TBA Today

Wednesday, June 15, 2011

Search our Database for Opinions and News Items

Haslam tells judges he still supports merit selection

Tennessee Governor Bill Haslam today told lawyers and judges attending the Tennessee Judicial Conference that he continues to favor merit selection and retention elections for judges, but perhaps the constitution "needs some clarification" when it comes to the election issue. Haslam also reiterated his support for the present method of selecting the Attorney General by the court. Haslam said that the Judicial Nominating Commission was working well thus far, and he is extremely pleased with the nominees he has seen in his first five months. Haslam spoke this morning at the annual meeting of the conference taking place in conjunction with the Tennessee Bar Association Annual Convention in Chattanooga.

Tri-Cities.com has more from Haslam's speech

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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
00 - TN Court of Appeals
04 - 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.

EVELYN NYE v. BAYER CROPSCIENCE, INC., ET AL.
CORRECTION

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

CORRECTIONS:
--Page 12, the second full paragraph beginning, "The plans of reorganization..." and footnote 13 are deleted;
--Page 14, first line, a comma is inserted after the word "reorganization";
--Page 14, footnote 14, line 3, a comma is inserted after the word "thus";
--Page 19, line 5, a comma is inserted after the word "combustible";
--Page numbering has changed due to the corrections.

SUMMARY:
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/nye_correx_061511.pdf

STATE OF TENNESSEE v. DAVID LYNN SISK

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Renee W. Turner, Senior Counsel; James B. Dunn, District Attorney General; and Joe Crumley and Brownlow Marsh, Assistant District Attorneys General, for the appellant, the State of Tennessee.

Wesley D. Stone, Knoxville, Tennessee (on appeal) and Brad Davidson, Newport, Tennessee (at trial), for the appellee, David Lynn Sisk.

Judge: WADE

The defendant was convicted at trial of three offenses: aggravated burglary; theft of $10,000 or more but less than $60,000; and theft of $1,000 or more but less than $10,000. The trial court classified the defendant as a career offender, imposed sentences of fifteen, fifteen, and twelve years respectively, and ordered the twelve-year sentence to be served consecutively, for an effective sentence of twenty-seven years. On appeal, the Court of Criminal Appeals determined as follows: (1) that the conviction for theft of $1,000 or more but less than $10,000 violated the prohibition against double jeopardy; (2) that, if properly convicted of the remaining offenses, the defendant qualified as a persistent rather than a career offender; and (3) that, in any event, the evidence was insufficient to support the convictions for aggravated burglary and theft of $10,000 or more but less than $60,000. While conceding that the Court of Criminal Appeals had properly set aside the lesser theft conviction and, in consequence, correctly determined that the defendant qualified as a persistent rather than a career offender, the State applied for permission to appeal, arguing that the other two convictions should be reinstated. This Court, applying the standard of review established in State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011), holds that the evidence presented at trial warrants reinstatement of the convictions. The judgment of the Court of Criminal Appeals is, therefore, affirmed in part and reversed in part, and the case is remanded for resentencing in light of this opinion.

http://www.tba2.org/tba_files/TSC/2011/siskd_061511.pdf

DARRELL LAMAR FRITTS v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Darrell Lamar Fritts, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and David H. Findley, Senior Counsel, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Darrell Lamar Fritts, appeals as of right from the Johnson County Criminal Court's summary dismissal of his petition for a writ of habeas corpus challenging his sentences for two counts of burglary. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/frittsd_061511.pdf

MICHAEL WAYNE HOWELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Amy Dawn Harwell, Kelley Henry, and Paul Bottei, Nashville, Tennessee, for the appellant, Michael Wayne Howell.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory and James Gaylord, Assistant Attorneys General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Susan L. Kay, Nashville, Tennessee, and Lawrence J. Fox, Philadelphia, Pennsylvania, for the Amicus Curiae, Professors and Practitioners of Legal Ethics and Professional Responsibility.

Judge: WOODALL

Petitioner, Michael Wayne Howell, was convicted of felony murder and sentenced to death. Petitioner's conviction and sentence were affirmed on direct appeal. See State v. Howell, 868 S.W.2d 238 (Tenn. 1993). After his petition for post- conviction relief was denied, Petitioner sought to reopen post-conviction relief proceedings maintaining that he was mentally retarded (hereinafter "intellectually disabled" or "having intellectual disability" or other proper designation in light of statutory amendments in 2010) and thus ineligible to be sentenced to death. Following an evidentiary hearing, the post-conviction court denied Petitioner relief, and Petitioner appealed. Following a thorough review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/howellm_061511.pdf

STATE OF TENNESSEE v. JEFFREY SCOTT

Court: TCCA

Attorneys:

Leslie I. Ballin (at trial and on appeal), Blake D. Ballin (at trial and on appeal) and Richard S. Townley (on appeal) for the appellant, Jeffrey Scott.

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

Judge: MCLIN

A Shelby County jury convicted the defendant, Jeffrey Scott, of second degree murder. The trial court sentenced him as a Range I, violent offender to twenty-five years in the Tennessee Department of Correction. On appeal, the defendant presents nine issues for our review: (1) whether the trial court erred by admitting evidence of prior bad acts that were relevant only to show propensity; (2) whether the trial court erred by admitting hearsay statements under the state of mind and excited utterance exceptions; (3) whether the trial court erred by admitting fifty color autopsy photographs; (4) whether the trial court erred by allowing improper lay opinion testimony; (5) whether the trial court erred by allowing testimony that was protected by the attorney-client privilege and that violated the defendant's right to confrontation; (6) whether the trial court erred by denying the defendant's motions for mistrial or to strike a witness's testimony; (7) whether the evidence was sufficient to sustain the conviction for second degree murder; (8) whether the sequential jury instructions precluded the jury from considering a conviction for voluntary manslaughter; and (9) whether the trial court misapplied enhancement and mitigation factors in sentencing. Following our review of the record, the parties' briefs, and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/scottj_061511.pdf

RANDALL TURNER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Randall Turner, appellant, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Renee W. Turner, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals, the State of Tennessee moves the court to summarily affirm the Hamilton County Criminal Court's summary dismissal of the petitioner's 2010 "Motion to Vacate Convictions." In the motion, the petitioner, Randall Turner, challenged his 2001 guilty-pleaded convictions of aggravated kidnapping, aggravated robbery, and first degree murder that culminated in an effective sentence of life without the possibility of parole. Because the "Motion to Vacate Convictions" appears in substance to be a proceeding brought pursuant to the Post-Conviction Procedure Act and because the Act requires such a proceeding to be brought within one year of the final action in the proceeding, the petitioner's motion is untimely by several years. Accordingly, we grant the State's Rule 20 motion and affirm the order of the criminal court.

http://www.tba2.org/tba_files/TCCA/2011/turnerr_061511.pdf

TODAY'S NEWS

Legal News
Convention 2011
Career Opportunities
TBA Member Services

Legal News

Nashville officer indicted on drug charges

A federal grand jury today indicted a Nashville police officer on charges that he attempted to distribute cocaine and accepted $24,500 in cash payments from suspected drug traffickers. According to the U.S. Attorney's Office in Nashville, the indictments also included charges against two men from Murfreesboro and Nashville, respectively, on charges of attempting to distribute cocaine and money laundering.