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State lethal injection procedure ruled unconstitutional
Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee ruled today that Tennessee's current procedure for lethal injections amounts to cruel and unusual punishment. The order, however, did not provide a stay of execution for death row inmate Edward Jerome Harbison. His execution is scheduled for next Wednesday. The attorney general reportedly is reviewing the decision to decide whether to appeal. Read more in the News Sentinel or download Trauger's memorandum decision and order:
http://www.tba2.org/tbatoday/news/2007/harbison_memorandum_order_091907.pdf
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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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.
00 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
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GERALD AMOS v. ATLAS VAN LINES, INC., ET AL.
Court: TWCA
Attorneys:
D. Randall Mantooth, Nashville, Tennessee, for the Appellants, Atlas Van Lines, Inc., and Legion Insurance Company.
James F. Conley, Tullahoma, Tennessee for the Appellee, Gerald Amos.
Judge: HARRIS
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. In this case, the employee, Gerald Amos, suffered a heart attack following a theft from his person while waiting at a truck stop for a scheduled pick-up. The trial court found the employee's heart attack to be compensable and awarded benefits for permanent total disability. The trial court refused, however, to set off a portion of his social security benefits as provided in Tennessee Code Annotated section 50-6-207(4)(A)(i). The employer contends that the heart attack did not arise from or occur in the course of the employment. The employer also contends that the trial court erred by not setting off a portion of the employee's social security old age benefits against the award. We affirm the trial court's ruling on causation, but modify as to the set-off.
http://www.tba2.org/tba_files/TSC_WCP/2007/amosg_091907.pdf
LENNIE GEORGE v. ALEXANDER AUTOMOTIVE, LLC, d/b/a ALEXANDER TOYOTA
Court: TCA
Attorneys:
Jeffrey O. Powell, Goodlettsville, Tennessee, for the appellant, Lennie George.
David H. King, Franklin, Tennessee, for the appellee, Alexander Automotive, LLC, d/b/a Alexander
Toyota.
Judge: FARMER
The trial court dismissed this action for malicious prosecution because it was filed beyond the one-
year limitations period. On appeal, Plaintiff/Appellant asserts he was entitled to rely on incorrect
information provided by the court clerk regarding the judgment date of the malicious prosecution
suit resolved in Appellant's favor to toll the limitations period. We affirm dismissal.
http://www.tba2.org/tba_files/TCA/2007/georgel_091907.pdf
SANDRA JONES, next of kin of LARRY C. JONES, v. RONNIE SMITH
Court: TCA
Attorneys:
Phillip L. Davidson, Nashville, Tennessee, for appellant.
John D. Kitch, Nashville, Tennessee, for appellee.
Judge: FRANKS
A wrongful death action pursuant to the Governmental Tort Liability Act against a deputy sheriff who shot decedent after a traffic accident, was dismissed by the Trial Court at the conclusion of the plaintiff's proof. We affirm.
http://www.tba2.org/tba_files/TCA/2007/joness_091907.pdf
GREG MABEY d/b/a LIBERTY REALTY & AUCTION v. NICK MAGGAS, ET UX.
Court: TCA
Attorneys:
Charles D. Franken, Plantation, FL; T. Michael O'Mara, Cookeville, TN, for Appellants
Kenneth S. Williams, Cookeville, TN, for Appellee
Judge: HIGHERS
This appeal involves a dispute arising out of a real estate listing contract. The contract originally provided that the real estate broker was entitled to a commission if the property sold within a term of one year, from April 15, 2003 to April 15, 2004. In addition, he was entitled to a commission if the property was sold within sixty days of the termination of the contract to someone with whom the owners had been negotiating during the contract term. At some point, the dates of the contract term were modified and initialed by both parties to reflect that the term was to last from April 15, 2003 to October 15, 2004. The parties dispute when this change took place and whether it accurately reflected their agreement. The property owners sold the property within sixty days of October 15, 2004, but refused to pay the real estate broker a commission. The real estate broker filed this action against the property owners to recover his commission and prejudgment interest. A jury returned a verdict in favor of the real estate broker and awarded him 3% prejudgment interest. The owners appealed regarding the sufficiency of the evidence, the trial judge's role as the thirteenth juror, the liability of one of the property owners, and prejudgment interest. We affirm.
