Foundation announces grant process

The Knoxville Bar Foundation has announced the application process for its 2012 grants, which support local activities related to the administration of justice, public understanding of and confidence in the legal system, and service to the legal profession. Since 1997, the foundation has awarded $250,000 in grants for law-related programs in the Knoxville area. Grant applications should be submitted by Feb. 17.

Learn more 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.

00 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
05 - 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.

MARIE AKINS v. WHIRLPOOL CORPORATION

Court: TWCA

Attorneys:

D. Russell Thomas and Melinda K. Brown, Murfreesboro, Tennessee, for the appellant, Marie Akins.

David T. Hooper, Brentwood, Tennessee, for the appellee, Whirlpool Corporation.

Judge: ALISSANDRATOS

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Marie Akins ("Employee") alleges that she developed carpal tunnel syndrome in her left wrist while employed as a factory worker by Whirlpool Corporation ("Employer"), prior to the closure of Employer's plant in August 2008. Employer denies that Employee's carpal tunnel syndrome in her left wrist was caused by her employment with it. The trial court found that Employee's left-wrist carpal tunnel syndrome was not caused by her employment with Employer and that Employer therefore is not liable for this injury. Employee has appealed, contending both that the evidence preponderates against the trial court's finding and that Employer is estopped from denying liability based on delay in the diagnosis of Employee's carpal tunnel syndrome in her left wrist. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TSC_WCP/2012/akinsm_020112.pdf


TAMMY L. LEE v. DURA OPERATING CORP., ET AL.

Court: TWCA

Attorneys:

Ben Boston and Ryan P. Durham, Lawrenceburg, Tennessee, for the appellants Dura Operating Corporation, et al.

Richard T. Mathews, Columbia, Tennessee; Wayne Hairrell, Lawrenceburg, Tennessee (trial) for the appellee, Tammy L. Lee.

Judge: ALISSANDRATOS

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Tammy L. Lee ("Employee") alleges that she suffered an injury to her cervical spine while she was employed as a factory worker by Dura Operating Corporation ("Employer") . Employer denies that Employee's cervical spine injury was caused by her employment with Employer. The trial court determined that Employee's cervical spine condition was a work-related aggravation of her pre-existing degenerative disc disease. The trial court awarded Employee temporary total benefits from November 8, 2007, to February 8, 2008. Finding that Employee had not been able to return to work, the trial court refused to apply the statutory cap and awarded Employee permanent partial disability benefits of 69% to the body as a whole, three times her anatomical impairment rating of 23% to the body as a whole. Finding that the evidence preponderates against the trial court's determination of causation, we reverse the trial court's judgment.

http://www.tba2.org/tba_files/TSC_WCP/2012/leet_020112.pdf


ADELAIDA FIELDING ET AL. v. THE METROPOLITAN GOVERNMENT OF LYNCHBURG, MOORE COUNTY, TENNESSEE ET AL.

Court: TCA

Attorneys:

J. Stanley Rogers and Edward H. North, Manchester, Tennessee, for the appellants, Adelaida Fielding and Roger Johnson and wife, Julia Ann Johnson.

Ginger Bobo Shofner, Shelbyville, Tennessee, for the appellee, The Metropolitan Government of Lynchburg, Moore, County, Tennessee.

Vincent R. Ambrose, Jr., Tullahoma, Tennessee, Pro Se.

Judge: CLEMENT

The plaintiffs filed this declaratory judgment action seeking to invalidate a re-zoning ordinance on the grounds that it constitutes illegal "spot zoning," and that the re-zoned area was improperly classified in violation of the local general zoning ordinance. The trial court upheld the re-zoning ordinance, finding it was enacted in furtherance of public safety goals and that the re-zoning classification was reasonable and rational. We affirm.

http://www.tba2.org/tba_files/TCA/2012/fieldinga_020112.pdf


SHREE KRISHNA, LLC, D/B/A QUIZNO'S CLASSIC SUBS v. BROADMOOR INVESTMENT CORP.

