Judicial investiture ceremonies take place this week

With judicial elections completed for another eight years, judges around the state are preparing to take office this week. Ceremonies and receptions mark the beginning of these new terms. Judges in Memphis got a jump on the rest of the state with swearing-in ceremonies today.

In Nashville, an investiture ceremony and reception for circuit and chancery court judges will be held tomorrow at 4 p.m. at the War Memorial Auditorium. TBA President Larry Wilks will participate. To RSVP for the reception, call Kitty Lammers at (615) 862-5990 or Lindy Hunter at (615) 862-5700. Separate swearing-in ceremonies will be held for criminal court judges, general sessions court judges and individual judges. Visit the Nashville Bar Association's online calendar at www.nashbar.org for more information.

In Knoxville, judges, chancellors, the district attorney and the public defender will be sworn-in tomorrow at a 4 p.m. ceremony at the Supreme Court building. On Friday, Sept. 1, general sessions court judges and the juvenile court judge will be sworn in at 9 a.m. in the main assembly room of the county building. At 1:30 p.m., appellate court judges will take the oath of office in a ceremony at the Supreme Court building. A reception will follow. For more information about any of these events, contact the Knoxville Bar Association at (865) 522-6522.

Next Thursday, Sept. 7, the Chattanooga Bar Association hosts "An Evening Honoring the Judiciary" from 5:30-7 p.m. at the Tivoli Theater Centre. The event will honor retiring judges and include a robing ceremony for new judges. To RSVP call (423) 756-3222.
TODAY'S OPINIONS
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Knoxville, Tennessee
Editor-in-Chief, TBALink

JERRY WAYNE LYNCH v. CITY OF JELLICO, ET AL.

Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, for the Appellants, State of Tennessee and Attorney General Paul G. Summers.

Jennifer M. Caywood and Chris Myatt, Knoxville, Tennessee, for the Appellants, Lincoln Memorial University and St. Paul Travelers Insurance Company.

John T. Batson, Jr., and Hanson R. Tipton, Knoxville, Tennessee, for the Appellant City of Jellico.

David H. Dunaway, LaFollette, Tennessee, for the Appellees David A. Lozano and Jerry Wayne Lynch.

Andrew C. Clarke and R. Sadler Bailey, Memphis, Tennessee, for the Amicus Curiae, Tennessee Trial Lawyers Association.

Judge: CLARK

In these consolidated workers' compensation appeals, we are asked to decide the constitutionality of various provisions of the Workers' Compensation Reform Act of 2004. Specifically at issue is whether the benefit review conference requirement embodied in Tennessee Code Annotated Sections 50-6-203(a) (2005), 50-6-225(a)(1) (2005), and 50-6-239(b) (2005), violates the due process protections of the Tennessee or United States Constitutions, the separation of powers doctrine in Article II, Sections 1 and 2 of Tennessee's Constitution, or the open courts doctrine found in Article I, Section 17, of the Tennessee Constitution. Additionally, we are asked to decide whether the method used to determine permanent partial disability benefits, namely the multiplier provisions of Tennessee Code Annotated Section 50-6-241(d)(1)(A) (2005) used in conjunction with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), violates equal protection; due process; the Tennessee Human Rights Act, Tennessee Code Annotated Section 4-21-101 (2005); and the Tennessee Handicap Act, Tennessee Code Annotated Section 8-50-103(a) (2002). The trial judge determined that each of these provisions of the Workers' Compensation Reform Act of 2004 -- the benefit review conference, the multiplier, and use of the AMA Guides -- is unconstitutional. After carefully considering the record and relevant authority, we conclude that the trial judge erred. Accordingly, the trial court's judgments are reversed.

http://www.tba2.org/tba_files/TSC/2006/lynchl_083006.pdf


WILLIAM ERIC BREWER V. THE HARTFORD

Court: TWCA

Attorneys:

Blakeley D. Matthews and James K. Simms, IV, Cornelius & Collins, LLP, Nashville, Tennessee, for the appellant, The Hartford.

Kyle C. Atkins, Adams, Flippin & Atkins, P.C., Humboldt, Tennessee, for the appellee, William Eric Brewer.

