'Body Farm' founder to lead forensics program

Join Dr. William Bass, founder of the UT Forensic Anthropology Center -- better known as the "Body Farm" -- and a team of top legal experts for a new Forensics Overview course from TennBarU. It doesn't matter if you are in the criminal or civil arenas, forensic evidence impacts many aspects of law, and understanding new developments in DNA analysis, serology, and the impact of forensic science on legal ethics is critical. Joining Dr. Bass on the program will be Knoxville attorneys Andy Roskind and W. Thomas Dillard, Nashville attorney William "Tripp" Hunt III and Memphis Criminal Court Judge Mark Ward.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5610

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.

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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.

CLEAR CHANNEL OUTDOORS, ET AL. v. TENNESSEE DEPARTMENT OF TRANSPORTATION

Court: TCA

Attorneys:

Arvin H. Reingold, Chattanooga, Tennessee, for the Appellants, Clear Channel Outdoors and George and Katherine Morgan.

Robert E. Cooper, Attorney General & Reporter, and Bruce M. Butler, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Tennessee Department of Transportation.

Judge: SWINEY

This appeal is from a final order in a proceeding for judicial review of an administrative decision pursuant to Tenn. Code Ann. section 4-5-322. The Tennessee Department of Transportation ("TDOT") filed this action claiming that a billboard which was rebuilt by the defendants after it was blown down in a storm did not meet the requirements of the regulation governing reconstruction of storm- damaged billboards. Following a hearing, the Administrative Law Judge determined that the rebuilt billboard violated the applicable regulation and ordered its removal. The decision was affirmed by the TDOT Commissioner ("the Commissioner"), and later by the Chancery Court for Davidson County ("the Trial Court"). On appeal, we find that the Trial Court did not have the necessary administrative record before it as required when it reviewed this case. Because the Trial Court's review is limited to the administrative record, Tenn. Code Ann. section 4-5-322(g), and the complete administrative record was not available to the Trial Court, we vacate the Trial Court's judgment and remand for a new review to be conducted after the full administrative record is filed with the Trial Court. We vacate and remand.

http://www.tba2.org/tba_files/TCA/2008/clearchannel_021408.pdf


NICKIE DURAN v. HYUNDAI MOTOR AMERICA, INC. ET AL.

Court: TCA

Attorneys:

Leo Bearman, Jr., Memphis, Tennessee, J. Randolph Bibb, Jr., Nashville, Tennessee, and Ronald S. Range, Jr. and Gary L. Edwards, Johnson City, Tennessee, for the appellants, Hyundai Motor American, Inc., and Hyundai Motor Company.

Wayne A. Ritchie II, Knoxville, Tennessee, and James A. Simmons, Hendersonville, Tennessee, for the appellee, Nickie Duran.

Judge: KOCH

This appeal involves a single vehicle accident in which the driver was seriously injured. The driver filed suit against the manufacturer of the automobile in the Circuit Court for Dickson County, alleging that the automobile's exhaust system was dangerously defective and seeking both compensatory and punitive damages. The jury returned a verdict awarding the driver $3,000,000 in compensatory damages and concluding that the driver was entitled to punitive damages. However, the trial court granted a directed verdict on the punitive damage claim and reduced the jury's award of compensatory damages to $2,000,000 to conform to the driver's amended prayer for relief. On this appeal, the manufacturer takes issue with (1) the admissibility of the evidence regarding punitive damages during the driver's case-in-chief, (2) the scope of the cross-examination of one of its expert witnesses, (3) the trial court's delay in directing a verdict on the driver's punitive damage claim, (4) the jury's allocation of fault, (5) the amount of the compensatory damages award, and (6) the award of discretionary costs. The driver takes issue with the dismissal of her punitive damages claim. We have determined that no error was committed during the trial. In addition, we find that the trial court properly directed a verdict on the driver's punitive damages claim and reduced the award for compensatory damages to $2,000,000. We also find that the verdict, as approved by the trial court, is supported by material evidence. Finally, we have determined that the award for discretionary costs must be reduced.

http://www.tba2.org/tba_files/TCA/2008/durann_021408.pdf


VIRGINIA ELROD v. CONTINENTAL APARTMENTS, ET AL.

