TBA Today

Tuesday, June 07, 2011

Search our Database for Opinions and News Items

Bivens, DeVasher and Fulks recommended for Welles' seat

Three candidates were selected by the Judicial Nominating Commission yesterday afternoon to fill a vacancy on the Court of Criminal Appeals. The candidacies of Circuit Court Judge Jeffrey S. Bivins of the 21st Judicial District in Franklin, Assistant Public Defender Jeffrey Allen DeVasher from the Office of the Metropolitan Public Defender in Nashville, and Mark A. Fulks, senior counsel and appellate team leader in the Office of the Attorney General & Reporter in Nashville, will go to Gov. Bill Haslam on Monday. He may appoint one to replace retiring Judge David H. Welles, or request a new slate of candidates from the commission.

The Administrative Office of the Courts 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.

01 - TN Supreme Court
02 - 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
01 - 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.

EVELYN NYE v. BAYER CROPSCIENCE, INC., ET AL.
With Concurring and Dissenting Opinion

Court: TSC

Attorneys:

Hugh B. Bright, Jr., Michael J. King, and Latisha J. Stubblefield, Knoxville, Tennessee, for the appellant, National Service Industries, Inc. f/k/a/ North Brothers, Inc.

Jimmy F. Rodgers, Jr., Chattanooga, Tennessee, and John E. ("Rett") Guerry, III, and Benjamin D. Cunningham, Mt. Pleasant, South Carolina, for the appellee, Evelyn Nye.

Judge: LEE

In this products liability case, a widow sought compensation for the death of her husband from mesothelioma allegedly caused by exposure to asbestos at his workplace. She sued the company that sold products containing asbestos to her husband's employer. She based her claim on strict liability and alleged that the seller sold defective products and failed to warn her husband of the products' health risks. The jury found that the seller was at fault, but that her husband's employer was the sole cause of his injury and awarded her nothing. The widow appealed. The Court of Appeals reversed and remanded for a new trial based on erroneous jury instructions that more probably than not affected the judgment of the jury. On review, we hold that the seller was subject to suit in strict liability, pursuant to Tennessee Code Annotated section 29-28-106(b) (2000), because none of the products' manufacturers were subject to service of process. Further, we hold that the trial court erred by instructing the jury that the seller could not be held liable for failure to warn if the jury found that the consumer, identified as the employer, was already aware of any danger in connection with the use of the products or if the employer had been given adequate warnings. This jury instruction was erroneous for two reasons. First, it applied the learned intermediary doctrine, which the courts of this state have limited to medical products and pharmaceuticals. Second, the jury instruction misidentified the consumer as the employer, when the consumer who was required to be warned was the employee, Mr. Nye. Because the error more probably than not affected the judgment of the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.

http://www.tba2.org/tba_files/TSC/2011/nyee_060711.pdf

HOLDER concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/nyee_DIS_060711.pdf

MASON FISCHER v. SVERDRUP TECHNOLOGY, INC.

Court: TWCA

Attorneys:

Robert S. Peters, Winchester, Tennessee, for the appellant, Mason Fischer.

Margaret L. Noland, Cookeville, Tennessee, for the appellee, Sverdrup Technology, Inc.

Judge: ANDERSON

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 filed a Worker's Compensation action on August 22, 2003 alleging a compensable injury in the course of his employment with his employer in December 1998. The employer filed a motion to dismiss for failure to prosecute under Tenn. R. Civ. P. 41.02. The trial court entered an order in September 2008, stating that the employer was withdrawing the motion to dismiss for failure to prosecute based upon the employee's commitment to take a medical deposition within sixty days. A second motion to dismiss for failure to prosecute was filed and heard on March 15, 2010 because the medical deposition had not been taken. The trial court granted the motion with prejudice. The employee has appealed. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/fischerm_060711.pdf

VICTOR POWELL ET AL. v. BRETT MARTER, INDIVIDUALLY and D/B/A QUALITY FLOOR COVERING

Court: TWCA

Attorneys:

Thomas L. Wyatt, Chattanooga, Tennessee, for the appellant, Victor Powell.

Catheryne L. Grant, Nashville, Tennessee, for the appellee, Brett Marter.

Judge: ANDERSON

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 filed a workers' compensation action contending his injury while cutting trees at his employer's home was in the usual course of his employment at his employer's floor covering business. The trial court held that employee's work was casual employment not in the usual course of his employer's business as defined by TCA section 50-6-106(2) and not covered by the workers' compensation statute. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/powellv_060711.pdf

IN RE: AIDEN R. B., ET AL.

Court: TCA

Attorneys:

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Amy B.

Robert E. Cooper, Jr., Attorney General and Reporter; and Marcie E. Greene, Assistant Attorney General; for the appellee, State of Tennessee, Department of Children's Services.

