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Wednesday, August 19, 2009

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Premier health law program returns for 21st year

Recognized as one of the premier health law programs in the nation, the TBA's Health Law Forum returns to Middle Tennessee October 1-2. The event, being held at the Marriott Cool Springs in suburban Nashville, will provide you with the latest developments in health care law from some of the most recognized practitioners in the state and in the country.

Find out more about this TennBarU program or register now

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
05 - TN Court of Appeals
11 - 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.

RAYMON DOUGLAS v. GOODYEAR TIRE & RUBBER COMPANY

Court: TWCA

Attorneys:

W. Lewis Jenkins, Jr., and Dean P. Dedmon, Dyersburg, Tennessee, for the appellant, Goodyear Tire & Rubber Company.

Jeffrey P. Boyd, Jackson, Tennessee, for the appellee, Raymon Douglas.

Judge: ALISSANDRATOS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. On appeal, Employer contends that the trial court erred in finding that Employee suffered a compensable work-related injury and that Employee's workers' compensation claim was not barred by the one- year statute of limitations. Because the evidence does not preponderate against the trial court's findings, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2009/douglasr_081909.pdf

BARRY ARMISTEAD v. TENNESSEE DEPARTMENT OF CORRECTIONS, ET AL.

Court: TCA

Attorneys:

Barry L. Armistead, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Kellena Baker, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Corrections.

Judge: DINKINS

Inmate filed a petition for certiorari, seeking a review of a decision of the prison disciplinary review board, affirmed by the Commissioner of Corrections, finding him in violation of Tennessee Department of Corrections policy. The trial court dismissed the petition for lack of jurisdiction, finding it was not filed within sixty days of the entry of the order for which review was sought. Finding no error, we affirm the action of the trial court.

http://www.tba2.org/tba_files/TCA/2009/armisteadb_081909.pdf

ZORAN DJORDJEVIC v. GROZDANA DJORDJEVIC

Court: TCA

Attorneys:

Alan R. Beard, Chattanooga, Tennessee for the Appellant, Zoran Djordjevic.

Rachel Brock, Chattanooga, Tennessee for the Appellee, Grozdana Djordjevic.

Judge: SWINEY

Zoran Djordjevic ("Husband") sued Grozdana Djordjevic ("Wife") for divorce. After a trial, the Trial Court entered a Final Decree of Divorce that, inter alia, declared the parties divorced upon stipulated grounds, distributed the marital property, named Wife the primary residential parent of the parties' minor child with Husband to have visitation, ordered Husband to pay child support, and ordered Husband to pay $5,000 of Wife's attorney's fees. Husband appeals to this Court raising issues regarding parenting time, the calculation of child support, the distribution of marital property, and the award to Wife of attorney's fees. We affirm.

http://www.tba2.org/tba_files/TCA/2009/djordjevicz_081909.pdf

AUBREY E. GIVENS, ADM. OF THE ESTATE OF JESSICA E. GIVENS, ET AL. v. THE VANDERBILT UNIVERSITY, ET AL.

Court: TCA

Attorneys:

Aubrey T. Givens, Nashville, Tennessee, for the appellants, Aubrey E. Givens and Jessica R. Givens.

Steven E. Anderson and Erin Palmer Polly, Nashville, Tennessee, for the appellees, the Vanderbilt University, Vanderbilt University Hospital, John H. Dixon, Jr., M.D., and John Doe.

Judge: DINKINS

Medical malpractice action was dismissed on summary judgment following plaintiffs' failure to oppose defendant's motion. Plaintiffs filed a motion to set aside the judgment of the trial court based on mistake where plaintiffs did not receive service of defendant's summary judgment motion. The trial court denied plaintiffs' motion; plaintiffs appeal. Finding that, under the facts of this case, the judgment should have been set aside, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2009/givensa_081909.pdf

IN THE MATTER OF THE GUARDIANSHIP OF R.D.M.

Court: TCA

Attorneys:

Max D. Fagan, Nashville, Tennessee, for Appellants, G. Brian and Tammy A. Munis.

Roger N. Bowman, Clarksville, Tennessee, for Appellees, Charles and Gloria Werner.

