O'Connor entertains Supreme Court Historical Society

Former U.S. Supreme Court Justice Sandra Day O'Connor entertained, informed and inspired a packed house Monday night at the Tennessee Supreme Court Historical Society 3rd Annual Dinner. O'Connor was in town for dual appearances at the dinner and the Tennessee Economic Conference for Women. She recounted tales from the history of the Supreme Court, including many firsts. Perhaps some of the most moving comments were O'Connor's description of her colleague on the Court, Justice Thurgood Marshall, whom she described as an intellectual giant "with the eye of a lawyer who saw the deepest wounds of society and said we should do something about it." The society was led this year by retired Justice Frank Drowota who handed off responsibilities to the new president, installed last night, former Appeals Court Judge Ben Cantrell.
TODAY'S OPINIONS
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STATE OF TENNESSEE V. ROY ANTHONY FERRANTE

Court: TSC

Attorneys:

Steven Oberman, Sara Compher-Rice, and Richard L. Gaines, Knoxville, for the appellant, Roy Anthony Ferrante.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; Steven R. Bebb, District Attorney General; and Michelle McFadyen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: CLARK

We granted permission to appeal to determine whether a criminal defendant's appearance in court is sufficient to commence a prosecution for purposes of tolling the statute of limitations where the purported charging instrument is void ab initio. We hold that a defendant's appearance in court following the issuance of an affidavit of complaint that is void from inception does not toll the running of the statute of limitations. The fatal deficiencies in the affidavit of complaint in this case were not overcome until after the limitations period had expired. Accordingly, the Defendant's motion to dismiss the charge against him in this case must be granted. The judgment of the Court of Criminal Appeals reinstating the charge against the Defendant is reversed, and the charge against the Defendant is dismissed.

http://www.tba2.org/tba_files/TSC/2008/ferranter_102808.pdf


TAMRA MICHELE (TAYLOR) CARLSON v. GLENN RICHARD CARLSON, ET AL.

Court: TCA

Attorneys:

John R. Meldorf, III, Hixon, Tennessee, for the appellant, Glenn Richard Carlson

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Tamra Michele (Taylor) Carlson

Judge: SUSANO

This is a divorce case. Both parties raise issues. Tamra Michele (Taylor) Carlson ("Mother") contends the trial court erred in failing to find that Father was willfully underemployed. In addition, she seeks an award of fees for her attorney's services on this appeal. Glenn Richard Carlson ("Father") argues that the trial court erred in requiring him to pay the bulk of the private school tuition for his children and in failing to describe with precision his tuition obligation. He also says that the court erred in failing to make a determination as to who should pay any federal income tax due on a distribution to the parties by Father's former businesses. We affirm.

http://www.tba2.org/tba_files/TCA/2008/carlsont_102808.pdf


GERRY G. KINSLER v. BERKLINE, LLC

Court: TCA

Attorneys:

Mark S. Stapleton, Rogersville, Tennessee, and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellant, Gerry G. Kinsler.

Kelly A. Campbell, Morristown, Tennessee, for the appellee, Berkline, LLC.

Judge: SUSANO

Gerry G. Kinsler ("Employee") brought suit for retaliatory discharge after being terminated from his employment with Berkline, LLC, ("Employer") three days after he backed out of a workers' compensation settlement. The trial court entered summary judgment for Employer, holding that "timing alone is insufficient to withstand [Employer's] motion for summary judgment . . . ." On appeal, Employee argues that the Supreme Court's holding in Allen v. McPhee, 240 S.W.3d 803 (Tenn. 2007) - that "proof of close temporal proximity alone can establish causation, . . ." - is applicable to the facts of this case. We agree. We also hold that genuine issues of material fact concerning the Employer's explanation for termination preclude summary judgment. Accordingly, we vacate the trial court's judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/kinslerg_102808.pdf


MICHAEL LEE PEARSON v. SANDRA KAY PEARSON

Court: TCA

Attorneys:

Selma Cash Paty, Chattanooga, Tennessee for the Appellant, Michael Lee Pearson.

John R. Morgan, Chattanooga, Tennessee for the Appellee, Sandra Kay Pearson.