Court: TCA

Attorneys:

Robert A. Croy, Manchester, Tennessee, for the appellant, Virginia Elrod.

John W. Rodgers and James P. Barger, Murfreesboro, Tennessee, for the appellees, Continental Apartments and Ronnie L. Randall.

Judge: CLEMENT

The unsuccessful plaintiff appeals the summary dismissal of her slip and fall claim against an apartment complex and its owner. During the second day of a winter storm, the plaintiff traveled along icy roads to make a security deposit at the apartment complex. Although she had carefully exited her vehicle and walked to the office to make the deposit, she chose to "trot" back along the same path to her car. While trotting to her car, she slipped on the icy parking lot, breaking her ankle. The trial court summarily dismissed the plaintiff's complaint. Viewing the facts in a light most favorable to the plaintiff, we find that reasonable minds could not differ that the plaintiff's fault was greater than that of the defendants. We, therefore, affirm.

http://www.tba2.org/tba_files/TCA/2008/elrodv_021408.pdf


SARAH ELIZABETH FERGUSON v. JOHNNY WAYNE FERGUSON
With Dissenting Opinion


Court: TCA

Attorneys:

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Johnny Wayne Ferguson.

Gary M. Howell, Mt. Pleasant, Tennessee, for the appellee, Sarah Elizabeth Ferguson.

Judge: BENNETT

Husband appeals the award of certain items of personal property to Wife in a divorce action. Husband and Wife lived together for many years prior to the marriage and acquired both personal and real property during their cohabitation in addition to the property each owned individually. Husband argues that there was no evidence to support a finding that items awarded Wife, specifically a Corvette, a boat, and a trailer, could be considered marital property or the separate property of Wife. Thus, Husband contends that the trial court erred in its distribution of assets. Finding no error below, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2008/fergusons_021408.pdf

COTTRELL dissenting
http://www.tba2.org/tba_files/TCA/2008/fergusons_Dis_021408.pdf


STATE OF TENNESSEE v. TIMOTHY DEWAYNE BOULDIN

Court: TCCA

Attorneys:

Michael Keith Davis, Dunlap, Tennessee, for the appellant, Timothy Dewayne Bouldin.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Timothy Dewayne Bouldin, appeals from his Van Buren County Circuit Court jury trial convictions of possession of a schedule IV controlled substance and possession of a schedule VI controlled substance, both Class A misdemeanors. See T.C.A. section 39-17-418. For the Schedule IV conviction, he was sentenced to eleven months and twenty-nine days, with thirty days to be served in jail at seventy-five percent release eligibility, and the balance on probation. For the Schedule VI conviction, he was sentenced to eleven months and twenty-nine days, with ten days to be served in jail at seventy-five percent release eligibility, and the balance on probation. The judge ordered the sentences to be served concurrently. In this appeal, the defendant raises issues regarding the trial court's denial of his motion to suppress, the sentences imposed, and the denial of judicial diversion. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/bouldint_021408.pdf


STATE OF TENNESSEE v. TIMOTHY R. BOUTON
With Dissenting Opinion


Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender; Donna Robinson Miller, Assistant District Public Defender, for the appellant, Timothy R. Bouton.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William H. Cox, III, District Attorney General; and James Woods, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Timothy R. Bouton, appeals from the sentencing decision of the Hamilton County Criminal Court. The Defendant pled guilty to vehicular homicide and reckless endangerment with a deadly weapon. At a subsequent sentencing hearing, the trial court followed the pre-2005-revision sentencing law and imposed an effective ten-year sentence as a Range I, standard offender in the Department of Correction. In this appeal, the Defendant argues, for the first time, that the United States Supreme Court's Blakely v. Washington, 542 U.S. 296 (2004), decision precludes enhancement of his vehicular homicide sentence above the presumptive minimum of eight years. The Defendant also argues that the trial court erred by ordering a sentence of total confinement. After a review of the record, we conclude that the trial court did not err in denying the Defendant an alternative sentence. However, we must notice as plain error that the trial court improperly enhanced the Defendant's sentence by applying factors that were not determined by a jury. Because we cannot determine from the record before us the proper sentence to be imposed, this matter is remanded to the trial court for further resentencing in accordance with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/boutont_021408.pdf

