Join Arthur Miller as he explores privacy and technology

Join author, legal correspondent and Harvard Law School Professor Arthur Miller as he moderates a distinguished panel of experts in examining the state of American law in light of potential and actual threats to privacy posed by emerging technology. Register now for this special June 6 TennBarU CLE luncheon program in Nashville.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5083

TODAY'S OPINIONS
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ANTHONY ADAMS v. TENNESSEE DEPARTMENT OF CORRECTIONS

Court: TCA

Attorneys:

Anthony Adams, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Bradley W. Flippin, Assistant Attorney General, for the appellee, Tennessee Department of Corrections.

Judge: COTTRELL

A prisoner filed a petition for certiorari in the Davidson County Chancery Court, seeking review of the actions of the prison disciplinary board. The court found that the action had been filed in an improper venue and transferred the matter to the Hickman County Circuit Court, pursuant to Hawkins v. Tenn. Department of Correction, 127 S.W.3d 749 (Tenn. Ct. App. 2002). The Hickman County Circuit Court dismissed the petition on several grounds, including the petitioner's failure to file an affidavit with the court listing every lawsuit or claim previously filed by the inmate, together with specific information about each of those filings, as is required by Tenn. Code Ann. Section 41-21-805. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/adamsa_053107.pdf


ELONIA CANTRELL v. MICHAEL M. WILLIAMS

Court: TCA

Attorneys:

Michael Montel Williams, Gruetli-Laager, Tennessee, Pro Se.

Norman B. Feaster, II, Tullahoma, Tennessee, for the appellee, Elonia Myiah Cantrell.

Judge: COTTRELL

The trial court found the defendant guilty of contempt "by the preponderance of the evidence" for violating a protective order and sentenced him to five days in jail. We reverse because the trial court applied the wrong standard of proof.

http://www.tba2.org/tba_files/TCA/2007/cantrelle_053107.pdf


JENNIFER (CRUM) JONES v. JOHNNY L. CRUM

Court: TCA

Attorneys:

Edward L. Kershaw, Greeneville, Tennessee, for the Appellant, Jennifer (Crum) Jones.

Todd A. Shelton, Greeneville, Tennessee, for the Appellee, Johnny L. Crum.

Judge: LEE

Mother and Father were divorced in 2001, at which time they agreed to share custody of their two children on an alternating week basis. In 2006, Mother filed a petition to modify the decree by naming her primary residential parent and increasing her parenting time. Following mediation, the parties submitted a mediated agreement and Temporary Parenting Plan, which substantially increased Mother's parenting time, to the trial court for approval. The trial court refused to enter the agreement, primarily because it did not provide for child support in accordance with this state's Child Support Guidelines. Following a hearing, the trial court denied Mother's petition, finding that there was no material change in circumstance that would justify a change in custody. Mother appeals. After careful review, we find no error and affirm.

http://www.tba2.org/tba_files/TCA/2007/crum-jonesj_053107.pdf


NANCI I. HOLDEN v. PAUL D. HOLDEN

Court: TCA

Attorneys:

Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Paul D. Holden.

John M. Higgason, Jr., Chattanooga, Tennessee, for the appellee, Nanci I. Holden.

Judge: SUSANO

This is a post-divorce case. Paul D. Holden ("Husband") filed a petition against his former spouse, Nanci I. Holden ("Wife"), seeking to modify the parties' residential parenting plan pertaining to their minor children. Around the same time, the Department of Children's Services ("DCS") received an anonymous referral regarding the children's "safety and possible sexual abuse" at Wife's residence. The trial court subsequently appointed a guardian ad litem for the children. The court found, as was recommended by the guardian ad litem, that Husband was entitled to more parenting time with the children. The court also found that there was no foundation for the complaint made to DCS regarding the children. The court ordered Husband to pay the fees of the guardian ad litem. Husband appeals that order. We affirm.

http://www.tba2.org/tba_files/TCA/2007/holdenn_053107.pdf


ALLEN HUGHES v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Allen W. Hughes, pro se.

Robert Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Brenner, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

Judge: CAIN

Inmate filed petition for declaratory judgment under the Uniform Administrative Procedures Act (UAPA) challenging the legality of the Tennessee Department of Correction's policy for conducting urinalysis testing of inmates. The chancery court dismissed Inmate's petition determining that the challenged policy was not subject to declaratory action under the UAPA. The judgment of the chancery court is affirmed.

http://www.tba2.org/tba_files/TCA/2007/hughesa_053107.pdf


JAMES H. KELLEY, SURVIVING SPOUSE OF LILLIE DONNETTE KELLEY, DECEASED, ET AL., v. MIDDLE TENNESSEE EMERGENCY PHYSICIANS, P.C., ET AL.
This is a corrected opinion.


