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Tuesday, May 10, 2011

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Judge Donald's nomination moves toward full Senate

The Senate Judiciary Committee voted Monday evening to report the nomination of U.S. District Judge Bernice B. Donald for a seat on the 6th Circuit Court of Appeals to the full Senate for a confirmation vote. There's no word on when that vote might be scheduled. Donald's name will be added to a list of more than 10 judicial nominees whose confirmations are pending.

The Commercial Appeal has 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.

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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.

STEVE MCBROOM v. NISSAN NORTH AMERICA, INC. ET AL.

Court: TWCA

Attorneys:

T. Franklin Gilley, III, Murfreesboro, Tennessee, for the appellants, Nissan North America, Inc. and Ace American Insurance Company.

Donald D. Zuccarello and Marshall A. McClarnon, Nashville, Tennessee, for the appellee, Steve McBroom.

Judge: KURTZ

The employee alleged that he sustained a lower back injury as a result of his job. His employer denied the claim based upon findings by its work site medical staff. An evaluating physician opined that the employee's job had caused an aggravation of a pre-existing degenerative disc disease. The trial court found that the employee had sustained a compensable injury and awarded benefits. The employer appealed, contending that the evidence preponderates against the trial court's finding. We affirm the judgment, but we decline the employee's request to find the appeal to be frivolous.

http://www.tba2.org/tba_files/TSC_WCP/2011/mcbrooms_051011.pdf

ANDREW J. BRADEN, III v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TCA

Attorneys:

Andrew J. Braden, III, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and David S. Sadlow, Assistant Attorney General, for the appellees, Tennessee Department of Correction, Commissioner Derrick D. Schofield, Lester Qualls, Sergeant Mark Turney, Warden James Fortner, Sergeant Nicky Jordan, Stacy Bell and Ronnie Williams.

Judge: FARMER

This is a prisoner appeal from a disciplinary conviction. Because the prisoner did not file his petition for common law writ of certiorari within sixty days of the denial of his disciplinary appeal or demonstrate a timely filing of the petition pursuant to Rule 5.06 of the Tennessee Rules of Civil Procedure, we do not have subject matter jurisdiction to consider the issues presented. This appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2011/bradena_051011.pdf

STATE OF TENNESSEE v. MAXIMO MARIN IN RE: E-Z OUT BAIL AGENCY

Court: TCA

Attorneys:

Stephen M. Milam, Lexington, Tennessee, for the appellant, E-Z Out Bail Agency.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

The defendant, Maximo Marin, failed to appear for his scheduled court date, and a conditional forfeiture was issued against E-Z Out Bail Agency in the amount of $100,000. With the final forfeiture date rapidly approaching, E-Z Out Bail Agency filed a motion to extend the final forfeiture date. The issue on appeal is whether the trial court abused its discretion in denying the motion to extend the final forfeiture date. We conclude the trial court did not abuse its discretion and affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCA/2011/ezoutbail_051011.pdf

DEBORAH VIVIEN v. KEITH W. CAMPBELL

Court: TCA

Attorneys:

Valerie T. Corder, Memphis, Tennessee, for Petitioner/Appellee, Deborah Vivien.

Carroll C. Johnson III, Memphis, Tennessee, for Respondent/Appellant, Keith W. Campbell.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Warren Jasper, Senior Counsel, General Civil Division, Nashville, Tennessee for Appellee, State of Tennessee ex rel. Deborah Vivien.

Judge: KIRBY

This appeal involves child support arising out of a paternity action. After paternity was established, the mother sought discovery regarding the father's income. After protracted discovery disputes, the juvenile court set child support based on income that included the father's winnings from gambling. The juvenile court did not permit the gambling winnings to be offset by the father's gambling losses. After the father requested a rehearing on child support, years of delay ensued, and his rehearing request was ultimately dismissed. The father now appeals. We affirm in part, reverse in part, and remand, holding inter alia, that in determining an obligor parent's income for child support purposes, provable gambling losses may offset gambling winnings, up to the amount of the gambling winnings for the year in question.

http://www.tba2.org/tba_files/TCA/2011/viviend_051011.pdf

WILLIAM PAUL BOGUS v. JIM MORROW, WARDEN and STATE OF TENNESSEE

Court: TCCA

Attorneys:

William P. Bogus, Pro Se, Pikeville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, William Paul Bogus, was convicted of first degree felony murder. See State v. William Paul Bogus, No. 02C01-9506-CC-00169, 1998 WL 22031, at *1 (Tenn. Crim. App., at Jackson, Jan. 22, 1998), perm. app. denied, (Tenn. Nov. 2, 1998). Petitioner later alleged in a petition for habeas corpus relief that his conviction was void because he was not convicted of the underlying felony and because the indictment was defective. The lower court dismissed the petition without a hearing. Petitioner appeals. Because nothing on the face of the judgment shows that Petitioner's life sentence has expired or that the conviction is void, we affirm the dismissal of the petition for habeas corpus relief.

http://www.tba2.org/tba_files/TCCA/2011/bogusw_051011.pdf

STATE OF TENNESSEE v. JEFFERY LANCE COCHRAN

Court: TCCA

Attorneys:

Steve McEwen, (on appeal), Mountain City, Tennessee and William A. Kennedy, (at trial), Blountville,Tennessee, for the appellant, Jeffery Lance Cochran.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General, and Brandon Haren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jeffrey Lance Cochran, pled guilty to violations of the Motor Vehicle Habitual Offender Act, implied consent law, and driving under the influence, fourth offense. The sentences were ordered to run concurrently to each other; Appellant was sentenced to an effective sentence of one year and six months. He was ordered to serve a mandatory minimum sentence of 150 days and the remainder of the sentence on probation. On the same day, Appellant also pled guilty to failure to appear. He was sentenced to one year and six months for this conviction, to be served consecutively to the effective sentence for the other convictions. Subsequently, Appellant was charged with violating the terms of his probation. Following a hearing, Appellant's probation was revoked. The trial court ordered Appellant to serve the remainder of his sentence in confinement. Appellant appeals this decision. Because we determine that the trial court properly revoked Appellant's probation, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/cochranj_051011.pdf

STATE OF TENNESSEE v. TAVARUS DETTERIO GRIFFIN

Court: TCCA

Attorneys:

Javier Michael Bailey, Bolivar, Tennessee (on appeal) and William Hatton, Bolivar, Tennessee (at trial) for the appellant, Tavarus Detterio Griffin.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; D. Michael Dunavent, District Attorney General; and Joe L. VanDyke, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Tavarus Detterio Griffin, was convicted of two counts of aggravated robbery and two counts of aggravated kidnapping. The trial court imposed an effective sentence of twenty years. Judgments of conviction were entered on October 2, 2008. An untimely motion for new trial was filed on January 30, 2009. On May 12, 2009, the trial court entered an order purporting to deny the motion for new trial, rather than dismissing the untimely motion as requested in a written response filed by the State. An untimely notice of appeal was filed May 12, 2009. Defendant, through counsel, has raised only two issues on appeal: (1) whether Defendant was denied his right to due process and a fair trial because the jury pool was allowed to see Defendant in the courtroom wearing jail clothing and restrained by leg irons and handcuffs; and (2) whether counsel who represented Defendant throughout the trial and sentence hearing (who is not the same counsel who filed the motion for new trial) rendered ineffective assistance of counsel. Because the only issues raised on appeal are waived as a result of not being included in a timely-filed motion for new trial, we conclude that this is not a case where timely filing of the notice of appeal should be waived. Accordingly, Defendant's appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2011/griffint_051011.pdf

TORREZ TALLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael R. Working, Memphis, Tennessee, for the appellant, Torrez Talley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Torrez Talley, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of trial counsel because counsel failed to sufficiently argue the standard of reasonable doubt during closing argument. 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/talleyt_051011.pdf

RODNEY LARON THOMAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Chadwick R. Wood, Lexington, Tennessee, for the appellant, Rodney Laron Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Rodney Laron Thomas, appeals the trial court's denial of his request for a delayed appeal concerning the denial of his post-conviction relief petition. He urges that his delay in filing his appeal should be excused because (1) his post-conviction counsel never pursued an appeal despite assuring him to the contrary, and (2) the circuit court clerk never provided him with a copy of the final order, as required by Tennessee Code Annotated section 40-30-112. We conclude that this petitioner has no right to appeal from a denial of a motion for delayed appeal of a denial of post-conviction relief. Therefore, this appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2011/thomasr_051011.pdf

