Project Salute coming to Nashville

Project Salute, a unique service project pioneered by the University of Detroit Mercy School of Law, provides free legal assistance to low-income veterans. The project will be in Nashville at the end of May and volunteer lawyers are needed. A training session will be held May 28 at the Legal Aid Society of Middle Tennessee and the Cumberlands. The course, which will run from 8:30 a.m. to 5 p.m., will teach attorneys how to assist veterans with legal issues regarding disability and pension benefits. In exchange for the free training and materials, attorneys agree to accept one or more veterans' cases on a pro bono basis. The law school also will conduct a legal clinic for veterans on May 15 and 16 in Nashville.

Learn more about Project Salute

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.

STATE OF TENNESSEE v. TRAVIS YOUNG

Court: TSC

Attorneys:

Phyllis Aluko and Robert Jones (on appeal), and Timothy Albers (at trial), Memphis, Tennessee, for the appellant, Travis Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Brian Clay Johnson and Rachel E. Willis, Assistant Attorneys General; William L. Gibbons, District Attorney General; Paul Goodman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: KOCH

This appeal involves the sentencing of a defendant who shot and seriously wounded a victim during an armed robbery and then two days later led law enforcement authorities on a lengthy and dangerous high-speed chase in an attempt to evade arrest. A Shelby County jury convicted the defendant of numerous offenses arising out of these incidents, and the trial court imposed an effective sixteen-year sentence. On the defendant's first appeal, the Court of Criminal Appeals vacated the sentences and remanded the case for a new sentencing hearing after concluding that the trial court's sentencing findings were inadequate. On remand, the trial court imposed the same sixteen-year sentence. On the defendant's second appeal, the Court of Criminal Appeals made its own sentencing findings and imposed an effective seventeen-year sentence on the defendant. We granted the defendant's Tenn. R. App. P. 11 application. We now hold that the Court of Criminal Appeals exceeded its authority under Tenn. Code Ann. section 40-35-401(c)(2) (2006) by increasing the defendant's effective sentence from sixteen to seventeen years. We also hold (1) that the Sixth Amendment to the United States Constitution does not require that the facts necessary for the imposition of consecutive sentences be determined by a jury, (2) that the Court of Criminal Appeals made adequate findings with regard to its decision to impose consecutive sentences, and (3) that the record contains sufficient evidence to sustain a decision to impose an effective sixteen-year sentence on the defendant.

http://www.tba2.org/tba_files/TSC/2009/youngt_043009.pdf


REBECCA J. BOYD, v. EDWARDS & ASSOCIATES, INC., and AERONAUTICAL ACCESSORIES, INC.

Court: TCA

Attorneys:

Charlton R. Devault, Jr., Kingsport, Tennessee, for appellant, Rebecca J. Boyd.

Jennifer P. Keller and David Harvey, Johnson City, Tennessee, for appellees, Edwards & Associates, Inc., and Aeronautical Accessories, Inc.

Judge: FRANKS

Plaintiff filed suit against her employer after having been terminated from her employment, and alleged that her employer had retaliated against her for her whistle blowing activities. In her Amended Complaint, she charged a violation of the Tennessee Public Protection Act, and common law retaliation claims. The Trial Court, without a trial, dismissed plaintiff's Complaint on the grounds that she failed to allege sufficient facts to state a claim under the Tennessee Public Protection Act, and that she also did not state a claim for common law retaliatory discharge. Plaintiff has appealed. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/boydr_043009.pdf


RICHARD L. HUBBELL v. SUMNER ANESTHESIA ASSOCIATES, INC., ET AL.

Court: TCA

Attorneys:

Russell E. Edwards and Michael W. Edwards, Hendersonville, Tennessee, for the appellant, Richard L. Hubbell, M.D.

