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Tuesday, November 15, 2011

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Subcommittee completes review of Court of Judiciary

After hearing a two-hour parade of disaffected litigants, the Joint House and Senate Government Operations Subcommittee with responsibility for reviewing the operations of the Tennessee Court of Judiciary today forwarded consideration of the structure for judicial discipline to the full Government Operations Committee with a neutral recommendation. Speaking for a Tennessee Judicial Conference committee, Court of Criminal Appeals Judge Jeff Bivins said his group is working on changes to the statute governing the judicial disciplinary body, including a change in the name to the Board of Judicial Conduct to better reflect the nature of the panel's work.

In other action, consideration of the sunset extension for the Judicial Nominating and Judicial Performance Evaluation commissions also was referred to the full committee in both chambers. The reviews undertaken at this stage in the process are considered fairly routine and since the General Assembly is not in session, no actual bill or other legislation was acted upon.

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.

CEILDECK CORPORATION v. HERBERT IVEY

Court: TWCA

Attorneys:

J. Michael Morgan and Ryan N. Stringfellow, Nashville, Tennessee, for the appellant, Ceildeck Corporation.

Stanley A. Davis, Nashville, Tennessee, for the appellee, Herbert Ivey.

Judge: LEE

This case involves a race to the courthouse after a Benefit Review Conference ("BRC"). The employee, a Dickson County resident, was allegedly injured in Davidson County during the course and scope of his employment. The employee and his employer unsuccessfully attempted to settle the employee's claim at a BRC held on October 11, 2010; an impasse was declared at 10:27:19 a.m. Employee's complaint was filed in the Chancery Court of Dickson County at 10:27 a.m. Employer's complaint was filed in the Chancery Court of Davidson County at 10:28 a.m. The employee filed a motion to dismiss the employer's Davidson County complaint based on the doctrine of prior suit pending. The trial court granted the motion, and the employer appealed. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/ceildeckcorp_111511.pdf

IN THE MATTER OF: ALEX B.T.

Court: TCA

Attorneys:

Linda Lynn Walls Holmes, Memphis, Tennessee, for the appellants, Rondey M. and Rosalind M.

Victoria W. Gillard, Memphis, Tennessee, for the appellee, Jacquininia W. and Unknown Biological Father.

Gregory S. Gallagher, Memphis, Tennessee, Guardian Ad Litem.

Judge: STAFFORD

This is a termination of parental rights case. The legal guardians of the child filed a petition to terminate Mother's parental rights based on her alleged willful failure to visit and support the child. The trial court found that Mother's efforts to visit and support had been frustrated by the legal guardians' actions. Therefore, the trial court concluded that Mother's failure to visit and support was not willful. Because the legal guardians failed to prove any of the grounds required to terminate Mother's parental rights, the trial court denied the petition. We affirm.

http://www.tba2.org/tba_files/TCA/2011/alexbt_111511.pdf

FORREST ERECTORS, INC. v. HOLSTON GLASS COMPANY, INC.

Court: TCA

Attorneys:

Joseph Paul Weyant, Clarksville, Tennessee, for the appellant, Forrest Erectors, Inc.

Richard Mann Currie, Jr., Kingsport, Tennessee, for the appellee, Holston Glass Company, Inc.

Judge: COTTRELL

A Tennessee corporation located in Montgomery County filed a breach of contract action against a Tennessee corporation located in Sullivan County to collect money allegedly owing for services rendered in North Carolina. The defendant moved to dismiss the complaint for improper venue. The trial court granted the motion and dismissed the complaint because it concluded the proper venue was Sullivan County, where the defendant resides. We affirm the trial court's judgment. The plaintiff's action is transitory and therefore governed by Tenn. Code Ann. section 20-4-101. We conclude the cause of action arose in North Carolina and, pursuant to the statute, venue is proper in Tennessee where the defendant resides.

http://www.tba2.org/tba_files/TCA/2011/forresterectors_111511.pdf

BENJAMIN INDOCCIO v. M&A BUILDERS, LLC, ET AL.

Court: TCA

Attorneys:

D. Russell Thomas and Melinda K. Brown, Murfreesboro, Tennessee, for the appellant, Benjamin Indoccio.

James R. Tomkins, Nashville, Tennessee, for the appellee, Estate of David Meeks.

