TBA submits names for Judicial Nominating Commission

The TBA has recommended 36 lawyers to serve on the newly created Judicial Nominating Commission. After a grueling 4 1/2 hour meeting Thursday night, during which there were some 19 rounds of balloting, the TBA Board of Governors recommended 12 lawyers in each grand division to Lieutenant Governor Ron Ramsey and Speaker Kent Williams for appointment to the judicial selection body. The recommendations are widely diverse as to practice type, gender, race and urban/rural residency. TBA President Gail Ashworth called the group "superbly qualified."

See the full list of recommended candidates

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
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
08 - 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.

ENTERTAINER 118 AND MERONEY ENTERTAINMENT, INC. D/B/A KEN'S GOLD CLUB v. METROPOLITAN SEXUALLY ORIENTED BUSINESS LICENSING BOARD

Court: TCA

Attorneys:

John Edward Herbison, Nashville, Tennessee, for the appellants, Entertainer 118 and Meroney Entertainment, Inc. d/b/a Ken's Gold Club.

J. Brooks Fox and Paul Jefferson Campbell, II, Nashville, Tennessee, for the appellee, Metropolitan Sexually Oriented Business Licensing Board.

Judge: BENNETT

An inspector cited an entertainer and the sexually oriented business in which she worked for violating an ordinance governing certain requirements for entertainers and businesses engaging in sexually oriented entertainment. The Metropolitan Sexually Oriented Business Licensing Board upheld the citations and fined the entertainer and the business $500 each. They appealed and the chancery court affirmed. They now appeal to the Court of Appeals. We find that the board did not have authority to assess the fine. We affirm the board and the chancery court's finding that the ordinance was violated, and since the board has authority to impose other sanctions, we remand the matter to the chancery court with instructions to return the matter to the board.

http://www.tba2.org/tba_files/TCA/2009/entertainer118_081409.pdf


ROBIN FARLEY, ET AL. v. OAK RIDGE MEDICAL IMAGING, P.C., ET AL.
CORRECTION


Court: TCA

Attorneys:

Andree Sophia Blumstein and Mark Smith, Nashville, Tennessee, and James H. London and Jamie Ballinger Holden, Knoxville, Tennessee, for the appellants, James Rouse, M.D., and Oak Ridge Medical Imaging, P.C.

William D. Vines, III, Ronald C. Koksal and E. Riley Anderson, Knoxville, Tennessee, and Wendall K. Hall, Clinton, Tennessee, for the appellees, Robin Farley and Dennis Farley.

Judge: SUSANO

This is an appeal from a judgment entered on a jury verdict in the amount of $2,780,0001 in a medical malpractice action based upon a failure to detect and report an abnormality on a mammogram. Robin Farley ("the Patient") and her husband, Dennis Farley ("the Husband"), are the plaintiffs in this action; they are referred to collectively in this opinion as "the Plaintiffs." Dr. James Rouse and his employer, Oak Ridge Medical Imaging, P.C., dba Oak Ridge Breast Center, P.C. ("the Breast Center"), are the defendants, referenced collectively as "the Defendants." The Patient reported to the Breast Center on November 15, 2001, for a mammogram. Dr. Rouse read the mammogram and reported his findings as normal. In 2004, the Patient noticed an indentation in her right breast. Follow-up care revealed stage IV incurable breast cancer. According to the Plaintiffs, the cancer was present in 2001, and was treatable and curable had it been properly detected and reported. The Defendants conceded very little and alleged, as an affirmative defense, that the Patient knew that repeat mammograms were needed but failed to come back until it was too late. The case was tried to a jury over four consecutive days. The jury began deliberations on a Friday and resumed and announced its verdict on the following Monday. It found the Defendants negligent, but apportioned 20% of the fault to the Plaintiffs, apparently based upon the Patient's failure to have a timely follow-up mammogram. The Defendants appeal, raising a host of issues. We affirm.

http://www.tba2.org/tba_files/TCA/2009/farleyr_CORR_081409.pdf


DONNA FAYE SHIPLEY, ET AL. v. ROBIN WILLIAMS, M.D.

Court: TCA

Attorneys:

Steven R. Walker, Memphis, Tennessee; Joe Bednarz, Sr., Nashville, Tennessee, for the appellant, Donna Faye Shipley, and as Next Friend and Surviving Wife of Frank Shipley, Deceased.