H. E. Miller, Jr., Gallatin, Tennessee, for the appellee, Sumner Anesthesia Associates, Inc., et al.

Judge: DINKINS

Shareholder and employee of a professional corporation filed suit demanding payment of the fair value of his shares in the corporation following termination of his employment. The corporation subsequently tendered $760.48 to the Sumner County Clerk and Master, the amount it believed represented the fair value of the shareholder's shares as of the date of his termination of employment with the corporation. The trial court granted summary judgment for the corporation finding the shareholder failed to contradict the corporation's proposed fair value. Finding error, we reverse and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/hubbellr_043009.pdf

COTTRELL dissenting
http://www.tba2.org/tba_files/TCA/2009/hubbellr_Diss_043009.pdf


IN RE JEREMIAH T., JASMINE T., AND JASPER T.

Court: TCA

Attorneys:

Heather N. McCoy, Sevierville, Tennessee, for the appellant, Bobby T.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, General Civil Division; Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

No appearance by or on behalf of Jeffrey L. Stein, guardian ad litem.

Judge: SUSANO

The trial court terminated the parental rights of Bobby T. ("Father") with respect to his three minor children Jeremiah T. (DOB: August, 2003), Jasmine T. (DOB: July 28, 2004), and Jasper T. (DOB: March 31, 2006). Father appeals, arguing, inter alia, that the evidence preponderates against the trial court's findings, stated to be by clear and convincing evidence, that grounds for termination exist and that termination is in the children's best interest. We vacate so much of the trial court's judgment as is based upon willful failure to support and willful failure to visit, in the four months immediately preceding the filing of the petition to terminate. In all other respects, the judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2009/jeremiaht_043009.pdf


DAVID S. KARTON, A LAW CORPORATION v. WILLIAM RUSSELL DOUGHERTY

Court: TCA

Attorneys:

Donald Capparella, Amy J. Farrar, and John J. Griffin, Jr., Nashville, Tennessee for the Appellant, David S. Karton, A Law Corporation.

Craig V. Gabbert, David P. Cañas, and Kenneth S. Byrd, Nashville, Tennessee for the Appellee, William Russell Dougherty.

Judge: SWINEY

David S. Karton ("Plaintiff") filed this lawsuit in Tennessee seeking to enforce a judgment obtained in California against William Russell Dougherty ("Defendant"). The Trial Court entered an order in April of 2007 granting Plaintiff"s motion to enforce the California judgment. Defendant filed a motion seeking relief from the judgment under Tenn. R. Civ. P. 60 and 62. In May of 2008, the Trial Court entered an order granting Defendant relief from the April 2007 judgment under Tenn. R. Civ. P. 60. Plaintiff appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/kartond_043009.pdf


METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY v. WAYNE BUCKNER, ET AL.

Court: TCA

Attorneys:

S. Curtis Rose, Kingsport, Tennessee, and J. Eddie Lauderback, Johnson City, Tennessee, for the appellant, Metropolitan Property and Casualty Insurance Company.

Mark E. Floyd, Knoxville, Tennessee, for the appellees, John Hamel, Rosemary Hamel, and Kimberly Bede.

Gary E. Brewer, Morristown, Tennessee, for the appellee, Denise Deneau.

No appearance by or on behalf of Wayne Buckner, Donna Buckner, William Russell Buckner and Joshua Thomas Buckner.

Judge: SUSANO

Metropolitan Property and Casualty Insurance Company ("the insurance company") brought an action for declaratory judgment against Wayne Buckner ("the policyholder") and others seeking a determination regarding its liability and duty to defend under a homeowners' insurance policy ("the policy") issued to the policyholder. The insurance company's action was prompted by lawsuits filed following an incident in which the policyholder's two teenage sons, William Russell Buckner and Joshua Thomas Buckner (who will be collectively referred to as "Will and Josh"), fired rifles at tractor-trailers on an interstate highway, resulting in the death of Aaron E. Hamel, the driver of a car, and severe injuries to Kimberly Bede, a passenger in another car. The lawsuits included a personal injury suit by Ms. Bede and David Hickman, a personal injury suit by Denise Deneau, and a wrongful death action by John Hamel and his wife, Rosemary Hamel. The plaintiffs and defendants in the underlying lawsuits will be referred to collectively as "Defendants," their posture in this declaratory judgment action. Defendants filed counterclaims for declaratory judgment, seeking a determination that the policy provides coverage to the defendants in the underlying actions and that each of the shootings was a separate, covered occurrence. The trial court, in dismissing the insurance company's complaint and granting judgment on the counterclaims, held, among other things, that an exclusion in the policy against injuries "reasonably expected or intended" by the insured is not implicated by the facts of the underlying suits. We hold that the exclusionary provision applies to bar coverage for the suits against Will Buckner and Josh Buckner. Accordingly, we reverse the judgment of the trial court and enter judgment in favor of the insurance company as to the suits against Will Buckner and Josh Buckner.

