Exclusionary rule, diversion back on House panel agenda

Two bills dealing with critical criminal justice issues have reemerged on the House Judiciary Committee calendar for next week. The Exclusionary Rule Reform Act (SB0518 by Sen. Randy McNally, R-Oak Ridge, and HB1700 by Rep. Eric Watson, R-Cleveland) failed to receive committee recommendation on a 6-6 tie vote last year, the first year of the current two-year session. The TBA has expressed serious reservations about the General Assembly attempting to overturn court-made constitutional standards. The bill on pre-trial diversion (SB3347 by Sen. Jim Kyle, D-Memphis, and HB3283 by Rep. Kent Coleman, D-Murfreesboro) would severely limit the 35-year-old program that permits district attorneys to divert cases before trial. That bill failed on a 5-7 vote in the House committee earlier this year. The Senate Judiciary Committee has the bill on its calendar for next week as well.
TODAY'S OPINIONS
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LARRY BAIN v. TRW, INC. ET AL.

Court: TWCA

Attorneys:

Richard Lane Moore, Cookeville, Tennessee, for the appellants, TRW, Inc., TRW Automotive U.S., LLC, and American Home Assurance Company.

Hugh Green and John Meadows, Lebanon, Tennessee, for the appellee, Larry Bain.

Judge: KOCH

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) (2008) for a hearing and a report of findings of fact and conclusions of law. An employee sustained a work-related repetitive exposure hearing loss injury. After he retired for reasons unrelated to the injury, he filed suit in the Criminal Court for Wilson County seeking workers' compensation benefits. Following a bench trial, the trial court awarded 65% permanent partial disability to the hearing of both ears and set the date of injury as the date that the employee first learned of his hearing loss. The employer appealed arguing that the award was excessive and that the trial court erred in setting the date of injury. We find that the award was excessive and modify it to 15% permanent partial disability to the hearing of both ears. We have also determined that the trial court erred with regard to its determination of the date of the injury.

http://www.tba2.org/tba_files/TSC_WCP/2010/bainl_041510.pdf


WILLIAM DOWNEY v. GRIFFIN INDUSTRIES

Court: TWCA

Attorneys:

Jeffrey P. Boyd, Jackson, Tennessee for the appellant, William Downey.

Stuart F. James, Chattanooga, Tennessee, for the appellee, Griffin Industries.

Judge: FRIERSON

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 trial court approved a settlement of this workers' compensation claim. The settlement was presented to the court by means of an affidavit executed by the employee and a telephone conference between the court and the employee. Approximately six weeks later, the employee petitioned to set aside the settlement under Tenn. Code Ann. section 50-6-206(a) and alternatively, Tenn. R. Civ. P. 60.02. The trial court dismissed the petition for relief from Judgment. The employee has appealed. We affirm the order dismissing the petition to set the settlement aside.

http://www.tba2.org/tba_files/TSC_WCP/2010/downeyw_041510.pdf


ANNEMARIE TUBBS v. ST. THOMAS HOSPITAL

Court: TWCA

Attorneys:

D. Randall Mantooth, Nashville, Tennessee, for the appellant, St. Thomas Hospital.

James S. Higgins, Nashville, Tennessee, for the appellee, Annemarie Tubbs.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. The employee developed a latex allergy as a result of her employment at a hospital, and the hospital made certain accommodations that enabled the employee to continue working. However, the employee's sensitivity to latex increased over the years, and she eventually left her job. The employee filed a petition seeking workers' compensation benefits in the Chancery Court of Davidson County. Following a bench trial, the trial court awarded the employee 60% permanent partial disability to the body as a whole. On this appeal, the employer contends that the treating physician's impairment rating should not have been admitted into evidence because it was not in accordance with the AMA Guides. The employer also argues that a lower impairment should have been used by the trial court and that the award should have been capped. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/tubbsa_041510.pdf


BOBBY R. HOPKINS v. DOYLE K. RIGGS, ET AL.

Court: TCA

Attorneys:

Brandon K. Fisher, Clinton, Tennessee, for the appellant, Bobby R. Hopkins.

