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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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
07 - 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.

ROBERT PHILIP RAYBURN, SR. v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Court: TSC

Attorneys:

William T. Alt (on appeal) and Robert Philip Rayburn, Sr. (pro se before hearing panel, trial court), Chattanooga, Tennessee, for the appellant, Robert Philip Rayburn, Sr.

Randall James Spivey, Nashville, Tennessee, and James A. Vick, Deputy Chief Disciplinary Counsel, Investigations, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Judge: WADE

This opinion addresses an appeal from a judgment affirming the disbarment of an attorney by a hearing panel designated by the Board of Professional Responsibility. The first issue presented is whether the panel was divested of jurisdiction when the Board approved a proposed offer of a conditional guilty plea that the attorney later accepted with modifications. A second issue is whether the attorney was entitled to a voluntary nonsuit in the trial court after filing a petition for writ of certiorari seeking review of the adverse decision by the panel. Initially, the panel retained jurisdiction to enter the order of disbarment. Further, because the Tennessee Rules of Civil Procedure apply to our rules of disciplinary enforcement, an attorney who files a petition for writ of certiorari is entitled to a voluntary nonsuit; however, principles of sovereign immunity preclude the application of the one-year savings statute, Tennessee Code Annotated section 28-1-105(a). A petition for certiorari must, therefore, be filed within sixty days of the panel judgment in order to preserve an appeal. In summary, the voluntary nonsuit is granted; however, the appeal is dismissed because a second petition for writ of certiorari was not timely filed. We, therefore, reverse the judgment of the trial court as to the denial of a voluntary nonsuit; we affirm the judgment of disbarment by the panel.

http://www.tba2.org/tba_files/TSC/2009/rayburnr_120109.pdf


WILLIAM BREWER v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

P. Brocklin Parks, Nashville, Tennessee, for the appellant, William Brewer.

Sue B. Cain, Lori Barkenbus Fox, and Jeff Campbell, Nashville, Tennessee, for the appellee, the Metropolitan Government of Nashville and Davison County, Tennessee.

Judge: KIRBY

This appeal involves a non-monetary retirement benefit for a retired police officer. The plaintiff was a police officer for many years with the defendant municipality. He received a 25-year service pension upon his retirement. Under the municipality's policies, upon 25 years of service, a retiring officer may receive a gun and badge as a gift from the department. Accordingly, when the plaintiff retired, he requested a gun and badge. The department denied the request because some of the time used to comprise the officer's 25 years of service for pension purposes was accumulated unused sick leave. After the denial of his request, the officer filed a petition for writ of mandamus in the trial court, asking the trial court to order the defendant to abide by its policy and grant him a gun and badge. At the trial court's direction, the plaintiff amended his complaint to assert a petition for writ of certiorari instead of a writ of mandamus. The defendant filed a motion to dismiss, asserting that the plaintiff was required to exhaust his administrative remedies before filing his lawsuit, and that he had failed to do so. The trial court granted the motion, dismissing the case on this basis. The plaintiff now appeals. We reverse, concluding that the municipality has not shown that the plaintiff was required to file an administrative grievance to appeal the denial of the gun and badge retirement benefit. We remand to the trial court for further proceedings in light of Bernard v. Metropolitan Government of Nashville and Davidson County, 237 S.W.3d 658 (Tenn. Ct. App. 2007).

http://www.tba2.org/tba_files/TCA/2009/brewerw_120109.pdf


ROSE M. DARNELL (CARTER) v. JEREMY W. DARNELL

Court: TCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Rose M. Darnell (Carter).

R. Wilford Fraley, III, Murfreesboro, Tennessee, for the appellee, Jeremy W. Darnell.

Judge: COTTRELL

The mother appeals the trial court's decision to revise the parenting arrangement to allow the father Wednesday night residential time. Finding that mother petitioned the court alleging a change in circumstances and that the parties amended the parenting plan by agreement, we agree with the trial court that a material change in circumstances had been established under Tenn. Code Ann. section 36-6- 102(a)(2)(C). Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2009/darnellr_120109.pdf


ESTATE OF MARY E. DILLARD, DECEASED v. TENNESSEE BUREAU OF TENNCARE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; L. Vincent Williams, Deputy Attorney General, Nashville, Tennessee, for the appellant, Tennessee Bureau of Tenncare.

