Award-winning GP Summit returns with strong lineup

Recognized in 2007 as the state's top educational seminar, the TBA's General Practice Summit returns this summer with a strong lineup of speakers in practice areas central to the work of attorneys in solo or small practices. This year's program will again feature 15 hours of practical programming along with plenty of time for networking and learning from your colleagues. Register or find out more about this Nashville program, scheduled for Aug. 21-23.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5732

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.

PATTY J. CHEATWOOD v. CRYSTAL D. CURLE and BUD DAVIS LINCOLN MERCURY, LLC

Court: TCA

Attorneys:

John D. Horne, Memphis, Tennessee, for the appellant, Patty J. Cheatwood.

Lauren L. Holloway, Memphis, Tennessee, for the appellee, Bud Davis Lincoln Mercury, LLC.

Judge: KURTZ

This appeal concerns the scope of an employer's liability for its employee's allegedly negligent operation of a motor vehicle owned by the employer. In this case both the employer and the employee were sued after the employee became involved in an automobile accident with another motorist. Arguing that there was no basis for holding it vicariously liable for any negligence on the part of its employee, the employer moved the trial court for summary judgment. The employer's motion was granted. We affirm and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/cheatwoodc_070908.pdf


IN RE D.A.P.

Court: TCA

Attorneys:

Heather G. Inman, Knoxville, Tennessee, for the Appellant, D.M.P.

Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: LEE

The issues presented in this case are whether the trial court erred in terminating the mother's parental rights to her child upon a determination that the mother was mentally incompetent to care for her child and whether termination was in the best interest of the child. After careful review, we hold that the evidence does not preponderate against the trial court's finding that there was clear and convincing evidence of the mother's mental incompetency to care for the child pursuant to Tenn. Code Ann. section 36-1-113(g)(8)(B) and that termination was in the child's best interest. Accordingly, we affirm the judgment of the juvenile court.

http://www.tba2.org/tba_files/TCA/2008/dap_070908.pdf


STATE OF TENNESSEE, EX REL VENESSA MOORE v. MICHAEL STEVEN MOORE

Court: TCA

Attorneys:

Christine W. Stephens, Jeannie M. Kosciolek, Memphis, TN, for Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, Warren Jasper, Assistant Attorney General, Nashville, TN, for Appellee.

Judge: HIGHERS

Father/Appellant appeals the trial court's modification of child support. Specifically, Appellant asserts that the trial court erred in setting support based upon eighty days of visitation as set out in Tenn. Comp. R. and Reg. 1240-2-4-.04(7)(a) rather than the 182.5 days used for fifty/fifty parenting situations as contemplated in Tenn. Comp. R. and Reg. 1240-2-4-.02(12). Appellant also appeals the trial court's denial of his motion for continuance. Finding no abuse of discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2008/moorev_070908.pdf


DOYLE GLENN SCOGGINS, JR., v. STEPHANIE LEIGH SCOGGINS (now HOWARD), RE: JONATHAN TYLER SCOGGINS, DOB 7/9/93

Court: TCA

Attorneys:

Joe W. Henry, Jr., Pulaski, Tennessee, for Appellant.

Robert D. Massey, Pulaski, Tennessee, for Appellee.

Judge: FRANKS

Post divorce, the father moved for a change of custody of the parties' eldest child and upon trial, the Trial Court found a change of circumstances and ordered a change in custody of the child to the father from the mother. On appeal, we reverse on the grounds that the evidence preponderates against the Trial Court's finding that it is in the child's best interest to change custody to the father.

http://www.tba2.org/tba_files/TCA/2008/scogginsd_070908.pdf


REBECCA STAFFORD SHELL v. JON E. SHELL

Court: TCA

Attorneys:

Brent R. Watson and Suzanne N. Price, Knoxville, Tennessee, for appellant.

Cynthia Richardson Wyrick, Sevierville, Tennessee, for appellee.

