TBA Convention offers big-name speakers, big-time fun

With big-name speakers like Howard Baker and Harold Ford Jr., big-impact programs, featuring Coach Phil Fulmer -- speaking on leaving a proud and enduring legacy -- five former Tennessee Supreme Court justices, ethics prosecutors from the Duke University Lacrosse case, federal judges and magistrates, Tennessee Chancellors and ABA Spirit of Excellence Award winner Cesar L. Alvarez, the 2009 TBA Annual Convention will be a great event. Mix in big-time fun at the Memphis Music Extravaganza -- featuring the big-haired Bouffants and the big sound of the Jimmy Church Review -- plus a trip to Graceland that includes music from rockabilly legends the Dempseys at the Elvis Car Museum, and it's an event that you absolutely don't want to miss.

Learn more about the 2009 TBA Convention or register now

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
02 - TN Court of Appeals
05 - TN Court of Criminal Appeals
01 - 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.


Court: TCA


Kenneth O. Fritz and Michael A. McMahan, Chattanooga, Tennessee, for the Appellant, City of Chattanooga, Tennessee.

Harold L. North, Jr., Chattanooga, Tennessee, for the Appellee, Custom Baking Company.

Judge: LEE

The issue in this case is whether the trial court had jurisdiction to hear a suit filed by the City of Chattanooga ("the City") to enforce a real property tax lien on property acquired by Custom Baking Company through a sale conducted by a bankruptcy court trustee. The previous owner of the real property, which was alleged to have been delinquent in payment of its city property taxes, filed a bankruptcy petition in the United States Bankruptcy Court for the District of Delaware prior to this action. The City was listed as a creditor in the bankruptcy action and was notified of the proposed sale of the debtor's assets by the bankruptcy trustee and filed no objection. After the sale of the property, the Bankruptcy Court approved the sale free and clear of all liens, claims, and encumbrances, and retained jurisdiction "to determine any claims, disputes or causes of action arising out of or relating to the proposed sale." The City brought this action in state Chancery Court several months after the entry of the Bankruptcy Court's order. Upon review, we affirm the trial court's judgment that it lacked jurisdiction to hear and decide this case and that the City is barred by the collateral attack doctrine from bringing this action to circumvent the Bankruptcy Court's prior valid final order.



Court: TCA


Richard L. Tennent, Nashville, Tennessee, for the appellant, Stephen Strain.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and William R. Lundy, Jr., Assistant Attorney General, for the appellee, Tennessee Bureau of Investigation.


Petitioner appeals the dismissal of his petition filed pursuant to Tenn. Code Ann. section 40-39-207(f) which sought an order permitting his removal from the Sexual Offender Registry ("SOR"). At issue is the application of certain amendments to the sexual offenders registry law, Tenn. Code Ann. section 40-39-201, et seq., which became effective July 1, 2006, to Petitioner, who was convicted of three counts of statutory rape prior to the date of the amendments. The trial court construed Tenn. Code Ann. section 40-39-207(g) to allow the TBI to "retroactively apply the newly revised statute to convictions of statutory rape prior to July 1, 2006, for the purposes of determining an offender's eligibility for removal from the SOR." The court further found that the statutory construction did not violate Petitioner's due process rights or right to be free from ex post facto laws. Finding no error in the decision of the trial court, we affirm.



Court: TCCA


Gary M. Williams (at trial and on appeal), Hendersonville, TN, and Randy Lucas (at trial), Gallatin, TN, for the appellant, Brian Dewayne Brewington.

C. Jay Ingrum (at trial and on appeal), Gallatin, TN, and Charles R. Bobbitt, Jr. (at trial), Hendersonville, TN, for the appellant, Brenda Faye Brewington.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendants, Brenda Faye Brewington and Brian Dewayne Brewington, were convicted of two counts of aggravated child neglect, Class A felonies, and two counts of child neglect, Class E felonies. For their convictions, the defendants each received an aggregate sentence of twenty-five years' imprisonment to be served at 100 percent. On appeal, the defendants raise the following issues: (1) whether the trial court erred in admitting photographs of the victims, and photographs and a videotape of their home; (2) whether the evidence was sufficient to sustain their convictions for aggravated child neglect; and (3) whether the trial court imposed an excessive sentence.



