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Friday, July 01, 2011

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Arnold, Spitzer named to Judicial Nominating Commission

Tennessee House Speaker Beth Harwell has appointed Dyersburg attorney Leo Arnold and Hohenwald attorney Michael Spitzer to the Tennessee Judicial Nominating Commission. Arnold practices law with Ashley, Ashley & Arnold. He received his law degree from the University of Memphis's Cecil C. Humphreys School of Law in 1981. Spitzer is in private practice and also received his law degree from Memphis in 1981.

The News Sentinel's Tom Humphrey 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.

ANTHONY BRUCE COLSTON v. MELINDA KAY COLSTON

Court: TCA

Attorneys:

Gary Michael Williams, Hendersonville, Tennessee, for the appellant, Anthony Bruce Colston.

Mark Thomas Smith, Gallatin, Tennessee, for the appellee, Melinda Kay Colston.

Judge: DINKINS

In this post-divorce proceeding, Husband appeals the trial court's order requiring him to pay an alimony arrearage of $86,000.00. We affirm the judgment for the arrearage and remand the case for reconsideration of the requirement that Husband pay the arrearage at $1,500.00 per month.

http://www.tba2.org/tba_files/TCA/2011/colstona_070111.pdf

LINDA EPPS v. CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, AND THE METROPOLITAN ACTION COMMISSION

Court: TCA

Attorneys:

Michelle Blaylock Owens and Mark Milton Brooks, Nashville, Tennessee, for the appellant, Linda Epps.

J. Brooks Fox, Christopher Michael Lackey, and Elizabeth Anne Sanders, Nashville, Tennessee, for the appellee, Civil Service Commission of the Metropolitan Government of Nashville and Davidson County and the Metropolitan Action Commission.

Judge: DINKINS

This appeal arises out of a dismissal of a petition for writ of certiorari in which review was sought of the denial of a grievance filed by an employee of the Metropolitan Action Commission's Head Start program. The grievance was initially denied by the Executive Director of the Metropolitan Action Commission. The employee then appealed the grievance to the Metropolitan Civil Service Commission, which assigned the appeal to an administrative law judge; after a hearing, the administrative law judge denied the grievance. Upon further appeal, the Civil Service Commission overturned the administrative law judge's decision and held in favor of the employee; the Civil Service Commission transmitted its decision to the Board of Commissioners of the Metropolitan Action Commission as a recommended final order. The Board of Commissioners rejected the recommended decision and voted to deny the grievance. When the employee sought to appeal the Board of Commissioner's decision to the Civil Service Commission, that Commission responded that it had no further authority to hear the appeal because the employee was not an employee in classified service and because the Metropolitan Action Commission had final authority on grievance decisions involving employees of the Head Start program. The employee then sought review by writ of certiorari in chancery court, which found that the employee was not a civil service employee and was, therefore, not entitled to a second appeal to the Civil Service Commission; the court also found that the Metropolitan Action Commission had conformed to the applicable grievance process. On appeal, the employee asserts that she was employed in a civil service position and entitled to the grievance process set forth in the civil service rules. Finding that the grievance procedure applicable to employees in the classified service is not applicable to the employee and that the Action Commission properly exercised final authority on the grievance, we affirm the action of the trial court.

http://www.tba2.org/tba_files/TCA/2011/eppsl_070111.pdf

JOHN L. HOUSTON V. RHEY HOUSTON, ET AL.

Court: TCA

Attorneys:

J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, John L. Houston.

Jarred Shannon Garrison, Dayton, Tennessee, for the appellees, Rhey Houston and Pauline H. Brown.

Judge: SUSANO

The order of the trial court entered November 29, 2010, from which the appellant John L. Houston seeks to appeal, is not a final order. Accordingly, the appellant's appeal is hereby dismissed.

http://www.tba2.org/tba_files/TCA/2011/houstonj_070111.pdf

MARLA H., individually and as next best friend to her daughter MORIAH F. H. v. KNOX COUNTY, ET AL.

Court: TCA

Attorneys:

Lisa Belle Hatfield, Knoxville, Tennessee, for the appellant, City of Knoxville.

M. Christopher Coffey, Knoxville, Tennessee, for the appellees.

Judge: FARMER

This is an action for negligent infliction of emotional distress. The mother of a middle school student filed suit against Knox County, the Knox County Board of Education, and the City of Knoxville after her daughter viewed graphic photographs of her dead father during a presentation on the dangers of drunk driving. The trial court found the City of Knoxville liable for the student's emotional injuries because the school resource officer who distributed the photographs intended to evoke an emotional response. We conclude it was generally foreseeable that providing graphic accident scene photographs to seventh grade students could cause serious or severe emotional harm in a student related to a victim depicted therein. Thus, the school resource officer owed a duty to exercise reasonable care when displaying the photographs to a class that potentially included students related to the victims. The evidence, however, preponderates against the trial court's finding that the school resource officer failed to exercise reasonable care. We reverse the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2011/marlah_070111.pdf

ANGELIA LYNETTE MAUPIN V. PAUL WAYNE MAUPIN

Court: TCA

Attorneys:

David L. Leonard, Greeneville, Tennessee, for the appellant, Angelia Lynette Maupin.

