Investiture ceremony set for next Friday

An investiture ceremony will be held Oct. 5 at 1:30 p.m. in the Old Supreme Court Chambers for newly appointed Tennessee Court of Appeals Judge Andy Bennett. The Vanderbilt University Law School grad and long-time attorney in the Office of Attorney General succeeds Justice William C. Koch Jr., who Gov. Bredesen recently named to the Tennessee Supreme Court.
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.

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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.

LARRY BUDD v. RENEE BARRINGTON

Court: TCA

Attorneys:

Larry Budd, pro se Appellant.

Renee Barrington, Appellee (no brief filed).

Judge: SWINEY

Larry Budd ("Budd"), while incarcerated by the State of Tennessee in Clifton, Tennessee, filed this lawsuit against Renee Barrington ("Barrington") in June of 2005. Almost one year later, the Trial Court entered an order informing the parties that a hearing would be held on whether the case should be dismissed for failure to prosecute because absolutely no action had been taken to prosecute the case after it was filed. When no response to the order was received and no one appeared at the hearing via telephone or otherwise, the Trial Court dismissed the case. Budd appeals the dismissal and, finding no abuse of discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2007/buddl_092707.pdf


COLONIAL PIPELINE COMPANY, a Delaware Corporation v. NASHVILLE & EASTERN RAILROAD CORPORATION, a Tennessee Corporation

Court: TCA

Attorneys:

J.W. Luna and Jason D. Holleman, Nashville, Tennessee, for the appellant, Colonial Pipeline Company.

David W. Lawrence, Lebanon, Tennessee, for the appellee, Nashville & Eastern Railroad Corporation.

Judge: FARMER

This appeal arises from a contract dispute between a railroad and pipeline company over pipeline relocation costs. The parties entered into a license agreement allowing the pipeline company to install, operate, and maintain its pipeline under real property owned by the railroad. The railroad constructed new, mainline track that necessitated the pipeline's relocation. In a breach of contract action filed by the pipeline company to recover its relocation costs, the trial court granted summary judgment for the railroad, ruling that the contract did not restrict the railroad from installing the new track as it did. Finding that the license agreement prohibited the railroad from constructing new track both over and along existing pipeline, we affirm in part, reverse in part, and remand for an award of damages and entry of judgment in favor of the pipeline company.

http://www.tba2.org/tba_files/TCA/2007/colonialp_092707.pdf


JEAN LOUISE MILLER v. TENNESSEE BOARD OF NURSING

Court: TCA

Attorneys:

Jean Louise Miller, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Sara E. Sedgwick, Assistant Attorney General, for the appellee, Tennessee Board of Nursing.

Judge: KOCH

This appeal involves a disciplinary proceeding against a registered nurse. After receiving a report that a registered nurse left her patients in a hospital's medical/surgical unit before the end of her shift, the Tennessee Board of Nursing commenced a contested case proceeding to discipline the nurse. Following the hearing, the Board ordered the nurse to pay a $1,000 civil penalty and also immediately suspended the nurse's license pending a psychological evaluation. The nurse sought judicial review of the Board's decision by the Chancery Court for Davidson County, and the trial court affirmed the Board's finding that the nurse had abandoned her patients, the assessment of the civil penalty, and the immediate suspension of the nurse's license. The nurse appealed. We have determined that the record contains substantial and material evidence that the nurse abandoned her patients and that the Board did not act arbitrarily by requiring the nurse to pay a $1,000 civil penalty. However, we have determined that the Board acted arbitrarily when it immediately suspended the nurse's license pending a psychological examination in the absence of any evidence or finding that the nurse was presently mentally unfit to practice nursing.

http://www.tba2.org/tba_files/TCA/2007/millerj_092707.pdf


MONTEAGLE SUNDAY SCHOOL ASSEMBLY v. F. H. RHOADS, ET AL.

Court: TCA

Attorneys:

Paul D. Cross, Monteagle, Tennessee, for the appellants, F. H. Rhoads and Vera J. Rhoads.

