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Thursday, April 14, 2011

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Convention update: Jackson, Pickler join Riverbend

Grammy Award-winning country artist Alan Jackson and former "American Idol" contestant Kellie Pickler today were added to the Riverbend 2011 lineup. Both will appear at the festival during the 130th Annual TBA Convention in Chattanooga. All registrants to the convention will receive passes to the entire Riverbend music festival, including the Jackson and Pickler concerts on June 17 and June 18, respectively.

Register for the TBA convention today or learn more

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
05 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
06 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders

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.

RICHARD BLANKENSHIP v. ACE TRUCKING, INC., ET AL.

Court: TWCA

Attorneys:

David M. Rich, Nashville, Tennessee, for the appellants, Ace Trucking, Inc. and Ace Trucking Company, Inc.

Terry Leonard, Camden, Tennessee, for the appellee, Richard Blankenship.

Judge: LEE

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. In 2002, the employee was involved in a motor vehicle accident in the course and scope of his employment. The employee filed suit for benefits. The employer disputed the claim, asserting that the employee had failed to give proper notice and had not sustained any permanent injury as a result of the accident. The trial court awarded benefits, and the employer has appealed. After careful review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/blankenshipr_041411.pdf

CHERYLE DARLENE GOODWIN v. UNITED PARCEL SERVICE, INC., ET AL.

Court: TWCA

Attorneys:

David T. Hooper, Brentwood, Tennessee, for the appellants, United Parcel Service, Inc. and Liberty Mutual Insurance Company.

Walter S. Fitzpatrick, III, Cookeville, Tennessee, for the appellee, Cheryle Darlene Goodwin.

Judge: BLACKWOOD

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sustained a compensable injury. She returned to work for her employer in the same job, at the same hourly wage. However, her earnings were reduced because she declined offers of additional work, which she had usually accepted before her injury. She declined these offers because she could no longer safely perform them. The trial court held that she did not have a meaningful return to work, and awarded benefits in excess of one and one-half times the impairment. Her employer has appealed, asserting that the trial court erred by finding that she did not have a meaningful return to work. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/goodwinc_041411.pdf

BETTY LOU GRAHAM v. SEQUATCHIE VALLEY EMERGENCY MEDICAL SERVICES, INC., ET AL.

Court: TWCA

Attorneys:

Betty Lou Graham, Jasper, Tennessee, Pro Se.

Brian C. Neal, Nashville, Tennessee, for the appellees, Sequatchie Valley Emergency Medical Services, Inc., Marion County Ambulance Services, Inc. and Liberty Mutual Insurance Company.

Judge: KURTZ

The employee filed a pro se post-judgment petition alleging that her employer had improperly denied court-ordered medical benefits to her, and she sought damages. Her employer moved to dismiss based upon expiration of the statute of limitations and other grounds. The employee contended that she was incompetent for an extended period of time after the alleged denial of medical care and that the limitation period was therefore tolled. The trial court held that her petition was barred by the statute of limitations and dismissed it. The employee has appealed from this decision. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/grahamb_041411.pdf

MICHAEL C. MASSEY v. NISSAN NORTH AMERICA, INC.

Court: TWCA

Attorneys:

Randolph A. Veazey and Janis O. Mize, Nashville, Tennessee, for the appellant, Nissan North America, Inc.

Brian Dunigan, Goodlettsville, Tennessee, for the appellee, Michael Massey.

Judge: BRYANT

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Employee alleged he sustained an injury to his back in the course and scope of his employment. After Employee had back surgery, he returned to work for five months, then resigned his employment and received a lump sum payment offered by Employer for the purpose of reducing its workforce. Employee claimed that he was unable to continue performing his job due to back pain. Employee filed suit against Employer seeking worker's compensation benefits. Employer denied that the claim was compensable and asserted that the employee had made a meaningful return to work. The trial court found that Employee had suffered a compensable injury and did not have a meaningful return to work. The trial court awarded Employee 35% permanent partial disability ("PPD") benefits. Employer has appealed. We affirm.

http://www.tba2.org/tba_files/TSC_WCP/2011/masseym_041411.pdf

JEFFREY WHITE v. NISSAN NORTH AMERICA, INC., ET AL.