Judge: SWINEY

After fifteen years of marriage, Michael Lee Pearson ("Husband") sued Sandra Kay Pearson ("Wife") for divorce. Wife answered the complaint and filed a counter-claim for divorce. After trial, the Trial Court entered an order, inter alia, granting the parties a divorce, entering a Permanent Parenting Plan with regard to the parties' two minor children ("the Children"), and reserving the issue of alimony. After a further hearing, the Trial Court entered an order, inter alia, ordering Husband to pay Wife alimony in solido of $1,500 per month for six years and ordering Husband to pay for COBRA insurance coverage for Wife for eighteen months as alimony in solido. Husband appeals raising issues regarding visitation, child support, division of the marital estate, and alimony. We modify the designation of alimony such that the alimony in solido of $1,500 per month for six years shall be designated as transitional alimony but shall remain at the same amount for the same duration. We affirm the remainder of the Trial Court's judgment.

http://www.tba2.org/tba_files/TCA/2008/pearsonm_102808.pdf


STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. V.N., ET AL.

Court: TCA

Attorneys:

Leslie E. Douthat, Greeneville, Tennessee for the Appellant, V.N.

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

Judge: SWINEY

The State of Tennessee Department of Children's Services ("DCS") filed a Petition to Terminate Parental Rights of V.N. ("Mother"), T.W., and any unknown father to the minor child K.B.N. ("the Child"). T.W. signed a Waiver of Interest and Notice waiving any rights he may have to the Child. After a trial, the Juvenile Court entered an order finding and holding, inter alia, that clear and convincing evidence of grounds existed to terminate Mother's parental rights to the Child under Tenn. Code Ann. sections 36-1-113(g)(1), (g)(2), and (g)(3), and that it was in the best interest of the Child for Mother's parental rights to be terminated. Mother appeals the termination of her parental rights to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2008/vn_102808.pdf


BILLY WALLS DBA B.S. WALLS CONSTRUCTION v. JEFFREY S. CONNER, ET AL.

Court: TCA

Attorneys:

Russell L. Egli, Knoxville, Tennessee, for the appellant, Billy S. Walls dba B.S. Walls Construction

R. Loy Waldrop, Jr., Knoxville, Tennessee, for the appellees, Jeffrey S. Conner and Tresia Conner

Judge: SUSANO

This litigation arises out of the renovation of and addition to a 100-year old house. While suit was pending, the plaintiff, Billy S. Walls dba B.S. Walls Construction ("Contractor") failed to respond to interrogatories with respect to requested information regarding experts. He likewise did not respond to a motion to compel responses to the interrogatories and an order of the court compelling responses. As a consequence of Contractor's inaction, the trial court refused to allow his two expert witnesses to testify. At trial, Contractor objected to the testimony of an expert tendered by the defendants, Jeffrey S. Conner and Tresia Conner ("Homeowners"). The trial court overruled the objection. Contractor argues in this court that the trial court abused its discretion when it refused to allow his experts to testify and when it held that Homeowners' expert was qualified to testify. We affirm.

http://www.tba2.org/tba_files/TCA/2008/wallsb_102808.pdf


STATE OF TENNESSEE v. ANTONIO BRADEN

Court: TCCA

Attorneys:

Deanna Bell Johnson, Brentwood, Tennessee, for the appellant, Antonio Braden.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Kim R. Helper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Antonio Braden, was convicted of one count of attempted second degree murder, a Class B felony. He was sentenced to serve twelve years in the Department of Correction. In this direct appeal, the Defendant contends (1) that the evidence at trial was insufficient to support his conviction; and (2) that the trial court erred in failing to instruct the jury on aggravated assault as a lesser included offense of attempted second degree murder. We conclude that these contentions lack merit, and we accordingly affirm.

http://www.tba2.org/tba_files/TCCA/2008/bradena_102808.pdf


STATE OF TENNESSEE v. CHARLES JAMES FAGAN

Court: TCCA

Attorneys:

Collier Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the appellant, Charles James Fagan.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; John W. Carney, District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Charles James Fagan, appeals from the trial court's order revoking his community corrections sentence and ordering him to serve the balance of his sentence in the Department of Correction. The State filed a motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/faganc_102808.pdf


HOMER ALSON MADDIN, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brett M. Gipson, Nashville, Tennessee, for the appellee, Homer Alson Maddin, III.