Charles W. Holt, Jr., Lawrenceburg, Tennessee, for the appellee, the Estate of Mary E. Dillard.

Judge: DINKINS

Bureau of TennCare filed a petition pursuant to Tenn. Code Ann. section 30-1-301 seeking the appointment of an administrator of the estate of a deceased TennCare recipient in order to recover the amount of medical assistance and services provided decedent. Trial court declined to appoint an administrator, finding that the statute of limitations at Tenn. Code Ann. section 30-2-310(b) barred the claim of TennCare. We reverse the trial court decision in light of In Re: Estate of Martha M. Tanner and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/dillardm_120109.pdf


RONALD A. BARKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Christopher R. Stanford, Johnson City, Tennessee, for the appellant, Ronald A. Barker.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; H. Greeley Welles, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Ronald A. Barker, pled guilty in the Sullivan County Circuit Court to one count of felony failure to appear. Subsequently, he filed a petition for post-conviction relief, alleging that his counsel was ineffective and that his guilty plea was unknowing and involuntary. The post- conviction court denied the petition, finding that the petitioner had failed to prove his claims. On appeal, the petitioner challenges the post-conviction court's ruling. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/barkerr_120109.pdf


PHILANDER BUTLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ebony N. Dawkins, Memphis, Tennessee, for the appellant, Philander Butler.

Robert E. Cooper, Jr., Attorney General & Reporter, and J. Ross Dyer, Senior Counsel, for the appellee, the State of Tennessee.

Judge: WILLIAMS

The petitioner, Philander Butler, appeals the Shelby County Criminal Court's dismissal of his petition for habeas corpus relief. The State has moved to have this court summarily affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. We grant the motion and affirm the order of dismissal pursuant to Rule 20.

http://www.tba2.org/tba_files/TCCA/2009/butlerp_120109.pdf


RODNEY DAVIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rodney Davis, Pine Knot, Kentucky, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Matthew Bryant Haskell, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Rodney Davis, filed in the Hamilton County Criminal Court a petition for post- conviction relief, alleging that his trial counsel was ineffective, that his pleas were not knowingly and voluntarily entered, and that he was actually innocent of the crimes to which he pled guilty. The post-conviction court summarily dismissed the petition as being time-barred, and the petitioner appeals. The State filed a motion requesting that this court affirm the post-conviction court's dismissal pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/davisr_120109.pdf


STATE OF TENNESSEE v. SONNY DEAN FARROW

Court: TCCA

Attorneys:

Edward C. Miller, District Public Defender; Ronald P. Smith, Assistant District Public Defender, attorneys for appellant, Sonny Dean Farrow.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James B. Dunn, District Attorney General; and Charles L. Murphy, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Sonny Dean Farrow, pled guilty in the Jefferson County Circuit Court to aggravated burglary and theft, receiving a sentence of six years on supervised probation. Following the filing of several probation violation warrants and finding that the Defendant violated the terms of his probationary sentence, the trial court revoked his probation and ordered the Defendant to serve the balance of his sentence in custody. In this appeal as of right, the Defendant contends that the trial court abused its discretion by ordering the Defendant to serve his sentence. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/farrows_120109.pdf


STATE OF TENNESSEE v. CEDRIC JOHNSON

Court: TCCA

Attorneys:

Claiborne H. Ferguson, Memphis, Tennessee, for the Defendant-Appellee, Cedric Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District Attorney General, for the Appellant, State of Tennessee.

Judge: MCMULLEN

The State appeals the Shelby County Criminal Court's dismissal of an aggravated robbery indictment against the Defendant, Cedric Johnson. The dismissal was pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure requiring mandatory joinder. Upon our review of the record and applicable authority, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/johnsonc_120109.pdf

GLENN dissenting
http://www.tba2.org/tba_files/TCCA/2009/johnsonc_DIS_120109.pdf


STATE OF TENNESSEE v. MARTINO KELLEY

Court: TCCA

Attorneys:

Gerald S. Green, Memphis, Tennessee, for the appellant, Martino Kelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Martino Kelley, was convicted of the first degree (premeditated) murder of his wife and sentenced to life without the possibility of parole. On appeal, he argues that: (1) the evidence was insufficient to support his conviction; (2) the State's attorney committed reversible error in referencing the jury's responsibility to the community; and (3) the trial court abused its discretion in denying the defendant's motion to continue the trial. After careful review, we affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/kelleym_120109.pdf


