House passes 2 TBA-backed bills;
med mal deal has Ramsey support


Several pieces of the Tennessee Bar Association's legislative package this week took significant steps toward passage by the General Assembly. In addition, behind the scenes comments by legislative leaders suggest a compromise on medical malpractice legislation could fall in place next week.

http://www.tba2.org/tbatoday/legislation/2007/legis_031507.html

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, 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 http://www.tba.org/getpassword.mgi.

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00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
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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. TIMOTHY FLOOD

Court: TSC

Attorneys:

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellant, State of Tennessee.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellee, Timothy Flood

Judge: BARKER

The defendant was convicted of four counts of rape of a child in violation of Tennessee Code Annotated section 39-13-522. At the trial, the defendant attempted to present testimony from the victim's father about statements made by the victim. The victim had made two statements to her father that the defendant argued rebutted the victim's testimony and suggested that a third party had committed the crimes. The trial court excluded the evidence because the testimony was hearsay and because the defendant had failed to question the victim about the statements during crossexamination. The Court of Criminal Appeals held that while the trial court properly applied the rules of evidence, the evidence was improperly excluded because the exclusion denied the defendant his right to present a defense. We hold that the trial court correctly excluded both statements as inadmissible extrinsic evidence of prior inconsistent statements even though one of the statements was non-hearsay. We also hold that the trial court's exclusion of the evidence in this case does not rise to the level of a constitutional violation because the excluded evidence was not critical to the defense. The judgment of the Court of Criminal Appeals is reversed.

http://www.tba2.org/tba_files/TSC/2007/floodt_031507.pdf


JAMES L. WILLIAMS ET AL. v. JORDAN LEE FOX

Court: TSC

Attorneys:

Brian T. Mansfield, Sevierville, Tennessee, for the appellant, Jordan Lee Fox.

Charles S. Sexton, Sevierville, Tennessee, for the appellees, James L. Williams, Brenda G. Williams,Charles Roberson, and Marjorie Roberson.

Kurtis J. Winstead, Nashville, Tennessee, for the Amicus Curiae, Tennessee Manufactured Housing Association.

Judge: BARKER

We granted permission to appeal in this case to determine whether a subdivision's restrictive covenant that specifically prohibited "mobile homes" and "trailers" includes a restriction on "modular homes." The plaintiffs obtained a temporary injunction against the defendant prohibiting him from erecting a modular home on his property. Following a hearing before the trial court, the plaintiffs were granted a permanent injunction and the defendant was ordered to remove the partially erected structure from his property. The trial court held that the subdivision's restrictive covenant prohibiting mobile homes and trailers extended to include modular homes as well. The Court of Appeals affirmed the injunction. We reverse, holding that "modular homes" are distinct types of structures from "mobile homes" and "trailers" and because the restrictive covenant did not expressly prohibit "modular homes," the courts cannot expand the plain wording of the covenant to include the defendant's modular home.

http://www.tba2.org/tba_files/TSC/2007/williamsj_031507.pdf


NEVA JUNE SMITH v. TENNESSEE FARMERS LIFE REASSURANCE COMPANY ET AL.

Court: TCA

Attorneys:

Robert B. Littleton and David L. Johnson, Nashville, Tennessee, for the appellant, Tennessee Farmers Life Reassurance Company.

Clinton H. Swafford, Winchester, Tennessee, for the appellee, Neva June Smith.

Judge: KOCH

policyholder. Following the policyholder's death, the insurance company declined to honor the policy because it had ascertained that the policyholder's application for insurance contained misrepresentations regarding matters that, if known, would have affected its decision to issue the policy. The policyholder's widow filed suit in the Chancery Court for Franklin County to force the company to honor the policy. Following a bench trial, the trial court found that the policyholder had made misrepresentations on his application but that these misrepresentations did not increase the insurance company's risk of loss. Accordingly, the trial court ordered the insurance company to pay the policyholder's widow and estate $115,000. The insurance company has appealed. We have determined that the evidence does not support the trial court's conclusion that the policyholder's misrepresentations did not increase the insurance company's risk of loss.

