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Tuesday, October 11, 2011

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Major health law event this week in Murfreesboro

More than 300 health care attorneys from across Tennessee and the Southeast will gather this week for the Tennessee Bar Association's annual Health Law Primer and Health Law Forum in Murfreesboro. The Primer, now in its 11th year will take place Wednesday, with the Health Law Forum, now in its 23rd year, following on Thursday and Friday. Among those addressing the Forum is Lew Morris, chief counsel to the Inspector General of the U.S. Department of Health & Human Services, and Tennessee Supreme Court Chief Justice Connie Clark.

Find out more about the events or register 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
02 - TN Court of Appeals
06 - TN Court of Criminal Appeals
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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.

RUDOLPH POWERS v. STATE OF TENNESSEE
CORRECTION on page three (3) of the opinion, the addition of Footnote 4 has been made, which changed the pagination.

Court: TSC

Attorneys:

William Dennis Massey, Michael Casey Shannon, Lorna S. McClusky, and Kemper B. Durand, Memphis, Tennessee, and Craig Cooley, New York, New York, for the appellant, Rudolph Powers.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; John H. Bledsoe, Senior Counsel; William L. Gibbons, District Attorney General; and John W. Campbell, Deputy District Attorney General, for the appellee, the State of Tennessee.

Larry Stewart and Patrick Wayne Norton, Nashville, Tennessee, for the amicus curiae, Dwight Adams, Kevin Curran, James Crow, and Jeffery E. Thoma.

David Louis Raybin, Nashville, Tennessee, for the amicus curiae, Ann Meng, Jennifer Thompson, Melinda Elkins, and Michele Mallin.

Judge: WADE

In separate trials, the petitioner was convicted of aggravated rape for an incident occurring in March of 1980 and of aggravated rape and robbery by use of a deadly weapon for an incident occurring in May of the same year. In 2007, the petitioner sought to have deoxyribonucleic acid ("DNA") analysis performed on the remaining evidence pursuant to the Post-Conviction DNA Analysis Act of 2001, arguing that exculpatory results would create a reasonable probability that he would not have been prosecuted or convicted on either charge. The petitioner contended that he could conclusively establish his innocence if the DNA profile developed from the evidence was uploaded into a DNA database and matched another profile in the system. The post-conviction court denied relief. The Court of Criminal Appeals affirmed, holding that DNA analysis was limited to a comparison between the petitioner's DNA and that collected as a part of the evidence in the case. We granted the petitioner's application for permission to appeal to determine (1) whether the General Assembly intended to permit petitioners proceeding under the Act to use DNA database matches to satisfy their burden and (2) whether the Court of Criminal Appeals' interpretation of the statute served to preclude the development of scientific evidence supportive of actual innocence. We hold that the Post-Conviction DNA Analysis Act permits access to a DNA database if a positive match between the crime scene DNA and a profile contained within the database would create a reasonable probability that a petitioner would not have been prosecuted or convicted if exculpatory results had been obtained or would have rendered a more favorable verdict or sentence if the results had been previously available. Because the criteria for ordering DNA analysis under the Act are established, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded to the post-conviction court for entry of an order granting DNA analysis.

http://www.tba2.org/tba_files/TSC/2011/powersr_COR_101111.pdf

MARCELINE LASATER v. KENNETH J. HAWKINS, ET AL.

Court: TCA

Attorneys:

James Haggard Kinnard, Lebanon, Tennessee; Shawn Joseph McBrien, Angelique P. Kane, Lebanon, Tennessee, for the appellants, Kenneth J. Hawkins, Ind. and as trustee for Kenneth J. Hawkins and Harold Gordon Bone and B & H Rentals, LLC.

Barbara Jones Perutelli, Nashville, Tennessee, for the appellee, Marceline Lasater.

Judge: COTTRELL

A contract for the sale of a sixty-four acre tract of land provided that a vacant house on the tract and the lot immediately surrounding it would automatically revert to the seller if the buyers did not install a water line across the property within a year of the contract's execution. The same condition was set out in the warranty deed. The buyers failed to install the water line, but the seller, a Texas resident, did not immediately attempt to retake possession of the house and lot. Five years after the contract was signed, the seller filed a "notice of automatic reverter of title," followed by a declaratory judgment suit to quiet title and to recover damages. The trial court granted partial summary judgment to the seller, ruling that the contract and the deed created a fee simple determinable and, therefore, that ownership of the disputed property reverted to her by operation of law one year after the contract of sale was executed. A hearing on damages resulted in an award to the seller of about $142,000 in compensatory damages, which included income that the buyers had collected from renting out the house prior to the filing of the notice of reverter. Buyers contend on appeal that the estate created by the contract of sale was not a fee simple determinable, but rather a fee simple subject to a condition subsequent, a form of future interest under which the property does not revert to the seller until the seller takes some action to retake possession of the property. Such an interest would result in a much smaller award of damages against the buyers under the circumstances of this case. We affirm the trial court's holding that the contract of sale created a fee simple determinable, but we modify its award of damages to correct an error.

http://www.tba2.org/tba_files/TCA/2011/lasaterm_101111.pdf

TYSON FOODS (RE: SANDRA GIBSON) v. TENNESSEE DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT, WORKERS' COMPENSATION DIVISION

Court: TCA

Attorneys:

Terry L. Hill and Michael L. Haynie, Nashville, Tennessee, for the appellant, Tyson Foods.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Workers' Compensation Division.

