Sen. Williams switches parties; Senate now split 16-16

State Sen. Mike Williams, R-Maynardville, announced today that he's trading his Republican affiliation for that of an independent, a move that leaves the Senate evenly split between Republicans and Democrats. Williams blamed partisanship and gridlock for his decision. The Knoxville News Sentinel has more on the story.

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TODAY'S OPINIONS
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GARY EDWIN BENNETT ET AL. V. TREVECCA NAZARENE UNIVERSITY

Court: TSC

Attorneys:

Peggy L. Tolson, Brentwood, Tennessee, for the appellant, Trevecca Nazarene University

David Randolph Smith, Timothy I. Ishii, and Raymond T. Throckmorton, III, Nashville, Tennessee, for the appellees, Gary Edwin Bennett and Thomas W. Cantley

Judge: CLARK

We accepted this appeal of a premises liability case to determine whether the "independent contractor rule" adopted in Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996), relieves a premises owner from liability when a premises owner provides an independent contractor inaccurate information germane to the contractor's work. We hold that a property owner has a duty of reasonable care to provide accurate information to an independent contractor if the owner provides specific information germane to the repair after engaging the contractor. Because material facts remain in dispute between the parties in this case about what information the premises owner provided, the trial court erred when it granted summary judgment to the defendant. We affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2007/bennettg_031407.pdf


STATE OF TENNESSEE v. ROBERTO VASQUES, KEVIN JOEL HERNANDEZ, LUIS MARTIN VASQUEZ, HECTOR ALONZO, AND VICTOR HUGO GARZA
Corrected Opinion


Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and John C. Zimmerman, Assistant District Attorney General, for the appellant/appellee, State of Tennessee

Jerry Gonzalez, Nashville, Tennessee, for the appellant, Roberto Vasques

James O. Martin, III, Nashville, Tennessee, for the appellant, Kevin Joel Hernandez

John G. Oliva, Nashville, Tennessee, for the appellee, Luis Martin Vasquez

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Hector Alonzo

Dwight E. Scott, Nashville, Tennessee, for the appellee, Victor Hugo Garza

Judge: WADE

Our grant of the applications for permission to appeal filed by the State of Tennessee and certain of the defendants was for the purpose of determining (1) whether the evidence at trial was sufficient to support the convictions for conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school zone; (2) whether the waiver of lesser-included offense instructions under Tennessee Code Annotated section 40-18-110 violates constitutional principles; and (3) whether the Court of Criminal Appeals applied the proper standard in affirming the grant of coram nobis relief to Vasquez and Garza, reversing the trial court, and denying the relief to Vasques, Hernandez, and Alonzo. We conclude that the trial evidence was sufficient to support the convictions and that the statutory waiver of the entitlement to complete jury instructions does not violate the right to a jury trial or the separation of powers principle. We also hold that Vasquez and Garza are entitled to a new trial based upon newly discovered evidence and that Vasques, Hernandez, and Alonzo are not entitled to coram nobis relief. In consequence, the judgments of the Court of Criminal Appeals are affirmed.

http://www.tba2.org/tba_files/TSC/2007/vasquesr_corr_031407.pdf


DOUGLAS CRAIG, ET AL. v. LINDSEY LOVING, ET AL.

Court: TCA

Attorneys:

John Thomas Feeney, Nashville, Tennessee, for the appellant, Mountain Laurel Assurance Company

William Kennerly Burger, Murfreesboro, Tennessee, for the appellee, Douglas Craig. Mark W. Henderson, Lebanon, Tennessee, for the appellees, Findley and Nelle Mahaffey d/b/a Sunshine Transport

Judge: CAIN

Findley and Nelle Mahaffey were owners of Sunshine Transport, which provided transportation to TennCare patients. They employed roughly twenty drivers and carried no workers' compensation insurance, but obtained a policy of automobile insurance from Mountain Laurel Assurance Company with uninsured-underinsured motorist coverage of $1,000,000. Douglas Craig was a driver for Sunshine Transport, and on January 13, 2003, while driving in the course of his employment, was injured in a collision with an automobile driven by Lindsey Loving, minor step-daughter of Thomas Thompson. Craig recovered a workers' compensation judgment against the Mahaffeys in the amount of $189,494.77, on which judgment the Mahaffeys paid a total of $50,000. Craig filed suit against Loving and Thompson, recovering a judgment against them for $375,293.46. The liability carrier for Loving and Thompson paid into court its $50,000 policy limit. The Mahaffeys intervened asserting subrogation interests for the workers' compensation judgment entered against them. Mountain Laurel sought offsets under its underinsured motorist policy for the $50,000 policy limit paid by Thompson and Loving together with the $189,494.77 workers compensation judgment. The trial court determined that Mountain Laurel was entitled to a $50,000 offset for the payments made on behalf of Loving and Thompson and also credit for the $50,000 actually paid by the Mahaffeys but not for the remainder of the unpaid workers' compensation benefits. The trial court further held that the Mahaffeys were not entitled to any subrogation interests. Mountain Laurel and the Mahaffeys appeal. The judgment of the trial court relative to the Mahaffeys is affirmed. The judgment of the trial court as to Mountain Laurel is reversed, and the case is remanded to the trial court for such further proceedings as may be necessary.