STATE OF TENNESSEE v. CHRISTOPHER IVORY WILLIAMS

Court: TCCA

Attorneys:

George M. Googe, District Public Defender; Paul E. Meyers, Assistant Public Defender, Jackson, Tennessee for the Defendant-Appellant, Christopher Ivory Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Benjamin C. Mayo, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Christopher Ivory Williams, was convicted by a Madison County Circuit Court jury of first degree premeditated murder and felony murder. The trial court merged the felony murder conviction with the first degree premeditated murder conviction and sentenced Williams as a violent offender to life imprisonment. On appeal, Williams argues that: (1) the evidence is insufficient to support his conviction for first degree premeditated murder; (2) the trial court erred in failing to dismiss the felony murder count of the indictment on the ground that no underlying felony was specified in the indictment; (3) the trial court erred in allowing the victim's mother to authenticate pictures of the victim at trial; (4) the State committed prosecutorial misconduct during closing arguments; (5) the trial court erred in considering Williams' prior arson conviction for impeachment purposes. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/williamsc_051011.pdf

TODAY'S NEWS

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General Assembly News

Foreclosure publication requirements diminished

Legislation brought on behalf of the Tennessee Banker's Association -- that would cut the number of times a notice of foreclosure would have to run in the newspaper from three to two -- cleared what may be its last major hurdle today when the Senate Judiciary Committee, by a vote of five to four recommended for passage SB1299/HB 1920. The action has preempted efforts by the Tennessee Bar Association to enact more comprehensive reforms in the foreclosure process.

Bill to cap non-economic damages passes House

The state House on Monday approved Gov. Bill Haslam's measure to place limits on payouts from successful lawsuits in Tennessee. The chamber voted 72-24 to pass the bill, HB1018, carried by Rep. Vance Dennis, R-Savannah, that would place a $750,000 cap on non-economic damages such as pain and suffering.

The Leaf Chronicle has the story

Cooper says immigration bill 'likely' unconstitutional

Rep. Joe Carr, R-Lascassas, said his bill, HB1380, which was inspired by an Arizona law that gives state and local law enforcement officers immigration enforcement duties, is constitutional. Tennessee Attorney General Bob Cooper says the bill "likely" would be found to violate the Tennessee Constitution and would be subject to "serious challenge" for possible violations of the U.S. Constitution. Carr says he is confident because the bill was crafted with advice from attorneys with "expertise in immigration law."

The News Sentinel reports

Legal News

Washington Co. legal clinic serves 4,000 in first two years

More than 4,000 people in Washington County have received free legal assistance from a monthly pro bono clinic sponsored by the Washington County Bar Association over the last two years. And they did this with just 35 attorneys. The volunteers gave 2,000 hours of their time to assist financially challenged individuals with civil legal matters such as divorce, foreclosure, repossession and collection matters. At its two-year anniversary on Saturday, the bar celebrated with an open house for the community. Tennessee Supreme Court Chief Justice Connie Clark, Congressman Phil Roe and State Rep. David Hawk were there to show their support.

Memphis law firm feeds flood's first responders

The law firm of Adams and Reese teamed up with one of its clients, Medical Education Research Institute, to provide lunch today for 150 first responders in Memphis, as they continue to patrol the city's levees and control the rising water levels from the Mississippi River. The flooding prompted President Obama to declare Shelby and other counties along the river federal disaster areas, Gov. Bill Haslam announced this morning. "They are located in a bunker near a school department and have little options or time for food and drink, so we wanted to do something for them for their service to us and the Memphis community," Adams & Reese partner Jeffrey Smith said. The project was coordinated by Adams and Reese partner Joe Walker.

Appeal filed in Fisk art case

On Monday, the Tennessee Attorney General's office filed an appeal with the Tennessee Court of Appeals, arguing that Chancellor Ellen Hobbs Lyle exceeded her authority when she ruled to allow Fisk University to sell a share in its $73 million Stieglitz Collection to an Arkansas museum. The appeal asks the higher court to set aside her ruling and allow the art to remain.

The Tennessean has more

Judge Nixon recuses self in school suit

Federal Court Judge John T. Nixon has recused himself from deciding a redistricting lawsuit against Metropolitan Nashville Public Schools. The case was randomly assigned to Judge Todd J. Campbell Monday, according to U.S. District Court of Middle Tennessee court records.