Early voting continues

Early voting continues across the state through July 31 for the Aug. 5 state primary and county general elections, including judicial races. Watch the Tennessee Bar Association's first web ad, which highlights the importance of not leaving judicial elections to chance and shows ways to become an informed voter. The ad provides links to TBA's Judicial Election Center, which includes a copy of the Judicial Performance Evaluation Commission's evaluation for two candidates up for retention election -- Justice Sharon Lee and Judge John McClarty. Lee and McClarty are both recommended to "retain." The website also gives voters information about judging judges and provides a link to a page showing those judges who have adopted the campaign code of conduct.
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.

GARY COOPER v. CLINTON UTILITIES BOARD

Court: TCA

Attorneys:

Robert W. White, Maryville, Tennessee, for the appellant, Gary Cooper.

Rebecca B. Murray and Catherine E. Shuck, Knoxville, Tennessee, for the appellee, Clinton Utilities Board.

Judge: FRANKS

Plaintiff brought this action, charging defendant utility breached its contract with plaintiff to construct a line and deliver electricity to his property. Defendant filed a Motion for Summary Judgment and the Trial Judge held that there was no meeting of the minds between the parties and defendant was not obligated to construct a line to deliver electricity to plaintiff's dwelling. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2010/cooperg_072310.pdf


JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG
With Concurring and Dissenting Opinion

Court: TCA

Attorneys:

John M. Lawhorn, Knoxville, Tennessee, for the appellant, Westgate Resorts, Ltd.

James H. Ripley, Sevierville, Tennessee, for the appellees, James Q. Holder and wife, Laura C. Holder.

Judge: FRANKS

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2010/holderj_072310.pdf

SUSANO concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072310.pdf


TERESA LYNN STANFIELD, ET AL. v. JOHN NEBLETT, JR., M.D., ET AL.

Court: TCA

Attorneys:

Michael L. Weinman, Jackson, Tennessee, and Thomas L. Long, Collierville, Tennessee, for the appellant, Teresa Lynn Stanfield, Individually, and on behalf of the heirs at law of Trista Jane Greene, Deceased.

Dixie W. Cooper, Chris J. Tardio, Nashville, Tennessee, for the appellees, John Neblett, Jr., M.D., and West Tennessee Neurosurgical Clinic. P.C.

Judge: STAFFORD

This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2010/stanfieldt_072310.pdf


STATE OF TENNESSEE v. PAUL WALLACE DINWIDDIE, JR.

Court: TCCA

Attorneys:

Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, Paul Wallace Dinwiddie, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Knox County jury convicted the defendant, Paul Wallace Dinwiddie, Jr., of two counts of aggravated rape and two counts of aggravated sexual battery. The defendant appeals, alleging that the trial court erred by instructing the jury on flight and by allowing a nurse practitioner to testify as an expert witness. The defendant also challenges the sufficiency of the convicting evidence and the length of his sentences. Upon our review, we find no error in the convictions; however, we remand to the trial court to merge the two aggravated sexual battery jury verdicts into one conviction judgment and the two aggravated rape jury verdicts into one conviction judgment.

http://www.tba2.org/tba_files/TCCA/2010/dinwiddlep_072310.pdf


BRANDON FORBES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Scott A. Lovelace, Ripley, Tennessee, attorney for appellant, Brandon Forbes.

Robert E. Cooper, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District Attorney General, attorneys for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Brandon Forbes, pled guilty in the Lauderdale County Circuit Court to one count of aggravated burglary and one count of theft of property valued at over $1,000 with an agreed total effective sentence of six years as a Range I, standard offender, leaving the manner of service to the discretion of the trial court. Following the denial of alternative sentencing, the Petitioner filed a timely petition for post-conviction relief alleging that his guilty pleas were involuntary due to the ineffective assistance of counsel. After the appointment of counsel and an evidentiary hearing, the post-conviction court denied relief. In this appeal as of right, the Petitioner contends that the post-conviction court erred by denying relief. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/forbesb_072310.pdf


WAYNE LYDELL HOLT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

G. Kerry Haymaker, Nashville, Tennessee, for the appellant, Wayne Lydell Holt..

Robert E. Cooper, Jr., Attorney General and Reporter, David H. Findley, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Wayne L. Holt, was indicted by the Davidson County Grand Jury for one count of first degree felony murder, one count of premeditated first degree murder, and one count of especially aggravated robbery. State v. Wayne L. Holt, No. M2001-00945-CCA-R3-CD, 2002 WL 31465263, at *1 (Tenn. Crim. App., at Nashville, Nov. 5, 2002), perm. app. denied, (Tenn. Feb. 24, 2003). At trial, a motion for judgment of acquittal was granted by the trial court as to the count of first degree felony murder and to the count of especially aggravated robbery. On the remaining charge of first degree murder, the jury convicted Petitioner of the lesser included offense of second degree murder. He received a thirty-year sentence. A direct appeal was unsuccessful. Id. Petitioner then sought post-conviction relief on the basis that, inter alia, he received ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition for relief. After a thorough review on appeal, we determine Petitioner has failed to prove he received ineffective assistance of counsel. Accordingly, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/holtw_072310.pdf


STATE OF TENNESSEE v. COURTNEY HUNT-GUY, a/k/a COURTNEY HUNT

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Phyllis L. Aluko (on appeal) and Jennifer Case (at trial), Assistant Public Defenders, for the appellant, Courtney Hunt-Guy, a/k/a Courtney Hunt.