http://www.tba2.org/tba_files/TCA/2009/metroproperty_043009.pdf


GEORGE H. NASON, INDIVIDUALLY & AS TRUSTEE OF THE CHURCH STREET REALTY TRUST v. C & S HEATING, AIR, & ELECTRICAL, INC. AND O'BRIEN HEATING & AIR, INC.

Court: TCA

Attorneys:

George H. Nason, Franklin, Tennessee, Pro Se.

Ronald H. Bice, Jr., Nashville, Tennessee, for the appellees, C & S Heating, Air & Electrical, Inc. and O'Brien Heating & Air, Inc.

Judge: BENNETT

Plaintiff appeals summary judgment granted on claims for breach of contract, unjust enrichment and entitlement to quantum meruit relief. The trial court dismissed the complaint based on the doctrine of collateral estoppel finding Plaintiff's claims or rights to the same property were finally adjudicated in federal court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/nasong_043009.pdf


TENNESSEE FARMERS MUT. INS. CO. v. GERALD FARRAR

Court: TCA

Attorneys:

Thomas Crutchfield, Chattanooga, Tennessee, for the appellant, Gerald Farrar.

Michael R. Campbell and Kathryn M. Russell, Chattanooga, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Judge: SUSANO

This case involves an alleged misrepresentation on an application for a policy of homeowners' insurance ("the policy"). Following a fire, the applicant - the defendant Gerald Farrar ("the Claimant") - filed a claim with the insurer, Tennessee Farmers Mutual Insurance Company ("the Company"), seeking $92,043 for smoke and fire damage. The Company declined the claim and brought a declaratory judgment action. Following a bench trial, the court held, as particularly pertinent to this appeal, (1) that the Claimant had made a non-intentional misrepresentation on the application, but one that increased the Company's risk of loss and voided the policy; (2) that the Company was not estopped to assert the Claimant's misrepresentation; (3) that the Claimant was bound by the representations in the application and could not rely upon the fact that he did not read the application when he signed it; and (4) that Gary Vollheim, an occupant in the house and the one who started the fire, was not an insured. The trial court declared the policy void ab initio and dismissed the Claimant's counterclaim. He appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/tennesseefarmers_043009.pdf


STATE OF TENNESSEE v. ESTES KEFAUVER BOWERS

Court: TCCA

Attorneys:

Mack Garner, District Public Defender (at trial and on appeal); and Joseph Liddell Kirk (on appeal), for the appellant, Estes Kefauver Bowers.

Robert E. Cooper, Attorney General and Reporter; and Renee W. Turner, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Estes Kefauver Bowers, appeals from the trial court's order revoking his probation. The state has filed a motion requesting that this court affirm the trial court's order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Upon full consideration, we conclude that the trial court properly revoked the defendant's probation. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/bowerse_043009.pdf


STATE OF TENNESSEE v. SANDRA DAVIDSON

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Sandra Davidson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Ron Davis, District Attorney General, and Tammy J. Rettig, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Sandra Davidson, was placed on probation after pleading guilty to misdemeanor harassment. Subsequently, an affidavit and warrant were filed alleging that Appellant had violated probation by being arrested for possession of Schedule III and IV drugs and had failed to report the arrest to her probation officer. After a hearing, the trial court revoked Appellant's probation, ordering her to spend her original sentence of eleven months and twenty-nine days in incarceration. Appellant appeals, arguing that there is no evidence in the record to support a revocation of probation. We determine that there is substantial evidence in the record to support the violation of probation and that the trial court did not abuse its discretion. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/davidsons_043009.pdf