http://www.tba2.org/tba_files/TCA/2007/smithn_031507.pdf


STATE OF TENNESSEE v. SCOTTIE ELLIS CLARK

Court: TCCA

Attorneys:

Brent Horst, Nashville, Tennessee, for the Appellant, Scottie Ellis Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and Will Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Scottie Ellis Clark, appeals the revocation of his probation by the Franklin County Circuit Court. In 2000, Clark entered a "no contest" plea to attempted aggravated sexual battery and received a six-year suspended sentence with supervised probation. In 2005, a probation violation warrant was issued alleging that Clark had violated his probation by committing new crimes. Clark asserts that the trial court abused its discretion when it revoked his probation and that the State engaged in prosecutorial misconduct which deprived him of due process during his revocation hearing. After review, we find no error and affirm the judgment.

http://www.tba2.org/tba_files/TCCA/2007/clarks_031507.pdf


STATE OF TENNESSEE V. BILLY ALFRED MATHES

Court: TCCA

Attorneys:

D. Clifton Barnes, Morristown, Tennessee, for the Appellant, Billy Alfred Mathes

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; C. Berkeley Bell, District Attorney General; Cecil Mills, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WEDEMEYER

The Defendant, Billy Alfred Mathes, was convicted by a Greene County jury of burglary. On appeal, he alleges there was insufficient evidence for any rational jury to convict him of that crime and that his sentence of six years was excessive. Finding no error exists, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mathesb_031507.pdf


JERRAL D. PARRIS V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick G. Frogge (on appeal), Nashville, Tennessee, and Charles P. Dupree (at trial), Chattanooga, Tennessee, for the Appellant, Jerral D. Parris.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Dale Potter, District Attorney General; Thomas J. Miner, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Jerral D. Parris, was indicted on two counts of extortion. A Warren County jury convicted the Defendant of two counts of attempted extortion. On appeal, the Defendant alleges the following: (1) attempted extortion is not a crime in Tennessee; (2) there was insufficient evidence to convict the Defendant of attempted extortion; (3) the trial court improperly denied a motion for a change of venue; (4) the trial court erred in refusing to allow the Defendant to test and inspect audio tape evidence; (5) the trial court erred in not declaring a mistrial after the Defendant was compared to a notorious murderer; (6) the trial court erred by failing to instruct the jury as to the affirmative defense to extortion; and (7) the trial court erred in sentencing the Defendant. After a thorough review of the record and applicable law, we determine that attempted extortion is a crime in Tennessee and that there was sufficient evidence to convict the Defendant of this crime. His conviction, however, must be reversed because the trial court improperly refused to allow a jury instruction on an applicable affirmative defense. Thus, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2007/parrisj_031507.pdf


STATE OF TENNESSEE v. CHRISTOPHER NATHANIEL RICHARDSON

Court: TCCA

Attorneys:

Emma Rae Tennent (on appeal), Graham Prichard and Kyle F. Mothershead (at hearing), Nashville, Tennessee, for the appellant, Christopher Nathaniel Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Christopher Nathaniel Richardson, pled guilty to one count of possession of a controlled substance with the intent to deliver, and he was sentenced as a Range II multiple offender to seven years of supervised probation, with the first year to be served on intensive probation. After two probation violation warrants were issued based upon two arrests and other violations, the trial court revoked the Defendant's probation and ordered him to serve his sentence in confinement. It is from this judgment that the Defendant now appeals, contending that, while the trial court was within its discretion to revoke his probation, his violation does not warrant the imposition of his entire sentence. Concluding there exists no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/richardsonc_031507.pdf


STATE OF TENNESSEE V. EDGAR LEWIS RIES

Court: TCCA

Attorneys:

William C. Barnes, Jr., Columbia, Tennessee, for the Appellant, Edgar Lewis Ries.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Mike McCown, District Attorney General; Weakley E. Barnard and Brooke Grubb, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Marshall County jury convicted the Defendant, Edgar Lewis Ries, of attempted first degree murder and conspiracy to commit first degree murder. The Defendant was sentenced to concurrent terms of twenty years for his convictions. On appeal, he alleges there was insufficient evidence to support his convictions and that the trial court erred when it sentenced him. Finding no error exists, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/riese_031507.pdf


