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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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
09 - TN Court of Criminal Appeals
02 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2008/certlist_122208.pdf


JAMES E. DYER, ET AL. v. HILL SERVICES PLUMBING AND HVAC

Court: TCA

Attorneys:

Reed L. Malkin, Memphis, TN, for Appellant.

Steven R. Walker, Memphis, TN, for Appellant.

Julia Beth Crews, Memphis, TN, for Appellee.

Judge: STAFFORD

This appeal arises from a dispute between an employee and employer over life insurance coverage under a group insurance policy. The facts of this case are relatively straightforward; the procedural history, however, is surprisingly complicated. Ultimately, we dismiss for lack of a final judgment and remand to the trial court.

http://www.tba2.org/tba_files/TCA/2008/dyerj_122208.pdf


ELLER MEDIA COMPANY v. CITY OF MEMPHIS, ET AL.

Court: TCA

Attorneys:

Mark D. Herbert, Jackson, MS, for Appellant.

Lisa A. Reppeto, Jackson, MS, for Appellant.

E. Patrick Lancaster, Jackson, MS, for Appellant.

Oscar C. Carr, III, Memphis, TN, for Appellee.

Sara L. Hall, Memphis, TN, for Appellee.

Lawrence P. Leibowitz, Knoxville, TN, Amicus Curiae.

Jennifer L. Knapp, Knoxville, TN, Amicus Curiae.

Judge: STAFFORD

This appeal concerns the value of property taken by the City of Memphis under its eminent domain power. The condemned land was subject to a leasehold interest held by the Appellant. The Appellant used the land as a site for a billboard, which it rented to advertisers. After taking possession of the land, the City compensated the owner, but not the Appellant. Appellant sought compensation for its property interest, and designated an expert witness to offer proof on its value. The City objected to the expert's methodology, and asked the trial court to exclude his testimony. After an evidentiary hearing, the trial court ruled that the expert's methodology was prohibited by this Court's decision in State ex rel. Comm'r v. Teasley, 913 S.W.2d 175 (Tenn. Ct. App. 1995). Without the expert's testimony, Appellant could not present proof on the value of its property interest and accordingly, the trial court entered a judgment for the City. Finding that the trial court erred when excluding Appellant's expert, we reverse.

http://www.tba2.org/tba_files/TCA/2008/ellermedia_122208.pdf


PHOENIX INSURANCE COMPANY v. ESTATE OF MARY NAPIER GAINER, ET AL.

Court: TCA

Attorneys:

Donald Capparella, Nashville, Tennessee, Albert S. Nalibotsky, Charlotte, NC and David O. Huff, Nashville, Tennessee, for the appellant, Phoenix Insurance Company.

Brenda M. Dowdle, and Barbara J. Perutelli, Nashville, Tennessee, for the appellees, Estate of Mary Napier Gainer and Bryan, Ward & Elmore, Inc.

Judge: DINKINS

This is the second appeal in a case where a tenant's property insurer brought subrogation action against the Landlord and Rental Agent, who were also additional insureds on commercial general liability policy issued by insurer, to recover for fire loss paid on personal property insurance policy issued to Tenant. In an earlier proceeding, the trial court granted summary judgment in favor of Landlord and Rental Agent, holding that the Landlord and Rental Agent were additional insureds under the insurance policy issued to insurer's subrogor, Tenant, and, therefore, the antisubrogation rule applied. Insurer appealed and this Court reversed, holding that the antisubrogation rule did not apply unless coverage was provided to Landlord and Rental Agent as additional insureds under the CGL policy; the case was remanded to the trial court to determine whether the indemnity clause in the lease would prohibit Tenant from suing Landlord and Rental Agent for their alleged negligence and, if so, whether, based on these facts, a lawsuit filed by Tenant against Landlord and Rental Agent for the Tenant's personal property damage would trigger the comprehensive general liability portion of the insurance policy. On cross motions for summary judgment, the trial court again entered summary judgment in favor of Landlord and Rental Agent. Finding error, we reverse and remand this case for further proceedings in accordance with this opinion.

http://www.tba2.org/tba_files/TCA/2008/gainerm_122208.pdf


GARY W. HANNAH, ET AL. v. KENNY K. WANG

Court: TCA

Attorneys:

Hugh Green and John Meadows, Lebanon, Tennessee for the Appellants, Gary W. Hannah and Janet Hannah.