STATE OF TENNESSEE v. ANTHONY DREW DRAKE

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Anthony Drew Drake.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Upon his pleas of guilty, the Defendant, Anthony Drew Drake, was convicted of one count of burglary of a building other than a habitation (a Class D felony), eight counts of burglary of an automobile (Class E felonies) and six counts of misdemeanor theft. Sentencing was left to the discretion of the trial court. Following a sentencing hearing, the Defendant was sentenced as a Range II, multiple offender to terms of five years for the Class D felony and three years for each Class E felony conviction. Three of the three-year sentences were ordered to be served concurrently with one another and consecutively to the five-year sentence. Two of the remaining three-year sentences were ordered to be served concurrently with one another and consecutively to the five-year and three-year consecutive sentences, for an effective sentence of eleven years. On appeal, the Defendant argues that the trial court erred by refusing to allow him to serve his sentences in community corrections. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/drakea_043009.pdf


STATE OF TENNESSEE v. MARK ANTHONY KING

Court: TCCA

Attorneys:

Randy P. Lucas, Gallatin, Tennessee, for the Appellant, Mark Anthony King.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; L. Ray Whitley, District Attorney General; and Charles Ronald Blanton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A jury convicted the Defendant, Mark Anthony King, of felony evading arrest and reckless endangerment, and the trial court sentenced the Defendant as a Range II, multiple offender to a total effective sentence of eight years in the Tennessee Department of Correction. The Defendant filed an untimely motion for new trial, which the trial court denied after a hearing. The Defendant then filed an untimely notice of appeal. On appeal, the Defendant contends: (1) the trial court erred when it refused to remand the Defendant's case to general sessions court for a preliminary hearing; (2) the trial judge erred when he refused to recuse himself from the Defendant's case; (3) the trial court erred when it refused to allow defense counsel to withdraw; and (4) the evidence was insufficient to support his convictions. Because the Defendant filed an untimely notice of appeal, we dismiss his appeal.

http://www.tba2.org/tba_files/TCCA/2009/kingm_043009.pdf


STATE OF TENNESSEE v. DAVID OFFUTT

Court: TCCA

Attorneys:

Brion J. Payne, Murfreesboro, Tennessee, for the Appellant, David Offutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; William Whitesell, District Attorney General; Laural Hemingway, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant was indicted on six counts of rape of a child, ten counts of aggravated sexual battery, one count of rape, and one count of sexual battery by an authority figure. He pled guilty to three counts of incest, and the trial court sentenced him to an effective sentence of eighteen years. The Defendant filed a motion to set aside his guilty plea, which the trial court denied. The Defendant filed an amended motion, and the trial court again denied him relief. The Defendant now appeals, claiming that the trial court erred. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/offuttd_043009.pdf


Admissibility of Videotaped Statements in Child Sexual Abuse Prosecutions

TN Attorney General Opinions

Date: 2009-04-30

Opinion Number: 09-67

http://www.tba2.org/tba_files/AG/2009/ag_09_67.pdf

TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
McClarty installed in Court of Appeals
John Westley McClarty was installed as a judge of the Tennessee Court of Appeals, Eastern Section, today by Governor Phil Bredesen. The swearing-in ceremony took place in the Hamilton County Commission Room at the Hamilton County Courthouse in Chattanooga.

Law school enrollment numbers up for the fall
According to preliminary data from the Law School Admission Council, the number of students applying to law schools is up 3.8 percent for the fall 2009, and the number of applications filed by those individuals is up six percent. In an interview with the ABA Journal, the council's president suggests that the economic downturn has led to the increase.
Read more
MBA volunteer efforts recognized
The Memphis Bar Association and its Access to Justice Committee were recognized with a Spirit of Giving Award during ceremonies Wednesday in Memphis. Presented by Volunteer Mid-South, the award recognizes outstanding volunteer service to the community. The MBA was presented the second place prize in the Large Group Volunteer of the Year category.