TODAY'S NEWS

Supreme Court Watch
Legal News
Upcoming
TBA Member Services

Supreme Court Watch
Deadline near for those seeking Supreme Court post
Applicants who want to be considered for the Tennessee Supreme Court vacancy have until 4 p.m. on Friday (March 16) to submit applicant questionnaires to the Administrative Office of the Courts. Sixteen candidates so far have applied.
See a full list of candidates
Legal News
Committee may subpoena Rove, Miers and Kelley
The Senate Judiciary Committee was to meet today to consider subpoenas for three White House officials who were involved in the controversial firing of eight federal prosecutors: President Bush's political adviser Karl Rove, former White House Counsel Harriet Miers and deputy White House counsel William Kelley, all of whom exchanged e-mails for two years with the Justice Department about the firings.
WMC-TV Channel 5 has the story
Republican calls for Gonzales' firing
Sen. John Sununu of New Hampshire on Wednesday became the first Republican in Congress to call for Attorney General Alberto Gonzales' dismissal. The president expressed confidence in Gonzales, a longtime friend, but left himself room to sack the attorney general. "What was mishandled was the explanation of the cases to the Congress," Bush said. "And Al's got work to do up there."
The News Sentinel carried the story
Legal aid programs see record-breaking fund-raising
Legal aid groups in Nashville and Memphis each saw record-breaking gains in raising money this year. Legal Aid Society of Middle Tennessee raised $685,908 for the 2006 annual campaign, and Memphis Area Legal Services, Inc., brought in $200,000, up from $145,500 in 2005.
NashvillePost.com has the LASMT story
The Memphis Business Journal has the MALS story (registration required)
Bloggers, web posters facing increase in libel actions
Libel cases against bloggers and others posting messages on Internet bulletin boards have grown to more than 60 nationwide, according to the Media Law Resource Center, a nonprofit information clearinghouse in New York. One Tennessee case involves emails sent to hundreds of people accusing a man of drugging a girl at a party. Police have cleared the man of wrongdoing, and now he is suing the poster for libel.
The Ashland City Times has the story
Death penalty not sought for Mary Winkler
If convicted of first-degree murder, Mary Winkler will be sentenced to life with the possibility of parole -- between 51 and 60 years in prison, said District Attorney General Michael Dunavant. He will not seek the death penalty, or a sentence of life without parole.
The Commercial Appeal has the story
Chiquita admits it paid terrorists
Banana company Chiquita Brands International said Wednesday it has agreed to a $25 million fine after admitting it paid terrorists for protection in a volatile farming region of Colombia, the Associated Press reports. The settlement resolves a lengthy Justice Department investigation into the company's financial dealings with right-wing paramilitaries and leftist rebels the U.S. government deems terrorist groups.
The Kingsport Times-News carried this AP story
Lethal injection protocols questioned again
The Nashville Scene questions protocols for lethal injection, even in light of the governor's moratorium on executions, reporting that there is mounting evidence of botched executions around the country, including Tennessee. "This ridiculous method that has no similarity even to the way that veterinarians are required to put down dogs," says Bradley MacLean, the lawyer for condemned prisoner Abu-Ali Abdur' Rahman.
Read the story in the Nashville Scene
Jail doesn't admit woman because of lost paperwork
A woman who showed up for jail was turned away when staff could not find the paperwork to incarcerate her in Cocke County.
The Newport Plain-Talk has the story
Upcoming
'Sisters in law' to be at the Brooks
The Memphis Brooks Museum of Art will show "Sisters in Law," as part of its African film series, March 18 at 2 p.m. Winner of the Prix Art en Essai at the Cannes Film Festival, this film follows the work of State Prosecutor Vera Ngassa and Court President Beatrice Ntuba of Kumba, Cameroon, as "they dispense wisdom, wisecracks, and justice in fair measure." Free with museum admission.
Memphis Brooks Museum of Art
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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