Court: TCA

Attorneys:

S. Newton Anderson and Paul R. Sciubba, Memphis, Tennessee, for the Defendant/Appellant Broadmoor Investment Corp.

Lewis L. Cobb and Sara E. Barnett, Jackson, Tennessee, for the Plaintiff/Appellee Shree Krishna, LLC, d/b/a Quizno's Classic Subs.

Judge: KIRBY

This case involves the breach of a commercial lease. The plaintiff leased property from the defendant for a franchise restaurant. The lease granted the plaintiff options to renew for two additional lease periods. The parties' agreement with the franchisor provided that the lease and the options were assignable, and that the landlord's consent to the assignment could not be unreasonably withheld. The plaintiff sought to assign the lease and the renewal options to a third party. The defendant landlord refused to consent to the assignment and attempted to negotiate a new lease with the prospective assignee on different terms. After the assignee withdrew its offer to purchase the plaintiff's franchise, the plaintiff agreed to sell it to the assignee for a reduced price. The plaintiff then filed this lawsuit against the defendant landlord for breach of contract, alleging that it unreasonably withheld consent to the original proposed assignment. After a bench trial, the trial court held in favor of the plaintiff. The defendant landlord now appeals. We affirm, finding that the evidence supports the trial court's conclusion that the defendant landlord unreasonably withheld consent in order to extract an economic concession or improve the landlord's economic position.

http://www.tba2.org/tba_files/TCA/2012/krishnas_020112.pdf


STATE OF TENNESSEE v. DENNIS WAYNE BREWER

Court: TCCA

Attorneys:

Paul E. Meyers, II, Assistant Public Defender, for the appellant, Dennis Wayne Brewer.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Anna B. Cash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Dennis Brewer, was convicted by a Madison County jury of DUI and DUI per se. He then pled guilty to DUI, third offense, a Class A misdemeanor. The trial court merged the convictions and sentenced him to eleven months and twenty-nine days in the county jail, with a minimum of nine months to serve prior to release into a rehabilitative program. The sole issue the defendant raises on appeal is whether the evidence was sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2012/brewerd_020112.pdf


STATE OF TENNESSEE v. GLYN DALE

Court: TCCA

Attorneys:

Aubrey L. Davis, Knoxville, Tennessee, for the appellant, Glyn Dale.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Steve Sword, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Glyn Dale, appeals the Knox County Criminal Court's ordering him to serve concurrent twenty-five-year sentences for two convictions of rape of a child. On appeal, the appellant contends that his sentences are excessive. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2012/daleg_020112.pdf


STATE OF TENNESSEE v. LESTER PAUL DOYLE

Court: TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender; and Richard W. DeBerry, Assistant Public Defender, for the appellant, Lester Paul Doyle.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Hansel Jay McCadams, District Attorney General; and Ed N. McDaniel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Lester Paul Doyle, pled guilty in the Hardin County Circuit Court to three counts of aggravated burglary based on offenses he committed while serving a community corrections sentence for drug convictions in a prior case. At the sentencing hearing, the trial court revoked the defendant's community corrections sentence in the drug case and sentenced the defendant to serve concurrent terms of four years in the Department of Correction in the aggravated burglary case, with the aggravated burglary sentences to be served consecutively to the sentences in the drug case. The defendant now appeals the trial court's sentencing determinations, arguing that his community corrections sentence in the drug case should not have been revoked and that the trial court should have sentenced him to some form of alternative sentencing in the aggravated burglary case. He does not challenge the trial court's order of consecutive sentencing. Following our review, we affirm the sentencing determinations of the trial court but remand for correcting clerical errors and the entry of corrected judgment forms to reflect that the aggravated burglary sentences in case number 9354 are to be served consecutively to the drug sentences in case number 9201.

http://www.tba2.org/tba_files/TCCA/2012/doylel_020112.pdf


STATE OF TENNESSEE v. JEFFREY I. PARSONS

Court: TCCA

Attorneys:

Paul Julius Walwyn, Madison, Tennessee, for the appellant, Jeffrey I. Parsons.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Linda Walls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Following the Wilson County Circuit Court's denial of his motion to suppress, the defendant, Jeffrey I. Parsons, pleaded guilty to one count of driving under the influence of an intoxicant (DUI), first offense, see T.C.A. sections 55-10-401 (2006), seeking to reserve a certified question of law concerning the legality of the stop leading to his arrest. Because the certified question was not properly reserved for review, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2012/parsonsj_020112.pdf


STATE OF TENNESSEE v. DENNIS LEE ROSE

Court: TCCA

Attorneys:

Larry R. Dillow, Kingsport, Tennessee, for the appellant, Dennis Lee Rose.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Sullivan County Criminal Court Jury convicted the appellant, Dennis Lee Rose, of first degree premeditated murder and two counts of aggravated assault. The trial court sentenced him to concurrent sentences of life for the murder conviction and three years for each of the aggravated assault convictions. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions; (2) the trial court erred by admitting evidence of prior bad acts under Rule 404(b), Tennessee Rules of Evidence; (3) the trial court erred by refusing to allow the defense to use the prosecutor's notes for impeachment and by refusing to allow the defense to make an offer of proof regarding the State's failure to provide the notes to the defense before trial; (4) the trial court erred by refusing to allow the defense to present surrebuttal testimony; and (5) the appellant's convictions for premeditated murder and one count of aggravated assault violate double jeopardy. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2012/rosed_020112.pdf


TODAY'S NEWS

Legal News
U.S. Supreme Court
Upcoming
Correction
Disciplinary Actions
Career Opportunities
TBA Member Services

