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Thursday, May 01, 2008

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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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06 - TN Court of Appeals
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01 - TN Attorney General Opinions
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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.

PATRICIA AMBROSE v. BLYTHE BATSUK

Court: TCA

Attorneys:

Randall W. Burton, Nashville, Tennessee, for the appellant Patricia Ambrose.

Julie Bhattacharya Peak, Nashville, Tennessee, for the appellee Blythe Batsuk.

Judge: COTTRELL

This case arose from a low-speed collision in which the plaintiff's car was rear-ended by the defendant's car. The plaintiff claimed that the accident caused her to suffer neck and shoulder injuries, resulting in considerable pain and suffering. The defendant conceded fault for the accident, but denied that the accident had caused the plaintiff any actual injury. The plaintiff attempted to prove causation by offering the deposition testimony of the primary care doctor who had treated her. The trial court excluded the doctor's testimony because he was unable to state that the accident more probably than not caused the plaintiff's physical injuries. The jury returned a verdict for the defendant and the trial court entered judgment thereon. We affirm.

http://www.tba2.org/tba_files/TCA/2008/ambrosep_050108.pdf

JAMES MICHAEL BROWN v. HEIDI SUE (BROWN) LAMOUREUX

Court: TCA

Attorneys:

Brenda Rhoton Clark, Nashville, Tennessee, for the appellant, James Michael Brown.

Nick Perenich, Nashville, Tennessee, for the appellee, Heidi Sue (Brown) Lamoureux.

Judge: CLEMENT

Father appeals the trial court's modification of parenting time. Subsequent to the parties' divorce, Mother was designated as the primary residential parent. Father filed a petition seeking to modify such designation, which the trial court granted. In the order, Father was designated as the child's primary residential parent, and the issue regarding Mother's parenting time was expressly reserved pending family counseling. Five months later, Mother filed a petition seeking to be designated as the primary residential parent of the child. Following a hearing on her petition, the trial court denied her request to be the primary residential parent, but it granted Mother ninety-seven days of parenting time. Father appeals contending the trial court erred by granting Mother any relief. We have determined that the first of the two orders, the one in which the court reserved the issue of Mother's parenting time, was not a final order because all issues had not been resolved. Therefore, the first order was an interlocutory order, which was subject to modification by the trial court without proof of a material change of circumstance. Finding no error with the trial court's decision to award Mother ninety-seven days of parenting time, we affirm.

http://www.tba2.org/tba_files/TCA/2008/brownj_050108.pdf

JOHN B. GREEN, JR. v. BILLY H. SMITH, JR.

Court: TCA

Attorneys:

Ted W. Daniel, Murfreesboro, Tennessee, for the appellant, John B. Green, Jr.

S. Todd Bobo, Shelbyville, Tennessee, for the appellee, Billy H. Smith, Jr.

J. Russell Parkes and John Jay Clark, Columbia, Tennessee, for the appellee, Nationwide Mutual Insurance Company.

Judge: CLEMENT

The issues on appeal pertain to the exclusion of evidence concerning the condition of tires on a vehicle involved in a one-car accident. An injured passenger filed this action against the driver alleging that he sustained injuries as a result of the defendant's negligent operation of the vehicle. At trial, the plaintiff attempted to introduce evidence that the tires on the defendant's vehicle were so worn that the defendant's failure to conduct proper maintenance, replacing the tires, was a proximate cause of the accident. The trial court excluded the evidence on two grounds. One, evidence concerning the maintenance of the vehicle was outside of the pleadings. Two, the causal connection between the condition of the tires and the wreck required testimony of an expert. At the conclusion of the trial, the jury returned a verdict for the defendant. Finding no reversible error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/greenj_050108.pdf

BRIDGETT HILL, ET AL. v. NHC HEALTHCARE/NASHVILLE, LLC, ET AL.

Court: TCA

Attorneys:

John B. Curtis, Jr., Bruce D. Gill, Chattanooga, Tennessee, for the appellants, NHC Healthcare/Nashville, LLC; National Healthcare Corp.; Medic One, Inc.; and Medic One Ambulance Company.

Joseph K. Dughman, James W. Tiller, Nashville, Tennessee, for the appellees, Bridget Hill, and Janece Wilson, as co-administratrices of the estate of Barbara Hill, deceased.