Judge: FARMER

This appeal arises from injuries Plaintiff sustained after falling down a staircase while working on the construction of a home. Plaintiff filed a negligence action against the general contractor and the subcontractor responsible for the construction of the custom staircase. The matter was tried before a jury, and the jury returned a verdict finding Plaintiff fifty percent at fault, the subcontractor thirty-five percent at fault, and the general contractor fifteen percent at fault. After his motion for new trial was denied, Plaintiff filed this appeal. Plaintiff asserts that the trial court erred by excluding evidence that the subcontractor's employees used marijuana while working on the construction of the staircase, and erred by excluding evidence of misdemeanor convictions and probation violations of one of the subcontractor's employees. Plaintiff also asserts that the trial court erroneously instructed the jury regarding notice, negligence, and foreseeability. After thoroughly reviewing the record, we find that the trial court did not abuse its discretion by excluding the evidence of alleged marijuana use or the evidence of misdemeanor convictions and probation violations. Similarly, we find that the jury instructions on notice, negligence, and foreseeability were proper. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2011/indocciob_111511.pdf

IN RE: ESTATE OF MIRIAM L. RINEHART

Court: TCA

Attorneys:

Richard F. Vaughn and Terry C. Cox, Collierville, Tennessee, for the appellant, John Felix Sherard.

Scott B. Peatross, Robert J. Pinstein, and John Marshall Jones, Memphis, Tennessee, for the appellee, Rebecca Rinehart Cohen.

Judge: STAFFORD

This case concerns a holographic will executed by the testator while under a conservatorship. After the testator died, Appellant sought to be named personal representative over the decedent's estate and to have the decedent's holographic will probated. The decedent's daughter objected, arguing that at the time the holographic will was executed, the decedent was under a conservatorship that expressly revoked the decedent's right to make a will. The trial court granted the motion to dismiss in favor of the decedent's daughter. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/rinehartm_111511.pdf

STATE OF TENNESSEE v. FREDERICK EDWARD BRAXTON

Court: TCCA

Attorneys:

Jeffrey A. DeVasher, Assistant Public Defender, (on appeal) and Melissa Harrison, Assistant Public Defender, (at trial) Nashville, Tennessee, for the appellant, Frederick Edward Braxton.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, District Attorney General, and J. Wesley King, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Frederick Edward Braxton a/k/a Frederick Frank Brown, was convicted by a Davidson County Jury of selling less than .5 grams of cocaine within 1000 feet of a school, evading arrest, and criminal impersonation. On appeal, Appellant complains that: (1) the indictment did not adequately charge Appellant with selling a controlled substance in a drug-free school zone; (2) the State did not establish a sufficient chain of custody prior to the introduction of the cocaine into evidence; and (3) the evidence was insufficient to establish that he sold cocaine in a drug-free school zone. After a review of the record, we determine the indictment was not invalid for failing to reference the Drug Free School Zone Act because it adequately described the offense. Further, we determine that the trial court did not abuse its discretion in admitting the cocaine into evidence and that the evidence was sufficient to establish that Appellant sold cocaine weighing less than .5 grams within 1000 feet of a Drug Free School Zone. Accordingly, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/braxtonf_111511.pdf

JUSTIN TYLER BREWER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Justin Tyler Brewer, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks and Sophia S. Lee, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Justin Tyler Brewer, appeals from the Wayne County Circuit Court's denial of a petition for habeas corpus relief in which he claimed that he received a sentence outside of his range. Petitioner raises an additional claim on appeal, that the judgment for one of his convictions is void because it provides for release eligibility. After a review of the record, we determine that Petitioner has failed to show that his judgment for second degree murder is void or that his sentence has expired. Further, Petitioner is not entitled to habeas corpus relief for his aggravated kidnapping conviction according to Tennessee Code Annotated section 29-21-101.

http://www.tba2.org/tba_files/TCCA/2011/brewerj_111511.pdf

STATE OF TENNESSEE v. JACOB HALIBURTON

Court: TCCA

Attorneys:

Lauren Pasley-Ward, Memphis, Tennessee, for the Defendant-Appellant, Jacob Haliburton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Shelby County jury convicted the Appellant, Jacob Haliburton, of theft of property over $10,000, a Class C felony, and intentionally evading arrest in a motor vehicle, a Class E felony. He received a five and two year sentence, ordered to be served consecutively, for an effective seven year sentence. In this appeal, the Appellant presents the following issues for our review: (1) whether the evidence is sufficient to support his convictions; (2) whether the trial court committed plain error by failing to charge the jury with instructions regarding duress and necessity; (3) whether the sentence imposed was excessive; and (4) whether the trial court erred in ordering consecutive sentences. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/haliburtonj_111511.pdf

