Judge Donald selected for ABA leadership post

The ABA Journal reports that Memphis U.S. District Judge Bernice Donald has been selected by the Nominating Committee to become ABA secretary. She will become the first woman of color to serve as an officer in the ABA when she begins her three-year term in August 2008. Two other Tennessee lawyers are also featured in the magazine. In its Supreme Court report, the lead item discusses an employment law case that Nashville lawyer Todd Presnell was scheduled to argue before the court next week. News reports today say the company making that appeal plan to ask the court to dismiss it. Also featured is Memphis attorney Lucian Pera, who shares his experiences as an in-house ethics counsel and talks about plans for supporting lawyers in that role through the ABA Business Law Section.
TODAY'S OPINIONS
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TIM HOLLIS v. ATC, INC. and SOMPO JAPAN INSURANCE COMPANY OF AMERICA

Court: TWCA

Attorneys:

D. Brett Burrow and Gordon C. Aulgur, Brewer, Krause, Brooks, Chastain & Borrow, Nashville, Tennessee, for the Appellants, ATC, Inc. and Sompo Japan Insurance Company of America.

Donald D. Zuccarello and Nina Parsley, Law Office of Donald D. Zuccarello, Nashville, Tennessee, for the Appellee, Tim Hollis.

Judge: BIVENS

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 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erred in finding that the employee suffered a compensable back injury which arose out of and in the course of his employment. We affirm.

http://www.tba2.org/tba_files/TSC_WCP/2007/hollist_041207.pdf


VIVIAN LAROSE JOHNSON v. COCA-COLA ENTERPRISES, INC., ET. AL.

Court: TWCA

Attorneys:

Betty Ann Milligan, Memphis, Tennessee, for the Appellants, Coca-Cola Enterprises, Inc., and Constitution State Service Company

Vivian Larose Johnson, Memphis, Tennessee, pro se.

Judge: HARRIS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee, Vivian Larose Johnson, sought workers' compensation benefits for carpal tunnel injuries to both hands and a separate injury to her back. The trial court found the employee had sustained a work related injury and that she had sustained a sixty percent permzzanent partial disability to the body as a whole without specifying the validity of her separate claims. The employer, Coca-Cola Enterprises, Inc. (Coca-Cola), has appealed, alleging the trial court erred in finding Ms. Johnson's claim for benefits for the injury to her back had been filed within the limitations period established by Tennessee Code Annotated section 50-6-203(a), and in awarding Ms. Johnson sixty percent permanent partial disability as a whole. We agree, reverse in part and remand the case to the trial court for determination of the remaining claims.

http://www.tba2.org/tba_files/TSC_WCP/2007/johnsonv_041207.pdf


DONNA ROBERTS v. KMART CORPORATION

Court: TWCA

Attorneys:

Angus Gillis, III, Nashville, Tennessee, for Plaintiff-Appellant, Donna Roberts.

Hal W. Wilkins, Nashville, Tennessee, for Defendant-Appellee, Kmart Corporation.

Judge: PEEPLES

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. Section 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff contends that the trial court erred in finding that she had failed to demonstrate that she had suffered a permanent injury to her back while in the course of employment for the defendant. We conclude the trial court was correct in its finding, however, and therefore, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2007/robertsd_041207.pdf


CYNTHIA J. RIDDLE v. AMOS LEE RIDDLE

Court: TCA

Attorneys:

William K. Lane, III, Franklin, Tennessee, for the appellant, Cynthia J. Riddle.

Barbara J. Walker, Columbia, Tennessee, for the appellee, Amos Lee Riddle.

Judge: CAIN

This case concerns child custody determinations following a divorce. Appellant appeals the trial court's ruling designating Appellee as primary residential parent of the parties' two minor children. However, Appellant failed to provide the Court of Appeals with a complete record of the trial court proceedings; specifically, transcripts of two hearings, one after which the trial court made its initial custody determination and the other after which the trial court changed its initial custody determination. Therefore, based on the incomplete appellate record, this Court cannot review the facts and must affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/riddlec_041207.pdf


WASTE MANAGEMENT, INC. OF TENNESSEE v. SOLID WASTE REGION BOARD OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL.

Court: TCA

Attorneys:

Thomas G. Cross, Nashville, Tennessee, for the appellant, Solid Waste Region Board of the Metropolitan Government of Nashville and Davidson County.
James R. Tomkins, Nashville, Tennessee, for the appellants, Chris Utley, Brenda Gilmore, Matthew Walker, Arthur Harris, Frances Utley, Johniene Thomas, and Kenneth Caine.

John P. Williams and Thomas V. White, Nashville, Tennessee, for the appellee, Waste Management, Inc. of Tennessee.

