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With Concurring and Dissenting Opinion

Court: TSC


Archie Sanders, III, Memphis, Tennessee, for the appellant, Cheryl Brown Giggers, Angela G. Brown, Charles C. Brown, and JoAnn Fisher.

Charles Wesley Fowler, Memphis, Tennessee, for the appellee, Memphis Housing Authority and, Joe Lee Wyatt and William Joseph Wyatt, Memphis, Tennessee, for the appellee, Scruggs Security and Patrol, LLC.

Timothy David Patterson, Memphis, Tennessee, for the Amicus Curiae, Pacific Legal Foundation.

Judge: WADE

The plaintiffs, survivors of a tenant shot and killed by the criminal act of another tenant, filed suit against the defendant housing authority, alleging negligence and breach of contract for failure to provide a safe premises. The trial court granted summary judgment in favor of the housing authority and the Court of Appeals affirmed. We granted review to determine whether the housing authority owed a duty of care, an essential component of the claim, under the theory of negligence. Because the potential for violence in the housing project was reasonably foreseeable and the gravity of the harm outweighed the burden on the housing authority to have taken reasonable protective measures, the judgment is reversed and the cause is remanded to the trial court for further proceedings.

HOLDER concurring and dissenting


Court: TCA


Donald Capparella, Nashville, Tennessee, for the appellant, Nancy Strong.

R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the appellee, Paul Braden.

Ben P. Lynch, Winchester, Tennessee, for the appellee, Eddie Braden.


This appeal arises from the dissolution of three partnerships. The matters at issue in this appeal, which is the second appeal of this matter, concern the capital accounts of partners Paul Braden and Nancy Strong, an accounting of Braden Construction, and Nancy Strong's claims of breach of contract and breach of fiduciary duty against Paul Braden. The trial court found, inter alia, that Paul Braden was entitled to a capital account adjustment of $261,361.84 and that Paul Braden was not in breach of contract and he had not breached his fiduciary duty. It also denied Ms. Strong's claim for damages and lost salary and her request to expand the accounting to include the personal accounts of Paul and Eddie Braden. The trial court assessed 51 percent of the cost of the Braden Construction accounting to Ms. Strong and 49 percent to Paul Braden. We have determined the evidence preponderates against the capital account adjustments credited to Paul Braden and therefore reverse that determination. The judgment of the trial court is affirmed in all other respects.


Court: TCA


Phillip L. Davidson, Nader Baydoun, Stephen C. Knight, Nashville, Tennessee, for the appellant, City Towing & Transport, Inc.

Kevin C. Klein, Andrew David McClanahan, Rita Roberts-Turner, Nashville, Tennessee, for the appellee, Transportation Licensing Commission of the Metropolitan Government of Nashville and Davidson County.


Towing operator appeals the trial court's refusal to disturb revocation of its license by a local administrative board. Applying the standard applicable to common law writ of certiorari, we affirm the trial court. Further, as to the appellant's arguments, we find that the record was adequate, the revocation was not disproportionate or unreasonable, and the local towing regulations at issue were not preempted by 49 U.S.C. section 14501(c).


Court: TCA


Les Jones, Frank B. Thacher, III, Memphis, TN, for Appellant.

Marty R. Phillips, Craig P. Sanders, Jackson, TN, for Appellee, Christopher H. Bratton, M.D.

Jeffrey L. Lay, Dyersburg, TN, for Appellee, John A. Green, M.D.

Sadia S. Staton, Kate R. Armes, Jackson, TN, for Appellee, Lexington Hospital Corporation, assumed name Henderson County Community Hospital.


In this appeal, we are asked to determine whether the trial court erred in excluding Appellant's expert's standard of care and causation opinions and in granting summary judgment to the Appellees as to Appellant's medical malpractice and lack of informed consent claims. We affirm.

CORRECTION: Participation of appellate level attorneys clarified

Court: TCCA


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

C. Jay Ingrum (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


Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Herbert H. Foster, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James (Jerry) G. Woodall, District Attorney General; and Shaun A. Brown Assistant District Attorney General, for the appellee, State of Tennessee.


