Leadership Law class forming for 2010

The Tennessee Bar Association is now taking nominations for the upcoming 2010 class of its award winning Leadership Law program. If you have a candidate or candidates who fit the requirements for this program, and you believe they would benefit from participation, please nominate them by Sept. 1. This six-month program was established in 2003 to equip attorneys with the vision, knowledge and skills necessary to serve as leaders in the profession and in the community as a whole. Since that time, nearly 200 attorneys from across the state have taken part. To be eligible, nominees should have between five and 15 years of practice experience and have shown themselves to be emerging leaders at their firm, in the profession or in their community.

Find out more or make your nomination online now

TODAY'S OPINIONS
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02 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
06 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2009/certlist_082409.pdf


STATE OF TENNESSEE v. NEDDIE MACK LAWSON

Court: TSC

Attorneys:

Michael Glenn Hatmaker, Jacksboro, Tennessee, for the appellant, Neddie Mack Lawson, I.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; William Paul Phillips, District Attorney General; and Amanda Sammons, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant was originally indicted for driving under the influence, second offense. More than one year after the arrest, the grand jury returned a second indictment, charging the defendant with driving under the influence, fourth offense, a Class E felony. The State filed a nolle prosequi as to the first indictment and, upon motion by the defendant, the trial court granted an order to expunge these records. At trial, the defendant was convicted of driving under the influence, third offense, a misdemeanor. The Court of Criminal Appeals affirmed. This Court granted review in order to determine whether the one-year statute of limitations applicable to misdemeanors barred the prosecution. Because the trial court properly took judicial notice of the pendency of the first indictment at the time of the second, the statute of limitations, regardless of the efficacy of the order of expunction, was tolled and the prosecution was timely. The judgment is, therefore, affirmed.

http://www.tba2.org/tba_files/TSC/2009/lawsonn_082409.pdf


JAMES M. JACKS v. EAST TENNESSEE MECHANICAL CONTRACTORS, INC.

Court: TWCA

Attorneys:

Aundreas W. Smith, Nashville, Tennessee for the appellant, East Tennessee Mechanical Contractors, Inc.

George H. Buxton, Oak Ridge, Tennessee for the appellee, James M. Jacks.

Judge: WADE

The employee filed a workers' compensation complaint against his employer for hearing loss and tinnitus, injuries which he claimed had occurred gradually over his nearly four years of working as a truck driver. Shortly before trial, the employee voluntarily dismissed his tinnitus claim but proceeded with his hearing loss claim. The trial court awarded the employee compensation for permanent partial hearing loss and the Employer appealed. Upon referral, the Special Workers' Compensation Appeals Panel, sitting in accordance with Tennessee Code Annotated section 50-6-225(e)(3), affirms.

http://www.tba2.org/tba_files/TSC_WCP/2009/jacksj_082409.pdf


FRED EUGENE BROOKS, SR. v. MARY ELIZABETH HAIMES BROOKS

Court: TCA

Attorneys:

J. Thomas Caldwell, Ripley, TN, for Appellant

Julie D. Byrd, Memphis, TN, for Appellee

Judge: HIGHERS

This case involves issues arising out of the parties' divorce. Prior to the parties' marriage, both Husband and Wife owned separate residences. In its property division, the trial court found that during the parties' marriage, Husband's home increased in value by $61,700.00, and the court awarded each party one-half of the appreciation, or $30,850.00. The trial court found Wife's home to be her sole and separate property, as the value of her home decreased during the marriage. Finally, the trial court awarded Wife $3,000.00 in attorney fees to be paid by Husband. On appeal, Husband contends that Wife was entitled only to $9,000.00 of the increased value of Husband's home -- one-half of the value of an addition made to the home during the marriage. Husband further claims that the trial court erred in failing to offset Wife's award for debts paid on her home during the marriage, and in its award of attorney fees. We reverse the trial court's award to Wife, and we affirm both the trial court's award of attorney fees to Wife, and its finding that Wife's home did not increase in value during the parties' marriage such that Husband could recover a share of such increase.

http://www.tba2.org/tba_files/TCA/2009/brooksf_082409.pdf


MELINDA K. COLSTON v. ANTHONY B. COLSTON

Court: TCA

Attorneys:

Gary M. Willams, Hendersonville, Tennessee, for the appellant, Anthony Bruce Colston.

Mark T. Smith, Gallatin, Tennessee, for the appellee, Melinda Kay Colston.

Judge: DINKINS

Husband appeals the award of alimony in futuro to Wife and the division of marital assets, contending that he is unable to pay the alimony awarded and that the trial court's division of the marital assets was inequitable. We modify and affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2009/colstonm_082409.pdf


ELISHEA D. FISHER v. CHRISTINA M. JOHNSON

Court: TCA

Attorneys:

Jeffrey P. Boyd, Jackson, TN, for Appellant

Keely N. Wilson, James V. Thompson, Jackson, TN, for Appellee

Judge: HIGHERS

This is a personal injury suit arising out of an automobile accident. Plaintiff appeals the trial court's dismissal of her punitive damages claim, as well as its exclusion of evidence regarding Defendant's underage consumption of alcohol prior to the accident and leaving the scene of the accident. Because Plaintiff has failed to show a genuine issue of material fact exists regarding Defendant's intoxication, we affirm the trial court's dismissal of Plaintiff's punitive damages claim. Because liability has been stipulated in this matter, and the punitive damages claim properly dismissed, we find Defendant's underage consumption of alcohol and leaving the scene of the accident irrelevant. Thus, we affirm the exclusion of such evidence.

http://www.tba2.org/tba_files/TCA/2009/fishere_082409.pdf


WILLIAM JEFFREY WALKER v. NISSAN NORTH AMERICA, INC.

