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Monday, July 25, 2011

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Elder Law Forum set for Friday

Elder Law practitioners and those interested in the field will be in Nashville Friday for the TBA Elder Law Section's annual day-long forum. The program will cover advanced topics related to medicaid eligibility and planning, and common ethical issues taught by experts in the field of elder law. Other sessions will include a review of veterans' benefits and a panel discussion of the unauthorized practice of law issues that arise in elder law practice.

Find out more or register online now

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
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist_072511.pdf

KENNETH CARPENTER V. DAVID METLER, STATE FARM INSURANCE & CORTESE TREE SPECIALIST, INC.

Court: TCA

Attorneys:

Russell 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: PER CURIAM

Appellant filed a notice of appeal for a non-final judgment entered by the trial court. We dismiss the appeal for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2011/carpenterk_072511.pdf

WILLIE J. HIGH v. SUMNER COUNTY, TENNESSEE

Court: TCA

Attorneys:

Alvin Scott Derrick, Thomas Baird Russell, Nashville, Tennessee; Leah Mead May Dennen, Gallatin, Tennessee, for the appellant, Sumner County, Tennessee.

Michael L. Underhill, William Leonard Underhill, Nashville, Tennessee, for the appellee, Willie J. High.

Judge: COTTRELL

An employee of Sumner County was injured on the job and sought disability benefits pursuant to the Sumner County compensation plan. The employee's physicians initially gave him an anatomical impairment rating of 20%, but later determined that the employee was totally disabled and could not work. The County treated the employee's disability as a permanent partial disability and offered the employee a lower settlement than if the employee's disability were treated as a total permanent disability. The employee appealed the initial offer to the administrative review board, which upheld the initial offer of settlement. The employee petitioned the chancery court for a writ of certiorari and asked the court to review the administrative decision and rule that it was arbitrary and capricious. The chancery court found the review board should have considered whether the employee was totally disabled based on the evidence in the record and remanded the case back to the review board for this purpose. The County appealed, and we affirm the trial court's decision. The plain language of the county plan does not support the administrative decision not to consider the employee's total disability in determining the compensation he is entitled to receive.

http://www.tba2.org/tba_files/TCA/2011/highw_072511.pdf

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. DAVID DOUGLAS OLLIS

Court: TCA

Attorneys:

David Douglas Ollis, Nashville, Tennessee, Pro Se.

James William Jefferson Farrar, Andrew David McClanahan, and Raleigh Alexander Dickerson, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: BENNETT

Driver of a sedan was given citations for not having the certificate of public convenience and license necessary to operate a taxicab. The citations were upheld by the general sessions and circuit courts. Driver appeals, claiming that his sedan is not a taxi and that the lower courts did not have jurisdiction to hear the matter. We affirm.

http://www.tba2.org/tba_files/TCA/2011/ollisd_072511.pdf

STATE OF TENNESSEE v. EMMETT LEJUAN HARVELL AND BARDELL NELSON JOSEPH, A.K.A. SHAWN ANGLIN, A.K.A. BILLONTAE SMONTEZ ADAMS
CORRECTION: The first sentence of the introductory paragraph has been changed.

Court: TCCA

Attorneys:

Richard McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Emmett Lejuan Harvell.

Dawn Deaner, District Public Defender, and Emma Rae Tennent (on appeal), J. Michael Engle, and Kristin Neff (at trial), Assistant District Public Defenders, for the appellant, Bardell Nelson Joseph.

Robert E. Cooper, Jr., Attorney General; Deshea Dulany Faughn, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendants, Emmett Lejuan Harvell and Bardell Nelson Joseph, were both convicted of the facilitation of tampering with evidence, a Class D felony, and simple possession of a Schedule VI controlled substance, a Class E felony. In addition, Defendant Joseph was convicted of possession of a handgun by a convicted felon, a Class E felony. On appeal, both defendants argue that the evidence was insufficient to support their convictions, and Defendant Joseph argues that he was sentenced improperly. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2011/harvelle_COR_072511.pdf

STATE OF TENNESSEE v. DANNY OSBORNE

Court: TCCA

Attorneys:

Eunus Alton Howell, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter, Brent C. Cherry, Assistant Attorney General; Mike Flynn, District Attorney General, and Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Danny Osborne, pled guilty to promotion of methamphetamine manufacture, possession of drug paraphernalia, possession of a schedule II controlled substance, and criminal impersonation. As a result, he received a two-year sentence in the Department of Correction. Appellant was subsequently released to probation. One month later, a warrant was issued for violation of probation. After a hearing, the trial court revoked Appellant's probation and ordered him to serve the balance of the original sentence in confinement. After a review of the record, we determine that the trial court did not abuse its discretion where there was substantial evidence to support the revocation of probation. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/osborned_72511.pdf

NELSON TROGLIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph E. Ford, Winchester, Tennessee, for the appellant, Nelson Troglin.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James Michael Taylor, District Attorney General; and James William Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Nelson Troglin, appeals as of right from the Bledsoe County Circuit Court's denial of his petition for post-conviction relief. The Petitioner was convicted of second degree murder and sentenced as a Range I, standard offender to 23 years in the Tennessee Department of Correction. In this appeal as of right, the Petitioner contends (1) that the trial court erred in failing to admonish the jury, instructing the jury to reach a verdict before the July 4th holiday, and in failing to sentence him in open court; (2) that the post-conviction court erred in denying his motion to recuse and his motion for funds to obtain a ballistics expert; and (3) that trial counsel was ineffective. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/troglinn_072511.pdf

STATE OF TENNESSEE v. CHARLIE B. YORK

Court: TCCA

Attorneys:

Kari I. Weber, Somerville, Tennessee, for the Appellant, Charlie B. York.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Mike Dunavant, District Attorney General; Matthew B. Hooper, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Fayette County jury convicted the Defendant, Charlie B. York, of driving under the influence of an intoxicant ("DUI"), and the trial court found that the Defendant had violated the implied consent law with a prior DUI conviction. The trial court sentenced the Defendant to eleven months and twenty- nine days for the DUI conviction, fifteen days of which were to be served in jail, with the remainder on probation. For the implied consent violation, the trial court suspended the Defendant's driver's license for two years. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it sentenced him to more than the mandatory minimum sentence. After a thorough review of the record and relevant authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/yorkc_072511.pdf

TODAY'S NEWS

Legal News
General Assembly News
Passages
Correction
Disciplinary Actions
TBA Member Services

Legal News

High court's decision doesn't change discovery hurdle

Tennessee Supreme Court judges on Thursday issued an important ruling clarifying the burden of proof for employees suing for retaliatory discharge. The court didn't make it easier for an employee to sue a company -- and it didn't make it any harder, either.

NashvillePost.com reports

Cameras in courtroom pilot project begins in Memphis

The civil case of Memphis TV reporter Lauren Lee versus the operator of a gossip-and-photo website is the first to be videoed as part of a pilot project authorized by the Judicial Conference of the United States. U.S. District Court Judge Jon McCalla reminded everyone in the courtroom at the beginning of the hearing for a preliminary injunction that a recording was taking place and requested that they limit noise or side conversations that could adversely affect the project.

The Commercial Appeal has more

New officers for Cumberland County

The Cumberland County Bar Association has elected new officers: W. Alan Rose is the new president, and Landon Colvard is the new treasurer. Both practice law in Middle and East Tennessee with primary offices in Crossville.

Juror identity scam pops up in Sullivan County

Sullivan County residents are being warned about an identity theft scam where a caller claims to be from the Circuit Court clerk's office and accuses the potential victim of not showing up for jury duty. The caller then threatens to have the victim arrested unless he gives several items of personal information, such as his mother's maiden name and his Social Security number. Clerk Tommy Kerns is spreading the word that his office contacts potential jurors exclusively by mail and does not call a potential juror unless he or she calls first.

Learn more from TriCities.com

CASA volunteers are heart of agency in Putnam County

"I didn't have anyone that I could relate to or that I could talk to and that's why, to me, it's so important that I'm there for them," says a volunteer with Putnam County's Court-Appointed Special Advocates. "Those children need an advocate, they need someone to speak for them. They need a voice." Approximately 250 children in Putnam County utilize the court-appointed special advocates program each year.

Learn more about CASA from the Herald Citizen

Murdoch phone-hacking has First Amendment angle

In an opinion piece, Gene Policinski, vice president and executive director of the First Amendment Center, writes that "watching the ongoing phone-hacking flap in Great Britain involving News Corp. and media mogul Rupert Murdoch is part fascination, part revulsion and, at least for the moment, just a touch of First Amendment concern."

Read his opinion piece in The Jackson Sun

Counsel on Call expands to the west with Dallas office

Nashville-based Counsel on Call is opening a Dallas office today, NashvillePost.com reports, and has hired Tracy Dalton to run it. Dalton was a senior litigation lawyer for Hewlett-Packard in Dallas. Now, she will operate the one-employee Counsel On Call office to develop the Nashville-based company's presence there.

NashvillePost.com has more [subscription required]

General Assembly News

Sue Atchley to fill Woodson's Senate seat

Sue Atchley, 77, is the new 6th District state senator. Knox County Commission in a close vote this afternoon selected Atchley, a Republican and the wife of a longtime member of the Tennessee General Assembly, to serve as interim successor to state Sen. Jamie Woodson.

The News Sentinel has more

Advocacy not always lobbying under Tennessee law

The billboards, website and radio spots that filled the airways this spring might have played a part in bringing a major rewrite to the state's tort law, but they did not qualify as lobbying. The Knoxville News Sentinnel's Tom Humphrey looks at state law regulating lobbying, and why the Tennessee Ethics Commission did not require financial reporting on the campaign from the Tennessee Center for Policy Research.

The News Sentinel has this story

Questions grow around 'sunset' reviews

Tennessee lawmakers are holding up more agencies for reauthorization under the state's "sunset" provisions. While some observers say the move is tied to the growing Republican presence in the General Assembly, the The Tennessee Bureau of Investigation is also looking into the actions of two state representatives regarding the reauthorization of the he Board of Nursing and its disciplinary actions against three East Tennessee nurse practitioners.

The Tennessean has the story

Passages

Memphis musician, attorney Sy Rosenberg dies

Memphis lawyer Seymour "Sy" Rosenberg died July 23 after a long illness. He was 77. Mr. Rosenberg practiced law for more than 50 years and was a fixture on the Memphis music scene as a musician, impresario, producer, publisher, manager and music business attorney. Services were today (July 25) at Anshei Sphard Cemetery, 2160 Airways Blvd., in Memphis. Shiva will be observed throughout the week at the home of Jeff and Sally Rosenberg beginning at 2 p.m. each day. In lieu of flowers, memorials may be sent to Memphis Music Foundation at memphismeansmusic.com or the charity of your choice.

Read his obituary in the Commercial Appeal

Correction

UT law grad Morgan Manning's column in the News Sentinel, about the "War on Photography," incorrectly identified the author with male pronouns in Friday's TBA Today. Manning, as it has been pointed out, is a female, and we regret the reporting error.

Disciplinary Actions

Memphis lawyer suspended

On July 18, the Tennessee Supreme Court suspended Timothy Allen Price for two years, retroactively applied to April 8, 2010, the date of his temporary suspension from the practice of law. The suspension involved lack of communication and abandoning his practice.