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| Thursday, December 15, 2011 |
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Today is the Bill of Rights' birthday
Americans celebrate the Fourth of July in a big way, yet the day the Bill of Rights was born is largely ignored.
Our Bill of Rights, the First Amendment Center reminds us, is a document that guarantees core personal liberties, including freedom of expression and faith, a fair judicial process, the right to bear arms and protection against unreasonable government searches.
"The irony is that most of us honor the Fourth of July because we believe it's a day on which Americans secured their freedom," First Amendment Center President Ken Paulson writes. "But the truth is that the Declaration of Independence really only secured freedom for white and wealthy men. It took freedom of speech, press, religion, petition and assembly -- the five freedoms of the First Amendment -- to lead to suffrage for women, the emancipation of slaves and equality for all."
Learn more from the First Amendment Center
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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
01 - 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.
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MICHAEL LIND v. BEAMAN DODGE, INC., d/b/a BEAMAN DODGE CHRYSLER JEEP ET AL.
With Concurring Opinion
Court: TSC
Attorneys:
J. Britt Phillips and Joy B. Day, Franklin, Tennessee, for the appellant, Beaman Dodge, Inc.
Mark P. Chalos, Nashville, Tennessee, for the appellee, Michael Lind.
Judge: WADE
The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer. Over one year after the order granting nonsuit, the manufacturer declared
bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal. This Court granted the seller's application
for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. Because, however, the second suit alleged acts of negligence on the part of the seller, an
exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.
http://www.tba2.org/tba_files/TSC/2011/lindm_121511.pdf
CLARK concurring
http://www.tba2.org/tba_files/TSC/2011/lindm_CON_121511.pdf
JEFFREY L. DILLON v. NICA, INC., ET AL.
Court: TCA
Attorneys:
W. I. Howell Acuff, Cookeville, Tennessee, for the appellants, NICA, Inc., and Thomas M. McGrath.
Jon E. Jones and Andrew R. Binkley, Cookeville, Tennessee, for the appellee, Jeffrey L. Dillon.
Judge: DINKINS
After his claim for insurance benefits for an injury sustained while making a delivery was denied, plaintiff filed suit against the delivery company, the company providing the insurance coverage and its president, and the third party administrator of the insurance plan, asserting causes of action for breach of contract, violation of the Tennessee Consumer Protection Act,
and conspiracy to evade the Tennessee Workers' Compensation Act. The jury found the company providing the insurance and its president liable for violation of the Consumer Protection Act and awarded compensatory and punitive damages. On appeal, the insurance company and president contend that the trial court erred in finding that the plaintiff was an
employee of delivery company rather than an independent contractor, in excluding various exhibits and testimony, in denying the president's motion for a directed verdict, and in awarding punitive damages. Because the punitive damage awarded was predicated on the violation of the Tennessee Consumer Protection Act, which does not authorize an award of punitive damages, the award of punitive damages is vacated and the case remanded for a determination of whether an award of treble damages under the Consumer Protection Act should be awarded. In all other respects, the judgment and rulings are affirmed.
http://www.tba2.org/tba_files/TCA/2011/dillonj_121511.pdf
STATE OF TENNESSEE v. DAVID HOOPER CLIMER, JR.
Court: TCCA
Attorneys:
Sam J. Watridge (at trial and on appeal) and Joseph Tubbs (at trial), Humboldt, Tennessee, for the appellant, David Hooper Climer, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Garry G. Brown, District Attorney General; and Larry Hardister and Stephanie J. Hale, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: OGLE
A Gibson County Circuit Court jury convicted the appellant, David Hooper Climer, Jr., of first degree premeditated murder and abuse of a corpse, and the trial court sentenced him to consecutive sentences of life and two years, respectively. On appeal, the appellant contends that (1) the evidence is insufficient to support the premeditated murder conviction and shows he was insane when he abused the victim's corpse, (2) the trial court should have granted his
motion to sever, (3) the trial court should have granted his motion to suppress his statements to police, (4) he was denied his right to a speedy trial, and (5) the trial court should have dismissed a prospective juror for cause. Based upon our review of the record and the parties' briefs, we conclude that the evidence is insufficient to support the appellant's conviction of
first degree premeditated murder but that the evidence is sufficient to support a conviction for the lesser-included offense of second degree murder. The appellant's first degree murder conviction is reduced to second degree murder, and the case is remanded to the trial court for resentencing. The appellant's conviction of abuse of a corpse is affirmed.