Roger Woolsey, Greeneville, Tennessee, for the appellee, Paul Wayne Maupin.

Judge: SUSANO

The order of the trial court entered February 16, 2011, from which the appellant Angelia Lynette Maupin seeks to appeal, is not a final order. Accordingly, the appellant's appeal is hereby dismissed.

http://www.tba2.org/tba_files/TCA/2011/maupina_070111.pdf

DANA MOULTON, et al., v. DELORES MOULTON, et al.
CORRECTION: On page 1, the name of the trial court judge has been changed from Larry Wallace to George C. Sexton

Court: TCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, and Dan W. Cook, Ashland City, Tennessee, for the appellants, Dana Moulton and Jamie Moulton.

Richard E. Spicer, Nashville, Tennessee, for the appellee, Delores Moulton.

Judge: FRANKS

In this action plaintiff alleged she was injured when the roof on the deck at defendant's house fell upon her, causing injuries. Defendant denied any responsibility for plaintiff's injuries and moved for summary judgment. The Trial Court, in sustaining the summary judgment motion, held that none of the parties knew of any defect in the patio roof, and there was no evidence in the record of what actually caused the collapse of the roof. The defendant possessed no constructive notice of any defective condition causing the collapse. Plaintiffs have appealed and we affirm the judgment of the Trial Court and remand.

http://www.tba2.org/tba_files/TCA/2011/moulton_CORR_070111.pdf

STATE OF TENNESSEE V. KENNETH E. RAMSEY

Court: TCA

Attorneys:

Kenneth E. Ramsey, Chattanooga, Tennessee, appellant, pro se.

Cameron Williams, Assistant District Attorney General, Chattanooga, Tennessee, for the appellee, State of Tennessee.

Judge: SUSANO

The order of the trial court entered February 9, 2011, from which the appellant Kenneth E. Ramsey seeks to appeal, is not a final order. Accordingly, the appellant's appeal is hereby dismissed.

http://www.tba2.org/tba_files/TCA/2011/ramseyk_070111.pdf

ROBERT STABLER V. RAMIE STABLER-MARSTON

Court: TCA

Attorneys:

Ramie Stabler-Marston, Hampton, New Hampshire, appellant, pro se.

Robert Stabler, Knoxville, Tennessee, appellee, pro se.

Judge: SUSANO

The order from which the appellant Ramie Stabler-Marston seeks to appeal was entered on February 24, 2010. Notices of appeal were filed by the appellant on October 18, 2010, and October 20, 2010. Because neither of the notices of appeal was timely filed, we have no jurisdiction to consider this appeal. Accordingly, this appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2011/stablerr_070111.pdf

SANTIAGO TOSCANI V. NADER RAHBE

Court: TCA

Attorneys:

Curtis L. Bowe, III, Chattanooga, Tennessee, for the appellant, Nader Rahbe.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellee, Santiago Toscani.

Judge: SUSANO

The order from which the appellant Nader Rahbe seeks to appeal was entered on Wednesday, January 5, 2011. A notice of appeal was filed by the appellant on Tuesday, February 8, 2011, the 34th day following the entry of the trial court's order. Because the notice of appeal was not timely filed, we have no jurisdiction to consider this appeal. Accordingly, the motion of the appellee to dismiss is granted. This appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2011/toscanis_070111.pdf

STATE OF TENNESSEE v. ELMI ADULAHI ABDI

Court: TCCA

Attorneys:

Ashley Preston (at trial and on appeal), and Jason Gichner (at trial), Nashville, Tennessee, for the appellant, Elmi Abdulahi Abdi.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Davidson County jury convicted the defendant, Elmi Adulahi Abdi, of attempted aggravated robbery, a Class C felony. The trial court sentenced him as a Range II, multiple offender to ten years in the Tennessee Department of Correction, consecutive to his sentence in Davidson County case number 2006-A-30. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction; (2) the trial court erred by admitting videotape evidence; and (3) the trial court erred by enhancing the defendant's sentence and ordering him to serve his sentence consecutive to case number 2006-A-30. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/adulahie_070111.pdf

