Senate committee drops judicial election plan

The Senate Judiciary Committee has agreed to remove plans for directly electing Supreme Court justices from its proposal for dealing with the way Tennessee fills appellate court vacancies. Under the bill sponsored by Republican Senate Majority Leader Mark Norris of Collierville, a judicial nominating commission would continue to present panels of three finalists for the governor to choose from. While the committee today approved Norris' amendment, it delayed a vote on the final version of the bill until Wednesday so it can consider further proposed changes.

Read more in the Knoxville News Sentinel

TODAY'S OPINIONS
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AAA COOPER TRANSPORTATION v. J. J. LEWIS

Court: TWCA

Attorneys:

Steven W. Keyt, Chattanooga, Tennessee for the appellant, AAA Cooper Transportation.

Jeffrey M. Atherton, Chattanooga, Tennessee for the appellee, J. J. Lewis.

Judge: KURTZ

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. The employee alleged that he sustained a compensable neck injury. His employer denied the claim. The trial court found for the employee and awarded 40% permanent partial disability ("PPD"). The employer has appealed, contending that the evidence preponderates against the trial court's finding that the employee's injury occurred at work. In addition, the employer asserts that the trial court erred by directing a written inquiry concerning causation to be sent to the treating physician and by considering the response to that inquiry. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/lewisj_051209.pdf


CHARLES R. NEWMAN v. CITY OF KNOXVILLE

Court: TWCA

Attorneys:

James T. Shea IV, Knoxville, Tennessee, for the appellant, City of Knoxville.

J. Anthony Farmer, Knoxville, Tennessee, for the appellee, Charles R. Newman.

Judge: WADE

This 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) (2008). While serving as a police officer, an employee developed coronary artery disease and made a claim for workers' compensation benefits. The trial court granted an award of permanent and total disability. The City appealed, contending that the trial court erred (1) by holding that the employee's claim not to be barred by a prior settlement agreement, (2) by permitting hearsay testimony to be admitted as parol evidence, and (3) by calculating the rate of compensation based on when the coronary artery disease became disabling, rather than on the condition addressed by the prior settlement. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2009/newmanc_051209.pdf


LILA REINHARD EVERETT v. DAVID EVERETT

Court: TCA

Attorneys:

Brent R. Watson and Suzanne N. Price, Knoxville, Tennessee for the Appellant, Lila Reinhard Everett.

Scarlett B. Latham, Albany, Kentucky, and David L. Valone, Knoxville, Tennessee for the Appellee, David Everett.

Judge: SWINEY

Lila Reinhard Everett ("Mother") sued David Everett ("Father") for divorce. The case was tried before a Special Master. The Trial Court modified the Special Master's report and entered an Order on February 19, 2008, inter alia, pronouncing the parties divorced and entering a Permanent Parenting Plan naming Father as the primary residential custodian of the parties' four minor children with Mother to have visitation. Mother appeals raising issues regarding custody. We vacate only that portion of the Trial Court's order dealing with custody, and we remand for a determination of those issues related to custody.

http://www.tba2.org/tba_files/TCA/2009/everettl_051209.pdf


JOHN MICHAEL KELLY v. STACEY LYNN KELLY

Court: TCA

Attorneys:

Roger James Bean, Tullahoma, Tennessee, for the appellant, John Michael Kelly.

Robert L. Huskey, Manchester, Tennessee, for the appellee, Stacey Lynn Kelly.

Judge: BENNETT

The trial court denied a motion to terminate alimony based upon a finding that the award was for alimony in solido. Because the marital dissolution agreement provided that the award was subject to review, we find the award to be for alimony in futuro and therefore subject to termination upon the remarriage of the wife. We reverse the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2009/kellyj_051209.pdf


STATE OF TENNESSEE v. GALE MARLEEN KRIZKA
CORRECTION

Court: TCA

Attorneys:

