TennBarU Webcast: Introduction to Multidistrict Litigation

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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.

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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.

WILLIAM KEVIN BEELER v. LENNOX HEARTH PRODUCTS, INC. ET AL.

Court: TWCA

Attorneys:

Jeffrey A. Garrety and Michael J. Cash, Jackson, Tennessee, for the appellant, William Kevin Beeler.

R. Dale Thomas and Jesse D. Nelson, Jackson, Tennessee, for the appellees, Lennox Hearth Products, Inc., and Ace American Insurance Company.

Judge: HAYES

Employee sustained a compensable injury to his left knee. After surgery and recovery, his treating physician assigned 2 percent impairment to the left leg. At Employee's request, an IME was conducted with the evaluating physician assigning 7 percent impairment. To resolve the disparity, the parties selected a neutral physician from the Medical Impairment Registry ("MIR") to conduct an examination pursuant to Tennessee Code Annotated section 50-6-204(d)(5) (2005). That physician assigned 3 percent impairment to the leg. Employee obtained a second medical evaluation from a fourth physician, who assigned 13 percent impairment. The trial court, affording the statutory presumption of correctness to the MIR physician's rating, concluded that 3 percent was "the accurate impairment rating" and that this rating had not been rebutted by clear and convincing evidence. Applying the 3 percent impairment rating in conjunction with the statutory cap of 11⁄2 times the anatomical impairment, the trial court awarded 4.5 percent permanent partial disability to the leg. On appeal, Employee contends that he successfully rebutted the statutory presumption. After review, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2009/beelerw_021809.pdf


R. DOUGLAS HUGHES ET AL. v. NEW LIFE DEVELOPMENT CORPORATION

Court: TCA

Attorneys:

Frederick L. Hitchcock, Chattanooga, Tennessee, for the appellants, R. Douglas Hughes, M. Lynne Hughes, Louise Hubbs, and Guy Hubbs.

Joseph A. Woodruff and Michael A. Gardner, Nashville, Tennessee, and Douglas S. Hale, Franklin, Tennessee, for the appellee, New Life Development, Inc.

Judge: BENNETT

Homeowners in a wooded subdivision established as part of a mountain preserve development brought suit to prevent purchaser of surrounding 1,400 acres from developing the property. The trial court granted judgment on the pleadings on all of the plaintiffs' claims. We have concluded that the trial court erred in granting judgment on the pleadings with respect to some of the plaintiffs' claims. We therefore affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2009/hughesr_021809.pdf


STATE OF TENNESSEE v. LARRY J. COFFEY, JR.

Court: TCCA

Attorneys:

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Larry J. Coffey, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: WOODALL

On August 1, 2005, a Rhea County grand jury charged the defendant, Larry J. Coffey, Jr., with one count of aggravated assault of the victim, Philip Latshaw, see T.C.A. section 39-13-102 (2005), and one count of evading arrest, see T.C.A. section 39-16-603 (2005). On November 2, 2007, a Rhea County jury convicted the defendant of the lesser-included offense of simple assault, see T.C.A. section 39-13-102 (2005), a Class A misdemeanor, and levied a fine of $2,500. After a sentencing hearing, the trial court ordered the defendant to serve 11 months and 29 days in the Rhea County Jail. The defendant appeals only his sentence, arguing that the trial court erred in denying his request for probation and ordering him to serve his entire sentence. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/coffeyl_021809.pdf


STATE OF TENNESSEE v. DOUGLAS EDWARD MACKIE

Court: TCCA

Attorneys:

Joe L. Finley, Jr., Cookeville, Tennessee (at trial); and John B. Nisbet, III, Cookeville, Tennessee (on appeal), for the appellant, Douglas Edward Mackie.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William E. Gibson, District Attorney General; and Gary S. McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Cumberland County jury convicted the defendant, Douglas Edward Mackie, of theft of property valued at $1,000 or more, see T.C.A. sections 39-14-103, -105(a) (2003), and the trial court imposed a sentence of two years and three months to be served as 120 days' imprisonment followed by probation. The trial court ordered restitution to the victims in the amount of $700 and to the person to whom the defendant sold the stolen property in the amount of $300. The defendant appeals, claiming that the evidence adduced at trial was insufficient to support his conviction. Finding the evidence sufficient, we affirm the defendant's conviction; however, we reverse the award of restitution to a person other than the victim of the charged offense. Accordingly, the judgment is modified to reflect restitution in the amount of $700 to the victim of the charged offense and to delete the payment of restitution to a nonvictim.

