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Friday, April 08, 2011

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Court of Judiciary posts open for nomination

The Tennessee Bar Association Board of Governors, at its June 18 meeting, will select three members -- one from each grand division -- to sit on the Tennessee Court of Judiciary. The position from East Tennessee is currently held by Pamela Reeves of Knoxville while the position from West Tennessee is held by David Cook. Both Reeves and Cook are eligible for reappointment. The other TBA-appointed member, Mary Schaffner of Nashville, is ineligible for reappointment. In order to be considered for this appointment, members should submit a letter indicating their interest along with a resume to TBA Executive Director Allan F. Ramsaur at the Tennessee Bar Center, 221 Fourth Avenue North, Suite 400, Nashville, TN 37219, not later than June 1.

Review the procedure the Board will use to fill the seats

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.

MELODY JENNINGS BOWERS v. DANIEL R. BOWERS

Court: TCA

Attorneys:

Stephen Nunn, Nashville, Tennessee, for the appellant, Daniel R. Bowers.

Gregory D. Smith, Nashville, Tennessee, for the appellee, Melody Jennings Bowers.

Judge: HIGHERS

Alleging Husband's failure to pay child support and alimony as required, Wife filed petitions for contempt. The trial court found Husband guilty of seven counts of willful criminal contempt and entered a judgment against him for unmet obligations. On appeal, Husband claims the trial court erred in finding him in contempt, in imputing a $1,000 per month income to Wife, in upholding his work-related childcare obligation, in denying his counter-petition to modify spousal and child support, and in excluding certain witness testimony. He also argues that he was denied a hearing regarding Wife's attorney fees. Because the trial court failed to make a finding regarding Husband's ability to pay, we reverse Husband's criminal contempt conviction. Additionally, we find the trial court erred in upholding the work-related childcare award, and we remand for a determination of Husband's retroactive credit for amounts paid subsequent to the filing of his petition to modify and for a recalculation of his future support obligations. However, we find that the trial court did not err in imputing Mother's income, in refusing to allow Father's witness to testify, nor in awarding Wife her attorney fees without a hearing.

http://www.tba2.org/tba_files/TCA/2011/bowersm_040811.pdf

CENTRAL PARKING SYSTEMS OF TENNESSEE, INC. v. NASHVILLE DOWNTOWN PLATINUM, LLC

Court: TCA

Attorneys:

Mark B. Reagan, Thomas A. Sager, Nashville, Tennessee, for the appellant, Central Parking Systems of Tennessee, Inc.

Eugene N. Bulso, Jr., Paul J. Krog, Nashville, Tennessee, for the appellee, Nashville Downtown Platinum, LLC

Judge: HIGHERS

NDP purchased property upon which Central Parking operated pay-parking lots pursuant to lease amendments with the prior owner. Central Parking calculated the rent it owed NDP pursuant to the amendments, but due to a computer glitch, paid double the rent it claimed was owed. NDP refused to refund the money, claiming the payment equaled the fair rental value of the property. Central Parking sued NDP for the alleged overpayment, and the trial court dismissed Central Parking's claims. Because Central Parking's only basis for relief on appeal-an implied notice theory-was first raised in a Rule 59.04 motion, and an issue first raised in a motion to alter or amend is not properly raised before the trial court, we find the issue is waived on appeal. The trial court's dismissal of Central Parking's claims is affirmed.

http://www.tba2.org/tba_files/TCA/2011/centralparking_040811.pdf

STATE OF TENNESSEE, EX REL. FRANCES CRAIG CREIGHTON v. WILBUR FOSTER CREIGHTON

Court: TCA

Attorneys:

Edward J. Gross, Nashville, Tennessee, for the appellant, Wilbur Foster Creighton.

Robert E. Cooper, Jr., Attorney General and Reporter; Joe Whalen, Associate Solicitor General; Warren Jasper, Senior Counsel, for appellee, State of Tennessee, ex rel. Frances Craig Creighton.

