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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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IN RE: L.M.W. & L.A.W.

Court: TCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, L.I.

Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua D. Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Judge: CLEMENT

Father appeals the termination of his parental rights to his two biological children, L.M.W. and L.A.W. The trial court terminated his parental rights on the grounds of abandonment by failure to visit or support, substantial noncompliance with the permanency plan, and persistence of conditions. The trial court also determined that termination of parental rights was in the children's best interest. We affirm the trial court's ruling on the grounds of abandonment by failure to support, substantial noncompliance with the permanency plan, and a determination that termination of his parental rights is in the children's best interests.

http://www.tba2.org/tba_files/TCA/2008/lmw_090408.pdf


WILMA WILSON, ET AL. v. HARRY OURS, ET AL.

Court: TCA

Attorneys:

Mary Byrd Ferrara and J. Russell Farrar, Lebanon, Tennessee, for the appellant, City of Lebanon.

Michael R. Jennings, Lebanon, Tennessee, for the appellees, Wilma Wilson, Dianne Martin, John B. Wilson, Jr., individually and as natural parent of Joseph Lee Wilson, age 12, and Jacob Daniel Wilson, age 10, Nancy J. Wilson, individually and as parent of Joseph Lee Wilson, age 12, and Jacob Daniel Wilson, age 10, Joseph Lee Wilson and Jacob Daniel Wilson.

Judge: CLEMENT

This action arises from the owner of a cemetery mistakenly selling burial lots to members of the plaintiffs' family that belonged to others, the resulting burial of two members of the plaintiffs' family in plots that belonged to others, and the resulting disinterment and re-interment of one of the two decedents. The plaintiffs, six surviving family members of the two decedents, filed this action against the owner of the cemetery, the City of Lebanon, and several of its employees in which they asserted claims for trespass, negligence, nuisance, and outrageous conduct. Prior to trial, the trial court dismissed all but two claims. The only claims that went to trial were a claim for general negligence and a claim for nuisance. Following a bench trial, the trial court dismissed the nuisance claims of all plaintiffs and dismissed the claims by three of the six plaintiffs for negligence. The trial court awarded three of the plaintiffs damages totaling $45,000 for the negligent burial of the decedents. The plaintiffs and the City of Lebanon appeal. We have determined that the trial court did not err by dismissing the plaintiffs' claims for nuisance. As for the plaintiffs' claims of negligence, we have determined that the trial court erred by awarding any of the plaintiffs damages. This is because the plaintiffs' claims for infliction of emotional distress were dismissed prior to trial, and the dismissal of those claims was not appealed. Further, the plaintiffs presented no proof of physical or personal injuries associated with the emotional damages alleged and they presented no proof of property damage. The only proof of damages presented by the plaintiffs pertained to emotional suffering related to the news that their loved ones would be disinterred and re-interred. Accordingly, we reverse the trial court's award of damages to three of the plaintiffs. We affirm the trial court in all other respects.

http://www.tba2.org/tba_files/TCA/2008/wilsonw_090408.pdf


STATE OF TENNESSEE v. MARILYN DENISE AVINGER

Court: TCCA

Attorneys:

Joy S. Kimbrough, (on appeal and at trial) and Ron Munkeboe, (at trial) Nashville, Tennessee, for the appellant, Marilyn Denise Avinger.

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

Judge: MCLIN

The defendant, Marilyn Denise Avinger, was convicted of one count of attempted second degree murder. She was sentenced to nine years, with all but thirty days suspended. The defendant argues on appeal that the trial court erred by admitting prejudicial photographic evidence, and she also argues that the evidence was not sufficient to support her conviction. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/avingerm_090408.pdf


WILLIE JOE FRAZIER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Willie Joe Frazier, Clifton, Tennessee, Pro Se.

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

Judge: WOODALL

Petitioner, Willie Joe Frazier, appeals the trial court's summary dismissal of his petition for writ of habeas corpus. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/frazierw_090408.pdf


STATE OF TENNESSEE v. KELLYE M. HILTON

Court: TCCA

Attorneys:

Joseph Harrison, Assistant District Public Defender, for the appellant, Kellye M. Hilton.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; and Julie R. Canter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Kellye M. Hilton, pleaded guilty in the Sullivan County Circuit Court to one count of forgery, a Class E felony, see T.C.A. section 39-14-114, and one count of identity theft, a Class D felony, see id. section 39-14-150. Pursuant to a plea agreement between the parties, the trial court imposed an effective sentence of two years to be served as 150 days' incarceration followed by probation. In this appeal, the defendant contends that the trial court should have granted a sentence of full probation. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2008/hiltonk_090408.pdf


