Early bird convention rate expires tomorrow

Lawyers from across Tennessee will be in the Smoky Mountains this summer as the Tennessee Bar Association convenes its annual convention in Gatlinburg June 11-14. Register now to take part in the Meeting in the Mountains -- and take advantage of the early bird price. After May 23, the rate goes up.

http://www.tba.org/Convention2008/index.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
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
04 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

THE ESTATE OF MARY ELLEN REAGAN v. TENNPLASCO, ET AL.

Court: TWCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lauren S. Lamberth, Assistant Attorney General, for the appellant, Second Injury Fund.

William J. Butler and Frank D. Farrar, Lafayette, Tennessee ,for the appellee, Estate of Mary Ellen Reagan.

Judge: SCOTT

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50- 6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court awarded lump sum benefits. On appeal, a previous workers' compensation appeals panel reversed and remanded for further proceedings. The Employee died for reasons unrelated to the injury, while the appeal was pending. The trial court modified its previous award and again commuted the amount to a lump sum. The Second Injury Fund has appealed, contending that the trial court erred by awarding benefits in excess of those which had accrued prior to the Employee's death. We agree, modify the judgment accordingly, and remand to the trial court for the calculation of the benefits payable to the Estate.

http://www.tba2.org/tba_files/TSC_WCP/2008/reaganm_052208.pdf


DAVID LUKE HARVEY v. DICKSON COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

Larry L. Roberts, Nashville, Tennessee, for the appellant, David Luke Harvey.

Mark Nolan and Kathryn Wall Olita, Clarksville, Tennessee, for the appellee, Dickson County, Tennessee, and Tom Wall, in his capacity as Sheriff of Dickson County, Tennessee.

Judge: CLEMENT

An inmate at the Dickson County Jail who was attacked by another inmate filed this action against co-defendants, Dickson County and the Sheriff of Dickson County to recover damages for his personal injuries. The trial court summarily dismissed the complaint against both defendants without stating the legal grounds for its conclusion. The plaintiff contends the defendants breached their duty to prevent foreseeable harm because the defendants left a mop in the jail, which was not secured or locked away, and the defendants knew or should have known that a mop could be used by an inmate as a weapon. Penal institutions have a duty to use reasonable and ordinary care to prevent foreseeable attacks on inmates by other inmates. For a penal institution to be liable for injuries resulting from inmate-on-inmate assaults, the general rule is that the institution must have had prior notice of an attack. The defendants supported their motion for summary judgment with affidavits stating that they had no notice and no reason to believe that the plaintiff was likely to be assaulted. This shifted the burden to the plaintiff to establish that a dispute of fact exists concerning whether the defendants knew of or had reason to anticipate such an attack. The evidence presented by the plaintiff fails to create a dispute of this material fact. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2008/harveyd_052208.pdf


CORY O. JOHNSON v. ROSS BATES, WARDEN, WTSP DISCIPLINARY BOARD

Court: TCA

Attorneys:

Cory O. Johnson, Petros, TN, pro se.

No brief filed by Appellee.

Judge: HIGHERS

This appeal involves a petition for writ of certiorari filed by an inmate. Following the investigation of a homicide at the prison, disciplinary charges were filed against the petitioner. The prison disciplinary board held a hearing and found the petitioner guilty of the charges. The petitioner was indicted by a grand jury and charged with second degree murder, but the case was later dismissed via nolle prosequi. The petitioner then filed his petition for writ of certiorari challenging the prison disciplinary board's actions at the hearing, and the trial court dismissed it as untimely. The petitioner appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/johnsonc_052208.pdf


HOLLY THRASHER v. RIVERBEND STABLES, LLC, ET AL.

Court: TCA

Attorneys:

Kirk L. Clements, Goodlettsville, Tennessee, for the appellant, Holly Thrasher.

Michael H. Johnson and M. Kristin Selph, Nashville, Tennessee, for the appellees, Riverbend Stables, LLC, Stephen Daniel and Michael Daniel.

Judge: CLEMENT

Plaintiff appeals the summary dismissal of her complaint arising out of the death of her Tennessee Walking Horse while the horse was being trained at Riverbend Stables, LLC. Plaintiff filed suit claiming the horse died as a result of the defendants' negligence and gross negligence. The trial court dismissed the complaint upon a finding that the claims of negligence were barred by the exculpatory provisions in the parties' written agreement and Plaintiff had failed to make out a prima facie claim of gross negligence. Finding the exculpatory agreement enforceable and the evidence fails to establish a genuine issue of material fact concerning the claims for gross negligence or recklessness, we affirm.

http://www.tba2.org/tba_files/TCA/2008/thrasherh_052208.pdf


STATE OF TENNESSEE v. MITCHELL EADS

Court: TCCA

Attorneys:

Wesley D. Stone, Franklin, Tennessee, for the appellant, Mitchell Eads.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William Paul Phillips, District Attorney General; and Amanda Cox, Howard R. Ellis, and Jared R. Effler, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Mitchell Eads, was convicted by a Claiborne County jury of felony escape, a Class E Felony, for escaping from the Claiborne County Jail and was sentenced by the trial court as a career offender to six years in the Department of Correction. Pursuant to the escape statute, the trial court ordered that the sentence be served consecutively to the effective twenty-four-year sentence the defendant received in case number 11969 for the felony charges for which he was being held at the time of his escape. On appeal, the defendant argues that the evidence was insufficient to sustain his conviction, a fatal variance existed between the indictment and the proof presented at trial, the trial court improperly excluded testimony from two correctional officers about the defendant's permission to leave the jail, and the trial court erred in ordering that the six-year escape sentence be served consecutively to the sentence in case number 11969. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/eadsm_052208.pdf