STATE OF TENNESSEE v. TIANJE R. JOHNSON

Court: TCCA

Attorneys:

Eugenia Grayer, Nashville, Tennessee, for the Appellant, Tianje R. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Chuck Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Tianje R. Johnson, pled guilty to four counts of sale of a controlled substance, four counts of delivery of a controlled substance, and two counts of possession with the intent to deliver or sell a controlled substance. The appropriate counts were merged and the trial court sentenced her on the five remaining counts to an effective sentence of fourteen years in the Tennessee Department of Correction. On appeal, the Defendant argues that the trial court improperly denied her an alternative sentence and erred when it denied her motion to reduce her sentence. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/johnsont_111511.pdf

STATE OF TENNESSEE v. CARL T. JONES

Court: TCCA

Attorneys:

Carl T. Jones, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson III, District Attorney General; Pamela Anderson, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: BIVINS

The Petitioner, Carl T. Jones, pled guilty to robbery and agreed to a sentence of six (6) years. He subsequently filed a petition for writ of habeas corpus in the Davidson County Criminal Court. The habeas corpus court dismissed the petition. The Petitioner now appeals that dismissal. After a careful review of the record, we conclude that the Petitioner's notice of appeal is untimely. Moreover, the Petitioner offers no reasons why the interests of justice would support a waiver of the filing deadline. Accordingly, we dismiss the Petitioner's appeal.

http://www.tba2.org/tba_files/TCCA/2011/jonesc_111511.pdf

STATE OF TENNESSEE v. JAMES JOHN LEWIS

Court: TCCA

Attorneys:

James John Lewis, pro se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General, and Sallie Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, James John Lewis, pled guilty to four counts of rape of a child and four counts of incest, and the trial court sentenced him to an effective sentence of twenty-five years, twenty years of which to be served at 100% and the remaining five years to be served at 30%. Two years later, the Defendant filed a petition to correct an illegal sentence and to withdraw his guilty plea, contending that he was not informed his sentence required that he be placed on community supervision for the remainder of his life. The trial court summarily dismissed the petition. On appeal, the Defendant contends the trial court erred when it dismissed his petition. Finding no error, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/lewisj_111511.pdf

STATE OF TENNESSEE v. ERIC RICARDO MIDDLETON

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public Defender, Tennessee, for the appellant, Eric Ricardo Middleton.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Eric Ricardo Middleton, was convicted by a Madison County Circuit Court jury of first degree premeditated murder; second degree murder, a Class A felony; and tampering with the evidence, a Class C felony. He was sentenced to an effective term of life imprisonment plus twenty-five years. On appeal, the defendant argues that: (1) the trial court erred in allowing the doctor who performed the autopsies on the victims to testify as an expert; (2) the trial court erred in denying his request for a jury instruction that Mary Thompson, the co-defendant, was an accomplice as a matter of law; (3) the evidence was insufficient to sustain his convictions; and (4) the trial court erred in imposing partial consecutive sentences. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/middletone_111511.pdf

STATE OF TENNESSEE v. JESSIE LEE PALMER

Court: TCCA

Attorneys:

Martin E. Dunn, Dyersburg, Tennessee for the Defendant-Appellant, Jessie Lee Palmer.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Jessie Lee Palmer, pled guilty in the Circuit Court of Dyer County to promotion of methamphetamine manufacture, a Class D felony. He was sentenced as a Range II, multiple offender and received four years' imprisonment. Pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, Palmer reserved certified questions of law addressing whether the trial court erred in denying his motion to suppress evidence obtained following the stop and search of a taxicab in which Palmer was a passenger. In this appeal, the Defendant-Appellant, raises the following issues for our review: (1) whether he has standing to challenge the search; (2) whether the officers had reasonable suspicion to stop the car; (3) whether the taxicab driver's consent to search was obtained as a result of an illegal stop; and (4) whether the evidence seized from the taxicab should have been suppressed as fruit of the poisonous tree. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/palmerj_111511.pdf

STATE OF TENNESSEE v. JOSEPH TIPLER

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellee, Joseph Tipler.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: MCMULLEN