http://www.tba2.org/tba_files/TCCA/2011/climerd_121511.pdf
FRANCINE L. GOSS V. STATE OF TENNESSEE
Court: TCCA
Attorneys:
David A. Collins, Nashville, Tennessee, for the appellant, Francine L. Goss.
Robert E. Cooper, Jr., Attorney General & Reporter; Meredith DeVault, Senior Counsel; Victor S. Johnson III, District Attorney General; Dan Hamm, Assistant District Attorney General; for the appellee, State of Tennessee.
Judge: BIVINS
The petitioner filed for post-conviction relief from two counts of facilitation of second degree murder and resulting thirty-eight-year sentence. She alleged that her guilty pleas to these offenses were not entered knowingly; that her convictions were based on a violation of her privilege against self-incrimination; and that she received ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied relief, and the petitioner has appealed. After a thorough review of the record, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/gossf_121511.pdf
RICKY NELSON V. STATE OF TENNESSEE
Court: TCCA
Attorneys:
William D. Massey and Lorna S. McClusky, Memphis, TN, and Craig Cooley, New York, NY, for the appellant, Ricky Nelson.
Robert E. Cooper, Jr., Attorney General & Reporter; John H. Bledsoe, Senior Counsel; William L. Gibbons, District Attorney General; John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: BIVINS
Ricky Nelson ("the Petitioner") filed a motion for post-conviction deoxyribonucleic acid ("DNA") testing pursuant to the Post-Conviction DNA Analysis Act of 2001, requesting DNA analysis of a knife used in the perpetration of a rape. After a non-evidentiary hearing,
the post-conviction court denied relief, and the Petitioner has appealed. After reviewing the record, we have determined, in light of the recent decision of the Tennessee Supreme Court in Powers v. State, 343 S.W.3d 36, 56 (Tenn. 2011), that a remand of the case to the post-conviction court is necessary for the post-
conviction court to consider and rule upon whether
the Petitioner has satisfied the first of four factors necessary for the Petitioner to demonstrate his right to DNA analysis and to address whether the Powers decision would affect the post-conviction court's analysis and finding on the second of the four factors.
http://www.tba2.org/tba_files/TCCA/2011/nelsonr_121511.pdf
STATE OF TENNESSEE v. BOBBY JOE YOUNG, JR.
Court: TCCA
Attorneys:
Chelsea Nicholson (on appeal), Nashville, Tennessee, and Jeffrey Grimes (at trial), Clarksville, Tennessee, for the appellant, Bobby Joe Young, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WOODALL
A Montgomery County jury convicted the defendant, Bobby Joe Young, Jr., of aggravated assault, a Class C felony. The trial court sentenced him, as a multiple offender, to serve six years in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence was insufficient to sustain his conviction. Following a review of the parties' briefs,
the record, and applicable law, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/youngb_121511.pdf
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| TODAY'S NEWS |
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Legal News
Election 2012
General Assembly News
Career Opportunities
TBA Member Services
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| Legal News |
| MALS looking for 'new money' in wake of budget cuts |
| Memphis Area Legal Services Inc. has lost $300,000 in federal government funding as a result of recent budget cuts and is
now expanding its annual fundraising drive to try to make up for it.
"In the past, most of the asks have been directed to lawyers," said
MALS fundraising chairman George T. "Buck" Lewis. "We decided we needed to find some new money. We've expanded it to ask for support from foundations and some corporations." Contribute or volunteer at
www.malsi.org.
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Read more in the Memphis Daily News
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| Journal: How the Lacey Act applies to Gibson |
| When federal agents raided the Gibson Guitar Corp.'s Nashville facilities -- seizing raw woods, completed guitars and computer equipment -- the basis was the Lacey Act.
