Year-end CLE Fest can save you

If you are in danger of not getting your required CLE hours in before the end of the year, don't worry. On Dec. 26, 27, 28 and 31, from 7 a.m. to 7 p.m., the TBA will offer more than 150 hours of programming -- including more than 100 hours of ethics. Programs will show continuously in four separate rooms in the Tennessee Bar Center, 221 Fourth Ave., North, in Nashville. You can come when you like and watch as many programs as you like. For more information, go to

https://www.tba2.org/tennbaru/clefest_2007.html

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
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
11 - TN Court of Appeals
09 - TN Court of Criminal Appeals
01 - 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.

CHARLEY NICOLE BIRDWELL v. STACY LEE HARRIS

Court: TCA

Attorneys:

James C. McBroom and Jennifer Sheppard, Nashville, Tennessee, for the appellant, Stacy Lee Harris.

Mattie Lee Bhela, Springfield, Tennessee, for the appellee, Charley Nicole Birdwell.

Judge: COTTRELL

The father of a five year old girl filed a petition to have primary custody of the child transferred from the mother to him. After a hearing, the trial court declined to change the custody of the child, finding that the father had failed to show a material change of circumstances, as is required by Tenn. Code Ann. section 36-6-101(a)(2)(B) before such a transfer of custody may be ordered. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/birdwellC_122107.pdf


RUSSELL IRVIN FOSTER v. VALERIE NASHELLE FOSTER

Court: TCA

Attorneys:

Yvette Y. Cain, Nashville, TN, for Appellant.

Jean N. Crowe, Nashville, TN, for Appellee.

Judge: HIGHERS

In the midst of a divorce proceeding, the trial court found the husband in criminal contempt of court. The trial court ordered that the husband pay pendente lite spousal support to the wife in the amount of $115.35 per week. The husband was to mail these payments, postmarked on Friday of each week. The wife filed a "criminal and/or civil" contempt petition, alleging that the husband failed to make 30 payments. A criminal contempt hearing was held, and the court found that the husband had failed to pay the wife her spousal support on 29 occasions. The court entered an order awarding Wife an arrearage judgment in the amount of $3,260.50 and sentenced the husband to 180 days in jail. The husband appeals, arguing that the court should have dismissed the contempt petition because it failed to specify whether it was a civil or criminal contempt charge. In the alternative, the husband argues that the wife failed to prove beyond a reasonable doubt that he willfully failed to comply with the support order. We affirm.

http://www.tba2.org/tba_files/TCA/2007/fosterr_122107.pdf


EVA HENDRIX, ET AL. v. LIFE CARE CENTERS OF AMERICA, INC., ET

Court: TCA

Attorneys:

Kyle E. Hedrick and Glenna M. Ramer, Chattanooga, Tennessee, for the appellants, Life Care Centers of America, Inc., Life Care Center of East Ridge, and East Ridge Medical Investors, LLC.

James W. Clements, III, Chattanooga, Tennessee, for the appellee, Eva Hendrix, Individually and as Administratrix of the Estate of Edith C. Beck.

Judge: SUSANO

In this wrongful death case, Eva Hendrix ("Daughter"), acting individually and as administratrix of the estate of her mother, the decedent Edith Beck ("Mother"), sued Life Center Centers of America, Inc. ("Nursing Home") among others. Nursing Home filed a "Motion to Compel Arbitration" based upon an arbitration clause signed by Daughter when Mother was admitted to Nursing Home's facility approximately four months before her death. Daughter responds that she was not actually authorized to act as Mother's attorney-in-fact at that time because Mother was still able to make her own medical decisions and therefore the power of attorney never became effective. The trial court agreed. Nursing Home appeals, arguing that Daughter's power of attorney was effective when she signed the arbitration clause, and that, in any event, an actual or apparent agency relationship existed between Mother and Daughter, and Mother and Daughter "treated the [power of attorney] document as though it was effective." We find that the evidence does not preponderate against the trial court's conclusion that the power of attorney was not in effect when Daughter signed the various documents handed to her by Nursing Home. We further hold that Nursing Home's alternative theories must fail as a matter of law. We therefore affirm.

