Knox Judge Jenkins dies following long illness

Knox County Criminal Court Judge Ray Lee Jenkins died this morning following a long illness. He was 71. Jenkins served on the bench for 25 years, but had recently taken disability leave due to illness. "Judge Jenkins has been part of our judicial family for many years and will be missed," Chief Justice William M. Barker said. "He devoted a quarter-century of his life to public service as a judge. That is a wonderful legacy and something for which his family should be proud." Read more in the Knoxville News Sentinel
TODAY'S OPINIONS
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STELLA ROY HURLEY v. MTD, INC.

Court: TWCA

Attorneys:

Howard R. Dunbar, Johnson City, Tennessee for the appellant, Stella Roy Hurley.

Thomas L. Kilday, Greeneville, Tennessee for the appellee, MTD, Inc.

Judge: WADE

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) or a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee failed to prove that she had sustained permanent disability as a result of work-related injuries to her neck and arms. The employee has appealed that ruling, arguing that the evidence preponderates against the trial court's finding. The employee also specifically claims that the trial court erred by referring to one of the expert witnesses as a "non-treating" physician and by allowing certain medical records into evidence. We find no error and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2007/hurleys_082407.pdf


EDWARD PULLIAM v. WHITE CONSOLIDATED INDUSTRIES, INC. d/b/a ELECTROLUX HOME PRODUCTS, INC. ET AL.

Court: TWCA

Attorneys:

Aubrey T. Givins and Phil Gombar, Nashville, Tennessee, for the appellant, Edward Pulliam.

Terry L. Hill and Heather E. Hardt, Nashville, Tennessee, for the appellee, White Consolidated Industries, Inc., d/b/a Electrolux Home Products, Inc. individually, Old Republic Insurance Company.

Judge: PEEPLES

Appeals Panel of the Supreme Court in accordance with 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 Plaintiff contends that the preponderance of evidence is contrary to the trial court's finding that the Plaintiff did not sustain a compensable work-related injury. We believe the trial court was correct, and therefore we affirm the trial court's decision.

http://www.tba2.org/tba_files/TSC_WCP/2007/pulliame_082407.pdf


ROBERT R. ROBERTSON v. BRIDGESTONE/FIRESTONE, INC.

Court: TWCA

Attorneys:

Terry L. Hill and Stacey Billingslely Cason, Nashville, Tennessee, for the appellant.

John D. Drake, Murfreesboro, Tennessee, for the appellee.

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 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 Defendant contends that the trial court erred in finding that plaintiff sustained a compensable work-related injury to his right shoulder, in awarding plaintiff temporary total disability benefits for work missed due to surgery, in awarding him a 12% disability to the body as a whole as to each shoulder, and in commuting the entire award into a lump sum payment. Plaintiff asks this court to find the Defendant's appeal in this case to be frivolous. We find the chancellor's rulings as to all these issues to be correct and affirm the trial court's decision. Finally, Plaintiff contends that the award is insufficient and that the trial court also erred in allowing Defendant to set-off benefits paid under the Defendant company's sickness and accident policy. Because we are unable to determine from the record the nature of the benefits paid by Defendant, we remand the case to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC_WCP/2007/robertsonr_082407.pdf


FRANK BAILEY and wife, ALMA SUE BAILEY; EARL BAILEY; CALVIN CHESNEY; and RALPH BAILEY, v. CARROLL S. GWYN and wife, ROSE F. GWYN

Court: TCA

Attorneys:

B.J. Reed, Knoxville, Tennessee, for appellants.

Robert M. Estep, Tazewell, Tennessee, for appellees.