Judge: FRANKS

The plaintiff wife filed a Complaint for Divorce. The parties entered into a mediation which resulted in all issues being resolved in a mediated settlement, and the Final Report of the mediator was filed in Court. The plaintiff then voluntarily nonsuited her action for divorce, and refiled on the same date in Circuit Court. The Trial Court ultimately set aside the nonsuit, tried the issues raised, approved the mediated settlement and granted the parties a divorce. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2008/shellr_070908.pdf


MATTHEW THORNTON, ET AL. v. ALLENBROOKE NURSING AND REHABILITATION CENTER, LLC, ET AL.

Court: TCA

Attorneys:

Rebecca Adelman and Chase Pittman, Memphis, Tennessee, for the appellant, Allenbrooke Nursing and Rehabilitation Center, LLC, Allenbrooke Health Care Center, Allenbrooke Health Care Centerd/b/a Beverly Enterprises, Tennessee, Inc. And Beverly Enterprises Tennessee, Inc.

Peter B. Gee, Jr., Memphis, Tennessee and Brian G. Brooks, Greenbrier, Arkansas, for the appellee, Matthew Thornton, Probate Estate Administrator.

Judge: FARMER

This appeal involves a dispute over an arbitration agreement, and stems from a nursing home abuse and neglect case. The decedent's daughter signed all the paperwork associated with the decedent's admission to the nursing home. An arbitration agreement was included in the admissions agreement. Decedent's daughter, as next of kin, filed a complaint alleging nursing home abuse and neglect. The nursing home moved to stay the case and compel the matter to arbitration. The trial court held that daughter did not have authority to waive decedent's constitutional right to a jury trial, and denied the nursing home’s motion. The nursing home appeals. We affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2008/thorntonm_070908.pdf


STATE OF TENNESSEE v. BENJAMIN BROWN

Court: TCCA

Attorneys:

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Benjamin Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Wheeler Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Benjamin Brown, was convicted by a Shelby County Criminal Court jury of first degree felony murder in the perpetration of aggravated child abuse and aggravated child abuse. For the felony murder conviction, he was sentenced as a violent offender to life in the Department of Correction, and for the aggravated child abuse conviction he was sentenced to twenty-five years, to be served concurrently. In this direct appeal, he claims (1) that the trial court improperly allowed evidence of the defendant's bad acts without conducting a hearing as required by Tennessee Rule of Evidence 404(b), (2) that the trial court committed plain error in allowing a state's expert witness to testify about the victim's cause of death without establishing a proper foundation, (3) that the court erred in failing to replace a juror who indicated she had some knowledge of one of the state's witnesses, (4) that the trial court failed to give instructions on lesser offenses, and (5) that he is entitled to a new trial based upon prosecutorial misconduct during closing argument. We hold that although the state made an improper rebuttal argument, the error was harmless, and the remaining issues are without merit. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/brownb_070908.pdf


STATE OF TENNESSEE v. BILLY CLAY BROWNING

Court: TCCA

Attorneys:

W. Jeffery Fagan, Assistant District Public Defender, Camden, Tennessee; and Anthony L. Clark, Paris, Tennessee, for the Appellant, Billy Clay Browning.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and Robert "Gus" Radford, District Attorney General Pro Tempore, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Billy Clay Browning, was convicted by a Henry County jury of one count of first degree premeditated murder and received, as provided by law, a sentence of life imprisonment. On appeal, Browning has presented two issues for our review: (1) whether the trial court abused its discretion in refusing to grant a continuance because Browning was unable to assist trial counsel with his defense; and (2) whether the evidence is sufficient to support the conviction. Following review of the record, we find no error and affirm.