The ABA Journal offers an "illustrated guide" on the laws and issues involved in the case. |
The ABA Journal explores it
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| Editorial: Judges should come up with discipline plan |
| In an editorial, Metro Pulse asks, "What did the Knoxville legal community know about Judge Richard Baumgartner's drug problem and when did they know it?" Suggesting that there were no safeguards in place to prevent the fallout, the paper suggests that the judges should come up with a solution because if they don't
legislators will likely do it for them.
"So rather than resist," the paper says, "perhaps a collaborative process could come up with a solution. The public is angry about this case, and the retrials may outrage them more." |
Read the editorial
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| Rhea Co. to consider new jail |
| Rhea County commissioners heard from Sheriff Mike Neal this week about the need to relieve jail overcrowding.
"If the fire marshal came in today and told me I have to move 25 or 30 inmates, I have no place to send them. It's the commission's responsibility to build a jail, not the sheriff's," Neal said. The commission plans to meet with planners and architects about the possibility of a new jail or justice center. |
The Times Free Press reports
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| Death sentences declined this year, report shows |
| New death sentences in the United States have declined 75 percent from their peak since executions resumed in the 1970s, the Death Penalty Information Center reports. It said 78 people convicted of murder were sentenced to die so far in 2011, the first time in 35 years there have been fewer than 100 new death sentences.
In Tennessee last week,
a panel of the Tennessee Court of Criminal Appeals at Jackson ruled that
Erskine Johnson deserves a new trial
after he presented new evidence that cast doubt on testimony of a key witness against him. Johnson was on death row for a 1985 murder until 1999 when his death sentence was thrown out. |
Learn more about the group's report
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| Godbee questions pretrial diversion denial |
| Former Hawkins County Assistant Attorney General Doug Godbee has petitioned a judge to overturn the denial of a petition for pretrial diversion in his official misconduct case. The charge is the result of nine complaints made by female drug defendants or mothers of female drug defendants who claim Godbee offered them leniency in court in exchange for sexual favors. |
The TimesNew.net has more
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| Election 2012 |
| It's Chumney vs. Weirich |
| Democrat Carol Chumney will be the only challenger to incumbent Republican Amy Weirich in the race for Shelby County District attorney general, now that two other Democrats have withdrawn. The Election Commission was scheduled to certify the names in this race and the race for General Sessions Court Clerk this afternoon. |
The Commercial Appeal reports
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| General Assembly News |
| Ramsey considers special session on health care |
| Senate Speaker Ron Ramsey today floated the idea of holding a special legislative session next winter if it's still necessary for Tennessee to come into line with requirements set by President Barack Obama's health care law. "Personally, I hope the Supreme Court overturns it sometime this summer and says you can't have these individual mandates that I think are blatantly unconstitutional," Ramsey told the Nashville Chamber of Commerce. |
The News Sentinel carried this AP story
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| Bell is new chair of Government Opps committee |
| Republican Senate Speaker Ron Ramsey has named Sen. Mike Bell, R-Riceville, as the new chairman of the Government Operations Committee.
Bell is replacing Sen. Bo Watson, R-Hixson, whom Ramsey named speaker pro tempore over the summer. |
The Times Free Press has this story
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| Career Opportunities |
| Judicial clerk sought in Greeneville |
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The U.S. District Court for the Eastern District of Tennessee is seeking a
judicial law clerk to serve for a three- to four-month term in its
Greeneville office. Applicants should be law school graduates and possess
excellent research and writing skills as well as proficiency with Windows
and WordPerfect. Experience on an editorial board, publication of a
noteworthy article, participation in moot court and/or high academic
standing is preferred. Applicants should submit a cover letter, resume (with
class rank), two letters of recommendation and a writing sample to J. Ronnie
Greer, U.S. District Judge, Attn: Debbie Daughtery, 220 West Depot St.,
Suite 405, Greeneville, TN 37743. Resumes will be accepted until the
position is filled.
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Learn more
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| 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.
© Copyright 2011 Tennessee Bar Association
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