Court: TCA

Attorneys:

Daniel L. Clayton, Nashville, Tennessee, and Steven R. Walker, Memphis, Tennessee, for the appellants, James H. Kelley, Surviving Spouse of Lillie Donnette Kelley, Deceased; Joshlane Rachel Ware, Surviving Minor Daughter of Lillie Donnette Kelley, By and Through Her Next Friend, Jackie White; and Joseph Lovell Ware, Surviving Adult Child of Lillie Donnette Kelley, Deceased.

C. J. Gideon, Jr., and Brian Cummings, Nashville, Tennessee, for the appellees, John Cage, M.D., and Mid-State Cardiology Associates, P.C.

Judge: CLEMENT

The appeal arises from the summary dismissal of a medical malpractice action against a cardiologist and his cardiology group. The decedent's surviving family alleges the decedent's death was the result of medical malpractice. The trial court dismissed the claim finding the plaintiff failed to prove the element of causation as required by Tenn. Code Ann. Section 29-26-115 (a)(3) . The plaintiff contends the evidence was sufficient to survive summary dismissal. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2007/kelleyj_CORR_053107.pdf


MARK A. NOBLIN v. CHAD P. CHRISTIANSEN, ET AL.

Court: TCA

Attorneys:

Frank M. Fly, James Bryan Moseley, Murfreesboro, Tennessee, for the appellant, Chad P. Christiansen, d/b/a Chadwick Homes, a/k/a Chadwick Prater Homes.

D. Russell Thomas, Herbert M. Schaltegger, Murfreesboro, Tennessee, for the appellee, Mark A. Noblin.

Judge: COTTRELL

Defendant appeals the trial court's finding that he breached an oral contract to develop a residential project and committed fraud. The parties presented different versions of their arrangement, and the trial court found the defendant lacked credibility. The evidence supports the trial court's determination that the parties had an oral agreement to build a house on a residential lot and split the profits. The trial court's holding that the defendant committed fraudulent acts to deprive the plaintiff of his interest in the property is also supported by the evidence. We affirm.

http://www.tba2.org/tba_files/TCA/2007/noblinm_053107.pdf


UPPER NORRIS CONSERVATION CLUB, INC. v. TOWN OF CUMBERLAND GAP

Court: TCA

Attorneys:

Jon G. Roach, Knoxville, Tennessee, for the Appellant, Town of Cumberland Gap.

David H. Stanifer, Tazewell, Tennessee, for the Appellee, Upper Norris Conservation Club, Inc.

Judge: LEE

Upper Norris Conservation Club, Inc. ("the Club"), a private club in Cumberland Gap, Tennessee (the "Town"), applied to the Town's beer board for a permit to sell beer in its restaurant. The board denied the Club's application on the ground that the Town's beer ordinance limited the number of active beer permits to three and that no permits were then available. The Club appealed to the Chancery Court for Claiborne County, which, in a de novo hearing, ordered the issuance of the beer permit, finding that there was one beer permit available and that Cumberland Gap had shown no reason why the permit should not be issued to the Club. The Town appealed the Chancery Court's order. After careful review, we affirm.

http://www.tba2.org/tba_files/TCA/2007/norrisclub_053107.pdf


CHERIE D. BAIRD TEAGUE v. STEVEN PAUL TEAGUE

Court: TCA

Attorneys:

Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Steven Paul Teague.

Mandy M. Hancock, Knoxville, Tennessee, for the appellee, Cherie D. Baird Teague.

Judge: SUSANO

At an earlier time, the trial court granted Cherie D. Baird Teague ("Wife") a legal separation from Steven Paul Teague ("Husband"). Five years later, Husband filed an "Answer and [Counterclaim]" in the legal separation proceeding seeking an absolute divorce. Wife filed a motion to dismiss the counterclaim predicated upon her assertion that both of the parties were then living in a different county. The trial court granted the motion. Husband appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/teaguec_053107.pdf


JOHN WAYNE WEBB v. BRANDON O. CANADA, ET AL.

Court: TCA

Attorneys:

James Y. (Bo) Reed, Knoxville, Tennessee, for the Appellant, Brandon O. Canada.

Billy J. Stokes, Knoxville, Tennessee, for the Appellee, John Wayne Webb.
Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellee, Douglas D. Townsend.