Judge: COTTRELL

The administrators of the estate of a woman who died after being transported by ambulance from a nursing home to a hospital filed a wrongful death suit which named the nursing home and the ambulance service as defendants. The nursing home responded with a motion to compel arbitration, citing a provision in the admissions agreement which the decedent had signed, requiring both parties to submit any disputes to arbitration and to waive their rights to jury trial. The trial court found the arbitration clause to be unconscionable and denied the motion. The nursing home then filed a direct appeal to this court pursuant to Tenn. Code Ann. section 29-5-319. We affirm.

http://www.tba2.org/tba_files/TCA/2008/hillb_050108.pdf

CLEMENT concurring
http://www.tba2.org/tba_files/TCA/2008/hillb_CON_050108.pdf

ROBERTSON COUNTY BOARD OF EDUCATION v. MARY JANE REDMOND, ET AL.

Court: TCA

Attorneys:

Richard L. Colbert, Courtney L. Wilbert, Nashville, Tennessee, for the appellants Mary Jane Redmond and Robertson County Education Association.

Charles W. Cagle, Samuel L. Jackson, Nashville, Tennessee, for the appellee, Robertson County Board of Education.

Judge: COTTRELL

The appellant was a guidance counselor who was transferred to a teaching position, and she filed a grievance under the locally negotiated agreement between the local board of education and the local education association. The only relief she requested in her grievance was reinstatement to a guidance counselor position. The Board opposed submission of the grievance to arbitration, and the trial court held that the director of schools' decision to transfer a teacher is not subject to binding arbitration under the agreement. Because the appellant has retired, we find this appeal is moot. Accordingly, we dismiss the appeal.

http://www.tba2.org/tba_files/TCA/2008/robertsonco_050108.pdf

IN THE MATTER OF S.H.

Court: TCA

Attorneys:

Nick Perenich, Nashville, Tennessee, for the appellant, W.H.

Robert E. Cooper, Jr., Attorney General and Reporter; Lauren S. Lamberth, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Thomas H. Miller, Guardian ad litem, Nashville, Tennessee Pro Se.

Judge: COTTRELL

Father appeals the trial court's termination of his parental rights to his three-year old daughter. Based upon the record that included persistent violent behavior directed at the child's mother, we conclude the trial court did not err in terminating Father's rights.

http://www.tba2.org/tba_files/TCA/2008/sh_050108.pdf

DARRELL LAMAR FRITTS V. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Darrell Lamar Fritts, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Darrell Lamar Fritts, filed in the Johnson County Criminal Court a petition for a writ of habeas corpus, alleging that the sentence he is serving for second degree murder is illegal. The habeas corpus court denied the petition, and the petitioner appeals. 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/2008/frittsd_050108.pdf

STATE OF TENNESSEE V. CARSON M. HARR AKA "REECEY" HARR

Court: TCCA

Attorneys:

Terry L. Jordan, Blountville, Tennessee, for the appellant, Carson M. Harr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Carson M. Harr, pled guilty in the Sullivan County Criminal Court to robbery and aggravated burglary, and was sentenced to concurrent sentences of three years and eight years respectively. The appellant requested alternative sentencing, which request was denied by the trial court. On appeal, the appellant argues that the trial court erred by not granting alternative sentencing. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/harrc_050108.pdf

STATE OF TENNESSEE v. SCOTTY D. HATFIELD

Court: TCCA

Attorneys:

Martha Yoakum, District Public Defender, and Charles Herman, Assistant District Public Defender, for the appellant, Scotty D. Hatfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General; and Scarlett Ellis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Scotty D. Hatfield, originally charged with three counts of aggravated assault and one count of felony reckless endangerment, was convicted of one count of attempted aggravated assault and misdemeanor reckless endangerment. The trial court imposed an effective sentence of three years to be served in the Department of Correction. In this appeal, the defendant contends that the sentence is excessive and that the trial court erred by denying alternative sentencing. We affirm the sentencing decision of the trial court. The case must be remanded, however, for the entry of a corrected judgment reflecting that the defendant was convicted of attempted aggravated assault rather than aggravated assault on Count.

http://www.tba2.org/tba_files/TCCA/2008/hatfields_050108.pdf

STATE OF TENNESSEE V. AUNE KORNEGAY

Court: TCCA

Attorneys:

Whitney P. Taylor, Kingsport, Tennessee, for the appellant, Aune Kornegay.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Sullivan County Criminal Court jury convicted the appellant, Aune Kornegay, of facilitation to possess over .5 grams of cocaine for resale. The trial court sentenced her as a Range I, standard offender to four years to be served on probation and a $5,000 fine. On appeal, the appellant contends that the trial court abused its discretion in denying her request for judicial diversion. Upon review of the record and the parties' briefs, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/kornegaya_050108.pdf

