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Friday, March 20, 2009

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Bouffants, Jimmy Church share stage at Memphis event

Memphis is known for great music, so it's no surprise that this year's TBA Annual Convention in the Bluff City features great musical entertainment. One highlight will be the Memphis Music Extravaganza, where the talented and big-haired Bouffants will share the stage with the big sound of the Jimmy Church Review, one of the mid-south's leading dance and show groups. The two bands will alternate performances on one stage to give you a full night of big fun. You won't want to miss this event or any of the other activities and programs scheduled for the 2009 TBA Convention, June 18-20 at the Peabody Hotel in Memphis.

Learn more about the convention or sign up now

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.

00 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
06 - TN Court of Criminal Appeals
00 - 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.

CIVIL CONSTRUCTORS, INC., ET AL. v. GEORGE HAYNES, III

Court: TWCA

Attorneys:

Barbara G. Medley, Lewisburg, Tennessee for the appellant, George Haynes, III.

Frederick W. Hodge and Daniel W. Starnes, Nashville, Tennessee for the appellees, Civil Constructors, Inc., and St. Paul Travelers.

Judge: WALLACE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee was injured on the job, when the dump truck he was driving overturned. Employer denied liability, asserting that the injuries were the direct result of willful misconduct by Employee. The trial court found in favor of Employer on that issue, and denied benefits. Employee has appealed, contending that the evidence preponderates against the trial court's finding. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/haynesg_032009.pdf

STEVEN AMODEO, D.C., ET AL. v. CONSERVCARE, LLC., ET AL.

Court: TCA

Attorneys:

Bruce D. Brooke, Memphis, TN, for Appellants

Michael Richards, Memphis, TN, for Appellee, Health Choice, LLC Randall N. Songstad, Arlington, TN, for Appellee, Terry J. Hanson, D.C

Judge: HIGHERS

In this appeal, we are asked to determine whether the trial court erred in granting summary judgment in favor of Appellees as to Appellants' claims of civil conspiracy; violation of the Tennessee Consumer Protection Act, Tenn. Code Ann. section 47-18-104(b)(8), (27); violation of the Health Maintenance Organization Act of 1986, Tenn. Code Ann. section 56-32-229(a); and common law claims of outrageous conduct and tortious interference with another's business. We are also asked to determine whether the trial court erred in dismissing Appellants' Tennessee Trade Practices Act claims. We affirm.

http://www.tba2.org/tba_files/TCA/2009/amodeos_032009.pdf

STATE OF TENNESSEE v. DENNIS CHARLES ARELLANO, A/K/ACHUCK ARELLANO, A/K/A DR. CHUCK ARELLANO

Court: TCCA

Attorneys:

Joseph E. Ford, Winchester, Tennessee, for the appellant, Dennis Charles Arellano.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Dennis Charles Arellano, a/k/a Chuck Arellano, a/k/a Dr. Chuck Arellano, pled guilty to one count of TennCare fraud valued between $10,000 and $60,000, one count of impersonating a licensed professional, and one count of reckless endangerment. The defendant agreed to a total effective sentence of six years and restitution in the amount of $30,000, with the manner of service of the defendant's sentence left to the discretion of the trial court. Following a sentencing hearing, the trial court sentenced the defendant to nine months in the county jail and the balance of his sentence on probation. He was also ordered to perform 200 hours of public service work. On appeal, the defendant asserts that the trial court erred by denying his request for judicial diversion or, in the alternative, a sentence of full probation. After reviewing the record, we conclude that the trial court properly sentenced the defendant and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/arellanoc_032009.pdf

STATE OF TENNESSEE v. STANLEY BLUE

Court: TCCA

Attorneys:

James E. Thomas (at trial and on appeal); and Juni Ganguli (at trial) Memphis, Tennessee, attorneys for appellant, Stanley Blue.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Reginald Henderson, Paul Hagerman, and Ray Lepone, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Stanley Blue, was convicted by a Shelby County jury of facilitation of premeditated first degree murder, attempted second degree murder, and reckless endangerment. The trial court imposed sentences of thirty-four years, fifteen years and six years, respectively; the trial court also ordered the thirty-four-year sentence to be served consecutively to the six-year sentence for a total effective sentence of forty years. In this appeal as of right, the defendant contends that (1) the trial court erred in allowing the State to define premeditated murder and felony murder during voir dire, (2) the trial court erred in denying an excusal for cause of a juror, (3) the trial court erred in its instructions regarding facilitation, (4) the trial court erred by excluding expert testimony, and (5) the evidence is insufficient to support a conviction for attempted second degree murder. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/blues_032009.pdf

STATE OF TENNESSEE v. STANLEY KEITH HOLT

Court: TCCA

Attorneys:

Robert D. Massey, Pulaski, Tennessee, for the appellant, Stanley Keith Holt.