Defendant-Appellant, Herbert H. Foster, Jr. (hereinafter "Foster"), appeals the sentence imposed by the Madison County Circuit Court as excessive. He entered open guilty pleas to three counts of aggravated assault, one count of possession of a Schedule IV controlled substance, and one count of possession of drug paraphernalia and was sentenced to an effective term of ten years in the Tennessee Department of Correction as a Range II, multiple offender. The sole issue for our review is whether the trial court sufficiently weighed the proof offered to mitigate the sentence. Following our review of the record and the applicable authorities, we affirm the judgments of the trial court.


Court: TCCA


Jordan Mathies, Nashville, Tennessee, for the appellant, Keith Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and John Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.


The Petitioner, Keith Jackson, appeals from the Davidson County Criminal Court's order denying his petition for post-conviction relief. The Petitioner is currently serving a thirty-six-year sentence as a result of a jury conviction for possession with the intent to sell twenty-six grams or more of a substance containing cocaine in a Drug-Free School Zone. On appeal, the Petitioner argues that the post-conviction court erred in foreclosing proof on his suppression issues, finding that the issues were previously determined, and that a new constitutional right established in Georgia v. Randolph, 547 U.S. 103 (2006), was not recognized as existing at the time of his trial and requires retroactive application to his conviction. After a review of the record, the denial of post-conviction relief is affirmed.


Court: TCCA


Albert J. Newman, Jr., Knoxville, Tennessee, for the Appellant, Corey Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Randall E. Nichols, District Attorney General; Leslie Nassios, Assistant District Attorney General, for the Appellee, State of Tennessee.


The Petitioner, Corey Johnson, pled guilty to second degree murder and entered a guilty plea to attempted first degree murder. In accordance with the plea agreement, the trial court sentenced him to twenty years and fifteen years, respectively, and ordered that the sentences run consecutively, for an effective sentence of thirty-five years. The Petitioner filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel. The Petitioner alleges that his guilty pleas were entered based on his attorney's assurances to him that the Petitioner would receive an effective sentence of twenty years. The post-conviction court dismissed the petition after a hearing, and we affirm that judgment.


Court: TCCA


Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, James Edward Mathews.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General and Jeff Blevins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, James Edward Mathews, was indicted by the Knox County Grand Jury in eight separate cases for a total of thirty-eight counts. The charges included burglary of a vehicle, theft, evading arrest and various driving offenses. Appellant subsequently pled guilty to twelve of the charges, for a total effective sentence of fourteen years. The remainder of the charges were either nolle prossed or merged into the other convictions. After a sentencing hearing, the trial court ordered Appellant to serve his sentence in confinement. On appeal, Appellant argues that the trial court should have granted Appellant some form of alternative sentencing. We hold that Appellant's extensive criminal history as well as the past failures of alternative sentencing to deter Appellant from criminal conduct support a sentence of confinement. Accordingly, we affirm the judgments of the trial court.

CORRECTION: Page 18, last paragraph, first sentence corrected to read "In State v. Mateyko"

Court: TCCA


Larry Samuel Patterson, Jr., Columbia, Tennessee, and for the appellant, Randy Lee Ownby.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Brooke Grubb and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Randy Lee Ownby, was convicted of two counts of aggravated child abuse, Class A felonies, and two counts of child abuse, Class D felonies. The defendant's child abuse convictions were merged into the aggravated child abuse convictions, and on the latter he received concurrent sentences of twenty and twenty-two years. On appeal, the defendant argues that the trial court erred by (1) overruling his motion to suppress his statement to police, (2) overruling his motion to disqualify the District Attorney General from prosecuting the case, (3) failing to order the prosecution to answer the defendant's request for a Bill of Particulars, (4) failing to grant his motion for new trial based on the state's refusal to provide Jencks and Brady material, and (5) submitting the same offenses to the jury for consideration as aggravated child abuse and aggravated child neglect without a jury instruction on election of offenses. Following our review of the parties' briefs, the record, and the applicable law, we reverse the judgments of the trial court and remand this case for a new trial.


Court: TCCA


Philip Condra, District Public Defender; and Robert G. Morgan, Assistant District Public Defender, attorneys for appellant, Patrick Guyear Sartain.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General; Michael Taylor, District Attorney General; and Steven Strain, Assistant District Attorney General, attorneys for appellee, State of Tennessee.