STATE OF TENNESSEE v. ALVERTIS BOYD

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Dianne M. Thackery (at trial) and Phyllis Aluko (on appeal), Assistant Public Defenders, for the appellant, Alvertis Boyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Neal Oldham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a jury trial, the Defendant, Alvertis Boyd, was convicted of aggravated robbery, a Class B felony. The Defendant was sentenced as a repeat violent offender to life imprisonment without the possibility of parole. In this appeal as of right, the Defendant contends (1) that the evidence is insufficient to sustain his conviction; (2) that the trial court erred in admitting two prior convictions as impeachment evidence; and (3) that the trial court erred in sentencing him as a repeat violent offender. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/boyda_070111.pdf

STEVEN R. CHANCE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steven R. Chance, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner, Steven R. Chance, appeals the trial court's dismissal of his petition for habeas corpus relief. Upon a review of the record, we are persuaded that the habeas corpus court was correct that the Petitioner is not entitled to habeas corpus relief. This case meets the criteria for affirmance pursuant to Rule 20 of the 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/chances_070111.pdf

ALONZO FISHBACK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

L. Gilbert Anglin, Murfreesboro, Tennessee, for the appellant, Alonzo Fishback.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Alonzo Fishback, appeals the post-conviction court's denial of his petition for post-conviction relief from his convictions for especially aggravated kidnapping, aggravated assault, and possession of a weapon during the commission of an offense. He argues that he received the ineffective assistance of counsel at trial and on appeal. After review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/fishbacka_070111.pdf

JOHN W. FOSTER, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ashley Preston, Nashville, Tennessee, for the appellant, John W. Foster, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III; District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, John W. Foster, Jr., appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his conviction for aggravated robbery and resulting sentence of thirty years to be served at sixty percent before eligible for release. The petitioner contends that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/fosterj_070111.pdf

STATE OF TENNESSEE V. TERRY GUNTER

Court: TCCA

Attorneys:

James O. Martin, III, Nashville, Tennessee; Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant Public Defender, for the appellant, Terry Gunter.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Julie Canter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Terry Wayne Gunter, appeals the sentencing decision of the Sullivan County Criminal Court. The defendant pled guilty to Class E felony forgery and Class D felony identity theft. Pursuant to the agreement, he was to be sentenced to concurrent terms of one year and two years, respectively, with the manner of service to be determined by the trial court. Following a hearing, the court ordered that the sentences be served in confinement. On appeal, the defendant contends that the trial court erred in denying him an alternative sentence, specifically probation. Following review of the record, we find no error and affirm the sentences as imposed.

http://www.tba2.org/tba_files/TCCA/2011/guntert_070111.pdf

ANDREW SOIMIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

A.F. Officer, Cookeville, Tennessee, for the appellant, Andrew Soimis.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; General; Randall A. York, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Andrew Soimis, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/soimisa_070111.pdf

DWANE WASHINGTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeremy W. Parham, Nashville, Tennessee, for the appellant, Dwane Washington.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Dwane Washington, appeals the post-conviction court's ruling that he failed to prove prejudice by clear and convincing evidence after his case was remanded for a determination of prejudice. The proper standard of review was whether the petitioner had shown that there was a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. After a careful review, we conclude that the post-conviction court used the wrong standard in requiring the petitioner to prove prejudice by clear and convincing evidence and that the record before us clearly establishes that there was a reasonable probability that, but for trial counsel's inaccurate assurances that the petitioner was eligible for boot camp, he would not have pled guilty and would have insisted on going to trial. We reverse the judgment of the post-conviction court, vacate the petitioner's judgment of conviction, and remand the case for a trial.

http://www.tba2.org/tba_files/TCCA/2011/washingtond_070111.pdf

STATE OF TENNESSEE v. STEVEN CRAIG WILCOX

Court: TCCA

Attorneys:

Norris A. Kessler, III, Winchester, Tennessee, for the appellant, Steven Craig Wilcox.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Charles Crawford, District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Steven Craig Wilcox, pled guilty to conspiracy to promote the manufacture of methamphetamine, a Class E felony, in exchange for a four-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence, ordering instead that the defendant serve his term in the Department of Correction. On appeal, the defendant argues that the trial court erred in imposing a sentence of confinement. After review, we affirm the sentencing decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/wilcoxs_070111.pdf

TODAY'S NEWS

Legal News
U.S. Supreme Court
Passages
Career Opportunities
Disciplinary Actions
TBA Member Services

Legal News

New laws in effect today include breastfeeding, shooting hogs

Today more than 150 new state laws go on the books from this year's legislative session. The City Paper looks at some of the more "unusual" ones, including one lifting the age of children who can be breastfed in public, and one deleting wild hogs from the definition of big game in game and fish statutes. Now licensed hunters can shoot pigs like rabbits. The Tennessean looks at a new measure that toughens tenure requirements for teachers and one that is billed as fighting terrorism but that Muslim residents worry has targeted them for unfounded suspicion. The Shelbyville Times-Gazette also has a round-up.