http://www.tba2.org/tba_files/TCCA/2008/browningb_070908.pdf


ROBERT B. CLARK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson (on appeal); Paul Guibao and R. Andrew Hutchinson (at trial), Memphis, Tennessee, for the Appellant, Robert B. Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Carrie Shelton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Robert B. Clark, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. Following a jury trial, Clark was convicted of second degree murder, a Class A felony, and sentenced to serve twenty-four years, as a violent offender, in the Department of Correction. On appeal, Clark contends that he was denied his Sixth Amendment right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective by: (1) failing to investigate and pursue all possible defenses; and (2) failing to seek pre-trial suppression of his statement to the police. After review of the record before us, we find no error and affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2008/clarkr_070908.pdf


MATTHEW DIXON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Britton J. Allan, Memphis, Tennessee, for the appellant, Matthew Dixon.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Matthew Dixon, appeals from the post-conviction court's order denying his petition for post-conviction relief. On appeal, he argues that the denial of relief was error because he did not receive the effective assistance of counsel at trial. Following our review, we conclude that the Petitioner has not shown that trial counsel was ineffective. Consequently, we affirm the post- conviction court's order denying post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2008/dixonm_070908.pdf


ANTHONY T. ROBERTSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Anthony T. Robertson, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon and Rachel E. Willis, Assistant Attorneys General; C. Phillip Bivens, District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Anthony T. Robertson, filed a petition for a writ of habeas corpus challenging his conviction for sexual battery. The trial court issued a written order dismissing the petition and denying habeas corpus relief for failure to state a cognizable claim. The petitioner filed an untimely appeal of the written order denying his petition. Following our review of the parties' briefs, the record, and the applicable law, we conclude that the petitioner failed to timely file his notice of appeal and therefore his appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2008/robertsona_070908.pdf


STATE OF TENNESSEE v. ROBERT RUBIN

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Garland Ingram Erguden (on appeal) and Michael J. Johnson and Jane Sturdivant (at trial), Assistant Public Defenders, for the appellant, Robert Rubin.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience R. Branham and Rachel Newton, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Robert Rubin, was convicted by a Shelby County Criminal Court jury of the first degree murder of Michael Gross. He was also convicted of the attempted first degree murder of Charles Gross, a Class A felony. The defendant is serving consecutive sentences of life for the first degree murder conviction and thirty-five years for the attempted first degree murder conviction. In this direct appeal, the defendant contends (1) that the evidence is insufficient to convict him of first degree murder, and (2) that the trial court erred in sentencing him to a thirty-five year term for attempted first degree murder and in imposing the sentences consecutively. We hold that no error has been shown, and we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2008/rubinr_070908.pdf


TONY SHEFFA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchison (on appeal) and Paul Guibao (at trial), Memphis, Tennessee, for the appellant, Tony Sheffa.

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

Judge: OGLE

The petitioner, Tony Sheffa, appeals the Shelby County Criminal Court's denial of post-conviction relief. On appeal, he alleges that his trial counsel was ineffective and, that because of the ineffectiveness of counsel, his pleas were not knowingly and voluntarily entered. Upon our review of the record and the parties' briefs, we conclude that the post-conviction court did not have jurisdiction to hear the petition. Therefore, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2008/sheffat_070908.pdf


STATE OF TENNESSEE v. MARK FREDRICK TAYLOR

Court: TCCA

Attorneys:

Rob Starnes, Kingsport, Tennessee, for the Appellant, Mark Fredrick Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Welles, District Attorney General; Joseph E. Perrin, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

The Defendant pled guilty to one count of attempt to obtain a controlled substance by fraud in case number S50,151 in exchange for an eight year sentence to be served on probation. He also pled guilty to one count of attempt to obtain a controlled substance by fraud and one count of fraudulently obtaining benefits for medical assistance in case number S50,727. For the controlled substance conviction, he received an eight year sentence to be served on probation concurrently with the sentence in case number S50,151. For the medical assistance conviction, the agreed sentence was six years, run consecutively to the other two sentences, with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the Defendant to serve his six year sentence in the Department of Correction. On appeal, the Defendant argues the trial court failed to make his pre-sentence report available and erred in sentencing him as a Range III offender. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/taylorm_070908.pdf


