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Tuesday, March 01, 2011

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Tweet this: March 'Journal' is online

It would be appropriate to read the March Tennessee Bar Journal online, although it should be in your mailboxes today. This month Suzanne Craig Robertson, David Raybin and Benjamin Raybin explore social media and how lawyers might deal with it, including what to tell clients about Facebook and other social media sites. Also in this issue, Scott Griswold gives practice tips on service of process after 'Hall v. Haynes,' and regular columnists Sam Elliott, Wade Davies, Don Paine and Bill Haltom educate and entertain.

Read the Journal

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
08 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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.

CITY OF MURFREESBORO, TENNESSEE v. LAMAR TENNESSEE, LLC, d/b/a LAMAR ADVERTISING OF TENNESSEE, INC., ET AL.

Court: TCA

Attorneys:

David A. Ives, Susan Emery McGannon, Murfreesboro, Tennessee, for the appellant, City of Murfreesboro, Tennessee.

Lawrence P. Leibowitz, Jennifer L. Knapp, Knoxville, Tennessee, for the appellees, Lamar Tennessee, LLC, d/b/a Lamar Advertising of Tennessee, Inc., and TLC Properties, Inc.

Judge: COTTRELL

The trial court dismissed the City's request for injunctive relief to enforce a permit revocation on the common law grounds of prior suit pending based on a pending certiorari action challenging the revocation. Because an original action for injunctive relief cannot be joined with a certiorari action that is appellate in nature, the rule of prior suit pending does not apply. Accordingly, we reverse the trial court.

http://www.tba2.org/tba_files/TCA/2011/cityofmurfreesboro_030111.pdf

PAULA KAY FRANCO v. ARMANDO OSCAR FRANCO

Court: TCA

Attorneys:

Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Paula Kay Franco.

H. Reid Poland, III, Clarksville, Tennessee, for the appellee, Armando Oscar Franco.

Judge: COTTRELL

The trial court affirmed the Report of a special master interpreting the parties' Marital Dissolution Agreement as granting Wife a proportionate share of Husband's retirement based on the duration of the marriage and not based upon the thirty years he was in the military. We affirm.

http://www.tba2.org/tba_files/TCA/2011/francop_030111.pdf

AVIE ALEANE HARDING ET AL. v. DONOVAN ENTERPRISES, INC. D/B/A CAPTAIN VIDEO & TANNING

Court: TCA

Attorneys:

James Bryan Moseley, Nashville, Tennessee, for the appellants, Avie Aleane Harding and Terry Lee Harding.

William L. Moore, Jr., Gallatin, Tennessee, for the appellee, Donovan Enterprises, Inc., d/b/a Captain Video & Tanning.

Judge: CLEMENT

A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.

http://www.tba2.org/tba_files/TCA/2011/hardinga_030111.pdf

IN RE: SKYLER J. H.

Court: TCA

Attorneys:

Tusca R. S. Alexis, Nashville, Tennessee, for the appellant, Emabel N.

Edward L. Hiland, Nashville, Tennessee, for the appellee, Joseph Owen H.

Judge: COTTRELL

The father of a young child born out of wedlock petitioned the juvenile court to be awarded custody of the child. The mother responded by asking the court to award custody to her. After many delays, the juvenile court referee conducted a lengthy hearing and granted the father's petition, holding that although it was a close question, it was in the child's best interest for the father to exercise custody. The mother appealed to the Juvenile Court Judge, who reached the same conclusion after another hearing. The mother now appeals to this court, contending that custody should have been awarded to her for several reasons, including the operation of the tender years doctrine. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2011/skylerjh_030111.pdf

STATE OF TENNESSEE v. JOSEPH JOHN BORGER

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal) and Chris Collins, Lewisburg, Tennessee (at hearing and sentencing) for the Appellant, Joseph John Borger.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Chuck Crawford, District Attorney General; Chris Collins, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Joseph John Borger, pled guilty to multiple offenses stemming from his driving while intoxicated, and the trial court sentenced him as a Range II Offender to an effective sentence of seven years. On appeal, the Defendant contends that his sentence is excessive. After a thorough review of the record and applicable authorities, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/borgerj_030111.pdf

JUAN MARKEITH COLLIER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James O. Martin, III, Nashville, Tennessee (on appeal) and Chad Hindman, Nashville, Tennessee (at trial) for the appellant, Juan Markeith Collier.

