The ADA Act: The First 15 Years
May 19 - Tennessee Bar Center, Nashville

On July 26, 2005, we will celebrate the 15th Anniversary of the
signing of the Americans with Disabilities Act. This session will
cover the 1-2-3’s of the ADA as we look back on where we have come
from and envision where we are headed. The Course Offerings will
include substantive sessions in:
•Title I (Litigating Employment Discrimination cases in Tennessee)
•Title II (Panel discussion of Lane v.Tennessee from the front line
attorneys)
•Title III (Recent developments in Public Accommodation Accessibility
litigation from national experts, Fox & Robertson, P.C.)

This CLE is designed to be valuable to beginners and seasoned
practitioners alike, and will be followed by a reception for all
participants to meet the faculty and network.

Today's Opinions: April 18, 2005
Volume 11 — Number 072
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • 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. • 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. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S. LONDONO
WITH CONCURRING AND DISSENTING IN PART OPINION

Court:TSC

Attorneys:                          

Glenn R. Funk and Cynthia M.Fort, Nashville, Tennessee, attorneys for
Appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston,
Texas, Attorneys for Appellant, Jonathan S. Londono.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Gordon W. Smith,Associate Solicitor General; Victor
S.(Torry) Johnson III, District Attorney General; and Bret Gunn and
Roger Moore, Assistant District Attorneys General, for the Appellee,
State of Tennessee.

David L. Raybin, Nashville, Tennessee and Wade V. Davies, Knoxville,
Tennessee, for Amicus Curiae, The Tennessee Association of Criminal
Defense Lawyers.

Judge: DROWOTA

First Paragraph:

We granted this appeal to determine whether the defendants are
entitled to relief on their claim that admission of testimony about a
co-defendant's oral statement violated their Sixth Amendment right to
confrontation and whether the defendants' sentences were imposed in
violation of their Sixth Amendment right to trial by jury. We conclude
that admission of testimony about a co-defendant's oral statement
violated the defendants' Sixth Amendment right to confrontation
because the defendants had no prior opportunity to cross-examine the
co-defendant. See Crawford v. Washington, __ U.S. __, 124 S. Ct. 1354
(2004). Nevertheless, we conclude that Gomez is not entitled to relief
on this claim because he has failed to preserve it for review and has
failed to establish the prerequisites for obtaining relief via plain
error review. Although Londono preserved the issue for plenary
appellate review, we conclude that he is not entitled to relief
because the constitutional error is harmless beyond a reasonable
doubt. Finally, we conclude that the defendants' sentences were not
imposed in violation of their Sixth Amendment right to jury trial. See
United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005); Blakely v.
Washington, __ U.S. __, 124 S. Ct. 2531 (2004). Thus, the defendants
are not entitled to relief on this claim. Accordingly, the judgment of
the Court of Criminal Appeals is affirmed.

http://www.tba.org/tba_files/TSC/2005/gomezedwin.pdf

CONCURRING/DISSENTING OPINION
http://www.tba.org/tba_files/TSC/2005/gomezedwin_con.pdf

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/2005/certlist.041805.pdf

GSB CONTRACTORS, INC. v. HARRY F. HESS, JR. and CONNIE HESS

Court:TCA

Attorneys:                          

Michael R. Tucker, Memphis, TN, for Appellant Anthony C. Pietrangelo,
Memphis, TN, for Appellees

Judge: HIGHERS

First Paragraph:

Following a hail storm which severely damaged the Appellees' home, the
Appellee contracted with the Appellant, a construction contractor, to
repair the damage. The Appellees' insurance policy covered the damage
done to the home by the hail storm, but the Appellees entered into a
collateral agreement with the Appellant to do additional work to the
home. The insurance company paid for all work done by the Appellant in
repairing the damage from the storm, but the Appellees refused to pay
the balance due on work completed under the collateral agreement
citing poor workmanship by the Appellant's subcontractors. The
Appellant subsequently filed suit against the Appellees in general
sessions court seeking to recover the balance owed. Following a
judgment in favor of the Appellant, the Appellees appealed to the
circuit court and filed a counterclaim against the Appellant.
Following a trial, the circuit court ruled in favor of the Appellees.
In proving their damages, the Appellees presented the testimony of two
expert witnesses at trial. The circuit court ruled that the proper
measure of damages was the cost of repairing the defective work. The
Appellant filed an appeal to this Court contesting the trial court's
selection of "cost of repair" as the appropriate measure of damages in
this case, as well as the trial court's evidentiary rulings regarding
certain testimony. We affirm.

http://www.tba.org/tba_files/TCA/2005/gsbcontractors.pdf

LEONARD HARTMAN v. JOHN T. MILBURN ROGERS, JERRY W. LAUGHLIN, WILLIAM
S. NUNNALLY and ROGERS, LAUGHLIN, NUNNALLY, HOOD & CRUM, P.C.

Court:TCA

Attorneys:                          

David B. Hamilton, Knoxville, Tennessee, for appellant. Thomas L.
Kilday, Greenville, Tennessee, for appellees.

Judge: FRANKS

First Paragraph:

In this legal malpractice action against attorneys, the Trial Court
granted all defendants summary judgment. On appeal, we affirm on
grounds that the statute of limitations ran before the suit was filed.

http://www.tba.org/tba_files/TCA/2005/hartmanleonard.pdf

STATE OF TENNESSEE v. JAMES AUSTIN
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Charles W.Gilchrist, Jr. and Lance Chism, Memphis, Tennessee, for the
appellant, James Austin.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Karen Cook and Stacy McEndree, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his conviction for second degree murder on the
grounds of insufficient evidence to support the verdict and the
sentence, pursuant to Blakely issues. After review, we find sufficient
evidence to support the verdict. We conclude that the two enhancement
factors used to elevate the sentence are violativeof Blakelyand,
therefore, modifythe sentence to twenty years. The cause is remanded
for modification of sentence.

http://www.tba.org/tba_files/TCCA/2005/austinjames_opn.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/austinjames_dis.pdf

STATE OF TENNESSEE v. JAMES AUSTIN

Court:TCCA

Attorneys:                          

Autumn Chastain, Memphis, Tennessee, for the appellant, Dickey Cotton.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Gail Vermaas, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals from the denial of post-conviction relief and
asserts in two issues that his guilty plea was unknowing and
involuntary due to (1) trial counsel's ineffective representation, and
(2) violations of Tennessee Rule of Criminal Procedure 11. We affirm
the denial of post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/cottondickey.pdf

ROY C. SMITH v. JAMES A. BOWLEN, WARDEN and STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; J. Michael Taylor, District Attorney
General, and James W. Pope, III, Assistant District Attorney General,
for the appellant, State of Tennessee.

B. Jeffery Harmon, Assistant Public Defender, Jasper, Tennessee, for
the appellee, Roy C. Smith.

Judge: SMITH

First Paragraph:

The petitioner, Roy C. Smith, filed a petition for writ of habeas
corpus challenging his 1996 guilty plea for rape of a child. After a
hearing, the trial court granted the petition, determining that the
judgment was not void, but that the petitioner's sentence was illegal.
The State appeals. For the following reasons, we affirm the judgment
of the trial court granting the writ of habeas corpus

http://www.tba.org/tba_files/TCCA/2005/smithroyc.pdf

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