Linda G. Shown, Alcoa, Tennessee, for the appellees, Doyle K. Riggs and Ruth Riggs.

Judge: SWINEY

Bobby R. Hopkins (Hopkins) sued Doyle K. Riggs and Ruth Riggs (the Riggs) alleging, in part, that the Riggs had contracted to construct a road on the Riggs' property for Hopkins' use and had failed to construct an adequate road. The Riggs filed a motion for summary judgment and the Trial Court granted them summary judgment. The Riggs then sought attorney's fees pursuant to the parties' contract. The parties then reached an agreement with regard to attorney's fees, an agreement which the Riggs subsequently alleged was breached by Hopkins. The Riggs then filed a motion and the Trial Court entered an order granting the Riggs additional attorney's fees. Hopkins appeals to this Court raising issues regarding the grant of summary judgment and the award of attorney's fees. We affirm the grant of summary judgment, hold that the Riggs were entitled to an award of attorney's fees pursuant to the parties' contract, vacate the Trial Court's November 25, 2008 Order granting additional attorney's fees, and remand this case to the Trial Court for entry of an order that complies with the parties' August 6, 2008 agreement.

http://www.tba2.org/tba_files/TCA/2010/hopkinsb_041510.pdf


JOHN SKIPPER and BRENDA SKIPPER v. WELLS FARGO BANK, N.A.

Court: TCA

Attorneys:

Philip M. Kleinsmith, Colorado Springs, Colorado, for the appellant, Wells Fargo Bank, N.A.

G. Patrick Arnoult, Memphis, Tennessee, for the appellees, John Skipper and Brenda Skipper.

Judge: HIGHERS

Wells Fargo purchased foreclosed property, which it then sold to the Skippers. The Skippers contracted to sell the property, but before the sale was completed, two IRS tax liens against the previous owners were discovered. The Skippers sued Wells Fargo, and the trial court awarded them their lost profits from the anticipated sale. Wells Fargo appeals, and we affirm in part and reverse in part and remand.

http://www.tba2.org/tba_files/TCA/2010/skipperj_041510.pdf


ROBERT STRINE, ET AL. v. JOSHUA WALTON, ET AL.

Court: TCA

Attorneys:

Dan C. Stanley and Travis E. Venable, Knoxville, Tennessee, for the Appellants, Robert and Grace Strine, individually and as guardian and next friend of Ashley Strine, a minor.

Jon M. Cope and Hudson T. Ellis, Knoxville, Tennessee, for the Appellees James Rice and Kevin Rice.

Judge: SWINEY

On July 7, 2005, Ashley Strine (Plaintiff) was injured while riding in a vehicle being driven by Joshua Walton (Walton). The vehicle was owned by James Rice (Father), who had given the vehicle to his son, Kevin Rice (Son), for Son's personal use. On the day of the accident, Son had given Walton permission to use his vehicle to pick up Plaintiff. Walton and Plaintiff were planning on attending a birthday party later that day. Plaintiff originally sued only Walton and Father. As to Father, Plaintiff asserted liability based on the family purpose doctrine and negligent entrustment. Over two years later, Son was added as a defendant. An order of compromise and dismissal was entered as to Walton. Thereafter, Father and Son filed a joint motion for summary judgment. The Trial Court granted Father summary judgment on Plaintiff's claims pursuant to the family purpose doctrine and negligent entrustment. With regard to Son, the Trial Court concluded that all claims against him were barred by the one-year statute of limitations. Plaintiff appeals. We affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2010/striner_041510.pdf


STATE OF TENNESSEE v. JOHN TYLER BEASON

Court: TCCA

Attorneys:

Martha Yoakum, District Public Defender (on appeal); and A. Thomas Monceret, Knoxville, Tennessee (at trial), for the appellant, John Tyler Beason.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William Paul Phillips, District Attorney General; and Tracy Tipton Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, John Tyler Beason, was convicted of attempted first degree murder, for which he received a twenty-year sentence as a Range I, standard offender. The Defendant appeals, contending that the trial court erred in denying his motion to suppress his pretrial statement and that the court erred in sentencing. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/beasonj_041510.pdf