STATE OF TENNESSEE v. MERL WAYNE MEDLEY

Court: TCCA

Attorneys:

Joseph P. Atnip, District Public Defender (on appeal), Dresden, Tennessee, and James Powell (at trial), Union City, Tennessee, for the Defendant-Appellant, Merl Wayne Medley.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, 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

In Cause C07-176, the Defendant-Appellant, Merl Wayne Medley, was convicted by an Obion County jury of two counts of attempted first degree murder, Class A felonies, and two counts of aggravated assault, Class C felonies. In the same cause, Medley was also found guilty through a bench trial of one count of retaliation for past action, a Class E felony, and one count of violation of an order of protection, a Class A misdemeanor. In Cause C07-177, Medley was convicted by a jury of one count of aggravated assault, a Class C felony, and one count of simple assault, a Class A misdemeanor. In Cause CC-07-CR-233, Medley was convicted by a jury of one count of solicitation to commit first degree murder, a Class B felony. In Cause C07-176, one of the convictions for attempted first degree murder and both of the convictions for aggravated assault were merged into the remaining conviction for attempted first degree murder, for which Medley received a twenty-five-year sentence at 30%. He also received a sentence of two years at 30% for the retaliation for past action conviction and a sentence of eleven months and twenty-nine days for the violation of an order of protection conviction, which were to be served concurrently with the attempted first degree murder conviction. In Cause C07-177, the assault conviction was merged into the aggravated assault conviction, for which Medley received a six-year sentence at 30%. In Cause CC-07-CR-233, Medley received a twelve-year sentence at 30% for the solicitation to commit first degree murder conviction. The trial court ordered that the twenty-five-year sentence for the attempted first degree murder conviction, the twelve-year sentence for the solicitation to commit first degree murder conviction, and the six-year sentence for the aggravated assault conviction be served consecutively for an effective sentence of forty-three years. In this appeal, Medley challenges the trial court's (1) refusal to suppress his statement, (2) joinder of the offense of solicitation to commit first degree murder to the offenses of attempted first degree murder and aggravated assault; and (3) imposition of consecutive sentences. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/medleym_120109.pdf


TODAY'S NEWS

Legal News
Disciplinary Actions
TBA Member Services

Legal News
6th Circuit denies motion to stay execution
The U.S. 6th Circuit Court of Appeals this afternoon denied Cecil Johnson's motion for a stay of execution. Johnson is scheduled to die by lethal injection at 1 a.m., Wednesday. Learn more about the facts and progress of this case, detailed by The Tennessean.
Download and read the 6th Circuit Court of Appeals order
New judge finds a big difference in the job
Union City attorney Jimmy Smith, appointed by the Obion County Commission to succeed retiring General Sessions Judge Raymond Morris, has begun his duties and says it's definitely different than his 30 years practicing law. "The interesting part of it is that attorneys have developed a discipline not to ask questions you're not pretty sure you have the answers to, especially when it comes to your own client," he says. "But (as a judge) you can ask questions you'd be afraid to ask as an attorney. Getting the answer is what you're looking for as a judge to be able to make the right decision."
NorthWest Tennessee Today has more
Federal jail populations down in some areas
Jails in some East Tennessee counties are noticing a decline in federal prison inmate populations, which could cause budget problems. Inmate levels at the Blount County Jail are reportedly off by about half from last year, resulting in falling revenues for the facility and the county. The U.S. Marshals Service pays Blount County $58.50 per inmate per day.
Read more from the Cleveland Banner
Shelby Commissioners to fill open legislative seat
Shelby County commissioners will appoint an interim state representative for the House District 85 seat left vacant by Friday's death of state Rep. Larry Turner. Commissioners will likely announce the vacancy next week, then schedule interviews and make an appointment in late December, before the Jan. 12 opening of the legislature's next session.
Read more in the Commercial Appeal
Disciplinary Actions
Two lawyers reinstated after paying annual fee
Knoxville lawyer Vanessa Lynn Lemons and Ashburn, Va., lawyer Robert Jay Wittmer have been reinstated to the practice of law after paying the 2009 BPR fee and required fines. Lemons was suspended on Oct. 5. Wittmer was suspended on June 10.
View all attorneys suspended and reinstated for 2009 fee violations
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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