http://www.tba2.org/tba_files/TCCA/2009/mackied_021809.pdf


IRA ISHMAEL MUHAMMAD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John G. McDougal, Chattanooga, Tennessee, for the appellant, Ira Ishmael Muhammad.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and Jason Thomas, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Ira Ishmael Muhammad, appeals the Hamilton County Criminal Court' denial of his petition for post-conviction relief. The petitioner was convicted of attempted second degree murder, attempted voluntary manslaughter, and two counts of aggravated assault. Based upon the imposition of consecutive sentencing, he received an effective sentence of twenty-eight years in the Department of Correction. On appeal, the petitioner argues that: (1) the trial court erred in imposing an excessive sentence based upon application of enhancement factors absent a finding by the jury and in imposing a consecutive sentence; (2) he was denied his Sixth Amendment right to the effective assistance of counsel based upon trial counsel's failure to request recusal of the trial judge and district attorney and appellate counsel's failure to pursue two issues on direct appeal; and (3) he should not have been convicted of attempted voluntary manslaughter as the crime is an impossibility under the law. Following review of the record, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/muhammadi_021809.pdf


STATE OF TENNESSEE v. NICHOLAS A. OVERBAY

Court: TCCA

Attorneys:

Stephen M. Wallace, Blountville, Tennessee, for the appellant, Nicholas Allen Overbay.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Greeley Wells, District Attorney General and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Nicholas A. Overbay, was convicted by a Sullivan County Jury for first degree murder and attempted first degree murder. He was sentenced to life imprisonment for the first degree murder conviction and received a concurrent twenty-year sentence for the attempted first degree murder conviction. Appellant argues on appeal that the trial court: (1) improperly denied a motion to suppress; (2) improperly refused to change the venue of the case; and (3) erroneously allowed a crucial State witness to testify after the witness was permitted to view portions of the trial on live Court TV while waiting to testify. Appellant also contends that the evidence was insufficient to support his convictions. We hold that the motion to suppress physical evidence seized as a result of Appellant's un-Mirandized statement was properly denied, that the denial of a change of venue was proper in the absence of any showing that any juror was biased because of pre-trial publicity, the trial court properly determined that the witness' brief exposure to television coverage of the trial did not affect the witness' testimony, and that the evidence was sufficient. Consequently, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/overbayn_021809.pdf


STATE OF TENNESSEE v. JAMES ALBERT TAYLOR

Court: TCCA

Attorneys:

Charles P. Dupree (on appeal) and Lorrie Miller (at trial), Chattanooga, Tennessee, for the appellant, James A. Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; William H. Cox, District Attorney General; and Jason Thomas, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, James Albert Taylor, entered open guilty pleas in the Hamilton County Criminal Court to one count of aggravated burglary and one count of aggravated assault, both Class C felonies, and conceded his status as a Range II, multiple offender. On September 9, 2005, Taylor was sentenced to six years for the aggravated burglary charge and ten years for the aggravated assault charge to be served concurrently for an effective sentence of ten years at thirty-five percent in the Department of Correction. In his appeal, Taylor argues the trial court erred by (1) accepting his guilty plea without determining the voluntariness of the plea under State v. Mackey, 553 S.W.2d 337 (Tenn. 1997) and (2) imposing an effective ten-year sentence in confinement in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Upon review, Taylor's judgments of conviction are reversed, the sentences imposed by the trial court are vacated, and the case is remanded for a resentencing hearing, following Taylor's election to proceed under the pre-2005 sentencing act or the amended sentencing act accompanied by Taylor's written waiver of his ex post facto protections.

http://www.tba2.org/tba_files/TCCA/2009/taylorj_021809.pdf


HOWARD WALTER THOMAS v. STATE OF TENNESSEE
CORRECTION


Court: TCCA

Attorneys:

W. Thomas Dillard and Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, Howard Walter Thomas.

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

Judge: WITT

The petitioner, Howard Walter Thomas, appeals the denial of his petition for post-conviction relief. In this appeal, he alleges that the trial court's reliance on the ruling in State v. Coley, 32 S.W.3d 831 (Tenn. 2000), to prohibit the introduction of expert testimony regarding eyewitness identification at his trial deprived him of the due process of law, infringed upon his constitutional rights to present a defense and to compulsory process, and rendered his trial fundamentally unfair. Discerning no error in the judgment of the post-conviction court, we affirm.

