Swearing-in ceremony highlight of TBA Academy

A select group of Tennessee attorneys will soon experience the honor of being admitted to practice before the United States Supreme Court in a private swearing-in ceremony at the 24rd Annual TBA Academy. This year's Academy is scheduled for Jan. 21-23, with the ceremony to take place before the court on Jan. 22. Deadline to register is Dec. 21. Join TBA President Marcy Eason and other leaders in the Tennessee legal community in this exciting program. Sign up or learn more.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5494

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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
00 - TN Court of Appeals
09 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
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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.

TAMMIE C. ALLEN v. SIDNEY McPHEE ET AL.

Court: TSC

Attorneys:

Steven E. Sager and L. Gilbert Anglin, Murfreesboro, Tennessee, for the appellant, Tammie C. Allen.

Barbara J. Moss and Lauren Paxton Roberts, Nashville, Tennessee, for the appellee, Sidney McPhee, in his individual capacity.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; William J. Marett, Jr., Sr. Counsel, Civil Litigation and State Services Division; for the appellees, State of Tennessee, Tennessee Board of Regents, Middle Tennessee State University, Charles Manning in his official capacity as Chancellor of the Tennessee Board of Regents, and Sidney McPhee in his official capacity as President of Middle Tennessee State University.

Judge: HOLDER

The employee asserts that both her employer and supervisor are liable for retaliation and discrimination. The trial court granted summary judgment to the employer and supervisor on all issues, and the Court of Appeals affirmed. We granted review of this case to address the standards for imposing liability for sexual harassment discrimination and retaliation under the Tennessee Human Rights Act. With respect to the discrimination claim against the employer, we hold that the availability of the Faragher/Ellerth affirmative defense is not affected by the harassing supervisor's status as a "proxy" or "alter ego" of the employer. We conclude, however, that genuine issues of material fact exist regarding whether the employer has established the Faragher/Ellerth defense. Accordingly, the employer is not entitled to summary judgment on the employee's discrimination claim. With respect to the discrimination claim against the supervisor, we hold that to be individually liable for discrimination a supervisor must encourage the employer to engage in employment-related discrimination or prevent the employer from taking corrective action. The employee has failed to present any evidence that the supervisor encouraged the employer to engage in harassment or attempted to prevent the employer from taking corrective action. Accordingly, the supervisor is entitled to summary judgment on the employee's discrimination claim. With respect to the employee's retaliation claims, we hold that to state a prima facie case for retaliation an employee must demonstrate: 1) that she engaged in activity protected by the THRA; 2) that the exercise of her protected rights was known to the defendant; 3) that the defendant thereafter took a materially adverse action against her; and 4) there was a causal connection between the protected activity and the materially adverse action. If an employee establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non- discriminatory reason for the materially adverse action. If the defendant articulates such a reason, the employee, who bears the burden of persuasion throughout the process, must present evidence demonstrating that the articulated reason is pretextual. We conclude that the employee succeeded in making a prima facie showing with respect to the employer but has failed to present any evidence that the employer's stated reason for transferring the employee was pretextual. Accordingly, the employer is entitled to summary judgment on the employee's retaliation claim. Finally, we conclude that the employee has failed to present evidence demonstrating that the supervisor took an action materially adverse to the employee. Accordingly, the supervisor is entitled to summary judgment on the employee's retaliation claim. We therefore affirm the trial court's judgments with respect to the discrimination claim against the supervisor and the retaliation claims against the employer and supervisor. We reverse the trial court's grant of summary judgment on the discrimination claim against the employer and remand this case to the trial court for further proceedings.

http://www.tba2.org/tba_files/TSC/2007/allent_120407.pdf


NORA ELIZABETH KILBY MOORE v. RONNIE DALE MOORE CORRECTION

Court: TSC

Attorneys:

Roger E. Jenne, Cleveland, Tennessee, for the appellant, Ronnie Dale Moore.

John T. Rice, Chattanooga, Tennessee, for the appellee, Nora Elizabeth Kilby Moore.

Judge: HOLDER

We granted permission to appeal to determine whether income from a nonrecurring capital gain may be considered in determining a parent's gross income for purposes of modifying child support. We hold that income from an isolated or "one-time" capital gain must be included in calculating gross income and that the trial court erred in dismissing the petition to modify child support. Accordingly, we affirm the judgment of the Court of Appeals and remand this case for calculation of child support pursuant to the Child Support Guidelines.

http://www.tba2.org/tba_files/TSC/2007/mooren_Corr_120407.pdf


STATE OF TENNESSEE v. ELMO J. BAKER, JR.