Judge: FRANKS

In this action to have an easement established across defendants' property, the Trial Court held there was clear and convincing evidence that plaintiffs were entitled to an easement by adverse use. We affirm.

http://www.tba2.org/tba_files/TCA/2007/baileyf_082407.pdf


IN RE: ORDER TO ENCAPSULATE NATIVE AMERICAN INDIAN GRAVESITES IN CONCRETE AND PAVE OVER WITH ASPHALT

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the Appellants, The Alliance for Native American Indian Rights in Tennessee, Inc., Pat Cummins, Sandi Perry, and Toye Heape.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and John H. Sinclair, Jr., Senior Counsel, for the Appellee, Gerald Nicely, Commissioner for the Tennessee Department of Transportation.

Judge: SWINEY

During construction involving Hillsboro Road in Davidson County, the Department of Transportation discovered three Native American Indian graves. The Department of Transportation eventually reinterred the graves and encapsulated the graves in concrete. The Department of Transportation later determined, after the fact, that simply encapsulating the graves in concrete did not comply with relevant statutory law. A first lawsuit was filed challenging the Department's alleged policy of encapsulating graves. While the first lawsuit was pending, the construction project was completed. On appeal in the first lawsuit, this Court determined that the plaintiffs' claims were moot and none of the applicable exceptions to the mootness doctrine applied. The present case involves the same claims as the first lawsuit, with the only exception being that this lawsuit initially was filed pursuant to the Uniform Administrative Procedures Act, Tenn. Code Ann. section 4-5-101, et seq. The Trial Court dismissed this lawsuit after finding that the same claims raised by the plaintiffs in this case were held to be moot in the first appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2007/encapsulate_082407.pdf


GORDON H. THOMPSON, ET AL. v. JOHN W. LOGAN

Court: TCA

Attorneys:

William R. Willis, Jr., Tyree B. Harris, IV, Katherine A. Brown, Nashville, Tennessee, for the appellants, Gordon H. Thompson and Brent G. Thompson.

Nader Baydoun, Stephen C. Knight, Nashville, Tennessee, for the appellee, John W. Logan.

Judge: COTTRELL

Defendants appeal the trial court's award to plaintiff of damages under an agreement wherein defendants and plaintiff were sharing brokerage commissions generated by plaintiff's clients. The trial court found the term "retirement," which governed whether plaintiff was entitled to a five (5) year pay out, was ambiguous and resorted to consideration of extrinsic evidence. We reverse and hold that the term is not ambiguous and that plaintiff is not entitled to payment under the retirement provision of the agreement. We also find that the defendants are not precluded by Tenn. R. App. P. 3(f) from raising the post-judgment imposition of discovery sanctions against them. However, we decline to reverse the sanctions decision since the trial court did not abuse its discretion in awarding them.

http://www.tba2.org/tba_files/TCA/2007/thompsong_082407.pdf


RONALD TIMMONS v. METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Steve North, Mark North, Madison, Tennessee, for the appellant, Ronald Timmons.

Sue B. Cain, Acting Director of Law; Kevin C. Kline; James Earl Robinson; John Lee Kennedy; for the appellee, The Metropolitan Government of Nashville and Davidson County.

Judge: COTTRELL

The trial court granted the municipal government summary judgment, dismissing a negligence claim under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. Section 29-20-101 et seq. We reverse, finding there are issues of disputed fact surrounding the plaintiff's treatment by police officers which form the basis of his negligence claim.

http://www.tba2.org/tba_files/TCA/2007/timmonsr_082407.pdf


MICHAEL H. CAMMON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

W. H. (Steve) Stephenson, II, Nashville, Tennessee (on appeal), and Howard M. Romaine, Murfreesboro, Tennessee (at trial), for the appellant, Michael H. Cammon.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Michael H. Cammon, appeals the post-conviction court's denial of relief. He contends that he received ineffective assistance from both trial and appellate counsel. He further contends that the rulings of the post-conviction court were not timely and violated the Post-Conviction Procedure Act because the court did not issue written findings of fact and conclusions of law. After review, we affirm the judgment from the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/cammonmh_082407.pdf


STATE OF TENNESSEE v. BRADLEY FERRELL
With Dissenting Opinion


Court: TCCA

Attorneys:

George A. Burke, Sr., Spencer, Tennessee (on appeal); and Steve Roller, McMinnville, Tennessee (at trial), for the appellant, Bradley Ferrell.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Larry G. Bryant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Bradley Ferrell, was convicted by a Van Buren County jury of escape, a Class A misdemeanor, and was sentenced by the trial court to eleven months, twenty-nine days, suspended after service of sixty days in the county jail. On appeal, he argues that the trial court erred in finding him competent to stand trial, in not permitting his expert witness to testify about his incapacity to form the requisite intent for the crime, in refusing his request for a special jury instruction on diminished capacity, and in overruling his motion for a new trial. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/ferrellb_082407.pdf

THOMAS DISSENTING
http://www.tba2.org/tba_files/TCCA/2007/ferrellb_dis_082407.pdf


STATE OF TENNESSEE v. WILLIAM PHILLIP GRAHAM

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender, and Joseph T. Howell, Assistant Public Defender, for the appellant, William Phillip Graham.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, William Phillip Graham, was convicted of aggravated rape, a Class A felony, at a jury trial in the Madison County Circuit Court. He is presently serving a twenty-year sentence as a Violent Offender in the Department of Correction. In this appeal, he argues 1) that the evidence is insufficient to support his conviction; 2) that the trial court erred in denying his petition to compel attendance of an out-of-state witness; 3) that the trial court made erroneous rulings during the trial relative to the scope of redirect examination of a state's witness; 4) that the court erred in denying his request to make an offer of proof after an adverse evidentiary ruling; 5) that the court erred in allowing the state to recall the victim during its case-in-chief; and 6) that the trial court erred in denying the defendant's requests for curative instructions relative to two aspects of the prosecutor's closing argument. We conclude that no reversible error occurred, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/grahamw_082407.pdf


CONSTANCIA REYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James E. Thomas, Memphis, Tennessee, for the appellant, Constancia Reyes.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

The petitioner, Constancia Reyes, pled guilty in the Shelby County Criminal Court to possession of three hundred grams or more of cocaine with intent to sell and agreed to a fifteen-year sentence as a Range I, standard offender. Subsequently, she filed a petition for post-conviction relief, claiming that she received the ineffective assistance of counsel because her trial attorney failed to file a motion to suppress the evidence seized as a result of her traffic stop and that she was coerced into pleading guilty. The post-conviction court denied the petition for post-conviction relief, and the petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the postconviction court.

http://www.tba2.org/tba_files/TCCA/2007/reyesc_082407.pdf


GENE S. RUCKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gene S. Rucker, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Attorney General & Reporter; and Benjamin A. Ball, Assistant Attorney General; for the Appellee, State of Tennessee.

Judge: MCGEE OGLE

The petitioner, Gene S. Rucker, appeals the Hamilton County Criminal Court's summary dismissal of his petition for post-conviction relief. Relying upon Tennessee Court of Criminal Appeals Rule 20, the State has moved this court to summarily affirm the criminal court's order. Because the record before us indicates that the post-conviction petition was filed outside the statute of limitations, we grant the motion and affirm the criminal court's order.

http://www.tba2.org/tba_files/TCCA/2007/ruckerg_082407.pdf


STATE OF TENNESSEE v. LACHANTA MONIQUE TYLER

Court: TCCA

Attorneys:

Manuel B. Russ, Nashville, Tennessee, for the appellant, Lachanta Monique Tyler.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Lachanta Monique Tyler, was convicted by a Davidson County jury of aggravated assault, a Class C felony, and theft of property involving merchandise valued at $500 or less, a Class A misdemeanor. See T.C.A. sections 39-13-102; 39-14-103; 39-14-105; 39-14-146. She was sentenced to three years for the aggravated assault conviction and eleven months and twenty-nine days for the theft conviction, with the sentences imposed concurrently and to be served on probation. The defendant appeals, claiming (1) that the evidence was insufficient to support her conviction of aggravated assault, (2) that the trial court erred in denying her motion for judgment of acquittal on aggravated assault, (3) that the trial court erred in failing to sever these offenses from two other offenses of which she was acquitted, (4) that the court erred by admitting prior bad act evidence of a prior shoplifting incident. Upon review, we affirm the defendant's theft conviction, modify the aggravated assault conviction to assault, and remand the case for imposition of judgment on the assault conviction including a sentence of eleven months and twenty-nine days to be served on probation and concurrently with the theft sentence.

