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| Tuesday, August 18, 2009 |
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Learn the latest in 15 areas at General Practice Summit
Recognized experts in 15 key areas of the law will bring you up to date on the latest developments, offer tips, advise you on trends and provide materials and forms at the 2009 TBA General Practice Summit. The sessions -- scheduled for Aug. 20-22 at the Tennessee Bar Center in Nashville -- will provide you with your entire 15 hours of CLE required for the year, including ethics hours, and offer plenty of time for networking. Special hotel rates are also available for attendees.
Learn more or register now at the TBA's TennBarU
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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
02 - 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.
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WILLIAM W. BROWN, JR. v. ERACHEM COMILOG, INC.
Court: TWCA
Attorneys:
Rocky McElhaney, Nashville, Tennessee, for the appellant, William Brown, Jr.
Dale A. Tipps, Nashville, Tennessee, for the appellee, Erachem Comilog, Inc.
Judge: HARRIS
In this action for workers' compensation benefits, the deceased spouse of William W. Brown, Jr., died of lung cancer. He contended that her cancer was caused by exposure to chemicals in the workplace. The employer, Erachem Comilog, Inc., contended that the cancer was caused by cigarette smoking. The trial court found for Erachem. Husband has appealed, asserting that the
evidence preponderates against the trial court's ruling. We affirm the judgment.
http://www.tba2.org/tba_files/TSC_WCP/2009/brownw_081809.pdf
KEVIN CLIFTON v. NISSAN NORTH AMERICA
Court: TWCA
Attorneys:
Randolph A. Veazey and Janis O. Mize, Nashville, Tennessee, for the appellant, Nissan North America, Inc.
Joy Davis Collier, Franklin, Tennessee, for the appellee, Kevin Clifton.
Judge: KOCH
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the 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. The employee filed a workers'
compensation action in the Chancery Court for Maury County, alleging that he developed occupational asthma as a result of exposure to a substance in his workplace. The employer denied liability. Following a bench trial, the trial court awarded benefits for temporary total and permanent
partial disability. The employer has appealed, contending that the trial court erred by finding that the employee sustained a compensable injury, by finding that the statutory notice requirement was satisfied, and by awarding temporary disability benefits. In the alternative, the employer asserts that the judgment is excessive. We have determined that the awards for temporary total and permanent partial disability should be reduced.
http://www.tba2.org/tba_files/TSC_WCP/2009/cliftonk_081809.pdf
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. M.J.V., and O.V., IN THE MATTER OF: S.M.V., dob 12/20/2004
Court: TCA
Attorneys:
L. Carter Massengill, Bristol, Tennessee, for appellant, O.V.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for appellee, Tennessee Department of Children's Services.
Judge: FRANKS
In this Petition to Terminate the parental rights of both parents to the minor child, the petitioner alleged several statutory grounds to terminate the parental rights of the parents. Prior to trial the mother surrendered her parental rights and the issues at trial were whether the father's parental rights should be terminated. Following an evidentiary hearing, the Trial Court held there were several statutory grounds to terminate the father's parental rights and that it was in the best interest of the child that the father's rights be terminated. The father has appealed and on appeal we affirm the Judgment of the Trial Court.
http://www.tba2.org/tba_files/TCA/2009/smv_081809.pdf
STATE OF TENNESSEE v. JEFFREY D. ALLEN
With Dissenting Opinion
Court: TCCA
Attorneys:
Michael A. Carter, Milan, Tennessee, for the appellant, Jeffrey D. Allen.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Jeffrey D. Allen, was convicted by a Crockett County jury of first degree felony murder, criminally negligent homicide, facilitation of attempted first degree murder, and attempted especially aggravated robbery. On appeal, he argues that the sequestered jury was improperly separated and that the trial court erred by not suppressing his statement to police, ruling a witness
unavailable, admitting prior bad act evidence, and allowing improper opinion evidence. Following our review, we affirm the judgments of the trial court but remand for entry of a corrected judgment form to reflect that the defendant received a life sentence for his first degree murder conviction.