ERIC MATTHEW KESTERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Timothy W. Flohr, Greenville, Tennessee, for the appellant, Eric Matthew Kesterson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Kevin Keaton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Eric Matthew Kesterson, pled guilty to rape of a child in exchange for a sentence of fifteen years to be served at 100 percent. The petitioner now appeals the post-conviction court's denial of his request for post-conviction relief and contends that: (1) he received the ineffective assistance of counsel and (2) his guilty plea was unknowing and involuntary. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/kestersone_052208.pdf


STATE OF TENNESSEE v. MICHAEL RAINES

Court: TCCA

Attorneys:

Richard Hughes (on appeal) and Wayne Carter (at trial), Cleveland, Tennessee, for the appellant, Michael Raines.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel W. Harmon, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and Matthew Dunn and Andrew Frieberg, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

After a second trial, the defendant, Michael Raines was convicted by jury of second degree murder and received a twenty-three-year sentence. On appeal, the defendant argues that the evidence was insufficient to sustain his conviction for second degree murder. Following our review of the record, parties' briefs, and applicable law, we affirm the defendant's conviction.

http://www.tba2.org/tba_files/TCCA/2008/rainesm_052208.pdf


STATE OF TENNESSEE v. RONALD JOSEPH REECE

Court: TCCA

Attorneys:

Patrick Martin, Jackson, Tennessee, for the Appellant, Ronald Joseph Reece.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General; Jerry Woodall, District Attorney General; and Jim Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Ronald Joseph Reece pleaded guilty to statutory rape for which he received a two-year probationary sentence. Aggrieved of the trial court's refusal to grant judicial diversion, he now appeals his sentence. After a thorough review of the record and applicable law, we affirm the sentence imposed by the lower court.

http://www.tba2.org/tba_files/TCCA/2008/reecer_052208.pdf


TODAY'S NEWS

Legal News
Disciplinary Actions
TBA Member Services

Legal News
Criminal Appeals nominees submitted to governor
The Judicial Selection Commission late yesterday approved and submitted to the governor three nominees for a vacancy on the Court of Criminal Appeals, western division. They are: Camille R. McMullen, an assistant U.S. attorney from Millington; 26th Judicial District Circuit Court Judge Roger A. Page of Medina; and 25th Judicial District Circuit Court Judge Joe H. Walker III of Ripley. The vacancy on the court was created by the retirement of Judge David Hayes.

Court clarifies reinstatement after disability inactive status
The Tennessee Supreme Court yesterday entered an order amending Tennessee Supreme Court Rule 9 on disciplinary enforcement to clarify the procedures governing reinstatement of lawyers whose licenses have been transferred to disability inactive status. The change came as a result of a proposal published by the court in June 2007. The TBA had supported the changes in a comment timely filed with the court.
Download the order
Local rules issue picks up steam as election nears
Circuit Court Judge Mike Meares' desire to hear more civil cases is no secret. In April, he asked the Blount County Bar Association to propose local rule changes allowing such a move. The association declined to do so, arguing it's the court's job to set its rules, and because of the impending election it might turn the issue into a political one. Now Meares has ordered four local attorneys to produce any documents related to the local rules. But Judge W. Dale Young, who has primary responsibility for civil matters, says Meares' past offers to help with the civil docket have not materialized. Meares is currently campaigning for re-election, facing General Sessions Judge David Duggan in the August general election.
The Daily Times has the details
'Don't ask, don't tell' challenge revived
The 9th U.S. Circuit Court of Appeals ruled yesterday that an Air Force nurse may challenge the military's "don't ask, don't tell" policy. The case had been dismissed by a lower court. In sending the case back, the Court of Appeals also instructed the lower court to hold the government to a stricter standard than has been used in the past to prove the need for the law.
The New York Times has more
Study: Sentencing guidelines ease discrimination
According to a study released today, state sentencing guidelines virtually erase discrimination in criminal punishments, regardless of how much judges are allowed to deviate from recommended terms. The National Center for State Courts, with funding from the National Institute of Justice, examined three different states with sentencing guidelines, and concluded the guidelines result in consistent sentences not generally influenced by race and economic status. The Associated Press reported on the study.
Download a summary of the report
American Bar Foundation launches new web site
The American Bar Foundation has launched a new web site designed to provide a gateway to the foundation's scholars, findings and publications. The foundation -- an independent, nonprofit research institute -- promotes itself as the nation's leading organization dedicated to empirical study of the law.
Check it out here
Disciplinary Actions
Dyersburg lawyer reinstated
Christopher Filer Donovan has been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education.
View all attorneys suspended and reinstated for 2005 CLE violations
Gallatin lawyer reinstated
Carrie Nourse Pinkston has been reinstated to the practice of law in Tennessee after complying with continuing legal education requirements. Pinkston was suspended in 2003.

TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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