Judge: KOCH

This appeal involves the efforts of the operator of a private construction and demolition waste landfill to obtain approval to expand its landfill. The board overseeing the local government's solid waste management plan denied the operator's application after the area residents objected. The operator then filed a petition for review in the Chancery Court for Davidson County. The trial court permitted the area residents to intervene and, based on the record of the board's proceedings, determined that the board's decision was legally unsound and was not supported by the evidence. The regulatory board and the area residents have appealed. We have determined that the board's denial of the permit to expand the private landfill was clear error, and, therefore, we affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/wastemanagement_041207.pdf


STATE OF TENNESSEE v. JAMES MICHAEL HANNERS

Court: TCCA

Attorneys:

B.F. "Jack" Lowery and G. Jeff Cherry, Lebanon, Tennessee, for the appellant, James Michael Hanners.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William Whitesell, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The appellant, James Michael Hanners, was convicted by a Rutherford County jury of misdemeanor assault, a lesser-included offense of abuse of a child under six years of age, in September 2002. In January 2003, the trial court sentenced the appellant to eleven months and twenty-nine days. In August 2005, the appellant moved for expungement of any records relating to the charge of child abuse, which the trial court denied relying on Tennessee Code Annotated section 40-32-101, as amended May 22, 2003. On appeal, the appellant argues that the denial of his motion for expungement violates the Ex Post Facto Clause of the Tennessee Constitution because he was entitled to expungement at the time of his conviction and sentencing. After our review of the parties' briefs and the record as a whole, we reverse the judgment of the trial court and remand for entry of an expungement order.

http://www.tba2.org/tba_files/TCCA/2007/hannersj_041207.pdf


STATE OF TENNESSEE v. SCOTTY WAYNE HENRY

Court: TCCA

Attorneys:

J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Scotty Wayne Henry.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Elizabeth Rice, District Attorney General; Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Scotty Wayne Henry, pled guilty to one count of promoting the manufacture of methamphetamine and one count of felony reckless endangerment. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the search and seizure of evidence that led to his indictment and guilty plea were unconstitutional. We conclude that the search and seizure were constitutional, and the judgments of the trial court are therefore affirmed.

http://www.tba2.org/tba_files/TCCA/2007/henrys_041207.pdf


ANTONIO HOYLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Antonio Hoyle.

Michael E. Moore, Acting Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

against the petitioner, the state points to a letter written by the district attorney general listing the charges against the petitioner. The letter was made part of the record at the post-conviction hearing. IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs December 5, 2006 ANTONIO HOYLE v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Madison County No. C-06-53 Roy B. Morgan, Jr., Judge No. W2006-00784-CCA-R3-PC - Filed April 11, 2007

http://www.tba2.org/tba_files/TCCA/2007/hoylea_041207.pdf


STATE OF TENNESSEE v. DENNIS JARRETT

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public Defender, for the appellant, Dennis Jarrett.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Anna M. Banks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Dennis Jarrett, was indicted on the following charges: count one, driving after being declared a habitual motor vehicle offender; count two, driving under the influence of an intoxicant and/or drug; count three, driving under the influence, seventh offense; count four, felony reckless endangerment; count five, felony evading arrest; count six, possession of drug paraphernalia; count seven, violation of implied consent law; and count eight, failure to appear. Following a jury trial, Defendant was found guilty on counts one, four, five, six, seven, and eight. In a separate proceeding, Defendant entered pleas of guilty on counts two and three. Following a sentencing hearing, the trial court sentenced Defendant to an effective sentence of six years for his convictions, the length and manner of service of which Defendant does not challenge on appeal. Defendant argues on appeal that the evidence is insufficient to support his conviction of felony reckless endangerment. After a review of the record, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2007/jarrettd_041207.pdf


STATE OF TENNESSEE v. PAULINE LACEY

Court: TCCA

Attorneys:

Richard McGee, Nashville, Tennessee, for the appellant, Pauline Lacey.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Pauline Lacey, appeals from the sentencing decision of the Davidson County Criminal Court. The Defendant was indicted for four counts of aggravated assault, and she subsequently pled guilty as charged. Pursuant to the terms of the negotiated plea agreement, the Defendant received an effective four-year and six-month sentence, and the trial court was to determine the manner of service. Following a sentencing hearing, the trial court ordered the Defendant to serve sixty days in jail, followed by probation for the remainder of her sentence. On appeal, the Defendant argues that the trial court erred in denying her request for full probation. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/laceyp_041207.pdf


STATE OF TENNESSEE v. CHARLES OWENS

Court: TCCA

Attorneys:

C. Edward Fowlkes, Nashville, Tennessee; and John Edward Herbison, Nashvillle, Tennessee, for the appellant, Charles Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Charles Owens, was indicted on five counts of aggravated sexual battery and one count of rape of a child involving victim Y.B., and one count of attempted rape of a child and three counts of aggravated sexual battery involving victim J.S. Both victims are minors and will be referred to by their initials. The State entered a nolle prosequi as to count seven of the indictment charging Defendant with the rape of J.S., and the remaining counts were renumbered accordingly. Following a jury trial, Defendant was found guilty of six counts of the aggravated sexual battery of Y.B., and not guilty of the charges involving J.S. After a sentencing hearing, the trial court sentenced Defendant as a Range I, standard offender, to eight years for each aggravated sexual battery conviction. The trial court ordered Defendant to serve his sentences for his convictions in counts two and three consecutively with each other and to his conviction in count one, and his sentences for his convictions in counts four, five, and six concurrently with his sentence in count one, for an effective sentence of twenty-four years. Defendant does not challenge the sufficiency of the convicting evidence, or the manner or length of service of his sentences. On appeal, Defendant argues that the incidents of prosecutorial misconduct which occurred during opening and closing argument, and during the State's direct and crossexamination of the witnesses at trial, were so pervasive that Defendant was denied his right to a fair trial. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/owensc_041207.pdf


STATE OF TENNESSEE v. JAMES RIELS

Excerpts from the Court of Criminal Appeals' Decision


Court: TCCA

Attorneys:

LaTonya Burrow (at trial), Memphis, Tennessee, for the appellant, James Riels.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney General; William L. Gibbons, District Attorney General; and Gerald Harris and Michelle Parks, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

[Deleted: Introductory Paragraph]

http://www.tba2.org/tba_files/TCCA/2007/rielsj_APP_041207.pdf


STATE OF TENNESSEE v. ROBERT CHARLES YORK

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Robert Charles York. ey General, for the appellee, State of Tennessee.

Michael E. Moore, Acting Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorn

Judge: MCLIN

The defendant, Robert Charles York, pled guilty to violation of the light law, two counts of evading arrest, fourth offense driving under the influence (DUI), driving on a revoked license, and violation of the implied consent law and received an effective sentence of ten years as a Range II offender. On appeal, he challenges the sentencing decision of the Bedford County Circuit Court arguing that he should have been sentenced to community corrections rather than incarceration. Following our review of the record and the parties' briefs, we affirm the trial court's sentencing decision.

http://www.tba2.org/tba_files/TCCA/2007/yorkr_041207.pdf


TODAY'S NEWS

Legal News
Politics
TBA Member Services

Legal News
AG clears Duke players,
Nifong apologizes
All charges were dropped yesterday against the three Duke lacrosse players accused of sexually assaulting a stripper at a party. North Carolina's attorney general Roy Cooper, who took over the case after Durham County District Mike Nifong was charged with ethics violations, said there was a "tragic rush to accuse" by Nifong. Cooper called Nifong a "rogue" prosecutor who was guilty of "overreaching." Today Nifong apologized to the players.
Read more at CNN.com
Secretly recorded tape added to evidence in Ford trial
An undercover FBI agent testified in federal court this afternoon, introducing a secretly recorded tape on which John Ford agreed to sponsor legislation for the FBI's shell company E-Cycle and offered to talk to his brothers to help the company get contracts with the city and county.
Follow the trial in the Commercial Appeal
Opinion: Tennessee Plan is good for the state
In a Chattanoogan.com editorial yesterday, Tennessee Bar Association President-elect Marcia Eason explains how the "Tennessee Plan" works and why it "assures competence, fairness and impartiality of judges in this state."
Read it
Hes given more visits to bond with daughter
Jack and Casey He were granted more visits with their biological daughter after a three-hour status hearing yesterday with Juvenile Court Judge Curtis Person. This is part of the transition of the 8-year-old girl from foster parents Jerry and Louise Baker. The Hes waged a battle to get their daughter back from the Bakers, who argued that the Hes gave them their daughter to adopt. All parties in the case were also instructed not to talk to the media.
Read more in the Commercial Appeal
City judge faces removal for conflict of interest
The possible dismissal of Springfield city judge Fletcher Long will be on the agenda of the city's next Board of Mayor and Aldermen meeting, April 17. At issue is that Fletcher is representing Chico Gardner, who is accused of shooting a city police officer. City officials say it's a conflict and he should not do both. "My representing Chico Gardner is not a conflict. It's how I pay my bills," Long said. "They knew that's what I did when they hired me."
Read more in the Robertson County Times
Hot courtroom stalls jury selection
Saying "the jury can't take anymore," Sullivan County Criminal Court Judge Jerry Beck sent the pool home yesterday evening after a plea from the group about the "pace of the proceedings" and that a breakdown of courthouse air conditioning was causing them to be overheated. The selection is for the murder trial of Nikolaus L. Johnson, in which prosecutors are seeking the death penalty.
The Kingsport Times-News has more
Politics
Thompson's lymphoma not a factor in decision
Fred Thompson's announcement that he has been diagnosed with non-Hodgkin's lymphoma doesn't sound like it would affect his decision if he chooses to run for president. "I have had no illness from it, or even any symptoms," Thompson said on the radio Wednesday. "My life expectancy should not be affected. I am in remission, and it is very treatable with drugs if treatment is needed in the future -- and with no debilitating side-effects."
The Commercial Appeal has the story
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