HAYES dissenting
http://www.tba2.org/tba_files/TCCA/2008/boutont_DIS_021408.pdf


COREY D. CARTWRIGHT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William C. Collins, Nashville, Tennessee, for the appellant, Corey D. Cartwright.

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

Judge: GLENN

The petitioner, Corey D. Cartwright, appeals the denial of his petition for post-conviction relief from his conviction for possession of over .5 grams of cocaine with the intent to sell, arguing that he was denied the effective assistance of counsel, his guilty plea was unknowing and involuntary, and the trial court's findings of fact and conclusions of law with respect to its denial of his motion to suppress failed to comply with the requirements of Rule 12 of the Tennessee Rules of Criminal Procedure. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2008/cartwrightc_021408.pdf


STATE OF TENNESSEE v. JEFFREY LEE FIELDS

Court: TCCA

Attorneys:

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Jeffrey Lee Fields.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Hansel J. McCadams, District Attorney General; and Stephen D. Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Jeffrey Lee Fields, appeals the order declaring him a motor vehicle habitual offender (MVHO) by default judgment. He contends, and the State agrees, that the Rules of Civil Procedure were not followed regarding service of process, notice of hearing, notice of default judgment, notice of entry and service of judgment. Further, he contends there were insufficient convictions to support a judgment declaring him a motor vehicle habitual offender. After review, we conclude that a conviction on appeal is a final conviction for the purpose of determining MVHO status; however, because the proper procedures were not followed in obtaining the judgment declaring the defendant a motor vehicle habitual offender, it should be vacated.

http://www.tba2.org/tba_files/TCCA/2008/fieldsj_021408.pdf


STATE OF TENNESSEE V. TONY GALTELLI, JOHN B. GARDNER, AND VANCE PLUMOFF

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Henderson, Assistant District Attorney General, for the appellant, State of Tennessee.

Steven E. Farese, Jr., Ashland, Mississippi, for appellee, Tony Galtelli; Robert Brannon, Memphis, Tennessee, for appellee, John Gardner; and William D. Massey and Lorna D. McClusky, Memphis, Tennessee, for appellee, Vance Plumoff.

Judge: SMITH

Appellees, Tony Galtelli, John Gardner and Vance Plumoff, all West Memphis, Arkansas police officers, were indicted for reckless homicide by the Shelby County Grand Jury after a high-speed chase. The chase resulted in the shooting death of Kelly Allen, a passenger in the vehicle involved in the chase. The district attorney general denied pretrial diversion for each officer. Subsequently, Appellees sought relief from the denial of pretrial diversion by filing a petition for writ of certiorari in the trial court. The petition alleged that the district attorney general abused his discretion by denying pretrial diversion. The trial court granted the writ of certiorari, ordering the district attorney general to place Appellees on pretrial diversion. The State sought both an interlocutory appeal and an extraordinary appeal. Both requests were denied. The State subsequently sought and was granted permission to file a late notice of appeal pursuant to Tennessee Rules of Appellate Procedure 3. On appeal, the State asserts that the trial court improperly concluded that the district attorney general abused his discretion by denying pretrial diversion and that the trial court erred by ordering the district attorney general to enter a memorandum of understanding to place Appellees on pretrial diversion. After a review of the record, we conclude that even though the trial court properly determined that the district attorney general abused his discretion by denying pretrial diversion, the trial court improperly ordered the district attorney general to place Appellees on pretrial diversion where the district attorney general failed to consider all relevant factors in denying diversion. According to State v. McKim, 215 S.W.3d 781 (Tenn. 2007), the trial court should have reversed the district attorney general's denial of diversion and ordered the district attorney general to consider all the relevant factors in regard to granting or denying the applications for diversion. Therefore, we affirm in part, reverse in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/galtellit_021408.pdf


