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Thursday, August 11, 2011

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Nominations for public service awards due Monday

Each year the Tennessee Bar Association recognizes outstanding service by attorneys who have donated their time to help others. Lawyers may be nominated in three categories: the Ashley T. Wiltshire Public Service Attorney of the Year Award, which recognizes an attorney who provided dedicated and outstanding services during the past year for an indigent client in either a civil or criminal defense case; the Harris Gilbert Pro Bono Volunteer of the Year Award, which recognizes significant pro bono work by a private attorney; and the Law Student Volunteer Award, which recognizes a student who has provided dedicated and outstanding pro bono services to an organization that is primarily engaged in providing legal representation to the indigent.

Award nominations are due by Aug. 15. Award winners will be honored at the Tennessee Bar Association's Public Service Luncheon Jan. 14 in Nashville.

Learn more or submit a nomination here

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
04 - TN Court of Appeals
07 - TN Court of Criminal Appeals
01 - 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.

ALICIA D. HOWELL v. NISSAN NORTH AMERICA, INC., ET AL.

Court: TSC

Attorneys:

Trisha L. Henegar, Shelbyville, Tennessee, for the appellant, Alicia D. Howell.

Frank C. Lynch, Winchester, Tennessee, for the appellees, Nissan North America, Inc., and Ace America, TPA, ESIS, Inc.

Judge: LEE

The issue presented in this workers' compensation case is whether the employee made a meaningful return to work. Upon being released by her physician to return to work, she resigned her employment after her employer told her that she would have to return to a production line job that, based on her work experience and personal knowledge of the work conditions and her physical abilities and limitations, she did not believe she could perform. The trial court awarded her additional benefits, ruling that she did not have a meaningful return to work and was eligible for reconsideration of her earlier settlement for workers' compensation benefits pursuant to Tennessee Code Annotated section 50-6-241 (Supp. 2010). The Special Workers' Compensation Appeals Panel reversed. We hold that the employee did not have a meaningful return to work following her injuries and that the evidence does not preponderate against the trial court's award of increased permanent partial disability benefits. The judgment of the Appeals Panel is reversed, and the judgment of the trial court is reinstated.

http://www.tba2.org/tba_files/TSC/2011/howella_081111.pdf

DONNA FAYE SHIPLEY ET AL. v. ROBIN WILLIAMS
With a Concurring & Dissenting Opinion and a Concurring Opinion

Court: TSC

Attorneys:

Wendy Lynne Longmire and Julie Bhattacharya Peak, Nashville, Tennessee, for the appellant, Robin Williams, M.D.

Joe Bednarz, Sr., Nashville, Tennessee, and Steven R. Walker, Memphis, Tennessee, for the appellee, Donna Faye Shipley, individually and as next friend and surviving wife of Frank Shipley, deceased.

Judge: LEE

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. section 29-26-115 (2000 & Supp. 2010). Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant's community. In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court's exclusion of the claimant's two proffered medical experts under the locality rule was error. The trial court's grant of summary judgment is affirmed in part and vacated in part.

http://www.tba2.org/tba_files/TSC/2011/shipleyd_081111.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/shipleyd_DIS_081111.pdf

HOLDER concurring
http://www.tba2.org/tba_files/TSC/2011/shipley_CON_081111.pdf

IN RE: A.M.K.

Court: TCA

Attorneys:

David L. Valone, Knoxville, Tennessee, for the appellant, Amanda King.

Farrell A. Levy, Knoxville, Tennessee, for the appellee, Tyler Weseman.

Judge: SWINEY

This appeal concerns the changing of a minor child's surname. Tyler Weseman ("Father") and Amanda King ("Mother") are, respectively, the father and mother of the minor child A.M.K. ("the Child"). Father filed a petition to establish parentage and co-parenting time. Father sought to have the Child bear his surname. The Juvenile Court for Knox County ("the Juvenile Court") changed the Child's surname from King to King-Weseman. Mother appeals. We hold that the evidence does not preponderate against the Juvenile Court's finding that changing the Child's surname to King-Weseman is in the Child's best interest. We further hold that the Juvenile Court did not abuse its discretion in declining to award attorney's fees to Mother. The judgment of the Juvenile Court is affirmed.

http://www.tba2.org/tba_files/TCA/2011/amk_081111.pdf

KRYSTAL DAWN (WALTON) CANTRELL v. PATRICIA TOLLEY

Court: TCA

Attorneys:

Jeffery L. Stimpson, Munford, Tennessee, for the appellant, Krystal Dawn (Walton) Cantrell.

