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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.

00 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
07 - TN Court of Criminal Appeals
03 - 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.

KARL TARTT v. CITY OF LAVERGNE ET AL.

Court: TWCA

Attorneys:

Stephen W. Elliott and Alison D. Hunley, Nashville, Tennessee, for the appellants, City of LaVergne and TML Risk Management Pool.

Jill T. Draughon, Nashville, Tennessee, for the appellee, Karl Tartt.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After sustaining injuries to his head and leg in a work-related motor vehicle accident, the employee filed suit seeking workers' compensation benefits in the Chancery Court for Rutherford County. Following a bench trial, the trial court awarded the employee a 14% permanent partial disability to the leg and an additional 2% to the body as a whole due to chronic headaches. The employer has appealed, contending that the trial court erred in awarding benefits for the headaches. We disagree and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/tarttk_061109.pdf


RUSSELL COPE v. TENNESSEE CIVIL SERVICE COMMISSION

Court: TCA

Attorneys:

W. Gary Blackburn, Nashville, Tennessee, for the appellant, Russell Cope.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Eugenie B. Whitesell, Senior Counsel, Office of the Attorney General, Nashville, for the appellee, Tennessee Civil Service Commission.

Judge: DINKINS

An employee of the Tennessee Highway Patrol was terminated based on the employee's handling of a traffic stop five and a half years prior. The employee received written notice that his superiors were recommending his termination and a pre-termination opportunity to respond to the charges against him; the Commissioner of the Department of Safety agreed with the recommendation and terminated the employee's employment. The employee filed a post-termination grievance and received a hearing before the Commissioner in which the employee's termination was upheld. The employee appealed to the Tennessee Civil Service Commission and a contested case hearing was held before an administrative law judge sitting for the Commission. The administrative law judge upheld the termination and the employee filed a petition for judicial review. The trial court affirmed the decision of the Commission and the employee appeals. The employee's central challenge is that the nearly six year delay between the incident and the disciplinary action taken by the Department violated his due process rights. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/coper_061109.pdf


WALLACE R. CORNETT, JR. v. ELIZABETH PAYNE BURTON
CORRECTION


Court: TCA

Attorneys:

Larry L. Roberts, Nashville, Tennessee for the Appellant, Wallace R. Cornett, Jr.

Russ Heldman, Nashville, Tennessee for the Appellee, Elizabeth Payne Burton.

Judge: SWINEY

Wallace Cornett, Jr. ("Plaintiff") sued his ex-wife, Elizabeth Payne Burton ("Defendant"), for malicious prosecution. After all the proof had been presented, the Trial Court granted Defendant's motion for directed verdict finding and holding that "reasonable minds could not differ on the proposition that the element of lack of probable cause was not proved by the Plaintiff...." Plaintiff appeals to this Court. We vacate and remand this case to the Trial Court for a new trial.

http://www.tba2.org/tba_files/TCA/2009/cornettw_corr_061109.pdf


GEORGE A. HERBISON v. MICHELLE DAWN (FUQUA) HERBISON

Court: TCA

Attorneys:

Charles M. Cary, Bolivar, Tennessee, for the Defendant/Appellant Michelle Dawn (Fuqua) Herbison.

David D. Wolfe, Dickson, Tennessee, for the Plaintiff/Appellee George A. Herbison.

Judge: KIRBY

This is a divorce case involving the distribution of marital property. Prior to the parties' marriage, the husband owned and operated a medical supply business, and continued to operate the business after they were married. The business experienced some increase in value during the marriage. After the parties separated, the business' increase in value was very substantial. The husband filed for divorce. Subsequently, he filed a motion for partial summary judgment. The trial court declared the parties divorced and adopted the consent permanent parenting plan, reserving for trial issues relating to child support and the division of the marital estate. After the trial, the trial court found that the wife had not substantially contributed to the increase in value of the husband's business, and that it remained the husband's separate property. The trial court then divided the marital property. The wife appeals, arguing that the increase in value of the husband's business is marital property and that the distribution of the marital estate was inequitable. We affirm, finding that the evidence does not preponderate against the finding that the increase in the value of the company is the husband's separate property and finding no abuse of discretion in the trial court's distribution of the marital estate.

http://www.tba2.org/tba_files/TCA/2009/herbisong_061109.pdf


DREXEL CHEMICAL COMPANY, INC. v. GERALD MCDILL

Court: TCA

Attorneys:

Taylor A. Cates, Memphis, Tennessee, for the appellant, Drexel Chemical Company, Inc.