STATE OF TENNESSEE v. COREY MONTEZ RICKMAN

Court: TCCA

Attorneys:

William Bart Highers, Gallatin, Tennessee, for the appellant, Corey Montez Rickman.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and C. Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Corey Montez Rickman, pled guilty in 2002 to four counts of aggravated robbery and received an effective sentence of thirty-two years, with three years to be served in the Sumner County Jail and twenty-nine years on community corrections. In 2006 he acknowledged violating the terms of his community corrections sentence after testing positive for cocaine, and the trial court ordered that the remainder of his sentence be served in the Department of Correction, which the defendant appealed. We conclude that the defendant's convictions for aggravated robbery disqualified him for community corrections and, accordingly, dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2008/rickmanc_021408.pdf


STATE OF TENNESSEE v. BRETRAN R. THOMPSON

Court: TCCA

Attorneys:

Samuel J. Muldavin, Memphis, Tennessee, for the Appellant, Bretran R. Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Michelle Parks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Bretran R. Thompson, was disbarred in 1996. In 2004, the Defendant was indicted in two, two-count indictments each for impersonation of a licensed professional and theft, with a different victim in each indictment. In 2005, the Board of Professional Responsibility filed a petition for contempt against the Defendant alleging he violated his disbarment order from 1996. The Defendant pled guilty to contempt and was sentenced to fifty days in jail. He then moved to dismiss the two indictments in Shelby County Criminal Court. After argument, the trial court dismissed the two charges of impersonation of a licensed professional on double jeopardy grounds but refused to dismiss the two theft charges. The State sought interlocutory appeal under Rule 9 contesting the dismissal of the impersonation of a licensed professional charges, which was joined by the Defendant contesting the non-dismissal of the theft charges. After a thorough review of the facts and applicable law, we affirm in part and reverse in part the judgments of the trial court. We affirm the trial court's judgment denying dismissal of the theft charges, but reverse the judgment of the trial court dismissing the charges of impersonation of a licensed professional. The case is remanded for further proceedings on both sets of charges.

http://www.tba2.org/tba_files/TCCA/2008/thompsonb_021408.pdf


STATE OF TENNESSEE v. CHARLES VANTILBURG, III

Court: TCCA

Attorneys:

Leslie I. Ballin, Memphis, Tennessee, for the appellant, Charles Vantilburg III.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; and Thomas Henderson and Karen Cook, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Charles Vantilburg III, was originally convicted of second degree murder in 2002 and sentenced to 20 years' incarceration. On direct appeal, this court reversed the defendant's conviction and remanded the case for a new trial on the basis of the trial court's giving an erroneous definition of the term "knowingly." See State v. Charles Vantilburg, No. W2002- 01480-CCA-R3-CD (Tenn. Crim. App., Jackson, Jan. 13, 2004). After a second trial, the defendant was again convicted of second degree murder, and the trial court imposed a 22-year sentence. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by admitting into evidence a "memorandum of understanding" signed by the parties, (3) the trial court erred by permitting the state to play a videotape of the recovery of the victim"s body, (4) the trial court erred by instructing the jury on flight, and (5) the sentence is excessive. The sentence is modified to 20 years; otherwise, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/vantilburgc_021408.pdf


STATE OF TENNESSEE v. TRAVIS YOUNG

Court: TCCA

Attorneys:

Phyllis Aluko and Robert Jones (on appeal), and Timothy Albers (at trial), Memphis, Tennessee, for the Appellant, Travis Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; Paul Goodman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Travis Young, was convicted of two counts of aggravated robbery, three counts of aggravated assault, two counts of reckless aggravated assault, and one count of intentionally evading arrest. The trial court sentenced the Defendant to an effective sixteen-year sentence. On appeal, the Defendant contends that the trial court erred when it: (1) classified him as a Range II offender; (2) enhanced the Defendant's sentences; and (3) imposed consecutive sentences. We affirm the judgments of the trial court as modified, and we remand the case for entry of judgments consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/youngt_021408.pdf