Andrew N. Grams, Brentwood, Tennessee for the Appellee, The Hartford.

Judge: SWINEY

Gary W. Hannah and Janet Hannah ("Plaintiffs") sued Kenny K. Wang ("Wang") for damages resulting from a motor vehicle accident. Wang answered the complaint admitting that "he was guilty of simple negligence and that he is one hundred (100%) percent liable for causing this accident...." The Hartford ("Hartford") answered the complaint as the Plaintiffs' uninsured motorist carrier. Hartford filed a motion for summary judgment claiming that its uninsured/underinsured motorist coverage was less than Wang's coverage. After a hearing, the Trial Court entered an order granting summary judgment to Hartford. Plaintiffs appeal to this Court claiming that it was error for the Trial Court to grant summary judgment because a question existed as to whether the statutorily mandated uninsured/underinsured coverage limit had been properly rejected. We find and hold that the statutorily mandated uninsured/underinsured coverage limit was properly rejected and affirm the grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2008/hannahg_122208.pdf


Norma Taylor v. Metropolitan Government of Nashville and Davidson County, TN, The Employee Benefit Board of the Metropolitan Government of Nashville and Davidson County, TN

Court: TCA

Attorneys:

Dan Richard Alexander, Nashville, Tennessee, for the appellee, Norma Taylor.

James Earl Robinson, Kevin C. Klein and Sue Cain, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County, TN, The Employee Benefit Board of the Metropolitan.

Judge: DINKINS

Defendant appeals the trial court's denial of motions for directed verdict made after the close of the plaintiff's proof and after the close of all proof, and appeals the trial court's denial of a motion for a new trial. Finding that the trial court erred in not granting the defendant's motion for a directed verdict because the claim was time-barred by the applicable statute of limitations, we vacate the judgment below and dismiss the case.

http://www.tba2.org/tba_files/TCA/2008/taylorn_122208.pdf


WENDY WILSON ET AL. v. BATTLE CREEK MILLING & SUPPLY, INC.

Court: TCA

Attorneys:

Brent James, Rossville, Georgia, for the appellant, Battle Creek Milling & Supply Co., Inc.

John H. Cameron, Jr., Jasper, Tennessee, for the appellees, Wendy Wilson, Elizabeth Walters, Evan Wilson and Danielle Wilson.

Judge: CLEMENT

The plaintiffs filed this action to domesticate a default judgment awarded in the Circuit Court of Virginia against the defendant Battle Creek Milling & Supply Co., Inc., for breach of contract. When the plaintiffs sought to domesticate the foreign judgment, Battle Creek filed a Motion to Dismiss and Motion to Require Arbitration in which it contended the Virginia court lacked jurisdiction because the contract contained a mandatory arbitration provision. Battle Creek also contended the judgment was void because service of process was insufficient. The Tennessee trial court denied Battle Creek's motions and entered an order domesticating the foreign judgment. This appeal followed. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2008/wilsonw_122208.pdf


MELODY YOUNG v. DONALD GREGORY GODFREY

Court: TCA

Attorneys:

Melissa Thomas Blevins, Jasper, TN, for Appellant.

Jennifer Austin Mitchell, Dunlap, TN, for Appellee.

