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Thursday, January 20, 2011

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Awards luncheon highlight of Leadership Conference

Lawyers who have provided outstanding service to the public will be honored this weekend as part of the Tennessee Bar Association's annual Leadership Conference. Starting tomorrow with a meeting of the TBA's House of Delegates, activities will continue with leadership briefings and training sessions Saturday morning, the annual Public Service Luncheon that noon, and meetings of the bar's Board of Governors, section and committee leaders, local bar leaders from across the state, the TBA's Young Lawyers Division and the TBA's Access to Justice Committee. Also taking place this weekend will be the opening session of a TBA YLD's new Diversity Leadership Institute for law students. Keynote speaker for the Public Service Luncheon will be American Bar Association President-Elect William T. Robinson III.

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.

FLOYD E. BELL v. ELLER MEDIA COMPANY, A Tennessee Corporation

Court: TCA

Attorneys:

Gregory D. Cotton, Memphis, Tennessee, for the appellant, Floyd E. Bell

Robert L. J. Spence, Jr., Bryan M. Meredith, Memphis, Tennessee, for the appellee, Eller Media Company

Judge: HIGHERS

Pursuant to a lease agreement, Defendant was allowed to place a billboard on Plaintiff's building. After the billboard allegedly caused damage to Plaintiff's building, Plaintiff notified Defendant. Defendant then sent a letter to Plaintiff terminating the lease, but Plaintiff claims Defendant later agreed to remove the billboard and make repairs to his building. When such repair and complete removal were not made, Plaintiff filed suit alleging breach of contract and promissory estoppel. Defendant moved for summary judgment, which the trial court granted, and we affirm.

http://www.tba2.org/tba_files/TCA/2011/bellf_012011.pdf

JUDITH ANNE SHAW v. JASON PATRICK SHAW

Court: TCA

Attorneys:

Selma Cash Paty, Chattanooga, Tennessee, for the Appellant, Jason Patrick Shaw.

Glenna M. Ramer, Chattanooga, Tennessee, for the Appellee, Judith Anne Shaw.

Judge: SWINEY

In this divorce case, we granted the request of Jason Patrick Shaw ("Father") for a Tenn. R. App. P. 10 extraordinary appeal on three issues: (1) whether the Trial Court erred when it refused to grant his request for access to his older daughter's counseling records with a licensed clinical social worker; (2) whether the Trial Court properly prohibited Father from taking this daughter's deposition, and (3) whether the Trial Court erred when it refused Father visitation with any of the parties' three children. As to the first issue, we remand this case to the Trial Court for a determination of whether furnishing the social worker's records would be against the daughter's best interest, as discussed more fully in this Opinion. We vacate the Trial Court's refusal to allow Father to depose the daughter. Finally, we vacate the Trial Court's refusal to allow Father any meaningful visitation and remand for the Trial Court to determine an appropriate supervised visitation schedule.

http://www.tba2.org/tba_files/TCA/2011/shawj_012011.pdf

MARK W. URLAUB, as next of kin and Executor of the Estate of BERTHA WORLEY URLAUB v. SELECT SPECIALTY HOSPITAL-MEMPHIS, INC., ET AL.

Court: TCA

Attorneys:

Mark W. Urlaub, Prince Frederick Maryland, pro se

James L. Kirby, Jeffrey L. Griffin, Memphis, Tennessee, for the appellee, Select Specialty Hospital-Memphis, Inc.

Michael G. McLaren, William E. Cochran, Jr., Memphis, TN, for the appellee, Louis V. Eberle, III, M.D.

Judge: h

Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2011/urlaubm_012011.pdf

CLAYTON WARD v. ILLINOIS CENTRAL RAILROAD COMPANY

Court: TCA

Attorneys:

S. Camille Reifers, Emily C. Webster, Brooks E. Kostakis, Memphis, Tennessee, for the appellant, Illinois Central Railroad Company

No appearance on behalf of the appellee.

Judge: HIGHERS

Plaintiff, a railroad employee, filed this lawsuit pursuant to the Federal Employers' Liability Act, alleging that his left ankle injury was caused by his working conditions. The railroad filed a motion for summary judgment based upon the three-year statute of limitations. The trial court denied the motion for summary judgment but subsequently granted the railroad's motion for permission to seek an interlocutory appeal. We granted the railroad's application for an interlocutory appeal and now affirm the trial court's decision to deny the motion for summary judgment.

http://www.tba2.org/tba_files/TCA/2011/wardc_012011.pdf

STATE OF TENNESSEE v. KENNETH THOMPSON ANDERSON, JR.

