of particulars; (4) whether the trial court erred in charging a special jury instruction requested by the State; (5) whether, according to the dictates of Blakely v. Washington, the trial court erred in sentencing the appellant; and (6) whether the trial court erred in imposing consecutive sentences. Upon our review of the record and the parties' briefs, we reverse the convictions for aggravated sexual battery and attempted aggravated sexual battery based upon an improper instruction, affirm the drug related convictions, and remand for a new trial on the aggravated sexual battery and attempted aggravated sexual battery charges.

http://www.tba2.org/tba_files/TCCA/2007/chubbd_013107.pdf

HAYES DISSENTING
http://www.tba2.org/tba_files/TCCA/2007/chubbd_con_013107.pdf

LARRY G. HENDERSON, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dominic J. Leonardo, Nashville, Tennessee, for the Appellant, Larry G. Henderson, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WITT

Larry G. Henderson, Jr., the petitioner, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief, through which he had challenged his 2004, guilty-pleaded conviction of second degree murder. The petitioner claimed that the guilty plea was the product of ineffective assistance of counsel, and the post-conviction court conducted an evidentiary hearing on April 6, 2005. On October 11, 2005, the court entered its written findings of fact and conclusions of law and entered an order denying relief. The post-conviction court's order is supported in the record, and we affirm.

http://www.tba2.org/tba_files/TCCA/2007/hendersonl_013107.pdf

STATE OF TENNESSEE v. CHRISTOPHER WAYNE HOLDEN

Court: TCCA

Attorneys:

Andrew Jackson Dearing, Shelbyville, Tennessee, for the appellant, Christopher Wayne Holden

Michael E. Moore, Acting Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Mike McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

The Defendant, Christopher Wayne Holden, entered an open guilty plea in the Marshall County Circuit Court to one count of burglary of an automobile, two counts of theft under $500, two counts of criminal trespass, and one count of illegal possession or fraudulent use of a credit or debit card. For the Class E felony burglary conviction, the Defendant was sentenced to six years as a career offender. The trial judge ordered the Defendant's sentences for the misdemeanor convictions in this case to run concurrently with the felony sentence for an effective six-year sentence in the Department of Correction. The trial judge further ordered that the sentence in this case be served consecutively to his prior sentences in Coffee County and Bedford County. The Defendant now appeals the trial court's decision to impose consecutive sentences, arguing that his criminal activity in all three counties was part of a common scheme or plan and should not merit consecutive sentences. The State argues that the trial court properly sentenced the Defendant to consecutive sentences based upon his professional criminal status and his extensive criminal record. We conclude that the trial court did not err or abuse its discretion by ordering the Defendant to serve his Marshall County sentence consecutively to his Coffee County and Bedford County sentences. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/holdenc_013107.pdf

FRANK E. HUEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mark A. Kovach, Nashville, Tennessee, for the appellant, Frank E. Huey

Paul G. Summers, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WILLIAMS

The petitioner, Frank E. Huey, appeals his denial of post-conviction relief by the Criminal Court of Davidson County. On appeal, he contends that he was denied effective assistance of counsel because: (1) trial counsel did not call the petitioner's mother to testify at trial; (2) trial counsel failed to have the petitioner evaluated for competency prior to trial; and (3) trial counsel refused to allow the petitioner to testify on his own behalf. The State argues that the petitioner received effective assistance on all counts and that this appeal should be dismissed because the petitioner did not timely file his notice of appeal. After careful review, we conclude that the petitioner did receive effective assistance of counsel, and we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/hueyf_013107.pdf

STATE OF TENNESSEE v. SHERRY FLOYD McALISTER

Court: TCCA

Attorneys:

Charles S. Kelly, Sr., Dyersburg, Tennessee (on appeal); L. L. Harrell, Jr., Trenton, Tennessee (at trial), for the appellant, Sherry Floyd McAlister

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Jeffrey L. Long and Stacey B. Edmonson, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: GLENN

The defendant, Sherry Floyd McAlister, was convicted of attempted first degree murder, a Class A felony, and sentenced as a Range I, standard offender to twenty-five years in the Department of Correction. On appeal, she argues that the trial court erred by imposing an excessive sentence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mcalisters_013107.pdf

STATE OF TENNESSEE v. JOHN PATRICK NASH

Court: TCCA

Attorneys:

David A. Doyle, District Public Defender, for the appellant, John Patrick Nash

Paul G. Summers, Attorney General and Reporter; David H. Findley, 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 appellant, John Patrick Nash, was indicted by a Sumner County grand jury of six counts of sexual contact with a victim under the age of thirteen. On August 23, 2005, he pled no contest to an amended indictment charging two counts of aggravated assault and retiring the other four counts of the original indictment. He received sentences of six and four years respectively, to run consecutively, for a total effective sentence of ten years as a standard offender and placed on community corrections. In October 2005, the appellant failed a drug test after testing positive for cocaine, marijuana, and alcohol, and a violation of community corrections warrant was filed. Following a hearing on January 9, 2006, the community corrections sentence was revoked and the appellant was ordered to serve his underlying sentences in confinement. On appeal, the appellant argues that the trial court erred in finding that he had violated the terms and conditions of his community corrections sentence. After careful review, we find no reversible error exists and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/nashj_013107.pdf

PERCY LEE PALMER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John H. Baker, III, for the appellant, Percy Lee Palmer

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee

Judge: WOODALL

The Appellant, Percy Lee Palmer, appeals the trial court's dismissal of his petition for post-conviction relief. Appellant concedes on appeal that the trial court's judgment is correct. Accordingly, the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2007/palmerp_013107.pdf

STATE OF TENNESSEE v. MARIO L. SMITH

Court: TCCA

Attorneys:

William A. Lane, Murfreesboro, Tennessee, for the appellant, Mario L. Smith

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm and Sharon Reddick, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: GLENN

The defendant, Mario L. Smith, was convicted by a Davidson County Criminal Court jury of attempted second degree murder, a Class B felony, and vandalism over $1000, a Class D felony, and was sentenced by the trial court as a Range I, standard offender to concurrent sentences of nine years and two years, respectively, in the Department of Correction. The sole issue the defendant raises on appeal is whether the evidence was sufficient to sustain his attempted second degree murder conviction. We conclude that the evidence was sufficient to sustain the conviction and, accordingly, affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/smithm_013107.pdf

TODAY'S NEWS

Knox Term Limits
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Knox Term Limits

Judge dismisses special election suit

Judge Thomas Varlan dismissed a lawsuit yesterday that attempted to stop the Knox County Commission from replacing 12 term-limited officials today. The suit, brought by a former candidate for sheriff, asked the court to halt the replacement process and instead order a special election to fill vacant positions.