http://www.tba2.org/tba_files/TCA/2007/hendrixe_122107.pdf


MARK MIDGETTE, ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

Court: TCA

Attorneys:

Sue B. Cain, Deputy Director of Law, Metropolitan Government of Nashville and Davidson County, and Philip D. Baltz and John L. Kennedy, Nashville, Tennessee, for the Appellant, Metropolitan Government of Nashville and Davidson County.

Judy Schechter, Goodlettsville, Tennessee, for the Appellee, Sharonda Lewis.

Thomas Boyers V, Gallatin, Tennessee, for the Appellees, Heidi Wade, and Mark Midgette and Dorothy Lynn Markham, individually and as the natural parents of Kimberly Elizabeth Midgette, deceased.

Judge: SWINEY

This is an appeal of three consolidated lawsuits involving an automobile accident in Davidson County. Following a non-jury trial, the Trial Court found that Chad Lankford, who was driving an ambulance for the Metropolitan Government of Nashville and Davidson County (the "Metropolitan Government"), was 67 percent at fault for the accident. The Trial Court assigned 33 percent of the fault to Carolyn Murphy, the driver of the automobile which struck the ambulance. The Metropolitan Government appeals claiming the Trial Court erred when it determined that Chad Lankford was negligent, and it further erred when it assigned 67 percent of the fault to Lankford. We affirm.

http://www.tba2.org/tba_files/TCA/2007/midgettem_122107.pdf


JEFF MILLER and wife, JANICE MILLER, each individually, and as surviving parents and next of kin of the minor, WILLIAM J. MILLER, deceased v. BEATY LUMBER, INC.

Court: TCA

Attorneys:

D. Michael Kress, II, Sparta, TN, for Appellants.

John M. Lawhorn, Knoxville, TN, for Appellee.

John A. Day, Brentwood, TN, for Amicus Curiae Tennessee Association for Justice.

Judge: HIGHERS

This is a negligence case that resulted in a directed verdict for the defendant. The plaintiff's minor son was killed when the truck he was riding in collided with a logging truck pulling the defendant's load of logs. All parties involved in the accident died, and there were no eyewitnesses. The plaintiffs filed suit against the defendant on behalf of their deceased son. At trial, the defendant moved for a directed verdict, which the court granted. The plaintiffs now appeal, alleging that the trial court applied the wrong standard when it granted the directed verdict. Next, the plaintiffs argue that the court should have applied the theory of joint and several liability because the case involved concurrent negligence resulting in an indivisible harm. Finally, the plaintiffs argue that the court erred by excluding evidence relating to the defendant's liability insurance. We affirm.

http://www.tba2.org/tba_files/TCA/2007/millerj_122107.pdf


IRA LYNN REAGAN, As Conservator of the property and person of HAZEL RAYBORN, an incapacitated person v. KINDRED HEALTHCARE OPERATING, INC., ET AL.

Court: TCA

Attorneys:

F. Laurens Brock, David J. Ward, Jacob Parker, Chattanooga, TN, for Appellants.

Richard E. Circeo, Deborah Truby Riordan, Nashville, TN, for Appellee.

Judge: HIGHERS

This appeal involves an arbitration agreement that was executed by a nursing home resident when she was admitted to the nursing home. The resident's estate has filed an action against the nursing home in circuit court and demanded a trial by jury on all issues. The defendants filed a motion to compel arbitration. The administrator of the resident's estate argued that (i) the arbitration agreement was incapable of performance for failure of an essential term; (ii) the nursing home breached fiduciary duties it owed to the resident by obtaining her signature on the agreement; (iii) the agreement was an unconscionable contract of adhesion; and (iv) the resident was unable to knowingly agree to arbitrate disputes, thereby waiving her right to a jury trial. The trial court dismissed the motion to compel arbitration without making any findings of fact or conclusions of law. The defendants appeal. For the following reasons, we reverse and remand for entry of an order compelling arbitration.

http://www.tba2.org/tba_files/TCA/2007/reagani_122107.pdf


ANTHONY ROBERTSON v. THE LEAF CHRONICLE

Court: TCA

Attorneys:

Anthony Robertson, Tiptonville, Tennessee, Pro Se.