http://www.tba2.org/tba_files/TCCA/2009/allenj_081809.pdf
MCMULLEN dissenting
http://www.tba2.org/tba_files/TCCA/2009/allenj_DIS_081809.pdf
STATE OF TENNESSEE v. HALBERT B. DODD, II
Court: TCCA
Attorneys:
Bruce Conley, Union City, Tennessee, for the appellant, Halbert B. Dodd, II.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Garry G. Brown, District Attorney General; and Matthew Hooper, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: MCLIN
The defendant, Halbert B. Dodd, II, was indicted on two counts of reckless endangerment with a deadly weapon and two counts of aggravated assault. The defendant applied for pretrial diversion and the prosecutor denied the defendant's application. The trial court granted the defendant's writ of certiorari and determined that the prosecutor had not abused his discretion in denying pretrial
diversion. The defendant's motion for an interlocutory appeal was granted. On appeal, the defendant asserts that the trial court erred in finding that the prosecutor had not abused his discretion in denying pretrial diversion and that the prosecutor's abuse of discretion was evidenced by his: (1) characterization of the defendant's past behavior as a "history of criminal behavior"; (2) failure to consider evidence which tended to show that the defendant was amenable to correction; (3) reliance on the defendant's failure to admit guilt; and (4) failure to consider all factors favorable to diversion. Following our review of the parties' briefs, the record, and the applicable law, we affirm the order of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/doddh_081809.pdf
STATE OF TENNESSEE v. WENDI NICOLE GARRISON
Court: TCCA
Attorneys:
Stacy L. Street, Elizabethton, Tennessee, and James T. Bowman, Johnson City, Tennessee, for the appellant, Wendi Nicole Garrison.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; and Al Schmutzer, District Attorney General Pro Tem, for the appellee, State of Tennessee.
Judge: WILLIAMS
The defendant, Wendi Nicole Garrison, was found guilty as charged of second degree murder, a Class A felony, and was sentenced to sixteen years as a violent offender. On appeal, she argues that: the evidence was insufficient to support her conviction; the trial court erred in failing to charge the lesser included offense of voluntary manslaughter; and the trial court erred in denying a new trial based on the composition of the jury. After careful review, we find that plain error exists in the omission of jury instruction for the lesser included offense of voluntary manslaughter. We are, therefore, compelled to remand for a new trial.
http://www.tba2.org/tba_files/TCCA/2009/garrisonw_081809.pdf
OLIVER J. HIGGINS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Oliver J. Higgins, pro se.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Oliver J. Higgins, appeals the trial court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition for post-conviction relief fails as it is barred by the statute of limitations. Accordingly, we grant the State's motion and affirm the judgment of the lower court.
http://www.tba2.org/tba_files/TCCA/2009/higginso_081809.pdf
STATE OF TENNESSEE v. BRIAN A. SNYDER
Court: TCCA
Attorneys:
Gregory H. Harrison, Knoxville, Tennessee, for the appellant, Brian A. Snyder.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Kevin James Allen, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Brian A. Snyder, is charged with assault, a Class A misdemeanor. He sought pretrial diversion, and the District Attorney denied his request. Upon consideration of the Defendant's petition for writ of certiorari, the trial court found that the District Attorney did not abuse his
discretion in denying pretrial diversion. We granted this interlocutory appeal to consider whether the trial court properly denied the writ of certiorari by finding that the District Attorney did not abuse his discretion. We hold that the trial court erred in finding that the District Attorney acted within his discretion. We reverse the order of the trial court and remand the case with instructions that the
District Attorney shall consider the Defendant's application for pretrial diversion in light of all relevant factors.
http://www.tba2.org/tba_files/TCCA/2009/snyderb_081809.pdf
STATE OF TENNESSEE v. JOHN TATE
Court: TCCA
Attorneys:
Danny R. Ellis, Jackson, Tennessee, for the defendant-appellant, John Tate.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: MCMULLEN
The Defendant-Appellant, John Tate ("Tate"), pleaded guilty to two counts of possession of a Schedule III controlled substance with intent to sell, a Class D felony, with the length and manner of service of the sentence to be determined by the trial court. The Madison County Circuit Court sentenced Tate as a Range I, standard offender; imposed two four-year sentences for each conviction
to be served concurrently, which were suspended; and ordered him to serve six months in the Department of Correction before serving the remainder of his sentence on supervised probation. In his appeal, Tate argues the trial court erred by (1) denying judicial diversion, (2) sentencing him to the maximum in the range, and (3) denying full probation. Upon review, we reverse the trial court's
judgment regarding sentencing and remand the case for a resentencing hearing on all issues regarding the length and manner of sentence.
http://www.tba2.org/tba_files/TCCA/2009/tatej_081809.pdf
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| TODAY'S NEWS |
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Legal News
Politics
Passages
Disciplinary Actions
TBA Member Services
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| Legal News |
| UT welcomes class of 2012 |
| The University of Tennessee College of Law has welcomed 159 first-year students to its campus. The class hails from 19 states (Tennessee being the predominate) and 77 undergraduate schools (UT being the predominate). The class is 52 percent men and 48 percent women, while 19 percent are students of color. Class members were officially welcomed to orientation by Jamie Woodson, Speaker Pro Tempore of the Tennessee State Senate and a 1997 UT Law graduate. The law school faculty will host a dinner for the class on Wednesday night. Classes for the 1Ls begin on Thursday.
