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Monday, May 21, 2007

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Ethics Commission adds 'confidential matters' to agenda

The Tennessee Ethics Commission's plan to close part of its monthly meeting on Tuesday to discuss "confidential matters" is causing raised eyebrows at the Tennessee Coalition for Open Government. The group's executive director Frank Gibson said he was concerned that the commission -- charged with making state government more accountable and ethical -- might have made its decision from "an exaggerated understanding of attorney-client privilege as it applies to public meetings." Follow the story in the Tennessean

TODAY'S OPINIONS
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.

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

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2007/certlist_052107.pdf

ASHTON SCOTT ADAMS v. HENDERSONVILLE HOSPITAL CORP., ET

Court: TCA

Attorneys:

Randall L. Kinnard and Daniel L. Clayton, Nashville, Tennessee; Steven R. Walker, Memphis, Tennessee, for the appellant, Ashton Scott Adams.

Thomas A. Wiseman, III, and Margaret Moore, Nashville, Tennessee, for the appellees, Hendersonville Hospital Corporation, Hendersonville Hospital Corporation d/b/a Hendersonville Hospital, Hendersonvile Hospital and Kevin T. Hattaway, M.D.

Judge: CAIN

Patient presented to hospital emergency department with complaints of high fever, body aches (specifically in her right knee and calf), vomiting, nausea, and diarrhea. Approximately four and a half hours later, patient was discharged from the emergency room with a diagnosis of flu and dehydration. The patient died three days later, and an autopsy revealed that the cause of death was septic shock, secondary to a bacterial infection. In the suit against the hospital and treating physician, Appellant submitted three suggested jury instructions to the trial court, all three of which were denied. Appellant appeals the trial court's denial of the three jury instructions, as well as a specific portion of the instructions given to the jury. The judgment of the trial court is reversed and the case remanded for a new trial.

http://www.tba2.org/tba_files/TCA/2007/adamsa_052107.pdf

ELIAS H. ATTEA, JR. v. ANDREW S. ERISTOFF ET AL.

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Elias H. Attea, Jr.

Charles A. Trost, Jennifer L. Weaver, and Brett R. Carter, Nashville, Tennessee, for the appellees, Andrew S. Eristoff and Jorge Reyes.

Judge: KOCH

This appeal involves a dispute between a Tennessee resident and two taxing authorities of the State of New York involving the Tennessee resident's business activities in New York. The Tennessee resident filed suit against the New York taxing authorities in the Chancery Court for Cheatham County, alleging that their telephone calls and letters attempting to collect the disputed taxes amounted to intentional infliction of emotional distress. The taxing authorities moved to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief could be granted. The trial court granted the motion after concluding that it lacked personal jurisdiction over the New York Taxing authorities. The Tennessee resident appealed. We have determined that the trial court properly concluded that it lacked personal jurisdiction and that the complaint was also due to be dismissed for both lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.

http://www.tba2.org/tba_files/TCA/2007/atteae_052107.pdf

HENRY BENSON v. HARRY A. HERBST ET AL.

Court: TCA

Attorneys:

Luvell L. Glanton and Tusca R.S. Alexis, Nashville, Tennessee, for the appellant, Henry Benson.

A. Scott Ross and Cynthia S. Parson, Nashville, Tennessee, for the appellees, Harry Herbst and Bridgestone Americas Holding, Inc.

Judge: KOCH

This appeal illustrates the fate that awaits plaintiffs who file suit in general sessions court when their damages exceed the court's jurisdictional limits. After the plaintiff was seriously injured in an automobile accident, he filed suit in the Davidson County General Sessions Court against the driver of the other vehicle and the other driver's employer. On the date of the hearing, the defendants confessed judgment and agreed to pay the damages sought in the general sessions warrant. Over the plaintiff's objection, the general sessions court entered a $14,999 judgment against the defendants. The plaintiff thereafter perfected a de novo appeal to the Circuit Court for Davidson County. The defendants moved to dismiss the appeal for lack of subject matter jurisdiction on the ground that the general sessions court judgment was not "adverse" to the plaintiff. The trial court dismissed the case for lack of subject matter jurisdiction, and the plaintiff appealed. Like the trial court, we have determined that the general sessions judgment was not adverse to the plaintiff because he had received all the relief he requested from the general sessions court. Accordingly, the trial court did not err by dismissing the de novo appeal for lack of subject matter jurisdiction.

http://www.tba2.org/tba_files/TCA/2007/bensonh_052107.pdf

TROY ALLEN CLARK v. JENNIFER DAWN CLARK

Court: TCA

Attorneys:

Andrew M. Cate, Nashville, Tennessee, for the appellant, Troy Allen Clark.

Alan D. Johnson and Mary Arline Evans, Nashville, Tennessee, for the appellee, Jennifer Dawn Clark.