Judge: DANIEL

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for a hearing and reporting of findings of fact and conclusions of law. William Eric Brewer suffered a work-related injury December 17, 2001, while employed at the Courier Chronicle. The Hartford, the defendant, is the workers' compensation insurance carrier of the employer and has litigated this case in its individual name. The defendant contends that the trial court erred when it failed to find that Mr. Brewer's injury was proximately caused by his voluntary intoxication. After carefully considering the record, we affirm the trial court and conclude that the defendant failed to prove that the voluntary intoxication was a proximate cause of Mr. Brewer's accident.

http://www.tba2.org/tba_files/TSC_WCP/2006/brewerw_083006.pdf


PHILLIP BROW V. PENSKE LOGISTICS, INC., et al

Court: TWCA

Attorneys:

James Randall Krenis, Jackson, Tennessee, for the appellant, Phillip Brow.

Garrett M. Estep, Memphis, Tennessee, for the appellee, Penske Logistics, LLC.

Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for the appellee, Department of Labor, Second Injury Fund.

Judge: DANIEL

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, Phillip Brow, has appealed the trial court's dismissal of his workers' compensation claim. He contends that the trial court erred when it failed to award him workers' compensation benefits as a result of a fall at work that he contends aggravated a pre-existing shoulder condition. After carefully considering the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2006/browp_083006.pdf


CAROL PIPKIN v. TENNESSEE ELECTROPLATING, INC.

Court: TWCA

Attorneys:

William B. Walk, Jr., Memphis, Tennessee, for the appellant, Tennessee Electroplating, Inc.

J. Thomas Caldwell, Ripley, Tennessee, for the appellee, Carol Pipkin.

Judge: LOSER

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the evidence preponderates against the trial court's findings as to causation and extent of permanent partial disability. The employer further insists the claim should have been dismissed by the trial court because the injured worker failed to give timely written notice. We conclude the trial court's judgment should be affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2006/pipkinc_083006.pdf


IN RE: The Estate of MARJORIE LOUISE BREVARD, Decedent, W.

Court: TCA

Attorneys:

Brian T. Mansfield, Sevierville, Tennessee, for proponent/appellant.

William L. Harbison, Nashville, Tennessee, for appellees.

Judge: FRANKS

The Trial Court granted contestants of a Will summary judgment, voiding the Will. On appeal, we vacate the summary judgment.

http://www.tba2.org/tba_files/TCA/2006/brevardm_083006.pdf


STEPHEN KRUPP v. MAURA CUNNINGHAM-GROGAN

Court: TCA

Attorneys:

Donald Capparella, Nashville, Tennessee, for the appellant, Stephen Krupp.

Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Maura Cunningham-Grogan.

Judge: KOCH

This appeal involves the custody and visitation rights of the parents of a fifteen-year-old girl. The parents were already divorced by the time they moved to Tennessee. The mother was the primary residential parent, but the parties had informally agreed that the father would have more overnight visitation than was required by the Florida court's custody and visitation order. After the parents' relationship deteriorated in late 2003, the father filed a petition in the Circuit Court for Williamson County requesting that he be designated the child's primary residential parent. The mother responded by requesting that the father's visitation be reduced and that she be given sole decision-making authority over the child's religious upbringing and non-emergency healthcare. The trial court, sitting without a jury, dismissed the father's petition and granted the mother's counter-petition. The father appealed. We have concluded that the trial court properly found that there has been a material change in circumstance since the entry of the Florida custody order but that it is not in the child's best interests to modify the Florida court's custody and visitation arrangement other than to increase the father's summer visitation from three weeks to four and to vest final decision-making authority over the child’s non-emergency healthcare and religious upbringing with the mother.

http://www.tba2.org/tba_files/TCA/2006/krupps_083006.pdf


GREG LANDAICHE and wife, COLLEEN LANDAICHE, Plaintiffs/Appellees, v. JERRY JENKINS and wife, BELINDA JENKINS, Defendants, and WAYNE BYRD, Defendant/Appellant, and BUDDY MARTIN, JERRY JENKINS, BELINDA JENKINS and LEONARD F. BROWN, Intervening Petitioners, and JACK ELKINS, MARILYN ELKINS, JANIE V. LOVE, JOSEPH P. PAYNE, CHARLES PYLE, MARY HOLLINGSWORTH BYRD, KYLE ROBINETTE, WANDA ROBINETTE, and GARY WARDEN, Intervening Petitioners/Appellants, v. GREG LANDAICHE and wife, COLLEEN LANDAICHE, Respondents/Appellees
Corrected Case


Court: TCA

Attorneys:

Greg Leffew, Rockwood, Tennessee, for Appellants.