Court: TCCA

Attorneys:

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Kenneth Thompson Anderson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and J.W. Hupp, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Kenneth Thompson Anderson, Jr., was convicted of eight counts of sexual battery by an authority figure and sentenced to an effective sentence of nine years. In this direct appeal, Defendant raises the following issues for review: 1) whether the trial court erred by refusing to allow testimony regarding the victim's past sexual behavior and preference for older men; and 2) whether the evidence is sufficient to support Defendant's convictions. Finding no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/andersonk_012011.pdf

JAMES A. BURGESS v STATE OF TENNESSEE

Court: TCCA

Attorneys:

James A. Burgess, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Randall A. York, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Putnam County jury convicted the Petitioner, James A. Burgess, of two counts of second degree murder, two counts of felony murder, especially aggravated burglary, and felony reckless endangerment and sentenced the Petitioner to life imprisonment for each of the felony murder convictions. The Petitioner appealed the convictions, and this Court remanded the case for modification of the Petitioner's conviction for especially aggravated burglary to aggravated burglary and affirmed in all other respects. State v. Burgess, M2009-00897-CCA-R3-CD, 2010 WL 3025524 (Tenn. Crim. Ct. Aug 4, 2010). In May 2010, the Petitioner filed a petition for a writ of error coram nobis, in which he alleged the existence of newly discovered evidence. The trial court dismissed the petition, finding that the Petitioner failed to raise the existence of newly discovered evidence. On appeal, the Petitioner contends the trial court's denial was in error. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/burgessj_012011.pdf

MARQUISE HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Marquise Harris, Pro Se, Nashville, Tennessee

Robert E. Cooper, Jr., Attorney General & Reporter, and Clark Bryan Thornton, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Marquise Harris, appeals the denial of his petition for writ of habeas corpus in which he alleged that his transfer to the Middle Tennessee Mental Health Institute for a forensic evaluation was illegally accomplished in violation of the Fifth Amendment to the United States Constitution and the Sixth Amendment right to counsel and trial by jury. Additionally, Petitioner complained that neither the general sessions court nor the criminal court had jurisdiction because of the illegal transfer. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2011/harrism_012011.pdf

STATE OF TENNESSEE v. DWAYNE THOMAS HOOTEN

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Dwayne Thomas Hooten.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Janice A. Norman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Dwayne Thomas Hooten, appeals as of right from the Davidson County Criminal Court's revocation of his community corrections sentence and order of incarceration. The Defendant contends that the trial court erred by ordering the previously imposed sentence to be served in confinement. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/hootend_012011.pdf

EDDIE LEE MURPHY, SR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mike Carter, Gallatin, Tennessee, for the appellant, Eddie Lee Murphy, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; L. Ray Whitley, District Attorney General; and Wayne Hyatt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Eddie Lee Murphy, Sr., appeals the Sumner County Criminal Court's denial of post-conviction relief from his conviction for felony murder and resulting life sentence. See T.C.A. section 39-13-202(a)(2) (2003) (amended 2005, 2007). He contends that the trial court erred in denying him relief because (1) he did not understand the nature of the charges against him and the consequences of his guilty plea, (2) he was not adequately informed of his right against self-incrimination, (3) trial counsel was ineffective, and (4) his guilty plea was involuntary. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/murphye_012011.pdf

STATE OF TENNESSEE v. INNOCENT S. NZAMUBEREKA

Court: TCCA

Attorneys:

Ricky A.W. Curtis, Blountville, Tennessee, for the Defendant-Appellant, Innocent S. Nzamubereka.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Kaylin Hortenstine and William B. Harper, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Innocent S. Nzamubereka, was convicted by a Sullivan County Criminal Court jury in count one of domestic aggravated assault, a Class C felony, and in counts two and three of aggravated assault, a Class C felony. The trial court sentenced him to six years for each count and ordered counts one and two served concurrently with one another but consecutively to count three, for an effective sentence of twelve years. The court ordered Nzamubereka to serve six years in the Tennessee Department of Correction and allowed him to serve the remaining six years on probation. On appeal, Nzamubereka argues that (1) the trial court erred in finding that one of the victims was unavailable; (2) the evidence was insufficient to support his convictions; (3) the trial court erred in ruling on three evidentiary issues; (4) the trial court erred in allowing the State to make an improper comment during voir dire; and (5) the trial court erred in imposing an excessive sentence. Upon review, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/nzamuberekai_012011.pdf

ANN MARIE SHANNON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason N. King, Smyrna, Tennessee, for the appellant, Ann Marie Shannon.