http://www.tba2.org/tba_files/TCCA/2007/tylerl_082407.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Knox proposal may not stop Open Meetings trial
A Knox County proposal to have officeholders who were appointed during a controversial Jan. 31 meeting resign and go through a new appointment process may not go far enough to settle an Open Meeting Act lawsuit brought by the Knoxville News Sentinel.
Read more about the proposal
Fewer state convictions ruled unconstitutional, study finds
A new study led by Vanderbilt University Law Professor Nancy King finds that fewer state convictions and sentences are being ruled unconstitutional by federal courts. It is the first study to examine the effects of 1996 amendments to the habeas corpus law that apply when state prisoners challenge their convictions and sentences in federal court.
Read more about the study and access its executive summary
Memphis attorney calls for African American interest in judicial appointments
Memphis attorney Justin Bailey challenges Tennessee's African-American communities to hold Gov. Bredesen accountable for "our decidedly uniform Courts of Appeals," in an opinion piece published in the Tri-State Defender. In the column, Bailey calls Bredesen's comments regarding the Judicial Selection Commission's Court of Appeals nominations "transparently disingenuous."
Read the full article
Court rules Katrina docs go back to State Farm
A federal appeals court says two sisters portrayed as whistleblowers in ongoing litigation over Hurricane Katrina insurance claims must return some 15,000 internal documents concerning State Farm Insurance Co. The unpublished ruling by the 11th U.S. Circuit Court of Appeals is also potentially important to Mississippi plaintiffs attorney Richard Scruggs, who is now a defendant in a criminal contempt case because he reportedly returned the documents not to the sisters' employer, as a federal district court ordered, but to the Mississippi attorney general.
Read more in the ABA Journal
The latest from the BPR
The latest edition of the Board of Professional Responsibility's Board Notes newsletter is now available online, with articles on coping with stress and more.
Read the full newsletter
Law firm merger pace ahead of last year
The urge to merge appears to be increasing, the ABA Journal reports. Law firm mergers have so far outpaced last year's numbers, and activity shows no sign of slowing down. Altman Weil consultant Ward Bower predicts that there could be 50 or more law firm mergers by the end of the year.
Read more on mergers
Vandy law prof Covington retires after 46-year tenure
Robert Covington, a scholar and teacher of employment law who has served on the faculty for 46 years, will retire from the law school faculty on Aug. 31.
Read more about his career
Huff to co-chair ABA committee
Nashville attorney and mediator Marnie Huff recently was appointed co-chair of the ABA Dispute Resolution Section's Ethics Committee. She will oversee a number of committee projects, including developing a mediator ethics opinions database and working on ethics-related articles, education and web resources. Huff is immediate past chair of the TBA Dispute Resolution Section.
For more information on the ABA's DR section visit aba.net
New Bradley county bar officer
Stephen D. Crump with Crump, Richardson & Young in Cleveland has been named president-elect of the Bradley County Bar Association.

Shelby commission votes to seek stay in judgeship case
Shelby County commissioners have voted to pursue litigation lifting a court-imposed stay that keeps them from appointing another juvenile court judge. The stay was imposed by Chancellor Kenny Armstrong after his ruling that the commission could move ahead with the appointment was appealed to the Cort of Appeals. The stay was intended to keep the commission from acting while the challenge makes it way through the legal system.
The Memphis Daily News has the story
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Traveling by car this Summer? Use your TBA membership to save on car rentals.
Click here to obtain discount codes for many major rental companies

 
 
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