Richard D. Underwood, Memphis, Tennessee, for the appellee, Gerald McDill.

Judge: FARMER

This breach of contract action arises from the parties' employment agreement. Employer agreed to pay Employee $10,000.00 to relocate to the city where Employer's plant was located. Employee moved to the local area without his family and Employer paid him $10,000.00. After Employee terminated his employment, Employer sued to recover the $10,000.00 because it claims that Employee failed to satisfy the relocation requirement because he did not move his family with him to the local area. The trial court held that Employee satisfied the relocation requirement. We affirm.

http://www.tba2.org/tba_files/TCA/2009/mcdillg_061109.pdf


PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (PEER) v. TENNESSEE WATER QUALITY CONTROL BOARD, ET AL.

Court: TCA

Attorneys:

Elizabeth Murphy, Nashville, Tennessee, for the appellant, Public Employees for Environmental Responsibility.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and Sohnia W. Hong, Senior Counsel, for the appellee, State of Tennessee, Department of Environment and Conservation. John P. Williams, Nashville, Tennessee for the appellee, Waste Management, Inc. of Tennessee.

Judge: FARMER

Upon review under the Uniform Administrative Procedures Act, the trial court affirmed the decision of the Water Quality Control Board upholding the decision of the Tennessee Department of Environment and Conservation to approve Waste Management's application for a permit to expand a landfill into a mitigation wetlands area. Petitioner appeals. We dismiss the appeal for lack of standing and as moot.

http://www.tba2.org/tba_files/TCA/2009/peer_061109.pdf


JONATHAN ANDREW LEE PERKINS, JR. v. SARAH ELLA BRUNGER, STATE OF TENNESSEE, BUREAU OF TENNCARE

Court: TCA

Attorneys:

E. Covington Johnston and J. Timothy Street, Franklin, Tennessee, for the appellant, Sarah Ella Brunger.

Joseph A. Woodruff, Paul A. Gontarek and Michael A. Gardner, Nashville, Tennessee, for the appellee, Jonathan Andrew Lee Perkins, Jr. Robert E. Cooper, Jr., Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, for the State of Tennessee, Bureau of TennCare.

Judge: CLEMENT

The sole beneficiary of a decedent filed this action against Defendant to set aside as fraudulent two conveyances of real property to Defendant. The Bureau of TennCare, which had provided benefits to the decedent while a nursing home resident, intervened as a creditor of the decedent alleging that the gratuitous conveyances were fraudulent under Tenn. Code Ann. section 66-3-308, the Uniform Fraudulent Transfer Act (the "UFTA"), because they rendered the nursing home resident insolvent. It is undisputed that while a nursing home resident, the resident, now deceased, was receiving TennCare benefits at the time of the conveyances and that the conveyances rendered him insolvent. Plaintiff and TennCare filed a joint motion for summary judgment. The trial court granted summary judgment in favor of Plaintiff and TennCare on the ground that the quitclaim deeds were fraudulent conveyances under the UFTA. The court declared both conveyances null and void and ordered that title be vested in the decedent's estate. Defendant appealed alleging that Plaintiff was not entitled to relief because the UFTA only affords relief to creditors against their debtors and Plaintiff was not a creditor. As for TennCare, which is a creditor, Defendant contends it was error to set aside both conveyances as TennCare's remedy under Tenn. Code Ann. section 66-3-308 was limited to avoiding the transfer to the extent necessary to satisfy TennCare's claim. We have determined that the remedies a creditor may obtain under the UFTA as a result of transfers that rendered the debtor insolvent include: avoidance of the transfer to the extent necessary to satisfy the creditor's claim; attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by title 26; injunctive relief against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property; appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or any other relief the circumstances may require. Further, if the creditor has obtained a judgment on a claim against the debtor, if the court so orders, the creditor may levy execution on the asset transferred or its proceeds. We, therefore, have concluded that the trial court erred by granting summary judgment in favor of Plaintiff under the UFTA, as Plaintiff is not a creditor, and that judgment in favor of TennCare should be modified to afford TennCare relief to the extent necessary to satisfying TennCare's claim, which may or may not necessitate setting aside both conveyances.

