State execution plans remain unclear

The legislative panel studying Tennessee's death penalty sought unsuccessfully yesterday to learn how the state plans to proceed with scheduled executions in light of a federal judge's ruling that its lethal injection protocol is unconstitutional. At times it appeared state officials themselves did not know, reports the Chattanooga Times Free Press, which has a wrap up of the session. Also yesterday, the chair of the panel, State Sen. Doug Jackson, D-Dickson, said the group will seriously consider moving to a one-drug method for executions, rather than the three-drug compound the state has been using. The Tennessean has that story.
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.

01 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.

HEALTH COST CONTROLS, INC. v. RONALD GIFFORD

Court: TSC

Attorneys:

Bruce Stephens Conley, Union City, Tennessee, and H. Max Speight (at trial), Dresden, Tennessee, for the Appellant, Ronald Gifford.

Edwin Lauderdale Rawson, John Morris Russell, and Thomas H. Lawrence, Memphis, Tennessee, and Julie Yarborough McLaughlin, Cordova, Tennessee, for the Appellee, Health Cost Controls, Inc.

Judge: HOLDER

This case comes before us on an appeal of the trial court's finding that the injured party was not made whole by his recovery for injuries received in an automobile collision. We conclude that the trial court erred in its computation of the injured party's total recovery by failing to consider the injured party's recovery from all sources. We also conclude that the record is insufficient to determine whether the injured party has been made whole. Accordingly, we remand this case to the trial court for the purpose of permitting both parties to present evidence. The injured party will have the burden of presenting evidence that sufficiently enables the trial court to make a reasonable assessment of the injured party's damages. The trial court will determine the monetary value of the injured party's recovery from all sources and the monetary value of all elements of the injured party's damages. Finally, if the trial court finds that the injured party has been made whole, reimbursement should be awarded to the insurer only to the extent that the injured party's total recovery exceeds the injured party's total damages.

http://www.tba2.org/tba_files/TSC/2007/giffordr_101707.pdf


BARBARA MATHENIA v. MILAN SEATING SYSTEMS

Court: TWCA

Attorneys:

P. Allen Phillips, Jackson, Tennessee, for the appellant, Milan Seating Systems.

Michael A. Carter, Milan, Tennessee, for the appellee, Barbara Mathenia.

Judge: BUTLER

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) (2005) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The employer asserts that the trial court erred by finding that the employee had proven a compensable injury, determining that the date of injury was May 13, 2004, and awarding the employee a permanent partial disability of 50% to the right arm. Pursuant to our duty to review and weigh the evidence, we conclude that the evidence does not preponderate against the trial court's finding of a compensable injury. We disagree with the trial court's finding of the date of the injury and the trial court's award. Accordingly, we affirm the finding of a compensable injury and modify the date of injury and the amount of the award.

http://www.tba2.org/tba_files/TSC_WCP/2007/matheniab_101707.pdf


JOHN STONE v. RANDSTAD NORTH AMERICA ET AL.

Court: TWCA

Attorneys:

Steve Taylor, Memphis, Tennessee, for the appellee, John H. Stone, Jr.

Duane Willis, Jeffery G. Foster, and Zachary C. Luttrell, Jackson, Tennessee, for the appellants, Randstad North American, Inc. and Ace American Insurance Company.

Judge: MCMILLAN

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 trial court awarded the plaintiff 80% permanent partial disability to the right leg. The appellants claim that the trial court's award is erroneous because it was based on the body as a whole and not a scheduled member, and further that the award is excessive and is not supported by the evidence. We conclude that the trial court based its ruling on loss of use of the scheduled member. We further conclude that the preponderance of the evidence supports the trial court's award. Accordingly, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TSC_WCP/2007/stonej_101707.pdf


JAMES C. MARSHALL v. CINTAS CORPORATION, INC., AND STEVEN R. WELCH

Court: TCA

Attorneys:

James C. Marshall, appellant, pro se.

Jason M. Cohen and Jennifer J. Morales, Cincinnati, Ohio, and Julie-Karel Elkin, Nashville, Tennessee, for the appellees, Cintas Corporation, Inc., and Steven R. Welch.