http://www.tba2.org/tba_files/TCA/2007/mabeyg_091907.pdf
IRINA N. PARRIS v. JERRAL D. PARRIS
Court: TCA
Attorneys:
Janelle A. Simmons, Cherie L. Cash-Rutledge, Nashville, TN, for Appellant
Eric J. Burch, Manchester, TN, for Appellee
Judge: HIGHERS
This is a post-divorce case involving several issues stemming from a modification of child support and custody hearing and order resulting from that hearing. The parties were divorced in 2003, and the permanent parenting plan was filed on November 10, 2003. Wife retained custody of the parties' two minor children. Husband was to pay Wife $1,250 a month child support. In 2005, Husband filed motions to review and revise both the custody and visitation arrangements contained in the permanent parenting plan and his child support obligation. The court treated Husband's motions as a petition for modification of custody and child support. Husband represented himself pro se on July 17, 2006, at the petition hearing. The court entered an order on August 21, 2006, finding no material change of circumstance and thus, Wife retained custody of the two children. The order also increased Husband's child support obligation. Finally, the court found Husband in contempt of court and sentenced him to five days in jail with $1,000 bond. Husband appeals, arguing that 1) the court erred in finding no material change of circumstance; 2) the court erred in the findings concerning both Husband and Wife's income pertaining to the child support; and 3) the court erred in finding Husband in contempt. We affirm.
http://www.tba2.org/tba_files/TCA/2007/parrisi_091907.pdf
STATE OF TENNESSEE v. DAVID NATHANIEL COPE
Court: TCCA
Attorneys:
Jack T. Marecic, Rogersville, Tennessee, for the appellant, David Nathaniel Cope.
Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Michael Rasnake, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The defendant, David Nathaniel Cope, appeals his conviction of Driving Under the Influence (DUI), a Class A misdemeanor, and resulting sentence of eleven months and twenty-nine days, with forty- six hours to be served in confinement. He argues that the trial court erred in denying his motion to
dismiss on the basis that the charging instrument was void. We affirm the defendant's conviction. However, we discern an error in the judgment form, and we remand the case for a modified judgment to reflect that the defendant is to serve forty-eight hours in confinement.
http://www.tba2.org/tba_files/TCCA/2007/coped_091907.pdf
JAMES A. DELLINGER v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Donald E. Dawson and Catherine Y. Brockenborough, Nashville, Tennessee, for the appellant, James A. Dellinger.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Michael L. Flynn, District Attorney General; Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The petitioner, James A. Dellinger, appeals as of right from the order of the Blount County Circuit Court denying his petition for post-conviction relief from his 1992 conviction for first degree murder and resulting death sentence. The petitioner claims that (1) this court should review the trial court's opinion in its entirety under a purely de novo standard of review; (2) an incorrect and unconstitutional burden of proof has been applied to the petitioner's claims of ineffective assistance of counsel; (3) his conviction and death sentence violate his rights to due process because he is actually innocent of the conviction offense; (4) the state withheld exculpatory information at the trial; (5) counsel provided ineffective assistance to him at trial and on appeal;(6) the petitioner was not afforded a full and fair hearing of his post-conviction petition in violation of his due process rights; (7) the death sentence is unconstitutional because it infringes upon the petitioner's fundamental right to life; (8) the aggravating factor used in support of the death sentence was not included in the indictment and returned by the grand jury; (9) Tennessee's death sentence is unconstitutional because prosecutors are given absolute discretion to pursue or to forego the pursuit of the death sentence in each case; (10) execution by lethal injection violates the principles against cruel and unusual punishment; (11) the petitioner's conviction and death sentence are in violation of international law; and (12) Tennessee's death penalty scheme is unconstitutional. We conclude that no error exists, and we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2007/dellingerj_091907.pdf
MICHAEL LINDSEY v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Brett B. Stein, Memphis, Tennessee, for the appellant, Michael Lindsey.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Karen Cook, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The petitioner, Michael Lindsey, appeals the denial of his petition for writ of error coram nobis and the denial of his petition for post-conviction relief. Because the petitioner has failed to allege appropriate grounds for coram nobis relief and because his petition for post-conviction relief is procedurally barred, the judgment of the trial court is affirmed.
http://www.tba2.org/tba_files/TCCA/2007/lindseym_091907.pdf
STATE OF TENNESSEE v. CAROL DENISE POPE
Court: TCCA
Attorneys:
Mike Urquhart, Nashville, Tennessee, for the appellant, Carol Denise Pope.
Robert E. Cooper, Jr., Attorney General & Reporter; Alice B. Lustre, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Paul DeWitt, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, Carol Denise Pope, appeals the Davidson County Criminal Court's denial of alternative sentencing on her conviction of theft of property valued at more than $10,000 but less than $60,000, a Class C felony. See T.C.A. section 39-14-103 (2006) (proscribing theft); see also id. section 39-14-105(4) (grading theft by increments of dollar amounts of value). We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2007/popec_091907.pdf
STATE OF TENNESSEE v. LORENZO "BUSTER" WOODS
Court: TCCA
Attorneys:
Comer L. Donnell, District Public Defender; and Gregory D. Gookin, Assistant Public Defender, attorneys for appellant, Lorenzo "Buster" Woods.
Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General; James G. Woodall, District Attorney General; Alfred Earls and Shaun A. Brown, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.
