Chancellor: 'Guns-in-bars' unconstitutional

Chancellor Claudia Bonnyman ruled this afternoon that the state's guns-in-bars legislation is unconstitutional on the basis that it is too vague, saying it would be too difficult for the public and handgun carry permit holders to recognize. Tennessee previously banned handguns in all locations where alcohol was served. The new law made an exception for establishments that serve at least one meal on five days per week and that "the serving of such meals shall be the principal business conducted." Plaintiffs' attorneys argued that it would be difficult for patrons to know what restaurants met the exceptions, which would put them at risk of breaking the law.

Msn.com carried this Associated Press story

TODAY'S OPINIONS
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BERTHA MAI CLAIBORNE v. ABC GROUP FUEL SYSTEMS, INC.

Court: TWCA

Attorneys:

Blakely D. Matthews and Pele I. Houk, Nashville, Tennessee, for the appellant, ABC Group Fuel Systems, Inc.

William L. Underhill and Michael L. Underhill, Madison, Tennessee, for the appellee, Bertha Mai Claiborne.

Judge: WALLACE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The Employee alleged that she injured her back and neck as a result of an accident at work. Her authorized treating physician released her with no impairment. Employee's examining physician assigned 10% impairment. The parties invoked the Medical Impairment Registry ("MIR") process. The MIR physician assigned to Employee found 0% impairment. The trial court awarded benefits based upon the rating of Employee's physician. The trial court did not explain how the opinion of Employee's physician rebutted the MIR physician's opinion. Upon review, we conclude that the trial court erred by not accepting the impairment as determined by the MIR doctor. The judgment for permanent partial disability benefits is reversed, and the case is remanded to the trial court for additional proceedings.

http://www.tba2.org/tba_files/TSC_WCP/2009/claiborneb_112009.pdf


ADT SECURITY SERVICES, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jonathan N. Wike, for the Appellant, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee.

Brett R. Carter, Charles Arthur Trost, Christopher Andrew Wilson and Michael G. Stewart, for the Appellee, ADT Security Services, Inc.

Judge: FARMER

The trial court ruled that taxpayer ADT Security Services was liable for sales and use tax on equipment it installed as part of its security monitoring service contracts. The trial court also ruled that taxpayer was entitled to offset its liability for sales and use taxes, under the doctrine of equitable recoupment, by taxes taxpayer had charged and remitted on the installation of the equipment. We affirm the trial court's judgment with respect to taxpayer's liability for sales and use taxes, and reverse with respect to taxpayer's entitlement to an offset under the doctrine of equitable recoupment.

http://www.tba2.org/tba_files/TCA/2009/adtsecurity_112009.pdf


IN RE: B.N.J.

Court: TCA

Attorneys:

Seth M. Lasater, Columbia, Tennessee, for the appellant, D.R.A.

S. Jason Whatley, Columbia, Tennessee, for the appellee, S.D.J.

Robert C. Richardson, Jr., for the Guardian ad litem.

Judge: DINKINS

Father challenges the termination of his parental rights. Finding that the evidence clearly and convincingly supports the trial court's conclusions that grounds for termination existed and that termination was in the best interest of the child, the judgment terminating Father's parental rights is affirmed.

http://www.tba2.org/tba_files/TCA/2009/bnj_112009.pdf


GENA MAGLIO CHIOZZA v. CHRISTOPHER ALEXANDER CHIOZZA

Court: TCA

Attorneys:

Christopher Alexander Chiozza, Memphis, Tennessee, pro se.

Aubrey L. Brown, Jr. and Leigh-Taylor White, Memphis, Tennessee, for the Appellee, Gena Maglio Chiozza.

Judge: STAFFORD

This case arises from a post-divorce motion to modify child support to include payment of the minor children's private school tuition. Because Appellant/Father's brief fails to comport with Tenn. R. App. P. 27 and Rule 6 of the Court of Appeals, and because Appellant/Father has failed to comply with this Court's order to supplement the appellate record with necessary documents, we dismiss the appeal. Mother/Appellee has requested attorney's fees accrued in defense of this appeal. Pursuant to Tenn. Code Ann. section 27-1-122, we exercise our discretion and award Ms. Chiozza her fees, and remand for the determination of the amount of those fees. Dismissed and remanded.

http://www.tba2.org/tba_files/TCA/2009/chiozzag_112009.pdf


JEANNEA LYNN JONES v. KENNETH DALE JONES

Court: TCA

Attorneys:

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Kenneth Dale Jones.