J. Matthew Miller, Clarksville, Tennessee, for the appellee, The Leaf Chronicle.

Judge: CLEMENT

The plaintiff appeals the summary dismissal of his defamation action against the defendant. The cause of action arose out of a newspaper article appearing in the defendant's newspaper, which pertained to the criminal prosecution of the plaintiff on charges for aggravated rape and assault. Contending the Complaint failed to state a cause of action, the defendant newspaper filed a motion for summary judgment. The trial court found there was no material issue of disputed fact and that the plaintiff failed to plead the minimum requirements to state any cause of action. The court also found that he sustained no damages. Finding no error we affirm.

http://www.tba2.org/tba_files/TCA/2007/robertsona_122107.pdf


HUEY STRADER v. GEORGE LITTLE, COMMISSIONER, ET AL.

Court: TCA

Attorneys:

Huey Strader, Clifton, Tennessee, pro se Appellant.

Robert E. Cooper, Attorney General & Reporter, Michael Moore, Solicitor General, and Pamela S. Lorch, Senior Counsel, Nashville, Tennessee, for the Appellee, George Little, Commissioner of the Tennessee Department of Correction.

Judge: SWINEY

Inmate Huey Strader ("Plaintiff") sued the Tennessee Department of Correction ("TDOC") and TDOC Commissioner George Little ("Little") in an effort to rescind a waiver which provided for recalculation of his sentencing credits pursuant to a statute that went into effect after his sentencing date. The Trial Court found that Plaintiff failed to file a completed summons with the Clerk and Master's office for service upon TDOC, even after the Trial Court directed the Clerk and Master to send two summonses to Plaintiff for that purpose. Little, who had been properly served, filed a Motion to Dismiss, alleging that, as a state officer, he was not a proper party to the lawsuit and that the suit could not proceed because TDOC had not been made a defendant. The Trial Court granted Little's Motion to Dismiss. The Trial Court also dismissed Plaintiff's claim against TDOC because Plaintiff failed to file a separate summons for TDOC and, as a result of Plaintiff's inaction, TDOC had not been served with a summons. Plaintiff appeals. After a thorough review of the record, we find that Plaintiff did comply with the Trial Court's order by returning a summons to the Clerk and Master's office to be served on TDOC. Therefore, we vacate the Trial Court's dismissal of Plaintiff's claim against TDOC. We affirm the Trial Court's grant of Little's Motion to Dismiss.

http://www.tba2.org/tba_files/TCA/2007/straderh_122107.pdf


SANDRA YEVETTE TURNER, as next friend, next of kin, natural mother, and personal representative of JESSICA JOVAN TURNER, deceased v. STERILTEK, INC., THE VANDERBILT UNIVERSITY d/b/a VANDERBILT UNIVERSITY MEDICAL CENTER, HERBERT S. SCHWARTZ, M.D., ED GLENN, M.D., and JOHN/JANE DOE

Court: TCA

Attorneys:

Michael D. Noel and W.H. (Steve) Stephenson, II, Nashville, Tennessee, for Appellant Sandra Turner.

Thomas I. Carlton, Jr., Jay N. Chamness, and J. Cole Dowsley, Jr., Nashville, Tennessee, for Appellee Steriltek, Inc.

Erin N. Palmer, Nashville, Tennessee, for Appellees the Vanderbilt University, Herbert S. Schwartz, M.D., and Ed Glenn, M.D.

