Deadline looming for CLE completion

Attorneys who have not yet completed their 2009 CLE requirements need to do so before June 1 to avoid delinquent compliance fees and ensure their licenses are not suspended. To help those who need hours, the TBA is hosting a Spring CLE Blast this Friday at the Tennessee Bar Center. The TBA's TennBarU will present 11 hours of continuous programming, starting at 7 a.m. The program features some of the best TennBarU programs from the past year presented with moderators. All are certified as live programs offering dual credit. Advanced registration is not required and you can use TBA Prepaid Credits to purchase the courses. Also available from your own computer is the TennBarU online catalog of several hundred video and text courses.

See the full schedule of online courses

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
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00 - TN Supreme Court - Rules
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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.

STATE OF TENNESSEE v. BENJAMIN BROWN

Court: TSC

Attorneys:

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Benjamin Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and John Wheeler Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: LEE

The defendant was convicted of aggravated child abuse and felony murder in the perpetration of aggravated child abuse. The defendant appealed the felony murder conviction, and the Court of Criminal Appeals affirmed his conviction. We granted permission to appeal and address the issue of whether the trial court committed reversible error by failing to instruct the jury on the lesser-included offenses of felony murder, which include second degree murder, reckless homicide, and criminally negligent homicide. We conclude that the trial court erred by failing to instruct the jury as to these lesser-included offenses, and accordingly, we reverse the felony murder conviction and remand the case for a new trial on the felony murder count.

http://www.tba2.org/tba_files/TSC/2010/brownb_052710.pdf


PAUL LEONARD v. LEO'S EXTERMINATING SERVICES, INC.

Court: TCA

Attorneys:

Gary L. Edwards and Christie Hayes, Johnson City, Tennessee, for the appellant, Leo's Exterminating Services, Inc.

John P. Chiles, Kingsport, Tennessee, for the appellee, Paul Leonard

Judge: SUSANO

In May 1997, Paul Leonard ("the Homeowner") discovered termites in his home. On June 11, 1997, he contracted with Leo's Exterminating Services, Inc., to treat his home. Leo's performed the initial treatment. The contract provided for annual renewals at a reduced rate. The Homeowner renewed twice. The last renewal was on June 11, 1999, which renewal qualified the Homeowner to receive, free of additional charge, retreatment 1 for a "live infestation" until June 11, 2000. Unfortunately, the initial treatment did not eliminate the termites. The Homeowner reported a recurrence of termites several times between 1997 and 1999. Leo's made additional treatments. In 1998, Leo's assisted the homeowner with repairs to a sagging hallway over the area of infestation. In 1999, the Homeowner switched to another exterminator who installed a "bait" system to control the termites. On July 24, 2000, the Homeowner filed this action against Leo's in which he alleged that his home had been damaged as a result of deficient treatment by Leo's. He alleged a breach of contract and violation of the Tennessee Consumer Protection Act ("the TCPA"), Tenn. Code Ann. section 47- 18-101 et seq. (2001). In the bench trial that ensued, Leo's challenged almost every aspect of the Homeowner's case including the causal connection between the deficiencies and the damage. Leo's also raised the defense that the contract limited the Homeowner's remedy to retreatment only, and that the statute of limitations had expired on the TCPA claim. In its opinion and order, entered as the final judgment, the trial court found that Leo's had failed to control the termites and that its failure amounted to a breach of the contract; that the Homeowner sustained damages of $39,910.87 as a result of the breach; and that Leo's was guilty of willful deception in violation of the TCPA, justifying trebled damages of $119,732.61. The trial court also awarded the Homeowner his resonable attorney's fees of $30,000. Leo's appeals. We affirm that part of the judgment awarding damages of $39,910.87 for breach of the contract. We reverse that part of the judgment awarding treble damages and attorney's fees under the TCPA because we find that the TCPA claim is barred by the statute of limitations.

http://www.tba2.org/tba_files/TCA/2010/leonardp_052710.pdf


HAROLD DEAN McDANIEL v. KIMBERLY RUTH McDANIEL

Court: TCA

Attorneys:

William G. Schwall, Chattanooga, Tennessee, for the Appellants, Kimberly Ruth McDaniel and Homer Jerrolds.

Robert J. Batson, Jr., Chattanooga, Tennessee, for the Appellee, Harold Dean McDaniel.