House defense seeks end to retrial plans
Appearing before the U.S. Sixth Circuit Court of Appeals, lawyers for Paul House asked that the judges put an end to state attempts to retry their client. Two years ago, the federal courts agreed that the state must set a new trial or free House. Alleging that the state is dragging its feet, House's defense lawyer noted that three trial dates have been set but abandoned since those rulings. Judge Gilbert Merritt peppered the state's lawyer with questions and suggested the state's actions appear to be "pure stubbornness and vindictiveness."
Read more of the proceeding in the Knoxville News Sentinel
New law review aims for wider audience
A new legal publication launched recently by a group of influential law reviews is designed to reach out to a wide range of readers, not just those in the legal world. The Legal Workshop -- a collaboration between New York University Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Journal, Northwestern Law Review and University of Chicago Law Review -- was started and is operated by current and former student editors of the law reviews.
Check it out
Legislative News
Ramsey wants agreement on judicial selection
Tennessee Senate Speaker Ron Ramsey said today he wants to strike an agreement within the next two weeks on changes to the state's system for filling appellate court vacancies. He did not say, however, on what grounds he hopes to find compromise. Yesterday, the House and Senate Government Operations committees approved very different proposals for dealing with the future of merit selection in the state.
Read his comments in the Memphis Daily News
State Democrats elect new caucus chair
Senate Democrats have elected Sen. Lowe Finney of Jackson to be their next caucus chairman. He will replace Sen. Roy Herron of Dresden, who has announced he is stepping down from the post to focus on his gubernatorial bid. Finney was elected to the Senate in 2006. He will take office at the end of the legislative session, according to the Memphis Daily News.

Judiciary chair wants memo author to testify
U.S. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., has invited federal Judge Jay S. Bybee to testify about his role in preparing two Justice Department memos that allowed harsh interrogation techniques. Bybee, who has been a judge on the U.S. 9th Circuit Court of Appeals for the past six years, previously headed the department's Office of Legal Counsel. He is one of three former officials under investigation by the department.
Read what Bybee is saying about his involvement in the Washington Post
Supreme Court Report
High court split on voting rights act
The Supreme Court yesterday considered a key element of the Voting Rights Act with conservative justices questioning whether one-time bastions of segregation still should be held to account for past discrimination, and liberal judges defending Congress' decision to keep the law in place. The case will determine whether states with a history of voting discrimination must continue to get approval from the Justice Department before changing election procedures.
The Commercial Appeal has more
Jailhouse confessions OK
The U.S. Supreme Court ruled yesterday that prosecutors can use so-called jailhouse confessions at trial to impeach a defendant's court testimony. The 7-2 decision held that a confession to an informant was admissible for impeachment purposes, but not to prove the government's case in chief. SCOTUSBLOG reported the decision.

Disciplinary Actions
Chattanooga lawyer censured
The Board of Professional Responsibility issued a public censure to Chattanooga lawyer Charles Patrick Dupree on April 28 for failing to exercise reasonable diligence. The board found that Dupree failed to inform the court and opposing counsel of a scheduling conflict prior to a scheduled court date. He did not appear for the hearing, which was critical to his clients' interests.
Read the BPR notice
Anderson County lawyer censured
Anderson County lawyer Patricia Hess was publicly censured on April 24 for representing a client that had appeared before her while she was a juvenile court judge. Hess presided in a child custody matter but was defeated as juvenile court judge while the case was pending. She then began representing one of the parties in the matter without receiving the consent of all parties.
Download the BPR release
Upcoming
Memphis law school sets grand opening
The University of Memphis Cecil C. Humphreys School of Law announced this week it will hold an opening gala for the school's new location in downtown Memphis on Jan. 16, 2010. A formal ribbon cutting ceremony will be held separately.

TBA Member Services
FedEx delivers value, reliability and proven performance to TBA members
Many things are affecting the shipping industry right now -- from published reports about DHL's reduced capabilities to overall economic challenges. In these uncertain times, it is important to have service choices, flexibility and options you can rely on in order to effectively manage your costs. That is why the TBA chose FedEx as its exclusive shipping provider. In addition to these benefits, FedEx provides special TBA member discounts of up to 21% on select FedEx services and up to 20% on select FedEx Office SM services. To learn more call 800-923-7089. When you enroll, please provide code: RGWUQH06. Enroll today and start saving!
Learn more or enroll in the program now

 
 
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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.

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