Court: TCA

Attorneys:

Lawrence D. Sands, Columbia, Tennessee, for the Appellant, William Jeffrey Walker.

Steven D. Parman, Nashville, Tennessee, for the Appellee, Nissan North America, Inc.

Judge: STAFFORD

This appeal involves the dismissal of a personal injury case arising from an accident that occurred at Defendant's automobile manufacturing plant. The suit was originally filed and then voluntarily dismissed for improper venue. The case was filed again and later dismissed for failure to prosecute. Plaintiff filed a Motion to Set Aside the Order of Dismissal which was denied by the trial court. Plaintiff appeals. Finding that the trial judge did not abuse his discretion, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/walkerw_082409.pdf


EMILY CHRISTINE WIMLEY v. EMILY ANNETTE WIMLEY AND JERRY LEE WIMLEY AND THE FIRST NATIONAL BANK OF MANCHESTER, TENNESSEE

Court: TCA

Attorneys:

James H. Threet, III, Manchester, Tennessee, for the appellants, Emily Annette Wimley and Jerry Lee Wimley.

John Stanley Rogers and Christina Duncan, Manchester, Tennessee, for the appellee, Emily Christine Wimley.

Judge: BENNETT

This case involves the validity of transfers of property and money from a mother to her daughter and son-in-law. The trial court determined that there was a confidential relationship between the mother and her daughter and that the defendants failed to overcome the presumption of undue influence. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2009/wimleye_082409.pdf


EDNA N. ZULUETA v. WINIFRED LASSITER, M.D., of the LASSITER CLINIC, ET AL.

Court: TCA

Attorneys:

Edna N. Zulueta, Pro Se.

E. Reynolds Davies, Jr., and Ed R. Davies, Nashville, Tennessee, for the Appellee, Winifred Lassiter, M.D.

Judge: FARMER

The trial court awarded summary judgment to Defendant physician in this medical malpractice action. We dismiss the appeal for failure to appeal a final judgment.

http://www.tba2.org/tba_files/TCA/2009/zuluetae_082409.pdf


STATE OF TENNESSEE v. JESSICA MARIE BROWN

Court: TCCA

Attorneys:

Kevin R. Bryant, Crossville, Tennessee, for the appellant, Jessica Marie Brown

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall A. York, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Jessica Marie Brown, pled guilty to child neglect, a Class A misdemeanor. See T.C.A. section 39-15-401 (2006). At the sentencing hearing, the trial court ordered that she serve her eleven-month, twenty-nine day sentence in confinement. On appeal, the Defendant contends that the trial court erred in denying probation. In view of the Defendant's failure to include the transcript of the guilty plea hearing in the appellate record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/brownj_082409.pdf


GEORGE HAMPTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Eric Christensen, Memphis, Tennessee, for the appellant, George Hampton.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, George Hampton, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance by failing to properly investigate and prepare the case for trial. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2009/hamptong_082409.pdf


WADIE MICHAEL HOLIFIELD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jobi Teague, Covington, Tennessee, for the appellant, Wadie Michael Holifield.

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

Judge: WILLIAMS

The petitioner, Wadie Holifield, appeals the denial of his petition for post-conviction relief by the Tipton County Circuit Court. The petitioner was convicted of one count of aggravated sexual battery, a Class B felony, and sentenced to eighteen years in the Department of Correction. On appeal, he raises the single issue of ineffective assistance of counsel, specifically arguing that trial counsel was ineffective by failing to: 1) investigate his mental health and his claim of impotence as possible defenses; 2) ensure an untainted jury by requesting "the Rule" prior to voir dire; 3) effectively preclude introduction or properly cross-examine a witness following testimony about the petitioner's prior drug habit; and 4) effectively advise the petitioner. As an initial argument, the State contends that the petitioner has waived review based upon an untimely notice of appeal. We agree that the notice was not timely filed, but, in the interest of justice, we elect to review the petitioner's issue. Following review of the record, we find no error and affirm the denial of relief.

http://www.tba2.org/tba_files/TCCA/2009/holifieldw_082409.pdf


STATE OF TENNESSEE v. MARKTRAIL LEE

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Barry W. Kuhn (on appeal) and Amy Mayne and Sherrye Brown (at trial), Assistant Public Defenders, for the appellant, Marktrail Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Marianne Bell and Robert Carter, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Marktrail Lee, was convicted of aggravated child abuse and aggravated child abuse by neglect. The trial court merged the two convictions and sentenced the defendant as a Range I offender to twenty-three years at 100 percent. On appeal, the defendant asserts that the evidence is insufficient to support his convictions and that the court erred in sentencing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/leem_082409.pdf