JUSTIN RASHARD FORREST v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph T. Howell, Jackson, Tennessee, for the appellant, Justin Rashard Forrest.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Justin Rashard Forrest, appeals the judgment of the Madison County Circuit Court denying his petition for post-conviction relief. Pursuant to a negotiated plea agreement, the petitioner pleaded guilty to aggravated burglary, especially aggravated kidnapping, and three counts of aggravated robbery in case number 07-337; aggravated burglary and theft in case number 07-285; and possession of marijuana and especially aggravated robbery in 07-286. The trial court sentenced him to an effective sentence of fifteen years in the Tennessee Department of Correction. The petitioner filed a petition for post-conviction relief alleging the ineffective assistance of counsel, and the post-conviction court denied his petition. On appeal, the petitioner contends that the post-conviction court erred when it denied his petition for post-conviction relief. After review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/forrestj_041510.pdf


JOHNNY L. McGOWAN, JR. v. HOWARD CARLTON, WARDEN
Corrected Opinion


Court: TCCA

Attorneys:

Johnny L. McGowan, Jr., Mountain City, Tennessee, Pro Se.

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

Judge: TIPTON

The pro se Petitioner, Johnny L. McGowan, Jr., appeals from the trial court's order denying his petition for the writ of habeas corpus. The State has filed a motion requesting that this court affirm the order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to state a cognizable claim for habeas corpus relief. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/mcgowanj_corr_041510.pdf


STATE OF TENNESSEE v. ELGY SMITH

Court: TCCA

Attorneys:

Brett Stein (at trial); William D. Massey and Lorna S. McClusky (on appeal), Memphis, Tennessee, attorneys for the appellant, Elgy Smith.

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

Judge: THOMAS

A Shelby County jury convicted the Defendant, Elgy Smith, of possession of .5 grams or more of cocaine with the intent to sell, and possession of .5 grams or more of cocaine with the intent to deliver, both Class B felonies; possession of marijuana with the intent to sell, and possession of marijuana with the intent to deliver, both Class E felonies. At sentencing, the trial court merged each pair of convictions and sentenced the Defendant to twenty-five years as a Range III, persistent offender for the cocaine offense and five years as a Range III, persistent offender for the marijuana offense. Finding the Defendant to be a professional criminal, the trial court also ordered the sentences to be served consecutively for a total effective sentence of thirty years incarceration. In this appeal as of right, the Defendant contends that the evidence is insufficient to support his convictions and that his sentence is excessive. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/smithe_041510.pdf


Applicability of Notification Provisions of Tenn. Code Ann. Section 48-68-203 to Subsidiary Mergers

TN Attorney General Opinions

Date: 2010-04-15

Opinion Number: 10-49

http://www.tba2.org/tba_files/AG/2010/ag_10_49.pdf

Application of Zoning to Sport Shooting Ranges under Tenn. Code Ann. Section 39-17-316(c)

TN Attorney General Opinions

Date: 2010-04-15

Opinion Number: 10-50

http://www.tba2.org/tba_files/AG/2010/ag_10_50.pdf

TODAY'S NEWS

Passages
Legal News
Politics
Supreme Court Report
Legislative News
TBA Member Services

Passages
Memphis civil rights leader Hooks dies
Civil rights leader, lawyer, judge and preacher, the Rev. Dr. Benjamin L. Hooks died early today at Methodist University Hospital in Memphis. He was 85 and had long suffered from various illnesses. Dr. Hooks earned his law degree from DePaul University and became a leader in the civil rights movement, working with Dr. Martin Luther King Jr. Dr. Hooks was appointed to the Tennessee Criminal Court in 1965, becoming the first African-American judge in the south following Reconstruction, and later became the first black member of the Federal Communications Commission. Five years later he resigned to take over the NAACP. He led that organization from 1977 to 1992. For 52 years he also delivered sermons at the Greater Middle Baptist Church in Memphis, retiring just last year.