http://www.tba2.org/tba_files/TCA/2007/craigd_031407.pdf


MARIE LEE v. FRANKLIN SPECIAL SCHOOL DISTRICT BOARD OF EDUCATION, ET AL.

Court: TCA

Attorneys:

Richard L. Colbert and J. Christopher Anderson, Nashville, Tennessee, for the appellant, Marie Lee

Teresa Reall Ricks and J. Russell Farrar, Nashville, Tennessee, for the appellee, Franklin Special School District Board of Education and David L. Snowden, Director of Schools for Franklin Special School District

Judge: CLEMENT

A tenured teacher, whose position was abolished due to a system wide reduction in force, filed this action due to the School District's failure to afford her preferential consideration for reemployment pursuant to the Teacher Tenure Act, Tenn. Code Ann. section 49-5-511(b)(3). The trial court summarily dismissed the claim, concluding as a matter of law, the teacher was not entitled to preferential consideration for teaching positions that were to start after July 1, 2002, when her tenure expired due to the fact she was sixty-five years of age. We have concluded the teacher's right to preferential consideration vested prior to July 1, 2002, which afforded her the right to be placed and to remain on the preferred list for up to two years, until she refused a bona fide offer of reemployment for a comparable position or accepted a position. Moreover, since the Board of Education did not consider the competence or qualifications of Ms. Lee to hold a teaching position after the reduction in force announcement, as it was statutorily entitled to do pursuant to Tenn. Code Ann. section 49-5-511(b)(3), it waived the right to contend the teacher was unqualified, incompatible or unsuitable to hold one of the available teaching positions for which she interviewed. We therefore conclude the teacher was entitled to reemployment for the 2002-03 school year and that she was wrongfully denied reemployment. The order granting the School District's Motion for Summary Judgment is vacated, and the matter is remanded for entry of an order granting the teacher's Motion for Summary Judgment and determination of the compensation the teacher is entitled to receive for the 2002-03 school year.

http://www.tba2.org/tba_files/TCA/2007/leem_031407.pdf


FRANK H. McNIEL v. SUSAN R. COOPER

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, for the appellant, Susan R. Cooper, Commissioner of Health

Frank J. Scanlon, Nashville, Tennessee, for the appellee, Frank H. McNiel

Judge: KOCH

This appeal involves the authority of the Tennessee Board of Medical Examiners to review the medical records of a physician's patients. After the Board requested access to his patients' records in accordance with Tenn. Code Ann. section 63-1-117 (2004), the physician filed a declaratory judgment action in the Chancery Court for Davidson County challenging the constitutionality of the statute. The physician asserted that the statutory procedure for gaining access to medical records amounted to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial review of the reasonableness of the Board's request. He also claimed that the statute's notice provisions violated due process. Both the physician and the Board filed motions for summary judgment. The trial court determined that Tenn. Code Ann. section 63-1-117(a)(3), the portion of the statute authorizing disciplinary sanctions against physicians who willfully fail to produce records, was unconstitutional and awarded the physician $20,916 in attorney's fees. The Board perfected this appeal. We have determined that physicians in Tennessee have no reasonable expectation that they can shield their patients' records from the Board's regulatory oversight and that the Board may discipline physicians who willfully refuse to comply with lawful requests for patient records that comply with Tenn. Code Ann. section 63-1-117.

http://www.tba2.org/tba_files/TCA/2007/mcnielf_031407.pdf


STATE OF TENNESSEE v. MICHAEL BAILEY

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Phyllis Aluko, Assistant Public Defender; and Trent Hall, Assistant Public Defender, Memphis, Tennessee, for the appellant, Michael Bailey