Robert H. Cooper, Jr., Attorney General and Reporter; Mark E. Davidson, Senior Counsel; William L. Gibbons, District Attorney General; and Stacy M. McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Courtney Hunt-Guy, was convicted by a Shelby County Criminal Court jury of theft of property valued at $1000 or more but less than $10,000, a Class D felony, and evading arrest and vandalism of property valued at $500 or less, both Class A misdemeanors, and was sentenced by the trial court as a Range I offender to an effective term of three years, six months in the county workhouse. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions and that the trial court imposed an excessive sentence by not applying the mental health mitigating factor to his felony theft conviction. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/hunt-guyc_072310.pdf


STATE OF TENNESSEE v. EDWARD JOHNSON

Court: TCCA

Attorneys:

Luke A. Evans and Chris L. Richardson, Murfreesboro, Tennessee, for the appellant, Edward Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and David L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

In this Rule 9 interlocutory appeal, the defendant, Edward Johnson, appeals the Cannon County Circuit Court's denial of his motion to suppress. Believing them to still be married, officers approached the defendant's ex-wife and sought consent to search the property during a manhunt. During the subsequent search, officers located a marijuana laboratory in a garage on the defendant's property. The defendant was arrested and charged with manufacturing marijuana over 100 plants, possession of a controlled substance with intent to sell, possession of drug paraphernalia, and maintaining a building for the purpose of keeping or selling controlled substances. The defendant filed a motion to suppress, challenging the search. The trial court found that the search was valid because the defendant's ex-wife had common authority over the garage. On appeal, the defendant challenges the denial, specifically questioning whether: (1) his ex-wife consented to a search and, if so, whether she had common authority over the property sufficient to allow her to give valid consent; and (2) officers violated his right to be free from unreasonable searches and seizures when they entered his property and surrounded the buildings without a warrant in the absence of exigent circumstances. After review, we disagree with the trial court and conclude that the defendant's ex-wife had no actual common authority over the garage. Nonetheless, because the facts available to the officers would have warranted "a man of reasonable caution in the belief that the consenting party had authority over the premises," we affirm the denial of the motion to suppress. Moreover, we conclude that the officers did not violate the defendant's rights by entering the property prior to consent. As such, the denial of the motion to suppress is affirmed, and the case is remanded to the trial court for trial.

http://www.tba2.org/tba_files/TCCA/2010/johnsone_072310.pdf


STATE OF TENNESSEE v. DANIEL LEON MCCAIG

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender; Timothy Boxx, Assistant Public Defender, Dyersburg, Tennessee, for the appellant, Daniel Leon McCaig.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Karen W. Burns, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Daniel Leon McCaig, appeals from the order of Dyer County Circuit Court revoking his probation. In May 2007, the Defendant pleaded guilty to attempted sexual battery and received a five-year sentence. He was placed on probation. Thereafter, on July 22, 2008, he pleaded guilty to a violation of the sex offender registry law and theft under $500. He was sentenced to an effective sentence of two years for these new convictions, said sentence to be suspended and served on probation. This new sentence was to be served consecutively to the five-year sentence, resulting in an effective seven-year sentence on probation. Subsequently, a violation warrant was issued, wherein it was alleged that the Defendant violated the conditions of his probation. The violation report was later amended. Following a hearing, the trial court revoked the Defendant's probationary sentence and ordered that his original seven-year sentence to the Department of Correction be reinstated. On appeal, the Defendant argues that the evidence does not support full revocation of his probation. After a review of the record, we conclude that the trial court did not abuse its discretion by revoking the Defendant's probation. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/mccaigd_072310.pdf


MARK C. NOLES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ben Hall McFarlin, III, Murfreesboro, Tennessee, for the appellant, Mark C. Noles.

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, and Trevor H. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Mark C. Noles, appeals from the post-conviction court's denial of both a petition for post-conviction relief and a petition for writ of error coram nobis. Petitioner was convicted in Rutherford County of attempted aggravated arson in 2004 and sentenced to serve seventeen years as a Range II, multiple offender. After an unsuccessful direct appeal, Petitioner sought post-conviction relief in the form of a pro se petition. See State v. Mark C. Noles, No. M2006-015340CCA0R30CD, 2007 WL 3274422, at *1-7 (Tenn. Crim. App., at Nashville, Nov. 6, 2007), perm. app. denied, (Tenn. Apr. 7, 2008). Counsel was appointed and an amended petition for post-conviction relief and petition for writ of error coram nobis were filed. Among other things, Petitioner sought relief on the basis that he received ineffective assistance of counsel and that he recently discovered new evidence indicating that one of the main witnesses at trial had recanted his testimony. After a hearing, the post-conviction court dismissed the petition for writ of error coram nobis as time-barred and denied post-conviction relief. Petitioner appeals. On appeal, the following issues are presented for review: (1) whether Petitioner received ineffective assistance of counsel at trial when trial counsel failed to advise Petitioner of the right to allocution, failed to subpoena a witness, and failed on appeal to contest the jury instructions; (2) whether the post-conviction court improperly refused to recuse itself from the post-conviction proceedings; (3) whether the post-conviction court improperly refused to allow Petitioner to present two witnesses at the post-conviction hearing; and (4) whether the post-conviction court improperly dismissed the petition for writ of error coram nobis. After a thorough review, we conclude that the post-conviction court properly dismissed the writ of error coram nobis as untimely. Further, we determine that the post-conviction court did not abuse its discretion by refusing to recuse itself; that the post-conviction court did not deny Petitioner the right to present witnesses at the post-conviction hearing; and that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/nolesm_072310.pdf