Judge: CLEMENT

Employer filed a petition for common law writ of certiorari to challenge the order of the Tennessee Department of Labor, issued pursuant to the Request for Assistance protocol, that it provide temporary disability and medical workers' compensation benefits. Upon the motion of the Department of Labor, the trial court dismissed the petition on two grounds: that the court lacked subject matter jurisdiction to review the Department's decision and that the employer possessed another adequate remedy at law under Tenn. Code Ann. section 50-6-238(b)(6). We affirm.

http://www.tba2.org/tba_files/TCA/2011/tysonfoods_101111.pdf

DEXTER JOHNSON v. DAVID SEXTON, WARDEN

Court: TCCA

Attorneys:

Dexter F. Johnson, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; and Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Dexter Johnson, appeals the Johnson County Criminal Court's summary dismissal of his pro se petition for the writ of habeas corpus. In 1994, the petitioner pled guilty to two counts of first degree murder, one count of attempted first degree murder, and one count of attempted aggravated robbery, receiving an effective life sentence in the Department of Correction. In the instant petition for habeas corpus relief, the petitioner alleges that his convictions are void based upon the State's failure to provide a factual basis to support the pleas. The habeas corpus court summarily dismissed the petition, concluding that nothing in the petition would support a finding that the convictions were void. On appeal, the petitioner contends that the court erred in its summary dismissal. Following review of the record, we find no error and affirm.

http://www.tba2.org/tba_files/TCCA/2011/johnsond_101111.pdf

JAMES L. LESSENBERRY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public Defender (on appeal); and Cynthia Chandler-Snell, Humboldt, Tennessee (at hearing), for the appellant, James L. Lessenberry.

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

Judge: TIPTON

The Petitioner, James L. Lessenberry, appeals the Madison County Circuit Court's denial of post-conviction relief from his convictions for nine offenses: rape, a Class B felony; incest, a Class C felony; four counts of sexual battery by an authority figure, Class C felonies; and three counts of attempted rape, Class C felonies. Under the plea agreement, he is to serve twelve years for rape as a violent offender and six years as a Range I offender for each of the remaining convictions, with all sentences to be served concurrently with each other and consecutively to a previous drug conviction for which the trial court revoked his five-year community corrections sentence. On appeal, the Petitioner contends the trial court erred in denying his post-conviction claim that he did not receive the effective assistance of counsel. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/lessenberryj_101111.pdf

STATE OF TENNESSEE v. CHARLES BRADFORD STEWART

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; John W. Carney, District Attorney General; and William Lamberth, Assistant District Attorney General, for the appellant, State of Tennessee.

Hugh R. Poland, Jr., Clarksville, Tennessee, for the appellee, Charles Bradford Steward.

Judge: SMITH

Charles Bradford Stewart, Appellant, was indicted by the Montgomery County Grand Jury for one count of reckless endangerment, one count of vehicular assault, one count of failure to provide evidence of financial responsibility, and two counts of aggravated assault. After a jury trial, Appellant was found guilty of one count of reckless aggravated assault and one count of vehicular assault, both Class D felonies. Appellant pled guilty to failing to provide evidence of financial responsibility. The trial court merged the convictions for reckless aggravated assault and vehicular assault into one conviction for vehicular assault and sentenced Appellant to twelve years in incarceration as a Career Offender. The trial court ordered Appellant to serve one year in confinement and the remainder of the sentence on Community Corrections. The State appealed. On appeal, the following issue is presented for our review: (1) whether the trial court imposed an improper sentence by allowing Appellant to serve a sentence of split confinement. After a review of the record and applicable authorities, we determine that as a Career Offender sentenced to twelve years, Appellant was statutorily ineligible for a Community Corrections sentence. Accordingly, the matter is reversed and remanded for resentencing.

http://www.tba2.org/tba_files/TCCA/2011/stewartc_101111.pdf

STATE OF TENNESSEE v. NICHOLAS RAY TIPTON

Court: TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee (on appeal), Jeffery C. Kelly, District Public Defender; and William Donaldson, Assistant Public Defender, Johnson City, Tennessee (at trial), for the Defendant-Appellant, Nicholas Ray Tipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Anthony Wade Clark, District Attorney General; and Dennis Brooks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Nicholas Ray Tipton, was convicted by a Washington County jury of three counts of aggravated rape, a Class A felony. He was sentenced to a twenty-two year term of imprisonment for each conviction, with two sentences to be served consecutively, for an effective forty-four year term of imprisonment in the Tennessee Department of Correction. On appeal, Tipton raises the following issues for our review: (1) whether the evidence was sufficient to support his conviction; (2) whether the three counts of aggravated rape should be merged into a single conviction; (3) whether the trial court erred by allowing an emergency room physician to testify regarding the effect of intoxication on a man's ability to ejaculate; (4) whether the sentence length for each conviction was excessive; and (5) whether the trial court erred by imposing consecutive sentencing. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/tiptonn_101111.pdf

NELSON TROGLIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Samuel F. Hudson, Dunlap, Tennessee, for the appellant, Nelson Troglin.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Nelson Troglin, appeals the post-conviction court's denial of his petition for post-conviction relief from his attempted first degree murder conviction, arguing that he received the ineffective assistance of counsel at trial, at the motion for new trial, and on appeal. After review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/troglinn_101111.pdf

STATE OF TENNESSEE v. KRISTEN A. WILSON
CORRECTION on page 1, corrected trial Judge's name

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee, for the appellant, Kristen A. Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kyle Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Kristen A. Wilson, presents for our review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pleaded guilty to driving under the influence, per se. As a condition of her guilty plea, the defendant reserved a certified question of law challenging the admissibility of her blood sample based on the two-hour admissibility limit. Following our review, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/wilsonk_COR_101111.pdf

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Nashville lawyer Al Knight dies

Nashville attorney Alfred H. Knight died Monday night, family members have confirmed. Knight, 74, was a 1961 graduate of Vanderbilt Law School and a partner with Willis & Knight in Nashville for many years. Arrangements were not available at the time of publication.