Learn essentials of elder law from experts

A distinguish faculty will lead this intensive TennBarU CLE program on the essentials of elder law practice. After sessions on topics such as "Basic Long-Term Care Planning," "Pension and Retirment Plans," "Planning for Incapacity: Powers of Attorney & Conservatorships" and "Medicaid Spousal Impoverishment," the group will work through a long-term care case study. The program will be held in Nashville, July 27-29. Find out more or register today.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5082

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.

01 - TN Supreme Court
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00 - TN Supreme Court - Rules
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00 - Formal Ethics Opinions - BPR

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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_070207.pdf


WALTER FAUGHT vs. E.W. JAMES & SONS, INC. ET AL.

Court: TWCA

Attorneys:

B. Duane Willis, Jackson, Tennessee, for the appellant, E.W. James & Sons, Inc.

Ricky L. Boren, Hill, Jackson, Tennessee, for the appellee, Walter Faught.

Robert E. Cooper, Jr., Attorney General & Reporter, and Juan G. Villasenor, Assistant Attorney General, for the appellee, Sue Ann Head, Administrator, Division of Workers' Compensation, Tennessee Department of Labor and Workforce Development.

Judge: CORLEW

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Employer has appealed the action of the trial court, which found that the Employee is permanently and totally disabled and that the Employer is responsible for 62.5% of the award and the Second Injury Fund is responsible for 37.5%. We find that the award should be vacated and the case should be remanded for a new hearing.

http://www.tba2.org/tba_files/TSC_WCP/2007/faughtw_070207.pdf


GOVERNMENT EMPLOYEES INSURANCE CO., ET AL. v. LINDA BLOODWORTH, ET AL.

Court: TCA

Attorneys:

Washington, D.C. for the appellants, Government Employees Insurance Company, et al.

Andrew S. Friedman, Elaine A. Ryan, Phoenix, Arizona; Van Bunch, Signal Mountain, Tennessee; Hal D. Hardin, Nashville, Tennessee; David Futscher, Covington, Kentucky; Debra Brewer Hayes, Houston, Texas; Morris A. Ratner, Scott P. Nealy, San Francisco, California; John J. Stoia, Jr., San Diego, California, for the appellees Linda Bloodworth, et al.

Judge: COTTRELL

The trial court certified a class of residents of twenty-four states in this breach of contract action to recover from class members' uninsured motorist insurance provider claimed diminished value resulting to class members' vehicles after accidents with uninsured motorists. We conclude that the trial court was required to conduct a "rigorous analysis" of the class certification requirements in light of the issues raised; that such an analysis necessarily includes choice of law considerations where a multi-state class is involved; and that the question of whether common questions of law and fact predominate over individual ones requires identification of common and individual questions and a decision that the cause of action can be established by classwide proof. We also conclude that the classwide proof offered by the class proponents to show that decrease in value was actually suffered by the class members does not comport with Tennessee law. Because, based on the record before us, we cannot conclude that the trial court applied the correct legal standards and also cannot conclude that the class proponent met her burden of establishing that the requirements of Tenn. R. Civ. P. 23.03 have been met, we must vacate the trial court's certification decision.

http://www.tba2.org/tba_files/TCA/2007/geico_070207.pdf


STATE OF TENNESSEE v. JUNE LEEANN FRANKS

Court: TCCA

Attorneys:

Robert H. Stovall, Jr., Assistant Public Defender, Pulaski, Tennessee, for the Appellant, June Leeann Franks.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Mike Bottoms, District Attorney General; and Patrick Butler, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, June Leeann Franks, pled guilty to statutory rape. Her request for judicial diversion was denied by the trial court, who sentenced her to fifteen months to be served on probation. She appeals that decision. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/franksj_070107.pdf


STATE OF TENNESSEE v. MARQUETTE HOUSTON

Court: TCCA

Attorneys:

Phyllis Aluko (on appeal) and Michael Johnson and Amy Mayne (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Marquette Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles Bell and Pam Fleming, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Marquette Houston, appeals as of right from his conviction of second degree murder for which he received a twenty-five-year sentence as a violent offender. In this appeal, the defendant contends that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in denying the admission of first aggressor evidence; (3) the trial court erred in admitting the defendant's statement to police; and (4) the trial court erred in imposing an excessive sentence. Following our review of the record, parties' briefs and applicable law, we affirm the defendant's convictions. However, we vacate the sentence imposed by the trial court and remand this case for resentencing under the 1989 Sentencing Act with consideration of the constitutional restrictions upon enhancing the defendant's sentence above the presumptive minimum.

http://www.tba2.org/tba_files/TCCA/2007/houstonm_070207.pdf


CHARLES DEWAYNE MOORE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

F. Chris Cawood, Kingston, Tennessee, for the appellant, Charles Dewayne Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Russell Johnson, District Attorney General; Bill Reedy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In June 2003, a Roane County grand jury indicted the petitioner, Charles Dewayne Moore, on one count of first degree felony murder. On March 16, 2005, the petitioner pled guilty in Roane County Criminal Court to voluntary manslaughter and was sentenced to twelve years in prison as a Range III, persistent offender. On March 15, 2006, the petitioner filed a pro se petition for post-conviction relief. In his petition, the petitioner alleged that his guilty plea was involuntary and unknowing, and that he received ineffective assistance of counsel. On September 25, 2006, following the appointment of counsel,1 a hearing was held on the defendant's petition, and the trial court denied the petition. The petitioner appeals the trial court's ruling. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/moorec_070207.pdf


JAMES D. WEST v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James D. West, Bradford, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, James D. West, appeals from the Madison County Circuit Court's summary dismissal of his petition for post-conviction relief. The petitioner claimed in his petition that he was entitled to relief from the state's incarcerating him following an eleven-year delay in execution of his sentence. We hold that the petitioner stated a cognizable claim for post-conviction relief, reverse the trial court's dismissal, and remand for appointment of counsel and a hearing on the allegations.

http://www.tba2.org/tba_files/TCCA/2007/westj_070207.pdf


TODAY'S NEWS

Legal News
Supreme Court Wrap Up
Passages
TBA Member Services

Legal News
Court rules Libby can't delay prison, then Bush commutes sentence
President Bush commuted the sentence of I. Lewis "Scooter" Libby this afternoon, sparing the former White House aide from a two-and-a-half-year prison term in the CIA leak case, National Public Radio reports. Bush's move came hours after the federal appeals panel ruled that Libby could not delay his prison term in the CIA leak case.
Read more from NPR.org, including the president's statement on commuting the sentence
Wiltshire's legal aid work
faith-based
Ashley Wiltshire started out as a seminary student but the civil rights movement made him want to be a lawyer, he says in a recent interview. During a trip to Georgia in 1966, he says "It just seemed to me that the lawyers were getting a lot more done than the seminary students. So that got me interested in coming back to the South and working on poverty law and civil rights issues." After 37 years with the Legal Aid Society of Middle Tennessee and the Cumberlands, Wiltshire retired last week.
Read more in the Tennessean
Plea deal stands for Bartley
Special Judge Jon Kerry Blackwood said Kenneth S. Bartley "was aware of what facts were at issue," when he agreed to a plea deal. This morning, for the first time since the teen opened fire in his high school office, Bartley took the witness stand in a bid to take back his guilty plea. Bartley had contended he was strong-armed by his then-lawyer Mike Hatmaker into pleading guilty in the November 2005 fatal shooting at Campbell County Comprehensive High School.
The Knoxville News Sentinel has the story
Opinion: Tennessee Plan is best way to select judges
Tennessee Judicial Selection Commission chair C. Barry Ward defends the Tennessee Plan for selecting judges in Sunday's Commercial Appeal, writing in a guest column that commission members "believe in justice, they believe in impartiality, and they are dedicated to the task of fairly and conscientiously selecting individuals they believe will have the best attributes to be a judge."
Read Ward's opinion piece
... no it isn't, columnist argues
And read the opposing view from columnist Paul Stanely on why the people should elect judges.
Read this opinion
Committee seeks answers to White House refusal
Congressional Democrats want to know exactly why the White House has claimed executive privilege on subpoenaed documents sought by Congress, the AP reports. In a letter from the heads of the judiciary committees, they say that the "full force of law" will be used to enforce the subpoenas.
WMCT-TV carried this AP story
List for Koch's seat grows
Nashville lawyer Donald Capparella has added his name to the list of candidates applying to fill the Middle Division Court of Appeals seat left open by William Koch's appointment to the Supreme Court. He is with Dodson, Parker & Behm, P.C. Also applying so far are Matthew Sweeney, Circuit Court Judge Jeffrey S. Bivens and Christina Henley Duncan. Candidates have until July 16 to apply for consideration by the Judicial Selection Commission.
Learn more or apply now
Applicants for Axley seat increase to 13
Five more have added their names to the eight who have applied to fill Judge W. Fred Axley's seat in the 30th Judicial District. They are: Mischelle Alexander-Best, Shelby County Public Defender's Office in Eads; Carolyn Alanda Horne Dwyer, Shelby County District Attorney's office in Millington; Lorna S. McClusky, an attorney with Massey McClusky in Memphis; Major (retired) Michael R. McCusker, Shelby County District Attorney General's Office in Cordova; and Karen Wilson Tyler, with the Tyler Law Firm in Memphis.