Robert J. Walker, Joseph F. Welborn, III, and John L. Farringer, IV, Nashville, Tennessee, for the appellee, Monteagle Sunday School Assembly.

Judge: CLEMENT

This is an appeal by Defendants from a final judgment establishing the common boundary line between the properties of Plaintiff and Defendants. The issue on appeal arises out of the determination of the trial court during trial that Plaintiff's action was a boundary dispute and not, as Defendants argued, an action for ejectment. On appeal, Defendants contend that Plaintiff's complaint was an ejectment action and the court erred in relieving Plaintiff from the burden of proving a perfect deraignment of title. We affirm.

http://www.tba2.org/tba_files/TCA/2007/monteagle_092707.pdf


QUALCOMM INCORPORATED v. LOREN L. CHUMLEY, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Richard H. Sforzini, Jr., Assistant Attorney General, and Jonathan N. Wike, Assistant Attorney General, for the appellant, Loren L. Chumley, Commissioner of Revenue.

Michael D. Sontag and Stephen J. Jasper, Nashville, Tennessee, for the appellee, Qualcomm Incorporated.

Judge: KURTZ

In this appeal we consider application of Tennessee's sales and use tax on telecommunications as "telecommunications" was formerly defined. See T.C.A. section 67-6-102(a)(32) (2003). The taxpayer plaintiff-appellee provides a service which allows its customers (commercial trucking companies) to locate and determine the status of individual vehicles as well as communicate with its drivers. The defendant-appellant Commissioner of Revenue determined that this service constituted taxable "telecommunications" during the audit period in question. The taxpayer filed this suit in the Chancery Court for Davidson County seeking a refund. The chancellor below granted the taxpayer's motion for summary judgment and denied the Commissioner's cross-motion. The Commissioner appeals this decision. Applying the "true object" test as it has been developed by prior decisions of this Court rendered in the context of telecommunications taxation, we agree with the court below that telecommunication was not the true object or primary purpose of the service at issue. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2007/qualcomm_092707.pdf


BETTY WEBB v. DAVID LANE

Court: TCA

Attorneys:

Betty Webb, Pro Se.

Jeff McCullough, Murfreesboro, Tennessee, for the appellee, David Lane.

Judge: FARMER

Plaintiff appeals from a judgment rendered in her favor contending that the award was insufficient to compensate her for her injuries. In the absence of a transcript or sufficient statement of the evidence, we affirm.

http://www.tba2.org/tba_files/TCA/2007/webbb_092707.pdf


STATE OF TENNESSEE v. WILLIAM LEE COLLINS

Court: TCCA

Attorneys:

William J. Brown, Cleveland, Tennessee, for the Appellant, William Lee Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachael West Harmon and John H. Bledsoe, Assistant Attorneys General; Steven Bebb, District Attorney General; M. Drew Robinson and Michelle McFayden, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, William Lee Collins, pled guilty to the following crimes: (1) possession of more than 0.5 grams of methamphetamine with intent to sell; (2) possession of a Schedule II drug with intent to sell; and (3) possession of marijuana. He was sentenced to an effective sentence of eight years on probation. In accordance with Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the search and seizure that led to his indictment and guilty plea were constitutional. We conclude that the search and seizure were constitutional, and, therefore, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2007/collinsw_092707.pdf


STATE OF TENNESSEE v. JOSEPH WAYNE HIGGINS

Court: TCCA

Attorneys:

Richard L. Gaines, Knoxville, Tennessee (on appeal); Mark E. Stephens, District Public Defender; John Halstead, Assistant District Public Defender (at trial), for the appellant, Joseph Wayne Higgins.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Joseph Wayne Higgins, was convicted by a Knox County jury of three counts of rape of a child, a Class A felony, and received an effective sentence of forty-five years in the Tennessee Department of Correction. The defendant appeals his convictions, arguing that the trial court (1) committed plain error by improperly admitting testimony relating to acts committed by the defendant that were unrelated to the elected offenses, (2) committed plain error by improperly admitting testimony of three witnesses who bolstered the victim's credibility after it had been impeached, (3) improperly instructed the jury as to "recklessness", (4) improperly imposed an excessive sentence, and (5) improperly sentenced the defendant to consecutive terms. After reviewing the record, we conclude that the trial court improperly admitted testimony regarding specific acts of conduct by the defendant and failed to instruct the jury regarding prior consistent statements. However, because we conclude that these errors did not rise to the level of plain error, we deny the defendant relief on these issues. We also conclude that the trial court properly instructed the jury regarding recklessness and properly imposed consecutive sentences. However, we conclude that the trial court improperly applied sentence enhancement factors to one of the defendant"s convictions. Therefore, we affirm the judgments of the trial court but reduce the defendant's total effective sentence from forty-five years to forty years.

http://www.tba2.org/tba_files/TCCA/2007/higginsj_092707.pdf


JERMAINE HUNTER v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Jermaine Hunter, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe and Benjamin A. Ball, Assistant Attorneys General; and Victor S. Johnson III, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Jermaine Hunter, appeals from the circuit court's summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2007/hunterj_092707.pdf


STATE OF TENNESSEE v. ROGER MELSON

Court: TCCA

Attorneys:

Mack Garner, Maryville, Tennessee; J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Roger Melson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Michael L. Flynn, District Attorney General; Ellen Berez, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Roger Melson, pled guilty to aggravated assault, domestic assault, and aggravated burglary, and the trial court sentenced him to five years, with six months to be served in jail and the balance to be served on probation. Subsequently, the trial court issued a warrant alleging that the Defendant violated his probation, and, after a hearing, it revoked the Defendant's probation. On appeal, the Defendant claims the trial court abused its discretion by revoking his probation because the State failed to prove that he willfully violated his probation. Finding no error, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2007/melsonr_092707.pdf


STATE OF TENNESSEE v. KRISTI DANCE OAKES

Court: TCCA

Attorneys:

Barry H. Valentine, Newport, Tennessee, for the Appellant, Kristi Dance Oakes.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; Steven R. Hawkins, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Kristi Dance Oakes, pled guilty to one count of statutory rape. The trial court denied her request for judicial diversion or full probation and sentenced her to eighteen months, of which six months is to be served in the county jail, followed by twelve months of supervised community probation. She appeals that decision. Upon review, we affirm the judgment of the trial court, after modifying the sentence. However, we remand for the correction of a clerical error in the judgment form.

http://www.tba2.org/tba_files/TCCA/2007/oakesk_092707.pdf


STATE OF TENNESSEE v. MARCUS DWAYNE WELCOME
With Concurring Opinion


Court: TCCA

Attorneys:

Mark Stephens, District Public Defender; and John Halstead, Assistant District Public Defender, for appellant, Marcus Dwayne Welcome.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; James D. Holley, Jr., and Takisha M. Fitzgerald, Assistant District Attorneys General, for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Marcus Dwayne Welcome, appeals as of right his Knox County Criminal Court jury conviction for criminal responsibility for aggravated robbery for which he received a sentence of twenty years as a Range II, multiple offender. On appeal, he contends that double jeopardy precludes his conviction, that the verdict form incorrectly and prejudicially characterized criminal responsibility as a lesser included offense of aggravated robbery, that the trial court should have granted a mistrial based upon the witness's reference to the defendant's previous incarceration, that the trial court erred in ruling a prior robbery admissible for impeachment purposes, and that the trial court committed errors related to sentencing. Following our review, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/welcomem_092707.pdf

TIPTON Concurring
http://www.tba2.org/tba_files/TCCA/2007/welcomem_concur_092707.pdf