Judge: STAFFORD

This is an appeal from the trial court's order, finding Appellant in criminal contempt of court for willful failure to pay his ordered child support. Appellant appeals, alleging that the trial court erred in: (1) denying Appellant a full transcript of the hearing at the State's expense; (2) giving little or no credence to the evidence offered by Appellant's witness; and (3) finding Appellant in criminal contempt for willful failure to pay child support. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/creightonf_040811.pdf

JOHN DOE, alias a Citizen and resident of Hamilton County, Tennessee, v. MARK GWYN, Director of the Tennessee Bureau of Investigation, et al.

Court: TCA

Attorneys:

Jerry H. Summers, and Marya L. Schalk, Chattanooga, Tennessee, for the appellant, John Doe.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Benjamin A. Whitehouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Mark Gwyn.

Judge: FRANKS

This declaratory judgment action challenges the constitutionality of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act, Tenn. Code Ann. section 40-39-201 et seq, on the grounds that plaintiff should not be required to register because his criminal convictions occurred in other states prior to the passage of the Tennessee Act, as applied to him. The Trial Judge declared that plaintiff was required to register under the Act, and plaintiff has appealed. On appeal, we affirm the Chancellor's Judgment which requires plaintiff to register in accordance with the Act.

http://www.tba2.org/tba_files/TCA/2011/doej_040811.pdf

PATSY FREEMAN, Personal Representative and Administratrix of the Estate of John R. Freeman, Deceased v. CSX TRANSPORTATION, INC., ET AL.

Court: TCA

Attorneys:

John W. Baker, Jr., and Emily L. Herman-Thompson, Knoxville, Tennessee, James W. Purcell, Augusta, Georgia, and Robert M. Anspach, Toledo, Ohio, for the appellants, CSX Transportation, Inc., a Florida Corporation, and Mike E. Martin, a Tennessee resident.

John W. Chandler, Jr., and Pamela R. O'Dwyer, Chattanooga, Tennessee, for the appellee, Patsy Freeman.

E. Todd Presnell and Marc E. Williams, Nashville, Tennessee, for the amicus curiae, DRI-The Voice of the Defense Bar and Tennessee Defense Lawyers Association.

Judge: STAFFORD

In this interlocutory appeal, we are asked to determine: (1) whether the Tennessee savings statute, Tenn. Code Ann. section 28-1-105(a), may be invoked twice within the one-year savings period to save otherwise untimely actions; and (2) whether the Appellee acted with the diligence and good faith necessary to invoke the protection of the savings statute. We conclude that Appellee's suit was properly brought within the protection of the Tennessee savings statute. Consequently, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2011/freemanp_040811.pdf

CLARENCE E. JOHNSON v. TANNER-PECK, L.L.C.; WILLIAM B. TANNER, INDIVIDUALLY AND D/B/A TANNER-PECK OUTDOOR, D/B/A TANNER-PECK, D/B/A TANNER-PECK OUTDOOR ADVERTISING; JERRY W. PECK, INDIVIDUALLY, AND D/B/A TANNER-PECK OUTDOOR, D/B/A TANNER-PECK, D/B/A TANNER-PECK OUTDOOR ADVERTISING; TOA, LIMITED; TOA ENTERPRISES, LP; MARTIN A. GRUSIN, TRUSTEE OF THE WEATHERLY TANNER TRUST; UNIVERSAL OUTDOOR, INC.; WBT OUTDOOR, INC.; TANNER ACQUISITION CORPORATION; AND TANNER OUTDOOR, LLC

Court: TCA

Attorneys:

William Ernest Norcross, Cordova, Tennessee; and Michael R. Flynn, Memphis, Tennessee, for the Defendants/Appellants Patricia Tanner, executrix for the Estate of William B. Tanner, and Tanner-Peck, L.L.C., n/k/a Tanner Investment Company.

Tim W. Smith, Murfreesboro, Tennessee, for the Plaintiff/Appellee Clarence E. Johnson.