Judge: SWINEY

In this divorce case, Kimberly Ruth McDaniel ("Mother") appeals raising numerous issues, including a challenge to the admission of a tape recorded conversation between Mother and one of her children from a previous marriage. Neither party to this telephone conversation knew that it was being recorded. Admission of the tape recorded conversation damaged Mother's credibility because, prior to its admission, Mother expressly denied making numerous comments contained in this recording. In addition, Mother's father, Homer Jerrolds ("Jerrolds") appeals the Trial Court's finding that he was in criminal contempt for threatening the guardian ad litem outside the courtroom after the Trial Court announced its judgment from the bench. Jerrolds claims he did not receive proper notice pursuant to Tenn. R. Crim. P. 42. We affirm the Trial Court's award of a divorce to Father based on Mother's admitted affair. However, we conclude that the tape recorded conversation should not have been admitted and that its admission was not harmless error. We further conclude that Jerrolds did not receive proper notice pursuant to Tenn. R. Crim. P. 42. The judgment of the Trial Court is affirmed in part, vacated in part, and remanded for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2010/mcdanielh_052710.pdf


NORMAN REDWING v. THE CATHOLIC BISHOP FOR THE DIOCESE OF MEMPHIS
With dissenting opinion

Court: TCA

Attorneys:

John H. Dotson and Casey Shannon, Memphis, Tennessee, for the appellant, The Catholic Bishop for the Diocese of Memphis.

Gary K. Smith and Karen M. Campbell, Memphis, Tennessee, for the appellee, Norman Redwing.

Judge: FARMER

Plaintiff filed an action against the Catholic Bishop for The Diocese of Memphis, asserting the Diocese was liable for damages arising from the negligent hiring, retention and supervision of a priest, who Plaintiff alleged abused him when he was a child. The Diocese moved to dismiss for lack of subject matter jurisdiction and on the grounds that the statute of limitations prescribed by Tennessee Code Annotated section 28-3-104 had expired. The trial court denied the motions. It also denied the Diocese's motion for permission to seek an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted the Diocese's motion for extraordinary appeal under Rule 10. We affirm the trial court's judgment with respect to subject matter jurisdiction over Plaintiff's claim of negligent supervision, but hold that Plaintiff's claims of negligent hiring and negligent retention are barred by the ecclesiastical abstention doctrine. We reverse the trial court's judgment with respect to the expiration of the statute of limitations.

http://www.tba2.org/tba_files/TCA/2010/redwingn_052710.pdf

KIRBY dissenting
http://www.tba2.org/tba_files/TCA/2010/redwingn_DIS_052710.pdf


MELISSA A. STEWART ET AL. v. A.K.M. FAKHRUDDIN, M.D. ET AL.

Court: TCA

Attorneys:

Mathew R. Zenner and Malcolm L. McCune, Nashville, Tennessee, for the appellant, Melissa A. Stewart.

Garrett E. Asher and Jennifer G. Rowlett, Nashville, Tennessee, for the appellees, A.K.M. Fakhruddin, M.D. and Madison Psychiatric Associates, P.C.

Judge: BENNETT

A man receiving outpatient treatment from a psychiatrist shot and killed his wife and himself. Patient's daughter filed wrongful death actions on behalf of her mother and her father and a negligence action on her own behalf. The trial court granted summary judgment with respect to the wrongful death claim on behalf of the mother and the individual claim of the daughter. The wrongful death claim on behalf of father was voluntarily dismissed. We have concluded that Tenn. Code Ann. section 33-3-206 does not apply in this case and that the trial court erred in granting summary judgment with respect to mother's and daughter's negligence claims.

http://www.tba2.org/tba_files/TCA/2010/stewartm_052710.pdf


STATE OF TENNESSEE v. GARY EDWARD DOUGHERTY

Court: TCCA

Attorneys:

Richard A. Tate, Blountville, Tennessee, for the Appellant, Gary Edward Dougherty.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Kent Chitwood and Kaylin Hortenstine, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Sullivan County jury convicted the Defendant, Gary Edward Dougherty, of two counts of attempt to commit first degree murder and two counts of aggravated assault. The trial court merged all counts and sentenced the Defendant, a Range I offender, to twenty-two years in the Tennessee Department of Correction. The Defendant appealed, contending: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it enhanced his sentence. This Court held that a written order disposing of the motion for a new trial or a minute entry disposing of the motion and bearing the signature of the trial judge is required to confer upon this court jurisdiction of this appeal, and because neither was part of the record, dismissed the appeal for lack of jurisdiction. See State v. Dougherty, No. E2008-00131-CCA-R3-CD, 2002 WL 445070 (Knoxville, March 17, 2009). On August 31, 2009, our supreme court remanded this case to us, directing us to reconsider our opinion in light of State v. Byington, 284 S.W.3d 200, 223 (Tenn. 2009) (noting that "the procedure for correcting and modifying the record reflects the dual goals of avoiding technicality and expediting a just resolution of the case on its merits"). Based upon Byington, we conclude that we do have jurisdiction to review this case on the merits. After a thorough review of the record and relevant authorities, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2010/doughertyg_052710.pdf