Ben Boston, Lawrenceburg, Tennessee, for the appellee, Jeannea Lynn Jones.

Judge: COTTRELL

The trial court granted a divorce to the parents of two daughters. A marital dissolution agreement incorporated into their final decree of divorce provided that each parent would pay one-half of the expenses incurred by their daughters for college tuition and books. After the father refused to pay the tuition expenses of the parties' younger daughter, the mother filed suit to compel him to pay. The father argued that he should not be required to pay for his daughter's tuition, because the mother's job with the university entitled the daughter to a 100% tuition credit. The trial court found that the father was obligated to pay and entered a judgment against him. We affirm.

http://www.tba2.org/tba_files/TCA/2009/jonesj_112009.pdf


STATE OF TENNESSEE v. GEORGE R. ARNOLD

Court: TCCA

Attorneys:

Michael J. Collins (at trial and on appeal), A. Jackson Dearing, III (at trial), and William Harold (at trial), Shelbyville, Tennessee, for the appellant, George R. Arnold.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, George R. Arnold, pled guilty in the Marshall County Circuit Court to one count of attempting to obtain a controlled substance by forgery, and he received a sentence of three years. On appeal, the appellant challenges the sentence imposed by the trial court. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/arnoldg_112009.pdf


OLIVER J. HIGGINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Robert Radford, District Attorney General; and Ed N. McDaniel, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: SMITH

A Hardin County jury convicted Petitioner of several drug-related crimes. Petitioner unsuccessfully appealed these convictions. State v. Oliver Higgins, Jr., No. 5, 1991 WL 153021, (Tenn. Crim. App., at Jackson, Aug. 14, 1991), perm. app. denied, (Tenn. Dec. 30, 1991). These convictions were later used to enhance his sentence in the Federal courts. Petitioner filed a petition for post- conviction relief to attack these convictions. The post-conviction court treated the petition as a motion to reopen a prior petition for post-conviction relief and dismissed the petition. On appeal, Petitioner argues that the post-conviction court erred in dismissing his petition. We conclude that the appeal is not properly before this Court because Petitioner is required by statute to file an application for permission to appeal as opposed to a notice of appeal as filed. Therefore, we dismiss this appeal.

http://www.tba2.org/tba_files/TCCA/2009/higginso_112009.pdf


STATE OF TENNESSEE v. MICHAEL LEWIS

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope III, Assistant District Attorney General, for the appellant, State of Tennessee.

Michael Lewis, pro se (at trial); J. Lynn Brooks, McMinnville, Tennessee (at hearing on motion for new trial and on brief); and Keith H. Grant, Dunlap, Tennessee (at oral argument), for the appellee, Michael Lewis.

Judge: WITT

In this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State challenges the trial court's grant of a new trial to the defendant, Michael Lewis, who was convicted by a Bledsoe County Circuit Court jury of one count of child abuse. See T.C.A. section 39-15- 401. Because we hold that the trial court erred by granting the defendant a new trial, we reverse the judgment of the trial court and remand the case.

http://www.tba2.org/tba_files/TCCA/2009/lewism_112009.pdf


STATE OF TENNESSEE v. JAMES HENRY NEWELL, JR.

Court: TCCA

Attorneys:

Travis N. Meeks, Clarksville, Tennessee, for appellant, James Henry Newell, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Steven Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Montgomery County Circuit Court jury convicted the defendant, James Henry Newell, Jr., of aggravated criminal trespass, see T.C.A. section 39-14-406 (2003), attempted second degree murder, see id. section 39-13-210, -12-101, aggravated assault, see id. section 39-13-102, and domestic assault, see id. section 39-13-111. After merging the aggravated assault verdict into the attempted second degree murder verdict, the trial court imposed an effective sentence of 10 years' incarceration. In this appeal, the defendant contends that the trial court accepted his plea agreement with the State prior to the State's withdrawal of the offer and that, as a result, the State should not have been permitted to withdraw the offer, and the case should never have proceeded to trial. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/newellj_112009.pdf


STATE OF TENNESSEE v. ERIC CONDRELL O'NEAL

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Eric Condrell O'Neal.