Home Rule Charter Amendments

TN Attorney General Opinions

Date: 2008-02-14

Opinion Number: 08-24

http://www.tba2.org/tba_files/AG/2008/ag_08_24.pdf

Validity of International Driver Licenses

TN Attorney General Opinions

Date: 2008-02-14

Opinion Number: 08-25

http://www.tba2.org/tba_files/AG/2008/ag_08_25.pdf

TODAY'S NEWS

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More detainee recordings may be lost
Lawyers representing military detainees at Guantanamo Bay fear that years' worth of video recordings have been lost or erased. In a recent court filing, the base commander disclosed that "[recording] systems may have been automatically overwriting video data...at predetermined intervals." Lawyers for the detainees say that practice would be a clear violation of a court order to preserve evidence.
The Washington Post reports
Justice official speaks out on waterboarding
The head of the Justice Department's Office of Legal Counsel told a congressional panel today that "there has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law." It is the first time the department has expressed such an opinion publicly.
Read more from WSMV-TV
Bowers sentenced today
This afternoon, former state Sen. Kathryn Bowers was sentenced to 16 months in prison and two years of supervised release for accepting bribes in the FBI's Tennessee Waltz corruption sting, reports the Memphis Daily News. She was the last individual charged in the case to face sentencing.

Ford trial delayed until June
Former Sen. John Ford's federal trial, related to payments he received from state contractors, has been postponed until June. Both sides sought the delay saying that lawyers need time to review new material provided by the state. The trial had been set to start in March, according to Nashville's NewsChannel 5.

Contempt order lifted for two Chattanooga lawyers
The Tennessee Supreme Court has directed the Court of Appeals to lift a contempt order placed on Chattanooga attorneys John Konvalinka and Jennifer Lawrence. The order was imposed on the two for continuing to seek records from Erlanger Hospital while a stay on their case was in effect. The high court ruled that the stay was not so specific that it prohibited their activity. Download the opinion
Read more at Chattanoogan.com
Disinterment not necessary says widow's attorney
A bid by special prosecutors to unearth the body of former Knox County District Attorney General Ed Dossett to re-examine his cause of death was met with opposition by his widow's lawyer. Prosecutors want to see if there is evidence that she, not a farm accident, was responsible for his death. The parties will be in Knox County Criminal Court tomorrow to state their respective cases.
The News Sentinel has more
Former sheriff gets probation for drug charges
Former Williamson sheriff Ricky Headley will serve five years probation, undergo a drug and alcohol assessment, and stay out of public office for five years under a plea agreement reached with prosecutors. Headley was facing 37 counts -- 21 of which were felonies -- that he illegally obtained prescription medication. In court to finalize the deal, he pleaded guilty to five misdemeanor charges and resigned his position. According to reports, he will be back in court March 24 to ask for judicial diversion.
Read more in the Tennessean
DA wants teens with guns tried as adults
Shelby County District Attorney Bill Gibbons announced yesterday that his office will begin requesting that juveniles age 16 or older charged with using a firearm on school grounds be tried as adults.
Read about the policy from WLMT-TV
Legislative News
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The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
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County breaks ground for Justice Center project
The Cumberland County mayor, sheriff and commission will hold a groundbreaking ceremony for an addition to the county justice center on Feb. 29 at 9 a.m. The work will yield a 100-bed inmate pod, three jury deliberation rooms and four courtrooms. The event is free and open to the public, according to the Crossville Chronicle. The center is located at 90 Justice Drive in Crossville.

Disciplinary Actions
Saipan attorney reinstated
Rebecca Miller Warfield, an attorney in the Northern Mariana Islands has been reinstated to the practice of law in Tennessee after paying the annual BPR fee and required fines.
View all attorneys suspended and reinstated for 2007 fee violations
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The TBA World Points Rewards MasterCard from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
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