STATE OF TENNESSEE v. ANDRE DOTSON
Corrected Opinion

Court: TSC

Attorneys:

William G. Gosnell, Memphis, Tennessee, for the appellant, Andre Dotson.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and David H. Findley, Assistant Attorney General for the appellee, State of Tennessee.

Judge: WADE

The Defendant, Andre Dotson, was convicted of two counts of aggravated robbery and two counts of robbery. On direct appeal of right, the Court of Criminal Appeals modified one robbery conviction to theft based upon insufficient evidence of the element of fear on the part of a victim, but otherwise affirmed. We granted permission to appeal in order to consider several issues, including those related to the consolidation of the four indictments in a single trial. We hold that (1) the consolidation of the four charges constituted reversible error; (2) while the trial court did not abuse its discretion by severing the two indictments against a co-defendant, that would have been unnecessary had the Defendant been afforded separate trials; (3) the co-defendant’s statements to police did not fall under the “against interest” exception to the hearsay rule and were properly excluded as evidence; and (4) the evidence at trial was sufficient to establish fear on the part of one of the victims, an essential element for the offense of robbery. Because the trial court erroneously refused to order separate trials on each of the four indictments and the error cannot be classified as harmless, the judgment of the Court of Criminal Appeals is reversed and the Defendant is granted new trials on each indictment.

http://www.tba2.org/tba_files/TSC/2008/dotson_corr_071008.pdf

DENNIS J. HUGHES V. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Court: TSC

Attorneys:

Richard McGee, Nashville, Tennessee, for the appellant, Dennis J. Hughes.

Nancy S. Jones, Chief Disciplinary Counsel for the Board of Professional Responsibility and James A. Vick, Deputy Chief Disciplinary Counsel, Investigations, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Judge: WADE

This is a direct appeal from a judgment of the trial court, which set aside a decision by a hearing panel designated by the Board of Professional Responsibility granting a disbarred attorney’s petition for reinstatement of his law license. The issue presented is whether the attorney, who was convicted of bribing a witness and conspiracy to bribe a witness in a criminal trial, has met the criteria for immediate reinstatement to the practice of law. Although the panel properly determined that the evidence clearly and convincingly proved the moral qualifications of the attorney and his knowledge of state law, we hold that the evidence failed to so meet the threshold as to the third requirement — that reinstatement would not be detrimental to the standing of the bar, the administration of justice, and the interest of the public. The judgment of the trial court is, therefore, affirmed.

http://www.tba2.org/tba_files/TSC/2008/hughesd_071008.pdf

HOLDER concurring and dissenting

http://www.tba2.org/tba_files/TSC/2008/hughesd_diss_071008.pdf

CLIFTON K. CRUTCHER, ET AL. v. MAURY COUNTY BOARD OF EDUCATION

Court: TCA

Attorneys:

Ann Buntin Steiner, Nashville, Tennessee, for the appellants, Clifton K. Crutcher and Katherine J. Crutcher.

Steven D. Parman, Nashville, Tennessee, for the appellee, Maury County Board of Education.

Judge: COTTRELL

Plaintiff appeals the trial court’s determination that under the Tenn. Code Ann. section 29-20-404(a) of the Tennessee Governmental Tort Liability Act, the limitation of liability in Tenn. Code Ann. section 29-20-403 applies even if there is insurance policy coverage with a greater limitation of liability since the policy did not contain an express waiver of the limitation of liability. The defendant County also appeals several determinations by the trial court regarding the admissibility of expert proof, allocation of fault, allowing proof of negligent entrustment and damages for loss of consortium. We affirm.

http://www.tba2.org/tba_files/TCA/2008/crutcherc_071008.pdf

MARY SUSAN HOLLY v. JIM HOLLY, ET AL.

Court: TCA

Attorneys:

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Mary Susan Holly.

Patrick A. Flynn, Columbia, Tennessee, for the appellees, Jim Holly and Norma Holly.