Judge: FARMER

This is the second appeal of a property division following the dissolution of an almost thirteen-year marriage. After a remand on the issue of the division of marital property, Troy Allen Clark (Husband) contends that the trial court divided the marital estate in an inequitable fashion and that it erroneously increased the value of real property awarded to him by refusing to subtract likely capital gains taxes from its market value. Husband also challenges the trial court's post-remand award to Jennifer Dawn Clark (Wife) of half the attorney's fees incurred for the preparation of a Qualified Domestic Relations Order [QDRO] that was ordered in the divorce proceeding. We affirm in part, reverse in part, and remand for entry of judgment.

http://www.tba2.org/tba_files/TCA/2007/clarkt_052107.pdf

HCA HEALTH SERVICES OF TENNESSEE dba CENTENNIAL MEDICAL CENTER v. DOROTHY BARRON

Court: TCA

Attorneys:

Dorothy Barron, appellant, pro se.

Dixie W. Cooper, Catherine M. Corless, and Christopher A. Vrettos, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee dba Centennial Medical Center.

Judge: SUSANO

HCA Health Services of Tennessee, which does business as Centennial Medical Center ("HCA"), filed an emergency petition seeking to have a conservator appointed for a patient, Dorothy Barron. The trial court appointed a guardian ad litem and an attorney ad litem for Ms. Barron. Following a hearing, the court appointed a temporary conservator. Later, the temporary conservator approved a transfer of Ms. Barron to a nursing home. The trial court later dismissed the petition insofar as it sought the appointment of a permanent conservator. Ms. Barron appeals claiming she was denied due process of law and equal protection of the law in violation of the Fourteenth Amendment to the United Stated Constitution. We affirm.

http://www.tba2.org/tba_files/TCA/2007/hca_052107.pdf

PATRICK MCGEE v. TOMMY JACOBS, ET AL.

Court: TCA

Attorneys:

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Patrick McGee.

Samuel P. Funk and J. Scott Hickman, Nashville, Tennessee, for the appellees, Tommy Jacobs and Jacobs, Cohen & McCormick, PLLC CPAS.

Judge: FARMER

Appellant asserts the circuit court erred by dismissing this action as untimely under the savings statute. We affirm.

http://www.tba2.org/tba_files/TCA/2007/mcgeep_052107.pdf

ROBERT E. TATE v. WESTERN EXPRESS, INC.

Court: TCA

Attorneys:

Isham B. Bradley, Nashville, Tennessee, for the appellant, Western Express, Inc.

Richard L. Colbert, Courtney L. Wilbert, Marty S. Turner, Nashville, Tennessee, for the appellee, Robert E. Tate.

Judge: COTTRELL

The trial court dismissed a buyer's counterclaim under an asset purchase agreement. The buyer's counterclaim was an effort to recover from an individual party to the agreement for amounts buyer spent in satisfaction of seller's debts although buyer did not assume such liabilities as well as other costs or losses associated with the asset purchase. Based on the obligations undertaken by the individual and the record before us, we affirm the trial court's grant of summary judgment to the individual as to some claims and the grant of Rule 41.02 dismissal of the other claims.

http://www.tba2.org/tba_files/TCA/2007/tater_052107.pdf

STATE OF TENNESSEE, ex rel., o/b/o C.V. v. MARK VISSER, ET AL.

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Juan G. Villasenor, Assistant Attorney General for Appellant, State of Tennessee ex rel. o/b/o CV, a minor child

John R. Phillips, Jr., of Gallatin, Tennessee for Appellees, Mark and Loretta Visser

Judge: CRAWFORD

Adoptive parents of minor child executed a voluntary surrender of their parental rights and, thereafter, sought termination of their child support obligations. The trial court granted the relief sought. The State of Tennessee, on behalf of the minor child, appeals on the ground that T.C.A. Section 36-1-111(r)(1)(A) requires a parent who executes a voluntary surrender of parental rights to continue paying child support until the child is adopted. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/visserm_052107.pdf

FRANCE ISABELLE TER WEELE WINE v. JEFFREY MICHAEL WINE

Court: TCA

Attorneys:

Dana C. McLendon III, Franklin, Tennessee, for the appellant, Jeffrey Michael Wine.

Robert Todd Jackson, Brentwood, Tennessee, for the appellee, France Isabelle Ter Weele Wine.

Judge: CLEMENT

The father of three children appeals the denial of his post-divorce petition to reduce child support and for Tenn. R. Civ. P. 60.02(5) relief from his alimony in solido obligation. He was earning $80,000 a year when the parties entered into the Marital Dissolution Agreement in July 2004 but was fired two weeks prior to the entry of the Final Decree of Divorce on September 27, 2004. Two months later, he was indicted for theft of property over $60,000, and remained in custody for one month until family posted his bond. Thereafter, he filed a petition to reduce child support and for Rule 60.02(5) relief from his alimony in solido obligation. The mother admitted there was a significant variance but opposed the petition contending the father was willfully underemployed because the conduct for which he was fired was willful. The trial court denied the petition to reduce child support upon a finding the father failed to prove the significant variance was not caused by his willful and voluntary underemployment. We reverse the denial of the petition to reduce child support because the trial court erroneously placed the burden on the father to prove that he was not willfully underemployed when the burden of proof was on the mother. We affirm the denial of Rule 60.02(5) relief because the father's decision to assume the alimony in solido obligation was a free, calculated, and deliberate choice, and his failure to anticipate a significant change in his earning capacity did not constitute a circumstance for which Rule 60.02(5) relief should be granted.

http://www.tba2.org/tba_files/TCA/2007/winef_052107.pdf

STATE OF TENNESSEE v. RICK BRADEN

Court: TCCA

Attorneys:

Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Rick Braden.