Court: TWCA

Attorneys:

Van French, Murfreesboro, Tennessee, for the appellants, Nissan North America, Inc. and Royal Insurance Company.

R. Steven Waldron, Murfreesboro, Tennessee, for the appellee, Jeffrey White.

Judge: LEE

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Jeffrey White ("Employee") sustained work-related injuries while employed by Nissan North America, Inc. ("Employer"). He returned to work after each injury and settled both claims. In 2005, he was terminated, allegedly for failure to comply with Employer's policies concerning medical leave. He filed for reconsideration of his previous settlements, as permitted by Tennessee Code Annotated section 50-6-241(a)(2). Employer contended that he had been terminated for misconduct and was not eligible for reconsideration. Following a full trial, the trial court found that Employee was eligible for reconsideration, but that Employee failed to prove that his industrial disability was greater than the amount of the settlements. Employee filed a motion to alter or amend pursuant to Tenn. R. Civ. P. 59.04, requesting that the trial court permit the taking and presentation of additional evidence. The trial court granted the motion. After a second trial, the trial court awarded additional permanent partial disability ("PPD") benefits. Employer has appealed. We conclude that the trial court erred in granting the motion to alter or amend and reverse the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/whitej_041411.pdf

CARL A. BAKER v. ANTOINETTE WELCH

Court: TCA

Attorneys:

Carl A. Baker, Altamonte Springs, Florida, Pro Se.

Daniel Davis Warlick, Nashville, Tennessee, for the appellee, Antoinette Welch.

Judge: BENNETT

Defendant in malpractice action was granted summary judgment. Plaintiff filed two motions seeking to set aside the grant of summary judgment, which were denied. Plaintiff appealed. We reverse for reconsideration of the motion filed within 30 days of entry of the judgment under Tenn. R. Civ. P. 59.

http://www.tba2.org/tba_files/TCA/2011/bakerc_041411.pdf

CYNTHIA LYNN LINER v. ROBERT CLIFFORD LINER, JR.

Court: TCA

Attorneys:

Laurie Y. Young, Murfreesboro, Tennessee, for the appellant, Robert Clifford Liner, Jr.

Gary D. Beasley and John Carson Taylor, Murfreesboro, Tennessee, for the appellee, Cynthia Lynn Liner.

Judge: BENNETT

In a divorce action, Husband appeals the trial court's classification of the residence he owned before the parties' marriage as marital property and its award of one-half of the equity in the residence to Wife. We affirm.

http://www.tba2.org/tba_files/TCA/2011/linerc_041411.pdf

GWEN SHAMBLIN, ET AL. v. RAFAEL MARTINEZ

Court: TCA

Attorneys:

Samuel J. Harris, Cookeville, Tennessee, for the appellants, Gwen Shamblin and Tedd Anger.

John O. Belcher, Nashville, Tennessee, and G. Philip Anderson, Brentwood, Tennessee, for the appellee, Rafael Martinez.

Judge: DINKINS

This defamation action arises out of the publication of a statement to an internet website. The trial court held that plaintiffs were unable to show actual malice in order to sustain defamation and false light invasion of privacy claims and granted summary judgment to the defendant. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/shambling_041411.pdf

STATE OF TENNESSEE v. TONY RAY BILLINGS

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Tony Ray Billings.

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

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Tony Ray Billings, of aggravated robbery, and the trial court sentenced him as a Range II, Multiple Offender to fourteen years in the Tennessee Department of Correction ("TDOC"). On appeal, the Defendant contends that: (1) the trial court erred when it allowed the State to amend the indictment; (2) the trial court committed plain error when it denied the Defendant's motion to exclude identification testimony; and (3) the evidence is insufficient to sustain his conviction. After a thorough review of the record and applicable authorities, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/billingst_041411.pdf

STATE OF TENNESSEE v. ANTHONY D. FORSTER

Court: TCCA

Attorneys:

Manuel B. Russ, Nashville, Tennessee, for the Appellant, Anthony D. Forster.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County grand jury indicted the Defendant, Anthony D. Forster, for four counts of robbery related charges stemming from two incidents. The Defendant was convicted of one count of especially aggravated robbery, acquitted on the remaining charges, and the trial court sentenced the Defendant to twenty-two years in prison. On appeal, the Defendant claims that:(1) the Defendant was denied his right to a speedy trial; (2) the evidence was insufficient to support his conviction; (3) the trial court erred in failing to sever the offenses; (4) the trial court erred in failing to compel the State to comply with Rule 16 of the Tennessee Rules of Criminal Procedure; and (5) the trial court improperly sentenced the Defendant. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/forstera_041411.pdf

STATE OF TENNESSEE v. LARRY RANDALL HENRY, II

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, and Stephanie Baca (at trial), Shelbyville, Tennessee; and Gregory D. Smith (on appeal), Clarksville, Tennessee, for the Appellant, Larry Randall Henry, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Chuck Crawford, District Attorney General, and Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Bedford County jury convicted the Defendant, Larry Randall Henry, II, of aggravated burglary, and the trial court sentenced him to nine years in the Tennessee Department of Correction ("TDOC"). On appeal, the Defendant contends that the evidence is insufficient to support his conviction and that the trial court erred when it set the length of his sentence. Having reviewed the record and applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/henryl_041411.pdf

STATE OF TENNESSEE v. BRYAN K. HOWARD

Court: TCCA

Attorneys:

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the appellant, Bryan K. Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Russell Johnson, District Attorney General; and William Reedy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Bryan K. Howard, pled guilty to vehicular homicide, a Class B felony, with the length of his sentence and manner of service left to the discretion of the trial court. Following a sentencing hearing, the trial court denied all forms of alternative sentencing and sentenced the Defendant to eight years in the Tennessee Department of Correction. In this appeal as of right, the Defendant contends that the trial court erred in denying all forms of alternative sentencing. Following our de novo review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/howardb_041411.pdf

STATE OF TENNESSEE v. MICHAEL R. SMART

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Michael R. Smart.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Charles Frank Crawford, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a jury trial, the Defendant, Michael R. Smart, was found guilty of sale of a Schedule VI controlled substance, a Class E felony; delivery of a Schedule VI controlled substance, a Class E felony; and simple possession of a Schedule VI controlled substance, a Class A misdemeanor. The trial court merged the sale and delivery convictions and sentenced the Defendant to 2 years for the Class E felony conviction and a consecutive 11 months and 29 days for the Class A misdemeanor conviction. In this appeal as of right, the Defendant contends (1) that the trial court erred in allowing the State to impeach him with his prior conviction of receiving stolen property; (2) that the trial court erred in failing to include the requested defense of entrapment in the jury instructions; and (3) that the trial court erred in sentencing him. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/smartm_041411.pdf

STATE OF TENNESSEE v. DANNY RAY SMITH

Court: TCCA

Attorneys:

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); Jason Gichner, Assistant Public Defender (at trial); and Sharon Ruiz, Assistant Public Defender (at trial), for the appellant, Danny Ray Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulaney Faughn, Assistant Attorney General; Victor S. Johnson, District Attorney General; Sharon Reddick, Assistant District Attorney General; and Brian Keith Holmgren, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Danny Ray Smith, was convicted of four counts of aggravated sexual battery, a Class B felony, and three counts of rape of a child, a Class A felony. See Tenn. Code Ann. sections 39-13-504, 522. In this appeal as of right, the Defendant contends that (1) the trial court erred by allowing the victim to testify about instances of sexual contact between her and the Defendant other than those charged in the indictment; (2) the trial court erred by allowing a videotape of the victim's forensic interview to be played for the jury; (3) the trial court erred by allowing the State to cross-examine the Defendant about an expunged criminal conviction; (4) the evidence was insufficient to sustain the Defendant's conviction on count two of the indictment because the State's proof materially varied from the allegations in the indictment; (5) the trial court erred in denying the Defendant's motion for a judgment of acquittal on counts two, six, and seven; (6) the trial court erred by denying the Defendant's motion for a new trial which was based on newly discovered evidence; and (7) the trial court erred by imposing partial consecutive sentences. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/smithd_041411.pdf

