Wednesday, August 13, 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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ROY S. LAWRENCE, ET AL. v. HCA HEALTH SERVICES OF TENNESSEE, INC. d/b/a SUMMIT MEDICAL CENTER, ET AL.

Court: TCA

Attorneys:

B. Keith Williams, Jason G. Denton and James R. Stocks, Lebanon, Tennessee, for the appellants, Roy S. Lawrence and Fleeta Lawrence.

Bryan Essary and Brian P. Manookian, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc., d/b/a Summit Medical Center.

William B. Jakes, III, and Hugh C. Gracey, III, Nashville, Tennessee, for the appellee, Holladay Property Services, Inc.

Judge: CLEMENT

Plaintiffs, husband and wife, filed this premises liability action for personal injuries sustained by the elderly husband who was injured when automatic doors at the entrance to a medical office building struck him causing him to fall. In the premises liability action that followed, Plaintiffs alleged that the major tenant of the office building and the property management company failed to exercise the required due care in the maintenance, inspection, and repair of the doors and/or to properly warn Plaintiffs of the dangers existing at the office building. The trial court summarily dismissed the claims against both defendants. We have determined the major tenant owed no duty to Plaintiffs and thus was entitled to summary judgment. We have also determined that the property management company did not create the alleged dangerous or defective condition, and it did not have actual or constructive knowledge that a dangerous or defective condition existed. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2008/lawrencer_081308.pdf
BART LAY ET AL. v. HOWARD HOLMES ET AL.

Court: TCA

Attorneys:

Frank Buck, Smithville, Tennessee, for the appellants, Bart Lay and wife, Lisa Lay.

J. Hilton Conger, Smithville, Tennessee, for the appellees, Howard R. Holmes and wife, Anna R. Markham Holmes.

Judge: BENNETT

In this boundary dispute, the trial court had to choose between conflicting surveys. After a trial, the court determined that the survey for the defendants was correct due to the failure of the plaintiffs' surveyor to locate a landmark beech tree. We affirm.

http://www.tba2.org/tba_files/TCA/2008/layb_081308.pdf
JOHN M. MURRAY, JR. v. TENNESSEE FARMERS ASSURANCE COMPANY

Court: TCA

Attorneys:

Henry S. Queener, Nashville, Tennessee, for the appellant, John M. Murray, Jr.

Brenda M. Dowdle, Nashville, Tennessee, for the appellee, Tennessee Farmers Assurance Company.

Judge: BENNETT

Insured filed suit to enforce a claim settlement allegedly created by an exchange of letters between the insurance company and insured's attorney. The trial court granted summary judgment for the insurance company, holding that there was no meeting of the minds and therefore no contract of settlement. Insured appeals. We affirm the circuit court and find this appeal to be frivolous.

http://www.tba2.org/tba_files/TCA/2008/murrayj_081308.pdf
STATE OF TENNESSEE v. JUNIOR DALE ANDERSON

Court: TCCA

Attorneys:

Adam W. Parrish, Lebanon, Tennessee, for the appellant, Junior Dale Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason L. Lawson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Junior Dale Anderson, the defendant, was convicted of attempted voluntary manslaughter (Class D felony), two counts of aggravated assault (Class C felony), reckless endangerment (Class A misdemeanor), and domestic assault (Class A misdemeanor). The defendant received an effective sentence of sixteen years. On appeal, the defendant alleges: (1) the evidence was insufficient to support the conviction for attempted voluntary manslaughter; (2) the trial court erred in excluding from evidence the defendant's recorded call to 9-1-1; (3) the trial court erred in certain jury instructions during trial; (4) the trial court erred in its failure to merge the offenses of attempted voluntary manslaughter and aggravated assault; and (5) the trial court erred in imposing an excessive sentence. After review, we conclude that the exclusion from evidence of the defendant's call to 9-1- 1 was reversible error and remand the cause for a new trial.

http://www.tba2.org/tba_files/TCCA/2008/andersonj_081308.pdf
STATE OF TENNESSEE v. DEONTA BASKIN

Court: TCCA

Attorneys:

Robert Wilson Jones, Shelby County Public Defender; Tony N. Brayton, Assistant Public Defender (on appeal); and Michael Johnson, Assistant Public Defender (at trial), for the appellant, Deonta Baskin.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; and Pamela Fleming, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Deonta Baskin, was convicted by a Shelby County jury of attempted first degree murder, a Class A felony, and aggravated assault, a Class C felony, for shooting a man in the hip following an altercation. The trial court merged the aggravated assault conviction into the attempted murder conviction and sentenced the defendant as a Range I offender to twenty-four years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence in support of his attempted murder conviction, arguing that the State failed to present sufficient proof that the shooting was premeditated. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/baskind_081308.pdf
DONNELL V. BOOKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Nathan Scott Moore, Nashville, Tennessee, for the appellant, Donnell V. Booker.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Robert ElliGeneral, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Donnell V. Booker, was denied post-conviction relief by the Criminal Court for Davidson County from his 2005 convictions for attempted second degree murder and two counts of aggravated robbery, Class B felonies, and resulting effective sentence of twenty years. He appeals and contends that he received the ineffective assistance of trial counsel and that his guilty pleas were not knowingly and voluntarily entered. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/bookerd_081308.pdf
STATE OF TENNESSEE v. DAVID KYLE GILLEY

Court: TCCA

Attorneys:

James O. Martin, III, and Richard McGee, Nashville, Tennessee (on appeal); and Roger May and Ed Ryan, Nashville, Tennessee (at trial), for the appellant, David Kyle Gilley.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William Whitesell, District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, David Kyle Gilley, appeals from his Rutherford County Criminal Court conviction of premeditated first degree murder. On appeal, the defendant claims (1) that he experienced an unreasonable pre-indictment delay, (2) that the trial court erred in admitting testimony pursuant to Tennessee Rule of Evidence 404(b), (3) that the conviction is unsupported by sufficient evidence, (4) the trial court erred in allowing hearsay testimony from two witnesses, (5) that the trial court erred in denying his motion for a mistrial, (6) that the trial court erred in allowing the State to question a defense witness regarding a letter the witness had written that contained a disparaging remark about a prosecutor in this case, and (7) that the trial court erred by denying a defense request for a jury instruction regarding the State's destruction of evidence. Following our review, in which we address, among the other issues, the standard of review of hearsay rulings, we affirm the conviction.

http://www.tba2.org/tba_files/TCCA/2008/gilleyd_081308.pdf
BARRY K. HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Barry K. Harris, pro se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; for the Appellee, State of Tennessee.

Judge: WEDEMEYER

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court's denial of his "Motion for Vacate [sic] of Sentence, Resentencing by Jury." Upon a review of the record in this case, we find that the Petitioner failed to satisfy the applicable statutory timing requirements, and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/harrisb_081308.pdf
JIMMY DALE HOGAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Jimmy Dale Hogan.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Jimmy Dale Hogan, appealed the denial of post-conviction relief from this court to our supreme court. After review, our supreme court remanded the appeal to this court for reconsideration, in light of Wiley v. State, 183 S.W.3d 317 (Tenn. 2006). After careful review, we conclude that trial counsel was ineffective for failing to seek a jury instruction on second degree murder as a lesser included offense of felony murder; therefore, we reverse the judgment of the post- conviction court and remand this matter to the trial court for a new trial on the petitioner's conviction for felony murder.

http://www.tba2.org/tba_files/TCCA/2008/hoganj_081308.pdf
RICKY THOMAS HUGHES v. ROLAND OLSON, WARDEN

Court: TCCA

Attorneys:

Ricky Thomas Hughes, pro se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General; Rachel West Harmon, Assistant Attorney General, for the appellee; State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Ricky Thomas Hughes, appeals the dismissal of his habeas corpus petition. On appeal, he alleges that his sentence is void because the trial court failed to comply with the Sixth Amendment to the United States Constitution and cases interpreting that provision. After a thorough review of the issues and applicable law, we affirm the judgment of the habeas court pursuant to Rule 20 of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2008/hughesr_081308.pdf
THOMAS JETER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

L. Samuel Patterson, Jr., Columbia Tennessee, for the appellant, Thomas Jeter.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Thomas Jeter, pled guilty to two multi-count indictments for the possession, sale and delivery of drugs, and conspiracy to sell and deliver drugs. The petitioner filed a post-conviction petition for relief alleging the ineffective assistance of counsel. Specifically, the petitioner argued that his trial counsel had a conflict of interest which required that his convictions be set aside. After an evidentiary hearing, the post-conviction court denied the petitioner relief. On appeal, the petitioner argues that counsel's conflict of interest requires reversal of his convictions. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/jetert_081308.pdf
STATE OF TENNESSEE v. SAMUEL McALISTER

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public Defender, attorneys for appellant, Samuel McAlister.