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

Judge: WITT

The petitioner, Homer Alson Maddin, III, appeals the Davidson County Criminal Court's dismissal of his 2007 petition for post-conviction relief in which he had challenged his four 2004 jury-imposed convictions of aggravated rape. This court affirmed the convictions on November 1, 2005. See State v. Homer Alson Maddin, III, No. M2004-02298-CCA-R3-CD (Tenn. Crim. App., Nashville, Nov. 1, 2005), perm. app. denied (Tenn. 2006). The petitioner's counseled petition raised various claims of the ineffective assistance of trial and appellate counsel. On appeal, the petitioner claims that his trial counsel was ineffective in neither communicating with the petitioner nor preparing him for trial, failing to explain the potential punishment the petitioner faced, failing to communicate a plea offer from the State, failing to investigate the case, failing to adequately cross-examine witnesses, failing to properly impeach State witnesses, and failing to object to improper prosecutorial argument and to the use of certain evidence. The petitioner also claims that his appellate counsel was ineffective in failing to raise certain issues on appeal. We affirm the order of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/maddinh_102808.pdf


JOHNNY L. MCGOWAN, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Johnny L. McGowan, Jr., Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Johnny L. McGowan, Jr., appeals from the order of the trial court dismissing his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/mcgowanj_102808.pdf


RAYMOND MITCHELL, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Raymond Mitchell, III, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; and Victor S. Johnson, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

A Davidson County Jury convicted Petitioner, Raymond Mitchell, III, of two counts of rape and one count of attempted rape. Petitioner also pled nolo contendere to a separate count of sexual battery. As a result of these convictions, Petitioner received an effective sentence of fifteen years. The trial court indicated that Petitioner was a Range I standard offender on the judgments. Petitioner's direct appeal to this Court was unsuccessful. State v. Raymond Mitchell, III, No. M1996-00008-CCA-R3- CD, 1999 WL 559930 (Tenn. Crim. App., at Nashville, July 30, 1999) He subsequently filed a petition for post-conviction relief which was also unsuccessful. At the conclusion of this Court's opinion on appeal from the denial of post-conviction relief, we ordered that the trial court correct the judgments to reflect that Petitioner is actually a multiple rapist and required to serve 100% of his sentence. Raymond Mitchell v. State, No. M2003-02063-CCA-R3-PC, 2004 WL 2098335 (Tenn. Crim. App., at Nashville, Sept. 17, 2004), perm. app. denied, (Tenn. Feb. 28, 2005). Petitioner next filed a petition for writ of habeas corpus relief based upon the fact that the trial court incorrectly sentenced him as Range I standard offender and that his sentence had expired due to the fact that he was entitled to thirty percent release eligibility. The habeas corpus court summarily dismissed the petition. On appeal, we affirm the summary dismissal.

http://www.tba2.org/tba_files/TCCA/2008/mitchellr_102808.pdf


STATE OF TENNESSEE v. TAFT ARKEY MURPHY

Court: TCCA

Attorneys:

Jay Norman, Nashville, Tennessee (on appeal), and Bill Collins, Nashville, Tennessee (at trial), for the appellant, Taft Arkey Murphy.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Shannon Poindexter and John Zimmerman, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Taft Arkey Murphy, was convicted by a jury in the Criminal Court for Davidson County of possession with intent to sell three hundred or more grams of cocaine in a school zone, a Class A felony; possession with intent to sell twenty-six or more grams of cocaine in a school zone, a Class A felony; sale of twenty-six or more grams of cocaine in a school zone, a Class A felony; two counts of sale of twenty-six or more grams of cocaine, a Class B felony; and possession of a handgun by a felon, a Class E felony. He was sentenced to eighteen years for each Class A felony, nine years for each Class B felony, and two years for the Class E felony, to be served concurrently. The defendant appeals and contends: (1) that the evidence is insufficient to convict him of possessing a handgun as a felon, and (2) that he was improperly prejudiced by testimony that the defendant had a murder charge. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/murphyt_102808.pdf


STATE OF TENNESSEE v. ERIC CONDRELL O'NEAL

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee (on appeal), and M. Don Himmelberg, Nashville, Tennessee (at trial), for the appellant, Eric Condrell O'Neal.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Convicted by a Marshall County Circuit Court jury of two counts of statutory rape and sentenced to one year and nine months' incarceration, the defendant, Eric Condrell O'Neal, appeals alleging that the evidence is insufficient to support the convictions and that the trial court erred by ordering a fully incarcerative sentence. Because no order or minute entry overruling the motion for new trial appears in the record, however, this court is without jurisdiction to consider the appeal, and it must, therefore, be dismissed.

