TBA Today

Wednesday, October 01, 2008

Search our Database for Opinions and News Items

Swearing-in ceremony highlight of TBA Academy

A select group of Tennessee attorneys will soon experience the honor of being admitted to practice before the U.S. Supreme Court in a private swearing-in ceremony at the 25th Annual TBA Academy. This year's Academy is scheduled for Dec. 14-15. Join TBA President Buck Lewis and other leaders in the Tennessee legal community in this exciting program.

Register or find out more now

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
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
06 - 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.

CARL ANDERSON, ED HOWELL ANDERSON, AND GARY ANDERSON v. U.S.A. TRUCK, INC., AN ARKANSAS CORPORATION, AND LONZIE E. NEAL

Court: TCA

Attorneys:

Howard M. Romaine, Murfreesboro, Tennessee, for the appellant, Carl Anderson.

D. Russell Thomas and Herbert M. Schaltegger, Murfreesboro, Tennessee, for the appellant, Gary Anderson.

Nelson Layne, Tracy City, Tennessee, and of counsel on brief, Howard Romaine, Murfreesboro, Tennessee, for the appellant, Ed Howell Anderson.

Carl Wyatt and James F. Horner, Memphis, Tennessee, for the appellees, U.S.A. Truck, Inc., and Lonzie E. Neal.

Judge: KIRBY

This is a vehicular accident case. The three plaintiffs, a father and two grown sons, were riding in a truck pulling a trailer. An 18-wheeler driven by the individual defendant rear-ended the plaintiffs. In the days after the accident, all three plaintiffs sought medical treatment for back and neck pain. They filed this lawsuit against the defendants for injuries sustained in the accident. In the jury trial, after the close of the plaintiffs' proof, the trial court directed a verdict in favor of the defendants on the issue of punitive damages. At the conclusion of the six-day trial, the jury awarded two of the plaintiffs $10,000 each in damages and awarded the other plaintiff $200,000. Fault for the accident was apportioned 70 percent to the defendant and 30 percent to the driver of the plaintiffs' truck, so the plaintiffs' awards were reduced by 30 percent. The trial court denied the plaintiffs' motion to for additur or for a new trial. The plaintiffs now appeal, claiming that the issue of punitive damages should have been presented to the jury, that the amount of the jury's awards were de minimus and outside the realm of reasonableness, and that there was no material evidence to support the jury's verdict. We affirm, finding inter alia that the trial court did not err in directing a verdict on the issue of punitive damages, and that material evidence supported the jury's verdict.

http://www.tba2.org/tba_files/TCA/2008/andersonc_100108.pdf

IN RE C.M.C.
MICHELLE MARIE CHAFFIN v. CHERYL LEATHERS ET AL.

Court: TCA

Attorneys:

Mary B. Langford, Nashville, Tennessee, for the appellant, Michelle Marie Chaffin.

James C. Bradshaw III, Nashville, Tennessee, for the appellees, Cheryl Leathers and Roy Leathers.

Linda Morgan Anderson, Guardian Ad Litem.

Judge: BENNETT

Mother of minor child appeals a juvenile court order rejecting her challenge to the validity of a 2004 order awarding custody of the child to maternal grandparents. Mother argues that the 2004 order is void because she did not receive notice of the proceedings and the order does not contain necessary findings. Mother further argues that the juvenile court erred in failing to give her a full hearing. We have determined that the appealed order arose out of dependency and neglect proceedings and, therefore, must be appealed to the circuit court.

http://www.tba2.org/tba_files/TCA/2008/chaffinm_100108.pdf

C.S. v. THE DIOCESE OF NASHVILLE

Court: TCA

Attorneys:

Dan Channing Stanley, Knoxville, Tennessee, for the appellant, C.S.

L. Gino Marchetti, Jr., Thomas F. Mink, II, for the appellee, The Diocese of Nashville.

Judge: COTTRELL

This case arose from the sexual abuse of a minor by a Catholic priest. The plaintiff, the victim, claimed the defendant, the priest's employer, knew of and concealed the priest's propensity to commit sex crimes against adolescent boys. Approximately thirty (30) years after the abuse, the plaintiff filed a complaint alleging that such actions constituted outrageous conduct and negligence by the defendant leading to the plaintiff's abuse. The defendant moved for dismissal of the case for failure to state a claim upon which relief can be granted because the statute of limitations bars such actions brought more than one year after the minor reaches the age of majority. The plaintiff argued the defendant's fraudulent concealment of plaintiff's cause of action tolled the statute of limitations. The trial court granted the defendant's motion to dismiss because the plaintiff had sufficient knowledge to discover his cause of action against the defendant before the statute of limitations expired. We affirm.

http://www.tba2.org/tba_files/TCA/2008/cs_100108.pdf

JAMES R. GULLEY v. TENNESSEE DEPARTMENT OF CORRECTIONS

Court: TCA

Attorneys:

James R. Gulley, Only, TN, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Kellen A. Baker, Assistant Attorney General, Nashville, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the chancery court properly granted Appellee's Motion for Summary Judgment. The chancery court granted Appellee's Motion for Summary Judgment finding that Appellee did not alter the Judgment of the trial court, when it imposed a consecutive sentence in Hamblen County case 03CR318, as the sentence in case 03CR318 was specifically ordered to be served consecutively to the sentence in Jefferson County case 7087. On appeal, Appellant contends that Appellee altered the trial court's Judgment, as the Judgment orders the sentence in case 03CR318 to be served concurrently with the sentences in Hamblen County cases 03CR231, 03CR319, and 04CR068. Appellant claims Appellee's imposition of a consecutive sentence constituted an unauthorized alteration which violated Appellant's state and federal guarantees against double jeopardy. We affirm.

http://www.tba2.org/tba_files/TCA/2008/gulleyj_100108.pdf

RICHARD HUNTER, ET AL. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
CORRECTION

Court: TCA

Attorneys:

Richard Hunter and Roxanne Hunter, Franklin, Tennessee, pro se.

Christian M. Garstin, Nashville, Tennessee, attorney for appellee, Nationwide Insurance Company.

Judge: DINKINS

Appellants, Richard and Roxanne Hunter, filed a breach of contract action against Nationwide Mutual Fire Insurance Company, Appellee, in Circuit Court for Williamson County seeking compensation under their insurance policy for damage allegedly caused by hail. Following a trial, the jury returned a verdict in favor of Nationwide. Finding material evidence in support of the jury's verdict, we affirm.

http://www.tba2.org/tba_files/TCA/2008/hunterr_Corr_100108.pdf

TIM O'NEILL v. JACK PARKS

Court: TCA

Attorneys:

Benjamin Barton, Knoxville, Tennessee, for the appellant, Jack Parks.

Francis L. Lloyd, Jr., Knoxville, Tennessee, for the appellee, Tim O'Neill.

Judge: SUSANO

This is an appeal of the trial court's judgment dismissing the appeal of Jack Parks ("Tenant") from a general sessions court judgment of eviction. At the hearing in the trial court, Tim O'Neill ("Landlord") failed to appear. Tenant represented to the court that he had vacated the premises, which were then in the possession of the Landlord; as a consequence, the trial court dismissed Tenant's appeal and taxed him with the costs. Tenant now appeals to this court raising the sole issue of whether the trial court abused its discretion in taxing the costs against him. The applicable statute, Tenn. Code Ann. section 20-12-111 (1994), governs the taxing of costs of appeals from general sessions court. The trial court's decision is consistent with that statute. We find no abuse of discretion. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2008/oneillt_100108.pdf

LEORY WILLIAMS v. COLUMBIA HOUSING AUTHORITY

Court: TCA

Attorneys:

Leroy Williams, Murfreesboro, pro se.

Wesley Mack Bryant, Columbia, TN, for Appellee.

Judge: HIGHERS

This appeal involves summary judgment on an employee's common law and statutory retaliatory discharge claims. The trial court granted summary judgment in favor of the employer, finding that the employee had not established a prima facie case for either claim. The employee appeals, and we affirm.

http://www.tba2.org/tba_files/TCA/2008/williamsl_100108.pdf

STATE OF TENNESSEE v. ERIC LORNAIL ABELL

Court: TCCA

Attorneys:

Gerald L. Melton, District Public Defender, and Jeffrey S. Burton, Assistant Public Defender, for the appellant, Eric Lornail Abell.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Eric Lornail Abell, appeals from his conviction by a jury in the Rutherford County Circuit Court for driving on a revoked license, a Class B misdemeanor, for which he was sentenced to six months to be served at fifty percent and consecutively to previous sentences. He contends that the evidence is insufficient to support his conviction and that he is entitled to "probation, concurrent sentencing, or other alternative sentencing." We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/abelle_100108.pdf

STATE OF TENNESSEE v. HOWARD W. BURNETT

Court: TCCA

Attorneys:

Robert R. Kurtz, Knoxville, Tennessee, for the appellant, Howard W. Burnett.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Howard W. Burnett, was convicted by a Knox County jury of one count of first degree murder. He was sentenced to life imprisonment. In this direct appeal, the Defendant makes the following claims: (1) the evidence at trial was insufficient to show premeditation; (2) the trial court erred by declining to admit into evidence the Defendant's rights waiver and certain post-arrest statements he made to police; and (3) the State committed prosecutorial misconduct by misstating the evidence and commenting on the Defendant's decision not to testify at trial. We conclude that these arguments lack merit and accordingly affirm.

http://www.tba2.org/tba_files/TCCA/2008/burnetth_100108.pdf

ANTONIO L. MCMURRY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Antonio L. McMurry, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Linda Walls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Antonio L. McMurry, appeals from the order of the Wilson County Criminal Court summarily dismissing his petition for post-conviction relief. He argues that the post-conviction court erred in its determination that the petition did not state a colorable claim. Following our review, we reverse the post-conviction court's order of summary dismissal. We remand for further proceedings.