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

Judge: SMITH

The Rutherford County Grand Jury indicted Petitioner, Ann Marie Shannon, for four counts including one count of driving under the influence ("DUI"), second offense. On June 19, 2009, Petitioner entered a negotiated plea agreement to DUI, first offense. Pursuant to the agreement, she was ordered to serve forty-eight hours in the Swaim Center and serve eleven months and twenty-nine days on probation. Petitioner subsequently filed a petition for post-conviction relief arguing that she received ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied the petition. We have reviewed the record on appeal and conclude that the evidence does not preponderate against the findings of the post-conviction court. Therefore, we affirm the post-conviction court's denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/shannona_012011.pdf

STATE OF TENNESSEE v. ROLLY WILLIAM WHITFORD

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the Appellant, Rolly William Whitford.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Rolly William Whitford, pled guilty to sexual battery and rape and agreed for the trial court to determine the length and manner of service of his sentence. After a sentencing hearing, the trial court sentenced the Defendant to two years for the sexual battery conviction and ten years for the rape conviction, and it ordered that the sentences run consecutively for an effective sentence of twelve years in the Tennessee Department of Correction. The Defendant appeals, contending the trial court erred when it: (1) enhanced his sentences; (2) ordered consecutive sentencing; (3) denied him an alternative sentence; and (4) admitted into evidence his 1984 psychosexual evaluation over his objection. After a thorough review of the record and applicable law, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/whitfordr_012011.pdf

TODAY'S NEWS

Legal News
Congressional News
Upcoming
Career Opportunities
Disciplinary Actions
TBA Member Services

Legal News

Memphis AWA meeting postponed

The Memphis Chapter of the Association for Women Attorneys event set for tonight (Thursday) has been rescheduled because of impending weather, according to President Lucie K. Brackin.

Judge says new DUI law unconstitutional

Constitutional problems with the new DUI law are cropping up as it begins to be used. The law states that repeat DUI offenders cannot have bail set by commissioners or night court judges if they are at all a danger to society. If someone is arrested on DUI charges on a weekend and they could be considered a danger, they will stay in jail without a bail until they can go before an elected judge, which often takes days, Nashville Public Defender Dawn Deaner explains. But according to the state's constitution, a quick bail is mandatory except in capital murder cases. Judge Mark Fishburn said he agrees not setting bail for DUI offenders is unconstitutional and has set another court date for 30 days from now to reevaluate the night court judges' concerns and the constitutional concerns.

WSMV has this story

Fortune cites pro bono as plus for Baker, Donelson

For the second year in a row Baker, Donelson, Bearman, Caldwell & Berkowitz PC was named by Fortune magazine to its "100 Best Companies to Work For" list, moving from 77th to 50th. The magazine cites the firm's strong commitment to public service, pointing out that it "dedicates one attorney as its pro bono shareholder to oversee charitable legal service and has doubled its yearly number of pro bono hours since 2008."

See the full list and related stories

Judge: No class action for TVA coal ash spill suits

The Tennessee Valley Authority won another round today in a court fight against lawsuits from the utility's huge coal ash spill, when U.S. Magistrate Bruce Guyton said no to plaintiff lawyers who asked to seek damages in a class action. Guyton denied the class action status sought by attorneys for some of the 457 plaintiffs spread among about 50 current lawsuits, and for any others waiting to sue.

Tri-Cities.com reported this AP story

Former TBA president featured in 'Top Lawyers'

Former Tennessee Bar Association President Kathryn Reed Edge is featured in this month's printed edition of NashvillePost. Now known in financial circles as "the Bank Lady," she admits that "there was nothing about banking that appealed to me in any way when I got out of law school." But working with the Tennessee Department of Financial Institutions gave her a front-row seat to the Knoxville-based United American Bank collapse in the 1980s, which set her course for banking law. Also in that issue, the magazine lists their take on the "101 Top Lawyers" in the city. Edge, who writes a banking column in the Tennessee Bar Journal, is on that list.

Read it online [subscription required]

15th Judicial District Bar Association elects officers

The 15th Judicial District Bar Association has elected new officers. They are President Jeff Cherry with Lowery, Lowery & Cherry PLLC; Vice President Nathan Whittle; Secretary Elizabeth Youmans with MacPherson & Youmans PC; and Treasurer Jennifer Porth with the Law Offices of J. Stephen Brown. All are from Lebanon.

Should aging, tenured judges be tested for mental ability?

Life tenure, intended to foster judicial independence, has been a unique feature of the federal bench since the Constitution was ratified in 1789. Back then, the average American lived to be about 40 and the framers didn't express much worry about senile judges. But today, aging and dementia are the flip side of life tenure, with more and more judges staying on the bench into extreme old age.

ProPublica looks into the situation

Congressional News

Cohen's 'Nazi' remark causes concern for civility

U.S. Rep. Steve Cohen, D-Tenn., is being accused of upsetting the newfound atmosphere of civility in the House by likening a Republican talking point in the health care debate to the propaganda used by Nazi mouthpiece Joseph Goebbels. In an interview with The Commercial Appeal on Wednesday, Cohen defended his reference to Goebbels, saying the German propaganda minister was "the most famous political liar of all time." He said he did not and would not call Republicans Nazis and denied he is contributing to incivility. "I regret that anyone in the Jewish community, my Republican colleagues or anyone else was offended by the portrayal of my comments," Cohen said today. "My comments were not directed toward any group or people but at the false message and, specifically, the method by which it has been delivered."