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, the State of Tennessee

Judge: WOODALL

Defendant, Michael Bailey, was indicted on four counts of aggravated robbery. After a jury trial, Defendant was convicted on all four counts. Because the four counts represented four different theories of prosecution for the same criminal episode, the trial court merged the convictions and sentenced Defendant to thirty years as a career offender. After the denial of a motion for new trial, Defendant filed a timely notice of appeal. On appeal, Defendant challenges the sufficiency of the evidence, the trial court's decision to admit evidence during rebuttal of another robbery committed by Defendant, the trial court's refusal to instruct the jury on the lesser included offenses of theft and assault and the trial court's decision to allow the State to impeach Defendant with evidence of his thirteen prior convictions for aggravated robbery. For the following reasons, the judgment of the trial court is reversed and the case is remanded for a new trial.

http://www.tba2.org/tba_files/TCCA/2007/baileym_031407.pdf


STATE OF TENNESSEE v. CHARLES NATHAN BOLING

Court: TCCA

Attorneys:

Frank L. Slaughter, Jr., Bristol, Tennessee, for the Appellant, Charles Nathan Boling

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Rebecca H. Davenport, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WITT

The defendant, Charles Nathan Boling, is aggrieved of his incarcerative sentence on his guilty pleas to multiple property-related offenses and a charge of attempt to obtain a controlled substance by fraud committed in Sullivan County. He insists on appeal that his age and the lack of a "long history" of criminal conduct merit suspending his sentence and placing him on probation or imposing a sentencing alternative to incarceration such as "half-way" house supervision or participation in a "boot camp" program. We disagree and affirm the trial court's sentencing determination.

http://www.tba2.org/tba_files/TCCA/2007/bolingc_031407.pdf


STATE OF TENNESSEE v. CHEDRICK FITZGERALD

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Raymond Mack Garner, District Public Defender (at trial), for the appellant, Chedrick Fitzgerald

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Michael Gallegos, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: TIPTON

The defendant, Chedrick Fitzgerald, appeals from the Blount County Circuit Court’s probation revocation for his eight-year sentence for possession with intent to sell one-half gram or more of cocaine, a Class B felony. He claims that imposition of the full eight-year sentence is too harsh a punishment given the evidence. We hold that the trial court did not abuse its discretion and affirm its judgment.

http://www.tba2.org/tba_files/TCCA/2007/fitzgeraldc_031407.pdf


STATE OF TENNESSEE v. CLIFFORD BRYANT JOHNSON

Court: TCCA

Attorneys:

Joseph Howell, District Public Defender; Paul E. Meyers, Assistant District Public Defender (on appeal); Ramsdale O’DeNeal, Jackson, Tennessee (at trial), for the appellant, Clifford Bryant Johnson

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Jerry Woodall, District Attorney General; James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: THOMAS

The defendant, Clifford Bryant Johnson, was convicted of one count of aggravated robbery, a class B felony, and sentenced to nine years in prison as a Range I, standard offender. The defendant appeals his conviction, claiming that the evidence is insufficient to support his conviction. We conclude that the evidence is sufficient and affirm the defendant's conviction.

http://www.tba2.org/tba_files/TCCA/2007/johnsonc_031407.pdf


STATE OF TENNESSEE v. PHILLIP EUGENE JOHNSON

Court: TCCA

Attorneys:

Gary F. Antrican (on appeal), District Public Defender, and Julie K. Pillow and W. Ray Glasgow (at trial), Assistant Public Defenders, Somerville, Tennessee, for the appellant, Phillip Eugene Johnson

Michael E. Moore, Acting Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Elizabeth Rice, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The defendant, Phillip Eugene Johnson, was convicted by a Tipton County jury of statutory rape and sexual battery and was sentenced to an effective term of two years in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and argues that prosecutorial misconduct caused the jury to render an adverse verdict. Following our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/johnsonp_031407.pdf


STATE OF TENNESSEE v. JEFFERY McCLENNON MORRIS

Court: TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee (on appeal), and James W. Greenlee, Sevierville, Tennessee (at trial), for the appellant, Jeffery McClennon Morris

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Nichole Bass, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: GLENN

The defendant, Jeffery McClennon Morris, was convicted of aggravated sexual battery, a Class B felony, as well as domestic assault and contributing to the delinquency of a minor, Class A misdemeanors. He was sentenced as a violent offender to fifteen years in the Department of Correction for the felony and concurrent sentences of eleven months and twenty-nine days for each misdemeanor. He raises three issues on appeal: (1) the sufficiency of the convicting evidence; (2) whether certain of his statements were admitted at trial in violation of Tennessee Rule of Criminal Procedure 16(a)(1)(A); and (3) the validity of his indictment for domestic assault. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/morrisj_031407.pdf


CHET ALLEN WALKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brian S. Finlay, Chattanooga, Tennessee, for the Appellant, Chet Allen Walker