http://www.tba2.org/tba_files/TCA/2009/perkinsj_061109.pdf


STATE OF TENNESSEE v. PHYLLIS ANN AMOS

Court: TCCA

Attorneys:

Whitney P. Taylor, Kingsport, Tennessee, for the appellant, Phyllis Ann Amos.

Robert J. Cooper, Jr, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Kent Chitwood, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Phyllis Ann Amos, entered pleas of guilty to possession of marijuana, a Class E felony; possession of 0.5 grams or more of cocaine, a Class B felony; maintaining a dwelling where controlled substances are kept or sold, a Class D felony; possession of drug paraphernalia, a Class A misdemeanor; and felony possession of dihydrocodone, a Class D felony. In accordance with the negotiated plea agreement, Defendant accepted concurrent sentences of eleven months, twenty-nine days for her misdemeanor conviction, one year for her Class E felony conviction, two years for each Class D felony conviction, and ten years for her Class B felony conviction. The felony sentences are as a Range I, standard offender. Following a sentencing hearing, the trial court imposed the agreed upon sentences and ordered Defendant to serve her sentences in confinement. On appeal, Defendant argues that the trial court erred in refusing to grant alternative sentencing. After a thorough review of the record, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/amosp_061109.pdf


RONNIE BRADFIELD v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Ronnie Bradfield, Whiteville, Tennessee, Pro Se.

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

Judge: GLENN

The petitioner, Ronnie Bradfield, appeals the Lauderdale County Circuit Court's summary dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the lower court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to establish that his conviction is void or his sentence illegal, we conclude that the State's motion is well-taken. Accordingly, we affirm the lower court's summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2009/bradfieldr_061109.pdf


JONATHAN CLAUDE CORN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Jonathan Claude Corn.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Patricia A. Cristil, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Jonathan Claude Corn, appeals the Knox County Criminal Court's dismissal of his petition for post-conviction relief from his conviction for first degree premeditated murder of his seven-week-old son and resulting life sentence. On appeal, he contends the trial court erred by not finding that petitioner's counsel was ineffective and that the ineffectiveness resulted in an unknowing and involuntary guilty plea. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/cornj_061109.pdf


EDDIE WAYNE GORDON v. STATE OF TENNESSEE
CORRECTION


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_corr_061109.pdf


OLIVER J. HIGGINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Oliver J. Higgins, Pine Knot, Kentucky, Pro Se.

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

Judge: GLENN

The petitioner, Oliver J. Higgins, appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that the post-conviction court erred by summarily dismissing the petition without holding an evidentiary hearing or making adequate findings of fact and conclusions of law. The State has responded with a motion that we affirm the summary dismissal pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the petitioner filed his petition well outside the statute of limitations and has not shown any reason why the limitations period should be tolled, we affirm the summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2009/higginso_061109.pdf


THOMAS E. KOTEWA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brennan P. Lenihan, Oak Ridge, Tennessee, for the appellant, Thomas E. Kotewa.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Thomas Edward Kotewa, appeals the denial of his petition for post-conviction relief. He pled guilty to second degree murder and received an agreed-upon sentence of fifteen years as a Range I, violent offender. On appeal, he contends that: he received ineffective assistance of counsel; his guilty plea was not entered knowingly and voluntarily; the post- conviction court erred by failing to enter specific factual findings or legal conclusions; and Supreme Court Rule 28 was violated by both the State and the post-conviction court. After careful review, we affirm the judgment from the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/kotewat_091109.pdf