STATE OF TENNESSEE v. DONALD EDWARD LYNCH

Court: TCCA

Attorneys:

Gene Scott, Jr., Johnson City, Tennessee, for the appellant, Donald Edward Lynch.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Sullivan County Criminal Court jury convicted the defendant, Donald Edward Lynch, of two counts of especially aggravated sexual exploitation of a minor, two counts of aggravated sexual battery, and six counts of rape of a child. He challenges his convictions, arguing that the video recording used in his conviction was discovered through an illegal search and seizure. He also challenges the legal sufficiency of the convicting evidence. We discern error in the judgments for Counts eight through 10 of rape of a child and remand for correction of clerical error. In all other respects, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/lynchd_082409.pdf


THOMAS DEWEY PERRY, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Thomas Dewey Perry, Jr., appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

In this appeal by the petitioner, Thomas Dewey Perry, Jr., the State of Tennessee has moved the court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals to summarily affirm the Johnson County Criminal Court's dismissal of the petition for post-conviction relief. Because the petitioner challenges a probation revocation proceeding in this post-conviction proceeding, the petition fails to state a post-conviction cause of action, and we summarily affirm the criminal court's order via Rule 20.

http://www.tba2.org/tba_files/TCCA/2009/perryt_082409.pdf


TODAY'S NEWS

Legal News
Court of the Judiciary
Politics

Legal News
Holder to appoint prosecutor in CIA prisoner-abuse probe
Attorney General Eric Holder Jr. will appoint a prosecutor to examine nearly a dozen cases in which CIA interrogators and contractors may have violated anti-torture laws and other statutes when they allegedly threatened terrorism suspects, a government official said today. Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to sources who spoke on condition of anonymity because the process is not complete.
Read about it in The Washington Post
Knox chancellor will recuse himself in Hutchison suit
Knox County Chancellor John Weaver will recuse himself from a lawsuit against former Sheriff Tim Hutchison because his fellow chancellor, Mike Moyers, may still be peripherally involved in the case. "I have in this case documents filed by Mike Moyers since he has become chancellor," some as late as July of this year, Weaver said in a motions hearing Friday. The lawsuit challenges the validity of Hutchison's election to a fourth term.
The News Sentinel has the story
McMillan wants prison compensation money now
Clark Jerome McMillan was released from prison in 2002 when DNA proved his innocence in a 1979 rape and robbery conviction. [The Tennessee Bar Journal carried his story at the time.] After spending those years in prison, he was awarded more than $832,000 as compensation for his imprisonment. He agreed to $250,000 in a lump sum with the rest in an annuity. "I get $3,400 a month, supposedly for rest of my life," he said. But money is tight and now he wants it all now. State Rep. Jim Coley has arranged for McMillan to go before the Tennessee House of Representatives' Judiciary Committee on Sept. 22 and plead his case.
The Commercial Appeal has the story
O'Connor launches court site for middle schoolers
Retired Supreme Court Justice Sandra Day O'Connor's "Our Courts" web site, aimed at middle school students, has gone live with two interactive animated games that will, she hopes, engage young people in learning about and appreciating the role of courts in their daily lives. In one game, Supreme Decision, a hypothetical female swing-vote justice -- hmm, who might that be? -- asks you, the player, to help her reach a decision in a First Amendment case. Check out ourcourts.org here.
The BLT: The Blog of Legal Times reports
Commissioners: Does Twitter violate open meetings law?
One Shelby County commissioner is concerned that "Twittering" among other commissioners might violate the state open-meetings law. In fact, he blocked his fellow county commissioners from his Tweets and his Facebook page last week just in case it created the impression they were communicating in secret. This is one example of how new communications technologies are changing how governments are run and how politicians communicate with the public. "I can't think of anything more transparent than communicating with your constituents via Twitter, Facebook and other means out there," Commissioner Mike Carpenter said.
The Commercial Appeal reports
Older lawyers working longer; firms need to plan for it
With the economy as it is, more older lawyers are not retiring as soon as expected, but experts warn that there may be some long-term negative consequences for firms unless they manage the process with associates and clients and have an appropriate compensation structure in place.
The Memphis Business Journal follows the story
Court of the Judiciary
Shelbyville judge reprimanded
General Sessions Court Judge Charles Rich of Shelbyville received a public reprimand from the Court of Judiciary on Aug. 24. Rich took eight months to decide a custody matter, did not answer repeated requests for a decision and caused the child's mother additional expenses.
Read the letter of reprimand
Politics
Gubernatorial candidates leave off donors' occupations
Apparently candidates for governor have had a hard time providing occupations of donors, campaign finance records indicate. As part of reforming the state's campaign finance and ethics laws in 2006, the legislature for the first time mandated that contributors to Tennessee candidates state their occupation and employer. Of 7,073 contributions made to eight major gubernatorial candidates during the first six months of the year, 697, or almost 10 percent, failed to list the occupation of the donor, a review of records shows. Those contributions totaled almost $500,000.
The News Sentinel reports

 
 
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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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