TODAY'S NEWS

General Assembly News
Legal News
Upcoming
TBA Member Services

General Assembly News

Woodson to resign, take job with education group

Tennessee State Senate Speaker Pro Tempore Jamie Woodson will resign from the General Assembly at the end of the current legislative session to take over as president and chief executive officer of the State Collaborative on Reforming Education (SCORE) -- an education policy nonprofit chaired by former U.S. Senate Majority Leader Bill Frist. Woodson's first task will be leading a strategic planning process to define the organization's activities in areas such as advocacy, policy, research and technical assistance.

Read the group's press release

Legal News

Ford's Nashville corruption charges overturned

The U.S. Sixth Circuit Court of Appeals today threw out John Ford's 2008 corruption conviction, ruling that his failure to report consulting fees did not violate federal law. The ruling could reduce his 19-year sentence to just a five-year sentence for his Memphis bribery conviction. Ford's attorneys argued that the disclosure issues were not a matter of federal jurisdiction.
Download the opinion

Read about the case in the Commercial Appeal

Bar exam results to be released Friday

Results from the February Tennessee state bar exam will be available tomorrow (April 15) on the Tennessee Bar Association website. There is not a specified release time, but results are expected around noon Central Time.

Watch for bar exam results at TBA.org

TVA spends billions to settle air pollution suits

TVA will shut down 18 boilers at three of its oldest coal plants -- including two in Tennessee -- and pay a $10 million fine to settle lawsuits involving air pollution from the plants. By a 7-1 vote, the TVA board approved the settlement with regulators, neighboring states and public interest groups. As part of the deal, the utility also will spend $3 to $5 billion on new or upgraded pollution controls and another $350 million on energy efficiency and renewable energy projects.

Read about the settlement from the Blog of Legal Times

Judge shopping claim rejected

The Tennessee Court of Criminal Appeals has ruled that Special Judge Jon Kerry Blackwood erred in sending a case back for a new hearing based on claims of judge shopping. The appeals court directed the trial court to reinstate an indictment against defendant Gary Wayne McCullough, who was charged with boating under the influence. McCullough had challenged his indictment with claims that the Tennessee Wildlife Resource Agency was engaging in judge shopping. With regard to McCullough's specific case, the appeals court found no evidence the assignment was manipulated. It also found that judges David Bales and Bob Moon committed no violations of the Code of Judicial Conduct in their handling of the case.
Download the opinion

Miss. judge released to home confinement

Former Mississippi judge Bobby DeLaughter has been released to home confinement to complete a corruption sentence that runs through April 23. DeLaughter pleaded guilty in 2009 to obstruction of justice in a corruption investigation involving multimillionaire and former lawyer Dickie Scruggs. He admitted lying to an FBI agent during the investigation.

WREG-TV Memphis has the story

Memphis law groups receive volunteer award

The Memphis Bar Association Access to Justice Committee, Memphis Area Legal Services Inc. and Memphis Paralegal Association have won the Memphis Library's Civic Volunteer of the Year Award. The award recognizes the groups' efforts in holding a Saturday Legal Clinic each month. The clinics are staffed by volunteer lawyers and provide free legal advice to members of the public. For more information or to get involved with the clinic contact the Memphis Bar Association at (901) 527-3573.

Chattanooga lawyers hold diversity pipeline program

Chattanooga law firm Chambliss, Bahner & Stophel and the legal department at BlueCross BlueShield of Tennessee recently hosted the Third Annual Corporate Diversity Pipeline Program for area high school students. The event began with a visit from Chief U.S. District Court Judge Curtis Collier, who spoke about finding inspiration to rise above difficult circumstances in life. Students then worked with attorneys on mock legal scenarios. The day wrapped up with a job fair aimed at exposing the students to various careers in the law. The national pipeline program is a partnership between Street Law and the Association of Corporate Counsel. It tackles the lack of diversity in the legal profession by encouraging minorities to pursue careers in the law.