GARY WALLACE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gary Wallace, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Appellant, Gary Wallace, appeals from the order of the Madison County Circuit Court dismissing the motion to vacate sentence and judgment he filed more than twenty-two years after his conviction. In the motion, he asserts that his sentence should be vacated because it was improperly enhanced in violation of the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296 (2004). Following our review, we conclude that Blakely cannot be retroactively applied and affirm the circuit court's order of dismissal.

http://www.tba2.org/tba_files/TCCA/2008/wallaceg_070908.pdf


TODAY'S NEWS

Legal News
Upcoming
TBA Member Services

Legal News
House panel threatens AG with contempt
The chair of the House of Representatives Oversight and Government Reform Committee has threatened Attorney General Michael B. Mukasey with contempt of Congress for failing to comply with a subpoena, which demands FBI reports of an interview with Vice President Dick Cheney about the disclosure of a CIA agent's covert status. The committee is set to vote on the contempt resolution on July 16.
The Associate Press has the story
Judge calls Guantanamo 'top priority'
Judge Thomas F. Hogan, who is coordinating most of the estimated 200 Guantanamo Bay detainees' cases, has ordered the Justice Department to "set aside every other case that's pending in the division and address this case first." The Justice Department has objected to civilian judges hearing these cases and is asking for an eight-week delay before turning over its files to the court.
The News-Sentinel reports
Revisions may be coming to McNulty memo
Guidelines for handling attorney-client privilege in corporate fraud investigations may be in for more changes, Attorney General Michael Mukasey told members of the Senate Judiciary Committee today. The Blog of the LegalTimes reports on possible revisions to the McNulty memo.
Read more in the Blog of the LegalTimes
House prosecutor to seek DNA test of evidence
Prosecutor Paul Phillips, who is re-trying Paul House in the 1985 killing of Carolyn Muncey, told the Associated Press today he will ask a judge to allow the FBI to test a hair found in the victim's hand, and will drop the charges if House's DNA is not found.
Read more in the Tennessean
Report shows increase in law firm mergers
The second quarter of this year saw the pace of law firm mergers rise sharply in the U.S., according to a new report from Altman Weil Inc. The legal consultant company reported 26 new law firm mergers and acquisitions in April, May and June, compared to 18 during the first quarter of the year, and does not think the pace will slow any time soon.
Read about it in the Memphis Business Journal
Debate waged over night school LSAT scores
The U.S. News & World Report editor who manages the magazine's annual law school rankings list proposed this week that entrance exam data for all students, full and part-time, be counted in the magazine's rankings. The proposal is intended to address concerns that schools move students with lower LSAT scores into part-time programs in order to improve their rankings. A former educator disagrees and argues such a move would spook law schools into terminating part-time and evening programs.
The ABA Journal looks at the issue
Bell recovering at home after motorcycle crash
Third Judicial District Attorney General Berkeley Bell is recovering at home now from a motorcycle crash in Birmingham last month. There were no reports of when he might return to work. WBIR News Channel 10 reported the development.

'Hot Attorney' site taken down
A "Hot Attorney" website that featured photos and biographical information about attractive young women attorneys at major law firms has been taken down after it caught the attention of the media. The site, marketed as a kind of 'hottie hall of fame,' gathered information from law firm websites.
Law.com has the story
Upcoming
Hoffa documentary makes public debut
The first public screening of "Balancing the Scales: the Chattanooga Trial of U.S. v. James R. Hoffa" will take place Thursday at 6:30 p.m. at Loose Cannon Studios, 1800 Rossville Avenue in Chattanooga. The event begins with a reception at 6 p.m. and will conclude with filmmaker Barry Cammon addressing the audience after the screening. The Chattanooga Chapter of the Federal Bar Association commissioned the film to show at the 2008 Judicial Conference of the 6th Circuit, held in Chattanooga in May. The event is free but seating is limited to the first 100 people, reports the Chattanoogan.com.

TBA Member Services
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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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