Judge: LEE

John Wayne Webb was injured in a car wreck and filed suit against two other drivers. A jury found defendant Brandon O. Canada to be solely at fault and awarded Mr. Webb $723,426.27 in compensatory damages against Mr. Canada. An order was entered awarding Mr. Webb judgment against Mr. Canada in the amount of $723,426.27 and dismissing the case as to the other driver, Douglas P. Townsend. Mr. Canada filed a motion seeking a new trial or in the alternative, a remittitur. Following a hearing, the trial court suggested a remittitur in the amount of $125,000. Final judgment was entered on July 24, 2006, referencing the remittitur and reducing the amount of the judgment to $598,426.27. On appeal, Mr. Canada argues that he is entitled to a new trial because Mr. Webb never accepted the remittitur, the verdict was excessive, and the remittitur was inadequate. After review, we find no error and affirm.

http://www.tba2.org/tba_files/TCA/2007/webbj_053107.pdf


STEVEN LAMONT ANDERSON v. GLEN TURNER, WARDEN AND STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steven L. Anderson, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and James Pentecost, Jackson, Tennessee, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Steven L. Anderson, appeals from the summary dismissal of his pro se petition for writ of habeas corpus. On appeal, he contends: the trial court did not follow the proper procedures for processing his petition for writ of habeas corpus; the court improperly dismissed his petition; and his right against double jeopardy was violated. After careful review, we conclude that no error exists and affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2007/andersons_053107.pdf


STATE OF TENNESSEE v. MARCUS L. BRANNER

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Marcus L. Branner.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green and Deborah Herston, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Marcus L. Branner, was convicted by a Knox County Criminal Court jury of second degree murder of Michael Gardner, a Class A felony, attempted second degree murder of Richard Cagle, a Class B felony, and attempted second degree murder of Charles McGinnis, a Class B felony. He was sentenced to twenty-four years as a violent offender for the murder and eleven years as a Range I offender for each of the two attempted murders, and the sentences were imposed concurrently. In this attempt at a delayed appeal, he argues that the evidence was insufficient to support his convictions. We do not reach the merits of the defendant's appeal because we are without jurisdiction to do so. Thus, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2007/brannerm_053107.pdf


STATE OF TENNESSEE v. LARRY FRAZIER

Court: TCCA

Attorneys:

Leslie S. Hale, Blountville, Tennessee, for the appellant, Larry Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall Nichols, District Attorney General; and Brandon Haren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Larry Frazier, was charged by presentment from a Sullivan County grand jury with violating an habitual traffic offender order, driving under the influence (ninth offense), and reckless aggravated assault arising from an automobile collision. Following a jury trial, the Defendant was convicted of violating the habitual traffic offender order, driving under the influence (sixth offense), and reckless aggravated assault. The Defendant was sentenced as a Range II, multiple offender to serve consecutive sentences, with an effective sentence of sixteen years in the Department of Correction. The Defendant filed a timely motion for a new trial, which was denied. On appeal, the Defendant argues that (1) the identification evidence was insufficient to support his convictions beyond a reasonable doubt, (2) the trial court erred in ordering his sentences to be served consecutively, (3) the trial court erred in sentencing the Defendant to the maximum sentence for each of his three convictions, (4) the trial court erred in denying the Defendant's motion to waive all or part of his fines, and (5) the trial court erred in denying the Defendant probation or other alternative sentencing. Finding no reversible error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/frazierl_053107.pdf


STATE OF TENNESSEE V. TRISHA PLEMMONS

Court: TCCA

Attorneys:

Stacey Nordquist (at hearing), Maryville, Tennessee, and J. Liddell Kirk (on appeal), Knoxville, Tennessee, for the Appellant, Trisha Plemmons.

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

Judge: WEDEMEYER

The Defendant, Trisha Plemmons, appeals the revocation of her community corrections sentence. Finding no error on the part of the trial court, we affirm.

http://www.tba2.org/tba_files/TCCA/2007/plemmonst_053107.pdf


STATE OF TENNESSEE v. ROY ERNEST RUSSELL

Court: TCCA

Attorneys:

Richard L. Burnett (on appeal) and Bryan E. Delius (at trial), Sevierville, Tennessee, for the appellant, Roy Ernest Russell.

Michael E. Moore, Acting Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. (Jimmy) Dunn, District Attorney General; and Johnnie D. Sellars, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Roy Ernest Russell, appeals pursuant to Rule 37 of the Tennessee Rules of Criminal Procedure. The certified question of law for review is whether the defendant's stop was constitutionally permissible. We conclude, based on the staleness of the information, no reasonable suspicion, supported with specific and articulable facts, existed that permitted a constitutional stop of the defendant's vehicle. We further conclude that all evidence gathered from this constitutionally impermissible stop must be suppressed, and the evidence is dispositive to the case at hand. We reverse the judgment from the trial court and dismiss this case.

http://www.tba2.org/tba_files/TCCA/2007/russellr_053107.pdf


STATE OF TENNESSEE v. ALTON TAPPAN

Court: TCCA

Attorneys:

C. Anne Tipton, Memphis, Tennessee, for the Appellant, Alton Tappan.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris West, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

A Shelby County jury convicted the defendant, Alton Tappan, of aggravated burglary and theft of property valued at $1,000 or more but less than $10,000. The trial court imposed an effective incarcerative sentence of 14 years. On appeal, the defendant challenges the sufficiency of the convicting evidence and complains that his sentence is excessive because the State failed to prove an offender range above Range I. Our review assures us that the evidence is sufficient and that the defendant was properly sentenced. We therefore affirm the convictions and sentence.

http://www.tba2.org/tba_files/TCCA/2007/tappana_053107.pdf


STATE OF TENNESSEE v. LEAH JOY WARD

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Tony N. Brayton (on appeal), Mary Kathryn Kent and Harry E. Sayle, III (at trial), Assistant District Public Defenders, for the appellant, Leah Joy Ward.

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

Judge: WILLIAMS

The defendant, Leah Joy Ward, was found guilty by a jury of first degree premeditated murder. She was sentenced to life imprisonment. The only issue presented on appeal is whether the evidence supports the element of premeditation. After review, we conclude the evidence was sufficient and affirm the conviction.

http://www.tba2.org/tba_files/TCCA/2007/wardl_053107.pdf


TODAY'S NEWS

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Legal News
High salaries vs. life balance?
With the recent announcement by Bass, Berry & Sims that associate pay has been hiked to $110,000, will other firms follow along? No, says Constangy Brooks & Smith LLC's Nashville Managing Partner Zan Blue. He told NashvillePost.com today that "the odds that we're going to make a similarly foolish move are not high." He explained that to pay for themselves, associates would need to work 2,200 to 2,400 hours per year, whereas he believes "if you're expecting anybody to bill in excess of 1,900 to 1,975 hours a year, then you're expecting them to work too much."
Read more at NashvillePost.com
Check out the June TBJ
The June issue of the Tennessee Bar Journal is out and sporting a new look. Check out articles by Don Paine, Dwight Aarons, Douglas Lynn and regular columnists Larry Wilks, Edward G. Phillips and Bill Haltom.
See it online now
Department of Justice expands investigtation
Investigators have expanded the scope of their investigation to include allegations regarding improper political or other considerations in hiring decisions within the Department of Justice. The expansion comes in the wake of claims by former Justice officials that selections by the Attorney General's Honors Program and the department's Summer Law Intern Program were rigged in favor of candidates with connections to conservative or Republican groups.
The Commercial Appeal has the story
Thompson is in race
Fred Thompson, the actor and former Republican Senator, plans to form an exploratory committee in Tennessee, possibly as early as Friday, that will let him start raising money for a presidential bid, longtime friend and political advisor Tom Ingram said Wednesday.
Read more in the Tennessean
Patent law may change with court ruling
In a unanimous ruling on a patent case in late April, the U.S. Supreme Court used a new, more flexible standard that favors competition and ultimately will make it more difficult to get -- and keep -- patents on new and existing products.
Read more about KSR International Co. v. Teleflex Inc. in the Daily News
McLaren chose law over medicine
Memphis lawyer James B. McLaren Jr. was almost a doctor, but his last-minute decision to skip medical school gave his life a direction that he hasn't regretted.
Read the interview in the Memphis Daily News
Lerach plans to leave practice
Plaintiff lawyer William S. Lerach, who has brought scores of cases on behalf of defrauded shareholders, has told clients and others that he is leaving the California law firm he started three years ago, the Washington Post reported today. In 2004, Lerach split from his longtime partner, Melvin I. Weiss, and created the class-action law firm. Last year the Milberg Weiss law firm and partners Steven Schulman and David J. Bershad were indicted by the U.S. attorney in Los Angeles on multiple criminal charges.
Read the full story
Legislative News
Lawmakers vote to overhaul school funding formula
This afternoon, the Senate voted 32-1 and the House 84-11 to raise school funding by reworking the complicated Basic Education Program, or BEP, which allocates spending between state and local governments.
The Tennessean has more
Upcoming
Professional tax due June 1
The deadline for filing professional privilege taxes is June 1, but don't panic: you can do it online. The 22 professional groups required to file professional annual privilege taxes, lawyers among them, can file using the Department of Revenue's online tax filing service.

Read more from the Department of Revenue

Ceremony honoring Judge Cain planned
A ceremony honoring Tennessee Court of Appeals Judge William B. Cain for his service and contributions to the judicial system will be held at noon, June 12, at the Supreme Court Building in Nashville. The event is being hosted by a group of judges and attorneys, including his appellate court colleagues. Judge Cain has been a member of the judiciary since 1986, when he was appointed as a Circuit Court judge in the 22nd Judicial District.

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