MILBURN L. EDWARDS v. CHERRY LINDAMOOD, WARDEN

Court: TCCA

Attorneys:

Milburn L. Edwards, Clifton, Tennessee, Pro Se

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se Petitioner, Milburn L. Edwards, appeals the summary dismissal of his petition for a writ of habeas corpus attacking his 1991 convictions for twenty-one counts of rape; two counts of first degree burglary; two counts of aggravated burglary; one count of second degree burglary; one count of aggravated rape; one count of assault with intent to commit rape; and one count of robbery. Following his convictions, the Petitioner initially received an effective sentence of life plus 415 years, which was later modified to life plus 195 years on appeal. State v. Edwards, 868 S.W.2d 682 (Tenn. Crim. App. 1993). A petition for postconviction relief was denied by the trial court, and the denial was affirmed on appeal. Milburn L. Edwards v. State, No. M2002-02124-CCA-R3-PC, 2003 WL 23014683 (Tenn. Crim. App. Dec. 15, 2003). Two separate petitions for a writ of habeas corpus were summarily dismissed by the trial court, and their denials were affirmed on appeal. Milburn L. Edwards v. Cherry Lindamood, No. M2006-01092-CCA-R3-HC, 2007 WL 152233 (Tenn. Crim. App. Jan. 17, 2007), perm. app. denied (Tenn. April 16, 2007); Milburn L. Edwards v. State, No. M2004-01378-CCA-R3-HC, 2005 WL 544714 (Tenn. Crim. App. March 7, 2005), perm. app. denied (Tenn. Aug. 29, 2005). On March 15, 2008, the petitioner filed a third pro se petition for a writ of habeas corpus challenging his convictions on several grounds. The trial court dismissed his petition without the appointment of counsel or an evidentiary hearing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/edwardsm_052710.pdf


STATE OF TENNESSEE v. RAYMOND STANLEY HILLIARD

Court: TCCA

Attorneys:

Howard Orfield, Blountville, Tennessee, for the appellant, Raymond Stanley Hilliard.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Teresa Nelson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Raymond Stanley Hilliard, appeals from his Sullivan County Criminal Court guilty-pleaded convictions of facilitation of possession of .5 grams or more of cocaine, two counts of the facilitation of the sale of .5 grams or more of cocaine, two counts of the possession of drug paraphernalia, possession of a legend drug, three counts of the possession of a schedule IV drug, possession of a schedule II drug, and maintaining a dwelling where controlled substances are used and sold. He argues that the trial court erred by ordering that he serve the entirety of his agreed seven-year effective sentence in confinement. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/hilliardr_052710.pdf


PHYLLIS ANN McBRIDE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Phyllis Ann McBride, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Phyllis Ann McBride, was convicted by a jury of the first degree murder of her husband and was sentenced to life in prison. She appealed her conviction, and this court affirmed. State v. Phyliss Ann McBride, No. 01C01-9606-CC-00269, Rutherford County (Tenn. Crim. App. Oct. 24, 1997). The Petitioner's subsequent petition for post-conviction relief was denied, and this court affirmed. Phyllis McBride v. State, No. M2000-00034-CCA-R3-CD, Rutherford County (Tenn. Crim. App. Mar. 22, 2001). The Petitioner now appeals pro se the Rutherford County Circuit Court's denial of her petition seeking a writ of error coram nobis, post-conviction relief, and "DNA Pathological and Toxicological Analysis." We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/mcbridep_052710.pdf


STATE OF TENNESSEE v. TIMOTHY ALLEN SUMNER

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Deborah Lonon, Assistant Public Defender, for the appellant, Timothy Allen Sumner.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Amber D. Massengill, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Timothy Allen Sumner, appeals from the order of the Criminal Court of Sullivan County revoking his probation. On appeal, he claims that the evidence supported neither the trial court's revocation of probation nor the resulting order that he serve his sentence in confinement. Upon our review, we affirm the order of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/sumnert_052710.pdf