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

Judge: THOMAS

The defendant, Samuel McAlister, pled guilty in case number 05-228 to two counts of sale or delivery of cocaine, Class C felonies, and one count of sale or delivery of more than .5 gram of cocaine, a Class B felony. In case number 05-493, the defendant pled guilty to an additional count of sale or delivery of more than .5 gram of cocaine, one count of possession of drug paraphernalia, a Class A misdemeanor, and one count of possession of a weapon with intent to employ it in an offense, a Class E felony. In exchange for his guilty pleas, the defendant received an effective sentence of eight years to be served under community corrections supervision. The trial court subsequently revoked the community corrections sentences and resentenced the defendant to an effective sentence of twelve years in the custody of the Department of Correction. In this appeal as of right, the defendant contends that the Madison County Circuit Court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/mcalisters_081308.pdf
Incompatible Offices: County Commissioner and City Mayor

TN Attorney General Opinions

Date: 2008-08-13

Opinion Number: 08-129

http://www.tba2.org/tba_files/AG/2008/ag_08_129.pdf
Validity of Political Party Nomination

TN Attorney General Opinions

Date: 2008-08-13

Opinion Number: 08-130

http://www.tba2.org/tba_files/AG/2008/ag_08_130.pdf
TODAY'S NEWS
Legal News
Election 2008
Politics
Your Practice
Disciplinary Actions
TBA Member Services
Legal News
Revised child support guidelines and worksheets now in effect
New child support guidelines must be applied to every judicial or administrative action to establish, modify, or enforce child support that is taken on or after Aug. 12, 2008, regardless of when the action was initiated or filed, according to the Administrative Office of the Courts. In a memo distributed today, AOC officials said that the Department of Human Services had advised them of the change.
Access the amended Guidelines and new Child Support Worksheet
Tell us about your Blog
A new resource for Tennessee Bar Association members will soon provide links to popular law related Blogs created by Tennessee lawyers and others. If you publish a Blog or would like to recommend a Blog that you find useful in your practice, let us know about it.
Send your suggestion to TBA Today
Deal reached on dragster's felony charges; no jail time
Drag car racer Troy Critchley, charged with killing six spectators and injuring 22 others at last year's show in Selmer, has agreed to plead guilty to lesser charges as part of a deal that means he will serve no jail time unless he breaks his probation. At a hearing tomorrow, Critchley will plead guilty to 28 counts of reckless simple assault and will spend 18 months on probation. He will not be fined or have to pay restitution, only court costs. Many civil suits are still pending.
The Jackson Sun has the full story
Lawsuit dismissed: Officials will not be sworn in early
Chancellor Daryl R. Fansler today dismissed a lawsuit by Herbert Moncier, who was trying to get Knox County's newly elected officials sworn in early. Basing his argument on case law, Moncier said all 13 newly elected county officials should take office as soon as possible after they are certified by the election commission, about 10 days after the election. The judge called the lawsuit absurd, and the lawyer defending the county said the lawsuit was silly, according to the Knoxville News Sentinel.
TLAP newsletter now available
The first issue of the Tennessee Lawyers Assistance Program newsletter is now available. The newsletter will be a quarterly publication.
Download your copy here (PDF format)
Election 2008
Congressman Davis hires law firm to investigate election
Congressman David Davis has retained a national law firm that specializes in looking into "election irregularities" to pursue accusations of improper influences in last week's 1st District Republican primary. Challenger Phil Roe won by 460 votes, which is less than 1 percent of the total votes cast. Davis has not conceded the election.
See the Johnson City Press for more
Legal remedy crucial for Shelby County's rejected charter ordinance
When Shelby County voters rejected a charter ordinance on the ballot last Thursday, critical questions about the legality of the county's charter were left unresolved. "This is a very serious situation ... that could quite frankly bring to a halt the actual function of county government," County Mayor A C Wharton Jr. said. The board of commissioners have begun the process of putting a new charter amendment to voters for Nov. 4.
Get more details from The Memphis Daily News
Politics
Wamp likely to run for Tennessee governor
U.S. Rep. Zach Wamp, R-Tenn., said today he expects to run for governor of Tennessee in 2010 if former Senate Majority Leader Bill Frist does not enter the race. Wamp said he will wait to hear confirmation of Senator Frist's plans before he announces his decision by next February.
Chattanooga Times Free Press has this story
Your Practice
Bass Berry Sims named one of 50 best law firms for women
Working Mother magazine named Bass, Berry & Sims as one of the 50 best law firms for women in their August/September issue. The firm, the only one from the Southeast to make the list, was selected based on workforce profile, family-friendly benefits and policies, flexibility, leadership, compensation, advancement and retention of women.
See the Working Mother article
Disciplinary Actions
Memphis lawyer temporarily suspended
Tony N. Brayton of Memphis was temporarily suspended from the practice of law on Aug. 6 for failing to respond to the Board of Professional Responsibility for a complaint of misconduct. Brayton must cease representing existing clients effective Sept. 5.
Read the BPR news release
TBA Member Services
TBA, Bank of America team up for no-fee credit card
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.
Click here to learn more

 
 
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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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