Robert Francis Chapski, Nashville, Tennessee, for Appellees.

Judge: FRANKS

The Trial Court held that the easement at issue in this case had been abandoned. On appeal, we affirm.

Description of Correction: In the opinion published on Aug. 28, 2006, the name of the appllees' attorney on page one was wrong.

http://www.tba2.org/tba_files/TCA/2006/landaicheg_corr083006.pdf


STATE OF TENNESSEE v. DARRELL DEWAYNE ARMOUR

Court: TCCA

Attorneys:

Ardena J. Garth and Donna Robinson Miller, Chattanooga, Tennessee, for the appellant, Darrell Dewayne Armour.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney Strong and Mary Sullivan Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Hamilton County Criminal Court jury convicted the appellant, Darrell Dewayne Armour, of rape and incest, and the trial court sentenced him to concurrent sentences of ten and six years, respectively. In this appeal, the appellant claims (1) that the trial court erred by admitting "fresh complaint" evidence; (2) that the trial court erred by allowing the State to say during its opening statement that the appellant refused to speak with a detective during his investigation; (3) that the State improperly allowed a prospective juror to make favorable comments about two State witnesses during voir dire; (4) that the trial court improperly allowed a nurse to testify about the victim's medical records; (5) that the State violated State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), when a police detective lost his investigative notes; and (6) that the trial court erred by refusing to apply mitigating factors to the appellant's sentences. Upon review of the records and the parties' briefs, we affirm the appellant's convictions and the length of his sentences. However, because the judgment of conviction for rape does not reflect that the appellant must serve one hundred percent of that sentence, we remand the case for entry of a corrected judgment.

http://www.tba2.org/tba_files/TCCA/2006/armourd_083006.pdf


DORMAN O'NEAL ELMORE, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Randal R. Boston (on appeal), Crossville, Tennessee; Anthony W. Turner (at trial), Crossville, Tennessee, for the Appellant, Dorman O'Neal Elmore, Jr.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William E. Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

In February 2001, the Appellant, Dorman O'Neal Elmore, Jr., was convicted by a Cumberland County jury of five counts of rape. Following a sentencing hearing, Elmore received an effective twenty-two year sentence as a violent offender. The motion for new trial, which raised the issues of: (1) sufficiency of the evidence; (2) evidentiary error; and (3) sentencing error, was filed nineteen days after the judgment had become final. Notwithstanding the trial court's lack of jurisdiction to hear the motion, a hearing was conducted, and the motion for new trial was denied. No appeal was taken, and no further action occurred for almost four years, at which time Elmore, proceeding pro se, began filing various pleadings seeking status review of his case. Eventually, Elmore was granted a "delayed appeal" of his convictions as authorized by the post-conviction act. No additional motion for new trial was filed. On appeal, Elmore seeks review of the three issues originally presented in his time-barred motion for new trial. After review, we conclude that Elmore's argument with regard to sufficiency of the evidence is without merit, as is his issue of sentencing error. The issue of evidentiary error is waived, as it was not raised in a timely motion for new trial. See Tenn. R. App. P. 3(e). Accordingly, the Appellant's judgments of conviction and effective sentence of twenty-two years are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/elmored_083006.pdf


MICHAEL McBEE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael McBee, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Michael McBee, appeals the trial court's order dismissing his petition for post-conviction relief. The state has filed a motion alternatively requesting that this court dismiss the appeal or affirm the trial court's denial of relief pursuant to Tennessee Court of Criminal Appeals Rule 20. The petition is barred by the statute of limitations and was properly dismissed. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/mcbeem_083006.pdf


STATE OF TENNESSEE v. LISA MYERS

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Joe Harrison, Assistant District Public Defender, for the Appellant, Lisa Myers.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Rebecca H. Davenport, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Lisa Myers, appeals her Sullivan County effective incarcerative sentence of eight years on her guilty-pleaded convictions of Class D theft and two worthless checks. The defendant had sought a probationary sentence or some other form of alternative sentencing, which the trial court rejected. Our review of the record discloses no basis to disturb the trial court's sentencing decision, and we affirm the judgments.

http://www.tba2.org/tba_files/TCCA/2006/myersl_083006.pdf


ANTONIO YOUNG v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Antonio Young, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Antonio Young, appeals from the order dismissing his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has failed to establish that he is entitled to habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/younga_083006.pdf