Judge: HIGHERS

This appeal involves an order entered by an Alabama court in 1996 regarding child custody and support. The trial court modified the order to require the father to pay future and retroactive child support. We vacate the portion of the order dealing with modification, because the trial court lacked jurisdiction to modify the order, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/youngm_122208.pdf


ALLEN P. BLYE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Allen P. Blye.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

In this appeal, the petitioner, Allen P. Blye, challenges his unsuccessful collateral attack via post-conviction petition for his convictions for theft and other offenses as reflected in case assignment C48, 928. On appeal, the petitioner contends that: (1) the post-conviction court incorrectly ruled on the petitioner's issue regarding his unknowing rejection of a "possible" plea deal in connection with his theft convictions reflected in case C48, 928, and his aggravated rape and aggravated burglary convictions reflected in case C50, 328; (2) the post-conviction court improperly refused to allow the petitioner to further amend his petition to challenge the trial court's sentencing decision in light of State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (Gomez II); and (3) the post-conviction court erred in its refusal to grant the petitioner's oral motion to recuse due to an apparent preconception or bias by the court. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court denying post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2008/blyea_122208.pdf


STATE OF TENNESSEE v. KATRINA M. EVERHART

Court: TCCA

Attorneys:

Randy D. Fleming, Kingsport, Tennessee, for the appellant, Katrina M. Everhart.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Following her guilty plea to facilitation of robbery and a sentencing hearing in the Sullivan County Criminal Court, the defendant, Katrina M. Everhart, appeals that court's decision to order her three- year sentence to be served in the Department of Correction. She claims on appeal that the criminal court erroneously denied her alternative sentencing. We affirm the judgment of the criminal court.

http://www.tba2.org/tba_files/TCCA/2008/everhartk_122208.pdf


STATE OF TENNESSEE v. NATHAN ROSS McCRACKEN

Court: TCCA

Attorneys:

Nancy C. Meyer, Clinton, Tennessee, for the Appellant, Nathan Ross McCracken.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany, Assistant Attorney General; David S. Clark, District Attorney General; Sandra N.C. Donaghy, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Nathan Ross McCracken, pled guilty to possession of marijuana with intent to sell. Following a sentencing hearing, the trial court denied the Defendant's request for judicial diversion, sentenced him to one year of supervised probation, and imposed a $2000 fine. The Defendant appeals, contending the trial court erred when it: (1) denied his request for judicial diversion; and (2) ordered him to pay a $2000 fine. After thoroughly reviewing the record, we conclude the trial court did not err when it denied judicial diversion, but it did err when it imposed the $2000 fine. Accordingly, we affirm in part the judgment of the trial court and remand for further proceedings as to the imposition of any fine.

http://www.tba2.org/tba_files/TCCA/2008/mccrackenn_122208.pdf


STATE OF TENNESSEE v. JEFFREY SCOTT NICHOLS

Court: TCCA

Attorneys:

Barry R. Tidwell and John W. Price, Murfreesboro, Tennessee, for the appellant, Jeffrey Scott Nichols.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Steven Bebb, District Attorney General; and Drew Robinson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Jeffrey Scott Nichols, appeals from the Bradley County Criminal Court's order denying his petition for post-conviction relief. He argues that the denial of relief was erroneous because, prior to pleading guilty to aggravated kidnapping, unlawful flight, and multiple counts of rape of a child, aggravated sexual battery, and sexual exploitation of a minor, he did not receive the effective assistance of counsel and, therefore, his pleas were entered involuntarily. His argument centers around his contentions that trial counsel failed to thoroughly investigate the Petitioner's cases and failed to challenge venue, and that an actual conflict of interest existed when trial counsel represented the Petitioner's father in a civil action against the Petitioner. Following our review of the record and the parties' briefs, we conclude that the Petitioner has not demonstrated that trial counsel was constitutionally ineffective or that his pleas were involuntary. Consequently, we affirm the post-conviction court's order denying post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2008/nicholsj_122208.pdf