Judge: KIRBY

This appeal involves negligence and medical malpractice. The defendant corporation does off-site sterilization of surgical instruments for the defendant medical center. On July 12, 2002, the defendant physicians were performing surgery on the plaintiff's daughter at the defendant medical center, using instruments sterilized by the defendant corporation. During the surgery, an agent of the corporation informed the physicians that some of the instruments they were using might be contaminated. After receiving this information, the physicians stopped the surgery before it was completed. As a result, the plaintiff's daughter had to return to the medical center at a later date, at which time the defendant physicians successfully completed the necessary surgical procedure. The plaintiff filed this lawsuit against the corporation, the medical center, and the physicians, seeking damages for alleged negligence and medical malpractice. The defendants filed motions for summary judgment supported by expert affidavits. The trial court granted the defendants' motions for summary judgment on all claims. The plaintiff appeals. We affirm in part and reverse in part. We affirm the trial court's grant of summary judgment as to the plaintiff's claims against both of the defendant physicians and, accordingly, as to the plaintiff's claim that the defendant medical center is vicariously liable for the actions of the physicians. We also affirm the grant of summary judgment as to the plaintiff's claim against the defendant corporation for failure to provide sterilized instruments and batteries, and as to the plaintiff's claim as a third-party beneficiary to the contract between the corporation and the medical center. As to the remaining claims against the corporation and the medical center, we reverse the trial court's grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2007/turners_122107.pdf


U.S. BANK, N.A., as servicer for the TENNESSEE HOUSING DEVELOPMENT AGENCY, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court: TCA

Attorneys:

Charles L. Trotter, Huntingdon, Tennessee, for Appellant Tennessee Farmers Mutual Insurance Company.

Michael F. Rafferty, Memphis, Tennessee, for Appellee U.S. Bank, N.A.

Judge: KIRBY

This is an insurance case. The plaintiff bank made a home loan to the homeowner and took a deed of trust as security. Under the loan agreement, the homeowner was required to obtain a fire insurance policy on the premises. The defendant insurance company issued a fire insurance policy covering the house. The policy contained a standard mortgage clause requiring the insurance company to protect the bank's interest and, in turn, requiring the bank to notify the insurance company of any increases in hazard. The homeowner fell behind on her monthly mortgage payments, so the bank initiated foreclosure proceedings. The bank sent a letter to the homeowner stating that it had begun foreclosure proceedings; it did not notify the insurance company of these proceedings. Before the foreclosure process was complete, the homeowner and her husband filed for bankruptcy, which stayed the foreclosure proceedings. Soon after that, the house was destroyed by a fire. The bank notified the insurance company of the loss. The insurance company refused to pay, asserting that the foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company, and that the bank's failure to provide such notice constituted a breach of the mortgage clause in the fire insurance policy. The bank then sued the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act. The bank later filed a motion for partial summary judgment, asserting that T.C.A. section 56-7-804 indicated that the bank was not required to provide notice to the insurance company of foreclosure proceedings. The insurance company filed a cross-motion for summary judgment, arguing that such notice was required under the policy or, in the alternative, under the statute. The trial court denied the insurance company's summary judgment motion but granted summary judgment to the bank. The insurance company appeals. We reverse, finding that the commencement of foreclosure proceedings constituted an "increase in hazard" under the standard mortgage clause in the insurance policy and an "increase of hazard" under T.C.A. section 56-7-804.

http://www.tba2.org/tba_files/TCA/2007/usbank_122107.pdf


ANTHONY JOSEPH ZIOBROWSKI v. MARCY HAYS ZIOBROWSKI
With Dissenting Opinion


Court: TCA

Attorneys:

A. Allen Smith, III, Goodlettsville, TN, for Appellant.

Virginia Lee Story, Franklin, TN, for Appellee.