Court: TCCA


Timothy W. Flohr, Greeneville, Tennessee, for the appellant, James Junior Burns.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Cecil Mills, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: WITT

The defendant, James Junior Burns, was convicted by a Greene County jury of vandalism and Class D felony evading arrest. The defendant challenges the sufficiency of the convicting evidence on his felony conviction, arguing that no reasonable juror could have concluded that the defendant operated the vehicle that evaded pursuit by the Greene County Sheriff's Department. The defendant also challenges the trial court's allowing the jury to deliberate without the benefit of written instructions in violation of Tennessee Rule of Criminal Procedure 30(c). Lastly, the defendant challenges the sentences and fines imposed upon him. We discern no error in the defendant's convictions or sentence. Although the trial court committed a de minimus error in briefly delaying the delivery of written instructions to the jury, such error did not prejudice the defendant. Accordingly, we affirm the judgments of the trial court.



Court: TCCA


Francis X. Santore, Jr., Greenville, Tennessee, for the appellant, April Jenkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, District Attorney General and J. Chalmers Thompson and Alex Pearson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, April Denise Jenkins, was indicted by the Greene County Grand Jury for two counts of aggravated assault and one count of burglary. After a jury trial, Appellant was convicted of assault as a lesser included offense of aggravated assault. Appellant was found not guilty of burglary and not guilty of one count of aggravated assault. Appellant was sentenced to eleven months and twenty-nine days in incarceration. The trial court ordered Appellant's sentence to be served at a 50 percent release eligibility. On appeal, Appellant argues that the evidence was insufficient to support the conviction for assault, the trial court committed plain error by failing to charge the jury with the "new self- defense statute," and the trial court erred by sentencing Appellant "to a 50 percent release eligibility date." Therefore, the judgment of the trial court is affirmed.



Court: TCCA


Paul J. Keener, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General, for the appellee, State of Tennessee.


The petitioner, Paul J. Keener, appeals as of right from the post-conviction court's order summarily dismissing his petition for post-conviction relief. The State has filed a motion requesting that this court affirm the order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, the State's motion is granted and the judgment of the trial court is affirmed.



Court: TCCA


Gary Howell, Mt. Pleasant, Tennessee, for the appellant, David Lee Wakefield.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.


The Defendant, David Lee Wakefield, was charged with driving under the influence, fifth offense, and violation of the implied consent law. The trial court granted a mistrial during the Defendant's trial, over the objection of the Defendant, and ordered a new trial. At the conclusion of the new trial, the jury found the Defendant guilty as charged. The Defendant appeals as of right, arguing that there did not exist manifest necessity for a mistrial and his retrial violated double jeopardy principles. Following our review, we affirm the judgment of Maury County Circuit Court.


Records Officer Under Tenn. Code Ann. Section 10-7-304

TN Attorney General Opinions

Date: 2009-01-21

Opinion Number: 09-03



Legal News
Legislative News
Supreme Court Report
TennBarU CLE
TBA Member Services

Legal News
English only vote tomorrow
A special election tomorrow in Davidson County will determine whether English will be the official language of metro government and whether the process by which voters make changes to the metro charter will be altered. All polling places will be open from 7 a.m. to 7 p.m. For help identifying the correct polling place visit www.nashville.gov/Vote

Guantanamo trials on hold
President Obama's request to suspend war crimes trials at Guantanamo Bay was promptly accepted by military judges today. Under the new policy, the cases of six men will be halted for 120 days, while similar orders are expected in other pending cases.
The Commercial Appeal has more
Critics of Bush detainee policies join DOJ
Two Georgetown law professors who have criticized the Bush Administration's terrorism policies have been appointed to posts in the Justice Department. Neal Katyal, who has challenged military commissions in court, has been appointed principal deputy solicitor general. Marty Lederman, who has spoken out against warrantless wiretapping and harsh interrogation tactics, has been appointed deputy assistant attorney general in the Office of Legal Counsel, reports the Wall Street Journal Law Blog.

Former judge named acting AG
Former federal judge Mark Filip has been named acting attorney general and will hold the position until nominee Eric Holder is confirmed for the job. His reign should be short-lived. The Senate Judiciary Committee is scheduled to vote on Holder's nomination next week. Filip relieved former attorney general Michael Mukasey at 12:01 p.m. yesterday, reports the Blog of Legal Times.