MICHAEL S. POWELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Cynthia A. LeCroy-Schemel (at post-conviction hearing), and Jason D. Demastus (on appeal), Chattanooga, Tennessee, for the Appellant, Michael S. Powell.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; William H. Cox, III, District Attorney General; Neal Pinkston, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Hamilton County jury convicted the Petitioner, Michael S. Powell, of count one, first degree felony murder, with the underlying felony being aggravated child abuse, and of count two, aggravated child abuse. The trial court sentenced him to concurrent sentences of life in prison for the murder conviction and twenty years for the aggravated child abuse conviction. The Petitioner filed a petition for post-conviction relief claiming that he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. The Petitioner appeals that dismissal, contending that his trial counsel was ineffective for failing to request that a mental evaluation be conducted on the Petitioner. Finding no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/powellm_122208.pdf


STATE OF TENNESSEE v. DOYLE WINSLOW SMITH

Court: TCCA

Attorneys:

Robert W. Ritchie, Stephen R. Johnson, and Charles G. Currier, Knoxville, Tennessee, for the appellant, Doyle Winslow Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General, and Leland Price, Robert L. Headrick, Marsha Mitchell, and William H. Wallace, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Doyle Winslow Smith, was convicted of three counts of rape of a child, all Class A felonies, and one count of aggravated sexual battery, a Class B felony. He was sentenced to twenty- two years on each Class A felony conviction and ten years on the Class B felony conviction. The sentences ran concurrently for a total effective sentence of twenty-two years. The defendant presents eight issues on appeal. He contends that: the evidence was insufficient; he was denied access to certain exculpatory evidence; the trial court had proper authority to appoint a special master to review evidence; the State failed to provide him with constitutionally sufficient particularization prior to trial as to the time of the alleged offenses; he received ineffective assistance of counsel; the trial court erred in instructing the jury; he was sentenced improperly; and the cumulative errors committed warrant reversal. After careful review, we reverse and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2008/smithd_122208.pdf


DONATHON J. TEARS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, attorney for appellant, Donathon J. Tears.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Donathon J. Tears, appeals as of right from the Marshall County Circuit Court's denial of his petition for post-conviction relief. The petitioner seeks relief from his convictions for three counts of sale of cocaine for which he received an effective sentence of twenty years. He alleges that his guilty pleas were involuntarily and unknowingly entered due to the ineffective assistance of counsel. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/tearsd_122208.pdf


STATE OF TENNESSEE v. BOBBY GENE WALKER, JR.

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, and Raymond Mack Garner, District Public Defender, for the appellant, Bobby Gene Walker, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Associate Deputy Attorney General; Michael L. Flynn, District Attorney General; and Andrew Watts, Assistant District Attorney General, Bobby Gene Walker, Jr.

Judge: WILLIAMS

The defendant, Bobby Gene Walker, Jr., appeals his conviction for second offense DUI. The defendant claims there was insufficient evidence presented to the jury to sustain a verdict of guilt beyond a reasonable doubt. After complete review, we affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCCA/2008/walkerb_122208.pdf


ROGER STEVE YANT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael D. Rohling and Bernard McEvoy, Nashville, Tennessee, for the appellant, Roger Steve Yant.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; T. Michel Bottoms, District Attorney General; and Patrick S. Butler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Roger S. Yant, appeals the Giles County Circuit Court's dismissal of his petition for post-conviction relief from his conviction for rape of a child, a Class A felony, and resulting sentence of thirteen and one-half years. On appeal, the petitioner contends: (1) that his plea was not a valid guilty plea; and (2) that if the plea was valid, it was not entered knowingly, intelligently, and voluntarily based upon a lack of understanding of his rights, which resulted from his being mentally challenged. After review of the record, we conclude that the plea was valid and that the record supports the post-conviction court's finding that the plea was entered knowingly, voluntarily, and intelligently. Thus, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/yantr_122208.pdf


Unpaid Rest Breaks or Meal Periods under Tenn. Code Ann. section 50-2-103(h)