Application of Public Chapter 965

TN Attorney General Opinions

Date: 2006-08-28

Opinion Number: 06-137

http://www.tba2.org/tba_files/AG/2006/ag_06-137.pdf

TODAY'S NEWS

Election 2006
Legislative News
Legal News
TBA Member Services

Election 2006
Sells believes 52 improper votes cast
Attorneys for Judge Lillie Ann Sells were in court yesterday to contest at least 52 votes in the election that put challenger David Patterson ahead by 10 votes. Judge Ben H. Cantrell, of Nashville, denied a request for a temporary restraining order to keep Patterson from being sworn in as criminal court judge for the 13th Judicial District. The votes are to be certified by the state today. The Sells/Patterson contest and the death of Judge-Elect Larry Trail leave two trial judge seats unsettled on the eve of a new term.
Read about Sell's case in the Crossville-Chronicle
Legislative News
Sen. Cooper pleads not guilty
State Sen. Jerry Cooper pleaded not guilty yesterday to federal charges of bank fraud, mail fraud and fraud conspiracy. U.S. Magistrate Bill Carter allowed Cooper to remain free on bond pending a Nov. 6 trial date, reports the Tennessean.

Legal News
Justices OK felon blood samples
In the first ruling of its kind in Tennessee, the state Supreme Court has upheld the constitutionality of a law authorizing felons' blood to be drawn, analyzed and stored in a database. In a unanimous opinion drafted by Justice Cornelia A. Clark, the high court stated that, "We hold that the taking of a blood sample from a convicted and incarcerated felon pursuant to Tennessee's DNA collection statute is a search, but that it does not violate the U.S. Constitution when it is reasonable under the totality of the circumstances."
Download the decision here
or read the story from the News Sentinel
Lawsuit filed against Clarksville police
A female police officer has filed a discrimination lawsuit against the Clarksville Police Department, claiming she was denied a promotion because of her age and was not given the same training as male colleagues. The suit is the first gender-related lawsuit against the department, but it's the 12th discrimination lawsuit filed against the department by an officer.
The Leaf Chronicle has the story
Birch shares thoughts on stepping down
With just a few days left before retirement, Tennessee Supreme Court Justice Adolpho A. Birch Jr. sits in his office surrounded by boxes of law books, pictures and memories.
A Nashville City Paper reporter has this profile of the justice
The August issue of the Tennessee Bar Journal also featured stories on retiring Supreme Court Justices E. Riley Anderson and Adolpho Birch.
Read it online
Voting rights series continues tomorrow
The next "Get Your Right to Vote Back" town hall meeting sponsored by the ACLU of Tennessee will be held tomorrow from 6:30-8:30 p.m. at the Jefferson Street Missionary Baptist Church (2708 Jefferson Street) in Nashville. These sessions are part of an awareness campaign to educate the public about a new law that streamlines the voting restoration process for individuals who have completed a felony sentence. For details on the event,
visit the ACLU website
Equal Justice Conference announced
The Tennessee Alliance for Legal Services (TALS) will hold its annual Equal Justice Conference Sept. 27-29 at Montgomery Bell State Park. The Tennessee Bar Association is a cosponsor of this three-day event and networking opportunities for those who share a common vision for equal access to justice. Early registration through Sept. 15 is now available for $170. For more information, including a schedule of events, information on CLE credit and a registration form, call 615-627-0956 or
visit the TALS Web site
And speaking of TALS...
Erik Cole, executive director of the Tennessee Alliance for Legal Services, was elected president pro tempore of Nashville's Metro Council yesterday in a 14-13 vote. In his new position, Cole will preside over council meetings when the vice mayor is absent.
The Nashville City Paper has more on the story
Bradley county judge retires in name only
When Bradley County General Sessions Judge C. Van Deacon retires from the bench on Friday, his career will be far from over. He plans to continue working for the county's juvenile drug court and as an adjunct professor of political science at Lee University where he will teach a course on constitutional law this fall. He also plans on finishing his masters in forensic anthropology.
The Bradley News Weekly has the story
TBA Member Services
Don't lose your member benefits!
The last chance to renew your TBA membership without interrupting your subscription to the Tennessee Bar Journal, access to TBALink and eligibility for all our great member benefits is just days away. Membership must be renewed by Sept. 5 to avoid losing access to the products and services you rely on. For more information about membership and benefits, contact Membership Director Sarah Stair at sstair@tnbar.org or renew today by calling 800-899-6993 or
by visiting the TBA Web site

 
 
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