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Wednesday, July 20, 2011

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Haslam names new Knox criminal court judge

Gov. Bill Haslam today announced the appointment of Steven Sword as Knox County Criminal Court judge. Sword fills a vacancy created by the resignation of Judge Richard Baumgartner in March. For the past 15 years, Sword has served as an assistant district attorney in the county and as a judge advocate general in the U.S. Army Reserves. He is co-chair of the Knoxville Bar Association's Criminal Justice Section and former co-chair of its Committee for the Unmet Legal Needs for Children. Sword earned his law degree from the University of Tennessee College of Law.

The News Sentinel 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
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - 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.

KNOX COUNTY EX REL. ENVIRONMENTAL TERMITE & PEST CONTROL, INC. v. ARROW EXTERMINATORS, INC. ET AL.

Court: TSC

Attorneys:

Joseph G. Jarret, Knox County Law Director; Daniel A. Sanders, Deputy Law Director, Knoxville, Tennessee, for the appellant, Knox County, Tennessee.

David S. Wigler, Knoxville, Tennessee, for the appellee, Environmental Termite and Pest Control, Inc.

Judge: KOCH

This appeal involves a claim under Tennessee's False Claims Act. A local vendor of termite control services became suspicious that two of its competitors had overbilled Knox County for termite control services provided to Knox County's public schools. After confirming its suspicions by obtaining and reviewing public records and by hiring an attorney and private investigator, the vendor presented a detailed report of its findings to county officials who were unaware that the overbilling had occurred. When the County delayed taking remedial action, the vendor filed a qui tam suit authorized by Tenn. Code Ann. section 4-18-104(c) (2005) in the Chancery Court for Knox County. The County joined the vendor's lawsuit and eventually settled with both of the companies named as defendants in the vendor's lawsuit. When the qui tam plaintiff sought a share of the County's settlement with one of the defendants, the County asserted that the qui tam plaintiff was not eligible to receive any of the settlement proceeds. The trial court heard the matter without a jury and held that the qui tam plaintiff was an "original source" for the purpose of Tenn. Code Ann. section 4-18-104(d)(3)(A) and, therefore, was entitled to receive 28% of the settlement proceeds or $71,546.46. The Court of Appeals affirmed the trial court's conclusion that the qui tam plaintiff was entitled to recover 28% of the value of the settlement proceeds but remanded the case for the purpose of redetermining the value of the settlement proceeds. In re Knox Cnty., Tenn. ex rel. Envtl. Termite & Pest Control, Inc., No. E2007-02827-COA-R3-CV, 2009 WL 2144478 (Tenn. Ct. App. July 20, 2009). The County filed a Tenn. R. App. P. 11 application on the sole issue of whether the qui tam plaintiff is eligible to recover a portion of the settlement proceeds. We affirm the decisions of both the trial court and the Court of Appeals that the qui tam plaintiff is an "original source" and, therefore, is eligible to receive a portion of the proceeds from the County's settlement with one of the vendors.

http://www.tba2.org/tba_files/TSC/2011/knoxcounty_072011.pdf

JACQUELINE MORRIS v. JACKSON CLINIC PROFESSIONAL ASSOCIATION

Court: TWCA

Attorneys:

P. Allen Phillips, Jackson, Tennessee, for the appellant, Jackson Clinic Professional Association.

George L. Morrison, III, and Spencer R. Barnes, Jackson, Tennessee, for the appellee, Jacqueline Morris.

Judge: MALOAN

In this workers' compensation action, the employee sustained a compensable injury to her shoulder. Her initial treating physician assigned a 9% impairment to the body as a whole. After additional surgery, her subsequent treating physician assigned a 6% impairment to the body as a whole. An evaluating physician assigned a 17% impairment. The trial court chose the evaluating physician's impairment, and awarded the employee 25.5% permanent partial disability ("PPD") to the body as a whole. The employer has appealed, arguing that the evaluating physician's rating did not comply with the AMA Guides and that the award therefore is excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/morrisj_071911.pdf

KENNETH CARPENTER, v. DAVID METLER, et al.
Opinion withdrawn on May 16, 2011

Court: TCA

Attorneys:

Russell L. Egli, Knoxville, Tennessee, for the appellant, Kenneth Carpenter.

Matthew Joshua Evans, Knoxville, Tennessee, for the appellees, David Metler, State Farm Insurance and Cortese Tree Specialist, Inc.