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

Judge: WELLES

The Defendant, Stanley Keith Holt, was found guilty of manufacturing a Schedule VI substance under Tennessee Code Annotated section 39-17-417(j)(13)(A), a Class A felony. He was sentenced to fifteen years in the Department of Correction. In this direct appeal, he contends that: (1) the evidence at trial was insufficient to convict him; (2) the trial court erred in refusing to allow him to present a certain witness in his defense; (3) the trial court erred in failing to sentence him as an especially mitigated offender; and (4) the trial court erred in fixing a $2,000 fine. After our review, we affirm the Defendant's conviction and sentence. We agree that the trial court erred in fixing a fine exceeding fifty dollars, however, and remand for the empaneling of a new jury for that purpose.

http://www.tba2.org/tba_files/TCCA/2009/holts_032009.pdf

STATE OF TENNESSEE v. LORETTA LYNN MUNSON

Court: TCCA

Attorneys:

William A. Kennedy, Assistant District Public Defender, for the appellant, Loretta Lynn Munson.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Loretta Lynn Munson, appeals the revocation of her community corrections sentence, alleging that the trial court erred by ordering service of the original sentence. Discerning no error, we affirm. The case must be remanded to the trial court, however, for the entry of an order revoking the defendant's probation in case number S51,980.

http://www.tba2.org/tba_files/TCCA/2009/munsonl_032009.pdf

STATE OF TENNESSEE v. ZANDY ORLANDO NELSON a/k/a VANDY A. NELSON

Court: TCCA

Attorneys:

Charles E. Walker (at trial) and J. Chase Gober (at Motion for New Trial and Appeal), Nashville, Tennessee, attorneys for appellant, Zandy Orlando Nelson a/k/a Vandy A. Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sarah Davis, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Zandy Orlando Nelson a/k/a Vandy A. Nelson, appeals as of right his Davidson County Criminal Court conviction of aggravated assault for which he received a sentence of eleven years as a persistent offender, consecutive to a previously imposed sentence. He argues that the evidence is insufficient to support his conviction and that the trial court erred in denying a motion for continuance when the State filed a notice to seek enhanced punishment on the day of trial. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/nelsonv_032009.pdf

ARTIS WHITEHEAD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Artis Whitehead, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich and Theresa McCusker, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Artis Whitehead, appeals the Shelby County Criminal Court's order summarily dismissing as untimely his petition for post-conviction relief. On appeal, the petitioner argues that his petition for certiorari to the United States Supreme Court tolled the one-year limitations period for filing a post-conviction petition, and because his petition was filed within one year of the Supreme Court's order denying certiorari, his post-conviction petition was timely. The petitioner also argues that because counsel incorrectly informed him that the deadline for filing his post- conviction petition was one year after the Supreme Court denied certiorari, due process requires the tolling of the one-year limitations period. After reviewing the record, we conclude that while the petition was untimely, further development of the record is necessary to determine whether counsel's advice regarding the limitations period constituted "misrepresentation, either attributable to deception or other misconduct," see Williams v. State, 44 S.W.3d 464, 469 (Tenn. 2001), that necessitated due process-based tolling of the limitations period. As such, we reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2009/whiteheada_032009.pdf

TODAY'S NEWS

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Legal News

Ramos interviewed for fed judicial posts, reports say

Nashville attorney Gregg Ramos has been interviewed by members of President Barack Obama's administration for vacancies on the U.S. Court of Appeals for the 6th Circuit and U.S. District Court, Middle District of Tennessee, NashvillePost.com reports today. The vacancies were created when 6th Circuit Judge Martha Craig Daughtrey took senior judge status on Jan. 1 and Judge Robert L. Echols took senior judge status in 2007. Other Nashville attorneys said to be up for the District Court job are Bass Berry & Sims lawyers Brant Phillips and David Esquivel as well as Lieff Cabraser Heimann & Bernstein's Kathryn Barnett. Also rumored to be up for the 6th Circuit job is Jane Stranch, a partner at Branstetter Stranch & Jennings.

ETSU official appointed to Court of Judiciary

East Tennessee State University's Richard Manahan has been appointed to the Court of Judiciary. Manahan, ETSU vice president of university advancement and CEO of the ETSU Foundation, will serve as one of three public members of the 15-member court, which investigates, hears and determines charges regarding the discipline or removal of a Tennessee judge. Tennessee Lt. Gov. Ron Ramsey (R-Blountville) appointed Manahan to the position vacated by Jane Latimer when her term expired in January, the Johnson City Press reports.

Endowment provides funds for UT law students pursuing trial attorney career

Thanks to an endowment established by the Chattanooga law firm Summers and Wyatt, University of Tennessee College of Law students pursuing a career as trial attorneys have the opportunity to receive financial assistance. Second-year students at the school are eligible to apply and those who are descendants of members of the Tennessee Bar Association, Tennessee Association for Justice or Tennessee Association of Criminal Defense Lawyers are given special consideration. To learn more about the scholarship or how to contribute to the Summers and Wyatt Trial Advocacy Endowment, contact Penny White, director of the college's Center for Advocacy and Dispute Resolution.

Learn more about the Center for Advocacy and Dispute Resolution

New Mexico repeals death penalty

Gov. Bill Richardson, who in the past has supported capital punishment, signed legislation to repeal New Mexico's death penalty. The new law replaces lethal injection with a sentence of life in prison without the possibility of parole.