Judge: FRANKS

In this action to appoint a guardian for the minor child, the Trial Court appointed the grandparents and the child's aunt and uncle intervened and contested the appointment of the grandparents as guardian. The child's uncle collected the proceeds of two life insurance policies on the deceased father's life, who had named his brother the beneficiary under the policies. The evidence clearly established that the proceeds of the policies were intended to be for the use and benefit of the minor child and not the designated beneficiary. The Trial Court then ordered the proceeds of the policies to be held in trust for the use and benefit of the minor child. The intervenors have appealed. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/rdm_081909.pdf

IN RE R.H. AND J.H.

Court: TCA

Attorneys:

Daryl A. Colson, Livingston, Tennessee, for the appellant, S.H.

William Roberson, Cookeville, Tennessee, for the appellant, C.D.H.

Cindy A. Howell, Sparta, Tennessee, for the appellees, J.W.W. and D.W.

Judge: DINKINS

Parents of two children appeal the termination of their parental rights, asserting that the grounds for termination do not exist under the facts presented. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/rh_081909.pdf

STATE OF TENNESSEE v. JUSTIN K. BOLDUS

Court: TCCA

Attorneys:

Mitchell B. Dugan, Dickson, Tennessee, for the appellant, Justin K. Boldus.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and W. Ray Crouch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Justin K. Boldus, appeals the Dickson County Circuit Court's judgment affirming the Dickson County General Sessions Court's finding him in contempt of court and sentencing him to ten days in jail. On appeal, the appellant raises various issues, including that the evidence is insufficient to support the conviction. We agree that the evidence is insufficient to support a conviction for criminal contempt of court. Therefore, the judgment of the circuit court is reversed and the case is dismissed.

http://www.tba2.org/tba_files/TCCA/2009/boldusj_081909.pdf

DONTAE LAMONT BROWN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rebecca S. Mills, Ripley, Tennessee, for the appellant, Dontae Lamont Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Tyler R. Burchyett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Dontae Lamont Brown, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2009/brownd_081909.pdf

ALFONSO C. CAMACHO v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Alfonso C. Camacho.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Alfonso C. Camacho, appeals the Rutherford County Circuit Court's denial of his petition for post-conviction relief. The petitioner, pursuant to a plea agreement, pled guilty to second degree murder (a Class A felony) and attempted second degree murder (a Class B felony) and received an effective sentence of thirty years to be served at 100%. On appeal, the petitioner contends that his guilty pleas were not knowingly and voluntarily entered due to the ineffective assistance of counsel in failing to explain that the sentence would be served at 100%, as well as the elements of the offenses, and the trial court's failure to comply with Tennessee Rule of Criminal Procedure 11. Following review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/camachoa_081909.pdf

STATE OF TENNESSEE v. ERIC WAYNE DUNN

Court: TCCA

Attorneys:

H. Scott Saul, Nashville, Tennessee, for the defendant-appellant, Eric Wayne Dunn.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Eric Wayne Dunn, pleaded guilty to DUI, a Class A misdemeanor, and leaving the scene of a property damage accident, a Class C misdemeanor. For the offense of DUI, he was sentenced to eleven months and twenty-nine days, which was suspended to supervised probation after he served twenty-four hours in the Dickson County Jail. For the offense of leaving the scene of an accident, he was sentenced to thirty days, which was suspended to supervised probation after he served twenty-four hours in the Dickson County Jail, and he was required to pay restitution to the victim. His sentence for the offense of leaving the scene of an accident was to be served concurrently with his DUI sentence. The Defendant-Appellant entered a conditional plea agreement and attempted to reserve certified questions of law under Tennessee Rule of Criminal Procedure 37. In an addendum to the judgment of the conviction for DUI, he set out two certified questions of law: whether he was unlawfully seized at his residence and returned to the accident scene and whether his alleged seizure would preclude admission of the breath test. Because this addendum was not entered by the clerk until after the notice of appeal was filed in this matter, we conclude that we are without jurisdiction to consider this appeal and, therefore, it is dismissed. We remand for entry of a corrected judgment in Count 2 to reflect the correct conviction offense of DUI (.08% or more) and a corrected judgment in Count 1 to reflect the dismissal of the offense of DUI.

http://www.tba2.org/tba_files/TCCA/2009/dunne_081909.pdf

MICHAEL GARRETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Bill Whitesell, District Attorney General, and Jude P. Santana, Assistant District Attorney General, for the appellant, State of Tennessee.