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

Judge: WOODALL

Petitioner, Juan Markeith Collier, pled guilty to aggravated kidnapping and attempted second degree murder, both Class B felonies, and was sentenced to concurrent sentences of eleven years. The eleven-year sentence for aggravated kidnapping was required by statute to be served at one-hundred percent. In this appeal from the denial of the post-conviction petition, Petitioner asserts that his guilty plea was involuntary because trial counsel and two "loved ones" coerced him into accepting the plea. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/collierj_030111.pdf

STATE OF TENNESSEE v. JUAN MANUEL CORONADO, II

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee (at trial), for the appellant, Juan Manuel Coronado, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tammy Harrington, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

Upon finding a violation of probation, the trial court revoked the probationary sentence the appellant, Juan Manuel Coronado, II, was serving for a rape conviction and ordered him to serve his original eight-year sentence in the Tennessee Department of Correction. On appeal, the appellant contends that the trial court erred in revoking his probation and in ordering him to serve his sentence in confinement. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/coronadoj_030111.pdf

JARRET ALAN GUY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David R. Heroux, Nashville, Tennessee, for the appellant, Jarret Alan Guy.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Katrin Miller, Assistant District Attorney General, for the appellee, the State of Tennessee

Judge: WOODALL

Petitioner, Jarret Alan Guy, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that (1) counsel failed to file a motion to suppress his statement because Petitioner and his family were threatened by a police detective; and that (2) counsel failed to file a motion to suppress his statement based on Petitioner's alleged intoxication at the time of the interview. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/guyj_030111.pdf

TIMOTHY D. McGLORY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mary Frances Parker, Murfreesboro, Tennessee, for the appellant, Timothy D. McGlory.

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

Judge: WOODALL

Petitioner, Timothy D. McGlory, was convicted following the entry of his guilty pleas to attempted second degree murder and possession of a Schedule I drug for resale. Pursuant to the plea agreement, Petitioner was sentenced to 12 years for his attempted second degree murder conviction and eight years for the drug offense, and his sentences were ordered to be served concurrently, for an effective sentence of 12 years. Petitioner now appeals from the post-conviction court's dismissal of his petition for post-conviction relief, in which he alleged that his guilty pleas were involuntarily entered; that the prosecution failed to disclose evidence favorable to Petitioner; and that he was denied the effective assistance of counsel. After a careful review of the record, we conclude that Petitioner is not entitled to relief and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/mcgloryt_030111.pdf

RAYMOND E. McNEIL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Neil Campbell, Franklin, Tennessee, for the appellant, Raymond E. McNeil.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Kim R. Helper, District Attorney General; and Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Petitioner, Raymond E. McNeil, was convicted of Class D felony evading arrest and driving on a revoked license, a Class B misdemeanor. See Tenn. Code Ann. sections 39-16-603(b)(3), 55-50-504(a)(1). This Court affirmed his convictions on direct appeal. See State v. Raymond McNeil, No. M2007-01566-CCA-R3-CD, 2008 WL 4170330 (Tenn. Crim. App., Nashville, Sept. 10, 2008), perm. to appeal denied, (Tenn. Feb. 17, 2009). The Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner raises the following issues for review: (1) Trial Counsel was ineffective for putting a police officer's unredacted incident report on the overhead projector; (2) Trial Counsel was ineffective for acquiescing in the admission of the incident report into evidence; and (3) The trial court erred when it allowed the entire incident report into evidence. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2011/mcneilr_030111.pdf

ANTONIO D. RICHARDSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Antonio D. Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Antonio D. Richardson, appeals from the trial court's order denying his petition for post-conviction relief. Petitioner asserts that his counsel provided constitutionally ineffective assistance. After a thorough review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/richardsona_030111.pdf

