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Thursday, April 23, 2009

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Trial practice seminars on tap for tomorrow

Whether your practice involves time in the courtroom, or preparing for cases that ultimately settle, the upcoming Trial Practice for Today's Litigator program from the TBA's YLD will provide practical tools to enhance your career. Topics include taking effective depositions, using interrogatories to your benefit and gaining leverage in settlement negotiations. The course also will include a session on writing a winning summary judgment brief and feature a panel of judges and seasoned litigators discussing how to protect your most valuable asset: your reputation. The program is tomorrow in Knoxville, Memphis and Nashville.

See the outstanding line up of speakers for each city

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
02 - TN Court of Appeals
07 - 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.

CHRISTOPHER LOVIN v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Jason D. Demastus, Chattanooga, Tennessee, for the appellant for the purpose of oral argument only; Christopher Lovin, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Fulks, Senior Counsel (on appeal); and William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Assistant District Attorney General (at trial), for the appellee, State of Tennessee.

Wade V. Davies and Anne Passino, Knoxville, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.

Judge: KOCH

This appeal involves the procedure to be followed when a prisoner desires to discharge retained counsel and to represent himself on appeal from the denial of a petition for post-conviction relief. The prisoner was convicted of first degree murder in the death of his infant son. After his conviction was affirmed on appeal, the prisoner filed a petition for post-conviction relief in the Criminal Court for Claiborne County. He became dissatisfied with the lawyer his parents retained to represent him in the post-conviction proceeding. After the trial court dismissed his post-conviction petition and the case was appealed to the Court of Criminal Appeals, the prisoner attempted to discharge his retained lawyer and to represent himself before the appellate court. However, his retained lawyer declined to withdraw because the Court of Criminal Appeals had denied the prisoner's motion to dismiss his retained counsel. Thereafter, the Court of Criminal Appeals affirmed the denial of the prisoner's petition for post-conviction relief, and the prisoner filed a Tenn. R. App. P. 11 application. We granted the prisoner's application for permission to appeal to determine whether the prisoner had effectively discharged his retained lawyer and whether the Court of Criminal Appeals should have permitted him to represent himself on appeal from the denial of his petition for post-conviction relief. We have determined that the prisoner effectively discharged his retained lawyer and that the lawyer should have notified the Court of Criminal Appeals that he desired to withdraw from the case because he had been discharged. Because the retained lawyer failed to inform the Court of Criminal Appeals that he had been discharged, we vacate the judgment affirming the denial of the prisoner's petition for post-conviction relief and remand the case to the Court of Criminal Appeals for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2009/lovinc_042309.pdf

CHRISTY LEANN SMITH v. LEONA M. PRATT, EXECUTRIX OF THE ESTATE OF STEPHEN M. PRATT, M.D., DECEASED, AND HCA HEALTH SERVICES OF TENNESSEE, INC. D/B/A CENTENNIAL MEDICAL CENTER

Court: TCA

Attorneys:

Frank Grace, Jr., Brian D. Cummings, Clarence James Gideon, and Brian P. Manookian, Nashville, Tennessee, for the appellants, Leona M. Pratt, Executrix of the Estate of Stephen M. Pratt, M.D., Deceased, and HCA Health Services of TN, Inc. d/b/a Centennial Medical Center.

George H. Nolan and Eric W. Smith, Nashville, Tennessee, for the appellee, Christy Leann Smith.

Judge: BENNETT

Patient sued her surgeon for malpractice and the hospital for allowing the surgeon to practice in its facilities. The trial court ruled that the hospital was not eligible for the qualified immunity provided in Tenn. Code Ann. section 63-6-219(d)(1). We reverse.

http://www.tba2.org/tba_files/TCA/2009/smithc_042309.pdf

Clement Concurring
http://www.tba2.org/tba_files/TCA/2009/smithc_con_042309.pdf

STANLEY WALLACE v. KROGER LIMITED PARTNERSHIP I

Court: TCA

Attorneys:

Stanley Wallace, pro se Appellant.

Charles F. Sterchi, III, Knoxville, Tennessee, for the Appellee, Kroger Limited Partnership I.