Wendy Lynne Longmire, Julie Bhattacharya Peak, Nashville, Tennessee, for the appellee, Robin Williams, M.D.

Judge: COTTRELL

In reliance on plaintiff's experts, the trial court granted defendant doctor's motion for partial summary judgment on the medical malpractice claim pertaining to defendant's failure to admit plaintiff into the hospital. The trial court later granted the defendant doctor summary judgment on the remaining malpractice claims finding that the plaintiff's medical expert proof previously relied upon by defendant failed to comply with Tenn. Code Ann. section 29-26-115. We reverse the grant of partial summary judgment on the failure to admit claim since the defendant doctor relied solely on plaintiff's experts, whose testimony was later found inadmissable. We also reverse the summary judgment of the remaining malpractice claims since the defendant doctor never presented proof to negate an element of those claims. Consequently, the plaintiff had no duty to create issues of fact at the summary judgment phase.

http://www.tba2.org/tba_files/TCA/2009/shipleyd_081409.pdf


STATE OF TENNESSEE v. TIMOTHY RAY AZBILL

Court: TCCA

Attorneys:

Guy T. Wilkerson, District Public Defender (at trial and on appeal), Camden, Tennessee, for the appellant, Timothy Ray Azbill.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Robert Radford, District Attorney General; and Eddie N. McDaniel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Timothy Ray Azbill, was convicted of aggravated burglary, rape of a child, and especially aggravated kidnapping. For his conviction of aggravated burglary, the defendant was sentenced as a Range II, multiple offender to eight years in the Tennessee Department of Correction. For his convictions of rape of a child and especially aggravated kidnapping, the defendant was sentenced as a Range I, violent offender to twenty-five years for each conviction. The court ordered that the sentences were to run concurrently but consecutively to the sentence on a prior conviction. On direct appeal, this court affirmed the defendant's convictions, but determined that the trial court had erroneously begun at the midpoint of the statutory range and remanded the case for resentencing for rape of a child and especially aggravated kidnapping. On remand, the trial court again sentenced the defendant to twenty-five years for each conviction. On appeal, the defendant asserts that the trial court erred by failing to consider mitigating evidence offered by the defendant and summarily imposed the sentences. After a thorough review of the record and the parties’ briefs, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/azbillt_081409.pdf


JEROME DANCE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Barbara Hobock and Cynthia Chandler-Snell, Humboldt, Tennessee, for the appellant, Jerome Dance.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Garry G. Brown, District Attorney General; and Stephanie J. Hale, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Jerome Dance, appeals the Gibson County Circuit Court's denial of his petition for post-conviction relief. He was convicted of two counts of sale of cocaine over .5 grams, Class B felonies, and one count of sale of cocaine less than .5 grams, a Class C felony. Subsequently, he was sentenced, as a Range II offender, to an effective term of thirty-five years in the Department of Correction. On appeal, the petitioner contends that he was denied effective assistance of counsel. He specifically argues that trial counsel was ineffective in failing to: (1) object to an insufficient Notice of Enhancement Factors filed by the State; (2) file a motion for recusal of the trial judge; (3) adequately prepare for the sentencing hearing; (4) inform the petitioner of a plea offer and to adequately advise him that he would not be sentenced as a Range I offender if he proceeded to trial; and (5) pursue a Rule 11 application to appeal with the Tennessee Supreme Court or to properly withdraw. Following review of the record, the denial of post-conviction relief is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/dancej_081409.pdf


STATE OF TENNESSEE v. TOBIAS TOBY HORTON and LATOYA LYNN TOWNSEND

Court: TCCA

Attorneys:

Joseph P. Atnip, District Public Defender, for the appellants-defendants, Tobias Toby Horton and Latoya Lynn Townsend.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Latoya Lynn Townsend, pleaded guilty to facilitation to distribute cocaine, a Class C felony, and possession of marijuana with intent to deliver, a Class E felony. For the facilitation offense, she was sentenced to three years at Westate, a community based alternative to imprisonment. For the marijuana offense, she was sentenced to two years at Westate, to be served concurrently with the sentence imposed for the facilitation offense, and ordered to pay a fine. The Defendant-Appellant, Tobias Toby Horton, pleaded guilty to possession of cocaine with intent to deliver, a Class B felony, and possession of marijuana with intent to deliver, a Class E felony. For the cocaine offense, he was sentenced to eight years in the Tennessee Department of Correction, and he was ordered to pay a fine. For the marijuana offense, he was sentenced to two years in the Tennessee Department of Correction, which was to be served concurrently with the sentence imposed for the cocaine offense and his sentence for a prior probation violation. Townsend and Horton, as a part of their conditional plea agreements, attempted to reserve certified questions of law under Tennessee Rule of Criminal Procedure 37. In agreed orders filed contemporaneously with their judgment forms, they each set out the following certified question of law: whether the search of the residence leased by Townsend was unconstitutional in violation of Article I, section 7, of the Tennessee Constitution and the Fourth Amendment of the United States Constitution. Because the certified questions fail to identify the scope and limits of the legal issue reserved, we conclude that we are without jurisdiction to consider this appeal and, therefore, it is dismissed.

http://www.tba2.org/tba_files/TCCA/2009/hortont_081409.pdf


STATE OF TENNESSEE v. JERRY GLEN NORRID

Court: TCCA

Attorneys:

Kevin R. Askren, Tullahoma, Tennessee, for the Appellant, Jerry Glen Norrid.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; Charles Michael Layne, District Attorney General; Felicia B. Walkup, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant pled guilty to burglary, burglary of a motor vehicle, vandalism, criminal simulation, three counts of theft under $500, and two counts of theft over $1000. In accordance with Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law whether the Interstate Compact on Detainers ("the Compact") bars the State from prosecuting the Defendant on the charges to which he pled guilty. After a thorough review of the record and relevant authorities, we conclude the Compact does not bar prosecution of the indictments at issue, and, therefore, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2009/norridj_081409.pdf


TROY TACKETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Philip Clemons, McMinnville, Tennessee, for the Petitioner, Troy Tackett.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Clarence E. Lutz, Assistant Attorney General; Lisa Zavogiannis and Dale Potter, District Attorneys General for the Appellee, State of Tennessee.

Judge: WEDEMEYER

Pursuant to a plea agreement, the Petitioner, Troy Tackett, pled guilty to one count of rape of a child and two counts of aggravated sexual battery, and the trial court ordered him to serve twenty years in the Tennessee Department of Correction. The Petitioner then filed a petition for post-conviction relief claiming that he received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered. The post-conviction court denied relief after a hearing, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/tackettt_081409.pdf


DOCK WALKER v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Dock Walker, 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, Dock Walker, proceeding pro se, appeals the Lauderdale County Circuit Court's summary dismissal of his petition for the writ of habeas corpus. The petitioner is currently an inmate in the West Tennessee State Prison as a result of his conviction for assault with the intent to commit murder, for which he was sentenced to a term of sixty years. On appeal, he argues that the habeas corpus court erred in dismissing the petition because his sixty-year sentence is illegal, as it was not authorized by statute and is in violation of ex post facto provisions. After review, we find no error and affirm the judgment of the court.

http://www.tba2.org/tba_files/TCCA/2009/walkerd_081409.pdf


STATE OF TENNESSEE v. JIMMY LEE WHITMIRE

Court: TCCA

Attorneys:

G. Kerry Haymaker and David R. Heroux, Nashville, Tennessee, for the Defendant-Appellant, Jimmy Lee Whitmire.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard and Brooke Grubb, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Jimmy Lee Whitmire ("Whitmire"), was convicted by a Marshall County Circuit Court jury of especially aggravated kidnapping, a Class A felony; aggravated assault, a Class C felony; and aggravated burglary, a Class C felony. He received an eighteen-year sentence at one hundred percent for the especially aggravated kidnapping conviction. He also received two five-year sentences at thirty percent for the aggravated assault and aggravated burglary convictions which were to be served concurrently to the previous sentence for an effective sentence of eighteen years. On appeal, Whitmire argues the trial court erred by: (1) not declaring a mistrial, (2) not giving a curative instruction to the jury to disregard his statement to a deputy, (3) precluding testimony regarding his prior mental hospitalization, (4) excluding medical records showing his prior mental hospitalization, (5) not requiring the State to make an election of "removal" or "confinement" for the offense of especially aggravated kidnapping, (6) not sentencing him as an especially mitigated offender, and (7) improperly applying two enhancement factors and sentencing him to an effective eighteen-year sentence. Upon review, we affirm the trial court's judgments but modify the sentence for the especially aggravated kidnapping conviction to fifteen years.