ROBERT WAYNE MARLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Raymond C. Conkin, Jr., Kingsport, Tennessee, attorney for appellant, Robert Wayne Marler.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Robert Wayne Marler, appeals as of right the Sullivan County Criminal Court's denial of his petition for post-conviction relief. The timely-filed petition includes several allegations regarding the ineffective assistance of counsel. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the petitioner failed to establish his grounds for post-conviction relief by clear and convincing proof and denied relief. On appeal, the petitioner contends that the post-conviction court erred in finding that trial counsel was not ineffective in: (1) investigating and presenting alibi witnesses, (2) failing to request a continuance when a material witness failed to appear for court and (3) failing to adequately impeach witnesses. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/marlerr_050108.pdf

STATE OF TENNESSEE v. NABEEH JAMEEL MATEEN

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Nabeeh Jameel Mateen.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Sue Anderson and Amy H. Eisenbeck, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Nabeeh Jameel Mateen, was convicted by a Davidson County Criminal Court jury of especially aggravated robbery, a Class A felony, and was sentenced by the trial court to forty years as a Range II, multiple offender. On appeal, the defendant contends that the evidence is not sufficient to support his conviction and that the trial court erred in sentencing regarding an enhancement factor and a mitigating factor. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/mateenn_050108.pdf

Validity of Legislation Requiring Post-Secondary Schools to Notify Parents of Drug or Alcohol Violations

TN Attorney General Opinions

Date: 2008-05-01

Opinion Number: 08-99

http://www.tba2.org/tba_files/AG/2008/ag_08_99.pdf

TODAY'S NEWS

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TennBarU CLE
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Legal News

TBA marks Law Day, membership milestones

That loud noise you heard coming out of downtown Nashville today wasn't another earthquake aftershock. It was the pop of champagne corks! The Tennessee Bar Association had plenty to celebrate today. First off, of course, was the 50th anniversary of Law Day, first set aside by President Eisenhower as a "day of national dedication to the principle of government under law." A second significant milestone coincided perfectly with that theme -- the Tennessee Bar Association reached the 10,000 member mark for the first time in its history, showing there continues to be strong support for the principles held dear by the profession. Not to be overlooked in all the hoopla was a third milestone. Along with the champagne came a birthday cake for Tennessee Bar Journal Editor Suzanne Robertson, who remains far younger than Law Day.

Read the original Law Day proclamation

Law Day contest winners announced

The TBA YLD has announced the winners of the 2008 Tennessee Law Day Art and Essay Competitions. The theme of this year's contest was "The Rule of Law: Foundation for Communities of Opportunity and Equity." The theme focused on the law's effect on daily life, helping young people understand that the rule of law is essential for personal safety, access to education and employment, and economic opportunity. The YLD would like to thank Knoxville lawyer Kelli Guinn with Howard & Howard for serving as this year's contest coordinator.

View the winning entries here

Judge Todd takes senior status

U.S. District Judge James D. Todd of Jackson announced this week he would take senior status on May 20, according to the Memphis Daily News. Todd has been the court's only district judge for 23 years. His seat will be filled by S. Thomas Anderson, who was confirmed by the U.S. Senate on April 10.

Tour of American legal system stops in Memphis

Two-dozen judges and prosecutors from 10 Middle East countries were in the United States last week on a national tour arranged by the U.S. Patent and Trademark Office. Their itinerary included a two-day visit to Memphis, where they met with judges and attorneys, including U.S. District Court Judge Bernice Donald who served as their host. The visit was designed to emphasize the importance of protecting intellectual property rights around the globe.

The Memphis Daily News has more

Hooks to receive honorary degree from Rhodes

Rhodes College in Memphis will present an honorary doctor of humanities degree to Dr. Benjamin L. Hooks next week during its commencement ceremony. Hooks, an ordained Baptist minister, practicing attorney and native Memphian, was one of the most prominent figures to emerge during the civil rights movement. He went on to lead the NAACP from 1977 to 1992. The Memphis Daily News reported the news.

House appeals to Sixth Circuit

Lawyers for convicted murderer Paul G. House appeared before the U.S. Sixth Circuit Court of Appeals yesterday to argue for his release. House has been on Tennessee's death row for 22 years. His lawyers say he should be released because modern DNA tests would have helped acquit him.

The Tennessean has more

Baker receives Japan's highest foreign civilian honor

Japan's emperor has bestowed his country's highest honor for foreign civilians on Howard Baker, currently serving as senior counsel at Baker, Donelson, Bearman, Caldwell & Berkowitz PC. The former senator and ambassador was selected for the work he did as U.S. ambassador to Japan.