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; William H. Cox, III, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WITT

Aggrieved of his convictions of first degree premeditated murder, setting fire to personal property, and abuse of a corpse, the petitioner, Chet Allen Walker, sought post-conviction relief, which was denied by the Hamilton County Criminal Court after an evidentiary hearing. On appeal, the petitioner argues that he received ineffective assistance of counsel because trial counsel failed to call a particular character witness. We affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/walkerc_031407.pdf


RAYMOND WRITER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Richard A. Tate, Assistant Public Defender, Blountville, Tennessee, for the appellant, Raymond Phillip Writer

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Greeley Wells, District Attorney General; and Teresa M. Smith, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

The Petitioner, Raymond Writer, was convicted by a Sullivan County jury of rape of a child. He was sentenced to serve twenty-five years at 100%. This Court affirmed the Petitioner's conviction on direct appeal. The Petitioner filed a petition for post-conviction relief, asserting that he received the ineffective assistance of counsel, which the trial court denied. On appeal, the Petitioner's sole issue is whether the trial court erred in determining that he received the effective assistance of counsel. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/writerr_031407.pdf


Constitutionality of Senate Resolution 17

TN Attorney General Opinions

Date: 2007-03-13

Opinion Number: 07-29

http://www.tba2.org/tba_files/AG/2007/ag_07-29.pdf

TODAY'S NEWS

Legislative News
Legal News
Passages
TBA Member Services

Legislative News
House Judiciary hears testimony on doctor apologies
With no bills on the calendar, the House Judiciary Committee heard today about the Sorry Works! program from Doug Wojcieszak, director of The Sorry Works! Coalition. The program allows medical professionals to disclose and apologize for medical errors. Legislation to enact such a program, HB1334, has been introduced by House Judiciary Committee Chair Rob Briley, D-Nashville.

Marrero wins special election
State Rep. Beverly Marrero, D-Memphis, defeated Republican attorney Larry Parrish last night in a special election to fill the state Senate seat vacated by Democrat Steve Cohen who now serves in the U.S. Congress. Parrish, who represents Jerry and Louise Baker in the Anna Mae He case, said his involvement in the controversial case might have cost him votes.
Read the AP's report in the Daily News Journal
Senator may drop creation question
State Sen. Raymond Finney, R-Maryville, said yesterday he is not sure if he will go forward with a legislative proposal to force the state education commissioner to answer whether a supreme being created the universe. His comments came the same day the state attorney general ruled that Finney's bill, SR0017, posed no constitutional issues. Read more in the Times News or
Read the AG's opinion
Legal News
Bredesen presses on with open records ombudsman
Gov. Phil Bredesen said today he intends to press ahead with the creation of an open records ombudsman despite some resistance in the legislature. Bredesen has earmarked $100,000 to pay for the position, which would help people figure out what documents are open to the public.
Learn more in the Tennessean
Ford Jr. joins Fox News
Former U.S. Senate candidate Harold Ford Jr. is going to work for Fox News Channel as a political commentator on international events and the 2008 election. Ford will now split his time between Fox, teaching public policy at Vanderbilt University, chairing the Democratic Leadership Council and serving as vice chairman of Merrill Lynch. The Tennessean reported the news today.
Read Fox's press release
E-voting in TBA elections ends tomorrow
Electronic voting will end Thursday (March 15) for contested positions on the TBA Board of Governors. TBA members in the Middle Tennessee Grand Division are being asked to choose between Nashville attorneys Barbara Holmes and Tim Warnock. Members in the First District face a choice between Sevierville lawyer Cynthia Richardson Wyrick and Kingsport lawyer Frank Johnstone. TBA members in these districts who do not vote electronically will receive a paper ballot that will be mailed on or before April 1.

Values curriculum is new trend
Schools around the country are embracing a new trend of teaching social values and character development in the classroom. The Center for Youth Citizenship has identified eight traits essential to building character: caring, giving and service; justice and fairness; leadership, initiative and teamwork; respect; responsibility; and trustworthiness. Schools that have embraced this curriculum report fewer disciplinary problems and other benefits.
The News-Sentinel has the story
Passages
Prominent Memphis attorney loses battle with lung cancer
William P. "Ken" Kenworthy, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz PC, passed away March 12 at the age of 59. A lifelong Memphian and attorney for more than 30 years, Kenworthy was known nationally as an expert in employee benefits compensation law. He earned his law degree in 1974 from then-Memphis State University. Read more about his life and reflections from friends and coworkers in the
Memphis Daily News
TBA Member Services
Free online legal research is newest TBA benefit
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
Log in now to try it out

 
 
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