Judge: SWINEY

This is a personal injury lawsuit filed by Stanley Wallace ("Plaintiff") against Kroger Limited Partnership I ("Kroger"). Plaintiff, proceeding pro se, claims that he was injured when he slipped and fell at a Kroger store in Blount County on March 10, 2007. Plaintiff's complaint was filed on March 11, 2008. The Trial Court dismissed the complaint after finding that it was filed outside the applicable statute of limitations. Plaintiff appeals, and we affirm.

http://www.tba2.org/tba_files/TCA/2009/wallaces_042309.pdf

STATE OF TENNESSEE v. NANCY BLUE

Court: TCCA

Attorneys:

Tom W. Crider, District Public Defender; and J. Diane Blount, Assistant District Public Defender, attorneys for appellant, Nancy Blue.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; Garry Brown, District Attorney General; Jerald Campbell and Hal Dorsey, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Nancy Blue, appeals as of right her jury convictions for two counts of rape of a child and two counts of incest. She received sentences of twenty-five years for each rape of a child conviction and six years for each incest conviction. The rape of a child sentences were ordered to be served consecutively and the incest convictions were ordered to be served concurrently, for a total effective sentence of fifty years. The defendant argues that the evidence is insufficient to support her convictions and that the trial court imposed an excessive sentence both in length and manner of service. Following our review, we affirm the convictions but remand for the entry of modified and corrected judgments consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/bluen_042309.pdf

STATE OF TENNESSEE v. MIKE BROTHERTON

Court: TCCA

Attorneys:

Matthew M. Maddox, Huntingdon, Tennessee, for the appellant, Mike Brotherton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Hansel McCadams, District Attorney General; and Steven Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Mike Brotherton, pled guilty to the offense of driving under the influence, first offense, and reserved a certified question of law regarding the validity of the traffic stop that resulted in his arrest. After careful review, we conclude that the trooper lacked reasonable suspicion to make the traffic stop and dismiss the charge against the defendant.

http://www.tba2.org/tba_files/TCCA/2009/brothertonm_042309.pdf

CHARLES ORLANDO FIELDS v. HENRY STEWARD, WARDEN

Court: TCCA

Attorneys:

Charles Orlando Fields, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Charles Orlando Fields, appeals the summary dismissal of his petition for habeas corpus relief by the Lauderdale County Circuit Court. In his appeal, he contends that the indictment was void because: (1) it did not include all the essential elements for the offense for which he was convicted; (2) his sentencing range was illegal; and (3) the trial court did not have subject matter jurisdiction to sentence him. After careful review, we conclude the petitioner has not established that he is entitled to habeas corpus relief. The judgment of the habeas corpus court is affirmed in accordance with Rule 20 of the Rules of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2009/fieldsc_042309.pdf

STATE OF TENNESSEE v. ROGER L. HUNT
Corrected Opinion

Court: TCCA

Attorneys:

Claudia S. Jack, District Public Defender, and Robert H. Stovall, Jr., Assistant Public Defender, for the appellant, Roger L. Hunt.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Roger L. Hunt, pled guilty to third offense driving under the influence, possession of drug paraphernalia, and misdemeanor possession of a Schedule II controlled substance, after the trial court denied his motion to suppress. The defendant's plea agreement preserved a certified question of law regarding the legality of the police stop before his arrest, which was based upon the defendant's not having a light illuminating his license plate. Upon consideration of the certified question, we hold that the trial court erred in denying the motion to suppress. We reverse the judgments of the trial court and vacate the convictions.

http://www.tba2.org/tba_files/TCCA/2009/huntr_corr_042309.pdf

STATE OF TENNESSEE v. JONATHAN DEWAYNE JOHNSON

Court: TCCA

Attorneys:

Bethel Campbell Smoot, Jr., District Public Defender, and Jesse Stockwell, Assistant Public Defender, for the appellant, Jonathan Dewayne Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles M. Layne, District Attorney General; and Kenneth J. Shelton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Jonathan Johnson, appeals the decision of the Coffee County Circuit Court revoking his probation. As part of a plea agreement, the defendant pled guilty to one count of possession of Schedule II cocaine with intent to sell or deliver, a Class C felony, and one count of evading arrest, a Class D felony. The trial court imposed a four-year sentence for the drug conviction, with one year to be served in the county jail followed by three years of probation. For the evading arrest conviction, the defendant received a two-year sentence to be served in the Department of Correction. A probation violation report was filed against the defendant, alleging multiple violations of the terms and conditions of his probation. Following a revocation hearing, the trial court revoked the defendant's sentence and ordered that he serve his four-year sentence. On appeal, the defendant asserts that the trial court erred in revoking his probation. Following review of the record, we find no error and affirm the revocation.

http://www.tba2.org/tba_files/TCCA/2009/johnsonj_042309.pdf

STATE OF TENNESSEE v. CHRISTOPHER LEE PIRTLE

Court: TCCA

Attorneys:

Autumn A. Eggleston (on appeal); and Jeremy Parham (at trial), Nashville, Tennessee, attorneys for appellant, Christopher Lee Pirtle.