Darwin K. Colston, Murfreesboro, Tennessee, for the appellee, Michael Garrett.

Judge: SMITH

After the Rutherford County Circuit Court granted Petitioner Michael Garret's request for habeas corpus relief in which Petitioner claimed that an amended judgment was void because it was entered without notice and not served on him until after the completion of his original sentence, the State appealed. On appeal, the State contends that the trial court improperly granted habeas relief where Petitioner's writ of habeas corpus failed to allege a cognizable claim for relief against an amended judgment. We determine that the habeas corpus court improperly granted habeas corpus relief where the judgment was not void on its face, but merely voidable. Accordingly, the judgment of the habeas corpus court is reversed and remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/garrettm_081909.pdf

STATE OF TENNESSEE v. ROBERT HURD

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, for the appellant, Robert Hurd.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

In 1988, the defendant pled guilty to two counts of third degree burglary and was sentenced to concurrent sentences of five years, to be served on intensive probation. In 1989, he was transferred to regular probation. In 1990, probation violation warrants were filed, alleging that he had violated his probation by failing to report to his probation officer and that he had absconded. Following a hearing, the trial court revoked the defendant's probation and ordered him to serve his five-year sentence in the Department of Correction. We affirm the order of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/hurdr_081909.pdf

STATE OF TENNESSEE v. JOSEPH L. JOHNSON, JR.

Court: TCCA

Attorneys:

J. David Wicker, Jr., Nashville, Tennessee (at motion for new trial and on appeal); and Paul J. Walwyn, Madison, Tennessee (at trial), for the appellant, Joseph L. Johnson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela S. Anderson and Amy Eisenbeck, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

A Davidson County jury found the defendant, Joseph L. Johnson, Jr., guilty of two counts of aggravated robbery, Class B felonies, one count of aggravated assault, a Class C felony, and one count of felony evading arrest, a Class D felony. One of the defendant's aggravated robbery counts was modified, based on double jeopardy concerns, to a conviction for aggravated assault. The trial court sentenced the defendant to twenty-eight years as a Range III, persistent offender for the aggravated robbery conviction. On the other counts, the trial court sentenced the defendant as a Range II, multiple offender as follows: eight years for one of the two aggravated assault convictions; ten years for the other aggravated assault conviction; and eight years for the evading arrest conviction. The trial court ordered that the sentences be served consecutively, resulting in an effective term of fifty-four years. On appeal, the defendant argues that: (1) the evidence produced at trial was insufficient to support his convictions; (2) the trial court erred by failing to instruct the jury on reckless aggravated assault as a lesser included offense of aggravated assault; (3) the trial court erred by instructing the jury on felony reckless endangerment as a lesser included offense of aggravated assault; (4) the trial court imposed excessive sentences for his individual offenses; and (5) the trial court improperly imposed consecutive sentences. After reviewing the record, we conclude that the trial court erred in instructing the jury on reckless endangerment as a lesser included offense of aggravated assault, but because the defendant was convicted of the indicted offense, that error was harmless. Discerning no other error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/johnsonj_081909.pdf

MARCUS DEANGELO LEE AKA MARCUS DEANGELO JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ruchee Janardan Patel, Memphis, Tennessee, for the appellant Marcus Deangelo Lee.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The Petitioner, Marcus Deangelo Lee, appeals the trial court's denial of his motion to reopen his petition for post-conviction relief. The State has filed a motion requesting that this Court dismiss the above-captioned appeal. This Court is without jurisdiction to consider the appeal as a motion to reopen a petition for post-conviction relief. Additionally, viewing the action as an original petition for post-conviction relief, the petition is time-barred. Accordingly, the action of the lower court is affirmed pursuant to Rule 20, Tennessee Rules of Criminal Procedure.

http://www.tba2.org/tba_files/TCCA/2009/leem_081909.pdf

STATE OF TENNESSEE v. LUTHER MOWERY

Court: TCCA

Attorneys:

Venus Niner, Franklin, Tennessee, for the appellant, Luther Mowery.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim R. Helper, District Attorney General; and Shauna R. Billingsley, Interim City Attorney, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Luther Mowery, was convicted of failure to obey a traffic signal and ordered to pay court costs. On appeal, he argues that the evidence is insufficient to support the verdict, a claim with which the State agrees. Following our review, we, likewise, agree and, accordingly, reverse the conviction and dismiss the charge.