TN Attorney General Opinions

Date: 2008-12-22

Opinion Number: 08-187

http://www.tba2.org/tba_files/AG/2008/ag_08_187.pdf

County and City Authority to Regulate Vendors on State Highways

TN Attorney General Opinions

Date: 2008-12-22

Opinion Number: 08-188

http://www.tba2.org/tba_files/AG/2008/ag_08_188.pdf

TODAY'S NEWS

Legal News
Legislative News
Politics
Disciplinary Actions
TBA Member Services

Legal News
Holder urges public to help in civil legal crisis
Tennessee Supreme Court Chief Justice Janice Holder took the message of the need for civil legal services to the public in an opinion piece distributed this weekend. She said the court would continue to expand existing programs and develop more ways to provide civil legal assistance but pointed out that lawyers are not the only people who can help in this very real crisis. "Every one of us can help meet the need by offering financial support to local access to justice organizations or by simply spreading the word to others about the important work these organizations are doing," she wrote.
Read her column in the Tennessean
Editorial: Inititative will help create fairness
Following up on Justice Holder's column, the Tennessean came out in support of the court's plan to study the issue of access to justice in civil cases and called for "a more level playing field in representation."
Read the editorial
Housepian: Why you should support Legal Services
In an opinion piece over the weekend, Legal Aid Executive Director Gary Housepian encourages readers to volunteer, make a donation and contact their elected officials and encourage them to support legal services."We don't normally think of legal services being an essential like food, clothing and shelter, but we should. As Americans, we are not only pledged to justice for all -- the commitment defines who we are as a country."
Read the column in the Tennessean
New partners at Boult are first women of color
Tara Cleare and Joycelyn Stevenson were elected partners in the Nashville law firm of Boult Cummings Conners & Berry PLC on Friday. They are the first women of color to be elected partner in the nearly 100-year history of the firm. They are both 2001 graduates of Vanderbilt University School of Law and have worked their entire legal careers at Boult Cummings. Cleare practices in the firm's health care section and Stevenson is a member of the firm's labor and employment team.

Music industry: Will work with Internet providers, not sue
The group representing the U.S. recording industry said Friday it has abandoned its policy of suing people for sharing songs protected by copyright and will work with Internet service providers to cut abusers' access if they ignore repeated warnings.
NewsChannel9 carried this AP story
'You're outplaced!'
ABAJournal.com wants to hear from you the best euphemism for "you're fired!" It wants to know if being "outplaced" is less painful.
Go to the story to leave your comments
Legislative News
Alabama bill aims to limit judicial race spending
A bill introduced in the Alabama Legislature would limit contributions from individuals and political action committees to $500 per candidate in any judicial election. The 2006 race between Supreme Court Chief Justice Sue Bell Cobb and then-Chief Justice Drayton Nabers was estimated to cost up to $13 million. This year's race for a Supreme Court seat cost the candidates a total of at least $4 million, and spending by outside groups pushed the price tag to more than $5 million.
The Press-Register has more
Mumpower not well-known to Memphians
If he becomes the next speaker of the state House of Representatives, Jason Mumpower would play a bigger role in Memphis affairs than most of its citizens imagine, an article in the city's newspaper says.
Read more in the Commercial Appeal
Politics
Bone gets support from governor, others
Gov. Bredesen, most of the state's congressional delegation and former state party chairs have endorsed Nashville attorney Charles Robert Bone as Tennessee Democratic Party Chairman. Bone is facing current party Treasurer Chip Forrester to succeed Gray Sasser as chairman.
NashvillePost.com has the story
Disciplinary Actions
Whiteville attorney pays fees
Jewel Guy Boozer of Whiteville, Tenn. paid her delinquent BPR fees and penalties but remains suspended for CLE non-compliance.
View all attorneys suspended and reinstated for 2008 fee violations
TBA Member Services
First Tennessee is TBA's preferred provider
First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more
on the TBA Web site

 
 
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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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