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

Judge: SMITH

The Marshall County Grand Jury indicted Appellant, Eric Condrell O'Neal, for two counts of statutory rape. A jury found Appellant guilty as charged. The trial court sentenced Appellant to one year and nine months for each conviction to be served concurrently. The trial court denied alternative sentencing. Appellant now appeals arguing that the evidence was insufficient to support his convictions and that the trial court erred in denying alternative sentencing. We have reviewed the record and find that there is ample support for his convictions and the trial court's denial of alternative sentencing. Therefore, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/oneale_112009.pdf


HOWARD KEITH SALLEE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Kate Long, Dresden, Tennessee, for the appellant, Howard Keith Sallee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: SMITH

The Weakley County Grand Jury indicted Petitioner, Howard Keith Sallee, for one count of fraudulently obtaining a controlled substance. Petitioner pled guilty to the offense as charged. The trial court sentenced Petitioner to ten years as a Range III, persistent offender. Petitioner filed a petition for post-conviction relief in which he alleged that his guilty plea was not entered voluntarily, knowingly, and intelligently because he attempted to commit suicide a few days before entering his guilty plea. He also alleged that his trial counsel was ineffective for failing to order a mental evaluation. The post-conviction court held an evidentiary hearing. Following the hearing, the post- conviction court concluded that Petitioner had been unable to prove his assertions. After a thorough review of the record, we conclude that the evidence does not preponderate against the findings of the post-conviction court. Therefore, we affirm the denial of Petitioner's petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/salleeh_112009.pdf


Municipality Required to "Opt-Out" of Handguns in Parks Despite Prior Handgun Prohibition

TN Attorney General Opinions

Date: 2009-11-20

Opinion Number: 09-179

http://www.tba2.org/tba_files/AG/2009/ag_09_179.pdf

TODAY'S NEWS

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Poll: Most want to make it harder to sue doctors
A new Associated Press poll says most Americans support curbs on medical malpractice lawsuits. The AP poll found that 54 percent favor making it harder to sue doctors and hospitals for mistakes taking care of patients, while 32 percent are opposed. The rest are undecided or don't know.
WSMV-TV carried this AP story
Metro Nashville Courthouse restoration honored
A Nashville design firm has won a national Citation Award from the American Institute of Architects for its work on the restoration of the historic Metropolitan Nashville Courthouse. The AIA award is the latest in a series of awards that the Metro Courthouse restoration project has received, including the Preservation Award from the Metropolitan Historical Commission and the Award of Merit in Architecture from AIA Tennessee.
Learn more about the restoration from the Tennessean
Wait for Social Security hearing up to 538 days
Beth Striklin Bates, a Jackson lawyer for West Tennessee Legal Services for the last 22 years, testified before the House Ways and Means subcommittee on Social Security yesterday. The backlog in Memphis to get a hearing for Social Security disability benefits increased by three months last year, to 538 days, and is worsening, she said. The committee is chaired by U.S. Rep. John Tanner, D-Tenn.
The Commercial Appeal has the story
Clerkship applications
up 66 percent
There were 401,576 electronic applications for federal judicial clerkships between Oct. 1, 2008, and Sep. 30, 2009 -- a 66 percent increase from that time period last year, when 241,529 applications were turned in. The applications came from only 10,722 applicants this year, meaning each applied for an average of about 38 clerkships. Fifty-two percent of this year's applicants were law school graduates and 48 percent were third-year law students.
The Blog of Legal Times reports
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Children's book reading Saturday
Nashville lawyer Kaaren Engel and coauthor Jamina Carder will read from their children's book, Herman's Journey, at Nashville's Davis-Kidd Booksellers, Saturday, Nov. 20 at 10 and 11 a.m.
Find out more about the book at www.hermansjourney.com
NBA annual meeting Dec. 3
The Nashville Bar Association Annual Meeting and Banquet will be Dec. 3 at the Loews Vanderbilt Hotel. Activities begin with a reception at 5:30 p.m., followed by the dinner and annual meeting at 7 p.m. The evening will include the passing of the gavel from President Trey Harwell to President-elect Jonathan Cole, the introduction of new NBA Board members and officers, and the presentation of awards.
Register here
Practice Management
Tech toys for the holidays
What's the perfect holiday gift for tech loving lawyers? Law practice management gurus Jim Calloway and Sharon Nelson have just produced their annual 25 Tech Toys for the Holidays podcast. Tune in now to get a head start on your holiday shopping.
Tune in to the podcast now
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