TODAY'S NEWS

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TBA Member Services

Legal News
Ethics Commission approves lobbyist-administered PACs
The Tennessee Ethics Commission today approved an advisory ethics opinion allowing lobbyists to continue participating in the administration of political action committees. The action was taken on a draft opinion offered by Commissioner Linda Knight, which rejected the reasoning of two staff-prepared dueling opinions.
Download the opinion
Sunshine trial testimony over
Testimony in the Knox County trial over alleged violations of the state Open Meetings Act is over. Early this afternoon the defense ended its case and plaintiffs gave a brief rebuttal. The case now goes to the jury. Read about the last day of testimony in the News Sentinel.
Click here
Former Bradley attorney guilty of forgery
Damon J. Lee, a former Bradley County attorney, has been found guilty of two counts of forgery. He was found not guilty on a charge of theft, which was dismissed. Prosecutors said that Lee forged signatures on a check and a document transferring ownership of a limited liability corporation. Lee, who now reportedly lives in California, will be sentenced on Feb. 22.
Read more on Chattanoogan.com
Eason, Clark address Access to Justice Conference
TBA President Marcy Eason and Justice Connie Clark each spoke during today’s luncheon at the statewide Equal Justice Conference in Manchester. The event, sponsored jointly by the Tennessee Alliance for Legal Services and the TBA, draws more than 200 lawyers and advocates from legal aid and other public interest law organizations.

Surveillance of cigarette purchases begins today
Starting today, state Department of Revenue agents will begin stopping Tennessee motorists spotted buying large quantities of cigarettes in border states. If caught with the goods, residents will face criminal charges and, in some cases, seizure of their cars. Critics argue the tactics amount to a "police state" and interfere with interstate commerce.
Read more in the New Sentinel
Patriot Act provisions ruled unconstitutional
A federal judge in Oregon ruled yesterday that two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause. A Portland attorney brought the suit against the government after the FBI mistakenly linked him to the Madrid train bombings in 2004.
Learn more from this AP story in the Murfreesboro Daily
British law firms outpace U.S. in global market
New market dynamics in Great Britain have helped the country's leading law firms see growth of more than 20 percent in profits -- dispelling the U.S. view that Brits are soft on under-performing lawyers, are too rigid and take too many holidays. According to The American Lawyer, the U.K.'s top five firms, known as the Magic Circle, have globalized far more than U.S. counterparts and have a much higher profit per partner than most international firms in the states.
Read a summary of the study on Law.com
TLAW names new executive director
The Tennessee Lawyers' Association for Women has named Lisa Smith as its new executive director, replacing Tessa Lemos del pino, who left the association to devote full time to her family. Smith brings considerable experience in the Nashville legal community to the post. She spent 18 years working with former TLAW president and retired judge Marietta Shipley, both in the courts and with The Mediation Group of Tennessee. The new executive director also holds similar positions with the Nashville Psychotherapy Institute, the Tennessee Women's Forum and the Tennessee Association of Professional Mediators.

Bar Exam: the movie
"A Lawyer Walks into a Bar..." In this case it's not the opening line of a bad joke, but the title of a documentary that is making its way around the film festival circuit. The feature-length movie explores the influence of the law and its practioners on American culture by following six individuals preparing for the California bar exam. Featuring cameos by legal luminaries, politicians, comedians and a Harvard law professor, the film focuses its lens on the lurid world of lawyers and lawsuits, and America's fascination with both.
Learn more at alawyerwalksintoabar.com
Upcoming
Supreme Court Historical Society dinner is next week
The second annual Tennessee Supreme Court Historical Society Dinner will be held Tuesday, Oct. 2, at the Hilton Nashville Downtown (121 Fourth Avenue South). Cocktails are at 6 p.m. followed by dinner and a program from 7-9 p.m. To purchase a ticket or for more information contact Joy Day at (615) 771-5008 or jday@sutter-law.com.

UT Law School visit planned
The TBA and the Young Lawyers Division will be at the University of Tennessee College of Law next Thursday, Oct. 4 for TBA Day. Whether you are a practicing attorney, waiting for your bar results or enrolled in the college, come join us for three events during the day. From 11 a.m. to 4 p.m. we will be in the law school rotunda talking about the benefits of TBA membership. At 12 noon join us for a free pizza lunch. Or from 6:30-9:30 p.m. come to the Downtown Grill & Brewery for appetizers and drinks. For more information contact Stacey Shrader at sshrader@tnbar.org

TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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