Judge: KIRBY

This is an auto accident case. In October 2000, the individual defendant was driving a truck owned by his employer, the corporate defendant. The truck rear-ended a vehicle which in turn rear-ended the plaintiff's vehicle. The plaintiff filed this lawsuit against the defendants for damages sustained in the accident. The plaintiff's complaint was later amended to assert a claim for punitive damages against the corporate defendant. The claim for punitive damages was dismissed by the trial court before trial. After a jury trial, the jury awarded the plaintiff approximately $108,000 for various types of damages on a detailed verdict form. The jury did not award the plaintiff damages for permanent impairment or for past or future loss of enjoyment of life. The plaintiff's motion for a new trial was denied. The plaintiff now appeals, claiming that no material evidence supported the jury's decision to not award him damages for permanent impairment and loss of enjoyment of life, that the trial court erred in dismissing his claim for punitive damages, and that the trial court made other reversible errors at trial. After a careful review of the record, we affirm the trial court's decision approving the jury verdict.

http://www.tba2.org/tba_files/TCA/2007/marshallj_101707.pdf


STATE OF TENNESSEE v. WALTER MARTIN

Court: TCCA

Attorneys:

Marvin Ballin, Memphis, Tennessee, for the appellant, Walter Martin.

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

Judge: WELLES

The Defendant, Walter Martin, was convicted of rape, a Class B felony, and sentenced to ten years at 100% in the Department of Correction. On direct appeal, he argues that the evidence was insufficient to establish Shelby County as the proper venue for his trial and that he was erroneously sentenced. Following our review, we affirm the judgment of the trial court and the Defendant's sentence but remand for correction of two clerical errors made in the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2007/martinw_101707.pdf


STATE OF TENNESSEE v. ADRIAN PORTERFIELD

Court: TCCA

Attorneys:

Leslie I. Ballin and Gray W. Bartlett, Memphis, Tennessee, for the appellant, Adrian Porterfield.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and GGeneral, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Adrian Porterfield, was convicted by a Shelby County jury of voluntary manslaughter, a Class C felony, and was sentenced to serve four years and six months in the county workhouse as a Range I, standard offender. On appeal, the defendant challenges the trial court's judgment on grounds that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in denying his motion to sever his trial from that of his co-defendant; (3) the trial court erred in admitting a hearsay statement by the victim; (4) the trial court erred in not allowing evidence of drugs found on the victim's body; (5) the trial court erred in not allowing testimony of a statement the victim made to police regarding his involvement in a robbery of the defendant; (6) the trial court erred in denying alternative sentencing; and (7) the length of his sentence is excessive. We affirm the trial court but remand the case for a corrected judgment because the sentence imposed in the judgment conflicts with the sentence reflected in the sentencing hearing transcript.

http://www.tba2.org/tba_files/TCCA/2007/porterfielda_101707.pdf


EDWARD L. WILLIAMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Edward L. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr. and G. Scott Green, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

Following a jury trial, the petitioner, Edward L. Williams, was convicted of premeditated first degree murder and especially aggravated robbery. The trial court imposed consecutive sentences of life for the murder conviction and twenty-two years for the especially aggravated robbery conviction. On direct appeal, this court remanded for entry of an amended judgment reflecting a sentence of life with the possibility of parole and deleting any reference to a merger of the premeditated murder count and the felony murder count. The court further ordered that the sentences run concurrently rather than consecutively. The judgment of the trial court was otherwise affirmed. State v. Edward L. Williams, No. E2002-00325-CCA-R3-CD, 2003 WL 22462533 (Tenn. Crim. App. at Knoxville, Oct. 31, 2003), perm. app. denied (Tenn. Dec. 19, 2005). The petitioner filed a timely petition for post-conviction relief which the post-conviction court subsequently denied after an evidentiary hearing. The petitioner now appeals. In this appeal, the petitioner contends that his trial counsel was ineffective. Following a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/williamse_101707.pdf