STATE OF TENNESSEE v. TONY A. PITTS

Court: TCCA

Attorneys:

A. Russell Larson and Leslie J. Fatowe, Jackson, Tennessee, for the appellant, Tony A. Pitts.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; T. Michel Bottoms, District Attorney General; and Joel D. Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Tony Alton Pitts, was convicted of vehicular assault, a Class D felony, as well as violations of the financial responsibility law and the vehicle registration law, both Class C misdemeanors. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court erred in denying him full probation and a restricted license. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/pittst_072310.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
Politics
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Lexis Nexis will correct error
The recent publication of the Tennessee Court Rules Annotated, published by Lexis Nexis, contains an error in the Tennessee Rule of Civil Procedure 26.02. This section, as published, contains a significant editorial error suggesting that insurance agreements are now discoverable. The Administrative Office of the Courts reports that Lexis Nexis has agreed to correct the error in the online version of the Tennessee Rules of Civil Procedure, send out an errata page for the published version of the Court Rules, and also call all customers who have ordered copies of the printed publication.
The AOC has more
6th Circuit weighs in on Irick, lawyers ask for more time
Lawyers for death row inmate Billy Ray Irick asked the court on Thursday to vacate the date set for his execution because the day after the court set the Dec. 7 date, the U.S. 6th Circuit Court of Appeals issued an order saying it will reopen his initial habeas proceedings. "The effect of which," the document says, is "that Irick is still in the process of pursuing his federal habeas challenge to his death sentence." In another filing, his lawyers, C. Eugene Shiles Jr. and Howell G. Clements, asked for more time to present evidence of Irick's incompetency to be executed.
Download the documents from the AOC
Weirich to replace Challen
State prosecutor Amy Weirich will replace Deputy District Attorney General James Challen, who is retiring after 32 years as a prosecutor in Shelby County. For the last 12 years he has been District Attorney General Bill Gibbons' steady right-hand man who one attorney described as "the consummate gentleman lawyer." Weirich will be the first woman in that job.
The Commercial Appeal has more
Who is your favorite fictional lawyer of all time? (besides Atticus)
Who are the Top 25 fictional lawyers of film, television and literature? Read this list from the ABA Journal, then vote for your favorite. Be forewarned that in this survey of literary lawyers, they dated the group by the great Atticus Finch divide: ante-Atticus and post-Atticus.
Read the list and vote
Supreme Court Report
Alexander says he will vote 'no' on Kagan
Citing her treatment of military recruiters as dean of Harvard Law School, Sen. Lamar Alexander, R-Tenn., said this morning that he will vote against Solicitor General Elena Kagan for a spot on the U.S. Supreme Court.
The Commercial Appeal has the story
Politics
Ramsey asks Cooper to file brief supporting Arizona law
Lt. Gov. Ron Ramsey held a press conference at the State Capitol today to announce his request that Tennessee Attorney General Robert Cooper file a friend-of-the-court brief on behalf of Tennessee in support of Arizona's illegal-immigration statute. It's not the first time that Ramsey has called upon Cooper to intervene legally on the state's behalf against an action of the Obama administration. Earlier this year, he asked the attorney general to file suit to try to block provisions of the national health reform act from going into effect in Tennessee. Cooper declined that request. His office said that it had not yet received Ramsey's written request to legally befriend Arizona in court.
Read the story in the Commercial Appeal
Upcoming
Bowl a strike for Big Brothers/Big Sisters at fundraiser
Big Brothers/Big Sisters will host a fund-raising bowling event for the legal profession, called "Lawyers for Littles," to raise money for the organization. The event is Aug. 26, at 6 p.m., at Nashville's Hillwood Strike and Spare, and will focus on attorneys, law firms, legal organization and legal vendors (but it is open to anyone). If you or your firm would be willing to form a team or to play on a team with other bar members, please contact Tom Shumate at tom.shumate@kaygriffin.com or (615) 742-4800.
Learn more about "Bowl for Kids' Sake"
Disciplinary Actions
Tullahoma lawyer suspended
On July 21, the Tennessee Supreme Court temporarily suspended the law license of Tullahoma attorney Robert Thomas Carter, pursuant to Section 4.3 of Tennessee Supreme Court Rule 9, for his failure to substantially comply with his Tennessee Lawyers Assistance Program (TLAP) Monitoring Agreement.
Download the BPR news release
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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