STATE OF TENNESSEE v. CLIFFORD W. MCCULLEY

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Andrew J. Gibbons, Assistant District Public Defender, for the appellant, Clifford W. McCulley.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Janine Myatt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Clifford W. McCulley, pleaded guilty to burglary, a Class D felony, and theft of property valued at $500 or less, a Class A misdemeanor, in exchange for an agreed effective two-year sentence as a Range I, standard offender with the manner of service to be determined by the trial court. After a hearing, the trial court ordered the defendant to serve his sentence in confinement. The defendant appeals from the trial court's denial of alternative sentencing. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mcculleyc_061109pdf


Fair Campaign Practices Act (HB891/SB1060)

TN Attorney General Opinions

Date: 2009-06-11

Opinion Number: 09-112

http://www.tba2.org/tba_files/AG/2009/ag_09_112.pdf

Power of City to Charge for Utilities and Police Protection Provided for County Fairground

TN Attorney General Opinions

Date: 2009-06-11

Opinion Number: 09-113

http://www.tba2.org/tba_files/AG/2009/ag_09_113.pdf

Constitutionality of Legislation Defining Certain Gang Activity as a Public Nuisance

TN Attorney General Opinions

Date: 2009-06-11

Opinion Number: 09-114

http://www.tba2.org/tba_files/AG/2009/ag_09_114.pdf

TODAY'S NEWS

Legal News
Legislative News
Passages
TBA Member Services

Legal News
Twelfth Judicial District bar names officers
The Twelfth Judicial District Bar Association has named officers for the coming year. Rhea County General Sessions Judge James Wendell of Dayton is the new president. Marion County General Sessions Judge Marshall A. Raines of Jasper is president-elect. Charles G. Jenkins Jr. with Swafford Jenkins & Raines, also of Jasper, is the new secretary/treasurer.

Sheriff seeks funds to staff new jail
Hawkins County Sheriff Roger Christian is asking county commissioners to fund 20 new positions to staff the county's new jail and for additional funds to put officers on the road and in the courtrooms. The new jail will be located in the Justice Center complex on Highway 11W. The building also will house the sheriff's office and the General Sessions, Circuit and Juvenile Courts.
The Rogersville Review has more
Judge approves Habitat community
Fifth Circuit Court Judge Joe Binkley Jr. has ruled in favor of a Nashville Area Habitat for Humanity project slated to make 450 homes available to needy families. The ruling came in a suit brought by area residents who had challenged the zoning of the area in question.
The Nashville Business Journal reports
Group hosts law school tuition contest
Law students have just over a month to create a video and attempt to win $10,000 toward law school tuition from the nonprofit student loan company Access Group. Videos must be uploaded by July 15 and be no more than 4 minutes long, and should address what inspired the author to want to become a lawyer. Any law school student enrolled as of Aug. 1 is eligible to take a chance at the $10,000 prize or one of up to five $1,500 honorable mention awards.
Learn more here
Legislative News
Crime bill falls victim to cost
The Tennessee legislature is pinching pennies, and crime and judicial bills have paid the price. Unsuccessful proposals include a bill to create an alert system for lost seniors, an attempt to strengthen state sentencing laws and a pilot project to create a unified family court in Shelby County.
Read more in the Commercial Appeal
Budget battles bog down General Assembly
The final days of any legislative session can be crazy, but Nashville Post correspondent Ken Whitehouse reports that the process is so bogged down this session that "our state songs 'Rocky Top' and the 'Tennessee Waltz' should be replaced by the Sex Pistols' 'Anarchy in the U.K.'" If the state of Tennessee were a constitutional monarchy, he writes, "plans would be well under way to have King Phil dissolve parliament and call for new elections."
Read more in the Nashville Post (subscription required)
Passages
Services Friday for Nashville attorney, activist
Nashville attorney Alan Saturn died Wednesday at Alive Hospice from complications due to multiple myeloma. He was 71. A University of Michigan law grad, Mr. Saturn kicked off his legal career in Washington, D.C. at the Federal Communications Commission and later launched his own real estate law practice in Nashville, where he had attended high school and earned his undergraduate degree at Vanderbilt University. Funeral service will be held 1 p.m. Friday at West End Synagogue, 3814 West End Ave.
Read his full obituary from Marshall-Donnelly-Combs Funeral Home
TBA Member Services
First Tennessee is TBA's preferred provider
First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more
on the TBA Web site

 
 
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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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