JASON LEE WHITE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason White, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Elaine Wilber, Assistant Attorney General; John W. Carney, District Attorney General; and Steven Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Jason Lee White, appeals from the order of the trial court dismissing his "Motion to Correct Illegal Sentence." The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/whitej_030111.pdf

Hamilton County Commission Withholding PILOT Funds from Hamilton County School Board

TN Attorney General Opinions

Date: 2011-03-01

Opinion Number: 11-19

http://www.tba2.org/tba_files/AG/2011/ag_11_19.pdf

TODAY'S NEWS

Legal News
Passages
General Assembly News
U.S. Supreme Court
Disciplinary Actions
TennBarU CLE
TBA Member Services

Legal News

Chair says it's 'high time' judicial code updated

The Tennessean outlines a Tennessee Bar Association proposal to change Tennessee's Code of Judicial Conduct. If approved by the state Supreme Court, it would include stricter standards and procedures for determining disqualification and recusal of judges, changes in restrictions on campaign activities by judges, and a new prohibition on judges presiding over cases in which they participate in judicial settlement conferences. "It was high time to do this, because the code had not been substantially revised since 1990," said Max Bahner, a Chattanooga lawyer who was chairman of the task force that created the proposal. "It ought to be brought up to date."

The Tennessean has more

Ethics legislation proposed for U.S. Supreme Court justices

Two federal lawmakers announced legislation today that would require the Judicial Conference to set up a process for taking in ethics complaints about U.S. Supreme Court justices, and for investigating those complaints.

The Blog of Legal Times reports

Here's how to keep your call to jail from being recorded

The Davidson County Sheriff's Office is advising attorneys that it records all phone calls made on the inmate phone system unless they request that their numbers be designated as non-recorded. To make this request, attorneys need to send their names, BPR numbers, firm name and telephone number(s) that they want to be designated non-recorded to Joy Vague, Administrative Assistant, P.O. Box 196383, Nashville, TN 37219-6383 or donotrecord@dcso.nashville.org. Credentials will be verified before numbers are designated as non-recorded.

UT Law presents awards

The University of Tennessee College of Law presented awards at its annual Honors Banquet Feb. 18.

The Informant tells you who was honored

Editorial: Drug court saves money

In an editorial, the Mountain Press praises Circuit Court Judge Duane Slone and the drug court for the 4th Judicial Circuit, which includes Sevier, Cocke, Jefferson and Hamblen counties. "The fact is, our prisons are overcrowded now, and unless we spend millions to build and staff more, we have to find a way to help people avoid jail time, clean up their act and still being held accountable for what they did to enter the court system," the paper says. "Be supportive of the drug court," it continues. "If you can give a suspect a program that is proven to be effective and saves the taxpayers $30,000 a year, then it has earned a chance to succeed."

Read the editorial

Passages

Crawford McDonald dies, services Thursday

Memphis attorney Crawford McDonald, 86, died Saturday. He practiced law with his father and brother at McDonald Kuhn McDonald law firm, concentrating on probate, real estate and Admiralty law, until his retirement in 1994. Mr. McDonald received his law degree from the University of Virginia. Visitation will be Thursday from 11 a.m. to 12 p.m. at Second Presbyterian Church. Funeral Services will follow at noon in the Chapel. Private burial will be in Forest Hill Cemetery Midtown. The family requests that in lieu of flowers memorials may be sent to Mission Memphis or World Missions at Second Presbyterian Church, 4055 Poplar Ave., Memphis 38117.

Read his obituary in the Commercial Appeal

General Assembly News

Gov. wants new limits on civil liability suits

Gov. Bill Haslam is proposing new restrictions to the Tennessee Consumer Protection Act, including a ban on class-action lawsuits against violations of the 34-year-old law. The governor also wants to exempt securities from the act's coverage on the grounds that equities are regulated by federal and state laws tailored to them. The changes are part of a broader Haslam initiative that, if approved by the legislature, would place new limits on civil liability lawsuits in Tennessee.