Judge: FRANKS

On the court's own motion, the judgment filed on May 12, 2011, is hereby vacated and the accompanying opinion, also filed on May 12, 2001, is withdrawn.

http://www.tba2.org/tba_files/TCA/2011/carpenterk_051211.pdf

CHELSEY D. CREWS v. JESSIE C. STAGGS

Court: TCA

Attorneys:

S. Jason Whatley, Columbia, Tennessee, for the appellant, Chelsey D. Crews.

Robert D. Massey, Pulaski, Tennessee, for the appellee, Jessie C. Staggs.

Judge: DINKINS

Primary residential parent appeals determination that the parties rotate the federal tax exemption for their minor child on a yearly basis. At the time the determination was made, the trial court had not determined the amount of child support to be paid by the alternate residential parent in accordance with the child support guidelines. We reverse the decision and remand for reconsideration of the award of the exemption.

http://www.tba2.org/tba_files/TCA/2011/crewsc_072011.pdf

STATE OF TENNESSEE v. CANDANCE ORRAND BUSH and GARY W. BUSH

Court: TCCA

Attorneys:

John H. Norton, III and Liberti Anne Snider, Shelbyville, Tennessee, for the appellant, Candance Orrand Bush.

John Galloway Mitchell, Jr. and John Galloway Mitchell, III, Murfreesboro, Tennessee, for the appellant, Gary Bush.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a jury trial, the Defendants, Candance Orrand Bush and Gary W. Bush, were convicted of first-degree murder, a Class X felony, for the 1982 killing of Lynn Orrand. See Tenn. Code Ann. section 39-2-202 (1982). Both Defendants were sentenced to imprisonment for life. In this appeal as of right, the Defendants raise the following issues: (1) Defendant Orrand contends that the trial court erred in failing to disqualify District Attorney General William C. Whitesell, Jr. and his office from prosecuting this case; (2) Defendant Bush contends that the trial court erred by admitting into evidence a tape recording of a phone call between Defendant Bush and Jason Riley; (3) both Defendants contend that the evidence was insufficient to sustain their convictions because it was based upon the uncorroborated testimony of an accomplice, Kevin Patterson; and (4) Defendant Bush contends that the trial court erred by failing to select the alternate jurors "in plain view." Following our review, we conclude that these issues have no merit and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/bushc_072011.pdf

STATE OF TENNESSEE v. PAUL EDWARD CORSO, JR.

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Paul Edward Corso, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Renee Erb and Dina Shabayek, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Paul Edward Corso, Jr., was convicted by a Davidson County Criminal Court jury of felony murder; second degree murder, a Class A felony; aggravated robbery, a Class B felony; and theft of property over $10,000 but less than $60,000, a Class C felony. See T.C.A. sections 39-13-202, 39-13-210, 39-13-402, 39-14-103 (2010). The trial court merged the convictions for felony murder and second degree murder and sentenced the Defendant to life for felony murder, to eight years' incarceration for aggravated robbery, and to two years' incarceration for theft, to be served concurrently. On appeal, he contends that the evidence was insufficient to support his convictions and that the trial court erred by denying his motion for a mistrial after the State asked his wife during cross-examination how often she visited the Defendant in jail. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/corsop_072011.pdf

STATE OF TENNESSEE v. TIMOTHY L. DIGGS, SR.

Court: TCCA

Attorneys:

Gregory D. Smith (on appeal), Roger Eric Nell, District Public Defender (at trial), and Charles Bloodworth, Assistant Public Defender, (at trial), Clarksville, Tennessee, for the appellant, Timothy L. Diggs, Sr.

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

Judge: MCLIN

The defendant, Timothy L. Diggs, Sr., stands convicted of aggravated child abuse of a child under eight years old, a Class A felony, and felony murder. The trial court sentenced him as a violent offender to serve fifteen years for aggravated child abuse concurrently with a life sentence for felony murder in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence to support his convictions. Following our review, we affirm the judgments of the trial court, but we remand for a corrected judgment form for the felony murder conviction to properly reflect the defendant's life sentence.

http://www.tba2.org/tba_files/TCCA/2011/diggst_072011.pdf

STATE OF TENNESSEE v. JAMES EDWARD FARRAR, JR.
CORRECTION clarifies that the separate opinion filed by Tipton is both concurring and dissenting