Michael E. Moore, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman and Valarie Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Rick Braden, was convicted by a Shelby County jury of two counts of aggravated robbery, and he received concurrent nine-year sentences. On appeal, he argues that (1) the trial court erred in not allowing him to introduce the guilty pleas of two named co-defendants, (2) the evidence is insufficient to sustain his convictions, and (3) the trial court erred in failing to instruct the jury on the lesser-included offense of facilitation. Following our review of the record and the parties' briefs, we conclude that the trial court erred in failing to charge the lesser-included offense of facilitation, and therefore, reverse the judgments of the trial court and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2007/bradenr_052107.pdf

David G. Hayes, Judge, separate concurring.
http://www.tba2.org/tba_files/TCCA/2007/bradenr_con_052107.pdf

DICKEY L. COTTON v. DAVID MILLS, WARDEN (STATE OF TENNESSEE)

Court: TCCA

Attorneys:

Dickey Cotton, Pro se, West Tennessee Security Prison, Henning, Tennessee.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

This case is before us after remand by the Tennessee Supreme Court for reconsideration in light of its holdings in Summers v. State, 212 S.W.3d 251 (Tenn. 2007); Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006); and Shaun Hoover v. State, 215 S.W.3rd 776 (Tenn. Jan. 23, 2007). The petitioner, Dickey L. Cotton, appeals the circuit court's summary dismissal of his pro se petition for writ of habeas corpus. Upon reconsideration, we affirm the court's dismissal of the habeas corpus petition.

http://www.tba2.org/tba_files/TCCA/2007/cottond_052107.pdf

STATE OF TENNESSEE v. DELSHAUN EPPS

Court: TCCA

Attorneys:

Paul J. Springer, Memphis, Tennessee, for the appellant Delshaun Epps.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Delshaun Epps, was indicted for especially aggravated robbery and felony murder. After a jury trial, the appellant was convicted of especially aggravated robbery and reckless homicide. The appellant was subsequently sentenced to twenty-four years for the robbery conviction and four years on the homicide conviction. The trial court ordered the appellant to serve the sentences consecutively, for a total effective sentence of twenty-eight years. After the denial of a motion for new trial, the appellant pursued this appeal. On appeal, the appellant challenges the sufficiency of the evidence and his sentence. For the following reasons, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/eppsd_052107.pdf

STATE OF TENNESSEE v. MARK PERRY

Court: TCCA

Attorneys:

Mark D. Harris, Kingsport, Tennessee, for the appellant, Mark Perry.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kent L. Chitwood, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Mark Perry, pled guilty to selling less than 0.5 grams of cocaine, a Class C felony. Pursuant to the plea agreement, the defendant was sentenced as a Range I, standard offender to six years with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the sentence be served in confinement, denying any form of alternative sentencing. The defendant now appeals. We conclude that the trial court followed the appropriate statutory procedure and imposed a lawful sentence in that the severity of the offense, the defendant's prior criminal behavior, and his lack of candor removed any presumption of an alternative sentence. We affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCCA/2007/perrym_052107.pdf

TODAY'S NEWS

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Workman's body gives no clues

An autopsy completed Saturday on the body of Philip Workman, who was executed earlier this month, "revealed no unexpected findings," according to the medical examiner. Workman had not wanted an autopsy because it conflicted with his Seventh Day Adventist beliefs, but on Friday a federal judge approved it, using a less invasive method.

Read details from the AP in the News-Sentinel

Saturn and Mazer acquitted

Nashville lawyers Alan Saturn and Alan Mazer were found not guilty on Saturday of income tax evasion and conspiracy to defraud the government. But now Saturn and Mazer question the motivation behind the Department of Justice's prosecution. Was there a political reason?

NashvillePost.com followed the story

Support the power of the jury

Gary Blackburn, president of the Tennessee Chapter of the American Board of Trial Advocates, explains how "thousands of Tennesseans become judges each year." He's talking about jurors and how "their work and their wisdom are under attack."

Read the editorial in the Tennessean

2nd juvenile judge OK'd by Shelby court

Chancellor Kenny Armstrong ruled against Shelby County Juvenile Court Judge Curtis Person on Friday, paving the way for a second judge in the court. Person, through his attorney Lucian Pera, vowed to take the fight to the Tennessee Court of Appeals, and predicted that the Tennessee Supreme Court may decide it. "We think that his ruling ignores the explicit provision of the Tennessee Constitution that says that courts are different from other parts of government and that the legislature can't delegate the power to establish a court to anyone else," Pera said.