Legal News
Pretrial diversion denied for former prosecutor
Judge Duane Slone has upheld the denial of pretrial diversion for former Rogersville prosecutor Doug Godbee, who faces one count of official misconduct in connection to sex-for-leniency allegations involving nine female drug defendants. Godbee's attorney, Paul Whetstone, said he intends to appeal the decision. Godbee served as Rogersville's chief prosecutor for more than three decades prior to his resignation in September 2010.
The Times News has more
Prosecutors object to use of Baumgartner file
Knox County prosecutors are objecting to the use of former Knox County Criminal Court Judge Richard Baumgartner's Tennessee Bureau of Investigation file in cases challenging Baumgartner's fitness on the bench. Though the district attorney permitted use of the file in the Christian/Newsom case, it says that was to "hurry along a decision in those high-profile cases," not to give blanket approval for use by every defendant seeking a new trial. Assistant District Attorney General Leland Price told the News Sentinel that the office never imagined Special Judge Jon Kerry Blackwood would use the file to justify the new trials and that he was wrong to do so.
Learn more here
Judge concludes Withers was FBI informant
U.S. District Judge Amy Berman Jackson ruled Tuesday that Memphis photographer Ernest Withers indeed was an informant for the FBI. She also ordered the FBI to produce an index of any and all records in his file by March 16 to more fully disclose the extent of and scope of his work for the bureau. The ruling came in a case brought by The Commercial Appeal.
The paper reports the latest here
Memphis Law names first public interest counselor
The University of Memphis School of Law has named Callie Caldwell as the first public interest counselor in its Office of Career Services. Caldwell, a 2010 graduate of the school, will assist the school in implementing a mandatory pro bono requirement that goes into effect with the entering class of 2012. Among her duties, she will help each student identify appropriate pro bono activities, as well as inform and advise students about public interest, government and judicial clerkship opportunities. She also will assist with general career placement.
Learn more about Caldwell in this press release from the school
Baker Donelson acquires second Houston firm
Baker, Donelson, Bearman, Caldwell & Berkowitz PC has merged with the Houston law firm of Drucker, Rutledge & Smith LLP, marking its second acquisition in Texas in less than four months. In October, Baker Donelson merged with Houston-based Spain Chambers, giving the firm its first Texas location. The latest merger, the firm says, is part of its plan to build a solid business litigation presence in Houston. Attorneys from the local firms will move into a new location in downtown Houston in March.
Read more from the firm
ABA meeting kicks off in New Orleans
The American Bar Association's Midyear Meeting opens in New Orleans today with high-profile speakers and panelists scheduled to address the gathering. On Friday, former Alabama Chief Justice Sue Bell Cobb will participate in a program about state court funding. On Saturday, former solicitor general Theodore Olson and lawyer David Boies -- co-chairs of the ABA Task Force on Preservation of the Justice System -- will discuss solutions to justice system funding cuts. Also on Saturday, U.S. Attorney General Eric Holder will speak at the Summit on Indigent Defense Improvement. That evening, U.S. Supreme Court Justice Antonin Scalia will receive the Distinguished Honorary Fellow Award from the American Bar Foundation.
The ABA Journal has more on the programming
U.S. Supreme Court
Opinion: Recent decisions curtail civil rights claims
Erwin Chemerinsky, dean of the University of California Irvine School of Law, writes in the ABA Journal that two recent Supreme Court decisions will make it more difficult for civil rights plaintiffs to succeed. The cases, Minneci v. Pollard and Ryburn v. Huff, reflect "a significant, though unstated, change in the law," he says. In the first case, the court held that prison guards at private prisons contracting with the federal government no longer may be sued for constitutional violations if state law provides a remedy. In the second, the court found that police officers were protected by qualified immunity when they entered a home without a warrant or permission. Chemerinsky suggests that these cases continue a recent trend by the court to make it harder for plaintiffs to go forward in federal court.
Read more here
Upcoming
Harvard professor to speak on negotiation tactics
Harvard Law Professor Robert Mnookin will speak on his book "Bargaining with the Devil" at the University of Memphis School of Law at 4 p.m. on Feb. 8. The lecture, which is free and open to the public, will feature Mnookin's views on the art and science of negotiation. The lecture will be held in the Wade Auditorium. A reception will follow the presentation. For more information, contact Chelsea Dubey at ctdubey@memphis.edu.
Get details from the school's site
Correction
A story in Tuesday's issue of TBA Today providing an overview of stories in the February Tennessee Bar Journal misspelled an author's name. This month's labor and employment law column was contributed by Edward Phillips and Steven Kramer, both with Kramer Rayson LLC in Knoxville.
Read the new issue here
Disciplinary Actions
Knoxville lawyer suspended
On Jan. 24, the Tennessee Supreme Court suspended the law license of Knoxville attorney Wesley Markland Baker for at least two years and then indefinitely thereafter until he makes full restitution to his client and/or the Lawyer's Fund for Client Protection. The action was taken after the court found that Baker sought and received a loan from a client in violation of a court order, and then did not repay it.
Download the BPR notice
Career Opportunities
Firm seeks lawyer in Memphis
The law firm of Leitner Williams Dooley & Napolitan is seeking an experienced lawyer to serve in its Memphis office. Candidates should have defense litigation experience, strong academic background, analytical abilities, exceptional communication skills and commitment to providing outstanding client services. Candidates should send a cover letter (explaining their connection to Memphis or reason for relocating), resume, salary requirements, references and a writing sample to Kathy Howell at kathy.howell@leitnerfirm.com or to 801 Broad Street, Chattanooga, TN 37402.
Get details on JobLink
Reminder: Apply for 6th Circuit clerk by Monday
The U.S. Court of Appeals for the 6th Judicial Circuit is accepting applications for the position of clerk of court through Monday, Feb. 6. The clerk of court is a senior court manager that oversees a staff of 45 employees and exercises broad management and administrative responsibilities. The incumbent provides management leadership and direction for the court of appeals and its senior staff in planning, developing, implementing, securing and maintaining the court's business resources.
Download the job announcement
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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 2012 Tennessee Bar Association