Joseph D. Barton, Millington, Tennessee, for the appellee, Patricia Tolley.

Judge: STAFFORD

This case arises from the circuit court's execution of judgment. Following dismissal of Appellant's appeal from the general sessions court, the circuit court specifically affirmed the judgment of the general sessions court, issued execution thereon, and denied Appellant's motion to quash the execution upon its finding that the ten year time period for collection of judgments, under Tennessee Code Annotated Section 28-3-110, ran from the date of the circuit court's order. Upon review, we conclude that, by affirming the general sessions court's judgment, the circuit court retained jurisdiction to execute the judgment, and that the ten year time period for collection of the judgment ran from the date of the circuit court's order and was not expired when levy was made. Affirmed.

http://www.tba2.org/tba_files/TCA/2011/cantrellk_081111.pdf

GLENN CUPP ET AL. v. BILL HEATH ET AL.

Court: TCA

Attorneys:

Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellants, Bill Heath and Virginia Heath.

Dennis M. Robertson, Harrogate, Tennessee, for the appellees, Glenn Cupp and wife, Bonnie Cupp, and Marjorie Keck.

Judge: SUSANO

In late 2007, the defendant Bill Heath built a fence on a line running generally east and west, said line having been established by surveyor Bill Parsons in 1990 and then re-staked in 2007 by surveyor Dennis Fultz. The plaintiff Glenn Cupp, an adjoining landowner to the south of Heath, hired surveyor Mark Comparoni to establish his northern line because Cupp believed Heath had built the fence much too far to the south. Marjorie Keck, who joins Heath on her northern boundary and Cupp on her western boundary, also commissioned Comparoni to survey her land. Comparoni's survey confirmed that Heath's new fence incorrectly encompassed approximately 35 acres of Cupp's land and approximately 6 acres of Keck's land. Cupp and Keck filed this action against Heath in 2008 to establish their northern boundary with Heath and the Cupp/Keck common boundary as surveyed by Comparoni. The trial court found that the Comparoni survey correctly established the boundary lines of all the parties. Heath appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/cuppg_081111.pdf

BILLIE SEAY FUBO NATIONWIDE INSURANCE v. BETTY WALSH ET AL.

Court: TCA

Attorneys:

Thomas E. Walsh, Nashville, Tennessee, appellant, pro se.

Alan S. Kleiman, Memphis, Tennessee, for the appellee, Billie Seay fubo Nationwide Insurance Company.

Judge: SUSANO

On or about May 28, 2005, Billie Seay was involved in an automobile accident with a vehicle driven by the defendant Thomas E. Walsh ("the Driver"), which vehicle was owned by the defendant Betty Walsh ("the Owner"). Seay's insurance company, Nationwide Insurance Company, settled her claim and filed this subrogation action in Seay's name for the use and benefit of Nationwide against the Driver and the Owner. The Driver and the Owner filed separate pro se answers. The Owner appeared at trial, but the Driver did not appear. The trial court entered a judgment against both defendants. Two and a half years later, the Driver filed a motion to set aside the judgment. It was denied. He then filed a series of similar unsuccessful post-judgment motions. The Driver appeals from the last order denying post-judgment relief. We affirm.

http://www.tba2.org/tba_files/TCA/2011/seayb_081111.pdf

STATE OF TENNESSEE v. CRAIG ABSTON

Court: TCCA

Attorneys:

William Massey, Memphis, Tennessee, for the appellant, Craig Abston.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Craig Abston, was indicted by the Shelby County Grand Jury for one count of second degree murder and two counts of attempted second degree murder. He was convicted as charged and sentenced to twenty years for second degree murder, and twelve years and eight years for each attempted second degree murder conviction. The trial court ordered the twenty-year sentence and twelve-year sentence to run concurrently to each other but consecutively to the eight- year sentence for an effective sentence of twenty-eight years. On appeal, this Court reduced the twelve-year sentence to eight years, and remanded to the trial court for a new sentencing hearing regarding the consecutive sentences. State v. Craig Abston, No. W2007-00019-CCA-R3-CD, 2009 WL 2030432, at *4 (Tenn. Crim. App., at Jackson, July 10, 2009), perm. app. denied, (Tenn. Dec. 14, 2009). On remand, the trial court ordered the one eight-year sentence to be served concurrently with the twenty-year sentence and the other eight-year sentence to be served consecutively to the twenty-year sentence. Therefore, Appellant's effective sentence is twenty-eight years. On appeal, Appellant argues that the trial court erred in imposing consecutive sentences. After a thorough review of the record, we conclude that the record supports the trial court's imposition of consecutive sentences. Therefore, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/abstonc_081111.pdf

STATE OF TENNESSEE v. JUSTIN KENNETH BOLDUS

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Justin Kenneth Boldus.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Justin Kenneth Boldus, pleaded guilty in Dickson County Circuit Court to one count of vehicular homicide by recklessness, see T.C.A. section 39-13-213(a)(1) (2006), and one count of leaving the scene of an accident involving death, see id. section 55-10-101. The trial court imposed consecutive sentences of four years and one year to be served in the Department of Correction. On appeal, the defendant argues that the trial court erred by imposing consecutive sentences and by denying alternative sentencing. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/boldusj_081111.pdf

STATE OF TENNESSEE v. GREGORY TYRONE GREER

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, for the appellant, Gregory Tyrone Greer.

Robert E. Cooper, Jr. , Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Appellant, Gregory Tyrone Greer, was convicted by a Madison County jury of reckless aggravated assault, a Class D felony. He was sentenced as a career offender to twelve years in the Tennessee Department of Correction. In his sole issue on appeal, he contends that the evidence is insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/greerg_081111.pdf

MELISSA BETH MACKEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David Stowers, Bolivar, Tennessee, for the appellant, Melissa Beth Mackey.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Brooks Yelverton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Melissa Beth Mackey, appeals as of right the Shelby County Criminal Court's denial of her petition for post-conviction relief challenging her conviction of attempted aggravated robbery for which she received a sentence of six years as a Range II, multiple offender. On appeal, she argues that trial counsel committed ineffective assistance that rendered her guilty plea involuntary. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/mackeym_081111.pdf

WALTER ALAN MARTIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph Ozment, for the appellant, Walter Alan Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Brooks Yelverton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Walter Alan Martin, was convicted by a jury of rape and was, thereafter, sentenced to ten years in prison at 100%. This Court affirmed the Petitioner's conviction and sentence on direct appeal. The Petitioner filed a timely petition for post-conviction relief and, following an evidentiary hearing, the post-conviction court denied relief. On appeal, the Petitioner argues that he received the ineffective assistance of counsel due to trial counsel's failure (1) to adequately address the timeframe surrounding the events and (2) to fully investigate the case by inspecting the cab of the truck where the incident occurred. Following our review of the record and the parties' briefs, we conclude that the Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/martinw_081111.pdf

STATE OF TENNESSEE v. RANDY ANTONIO RICE

Court: TCCA

Attorneys:

Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, and George Morton Googe, District Public Defender, and Paul E. Meyers, Assistant Public Defender (at trial and of counsel on appeal), Jackson, Tennessee, for the Defendant-Appellant, Randy Antonio Rice.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James (Jerry) G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Randy Antonio Rice, was convicted by a Madison County jury of first degree felony murder and facilitation of especially aggravated robbery, a Class B felony. He was sentenced as a Range I offender to consecutive sentences of life imprisonment and twelve years at thirty percent, respectively. On appeal, the Defendant-Appellant argues: (1) the evidence was insufficient to support his convictions, and (2) the trial court erred in imposing consecutive sentencing. Upon review, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/ricer_081111.pdf