http://www.tba2.org/tba_files/TCCA/2009/whitmirej_081409.pdf


STATE OF TENNESSEE v. DAVID SCOTT WINFREY

Court: TCCA

Attorneys:

Mike Anderson, Assistant Public Defender, Gallatin, Tennessee, for the appellant, David Scott Winfrey.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Bryna Landers Grant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, David Scott Winfrey, pled guilty in Sumner County to twenty-nine Class A misdemeanors consisting of one count of aggravated criminal trespass, one count of stalking, thirteen counts of harassment, and fourteen counts of violation of an order of protection. Following a sentencing hearing, the trial court sentenced Appellant to eleven months and twenty-nine days for each misdemeanor conviction. In addition, the trial court ordered Appellant to serve ten of his violation of an order of protection sentences consecutively to each other, with the remaining sentences to be served concurrently. The trial court based the imposition of the consecutive sentences on Tennessee Code Annotated section 39-13-113(g). On appeal, Appellant argues that the trial court erred in imposing sentences of eleven months and twenty-nine days, in ordering incarceration above time already served, and in imposing consecutive sentences. After a thorough review of the record, we find no error with the length of the sentences imposed. However, we have determined that Tennessee Code Annotated section 39-13-113(g) authorizes sentences for violation of an order of protection to run consecutively to other convictions stemming from the same underlying facts, as opposed to authorizing sentences for violation of an order of protection to run consecutively to each other. Therefore, we vacate the sentences imposed by the trial court and remand for resentencing in accordance with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/winfreyd_081409.pdf


TODAY'S NEWS

Legal News
Disciplinary Actions
TBA Member Services

Legal News
ATF award goes to MS-13 prosecutors
The Alcohol, Tobacco and Firearms Bureau (ATF) this week recognized Nashville Assistant U.S. Attorney Jimmie Lynn Ramsaur, the Department of Justice (DOJ), ATF agents and Metro Nashville police officers involved in the successful RICO prosecution of the MS-13 gang. In a ceremony Wednesday in Washington, D.C., the Honor Award was presented to Ramsaur; David Jaffe, deputy chief of the DOJ's Domestic Security Section; John S. Han, trial attorney in the DOJ's Organized Crime and Racketeering Section; Metro Nashville Police Department (MNPD) Sergeant Gary Kemper of the Gang Unit; former MNPD Sergeant and current DEA agent Matt Chance; ATF special agent John M. Welch; and ATF special agent Clara S. Himell.
Read the full ATF news release on the awards
Newspaper profiles Chattanooga lawyer and historian
People who don't know Chattanooga lawyer and TBA President-elect Sam Elliott can learn about his passion for history and writings on the Civil War in today's Hamilton County Herald. The newspaper tracks his long interest in the Civil War and details his publishing efforts, including his book on Civil War General Alexander P. Stewart and the soon-to-be published "Isham G. Harris of Tennessee: Confederate Governor and United States Senator," which Louisiana State University Press will publish in January 2010 as part of its Southern Biography Series.
Read more in the Hamilton County Herald
Tennessee leads nation in Chapter 13 bankruptcies
Tennessee now has the highest number of Chapter 13 bankruptcies per capita, according to figures released Thursday. Tennessee's 4.35 per 1,000 residents topped the nation in Chapter 13 filings, although Nevada led the nation in all categories with a 9.33 rate per 1,000. Chapter 13 is available to individuals with regular incomes who agree to pay off unsecured creditors in part or in full under the court's supervision.
Read more in the Commercial Appeal
Disciplinary Actions
Knoxville lawyer censured
Knoxville lawyer Thomas F. DiLustro was publicly censured by the Board of Professional Responsibility on Aug. 12 for failing to comply with a TLAP monitoring agreement he had signed in 2007 as part of a 30-day suspension order.
Read the full BPR news release
Former Shelbyville attorney suspended
Former Shelbyville attorney Cara Gruszecki-Smalley was suspended by the Tennessee Supreme Court on July 30, pursuant to a conditional guilty plea, for neglecting a client's case and making misrepresentations to the client and to the court.
Read the full BPR news release
TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
Find out more

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2009 Tennessee Bar Association