Read the statement from the Memphis Bar Association or learn more from The Commercial Appeal.
Read reactions from state and national leaders
Legal News
Judge Gilman to take senior status
Judge Ronald Lee Gilman of the U.S. Sixth Circuit Court of Appeals has notified President Barack Obama that he will be taking "senior status" on Nov. 21. Gilman has served on the court for 13 years. Although he is eligible for full retirement, Gilman says he intends to reduce his caseload by 25 percent and continue hearing cases both in the Sixth Circuit and as a visiting judge in other circuits. Judge Gilman was president of the Tennessee Bar Association in 1990-1991.

Bankruptcies down in West Tennessee
The U.S. Bankruptcy Court for West Tennessee reported fewer bankruptcy petitions during the first quarter of this year compared to the same period last year. The filings also indicated a drop in two of the most closely watched types of bankruptcy cases: Chapter 7 and Chapter 13. Economists, however, are reluctant to say whether the decrease is the beginning of a long-term recovery.
Read more about the statistics in the Memphis Daily News
Leadership class in Memphis
The Tennessee Bar Association's Leadership Law class was in Memphis today, taking part in a Leadership in Action program. Along with sessions on leadership in the profession from Judge Bernice Donald and leadership in the community from Paul Morris of Martin Tate Morrow & Marston, the class heard from a panel of lawyers and activists discussing their role in the city's civil rights struggles.

Paper: AG right to stay above political fray
Editors of the Memphis Commercial Appeal write in an opinion piece that Tennessee Attorney General Robert E. Cooper made the right decision not to join other states in suing the federal government over the new healthcare law. The editorial commends him for staying "above the political fray," noting, however, that the move may have the unintended effect of strengthening calls to elect the state's AG, which would be a mistake: "Steering as far as practically possible from partisan politics in the selection of the state's attorney and members of its high court has served the state of Tennessee well." The paper concludes "there is no reason for that system to change."
Read the full editorial
Yale law still number one
Yale Law School still holds the No. 1 spot in the new U.S. News & World Report rankings this year, followed by Harvard Law School, Stanford Law School, Columbia Law School and the University of Chicago Law School. The top 10 results are much the same as last year with tuition among the top-10 schools ranging from $35,907 to $48,340. Vanderbilt University maintained its rank as 17th on the list, while the University of Tennessee slipped from 59 to 60 in a tie with three other schools. The full story will be available in the hard-copy magazine beginning April 27. Basic information already is available online for free.
See the rankings
Politics
Democrats set May 15 caucus for chancellor
The Hamilton County Democratic Party has called a special caucus to select the party's nominee to replace retiring Chancellor Howell N. Peoples. The meeting, which will be held May 15 at 1 p.m. at the North River Civic Center in Hixson, will name a candidate to compete in the Aug. 5 election. Prospective candidates should notify the party in writing and submit a brief description of qualifications no later than April 27 to be considered. Notifications should be sent to the Hamilton County Democratic Party, P.O. Box 4090, Chattanooga, TN 37405. The Chattanoogan.com reported the event.

Supreme Court Report
Breyer predicts court will hear health overhaul
U.S. Supreme Court Justice Stephen Breyer predicted today that the Supreme Court would pass judgment on this year's health care overhaul one day. His comments came as he appeared before the House Appropriations Subcommittee. Breyer also warned that the court's relatively light caseload in recent years would soon be a thing of the past. The panel also questioned Breyer and Justice Clarence Thomas on the issue of cameras in the court. They indicated judges are concerned that proceedings will be taken out of context and that juror and witness security will be compromised.
Read more of their comments in this AP story from WKRN Nashville
Legislative News
House Rules Committee erupts today
A House Calendar and Rules Committee meeting on a range of bills, including the Health Freedom Act, abruptly ended in confusion and shouting this morning after 11 of 12 Republicans on the panel walked out. The sole remaining Republican -- Chairman Bill Dunn -- then adjourned the meeting despite shouts of "no" and "roll call" from the Democrats who remained. Earlier in the proceedings, members had deadlocked on votes regarding the act.
The Times Free Press reports
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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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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