TODAY'S NEWS

Legal News
Passages
Legislative News
TBA Member Services

Legal News
Shelby voters to decide 5 judicial positions
Recent resignations mean that Shelby County voters will be choosing five judges when they go to the polls on Aug. 5. One of the two latest races to go on the ballot is for the Criminal Court Division 3 judge's position being vacated by John Colton. Voters will also select a judge for General Sessions Criminal Court Division 7, where Judge Ann Pugh has resigned effective May 31; Circuit Court Division 4, where Gov. Bredesen appointed Lorrie K. Ridder to the vacancy created by the death in January 2009 of Rita Stotts; Circuit Court Division 8, where Bredesen appointed Rhynette Hurd to the vacancy created by the September retirement of D'Army Bailey; and General Sessions Criminal Court Division 10, where Lee Wilson was appointed by the Shelby County Commission following the death in January 2009 of Anthony Johnson.
Read more in the Memphis Daily News
6th Circuit judge stepping down in September
Judge James Ryan of the 6th U.S. Circuit Court of Appeals says he is stepping down in September, Fox 17 reports. Ryan had served 10 years on the Michigan Supreme Court before being appointed to the post in 1986 by President Ronald Reagan. He had taken senior status in January 2000.

New assistant U.S. attorney sworn in to office
Jay Woods was sworn in today as Assistant U.S. Attorney for the Eastern District by U.S. District Judge Curtis Collier. Woods, a former Hamilton County assistant district attorney, was presented by U.S. Attorney for the Eastern District, Russ Dedrick, Chattanoogan.com reports.

Barker awarded access to justice award
Former Chief Justice William M. Barker was recently presented the Equal Access to Justice Award by Legal Aid of East Tennessee and the Young Lawyers Division of the Chattanooga Bar Association. The award cites Barker's leading role in efforts to open the Tennessee court system to low income citizens. Legal Aid is planning to name the award in honor of Justice Barker moving forward.

ABA Journal profiles original "Law & Order" DA
The June issue of the ABA Journal profiles Robert Morgenthau, the former district attorney for New York County and on whose career the Adam Schiff character in "Law & Order" is loosely based. Morgenthau's career spans from the post-WWII era to the present, including a record 35 years in the Manhattan DA post. The profile coincides coincidentally with the last episode of the highly popular, 20-year long television series. The new issue also looks at the Elena Kagan confirmation hearings, trends in office space and a new book about Williams and Connolly, the "world's most powerful law firm."
Read the articles here
Vanderbilt law adds new prof
Vanderbilt University Law School has announced the appointment of John Owen Haley to the school's faculty. Haley has been the William R. Ortwein Distinguished Professor of Law at Washington University Law School in St. Louis, where he directed the Whitney R. Harris Institute for Global Legal Studies from 2002-07.
Learn more about the appointment
Passages
Services Saturday for Maryville attorney Frank Bird
Maryville attorney Frank B. Bird died Tuesday at his home. He was 93. Mr. Bird practiced law for more than 60 years and was the first attorney for the Blount County Industrial Board, a position he held for 30 years. Mr. Bird received his law degree from the University of Tennessee College of Law. As part of his many contributions to his community, he made several trips to Europe and Asia, recruiting businesses and industry for Blount County. As Commander of the American Legion, he instituted the Boys and Girls County Government Day, a program to acquaint young people with the operation of government. A memorial service will be held 1 p.m. Saturday at Miller Funeral Home Magnolia Chapel.
More information is available from Miller Funeral Home
Services Friday for Hixson attorney Parker Carroll
Services will be held at 1 p.m. tomorrow (Friday) for Hixson attorney Parker Lynn Carroll, who died Sunday. He was 87. Mr. Carroll, a graduate of the University of Tennessee College of Law, worked in federal services for more than 30 years before retiring from the Johnson Space Center in 1978. He and his wife then moved to Chattanooga, where he practiced law for many years. Services will be held at North Chapel of Chattanooga Funeral Home.

Legislative News
Senate overrides 'guns in bars' veto
The state Senate today voted 22-10 to override the governor's veto of a bill to allow handgun carry permit holders to bring weapons into bars and alcohol-serving restaurants. Gov. Phil Bredesen last week vetoed the guns bill sponsored by Sen. Doug Jackson, D-Dickson, on the basis that "guns and alcohol don't mix." The House is expected to vote to override the veto next week.
Read more in Knoxnews.com
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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