http://www.tba2.org/tba_files/TCCA/2009/moweryl_081909.pdf

STATE OF TENNESSEE v. ANTHONY DEWAYNE STANTON

Court: TCCA

Attorneys:

Jeffrey A. DeVasher and Emma Rae Tennent (on appeal) and J. Michael Engle (at trial), Assistant Public Defenders, Nashville, Tennessee, for the appellant, Anthony Dewayne Stanton.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Anthony Dewayne Stanton, was convicted after a Davidson County bench trial of theft of property over $1,000 but less than $10,000, a Class D felony, and evading arrest in a motor vehicle, a Class E felony. The defendant was sentenced as a career offender to an effective sentence of twelve years in the Tennessee Department of Correction. On appeal, the defendant raises the following issues: (1) whether evidence was sufficient to support his theft conviction; and (2) whether the trial court erred in allowing the state to cross-examine the defendant about his prior theft convictions. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/stantona_081909.pdf

JIMMY TOWNSEND v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jimmy Townsend, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Leslie E. Price, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Jimmy Townsend, appeals the trial court's denial of his petition for coram nobis 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. We conclude that the State's motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/townsendj_081909.pdf

TODAY'S NEWS

Legal News
Politics
Passages
Disciplinary Actions
Upcoming
TBA Member Services

Legal News

Bar exam results delayed

The Board of Law Examiners has announced it will delay for one week the release of results from the July bar exam. Originally scheduled to be released on Oct. 9, the board now will announce the list of successful candidates on Oct. 16 around lunch time. Results will be available on the TBA web site as soon as the list is released.

New grants available from federal stimulus

The Administrative Office of the Courts has announced it will award $50,000 in scholarships for credentialing court interpreters, $50,000 in grants for court interpreters working in order of protection cases, and $50,000 in grants to Victim Offender Recovery Program (VORP) mediation centers. The funding is being made available through the American Recovery and Reinvestment Act of 2009, which was enacted by the U.S. Congress to stimulate the economy.

Get details and applications here

AOC releases revised transcript request form

The Administrative Office of the Courts today released a revised form for requesting a transcript for an indigent defendant in criminal court proceedings. The form (AOC Form CR-4) now includes a section requiring the attorney to certify that the court reporter has been provided notice of the request and any notice to appeal. The change was made in response to (1) confusion about the process for requesting transcripts and notifying the court and (2) comments from court reporters that they often are not aware that notices to appeal have been filed.

Download the revised form

Sixth Circuit affirms dismissal of suit against BPR

On June 27, 2008, David E. Danner filed a complaint in the U.S. District Court for the Middle District of Tennessee against the Board of Professional Responsibility alleging that disciplinary action had been taken against him in retaliation for an article he wrote criticizing the state's process for selecting judges. The suit was dismissed by U.S. District Judge John T. Nixon for lack of evidence of a disciplinary proceeding against Danner. Danner appealed the dismissal, which the Sixth Circuit Court of Appeals has now affirmed.

Read the release from the board

Nashville court evacuated yesterday

Authorities evacuated the Justice A.A. Birch Building in downtown Nashville yesterday morning after alarms sounded a little before 11 a.m. About 20 minutes later, firefighters gave the "all clear" sign after determining that a belt on the AC/heating unit on the roof overheated and started smoking. WTVF News Channel 5 reported the incident.

Watch raw video of the evacuation

Kelly sworn in as new PD

Criminal Court Judge Robert Cupp administered the oath of office to First District Public Defender Jeff Kelly during an afternoon court recess yesterday. Kelly was appointed to the position by Gov. Phil Bredesen last week following the death of Bob Oaks. The session was a low-key event but Kelly said there will be a public event in the future that will include a ceremonial swearing in with the governor.

The Johnson City Press reports

UT researchers predict Sotomayor's career

Two UT researchers are predicting that if Democrats maintain control of two of the three branches of federal government, Supreme Court Justice Sonia Sotomayor would tip the court's scales of justice to the liberal side and likely become the "most liberal justice." The pair also predict that Sotomayor will be less radical in her first few years on the bench than she will be in her later years.