Court: TCCA

Attorneys:

John H. Norton, III, Shelbyville, Tennessee, for the appellant, James Edward Farrar, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Chuck Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, James Edward Farrar, Jr., appealed the Bedford County Circuit Court's revocation of his probation. This court reversed the trial court's revocation, concluding that the State failed to establish a violation of probation by a preponderance of the evidence and that the trial court abused its discretion by revoking probation. See State v. James Edward Farrar, Jr., No. M2009-01285-CCA-R3-CD, slip op. 6 (Tenn. Crim. App., Nashville, Sept. 10, 2010). The State filed an application for permission to appeal to our supreme court. On April 14, 2011, the supreme court granted the State's application and remanded the case to this court for reconsideration in light of the supreme court's recent decision in State v. Teddy Ray Mitchell, ___ S.W.3d ___, No. E2008-02672-SC-R11-CD (Tenn. Mar. 21, 2011). We have reconsidered our prior opinion in light of Teddy Ray Mitchell, and following our review, we affirm the judgment of the trial court, although we reject part of that court's rationale for the revocation.

http://www.tba2.org/tba_files/TCCA/2011/farrarj_CORR_072011.pdf

TIPTON concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCCA/2011/farrarj_CON_CORR_072011.pdf

STATE OF TENNESSEE v. MARTHA PATLAN

Court: TCCA

Attorneys:

Paula Ogle Blair (on appeal), and Paul Walwyn, Ross Alderman, District Public Defender, and Amy Harwell, Assistant Public Defender, Nashville, Tennessee, for the appellant, Martha Patlan.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Miller and Brian Holmgren, Assistant District Attorneys General, for the appellant, State of Tennessee.

Judge: MCLIN

This case is before this court upon the Tennessee Supreme Court's remand for further consideration in light of its opinion in State v. Dorantes (Dorantes II), 331 S.W.3d 370 (Tenn. 2011). A Davidson County jury convicted the defendant, Martha Patlan, of aggravated child abuse, a Class A felony, and first degree felony murder during the perpetration of aggravated child abuse. The trial court sentenced the defendant to a mandatory sentence of life imprisonment for the murder conviction and, consecutive to the life sentence, twenty years for the aggravated child abuse conviction both to be served in the Tennessee Department of Correction. On appeal, the defendant argued that (1) the evidence was insufficient to convict her of aggravated child abuse and felony murder; (2) her felony murder conviction is unconstitutional; (3) the trial court erred when it failed to require the state to elect an incident of neglect; (4) the trial court erred when it refused to allow testimony regarding bruises on the defendant's face; (5) the trial court erred when it allowed certain photographs into evidence; (6) the trial court erred in overruling the defendant's objection to the use of the term Battered Child Syndrome; and (7) the trial court erred by ordering that the defendant serve her sentences consecutively. This court affirmed the defendant's convictions and sentences. Upon review, we again conclude that the evidence was sufficient to support the defendant's convictions and that the defendant's sentence is proper. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/patlanm_072011.pdf

STATE OF TENNESSEE v. BENJAMIN WHEELER WORD

Court: TCCA

Attorneys:

William L. Moore, Gallatin, Tennessee, for the appellant, Benjamin Wheeler Word.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Randall A. York, District Attorney General; and Beth Elana Willis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Benjamin Wheeler Word, pleaded guilty to underage consumption. The trial court sentenced him to serve eleven months and twenty-nine days in jail but suspended the petitioner's sentence to probation. The petitioner filed a petition for post conviction relief, which the post-conviction court denied. The petitioner appeals the denial of post-conviction relief arguing that (1) his conviction is unconstitutional; (2) the conduct with which he was charged was not an offense; (3) his conviction is void because it denied him expungement of his record; and (4) his sentence violated the jurisdictional limits of the court. After a thorough review of the parties' briefs, the record, and the applicable law, we reverse the judgment of the post- conviction court and grant post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2011/wordb_072011.pdf

TODAY'S NEWS

Legal News
Congressional News
Clarification
TBA Member Services

Legal News

U.S. Attorney announces personnel changes

William C. "Bill" Killian, U.S. Attorney for the Eastern District of Tennessee, has announced key personnel in the agency's four offices. They are: First Assistant U.S. Attorney Nancy Stallard Harr, Executive Assistant U.S. Attorney Gregg L. Sullivan, Criminal Division Chief Steven Hollingshead-Cook, Civil Division Chief Suzanne Hefner Bauknight, Deputy Criminal Chief David Jennings, and White Collar Crime Supervisor Charles E. Atchley Jr. in Knoxville; Robert M. Reeves, supervising attorney for the Greeneville and Johnson City offices; and Supervising Attorney Scott A. Winne and Staff Supervisor M. Kent Anderson in the Chattanooga office.