Court: TCCA

Attorneys:

David Allen Doyle, District Public Defender, and Michael G. Anderson, Assistant Public Defender, for the appellant, Elmo J. Baker, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Elmo J. Baker, Jr., appeals from the Sumner County Circuit Court's probation revocation for his seven-year sentence for attempted aggravated sexual battery, a Class C felony. He claims that the trial court erred in revoking his probationary status and ordering him to serve his sentence in incarceration. We hold that the trial court did not abuse its discretion, and we affirm its judgment.

http://www.tba2.org/tba_files/TCCA/2007/bakere_120407.pdf


STATE OF TENNESSEE v. MICHAEL D. BOON

Court: TCCA

Attorneys:

Jerry H. Summers and Marya L. Wegenka, Chattanooga, Tennessee, for the appellant, Michael D. Boon.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and Neal Pinkston, Assistant District Attorney, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a bench trial, Defendant, Michael D. Boon, was found guilty of driving under the influence (DUI), first offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, to be suspended after serving forty-eight hours in confinement. On appeal, Defendant argues that the trial court erred in denying his motion to suppress and contends that the admission of certain testimony violated his constitutional right to confront witnesses. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/boonm_120407,pdf.pdf


STATE OF TENNESSEE v. BRYANT GUARTOS, a.k.a. BRYANT GUARTOS CHARRY, a.k.a. BRIAN GUARTOS, a.k.a. BRIAN CRUZ, a.k.a. HECTOR CRUZ DELEON

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee (on appeal), and Michael Colavecchio, Nashville, Tennessee (at trial), for the appellant, Bryant Guartos, a.k.a. Bryant Guartos Charry, a.k.a. Brian Guartos, a.k.a. Brian Cruz, a.k.a. Hector Cruz DeLeon.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

This case is before the court upon the United States Supreme Court's remand for further consideration of the sentences imposed in light of Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856 (2007). Guartos v. Tennessee, ___ U.S. ___, 127 S. Ct. 1250 (2007). We hold that the trial court applied enhancement factors which were not found by a jury beyond a reasonable doubt, in violation of the defendant's Sixth Amendment right to a jury trial. However, we are unable to conduct a de novo review of the defendant's sentences because the trial court did not make specific findings relative to the state's proof of the defendant's prior criminal convictions. We reverse the defendant's judgments for especially aggravated robbery, aggravated robbery, and conspiracy to commit aggravated robbery and remand for resentencing.

http://www.tba2.org/tba_files/TCCA/2007/guartosb_120407.pdf


TAMMY HICKS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Tammy Wendt Mahew, Nashville, Tennessee, for the appellant Tammy Hicks.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Tammy Hicks, appeals from the Davidson County Criminal Courtís denial of her petition for post-conviction relief. The petitioner claims on appeal that she was entitled to relief based upon (1) ineffective assistance of counsel, and (2) an unknowing and involuntary guilty plea, and that the court erred in limiting her cross-examination of counsel on the subject of legal research performed by counsel in the course of representing the petitioner. We hold that the petitioner has not demonstrated error in the trial court's rulings. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/hickst_120407.pdf


STATE OF TENNESSEE v. NAPOLEON JAMES MOORE, ALIAS

Court: TCCA

Attorneys:

Mark Stephens, District Public Defender, Knoxville, Tennessee, for the appellant, Napoleon James Moore, Alias.

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

Judge: WELLES

The Defendant, Napoleon James Moore (alias), pled guilty to and was convicted of attempted possession of over .5 grams of cocaine with the intent to sell, a Class C felony. In accordance with his plea agreement, he was sentenced as a Range I, standard offender to five years in the Department of Correction. The manner of service of the sentence was left to the discretion of the trial court. On appeal, he argues that the trial court erred by denying probation. Follreview, we affirm the sentence of confinement ordered by the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mooren_120407.pdf


STATE OF TENNESSEE v. ROBERT LAMONT MOSS, JR.

Court: TCCA

Attorneys:

Ross E. Alderman, District Public Defender; Emma Rae Tennent, Assistant Public Defender (on appeal); and Amy D. Harwell and Kyle Mothershead, Assistant Public Defenders (at trial), for the appellant, Robert Lamont Moss, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Sarah Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Davidson County Criminal Court grand jury indicted the defendant, Robert Lamont Moss, Jr., of two counts of aggravated kidnapping, see T.C.A. section 39-13-304 (2006), one count of aggravated sexual battery, see id. section 39-13-504, one count of aggravated rape, see id. section 39-13-502, and one count of theft of property, see id. section 39-14-103. The trial judge dismissed the aggravated sexual battery count, and the jury convicted the defendant of the remaining counts. The trial court imposed an effective sentence of 17 years. On appeal, the defendant argues that (1) the trial court erred in denying the defendant's motion to suppress the victim's identification of the defendant, (2) the trial court erred in allowing the prosecution to cross-examine the defendant about prior drug use, and (3) the trial court erred in enhancing three of the defendant's convictions. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mossr_120407.pdf