Judge: COTTRELL

The trial court denied appellant’s request for relief under Tenn. R. Civ. P. 60. Because the trial court acted within the discretion granted it in ruling on such requests and thoroughly considered the applicable legal standards and the circumstances of the request, we affirm.

http://www.tba2.org/tba_files/TCA/2008/hollym_071008.pdf

PIERRE PONS, ET AL. v. BARRY HARRISON d/b/a B. HARRISON HOUSEWRIGHTS

Court: TCA

Attorneys:

L. Anthony Deas, Madison, Tennessee, for the appellant, Barry Harrison.

Joel M. Leeman and Matthew C. Hardin, Nashville, Tennessee, and Douglas S. Hale, Franklin, Tennessee, for the appellees, Pierre Pons and Pauline Pons.

Judge: FARMER

Defendant Homebuilder left plaintiff Homeowners’ job site before completing construction of their residence. Homebuilder appeals the chancery court’s confirmation of an adverse arbitration award, arguing that the arbitrator exceeded his authority by refusing to enforce a provision of the contract that would have rendered the plaintiff Homeowners’ suit time barred. The limitation provision applied to suits for defective improvements to real estate. The gravamen of this breach of contract action was partial performance, not defective performance. Further, the arbitrator awarded to Homeowners the cost to complete the construction plus interest, attorney’s fees, and arbitration costs. Finding that the limitation period does not apply to this action, we affirm.

http://www.tba2.org/tba_files/TCA/2008/ponsp_071008.pdf

JOANN J. SUGG, ET VIR. v. MAPCO EXPRESS, INC.

Court: TCA

Attorneys:

Harold H. Parker, Murfreesboro, Tennessee, for the appellants Joann J. Sugg and Al Sugg.

Clifford Wilson and Marcia McShane Watson, Nashville, Tennessee, for the appellee, Mapco Express, Inc.

Judge: FARMER

In this negligence action, Plaintiff appeals the award of summary judgment in favor of Defendant business owner. While exiting Defendant’s convenience store, Plaintiff fell from the curb and sustained injuries. She and her husband filed a complaint against Defendant business owner, alleging that its failure to mark the curb properly and to light the area sufficiently caused her to fall. Defendant filed a motion for summary judgment along with a statement of undisputed facts. In her deposition, Plaintiff testified that (1) she had entered the store by way of the curb and knew a step was there; (2) she, nonetheless, got panicked when she could not see her husband and focused on finding him while she was exiting the store; (3) she would not have fallen if she had looked down; (4) she would not have noticed fluorescent marking on the curb in any event, due to her state of mind; and (5) she had no problem with the lighting. Finding that Defendant successfully negated the essential elements of Plaintiff’s claim, we hold that the entry of judgment for the Defendant was proper. Affirmed.

http://www.tba2.org/tba_files/TCA/2008/suggj_071008.pdf

LEBRON MOORE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hilary Stuart, Chattanooga, Tennessee, for the appellant, Lebron Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox, III, District Attorney General; and M. Neal Pinkston, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

In 1982 the petitioner, Lebron Moore, was convicted of aggravated rape and second degree burglary and sentenced to forty years in the Department of Correction. Following an unsuccessful direct appeal, he filed a petition for post-conviction relief, which was dismissed in 1988 on the ground that he was mentally incompetent to proceed. In 2005, the petitioner filed a pleading styled “Motion to Reopen Post-Conviction Petition,” which the post-conviction court treated as a new petition for post-conviction relief and dismissed as untimely. The petitioner argues on appeal that the post-conviction court erred in finding the petition untimely. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/moorel_071008.pdf

TIPTON Dissenting

http://www.tba2.org/tba_files/TCCA/2008/moorel_diss_071008.pdf

MARTIN E. WALKER v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Martin E. Walker, Mountain City, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Martin E. Walker, filed in the Johnson County Criminal Court a petition for a writ of habeas corpus, seeking relief from his conviction for second degree murder. The habeas corpus court denied the petition, and the petitioner now appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2008/walkerm_071008.pdf