The defendant, Patrick Guyear Sartain, appeals as of right the revocation of his community corrections sentence by the Grundy County Circuit Court. The trial court revoked the defendant's sentence and ordered him to serve his previously imposed sentences in the custody of the Department of Correction based upon the defendant's admission that he had violated the terms of his community corrections supervision by failing a drug screen and the resulting unsuccessful completion of court- ordered drug treatment. On appeal, both the state and the defendant contend that the case should be remanded for resentencing. Following our review of the record, we affirm and remand for correction of judgments.


Court: TCCA


Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Quincy Londale Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and Neil Pinkston and Rachel Winfrey, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Quincy Londale Scott, was convicted by a jury in the Hamilton County Criminal Court of facilitation of first degree murder, attempted especially aggravated robbery, carjacking, and two counts of aggravated robbery. He received a total effective sentence of thirty-seven years. On appeal, the appellant challenges the trial court's ruling on his motion to suppress his August 14, 2002, statement to police and the trial court's denial of his motion for a severance of the offenses. Upon review of the record and the parties' briefs, we conclude that the trial court erred in failing to sever the offenses; however, we conclude that the error was harmless and affirm the appellant's convictions.


Legal News
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Legal News
High court denies Henley's last appeal
Late last night the U.S. Supreme Court denied without comment a request by death row inmate Steve Henley to delay his execution pending a ruling on another Tennessee death penalty case. With all appeals exhausted, Henley was put to death early this morning. It was the state's first execution in 16 months.
The Murfreesboro Daily has this account from the AP
Sixth Circuit seeks comments on federal PD
The U.S. Court of Appeals for the Sixth Circuit is accepting comments on the performance of Henry Martin, the federal public defender for the Middle District of Tennessee, as well as on the quality of services provided by his office. Martin's current term will expire on July 21. An evaluation committee will review all comments and make a recommendation to the court as to whether he should be reappointed. Comments, which are due by March 20, should be sent to the Middle District of Tennessee Public Defender Evaluation Committee, c/o Clarence Maddox, Circuit Executive, Sixth Circuit Court of Appeals, 503 Potter Stewart Courthouse, 100 East Fifth Street, Cincinnati, OH 45202.
Download the evaluation criteria
Local bars elect new presidents
A number of local bars have elected new presidents for 2009. They include Adam Parrish of Lebanon, president of the Fifteenth Judicial District Bar Association; Gregory Leffew of Rockwood, president of the Roane County Bar Association; and David W. Tipton with Tipton & Jones in Bristol, president of the Bristol Bar Association. The Bristol group also named two other new officers: vice president Daniel Coughlin with Massengill & Caldwell PC and secretary/treasurer Wes Edens with Icenhour & Edens.

Study finds judicial diversity lacking
A study by the Brennan Center for Justice at New York University School of Law has found that women and minorities remain underrepresented on state trial and appellate court benches. The study looked at 10 states, including Tennessee. The center's report on the findings also includes a list of best practices for attracting minority candidates to the bench.
Download the report and recommendations
Legal aid attorney honored
Legal Aid Society attorney William Bush has been awarded the 2008 B. Riney Green Award from the Tennessee Alliance for Legal Services for his efforts on behalf of Tennesseans on food stamps. Bush, who works in the Cookeville office, negotiated with the state to mitigate overpayment charges to food stamp recipients who were mistakenly sent extra food vouchers. The award is given annually to an attorney who promotes inter-program cooperation among legal aid organizations or strengthens the provision of legal aid in Tennessee.

Legislative News
Mumpower details GOP agenda
Tennessee state House Majority Leader Jason Mumpower yesterday laid out his priorities for the upcoming legislative session. At the top of his list? Overhauling or possibly scrapping the way the state selects appellate judges. Other issues on the list include education and business legislation, passing the state budget, and possibly revisiting legislation from last session that created new requirements for verifiable voting technology.
Read more in the Tennessean
Concert planned to benefit legal arts group
Tennessee Volunteer Lawyers for the Arts is hosting a winter concert with Nashville's chamber ensemble ALIAS and several guest artists on Feb. 12. The event starts at 8 p.m. in the recital hall of Nashville's Blair School of Music. Tickets are $12 for adults and $5 for students and can be purchased online or at the door. All proceeds will benefit the organization's work.
Learn more on the TVLA web site
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Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
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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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