STATE OF TENNESSEE v. KENNETH JAMES WATKINS

Court: TCCA

Attorneys:

Dawn Deaner, District Public Defender, and Jeffrey A. DeVasher, Assistant District Public Defender (on appeal); Jonathan F. Wing and Tyler Chance Yarbro, Assistant District Public Defenders (at trial), for the appellant, Kenneth James Watkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Kenneth James Watkins, was convicted by a Davidson County Criminal Court jury of premeditated first degree murder and was sentenced to life in prison. See T.C.A. section 39-13-202 (2010). On appeal, the Defendant contends that (1) the evidence was insufficient to support the conviction, (2) the trial court erred by denying his motion to suppress identification, (3) the trial court erred by allowing testimony regarding his nickname, and (4) the trial court erred by allowing testimony regarding threats against a witness and witnesses' fear of reprisal. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/watkinsk_081111.pdf

Constitutionality of Restrictions on Use of Unmanned Traffic Enforcement Cameras

TN Attorney General Opinions

Date: 2011-08-11

Opinion Number: 11-61

http://www.tba2.org/tba_files/AG/2011/ag_11_61.pdf

TODAY'S NEWS

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Legal News

Civil rights pioneers to receive Freedom Award

Former Tennessean editor and publisher John Seigenthaler will be among those honored with a National Civil Rights Museum Freedom Award Nov. 12 in Memphis. In honor of the museum's 20th anniversary, the awards were expanded this year to include honors for civil rights pioneers in education, sports, humanitarianism, the arts, activism and legal justice. Others to be honored include the Rev. Jesse Jackson, the Rev. C. T. Vivian, Dolores Huerta, the Rev. James Lawson, the Rev. Samuel Kyles and the Rev. Ed King.

The Memphis Daily News reports

Memphis Bar Foundation grants available

Applications for grants from the Memphis Bar Foundation are now available online or by contacting Anne Fritz at (901) 527-3575 or afritz@memphisbar.org. The deadline for submitting applications is 5 p.m. Aug. 26. Grants will be awarded for law-related programs or projects that fulfill the foundation's mission to advocate and support public awareness of the legal profession, social justice, legal education and professionalism.

Learn more here

AG backs limits on traffic cameras

Attorney General Robert Cooper said this week that the Tennessee General Assembly is free to impose limitations on the use of automated ticketing machines. Companies providing photographic equipment to cities had complained that a state ban on right-turn tickets would impair municipal contracts. Cooper found that changing the definition of a valid traffic citation is well within the state's legitimate powers.
Download the opinion

The Newspaper.com has more

New professional women's group forms

The National Association of Women MBAs has formed a new chapter in Nashville and invites professional women with graduate degrees in any discipline to join its ranks. The chapter will hold a launch event Aug. 16 from 5 to 6:30 p.m. in the Frist Lecture Hall at Belmont University's Inman Health Sciences Building. Jennifer Way with Way Solutions will speak on the topic of developing a proactive work style.
Register for the event here

Learn more about the association

Memphis firm leaves downtown office

After more than a decade, downtown Memphis law firm Richter & Rasberry PC has relocated to Suite 2121 at the Clark Tower, 5100 Poplar Ave. The firm's partners, Johnny Rasberry and Linley Richter, said the move east was a response to client needs. The firm primarily handles divorce and family law work. It can be reached at (901) 525-8662.

Memphis Daily News reports

Pro bono is 'moral obligation'

Franklin lawyer Justin Pitt, an attorney for Community Health Systems, spends the first Tuesday of every month at the Williamson County Public Library as part of the Legal Aid Society's monthly walk-in clinic. "I think it's a moral obligation for every lawyer," Pitt said of doing pro bono work. "I don't mean to be sanctimonious. Everyone has access to the courts, but the courts can be incredibly complicated." Pitt's participation has prompted others at the health-care company to get involved, including attorney Rachel Seifert, who recently was on hand to advise a woman from Smyrna about a landlord dispute.