TBA Today

Thursday, January 07, 2010

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Former TBA president, Memphis lawyer dies

Former TBA president and Memphis attorney W. Emmett Marston died early this morning. Visitation is tentatively set for Sunday with a memorial service scheduled for Monday at 1 p.m. at Christ Methodist Church's Wilson Chapel on Poplar Avenue. Marston, a director and shareholder at Martin Tate Morrow & Marston PC, practiced in the area of commercial real estate and was a Rule 31 Mediator. His accomplishments included service as chair of the state CLE Commission, chair of the Tennessee Supreme Court's Alternative Dispute Resolution Commission, president of the Memphis Bar Association, and president of the Tennessee Bar Association. Marston also was active in the American Bar Association, serving as a member of the House of Delegates, committee chair and state chair of the American Bar Foundation. He graduated from the University of Mississippi School of Law in 1953. Additional funeral details if available will be published in Friday's TBA Today.

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.

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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.

JAMES E. DYER, Individually, and as Administrator of the Estate of FAYE E. DYER, Deceased v. HILL SERVICES PLUMBING AND HVAC

Court: TCA

Attorneys:

Reed L. Malkin and Steven R. Walker, Memphis, TN, for appellant, James E. Dyer.

Julia Beth Crews, Memphis, TN, for appellee, Hill Services, Plumbing and HVAC.

Judge: STAFFORD

This appeal arises from a dispute between Appellant employee and Appellee employer over life insurance coverage under a group insurance policy. Employee asserts that employer was negligent in failing to inform employee of his right of conversion under the insurance policy and also in its failure to obtain insurance coverage for him after he was rehired. In the alternative, employee argues that the doctrine of equitable estoppel should apply. The trial court dismissed the complaint based upon its finding that employee failed to make out a prima facie case for negligence, and declined to apply equitable estoppel. Finding negligence by the employer in failing to notify employee of his right to convert, we reverse the trial court's dismissal of that claim and remand for further proceedings. We affirm the decision of the trial court finding that the employer was not negligent in obtaining new insurance for the employee after he was rehired and its decision not to apply equitable estoppel.

http://www.tba2.org/tba_files/TCA/2010/dyerj_010710.pdf

FARMER partial dissent
http://www.tba2.org/tba_files/TCA/2010/dyerj_DIS_010710.pdf

STATE OF TENNESSEE v. ANTHONY T. DEAN

Court: TCCA

Attorneys:

Anthony T. Dean, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and William Lamberth, II, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Anthony T. Dean, appeals from an order of the trial court denying his motion for reduction of sentence. Following our review of the record, we conclude that the trial court did not err by denying the motion. We affirm the order of the trial court in accordance with Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

http://www.tba2.org/tba_files/TCCA/2010/deana_010710.pdf

STATE OF TENNESSEE v. RICHARD FERRELL

Court: TCCA

Attorneys:

L. Scott Grissom, McMinnville, Tennessee, for the appellant, Richard Ferrell.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and William Locke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

After a jury trial, the Defendant, Richard Ferrell, was convicted of driving on a suspended license. The trial court subsequently sentenced the Defendant to a term of six months, with sixty days of the sentence to be served in the county jail followed by supervised probation. In this direct appeal, the Defendant argues that the evidence is insufficient as a matter of law to support his conviction and that the trial court erred by ordering him to serve sixty days in incarceration. Following a review of the sparse record presented on appeal, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/ferrellr_010710.pdf

MAURICE GARRETT v. STATE OF TENNESSEE, ET AL.

Court: TCCA

Attorneys:

Maurice Garrett, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The Petitioner, Maurice Garrett, appeals the trial court's denial of his pro se motion for writ of certiorari. The State has filed a motion requesting that this Court affirm the decision of the lower court, or, in the alternative, dismiss the appeal. After review of the pleadings and record before this Court, we conclude that the lower court properly denied the Petitioner's request for relief. 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/2010/garrettm_010710.pdf

STATE OF TENNESSEE v. MARK ANTHONY HAYNES

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, Mark Anthony Haynes.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Mark Anthony Haynes, pled guilty in the Bedford County Circuit Court to three counts of violation of the sex offender registry law, a Class E felony, and was sentenced to consecutive terms of one year, six months for each offense, for a total effective sentence of four years and six months in the Department of Correction. On appeal, he argues that the trial court erred by denying his request for alternative sentencing. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/haynesm_010710.pdf

CHARLES EDWARD MERIWEATHER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mark A. Kovach, Nashville, Tennessee, for the appellant, Charles Edward Meriweather.