Judge: HIGHERS

This appeal involves a final decree of divorce that was entered in 1995, and a proposed qualified domestic relations order ("QDRO") entered pursuant to that decree in 2006. The former husband claims that the proposed QDRO allows his former wife to receive a greater share of his monthly retirement benefit than the trial court awarded to the wife when it divided the parties' marital property. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/ziobrowskia_122107.pdf

KIRBY dissenting
http://www.tba2.org/tba_files/TCA/2007/ziobrowskia_DIS_122107.pdf


STATE OF TENNESSEE v. JOE ALLEN BROWN

Court: TCCA

Attorneys:

Gregory Gookin, Assistant District Public Defender, for the appellant, Joe Allen Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. Woodall, District Attorney General; and Alfred Earls and Shaun A. Brown, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Joe Allen Brown, pleaded guilty to two counts of possession of under .5 grams of cocaine with the intent to sell and/or deliver and was sentenced in the Madison County Circuit Court to an effective four year term to be served in a community corrections program. On March 16, 2007 the court revoked the community corrections sentence and resentenced the defendant to serve six years in the Department of Correction. From that order, the defendant appeals. Upon review, we affirm the judgment below.

http://www.tba2.org/tba_files/TCCA/2007/brownj_122107.pdf


STATE OF TENNESSEE v. JIMMY CANTRELL

Court: TCCA

Attorneys:

Gerald L. Melton, District Public Defender and Russell N. Perkins, Assistant Public Defender, for the appellant, Jimmy Cantrell.

Robert E. Cooper, Jr., Attorney General & Reporter; Lacy Wilber, Assistant Attorney General; Bill Whitesell, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jimmy Cantrell, pled guilty to two counts of sale of cocaine. He was sentenced to serve ninety days of the sentence in incarceration prior to being released to probation. Later, Appellant pled guilty to a new charge of sale of cocaine. Appellant's probation was revoked. Appellant was sentenced on the new charge, and the trial court suspended the sentence after the service of a certain number of days and furloughed Appellant to the Rutherford County Drug Court Program.1 Subsequently, Appellant was discharged from the program for violating its terms and conditions. The trial court then entered an order terminating Appellant's furlough and ordering Appellant to serve his sentences in their entirety. Appellant sought credit for time served in the Drug Court Program. The trial court denied the request. Appellant now appeals the trial court's decision denying his request for credit for time served in the Drug Court Program. Because an appeal of the denial of a motion to award jail credit is not a proper ground for appeal under Tennessee Rule of Appellate Procedure 3(b), we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2007/cantrellj_122107.pdf


STATE OF TENNESSEE v. HEZEKIAH COOPER

Court: TCCA

Attorneys:

Paul J. Springer, Memphis, Tennessee, for the appellant, Hezekiah Cooper.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilbert and Nicole Germain, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Hezekiah Cooper, was convicted of four counts of attempt to commit second degree murder, four counts of aggravated robbery, one count of aggravated burglary, and one count of possession of a firearm. As a result, the trial court sentenced Appellant to an effective sixty-year sentence. After the denial of a motion for new trial, Appellant presents the following issues for our review: (1) whether the evidence is sufficient to support the convictions; (2) whether the trial court erred "in refusing to allow Appellant to argue alternative theories" at trial; (3) whether the trial court erred in refusing to admit exculpatory evidence; (4) whether the trial court improperly instructed the jury on lesser included offenses; (5) whether Appellant's sentences were excessive; and (6) whether the trial court erred by ordering Appellant to serve his sentences consecutively. After reviewing the issues, we determine that: (1) Appellant waived the issue regarding lesser included offenses for failing to request instructions at trial; (2) the trial court did not abuse its discretion in failing to admit exculpatory evidence; (3) Appellant waived several evidentiary issues by raising them for the first time on appeal; and (4) the trial court properly sentenced Appellant. However, we determine that the evidence was only sufficient to support two convictions for attempted second degree murder with respect to the actions against Ms. Thompson and her daughter Tanisha. Therefore, we reverse and dismiss the two remaining convictions for attempted second degree murder. Further, we determine that the evidence supports only one conviction for aggravated robbery because there was only one theft from the victims' residence of property that was owned by Mr. Norfleet. However, we modify the conviction for aggravated robbery with respect to Jeraldrika Thompson to a conviction for aggravated assault and remand to the trial court for sentencing on that count. However, we are unable to modify the two remaining convictions for aggravated robbery with respect to the actions taken against Ms. Thompson and Tanisha Thompson to aggravated assault because double jeopardy principles prohibit dual convictions for attempted second degree murder and aggravated assault. Accordingly, the convictions for aggravated robbery with respect to Ms. Thompson and Tanisha Thompson are reversed and dismissed. In all other respects, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/cooperh_122107.pdf