Judge: KIRBY

This is the second appeal in this breach of contract case. The plaintiff employee filed this lawsuit against the defendants for breach of an oral employment agreement. The trial court granted summary judgment in favor of the plaintiff and awarded him damages. The defendants filed a motion to revise the summary judgment order and submitted an affidavit in support of the motion. The trial court struck the supporting affidavit and denied the motion to revise. The defendants filed the first appeal. In the first appeal, the trial court's grant of summary judgment, including the award of damages, was affirmed, but the cause was remanded to the trial court for findings on its denial of the motion to revise. On remand, the trial court explained that it struck the affidavit submitted with the motion to revise for lack of personal knowledge and because it violated the Dead Man's Statute. The defendants now appeal the trial court's order denying the motion to revise. We reverse the denial of the motion to revise and remand for a recalculation of damages.

http://www.tba2.org/tba_files/TCA/2011/johnsonc_040811.pdf

STATE OF TENNESSEE v. LEONARD ALLEN

Court: TCCA

Attorneys:

Michael Meise (on appeal), Dickson, Tennessee, and Paul Walwyn and Jay Martin (at trial), Nashville, Tennessee, for the appellant, Leonard Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, Leonard Allen, of especially aggravated robbery, and the trial court sentenced him to twenty years in confinement to be served at one hundred percent. On appeal, the appellant contends that (1) a plea agreement he entered into with the State after the jury convicted him is invalid because he had already filed a notice of appeal to this court; (2) the trial court committed plain error by not ruling that a photograph array shown to the victim months after the robbery and introduced into evidence at trial was impermissibly suggestive; and (3) the evidence is insufficient to support the conviction. Based upon the record and the parties' briefs, we affirm the appellant's conviction for especially aggravated robbery.

http://www.tba2.org/tba_files/TCCA/2011/allenl_040811.pdf

MARSHALL HOWARD MURDOCK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Marshall Howard Murdock, Pro Se, Tiptonville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter, and J. Ross Dyer, 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 has appealed the trial court's order dismissing his motion to reopen his petition for post-conviction relief. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/murdockm_040811.pdf

STATE OF TENNESSEE v. ANTONIO L. SAULSBERRY

Court: TCCA

Attorneys:

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Antonio L. Saulsberry.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Bobby Carter and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Antonio L. Saulsberry, was convicted by a Shelby County Criminal Court jury of murder during the perpetration of a robbery and murder during the perpetration of a burglary. His convictions were merged and he was sentenced to life imprisonment, to be served consecutively to prior convictions for especially aggravated robbery and conspiracy to commit aggravated robbery for which he had already been sentenced to an effective term of fifty years as a Range II offender. On appeal, the defendant challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/saulsberrya_040811.pdf

STATE OF TENNESSEE v. LARRY WARD

Court: TCCA

Attorneys:

Neil Umsted (on appeal) and Stephen Sauer (at trial), Memphis, Tennessee, for the appellant, Larry Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Pam Fleming and Patience Branham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Larry Ward, stands convicted of criminally negligent homicide, a Class E felony. The trial court sentenced him as a Range II, multiple offender to four years in the workhouse. On appeal, the defendant challenges the sufficiency of the evidence to sustain his conviction. Upon our close review of the evidence, we are constrained to conclude that the evidence was insufficient to prove beyond a reasonable doubt that a homicide was committed in this case. Therefore, we reverse the judgment of the trial court, vacate the conviction, and dismiss the charge against the defendant.

http://www.tba2.org/tba_files/TCCA/2011/wardl_040811.pdf

STATE OF TENNESSEE v. KIRBY WHITED

Court: TCCA

Attorneys:

Martha Yoakum and Carla N. Brewer (on appeal), and Paul Crouch (at trial), LaFollette, Tennessee, for the appellant, Kirby Whited.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Fentress County Criminal Court Jury convicted the appellant, Kirby Whited, of tampering with evidence, a Class C felony. Following his conviction, the trial court imposed a sentence of three years, with fifty days to be served in jail and the remainder to be served on probation. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the sentence imposed by the trial court. The State concedes that the evidence is insufficient to support the appellant's conviction. Upon review, we conclude that the evidence is insufficient; therefore, the appellant's conviction must be vacated and the case dismissed.

http://www.tba2.org/tba_files/TCCA/2011/whitedk_040811.pdf

STATE OF TENNESSEE v. DARIUS WILLIAMS

Court: TCCA

Attorneys:

Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for the appellant, Darius Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Darius Williams, was indicted by the Shelby County Grand Jury for three counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during a felony. After a jury trial, Appellant was found guilty on all counts. As a result, Appellant was sentenced to an effective sentence of seventeen years. After the denial of a motion for new trial, Appellant initiated a direct appeal. On appeal, Appellant challenges the sufficiency of the evidence. After a review of the record, we conclude that the evidence was sufficient to support Appellant's convictions. Accordingly, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/williamsd_040811.pdf

CYRUS DEVILLE WILSON v. STATE OF TENNESSEE
With Dissenting Opinion

Court: TCCA

Attorneys:

Patrick T. McNally, Nashville, Tennessee, for the appellant, Cyrus Deville Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark. A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Cyrus Deville Wilson, appeals as of right from the Davidson County Criminal Court's dismissal of his petition for a writ of error coram nobis. The Petitioner contends that the coram nobis court erred by summarily dismissing his petition without an evidentiary hearing. Following our review, we reverse the judgment of the coram nobis court and remand the Petitioner's case for an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2011/wilsonc_040811.pdf

WELLES dissenting
http://www.tba2.org/tba_files/TCCA/2011/wilsonc_DIS_040811.pdf

IN RE: BOBBY DEAN DAVIS, BPR 009412

Court: TSC-Disciplinary Order

Judge: CLARK

Suspension

http://www.tba2.org/tba_files/TSC/2011/davisb_040811.pdf

TODAY'S NEWS

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Clinton, Gore to speak at McWherter's service

Former President Bill Clinton and former Vice President Al Gore will pay tribute to late Gov. Ned McWherter at a memorial service in Nashville on Saturday. The service will be open to the public beginning at 2 p.m. in the War Memorial Auditorium at Seventh and Charlotte avenues in downtown Nashville. The doors to the auditorium will open at 12:30 p.m. A reception will immediately follow the service. On Thursday, members of the House and Senate both unanimously honored McWherter with a resolution.

The Tennessean has more

Shutdown impact on DOJ, courts not immediate

A federal shutdown involving building closures, layoffs and other emergency measures appears likely, as lawmakers admit there doesn't seem to be much likelihood of reaching agreement on the budget before a Friday midnight deadline. If not, some 800,000 federal workers nationwide likely will be told not to show up for work on Monday, The Tribune reports. However, the impasse is not likely to affect federal court operations for at least two weeks, reports the New York Law Journal. Department of Justice officials said this week that in the event of a shutdown, the department's national security, law enforcement and prison operations will continue. FBI personnel will continue to work and "the department will be ready to respond to any and all contingencies that might arise during this time," DOJ said in a statement. But when it comes to civil cases, the scenario's different.

The Blog of Legal Times has more

Unreported votes in Wisconsin race called 'human error'

In a Wisconsin Supreme Court election that has gained national attention, challenger JoAnne Kloppenburg declared victory over incumbent Justice David Prosser with an unofficial 204-vote margin earlier this week, but late Thursday a county clerk announced she had incorrectly entered vote totals in the race. The new information gave Prosser a sizable lead. Waukesha County Clerk Kathy Nickolaus said more than 14,000 votes weren't reported on Tuesday due to "human error." Nickolaus worked for 13 years for a Republican caucus that was controlled by Prosser when he was Assembly speaker in 1995 and 1996. The corrected totals gave Prosser a 7,500-vote lead over Kloppenburg, according to unofficial tallies. Before the announcement, it was assumed the race was headed for a recount. The difference between the two had fluctuated throughout the day Thursday as counties began verifying votes, but at one point was as close as 11.

WRCB carried this AP story

Firms announce diversity scholarships

Baker, Donelson, Bearman, Caldwell & Berkowitz PC will award three scholarships to diverse law students who will complete their first year of law school by June 2011. Each recipient will be awarded $10,000 and a six-week, salaried 2L summer associate position in one of the firm's offices. For complete eligibility criteria, instructions and to apply for the scholarship visit the firm's website. Contact Helen Beasley at hbeasley@bakerdonelson.com or (205) 328-0480 with questions. The application deadline is June 17.

In related news, Bradley Arant Boult Cummings LLP recently announced it has awarded a diversity scholarship to TaCara D. Harris, a first-year student at Vanderbilt University Law School. Harris will receive a $5,000 scholarship and a clerkship with the firm this coming summer.