Robert L. Huddleston, Maryville, Tennessee, Guardian Ad Litem.

Judge: SWINEY

Amy B. ("Mother") is the biological mother of the minor children, Aiden R. B. and Evan M. B. ("the Children"). The State of Tennessee Department of Children's Services ("DCS") filed a petition to terminate Mother's parental rights to the Children. Following a trial, the Juvenile Court for Sevier County ("the Trial Court") found and held, inter alia, that clear and convincing evidence existed to terminate Mother's parental rights to the Children on four grounds under Tenn. Code Ann. section 36-1-113(g)(1), (2), and (3) and that termination was in the Children's best interest. Mother appeals the termination of her parental rights. We affirm.

http://www.tba2.org/tba_files/TCA/2011/aidenrb_060711.pdf

O'RANE M. CORNISH, SR. v. THE HOME DEPOT, INC.

Court: TCA

Attorneys:

O'Rane M. Cornish, Sr., Pro se.

Jay M. Atkins and H. Case Embry, Oxford, Mississippi, for the appellee, Home Depot USA, Inc.

Judge: FARMER

The trial court awarded summary judgment to Defendant in this malicious prosecution action. We affirm.

http://www.tba2.org/tba_files/TCA/2011/cornisho_060711.pdf

ANDRE WILKS V. MAXINE WILKS

Court: TCA

Attorneys:

Peggy J. Lee, Memphis, Tennessee, for the appellant, Andre Wilks

Linda Lynn Walls Holmes, Memphis, Tennessee, for the appellee, Maxine Wilks

Judge: STAFFORD

This is an appeal of a divorce matter. We dismiss this appeal for Appellant's failure to appeal a final judgment.

http://www.tba2.org/tba_files/TCA/2011/wilksa_060711.pdf

CARL BOST v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Carl Bost.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Deborah Malone, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Carl Bost, pleaded guilty to possession with intent to sell cocaine, a Class C felony, and attempted aggravated burglary, a Class D felony, in exchange for a cumulative sentence of six years, to be served in the Tennessee Department of Correction as a Range I, standard offender. He filed for post-conviction relief, which was denied by the post-conviction court. On appeal, he argues that he entered his plea unknowingly, involuntarily, and unintelligently due to ineffective assistance of counsel. Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/bostc_060711.pdf

STATE OF TENNESSEE v. DANIEL H. JONES

Court: TCCA

Attorneys:

Gregory W. Francisco, Kingsport, Tennessee, for the appellant, Daniel H. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Greeley Wells, District Attorney General; and Kent Chitwood, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Sullivan County Grand Jury charged by presentment Appellant, Daniel H. Jones, with possession of .5 gram of cocaine with intent to sell. This charge was the result of the execution of a search warrant during which officers arrested five individuals and found containers holding rocks of crack cocaine and other drug paraphernalia. After a jury trial held on August 26, 28, and 29, 2008, Appellant was convicted as charged. The trial court sentenced Appellant to eleven years as a Range I, standard offender. On appeal, Appellant argues that the trial court erred in allowing testimony of a prior bad act of Appellant in contravention of Rule 404(b) of the Tennessee Rules of Evidence and that the evidence was insufficient to support his conviction. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in admitting the evidence in question and that the evidence was sufficient to support Appellant's conviction. Therefore, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/jonesd_060711.pdf

THOMAS EDWARD KOTEWA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Thomas Edward Kotewa, Pro Se, Wartburg, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; David S. Clark, District Attorney General; and Sandra N.C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Thomas Edward Kotewa, appeals the trial court's denial of his petition for writ of error coram nobis. Following our review of the record, the parties' briefs, and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/kotewat_060711.pdf

CHAD ROGERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Chasity C. Nicoll, Manchester, Tennessee, for the appellant, Chad Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Chad Rogers, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance at the sentencing phase of his trial by not investigating and presenting evidence of his mental illness as a mitigating factor. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/rogersc_060711.pdf

STATE OF TENNESSEE v. JUNIOR P. SAMUEL

Court: TCCA

Attorneys:

Dan R. Alexander, Nashville, Tennessee, for the appellant, Junior P. Samuel.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Sharon Reddick and Katrin Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court Jury found the appellant, Junior P. Samuel, guilty of five counts of rape and one count of sexual battery by an authority figure. The trial court imposed a total effective sentence of thirty-two years in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for review: (1) whether the trial court erred in denying the appellant's motion for judgments of acquittal because of the State's failure to establish venue; (2) whether the trial court erred in admitting a medical report containing statements the victim made to Phyllis Lynn Thompson in violation of the Confrontation Clause and the rule prohibiting hearsay statements; (3) whether the trial court erred in imposing consecutive sentencing; and (4) whether the cumulative errors at trial denied the appellant due process. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/samuelj_060711.pdf