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| Tenn. lawyer elected president of mediators group |
| Knoxville lawyer Pamela L. Reeves, with the firm of Reeves, Herbert & Murrian PA, has been installed as the first female president of the American College of Civil Trial Mediators. The college is an association of 150 dispute resolution professionals from 46 states. Reeves is accustomed to breaking glass ceilings: she also served as the first female president of the Tennessee Bar Association from 1998 to 1999.
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| Plea deals allow offenders to carry guns |
| While most of Tennessee's concealed carry gun permit holders are law-abiding citizens, there is an often-ignored group -- many with violent pasts -- who get gun permits because of loopholes, administrative mistakes or plea bargains. The Tennessean identified some 500 individuals charged with felonies whose names appear to match those of gun permit holders. But most of them are holding their permit legally due to reduction or dismissal of charges.
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Learn more
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| Sotomayor casts first vote as justice |
| In her first public vote on the U.S. Supreme Court, Justice Sonia Sotomayor has dissented from a decision to allow an execution to proceed. She joined Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens in supporting a stay of execution for Ohio death-row inmate Jason Getsy while he challenged the state's lethal injection process. |
SCOTUSblog reports
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| BPR seeks discipline against Cawood |
| Judge Jon Kerry Blackwood recently heard arguments from the state Board of Professional Responsibility, which wants to see Kingston attorney and former state representative Chris Cawood disciplined for a sexual tryst that involved a client's girlfriend. The board's own hearing panel ruled that no disciplinary action should be taken but the board is appealing the decision calling it arbitrary and capricious.
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The Roane County News has more
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| Memphis lawyer indicted |
| A Shelby County grand jury has indicted Memphis attorney Joseph Richard Rossie on two counts of theft of property over $60,000 for allegedly stealing money from his clients. Rossie's former law partner, John Houser Parker, pled guilty to theft in 2007 and is serving a 22 year prison sentence. WREG News 3 in Memphis reported the indictment.
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| Restaurateur seeks summary judgment on gun suit |
| A Nashville restaurant owner yesterday filed a summary judgment motion seeking quick resolution to his suit challenging a new state law that allows guns in restaurants and bars. The motion argues that the law is unconstitutionally vague, delegates police powers to restaurant owners and creates unsafe workplaces -- a violation of federal occupational safety and health laws.
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The Tennessean has the story
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| Politics |
| Kelsey is frontrunner for Stanley's seat |
| State Rep. Brian Kelsey appears to be the last man standing to replace former Sen. Paul Stanley, who resigned this month in the wake of an intern sex scandal. In the last few days, Rep. Steve McManus and Shelby County School Board Chairman David Pickler both decided against running in the special election. And there won't be an interim appointment. Yesterday afternoon the Shelby County Commission voted 9-4 not to name a short-term replacement given the fact that the legislature is not in session.
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The Memphis Daily News has more
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| Rep. Lynn to run for state Senate |
| State Rep. Susan Lynn, R-Mt. Juliet, has announced she will run for the state Senate seat being vacated by Mae Beavers, who is leaving the legislature to run for Wilson County mayor next year. Lynn will have to give up the House seat she has held since 2002 to run for the upper chamber. Lynn found herself in the news earlier this year with release of a memo that revealed a 2-year-old allegation that House Speaker Kent Williams had made sexually inappropriate comments and given her an unwanted embrace.
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Memphis Daily News has the story
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| Passages |
| Giles County judge dies |
| Giles County Commissioner Robert E. Lee Jr., 87, died Aug. 12 at St. Thomas Hospital in Nashville following an extended illness. Known by many as "The Ole Judge," Lee served multiple terms as Giles County General Sessions and Juvenile Court judge and recently had been elected to the county commission. He also served as the county's first elected roads superintendent. Lee was laid to rest in Maplewood Cemetery after a memorial service at First United Methodist Church of Pulaski. The family suggests memorial donations be made to Giles County Library, Senior Citizens or Veterans Alliance.
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Read the full obituary from the funeral home
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| Disciplinary Actions |
| Nashville lawyer suspended |
| Nashville lawyer Harry Todd Hammons was suspended Aug. 13 by the Tennessee Supreme Court for one year retroactive to a temporary suspension imposed on July 25, 2008, and until he complies with a Tennessee Lawyer's Assistance Program monitoring agreement for six months. The court found that Hammons violated disciplinary rules by failing to comply with his monitoring agreement.
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Read the BPR release
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| California lawyer reinstated |
| John D. Hanover of Los Angeles has been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. He had been suspended in 2005.
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| Kentucky lawyer reinstated |
| Michael Bernard Brown of Lexington, Ky., has been reinstated to the practice of law in Tennessee after paying the 2008 BPR fee and required fines.
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| TBA Member Services |
| Health savings accounts now available |
| The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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Click here
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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.
© Copyright 2009 Tennessee Bar Association
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