TTLA has new set of officers
The Tennessee Trial Lawyers Association announces its officers for 2007-08: President R. Sadler Bailey, Memphis; President-elect Daniel L. Clayton, Nashville; Immediate Past President Stephen T. Greer, Dunlap; Vice President, East, Wayne Ritchie, Knoxville; Vice President, Middle, Phillip H. Miller, Nashville; Vice President, West, Christopher Taylor, Memphis; Secretary Kathryn Barnett, Nashville; Treasurer Leslie A. Muse, Morristown; and Parliamentarian Keith Williams, Lebanon.

Davis to join Thompson 'campaign'
Tennessee Republican Party chairman Bob Davis will be leaving his post to join the "un-official" presidential campaign of former U.S. Senator Fred Thompson, NashvillePost.com reports this afternoon.
Read more
Editorial: Why so much money for prosecution and not defense?
The Tennessean weighs in with an editorial supporting a recent report that illustrates the disparity between money allocated for prosecution of cases against indigent defendants in Tennessee as opposed to the amount of funds for their defense. The paper calls it "troubling ... when reports indicate that defenders in Tennessee are already at a great disadvantage in financial resources."
Read the editorial
DUI irony: judges juggle caseload while awaiting trial
A Georgia judge isn't hearing his regular DUI cases right now -- he's waiting for adjudication of his own case for driving under the influence. And the judge who was appointed in his place was himself charged with DUI a few years ago.
Chattanoogan.com has the story
Ex-sheriff Hutchison pension issue not resolved yet
A last-ditch effort by lawyer Herb Moncier to challenge former sheriff Tim Hutchison's anticipated pension turned into a bizarre Chancery Court marathon Friday, the News Sentinel reports.
Follow the story
Supreme Court Wrap Up
Supreme Court turned out to be 'business-friendly'
At the end of a course-changing, gut-wrenching U.S. Supreme Court term littered with heated 5-4 decisions, one bit of clarity is shining through: the Roberts Court, and especially its newest member, Samuel Alito Jr., are both very conservative and very pro-business -- more so than any Supreme Court in decades.
Read the analysis at Law.com
Passages
Arthur Byrne dies at 88
Knoxville lawyer Arthur D. Byrne died June 26. He was 88. A memorial service was set for this afternoon in Maryville, where he lived. Byrne graduated from the University of Tennessee Law School in 1942 and practiced law in Knoxville until retiring in 1999. He was a past president of the Knoxville Bar Association, and retired from the practice of law in June 2000. In lieu of flowers, the family requests that donations go to the Jackson County Historical Society, Blount County Habitat for Humanity or Magnolia Avenue United Methodist Church.
Read the obituary in the Knoxville News Sentinel
TBA Member Services
First Tennessee is TBA's preferred provider
First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more
on the TBA Web site

 
 
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