http://www.tba2.org/tba_files/TCCA/2008/mcmurrya_100108.pdf

STATE OF TENNESSEE v. HOLLIS MERIWEATHER

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender; and Gregory D. Smith, Contract Appellate Defender, Clarksville, Tennessee, for the appellant, Hollis Meriweather.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; John W. Carney, District Attorney General; and Chris Clark, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Hollis Meriweather, was convicted of two counts of the sale of cocaine in violation1 of Tennessee Code Annotated Section 39-17-417. The trial court denied his motion for a new trial. In this direct appeal, he makes the following claims: (1) that an impermissible variance existed between the crime charged in the indictment and the proof presented at trial; and (2) that the evidence introduced at trial was insufficient to convict him. We conclude that the Defendant's arguments lack merit. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/meriweatherh_100108.pdf

STATE OF TENNESSEE v. FREDRICK MILAN

Court: TCCA

Attorneys:

Robert Brooks (on appeal) and Samuel Perkins (at trial), Memphis, Tennessee, for the appellant, Fredrick Milan.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles Bell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, Fredrick Milan, of first degree premeditated murder and aggravated assault, and the trial court sentenced him to consecutive sentences of life and five years, respectively. On appeal, the appellant contends that (1) the trial court erred by consolidating the offenses; (2) the trial court improperly admitted the victim's prior statement into evidence under the hearsay rule's forfeiture by wrongdoing exception, Tennessee Rule of Evidence 804(b)(6); (3) the trial court erred by admitting into evidence the 9- 1-1 tape of an eyewitness to the victim's murder; (4) the trial court erred by admitting an autopsy photograph into evidence; (5) the evidence is insufficient to support the appellant's murder conviction; and (6) the trial court erred by ordering consecutive sentencing and by assessing a five-hundred-dollar fine for the aggravated assault conviction. The State contends that the evidence is sufficient to support the murder conviction and that the trial court properly ordering consecutive sentencing. However, the State acknowledges that the trial court improperly fined the appellant. Regarding the appellant's remaining issues, the State contends that the appellant waived them because he failed to include them in his motion for new trial and that he is not entitled to plain error relief. We conclude that the evidence is sufficient to support the murder conviction and that consecutive sentencing is proper in this case. Nevertheless, we also conclude that the trial court committed plain error as to the aggravated assault conviction by consolidating the appellant's indictments for trial and that the trial court erred by imposing the appellant's fine. Therefore, the appellant's murder conviction is affirmed but his aggravated assault conviction and resulting fine are reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/milanf_100108.pdf

ALFONZO WATERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Alfonzo Waters.

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

Judge: TIPTON

The petitioner, Alfonzo Waters, was denied post-conviction relief by the Criminal Court for1 Davidson County from his conviction for first degree murder and resulting life sentence. He appeals and contends that he received the ineffective assistance of counsel at trial and on appeal. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/watersa_100108.pdf

TODAY'S NEWS

Supreme Court Report
Legal News
Practice Management
Disciplinary Actions
Upcoming
TBA Member Services

Supreme Court Report

Supreme Court won't rehear child rape case

The U.S. Supreme Court today refused to grant a rehearing of its decision that it is unconstitutional to impose the death penalty for child rape, but modified its original opinions to correct a missed fact. The opinions as originally issued stated that child rape is not a capital offense under the laws of 44 states or the federal government. It has since come to light that military law authorizes the death penalty for such offenses.
Learn more from the ABA Journal

Read a statement from the justices

Court to begin new term

The U.S. Supreme Court begins a new term on Monday and has announced it has added 10 cases to its decision docket for the year; most of which will likely be heard in January or February.

SCOTUSblog has a summary

Legal News

DOJ sues Nashville developer over ADA access

The U.S. Department of Justice filed a lawsuit Tuesday in federal district court against Murphy Development LLC for failing to provide required accessibility features for persons with disabilities at seven Nashville area apartment complexes. The lawsuit seeks a court order requiring the company to modify the facilities. It also seeks monetary damages for victims and a civil penalty to be paid to the government.

Get details in the Nashville Business Journal

Judge refuses to dismiss Knox ouster lawsuit

Senior Judge Jon Kerry Blackwood yesterday rejected a motion to dismiss a lawsuit seeking to oust two Knox County commissioners. The suit, brought by attorney Herbert S. Moncier on behalf of 16 citizens, aims to prove that two county commissioners violated the state Open Meetings Act and later lied about it under oath. The ruling allows the case to go forward.

The News Sentinel reports

Jackson courthouse evacuated, re-opened today

The U.S. District courthouse in Jackson was evacuated today after two suspicious packages were found outside the building this morning. According to authorities, the packages contained "non-hazardous food substance" and "other packaging material." Authorities are not releasing the name of the individual to whom the packages were addressed.