The state appeals from the post-conviction court's judgment granting the petitioner a new sentencing hearing. A Shelby County jury convicted the petitioner on two counts of aggravated kidnapping, two counts of aggravated assault, one count of assault, and one count of aggravated burglary. The trial court - Division One of the Shelby County Criminal Court - sentenced him as a Range II, multiple offender to an effective sentence of twenty years in the Tennessee Department of Correction, with a release eligibility of thirty-five percent on all counts. The petitioner's habeas corpus petition alleged that a release eligibility of thirty-five percent was illegal for his aggravated kidnapping convictions. The habeas court - Division Five of the Davidson County Criminal Court - agreed, and it vacated his sentences for aggravated kidnapping. The habeas court remanded the case to Division One of the Shelby County Criminal Court - for a new sentencing hearing in accordance with Tennessee Code Annotated section 40-35-501. On remand, the trial court corrected the judgment forms to reflect the 100% release eligibility required by statute for the aggravated kidnapping convictions but did not conduct a hearing. The petitioner filed a petition for post-conviction relief alleging that the corrected judgments were void and that the entry of corrected judgments violated double jeopardy. The post-conviction court - Division Eight of the Shelby County Criminal Court - granted relief, vacating the corrected judgments and remanding the case to Division One of the Shelby County Criminal Court for a new sentencing hearing. The state appeals the post-conviction court's order, arguing that the only possible remedy for the petitioner was the entry of corrected judgments. Following our review, we reverse the post-conviction court's order granting relief and dismiss the post-conviction petition.

http://www.tba2.org/tba_files/TCCA/2011/tiplerj_111511.pdf

STATE OF TENNESSEE v. GERALD JAMES WINGARD

Court: TCCA

Attorneys:

James Davidow and Manuel B. Russ, Nashville, Tennessee, for the appellant, Gerald James Wingard.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Hugh T. Ammerman, III, and Antoinette Welch, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Gerald James Wingard, was convicted of aggravated robbery, a Class B felony, and sentenced to ten years as a Range I offender. On appeal, the defendant claims that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred by denying his request for a particular jury instruction; and (3) the trial court erred by refusing to apply certain mitigating factors offered by the defendant at sentencing. After careful review of the record, we discern no error and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/wingardg_111511.pdf

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Budget negotiators cut LSC by $50 million

U.S. House and Senate budget negotiators reportedly have agreed to fund the Legal Services Corporation (LSC) at $348 million during FY 2012 -- a $50 million cut from the current funding level. The House originally had proposed a budget of $300 million, while the Senate had recommended $396.1 million. Of the new total, $322.4 million will fund basic field grants for legal services agencies. The LSC reports the agreement is scheduled to be on the House floor for a vote this week.

Learn more about the agreement

Senate may hold hearings on law school transparency

According to the Wall Street Journal, an unnamed staffer says U.S. senators are "strongly considering" holding hearings into the controversy over law-school transparency. Sens. Barbara Boxer Boxer, D-Calif., and Charles Grassley, R-Iowa, already have written to the American Bar Association to request information and express concerns about the transparency of graduates' employment. More recently, Boxer and Sen. Tom Coburn, R-Okla., asked education officials to turn over detailed information about law school tuition, finances, job placement, bar passage and student debt.

The ABA Journal has more

ABA considers new rules for law schools

The American Bar Association (ABA) Standards Review Committee is moving quickly on proposed new accreditation rules that would expand the amount of consumer information law schools would be required to publicly disclose. If adopted, the changes would require disclosure of information about admissions, tuition and fees, enrollment, curriculum, scholarships, library resources, facilities, bar passage rates and graduates' employment outcomes. The committee also is considering whether to make the Law School Admissions Test optional, and if so, what data schools would have to disclose about accepted students who do not take the test.

The ABA Journal has more

Perry calls for term limits on federal judges

Gov. Rick Perry of Texas, a contender for the Republican presidential nomination, today announced his "Uproot and Overhaul Washington" proposal, which includes plans to end lifetime tenure for all federal judges, cut congressional pay and reduce the length of congressional sessions. With regard to the judges, Perry proposed 18-year terms, staggered every two years -- a move that would require an amendment to the U.S. Constitution.

USA Today has more on the story

Case of alleged court shooter sent to grand jury

A man accused of shooting at two people outside Nashville's A.A. Birch Criminal Court building earlier this month was in court for a preliminary hearing Monday. Tyree Gray faces an attempted homicide charge as well as 11 other counts from prior incidents, including reckless endangerment, contributing to the delinquency of a minor, retaliation and driving with a suspended license. On Monday, the charges were bound over to the grand jury.

WSMV.com has the story

Nashville lawyer to chair ABA committee

Nashville lawyer Stephen Zralek has been appointed to chair the American Bar Association's IP Law Copyright Litigation Committee. Zralek, a member at Bone McAllester Norton PLLC, says he will use the post to urge Congress to amend the Copyright Act to clarify the requirements for filing infringement suits since no uniform standard currently exists.