MICHAEL DERRICK HUSKINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kenneth Miller, Cleveland, Tennessee, for the appellant, Michael Derrick Huskins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; and Brian Chapuran, District Attorney General pro tem, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Michael Derrick Huskins, appeals from the denial of his petition for post-conviction relief wherein he challenged his 2006 Polk County Criminal Court conviction of felony murder. In this appeal, the petitioner contends that his guilty plea was involuntary and was the result of the ineffective assistance of his trial counsel. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/huskinsm_090408.pdf


STATE OF TENNESSEE v. CHAD LEWIS MONETTE

Court: TCCA

Attorneys:

Jim Sowell, Dickson, Tennessee, for the appellant, Chad Lewis Monette.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Following a bench trial in the Houston County Circuit Court, the defendant, Chad Lewis Monette, was convicted of one count of aggravated sexual battery, a Class B felony, as a lesser-included offense of rape of a child. He was subsequently sentenced to eight years in the Department of Correction. On appeal, the defendant contends that his conviction should be reversed because aggravated sexual battery is not a lesser-included offense of rape of a child. He further challenges the admission and consideration of certain testimony and exhibits introduced as evidence at trial. Following review of the record, we conclude that aggravated sexual battery is a lesser-included offense of rape of a child; thus, no error occurred in the conviction. With regard to the evidentiary issues, we conclude that the defendant has waived consideration of the issues by his failure to contemporaneously object at trial, his failure to raise the issues in his motion for new trial, or his failure to cite to legal authority on appeal. Because the alleged evidentiary issues do not rise to the level of plain error, we decline review. Accordingly, the judgment of conviction is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/monettec_090408.pdf


TODAY'S NEWS

Legal News
TBA Member Services
Resources

Legal News
Justices speaking out in favor of Tennessee Plan
Tennessee Chief Justice Janice Holder is speaking publicly about the high court's unanimous support of the Tennessee Plan for selecting appellate court judges. "This court is not in favor of partisan election in which judges are obligated to raise millions of dollars for campaigns," Holder said in media interviews this week. The Tennessee Plan's statute will be repealed July 1 next year if lawmakers do not renew or modify it during the 2009 session. See the Commercial Appeal for details.

In Oak Ridge, former Tennessee Supreme Court Justice Penny White gave a talk earlier this week on the same topic called "The State of Judicial Reform in Tennessee." White said the plan is a "model for the country."
Read the Oak Ridger for more
State Supreme Court to hear Greeneville law firm's complaint against judge
The Tennessee Supreme Court is conducting a hearing today in Knoxville involving the Greenville law firm of Rogers, Laughlin, Nunnally, Hood & Crum PC and Greene County Circuit Judge John K. Wilson. The law firm alleges that it has had a "difficult relationship" with Judge Wilson that dates back to 1982. The firm wants the judge to be disqualified from hearing any cases that involve the firm.
See the full story in the Greeneville Sun
ETLAW honors new chief justice
East Tennessee Lawyers' Association for Women today held its annual luncheon with the Tennessee Supreme Court and honored new Chief Justice Janice Holder. ETLAW President, Judge Sharon Lee, announced that ETLAW is now some 80 members strong, and the monthly luncheons on the third Wednesday continue to be well attended. Also at the meeting, Wanda Sobieski was presented with ETLAW's first ever Spirit of Justice Award.

Long-time disciplinary counsel retires, vacancy available
William W. (Tripp) Hunt III retired last month from his position as disciplinary counsel with the Tennessee Board of Professional Responsibility, which he served for more than 26 years. Prior to joining the BPR, Tripp worked for the Attorney General. Those interested in applying for the disciplinary counsel vacancy can download the job description here.
Or learn more on the TBA's Joblink web site
State bankruptcy filings highest again
Tennessee continued its streak of having the highest per-capita rate of bankruptcy filings in the United States during fiscal year 2008. Numbers released last week showed 6.92 filings per 1,000 people. The total number of bankruptcies rose to 42,893 -- an increase of 18.6 percent compared with 2007.
See WBIR News Knoxville for details
National pro bono celebration planned by ABA
The ABA Standing Committee on Pro Bono and Public Service has announced plans for the first National Pro Bono Celebration to be held Oct. 25-31. The week long event is designed to celebrate the difference lawyers make in communities, help recruit and train more pro bono volunteers, and acknowledge the many partnerships that bolster private bar pro bono efforts.
Learn more about this new endeavor
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
Resources
Find Blawgs and more at TBA's Information Central
TBA members can now turn to the new Information Central web page to find the top news of the day along with a directory of law-related blogs from Tennessee lawyers and other reliable sources. In addition, you'll find links to the Tennessee Bar Journal, TBA-produced webcasts, free online legal research through Fastcase and more.
Go there now

 
 
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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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