http://www.tba2.org/tba_files/TCCA/2008/oneale_102808.pdf


ROLAND R. SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Roland R. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian K. Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Roland R. Smith, was convicted of four counts of statutory rape and three counts of especially aggravated sexual exploitation of a minor. The trial court imposed an effective sentence of fifteen years in the Tennessee Department of Correction. Subsequently, he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that the sentence imposed violates the dictates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The post- conviction court denied the petition, and the petitioner now appeals. Upon our review, we conclude that the petition for post-conviction relief was filed outside the statute of limitations; therefore, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2008/smithr_102808.pdf


Aggravated Child Abuse and Neglect

TN Attorney General Opinions

Date: 2008-10-28

Opinion Number: 08-168

http://www.tba2.org/tba_files/AG/2008/ag_08_168.pdf

Local Funding of Charter Schools -- Tenn. Code Ann. section 49-13-112

TN Attorney General Opinions

Date: 2008-10-28

Opinion Number: 08-169

http://www.tba2.org/tba_files/AG/2008/ag_08_169.pdf

TODAY'S NEWS

Legal News
Politics
TennBarU CLE
TBA Member Services

Legal News
Judicial candidates in Kentucky may now fundraise, identify their party affiliation
A federal district judge ruled Monday that the Kentucky Judicial Conduct Commission's rule against judicial candidates identifying themselves by party is unconstitutional. Also found unconstitutional is the bar association's rule against judges and judicial candidates soliciting campaign funds. The ruling came in a case brought by Marcus Carey, who ran an unsuccessful race for the state Supreme Court in 2006. Carey argued that rules barring him from declaring his views on such legal issues as abortion and gay marriage infringe on his free-speech rights.
The Leaf-Chronicle carried this AP story
Appeals courts have been reshaped by Bush
President Bush's biggest legacy may be in the courts, where Republican-appointed judges -- most conservatives -- are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when he took office, The New York Times reports. The Bush administration has transformed the nation's federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under Ronald Reagan.
Read the Times' analysis
TDLA officers announced
The Tennessee Defense Lawyers Association announces has announced its new board, led by C. Douglas Dooley, president, Leitner, Williams, Dooley & Napolitan, Chattanooga; Stephen P. Miller, president-elect, McDonald Kuhn, Memphis; Melanie M. Stewart, secretary-treasurer, Stewart Wilkinson PLLC, Germantown; and Robert G. Norred Jr., immediate past president, Logan-Thompson PC, Cleveland.

Vice presidents are John W. Barringer Jr., Manier & Herod, Nashville; David Scott Bennett, Leitner Williams Dooley & Napolitan, Chattanooga; and James H. Tucker Jr., Manier & Herod, Nashville (also serves as DRI state representative). Directors are Robert A. Crawford, Kramer Rayson Leake Rodgers & Morgan, Knoxville; Sarah Reisner, Manier & Herod, Nashville; and Bradford D. Box, Rainey Kizer Reviere & Bell PLC, Jackson.

Response large for Harvard fee-waiver program
More than 100 first-year students have signed up for a new program at Harvard Law School that will waive third-year tuition for students who commit to five-year public interest careers. Historically, about 50 to 60 graduating law students each year have opted to pursue public interest careers.
ABAJournal.com tells you more
Politics
Complaint: West's business unlicensed?
The state Department of Commerce and Insurance has sent a complaint letter to Rep. Ben West, D-Hermitage, to ask him to explain a web site promoting the company called Securitech Inc. The company, owned by West, advertises "unlicensed security guard services," according to the complaint.
The News Sentinel carried this AP story
TennBarU CLE
This week's webcast focuses on labor law developments
Tune in tomorrow (Wednesday) at noon to hear Waller Lansden Dortch & Davis attorney Stan Graham cover the latest employment law decisions from the Supreme Court, Sixth Circuit Court of Appeals, and Tennessee's appellate courts. Also addressed during the one-hour CLE webcast will be the latest legislative developments.
Learn more or register now
TBA Member Services
Free online legal research is hot TBA benefit
Online legal research is available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
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