STATE OF TENNESSEE v. RONALD B. ROGERS

Court: TCCA

Attorneys:

Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Ronald B. Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela S. Anderson and Matthew P. Stephens, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Ronald B. Rogers, the defendant, was convicted of evading arrest in a motor vehicle, a Class E felony; theft over $10,000, a Class C felony; vandalism over $500, a Class E felony; and criminal impersonation, a Class B misdemeanor. The defendant received an effective sentence of twenty years. On appeal, the defendant argues that: (1) the evidence was insufficient to support the guilty verdicts; (2) the trial court erred in granting the State a continuance; (3) the trial court erred in sentencing; and (4) the trial court erred in instructing the jury on the permissible inference from "flight." After review, we affirm the convictions and sentences.

http://www.tba2.org/tba_files/TCCA/2007/rogersr_120407.pdf


STATE OF TENNESSEE v. JASON D. WALKER

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, (on appeal); and Raymond Mack Garner, District Public Defender, (at trial), for the appellant, Jason D. Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Robert Headrick, Assistant District Attorney General for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Jason D. Walker, appeals the trial court's revocation of his probation in case numbers C-13500 and C-15417, arguing that there was insufficient evidence to find that Defendant had willfully violated the terms of his probation. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/walkerj_120407.pdf


STATE OF TENNESSEE v. HEATH ALAN WOMBLE

Court: TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender, and Andrew Jackson Dearing, Assistant Public Defender, for the appellant, Heath Alan Womble.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Charles F. Crawford, District Attorney General; and Hollynn L. Hewgley and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Heath Alan Womble, pled guilty to possession with the intent to sell a schedule II drug, a class B felony, possession with the intent to sell a schedule III drug, a class D felony, and possession of a schedule IV drug, a class A misdemeanor, and received an effective total sentence of nine years and six months. The trial court denied his application for alternative sentencing and ordered that his sentence be served in confinement. He appeals the manner of service of his sentence, particularly the denial of community corrections. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/wombleh_120407.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Petition shows support of Pakistani lawyers
American Bar Association President William H. Neukom is urging lawyers to sign a petition that he plans to present to Pakistan's Ambassador in Washington D.C. on Dec. 13. "Evidence mounts that pressure brought by bar associations in the U.S. and abroad is forcing Pakistani leader Pervez Musharraf to soften his assault on the rule of law. But, he has failed to address some of his most destructive actions, and we must continue to show our support for justice in Pakistan," Neukom said.
Add your name to the petition here
Discrimination claim validated, MTSU may still face trial court
The Tennessee Supreme Court has ruled an employee's discrimination claim against the state can go forward after she said she was sexually harassed by Middle Tennessee State University president Sidney McPhee. The school's sexual harassment policy made McPhee the final arbiter of sexual harassment complaints; the court wrote in a ruling today it would have been reasonable for the woman to think complaining "would have been futile or counterproductive or would have resulted in retaliation." The Tennessee Board of Regents disciplined McPhee after finding he did sexually harass the woman.
Read more in NashvillePost.com [subscription required]
Read the Supreme Court opinion
Lawyer argues 'urban legends' taint jury pool
Knoxville lawyer Philip Lomonaco is arguing for a change of venue in a racially charged double murder by citing postings on Internet blogs along with newspaper and television reporting. He says the Internet had been used to "outrage and taint any jury pool" that could be seated to hear the case. Law.com examines this tactic that legal observers say may become more common.
Read the story
Memphis paper sues city over records
The Commercial Appeal filed suit today alleging that the city of Memphis has violated the Tennessee Open Records Act by refusing or intentionally delaying the release of various public records requested by the newspaper over the past 12 months, the newspaper reports. Among records that have been sought are e-mails of City Council members, transcripts and audiotapes of certain 911 calls, records showing the number of firefighters who are paramedics, internal affairs files of a Memphis police officer and copies of all public records requests submitted to City Hall and how they were handled.
The Commercial Appeal has the story
Monroe County Bar elects officers
The Monroe County Bar Association elected officers Monday. Peter Alliman was elected president of the Monroe County Bar Association today. He practices law with White, Carson & Alliman PC in Madisonville. Kathaleen Ann Barker of Barker Law & Mediation Services in Madisonville is the new secretary.

Harbison granted stay of execution
A federal appeals court has granted a stay of execution for death row inmate Edward Jerome Harbison, who is challenging Tennessee's three-drug method of lethal injection. A federal judge in Nashville previously ruled in his favor. The state attorney general's office appealed the ruling to the 6th U.S. Circuit Court of Appeals in Ohio. That court granted Harbison's stay this week. He was scheduled to die Jan. 9.

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