STATE OF TENNESSEE v. RANDY K. SANDERS

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for appellant, Randy K. Sanders.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kelly A. Lawrence, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Randy K. Sanders, entered a plea of guilty to driving under the influence, first offense, a Class A misdemeanor, on July 2, 2010. The trial court sentenced him to eleven months, twenty-nine days in the county jail and suspended all but 120 days of the sentence. On appeal, the defendant argues that the trial court relied on an inappropriate enhancement factor in determining the period of confinement. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/sandersr_060711.pdf

IN RE: SUZANNE SHACKELFORD QUEEN, BPR 017527

Court: TSC-Disciplinary_Order

Judge: WADE

Reinstatement

http://www.tba2.org/tba_files/TSC/2011/queens_060711.pdf

TODAY'S NEWS

Legal News
Convention 2011
Politics
Career Opportunities
Disciplinary Actions
Court of the Judiciary
TBA Member Services

Legal News

Bibb honored for Civil War battlefield preservation

Nashville lawyer Julian Bibb has been awarded the Shelby Foote Preservation Legacy Award from the Civil War Trust for exceptional merit in Civil War battlefield preservation. For the last seven years, Bibb has led a team of attorneys and staff at Stites & Harbison PLLC, to acquire and preserve valuable battlefield acreage in Franklin and Middle Tennessee. During that time, the firm has donated over $1 million in pro bono services. Fellow attorney Miranda Christy, with staff support from Stacey Watson, Frances Regan and Christina Willow, have provided the bulk of the support. The firm has also provided services to support and maintain Franklin's Charge, an organization that works to preserve and restore the Battle of Franklin battlefield.

Court to look at paternity fraud case

The Tennessee Supreme court has agreed to hear a case that could decide whether a man has legal grounds to sue for being duped into supporting a child that turns out to be fathered by someone else. Legal experts believe it may be the first time for the state's highest court to decide whether paternity fraud is grounds to sue.

Tri-Cities.com reported this AP story

Legal Aid lawyer Smith honored by ARC

The ARC of Anderson County -- a United Way agency -- recently honored Theresa-Vay Smith as one of four recipients of its 2011 Dove Award. Smith is an attorney with the Oak Ridge office of the Legal Aid Society of Middle Tennessee and the Cumberlands. The annual award recognizes individuals in the community who have gone above and beyond in their assistance to children or adults with cognitive or developmental disabilities.

Learn more

CBA to explain procedures to defendants every week

The Chattanooga Bar Association and Southeast Tennessee Legal Services kicked off a public education outreach yesterday for defendants in Sessions Court civil cases. CBA President Ira Long said the bar plans to have staff at the second floor of the courthouse outside Sessions Court each Monday at 11 a.m. to help explain procedures to defendants and their options.

The Times Free Press reports

Verrilli confirmed solicitor general

The U.S. Senate on Monday voted to confirm White House deputy counsel Donald Verrilli to be solicitor general of the United States. Verrilli was confirmed by a vote of 72-16. He will replace Neal Katyal who has been acting solicitor general since May 2010, when President Barack Obama nominated former Solicitor General Elena Kagan to the Supreme Court.

WREG carried this Reuters story

Shelbyville sheriff gets bad news, then good

The state Supreme Court denied Shelbyville Sheriff Randall Boyce's request to hear his case last week, but when Gov. Bill Haslam last Wednesday signed Senate Bill 1658, it made the legal issue moot. In short -- Boyce is still sheriff and will be eligible to run for office again.

The Shelbyville Times-Gazette tells the story

New law hopes to stop human trafficking

Gov. Bill Haslam signed legislation today that aims to stop human trafficking in Tennessee. The law will require certain businesses to post a sign with information regarding the national human trafficking resource center hotline.

The City Paper has more

Convention 2011

Sign up now for the Tennessee Bar Association's 130th Annual Convention and save $50. The registration fee goes up after June 8 for the meeting you don't want to miss, June 15-18 in Chattanooga.

Get more details and register for the convention here

Politics

Forrester elected to DNC executive committee

Chip Forrester, the chairman of the Tennessee Democratic Party, accepted a larger role in the national Democratic Party Friday with his election to the Democratic National Committee's Executive Committee. The committee is the policy-making arm and governing body of the national party.

NashvillePost.com reported the news

Career Opportunities

Commercial real estate lawyers needed

Special Counsel Inc. is seeking several commercial real estate attorneys for a Nashville firm that is growing its real estate group and exploring alternative staffing models. Candidates must have several years of commercial real estate acquisition and/or leasing experience to be considered. Representation of health care, telecom or retail clients is also a plus. Qualified candidates should submit resumes to nashville@specialcounsel.com.