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

Judge: THOMAS

The defendant, Christopher Lee Pirtle, was convicted by a Davidson County jury of one count of aggravated robbery, a Class B felony, for which he received a sentence of ten years as a Range I, standard offender. In this appeal as of right, he contends that the evidence is insufficient to support his conviction, that the trial court erred in admitting evidence regarding firearms found at the defendant's arrest, and that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/pirtlec_042309.pdf

STATE OF TENNESSEE v. DEREK SMITH

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; and Garland Erguden (on appeal) and Russell White and Michael Johnson (at trial), Assistant Public Defenders, for the appellant, Derek Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William L. Gibbons, District Attorney General; and Pamela Fleming and Damon Griffin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Derek Smith, pled guilty as a Range I, standard offender to aggravated burglary, a Class C felony, and assault, a Class A misdemeanor. He received sentences of three years and eleven months, twenty-nine days to be served consecutively in the community corrections program. After the defendant was charged with theft while in the community corrections program, the trial court found that the defendant violated the terms of his community corrections sentence, revoked the sentence, and imposed a new sentence of eleven years as a Range III, persistent offender. On appeal, the defendant contends the trial court erred in resentencing the defendant in a range higher than that of the original sentence. We agree, and we reverse the judgment of the trial court and remand the case for resentencing of the defendant as a Range I offender.

http://www.tba2.org/tba_files/TCCA/2009/smithd_042309.pdf

Effect of SB 1331/HB 1204 Regarding Water Quality Criteria for Selenium

TN Attorney General Opinions

Date: 2009-04-22

Opinion Number: 09-64

http://www.tba2.org/tba_files/AG/2009/ag_09_64

TODAY'S NEWS

Legal News
Legislative News
Politics
Passages
TBA Convention 2009
TBA Member Services

Legal News

Annual law school rankings put Vanderbilt in top 20

U.S. News & World Report has released its 2010 law school rankings with no major upheavals among top spots. Yale remains first on the list, followed by Harvard and Stanford, which tied for second place last year. Two Tennessee schools made the top 100 list: Vanderbilt University came in at 17, while the University of Tennessee College of Law ranked 59. For the first time this year, the magazine also added rankings for part-time law schools although no Tennessee schools made the grade in that category. See the list.

Read commentary on the rankings from the National Law Journal

First applicant files for 13th district court

Livingston lawyer Amy V. Hollars, currently serving as a special judge in the 13th Judicial District, has applied for a vacancy on the circuit court created by the impending resignation of Judge John A. Turnbull. The deadline to submit applications is April 28, 2009. The Judicial Selection Commission will meet May 22 in Cookeville to hear public comments and consider the candidates.

Learn more on the AOC web site

Additional firms adopt pro bono policies

Three additional firms in the state have adopted formal pro bono policies to guide employee involvement in legal aid work. They are: Dodson Parker Behm & Caparella PC, the Law Office of James A. Rose and Waddey & Patterson PC -- all of Nashville. As part of the 4ALL campaign, the TBA is encouraging firms to adopt formal policies. More than 40 have done so. See the list of firms. Others interested in adopting pro bono policies will find information here.

Torture memos continue to dominate news

Release of Justice Department memos authorizing the use of controversial torture techniques continues to dominate the national news. From revelations about who had a hand in authorizing the tactics, to reports on how many times waterboarding was used, the memos are providing a wealth of information. Legislative leaders appear to be poised to move forward with hearings despite President Obama's preference that an independent investigative panel handle the matter. In an early sign that memo authors may bear the brunt of the nation's outrage, the New York Times and a Democratic congressman have called for the impeachment of 9th U.S. Circuit Court of Appeals Judge Jay Bybee, who authored several legal opinions in 2002.

Memphis bar packs events into Law Week

The Memphis Bar Association launched its Law Week activities with the annual bar picnic last Friday. On Monday, the bar held a memorial service to honor the 24 local lawyers and judges who died in the past year. Today it holds its traditional naturalization ceremony at which more than 340 individuals will be sworn in as new citizens and a pro bono reception that will honor attorneys who offered free legal services on 4/4 and throughout the year. Throughout the week, attorneys visited local high schools to talk to students about the importance of the law. The events were planned by Mary Hale and Frank Thacher, co-chairs of the bar's Law Week Committee.