Learn more about these individuals at Chattanoogan.com

Nashville law director to retire

Metro Law Director Sue Cain, Nashville's top attorney, has plans to retire in October. Cain has been in the position throughout Mayor Karl Dean's first term and was his top deputy when Dean was law director. She has practiced law with the city for more than 17 years. Under the Metro Charter, the law director must be a member of the Tennessee bar and a resident of Nashville for at least five years.

The Tennessean's In Session blog has the news

Knoxville attorney charged with tax evasion

Knoxville attorney John O. Threadgill has been charged with evading more than $1.4 million in income taxes from 1986 to 2004. The charges come on the heels of a 2010 indictment alleging Threadgill stole more than $60,000 from clients and a 2004 accusation that he misappropriated client money. The new charges allege that Threadgill hid his personal income by using law firm accounts to pay for personal expenditures, including his daughter's wedding, country club expenses, travel and real estate. A Sept. 21 trial date has been set in the case. Threadgill, who says he is "too broke to hire an attorney," will be represented by a public defender.

The News Sentinel has the story

UT Law names new faculty

The University of Tennessee College of Law recently announced the addition of two new faculty members: Scott Childs and Valorie Vojdik. Childs is the new associate dean for library and technology services. He previously served as the deputy director of the law library at the University of North Carolina at Chapel Hill and in various positions with Louisiana State University Law Center and Cornell Law School. Vojdik is the college's new director of clinical programs. She previously served as deputy director of clinical programs and associate dean for faculty research and development at West Virginia University. Before entering academia she practiced for eight years as a civil litigator at Shearman and Sterling.

Judge refuses to block practice monitors

In a ruling released Tuesday, U.S. District Judge Tom Varlan said the court cannot grant Knoxville lawyer Herbert S. Moncier's request that he not have to pay high-dollar fees for practice monitors arranged by the Board of Professional Responsibility (BPR). In his ruling, Varlan cited the 11th amendment of the U.S. Constitution as limiting his power to mingle in state court affairs. Moncier's next step will be to appear at a September meeting of the BPR where he will make a case for not needing the monitors.

The News Sentinel has more

New family law firm forms in Memphis

Memphis lawyer Justin K. Thomas has opened the Thomas Family Law Firm PLC, which will focus exclusively on family law matters in Tennessee and Mississippi. The firm is located in the Clark Tower at 5100 Poplar Ave., Suite 2516, Memphis 38137. The office can be reached by calling (901) 537-0010 or visiting it online.

Lawyer may appeal foreclosure notice

Kingston attorney Dick Evans said he is considering filing an appeal with the Tennessee Supreme Court over a Court of Appeals decision that foreclosure notices can be printed in newspapers not located in the county where the foreclosure sale is taking place. The appeals court recently reversed a lower court ruling that placing notices in a newspaper not located in, but with circulation in the county of sale did not meet the requirements of the law.

The Roane County News reports

Congressional News

Opinion: Courts languish while Senate stalls

Carl Tobias, a professor at the University of Richmond School of Law, writes in an opinion piece that President Obama must swiftly propose nominees for all 18 federal judgeship openings and that the Senate must promptly confirm them. Using the appointment process of Nashville's Jane Branstetter Stranch as an example, Tobias explores why there have been delays in the approval of nominees.

Read his piece in the Tennessean

Clarification

Suspension lists temporarily removed

The TBA has temporarily removed lists of lawyers who had been suspended for not paying their 2010 registration fee or filing their 2010 IOLTA report. The TBA is working with the Board of Professional Responsibility (BPR) to update the list to include a record of all attorneys who have been reinstated since the suspension orders were filed. New lists will be published when they are available. In the meantime, the current status of any licensed Tennessee attorney may be obtained from the

BPR website.

TBA Member Services

Secure, compliant data backup now available

The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.

Learn why lawyers trust i365 for online data backup solutions

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.