STATE OF TENNESSEE v. TIMOTHY FRAZIER

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Timothy Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. Woodall, District Attorney General; and Alfred Lynn Earls and Shaun Alan Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Timothy Frazier, pled guilty to one count of theft of property more than $1,000 but less than $10,000, a Class D felony. The trial court denied the defendant's request for judicial diversion and ordered him to serve a two-year, suspended sentence on supervised probation. On appeal, the defendant argues that the trial court's denial of judicial diversion should be reversed. Upon review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for reconsideration.

http://www.tba2.org/tba_files/TCCA/2007/fraziert_122107.pdf


STATE OF TENNESSEE v. MARIO C. GRAY a/k/a/ RICKY FLETCHER

Court: TCCA

Attorneys:

Jeffrey A. DeVasher, (on appeal), Willow Fort and Virginia Flack, (at trial), Assistant Public Defenders, for appellant Mario C. Gray.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

In 2004, Appellant, Mario C. Gray, was initially indicted for aggravated robbery. Appellant was later reindicted for aggravated robbery and attempted first degree murder. After a jury trial, he was convicted of aggravated robbery and felony reckless endangerment. As a result, the trial court sentenced the appellant to ten years for aggravated robbery and two years for reckless endangerment. The trial court ordered the sentences to run consecutively. After the denial of a motion for new trial, Appellant sought resolution of the following issues on appeal: (1) whether the evidence was sufficient to support the convictions for aggravated robbery and reckless endangerment; (2) whether the convictions for aggravated robbery and reckless endangerment violate double jeopardy; (3) whether the trial court erred by refusing to allow the appellant to impeach the victim with evidence of prior bad acts; (4) whether the trial court erred in instructing the jury that felony reckless endangerment was a lesser included offense of attempted first degree murder; and (5) whether the trial court properly sentenced the appellant. We conclude that the trial court erred by failing to allow Appellant to impeach the victim's testimony with proof of prior bad acts but deem the errors harmless. Further, even though the trial court improperly applied enhancement factors to Appellant's sentence, we conclude that the trial court properly sentenced Appellant. Additionally, we conclude that: (1) the evidence was sufficient to support the convictions. However, because we determine that felony reckless endangerment is not a lesser included offense of attempted first degree murder and Appellant's failure to object did not constitute consent to amend the indictment to add reckless endangerment, we vacate Appellant's conviction for reckless endangerment and remand the case to the trial court.

http://www.tba2.org/tba_files/TCCA/2007/graym_122107.pdf


MICHAEL L. McKILLIP v. JIM MORROW, WARDEN, TENNESSEE STATE PENITENTIARY, and STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael L. McKillip, Pikeville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Cameron L. Hyder, Assistant Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Michael L. McKillip, appeals as of right the Bledsoe County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The petitioner was convicted of aggravated sexual battery pursuant to his guilty plea in the Shelby County Criminal Court and received a sentence of fifteen years as a Range II offender to be served at one hundred percent. He alleges that he is entitled to habeas corpus relief because the trial court erroneously allowed him to plead outside his range and because the 1989 Criminal Sentencing Reform Act violates the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The trial court summarily dismissed the petition for failure to state a cognizable claim. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mckillipm_122107.pdf


DANNY RAY MEEKS v. JAMES FORTNER, WARDEN

Court: TCCA

Attorneys:

Danny Ray Meeks, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and Ronald L. Davis, III, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Danny Ray Meeks, was convicted of aggravated kidnapping, especially aggravated robbery, aggravated burglary, and extortion. State v. Meeks, 867 S.W.2d 361 (Tenn. Crim. App. 1993). He was sentenced to twenty (20) years for aggravated kidnapping, twenty (20) years for especially aggravated robbery, fifteen (15) years for aggravated burglary, and eight (8) years for extortion. The sentences for aggravated kidnapping, especially aggravated robbery, and extortion were ordered to be served consecutively to each other, with the sentence for aggravated burglary to be served concurrently with the other sentences, for a total effective sentence of forty-eight (48) years. Petitioner has filed a petition for writ of habeas corpus relief which was summarily dismissed by the trial court. He timely appealed, and the State has filed a motion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee for this case to be affirmed by memorandum opinion. Petitioner filed a reply brief in opposition to the State's motion. Having considered the entire record, we conclude that the State's motion should be granted. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/meeksd_122107.pdf


MARIO R. PERKINS v. CHERRY LINDAMOOD, WARDEN

Court: TCCA

Attorneys:

Mario R. Perkins, Clifton, Tennessee, pro se.

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

Judge: OGLE

The petitioner, Mario R. Perkins, filed in the Wayne County Circuit Court a petition for a writ of habeas corpus, arguing that his convictions and sentences for second degree murder and aggravated robbery are illegal and void. The habeas corpus court dismissed the petition, finding that the petitioner did not make a valid claim of illegality and voidness. On appeal, the petitioner challenges this ruling. Upon our review of the record and the parties' briefs, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2007/perkinsm_122107.pdf


EARL VANTREASE, JR. v. WAYNE BRANDON, Warden

Court: TCCA

Attorneys:

Earl Vantrease, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter and Benjamin A. Ball and Daniel Lins, Assistant Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner has filed a Petition for Rehearing to have this Court reconsider its opinion previously filed in this case. This Court held that the Petitioner had stated a cognizable claim for habeas corpus relief, but we affirmed summary dismissal due to the Petitioner's failure to attach the requisite documentation in support of his claim that the judgment was void. The Petitioner has now provided further documents in support of his claim. The Petition for Rehearing is granted.

http://www.tba2.org/tba_files/TCCA/2007/vantreasee_122107.pdf


Effectiveness of Subsurface Sewage Disposal Statutes

TN Attorney General Opinions

Date: 2007-12-21

Opinion Number: 07-167

http://www.tba2.org/tba_files/AG/2007/ag_07_167.pdf

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Read more about the speech from the Orange County Register
Reminder: new workers' comp rules take effect Dec. 26
New Utilization Review (UR) rules that become effective on Dec. 26 are available from the Tennessee Department of Labor and Workforce Development, Division of Workers' Compensation. The new rules require specific uniform standards -- either from the Official Disability Guidelines or the American College of Occupational and Environmental Medicine -- be used in making all utilization review determinations. The new rules also provide for civil penalties in some cases for failure to comply. Contact Suzy Douglas by email or phone at 615-532-1326 with questions.

Legislative News
Open government study chair may not offer amendments
State Sen. Randy McNally has not decided whether he will sponsor legislation proposing changes to Tennessee's open government laws. The Oak Ridge Republican chaired the study committee that recommended the changes, but said he has concerns about a proposal that allows government officials to meet privately.
Read more from the AP in the Memphis Daily News
Passages
Former county attorney dies
Former Shelby County attorney Donnie Wilson, who served from 1994 to July 2003, died recently of kidney failure in Savannah, Ga. During his time in Memphis, Wilson worked on the relocation of the Grizzlies and the funding and construction of FedExForum. The Memphis Daily News reported the death.

Disciplinary Actions
Former Memphis attorney reinstated
Jonathan Graham Carver, formerly of Memphis and now of Brooklyn, NY, 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
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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