Joe H. Walker, District Public Defender and Walter B. Johnson, Assistant Public Defender, for the appellant, Gale Marleen Krizkza.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; J. Scott McCluen, District Attorney General, and Frank Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Gale Marleen Krizka, was indicted for first degree murder for the death of her husband. At the conclusion of the proof at trial, the trial court dismissed the first degree murder charge. The case proceeded to the jury on several lesser included offenses. After deliberating, the jury found Appellant guilty of second degree murder. As a result, the trial court sentenced her to twenty-two years in incarceration. Appellant seeks a review of her conviction, arguing that the evidence was insufficient to support the conviction for second degree murder and that the trial court improperly instructed the jury on criminal responsibility for the acts of another. The determine that the evidence presented at trial supports a jury instruction on criminal responsibility for the acts of another and that the evidence was sufficient to support the second degree murder conviction. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2009/krizkag_051209.pdf


TEKSYSTEMS, INC. AS SUCCESSOR-IN-INTEREST BY MERGER TO MAXIM GROUP, INC. v. REAGAN FARR, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Judge: CLEMENT

This is an action by a staff augmentation company challenging the assessment by the Tennessee Department of Revenue of $2,362,692 in sales taxes, penalties, and accrued interest. The plaintiff specializes in providing, on a temporary basis, information technology professionals who work in the information technology departments of its clients providing programming services as directed by the clients. While working at the offices of the clients under the direct supervision of and at the direction of the clients, the plaintiff's employees fabricated software within the meaning of Tenn. Code Ann. Section 67-6-102(36)(B). The Commissioner deemed the service taxable as the sale of tangible personal property because the plaintiff's contract with its clients expressly stated that it was "an independent contractor." The plaintiff, however, contends the services rendered by its employees come within the so-called "in-house exemption" afforded by Tenn. Code Ann. Section 67-6-102(36)(B), because its employees functioned as agents of the clients, not as independent contractors, and the fabrication of the software is for the clients' own use. The trial court concluded that the plaintiff's employees functioned as agents of the clients in "fabricating, installing and repairing the clients' software," that the in-house exemption applies and, thus, the service is not subject to the tangible personal property sales tax. We affirm.

http://www.tba2.org/tba_files/TCA/2009/teksystems_051209.pdf


STATE OF TENNESSEE v. DAVID BECK

Court: TCCA

Attorneys:

L. Thomas Austin, Dunlap, Tennessee, for the appellant, David Beck.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Mark Tribble, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, David Beck, was originally charged with forty-three counts of identity theft. On February 15, 2005, he pleaded guilty to the first two counts in exchange for dismissal of the remaining forty-one counts and received concurrent three-year sentences. He was granted judicial diversion. After he failed to comply with the terms of judicial diversion, judgments of conviction were entered. He was sentenced to serve 120 days of his sentence in confinement with the remainder to be served on probation. He was granted early release after forty-five days. Subsequently, a probation violation warrant was filed. At the resulting probation violation hearing, the Van Buren County Circuit Court revoked the Defendant's probation and ordered the sentences served in the Department of Correction. In this appeal, he contends that the court abused its discretion in doing so. After our review, we affirm.

http://www.tba2.org/tba_files/TCCA/2009/beckd_051209.pdf


STATE OF TENNESSEE v. GEORGE ANTHONY BRADDOCK

Court: TCCA

Attorneys:

William B. "Jake" Lockert, III, District Public Defender, for the Appellant George Anthony Braddock..

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Dan Alsobrooks, District Attorney General, and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, George Anthony Braddock, was indicted for first degree premeditated murder for the death of his wife. Appellant was found guilty by a jury and sentenced to life in prison. On appeal, Appellant challenges the sufficiency of the evidence. We determine that the evidence is sufficient to support a conviction for first degree murder. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/braddockg_051209.pdf


EDDIE WAYNE GORDON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Danny R. Ellis, Jackson, Tennessee, for the appellee, Eddie Wayne Gordon.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Garry Brown, District Attorney General; and Matthew Hooper, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: MCLIN

The state appeals the post-conviction court's grant of post-conviction relief to the petitioner, Eddie Wayne Gordon. The state argues that the post-conviction court erroneously determined that the petitioner did not voluntarily and understandingly enter his plea of guilty to first degree murder. Upon our review of the record and the parties' briefs, we reverse the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/gordone_051209.pdf


STATE OF TENNESSEE v. JONATHAN ADAM HAITHCOAT

Court: TCCA

Attorneys:

Michael T. Pugh, Clarksville, Tennessee, for the appellant, Jonathan Adam Haithcoat.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; John W. Carney, District Attorney General; and Steven Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Jonathan Adam Haithcoat, was charged with one count of rape of a child. He was convicted, upon a plea of nolo contendere, of the lesser charge of attempted aggravated sexual battery. After a sentencing hearing, he was sentenced to ten years in the Department of Correction. He now appeals the trial court's denial of alternative sentencing. After our review, we affirm.

http://www.tba2.org/tba_files/TCCA/2009/haithcoatj_051209.pdf


STATE OF TENNESSEE v. LOUIS MAYES

Court: TCCA

Attorneys:

Gregory Thomas Carman, Memphis, Tennessee, for the defendant-appellant, Louis Mayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reginald Henderson and Ray Lepone, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Louis Mayes (hereinafter "Mayes"), was convicted by a Shelby County jury of first degree premeditated murder. The only issue Mayes presents for our review is whether the evidence is sufficient to support his conviction. He specifically contends that two witnesses were accomplices as a matter of law and that his conviction was based on their uncorroborated testimony. Finding no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mayesl_051209.pdf


STATE OF TENNESSEE v. ABBY L. MILLS

Court: TCCA

Attorneys:

Rebecca Mills, Ripley, Tennessee, for the appellee, Abby L. Mills.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Julie Pillow, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: MCLIN

The defendant, Abby L. Mills, was indicted by the Lauderdale County Grand Jury of possession of a Schedule II controlled substance, cocaine, with the intent to deliver; possession of a Schedule III controlled substance, Hydrocodone, with the intent to deliver; and possession of a Schedule VI controlled substance, marijuana, with the intent to deliver over .5 ounces. After a hearing, the trial court granted defendantís motion to suppress evidence of items found in the defendantís home. On appeal, the state asserts that the trial court erred in suppressing the evidence obtained as a result of a valid search warrant. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/millsa_051209.pdf


STATE OF TENNESSEE v. PATRICIA ANN PLASKET

Court: TCCA

Attorneys:

J. Robin McKinney, Nashville, Tennessee, for the appellant, Patricia Ann Plasket.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; William E. Gibson, District Attorney General; and Marty S. Savage, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Patricia Ann Plaskett, was charged with driving under the influence, sixth offense, driving under the influence per se, driving on a revoked driver's license, and speeding. Following a jury trial, she was found guilty as charged. In this direct appeal, she argues that the trial court erred in failing to dismiss the charges against her because her indictment was not signed by the district attorney general as is required, she argues, by law. After our review, we affirm.

http://www.tba2.org/tba_files/TCCA/2009/plasketp_051209.pdf


TODAY'S NEWS

Legal News
Legislative News
Disciplinary Actions
TBA Member Services

Legal News
MBA one of three in nation to win ABA Diversity Awards
The Memphis Bar Association, State Bar of Texas and State Bar of Arizona have won this year's ABA Partnership Awards for diversity programs. The winners will be recognized at the NABE/NCBP/NCBF Joint Awards Luncheon in Chicago in July. The MBA won for its High School Summer Law Intern Program, where 100 students were paired with law firms, legal departments and government agencies uniting "white and minority attorneys in doing 'something good' for the community." The purpose of the program was to "expose minority students to the 'real world' practice of law, thereby encouraging them to consider law as a career."
Learn more details
Charges dropped against Paul House
Prosecutors dropped murder charges today against Paul House, a former inmate who spent 22 years on Tennessee's death row. House was free and waiting retrial next month. A federal appeals court heard a petition by House in April to stop the retrial that argued Tennessee prosecutors had "behaved in an abusive manner" by delaying a retrial while test after test showed the same DNA results that the Supreme Court said would have failed to win a conviction against House.
The Leaf-Chronicle carried this AP story
'Torture architect' Yoo starts regular column in Inquirer
John Yoo, under fire for writing legal memos approving harsh interrogation techniques for terrorism suspects, will now try his hand at writing on a regular basis for the Philadelphia Inquirer.
The Philadelphia Daily News comments
Legislative 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
Disciplinary Actions
Memphis attorney placed on disability inactive
The law license of Memphis attorney John M. Moore was transferred on May 6 to disability inactive status pursuant to Section 21 of Supreme Court Rule 9 for an indefinite period of time and until further orders of the Supreme Court. Moore cannot practice law while on disability inactive status.
Read the BPR release
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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