http://www.tba2.org/tba_files/TCCA/2009/thomash_021809.pdf


TODAY'S NEWS

Legal News
Legislative News
Upcoming

Legal News
Second applicant files for circuit court seat
Tullahoma attorney James F. Conley with Thomas, Copeland and Bell has submitted an application to fill the vacancy on the 14th Judicial District Circuit Court created by the death of Judge John W. Rollins. He joins Manchester lawyer Mark A. Williams with Fisher & Williams PLC in seeking to fill the seat. Applications for consideration are due next Thursday, Feb. 26.
Get details on the application process from the AOC
National firm to represent more than 100 in TVA suit
The New York law firm associated with environmental activist Erin Brockovich filed a federal lawsuit today against the Tennessee Valley Authority (TVA) on behalf of 106 Roane County residents affected by the company's Dec. 22 coal ash spill. Brockovich and representatives from Weitz & Luxenberg visited the area last month to meet with residents and collect samples from the spill. The suit is the fifth filed in federal court since the incident.
The News Sentinel reports
MALS partnership will help transitional youth
Memphis Area Legal Services Inc. announced this week that it is partnering with the Memphis-based nonprofit Youth Villages to teach children who have been in foster care or state custody how to transition to the "real" world once they turn 18. Youth Villages recently contracted with the Tennessee Department of Children's Services to provide a range of services to young people transitioning out of state custody. MALS will provide basic legal information on rights and responsibilities, information on the juvenile justice system, and counsel when needed. For more information about the program or to get involved contact Linda Warren Seely at (901) 255-3417 or lseely@malsi.org.

Chief justice's group tackles state court issues
Margaret H. Marshall, chief justice of the Massachusetts Supreme Court and president of the Conference of Chief Justices, issued a warning about the health of state courts this week saying massive state budget shortfalls threaten continued operation of courts around the country while special interest money in judicial races erodes public confidence in the legal system. The ABA Journal reports on her remarks to the House of Delegates and looks at states that are cutting back on court expenditures.
Read more here
Federal judiciary unveils wish list
The federal judiciary has put together a wish list of issues it hopes will get action from the new Congress and administration. Its four priorities are salary restoration for judges, a cost-of-living adjustment in 2009, reducing the number of vacancies on the bench, and improving relations with the other branches of government. The ABA Journal looks at why efforts this year may prove more successful.
Learn more here
Justice Dept. continues to defend secrets
According to the Associated Press, the Obama Justice Department is continuing to defend Bush Administration decisions to keep documents about domestic wiretapping and collection of data on travelers and U.S. citizens secret. With multiple lawsuits in progress, the department has opposed efforts to delay cases until it rewrites Freedom of Information Act guidelines. That means the cases will continue under the previous rules, which blocked release of the information.
News Channel 5 has the story
Study shows greater pro bono activity
A new study by the ABA Standing Committee on Pro Bono and Public Service has found that more lawyers are donating more time to represent the poor at no charge. The research showed that 73 percent of attorneys provided some kind of pro bono representation -- up from 66 percent in 2005 -- and that the average number of hours donated increased from 39 to 41 over the same time frame.
Read more about the study
Legislative News
Williams, DeBerry back on the job after absences
State House Speaker Kent Williams has returned to the legislature after missing part of last week attending to his hospitalized mother. His absence required the House to take the unusual step of electing a temporary speaker because his usual replacement, Speaker Pro Tempore Lois DeBerry, also was away recovering from an illness. DeBerry returned to work yesterday as well, reports the Memphis Daily News.

Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Upcoming
Supreme Court to hold public meeting in Knoxville
The Tennessee Supreme Court will hold a public meeting in Knoxville on Feb. 26 at 3 p.m. to discuss legal needs and access to justice issues in the city and surrounding areas of east Tennessee. The event will be held at the Lawson McGhee Library, 500 West Church Street. Supreme Court Justice Sharon Lee will moderate the meeting, which will include a panel presentation by General Sessions Judge Charles Cerney; Circuit Court Clerk Catherine Quist; Knoxville Bar Association President Tom Ramsey; UT College of Law Clinical Director Ben Barton; members of the private bar; and Legal Aid of East Tennessee. For more information or to RSVP please contact Rebecca Rhodes at (615) 741-2687 x164 or Rebecca.Rhodes@tncourts.gov


 
 
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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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