East Tenn. lawyers consider U.S. attorney post
With a Democratic president now in office, several East Tennessee lawyers have indicated interest in the post of U.S. Attorney for the Eastern District. They include Chattanooga attorney Lee Davis, a former prosecutor in the Hamilton County DA's office who now serves with Davis and Hoss, and attorney Bill Killian, who practices federal criminal law in Chattanooga and South Pittsburg.
Read more at Chattanoogan.com
Chattanooga Bar Association holds annual meeting
The Chattanooga Bar Association held its 111th annual meeting today and named new officers, board of governor members and award winners. Officers are Judge Barry A. Steelman, president; John T. Rice, president-elect; Ira M. Long, secretary/treasurer; and Cynthia D. Hall, immediate past president. Additional board members include RoseMarie Bryan, Harry Cash, Stephen T. Greer, Jay Kennamer, Robin Miller and M. Craig Smith. Among the award winners were Jeffrey M. Atherton, who received the Ralph M. Kelly Humanitarian Award for exemplary service to the community; Barry Abbott and Phillip A. Noblett, who received the 2008 President's Award for service to the bar; Mike St. Charles, who received the Albert L. Hodge Volunteer Award for exemplary volunteer service; and Mike Luhowiak, who received the Harry Weill Zealous Practice of Law Award for enthusiastic service to clients.

Legislative News
Ethics complaint filed against Williams
Rep. Brian Kelsey, R-Germantown, filed an ethics complaint today against House Speaker Kent Williams, saying the House Ethics Committee should strip Williams of his speakership based on recently disclosed allegations of sexual harassment. The move comes one day after news broke that Williams allegedly made inappropriate comments to Rep. Susan Lynn, R-Mt. Juliet, in early 2007.
The Tennessean has more
House leaders begin committee assignment talks
House leaders are meeting this week to negotiate key committee assignments with Speaker Kent Williams, R- Elizabethton, who has pledged to run a bipartisan chamber by equally splitting committee assignments and powerful chairmanships between the two parties.
The Memphis Daily News has more
Candidates test waters for congressional seat
State Rep. Gerald McCormick is considering a race for the Third District congressional seat now held by Republican Rep. Zach Wamp, the Chattanoogan.com reports. McCormick currently holds the District 26 seat in the state House. State GOP Chair Robin Smith also has announced an interest in Wamp's seat. The primary will be held in August 2010. Read more about McCormick and Smith on the paper's web site.

Supreme Court Report
Court won't hear Internet porn case
The U.S. Supreme Court has refused to consider the constitutionality of an Internet pornography law blocked from taking effect due to free speech concerns. The decision lets stand a ruling by the Third U.S. Circuit Court of Appeals that overturned the 1998 Child Online Protection Act. Read more about the appeals court's rationale for striking down the law at SCOTUSblog.
Link to the story here
Justices reaffirm crack sentencing flexibility
The Supreme Court has reaffirmed that federal judges may depart from sentencing guidelines for crack cocaine simply because they disagree with the harsh sentencing policy that punishes crack offenses significantly more than powder offenses. The 5-4 decision clarified a 2007 ruling that had caused confusion among lower courts.
Learn more at SCOTUSblog
TennBarU CLE
Seminar tackles construction law issues, A-Z
Transactional/real estate lawyers, litigators and attorneys who focus on construction law will all find value in the upcoming TBA seminar Tennessee Construction Law: A-Z. This Jan. 23 seminar will start off with sessions on drafting construction contracts, licensing, bidding and mechanics liens, and then tackle specific laws in Tennessee that impact construction, as well as litigation, mediation and arbitration. Many of the nation's best construction lawyers are in Tennessee and many have already agreed to speak at this Nashville program.
Find out more or register now
Legal Aid Society presents 'The Exonerated'
A play telling the real-life stories of six people wrongly convicted and sentenced to death will be presented Thursday and Friday nights at 6:30 p.m. at Vanderbilt's Flynn Auditorium. Featuring actors from the Vanderbilt University Law School community, the production is a benefit for The Exonerated Fund, a restitution fund established by the original producers of the play for people who are released from imprisonment with little to no resources.
Learn more about the play
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2009 Tennessee Bar Association