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

Judge: GLENN

The petitioner, Charles Edward Meriweather, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that his guilty pleas were therefore unknowing and involuntary, due to counsel's failure to inform him that the sentences contained in his plea bargain agreement were illegal. The State concedes that the petitioner's sentences are illegal, rendering his guilty pleas unknowing and involuntary. We agree that the plea bargain contains illegal sentences and, accordingly, reverse the judgment of the post-conviction court and remand the case to the trial court for the petitioner to be allowed to withdraw his guilty pleas.

http://www.tba2.org/tba_files/TCCA/2010/meriweatherc_010710.pdf

STATE OF TENNESSEE v. DEBORAH JO ORR

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Deborah Jo Orr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Craig Monsue, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Deborah Jo Orr, was charged with one count of driving under the influence (fourth offense), one count of driving on a revoked license (first offense), one count of violating the implied consent law, and one count of possession of drug paraphernalia. Following a jury trial, she was convicted as charged. In this direct appeal, she contends that the State presented evidence insufficient to convict her of driving under the influence. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/orrd_010710.pdf

STATE OF TENNESSEE v. KENNETH L. PEACHMAN

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Kenneth L. Peachman.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Kenneth L. Peachman, along with seven co-defendants, was indicted in count one of the indictment for first degree, premeditated murder. The co-defendants' cases are not part of this appeal. Defendant entered a plea of guilty in count one to the lesser included offense of second degree murder, with sentencing left to the discretion of the trial court. Pursuant to the negotiated plea agreement, the State agreed to enter a nolle prosequi as to the remaining counts of the indictment. Defendant filed a pro se motion to withdraw his plea of guilty before sentencing, which was denied by the trial court. Following a sentencing hearing, the trial court sentenced Defendant, as a Range One, standard offender, to twenty-four years, six months. On appeal, Defendant argues that the trial court erred in denying his motion to withdraw his plea of guilty, and that the trial court erred in its sentencing determinations. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/peachmank_010710.pdf

RUDOLPH POWERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rudolph Powers, pro se.

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

Judge: WOODALL

The Appellant, Rudolph Powers, appeals the trial court's summary dismissal of his petition for habeas corpus relief. The Appellant failed to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/powersr_010710.pdf

STATE OF TENNESSEE v. DONALD MOORE PUCKETT, III

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Donald Moore Puckett, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Donald Moore Puckett, III, pled guilty in two separate cases to facilitation of theft of property and violation of the sex offender registration law for agreed-upon Range II sentences of six years and two years, respectively, to be served concurrently. Following a sentencing hearing, the trial court denied the defendant's request for an alternative sentence, the denial of which he now appeals. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/puckettd_010710.pdf

STATE OF TENNESSEE v. JEFFERY SIMMONS

Court: TCCA

Attorneys:

Dan Bryant and Scott Grissom, McMinnville, Tennessee (at trial) and Kevin S. Latta, Smithville, Tennessee (on appeal), for the Appellant, Jeffery Simmons.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General; Dale Potter, District Attorney General; Tom Miner, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Warren County jury convicted the Defendant, Jeffery Simmons, of four counts of aggravated sexual battery, and the trial court sentenced him to eight years on each count and ordered the sentences to run consecutively, for an effective sentence of thirty-two years. The Defendant appeals, contending: (1) the evidence is insufficient to sustain his convictions; (2) the trial court improperly instructed the jury after the jury deadlocked; and (3) the trial court erred when it ordered consecutive sentencing. The State contends that the Defendant's appeal should be dismissed for failure to file a timely motion for new trial and notice of appeal. We conclude that the Defendant's failure to file a timely motion for a new trial waived consideration of the Defendant's objections to the jury instructions in this case. We elect, in the interest of justice, to review the sufficiency of the evidence and the trial court's order of consecutive sentencing. After thoroughly reviewing the record and applicable authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2010/simmonsj_010710.pdf

MICHELLE TIPTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael T. Cabage, Knoxville, Tennessee, for the Petitioner, Michelle Tipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; James B. Dunn, District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Sevier County jury convicted the Petitioner, Michelle Tipton, of felony murder, robbery, and second-degree murder, and the trial court imposed a life sentence. On direct appeal, this Court reversed the second-degree murder conviction, merged the robbery conviction with the felony murder conviction, and affirmed the life sentence. The Petitioner filed a petition for post-conviction relief claiming she received the ineffective assistance of counsel. The post-conviction court denied relief after a hearing, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/tiptonm_010710.pdf

STATE OF TENNESSEE v. CHARLES MITCHELL TUCKER, JR.

Court: TCCA

Attorneys:

Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Charles Mitchell Tucker, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Charles Mitchell Tucker, Jr., appeals the sentencing decision of the Bedford County Circuit Court. On January 8, 2009, he pleaded guilty to six counts each of burglary of an automobile and theft of property valued at $500 or less. Following a sentencing hearing, the trial court imposed an effective three-year sentence and ordered the Defendant to serve his sentence in the Department of Correction. On appeal, the Defendant argues that the trial court erred in denying his request for full probation. Upon our review of the record and the parties' briefs, we affirm the sentencing decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/tuckerc_010710.pdf

STATE OF TENNESSEE v. TROY LYNN WOODLEE

Court: TCCA

Attorneys:

Dan Bryant, District Public Defender; and Trenena G. Wilcher, Assistant Public Defender, McMinnville, Tennessee, for the appellant, Troy Lynn Woodlee.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark Fulks, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Tom Miner, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Troy Lynn Woodlee, entered a plea of nolo contendere to one count of felony simple possession of methamphetamine and one count of felony simple possession of marijuana. The trial court sentenced Defendant to two years on each count as a Range I offender. The counts were ordered to be served concurrently for an effective two-year sentence. Defendant attempted to reserve a certified question of law under Rule 37(b)(2)(1) of the Tennessee Rules of Criminal Procedure, challenging the trial court's denial of his motion to suppress the evidence seized after execution of a search warrant. After review, we conclude that this Court does not have jurisdiction to address the certified question because the certified question did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is, therefore, dismissed.

http://www.tba2.org/tba_files/TCCA/2010/woodleet_010710.pdf

TODAY'S NEWS

Legal News
Your Practice
Upcoming
TBA Member Services
Career Opportunities

Legal News

Report chronicles drop in minority law students

A new report from the Society of American Law Teachers and the Lawyering in the Digital Age Clinic at Columbia University School of Law shows a 7.5 percent drop in African-Americans and an 11 percent drop in Mexican-American students entering law school from 1993 to 2008 -- despite constant application rates and increased seating capacity.

Read more on Chattanoogan.com

Nashville juvenile facility plagued by abuse

A government study issued Thursday finds 13 juvenile detention facilities around the country, including one in Nashville, have high rates of sex abuse and victimization. The review found that at the Woodland Hills Youth Development Center in Nashville nearly one out of every three inmates reported some type of victimization.

Learn more in the Tennessean

Former juvenile judge wants job back

Former Anderson County juvenile judge Pat Hess, who served 15 years in the post, announced today she is seeking her old job again. Current Juvenile Judge April Meldrum, who defeated Hess in 2006, is vacating the position and the Anderson County Commission will appoint an interim judge to serve until Aug. 31. Those interested in being considered must file with the county by noon on Friday.

The News Sentinel reports

Mock trial coach needed for Milan High School

Milan High School is looking for an attorney coach to help its student mock trial team. The school will compete in the District 2 competition Feb. 27 in Jackson, and if it progresses to the state competition, will compete in Nashville March 19-20. Those who are interested should contact local mock trial coordinator Ashley Holliday at ashley@wtls.org or at (731) 426-1302.

Thornton repeats as pro bono award winner

Memphis attorney Laurie M. Thornton has received the annual Frank J. Glankler Jr. Pro Bono Award for the second year in a row. Thornton, who serves with Glankler Brown, completed more than 40 hours of free legal services this past year. At Glankler Brown, she focuses her practice in residential and commercial real estate law. The award is given in memory of the firm's founding partner who was a strong supporter of pro bono efforts.

Read about Thornton in the Memphis Daily News

State offers few alternative law school schedules

In an article today the Memphis Daily News looks at night and part time law school programs in the state, concluding that most adults must put their lives on hold while pursuing a full-time day program. The article explores the history of an evening program that was offered some 20 years ago at the University of Memphis School of Law and why the Nashville School of Law -- the only law school in the state dedicated solely to a night program -- continues to flourish.

Feds to review courthouse security

Federal authorities announced yesterday they would conduct a nationwide review of courthouse security after a gunman killed a courthouse officer and wounded a deputy marshal in Las Vegas. The U.S. Marshals Service, which is charged with protecting federal courthouses and judges, will take the lead on the effort and scrutinize safety measures at more than 400 facilities.

WKRN Nashville has this AP story

Recruiters: skills, not class rank, key to job offer

Legal recruiters are predicting that skills, abilities and career interests will weigh more heavily than class year or ranking as employers hire new associates in 2010. In light of this development, some placement firms are encouraging law schools to offer practical training outside the classroom to increase students' marketability and earning potential.

The ABA Journal reports

Your Practice

Advice for managing partners

What should managing partners be thinking about as we head into 2010? Hildebrandt consultant Joe Altonji writes that "clients have stepped in, and are now taking a very proactive approach to changing the business models of their law firms. Like it or not, we are not going back."

Upcoming

Belmont Law to host 'Champions For Justice' dinner

The new Belmont University College of Law has announced its inaugural Champions For Justice Dinner to be held Jan. 19 from 6:30 to 8 p.m. at the university's Curb Event Center. By special arrangement with the school, the Tennessee Bar Association has a limited number of specially priced tickets to the event which will feature Fred Gray, former president of the Alabama Bar Association and attorney for Rosa Parks, Martin Luther King Jr. and the victims of the Tuskegee Syphilis Study. Contact the TBA for ticket information.

Or download a flyer for more details

TBA Member Services

Discounts from Office Depot

Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.

Find out more

Career Opportunities

DHS to hire staff attorney

The Department of Human Services, Office of General Counsel has an attorney position available in its Memphis Field Litigation Unit. The primary responsibility for the position will be handling court and administrative actions on behalf of the department's childcare, adult protective services and vocational rehabilitation programs. Interviews will be held on Jan. 13 in Memphis. Those interested should contact Department of Human Services Deputy General Counsel Kim Beals at (615) 313-4731 or Kim.Beals@tn.gov.

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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.