Judge: THOMAS
The defendant, Lorenzo "Buster" Woods, pled guilty to one count of assault, a Class A misdemeanor, and received a sentence of eleven months and twenty-nine days suspended upon the service of six months in the local jail. On appeal, he argues that the trial court erred in denying him full probation. Following our review, we affirm the judgment of the trial court, but we remand the case for entry of a corrected judgment reflecting misdemeanor community corrections supervision for five months and twenty-nine days.
http://www.tba2.org/tba_files/TCCA/2007/woodsl_091907.pdf
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| TODAY'S NEWS |
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Legal News
Upcoming
Disciplinary Actions
TennBarU CLE
TBA Member Services
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| Legal News |
| U.S. district and bankruptcy hearing transcripts go online |
| The policy-making arm of the nation's federal courts voted today to make it easier for both lawyers and the public to access court materials. The plan approved by the U.S. Judicial Conference will make transcripts of district and bankruptcy court proceedings available through the PACER system, and make the system more accessible to users.
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Read more
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| Paper calls for thorough debate on succession proposal |
| In an editorial today, the Knoxville News Sentinel commends the governor for creating a panel to study how executive power is transferred when a governor is incapacitated. However, the editors suggest that the panel's proposal "needs clarification before the issue goes to lawmakers," and should be "thoroughly discussed over the next couple of years."
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Read the opinion piece
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| Schools increasingly turning to in-house lawyers |
| As school districts around the country are facing more litigation and legal issues than ever before, Memphis schools are among a growing number of districts bringing their legal counsel in-house. Both the Shelby County and Memphis school districts hired in-house attorneys this year, aiming to cut down on astronomical bills from private firms.
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Read about the trend in the Commercial Appeal
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| TACDL names new board |
| The Tennessee Association of Criminal Defense Lawyers has named its 2007-2008 board of directors. Officers are: President Caryll Alpert of Nashville, President-elect Lorna McClusky of Memphis, Secretary Laura Dykes of Nashville and Treasurer Jerry Black of Knoxville. Past President is Randall Reagan of Knoxville.
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| ABA pushes new disaster rule |
| The American Bar Association is petitioning states to implement its model rule governing the provision of legal services after a disaster. The rule allows out-of-state lawyers to provide pro bono legal services to clients in disaster-stricken states, and allows lawyers from such states to practice temporarily in other states.
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See which states have already adopted such rule
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| Upcoming |
| YLD goes back to school |
| The Young Lawyers Division kicks off its annual law school outreach program with events at the Nashville School of Law on Sept. 25 and 27, starting at 5:30 p.m. each night. Join the division for a pizza dinner and the opportunity to interact with students. To RSVP contact TBA staff member Stacey Shrader at sshrader@tnbar.org
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| CASA holds annual meeting |
| The Tennessee CASA Association will hold its annual meeting Sept. 28, with a keynote address by Metro Nashville Juvenile Court Judge Betty Adams Green. The organization also will honor Rep. Raymond Finney, R-Maryville, as legislator of the year and Jerry Herman with the Corporation for National and Community Service as advocate of the year. The event takes place from 12-1:30 p.m. in the Jack Wood Hall of Nashville's Adventure Science Center. For more information contact CASA at (615) 242-8884. |
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| Disciplinary Actions |
| Former Knoxville lawyer suspended |
| On Aug. 28, the Supreme Court of Tennessee imposed a six-month suspension on former Knoxville lawyer Sherman Ames who now resides in Montana. The court also mandated that an indefinite suspension be imposed until Ames meets certain conditions required by the court. Ames was found to have inadequately supervised an employee who was embezzling funds from the firm's trust account and with whom Ames was having a sexual relationship. The court also determined that Ames commingled client funds with personal funds.
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Read the BPR release
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| Two attorneys reinstated |
| Marla Faye Adair of Memphis and Kevin Allen Moore, formerly of Florida but now residing in Nashville, have been reinstated to the practice of law in Tennessee after paying the 2007 BPR fee.
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View all attorneys suspended and reinstated for 2007 fee violations
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| Atlanta lawyer reinstated |
| Todd Douglas Radde, formerly of Chattanooga, has been reinstated to the practice of law in Tennessee after paying annual BPR fees. He has been suspended since 2006.
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View all attorneys suspended and reinstated for 2006 fee violations
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| TennBarU CLE |
| Holder, Catalano, others to lead Advanced Appellate Practice program |
| Learn strategy and hear tips for planning a successful appeal in the upcoming Advanced Appellate Practice CLE from TennBarU. Supreme Court Justice Janice M. Holder, Appellate Court Clerk Michael Catalano, attorneys George T. "Buck" Lewis, Michael Moore, Jeff DeVasher and others will lead the Sept. 26 program in Nashville. TBA members can use their prepaid credits and take the course for no cost. |
Register or find out more now
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| TBA Member Services |
| Save money on car rental |
| 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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