TODAY'S NEWS

Legal News
Legislative News
Upcoming
Disciplinary Actions

Legal News
AG nominee promises independence, disavows torture memo
In testimony before the U.S. Senate this week, Attorney General-designate Michael Mukasey vowed to remove political influences from the Justice Department. He also repudiated a 2002 DOJ memo suggesting the president could violate international treaties and U.S. laws prohibiting torture. Mukasey was peppered with tough questions, but Senate Judiciary Committee Chairman Patrick Leahy, D-VT, said yesterday he expects the nominee will be confirmed.
Murfreesboro Daily has this AP story
Knox ethics panel addresses nepotism, gifts
The Knox County Ethics Committee this morning adopted a policy prohibiting elected officials from directly supervising, managing or influencing the appointment or promotion of a relative. The committee also discussed limiting gifts to county officials to those $35 in value. A vote on that issue will come on Nov. 8.
Read details in the News Sentinel
Raybin, Richter offer 'Tennessee Supreme Court Hot List'
Nashville attorneys David Raybin and Sarah Richter have launched a new service called the Tennessee Supreme Court Hot List, which provides information and analysis about recent grants of review in both civil and criminal cases, and what the cases might mean to attorneys and their clients. The service is free.
Review this week's list
Bar results available Friday
The list of applicants who were successful on the August 2007 Tennessee Bar Examination will be available on the TBALink web site on Friday when they are released by the Tennessee Board of Law Examiners.
Visit the TBA web site
DOJ weighs Jena inquiry
U.S. Justice Department officials said Tuesday they are considering an investigation into allegations of systemic racial injustice in the small, mostly white Louisiana town of Jena. Also for the first time, the U.S. attorney there said the hanging of nooses by white students constituted a federal hate crime.
The Commercial Appeal has more
Butler Snow expands space
Butler, Snow, O'Mara, Stevens & Cannada PLLC in Memphis has moved into expanded office space at Crescent Center, giving it room to house up to 20 more attorneys. The firm also acquired a new high tech conference center, reports the Memphis Business Journal.

TDLA elects new officers
At its fall meeting in September, the Tennessee Defense Lawyers Association elected new officers. They are: President Robert G. Norred Jr. with Spears, Moore, Rebman & Williams; President-elect C. Douglas Dooley with Leitner, Williams, Dooley & Napolitan; and Secretary-Treasurer Stephen P. Miller with McDonald Kuhn.

Law firms face retirement time bomb
Retirement issues are a "demographic time bomb" ticking for most U.S. and British law firms, American Lawyer asserts. Using two recent case studies, the journal concludes that finding a way to accommodate those who want to continue practicing regardless of age has never been more pressing.
Read more on Law.com
And just today, the European Union's top court ruled that it is legal for employers to set a mandatory retirement age.
Dow Jones reports
Starnes withdraws from magistrate consideration
Chattanooga attorney Gary Starnes withdrew yesterday as a candidate for Hamilton County magistrate, citing time commitments related to his law practice and personal life.
Chattanoogan.com has a copy of his letter to commissioners
TBI concludes probe of Cleveland chief
The Tennessee Bureau of Investigation has completed its initial probe of Cleveland Police Chief Wes Snyder and turned over the results to 10th District Attorney General Steve Bebb. The investigation was undertaken in response to claims by two attorneys that Snyder had lied under oath.
Read more in the Chattanooga Times Free Press
Music downloader challenges damages
A woman assessed $222,000 in damages for illegally sharing downloaded music contends in a motion for a new trial that the amount is constitutionally excessive. A jury found Jammie Thomas liable for statutory damages, but the defense argues the industry should have to prove actual damages.
The Duluth News Tribune has more
Juvenile life sentences set U.S. apart
The U.S. stands alone in convicting young adolescents as adults and sentencing them to life in prison, and international pressure is mounting for the country to change its practices. The New York Times looks at the issue of whether American judges should take account of foreign law.
Check out the story
Legislative News
Journalist shield law clears U.S. House
The U.S. House on Tuesday strongly backed the right of reporters to protect the confidentiality of sources in most federal court cases. All members of the Tennessee delegation voted in favor of the measure. But the White House, warning that the media shield bill would encourage leaks of classified information, threatened a veto.
The News Sentinel has more
ABA urges safeguards for wiretap authority
The ABA is urging Congress to ensure that legislation extending the government's wiretap authority in terrorism investigations contains adequate judicial review and congressional oversight to safeguard against abuse.
Read president Neukom's letter to legislative leaders
Upcoming
St. Crispin's Day: a new holiday for Nashville politicos
Never at a loss for excuses to celebrate, Nashville politicos have a new holiday. The St. Crispin's Day roast is sponsored by NashvillePost.com with a celebration beginning at the Cabana Restaurant. Admission is free and food will be provided.
Visit the paper's web site for details
Disciplinary Actions
Nashville lawyer suspended
On Oct. 8, the Supreme Court of Tennessee temporarily suspended William W. Leech from the practice of law. The court did not disclose the reasons for the disciplinary action.
Download the BPR's release
Florida attorney reinstated
Scott Thomas Lyon of Tampa has been reinstated to the practice of law in Tennessee after paying the annual BPR fee.
View all attorneys suspended and reinstated for 2007 fee violations

 
 
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