TBA closed for holiday

The Tennessee Bar Association will be closed Monday, July 4, for the Independence Day holiday.

Esquivel is new president of Conexion Americas

Nashville lawyer David Esquivel, with Bass Berry & Sims, is the new board president of Conexion Americas, a group "promoting the social, economic and civic advancement of Latino families in Middle Tennessee."

Prestwood finds love of law and music

While some lawyers are looking for back-up careers in this economy, Alison Prestwood became a lawyer as a backup to her music career. A session bass player in Nashville, Prestwood started seeing the bustle of Music Row begin to die down in the early 2000s. "My dad was a lawyer, and he loved his career so much," she says. Her father encouraged her to take the leap, and on her first day at Nashville School of Law, her 48th birthday, he died. But she went on to graduate first in her class and now works in Franklin at Puryear, Newman & Morton. Now, she says, she can play music just for the love of it, with the added promise of greater financial security that her law work will likely bring. "I get to live both lives fully," she says.

This story is part of WPLN's series called Transitioned

Judge sues Channel 5

Nashville General Sessions Judge Daniel B. Eisenstein filed suit against WTVF-Channel 5 Wednesday afternoon in Davidson County Circuit Court, claiming the station libeled and portrayed him in a false light. The suit lists the station's parent company, Landmark Media Enterprises, station manager Lyn Plantinga, news director Sandy Boonstra and reporter Phil Williams as defendants.

Learn the details from The City Paper

In-house counsel jobs especially hard to find

The Great Recession reshaped the legal profession, as law firms and corporate legal departments shed thousands of lawyers to contain costs. Everyone expected these jobs would return once the economy bounced back, but that hasn't happened just yet. The legal industry, like nearly every employer, has learned to do more with less, and in-house lawyers have especially felt the pinch. A group of unemployed in-house lawyers in Chicago get together to talk twice a month, calling themselves the "Senior In-House Counsel In Transition." They all used to work for corporate law departments, each has more than 15 years of experience, and some have been jobless for nearly two years and counting. "A lot of employers don't want to take someone with my years of experience," Susan Hallsby, 50, said.

Read the story in the Chicago Tribune

Death penalty no longer an option in Illinois

A ban on capital punishment that Illinois Gov. Pat Quinn signed into law in March took effect today, effectively ending the practice in that state.

The Jackson Sun has this AP story

U.S. Supreme Court

Editorial: Line between justices and politics is blurred

In an editorial, The New York Times says U.S. Supreme Court justices should be more accountable to the code of conduct and should not "behave like politicians," citing justices' appearances at political events and the many rulings with a split along ideological lines. "These and other decisions raise the question of whether there is still a line between the court and politics, an issue since the Republican-led Rehnquist court decided Bush v. Gore in 2000," the paper writes.

Read the editorial

Passages

Visitation today for Jackson lawyer George Morrison

Jackson lawyer George L. Morrison III died June 30. He was 56. He was a graduate of Vanderbilt University and Memphis State University Cecil C. Humphreys School of Law. Visitation will be from 4 p.m. until 7 p.m. today (Friday), at George A. Smith and Sons North Chapel. Funeral services will be at 10 a.m. on July 2 at St. Mary's Catholic Church, with Interment to follow in Ridgecrest Cemetery. In lieu of flowers, the family requests memorials to be directed to Youth Town, Hospice of West Tennessee, or any other charitable organization.

The Jackson Sun has his obituary

Career Opportunities

Corporate lawyer needed in Chattanooga

Miller & Martin PLLC is seeking a corporate associate in its Chattanooga office. Applicants should have three to five years experience in corporate acquisitions and private equity transactions. To apply, email a cover letter and resume to gmitch@millermartin.com or call (423) 785-8227 for further details.

Learn more on Joblink

Disciplinary Actions

Memphis lawyer reinstated

Memphis lawyer Vanessa Keeler was reinstated to the practice of law on June 30 after complying with IOLTA requirements and paying associated penalties. She was suspended for not submitting a 2010 IOLTA form. No action was required by the Supreme Court for her reinstatement.

Nashville lawyer suspended

On June 29, the Tennessee Supreme Court suspended Nashville lawyer Jerry L. Maynard II for 18 months retroactive to Jan. 25, 2010, the date of his temporary suspension from the practice of law. Maynard was suspended for noncompliance with continuing legal education in 2006; however, he continued to work while suspended as General Counsel for a health care provider until 2009. His actions violate Rules of Professional Conduct 5.5(a), Unauthorized Practice of Law; 8.1(b), Bar Admission and Disciplinary Matters; and 8.4(g), Misconduct.