Action on Judicial Selection Expected in Both Houses Wednesday

It appears that the stage is set for action this week that could shape the Tennessee judiciary into the next generation. On Monday night the Senate took final action in the first stage when it acted on what Senate sponsor Mark Norris called the “founders flexibility plan“ -- a constitutional amendment to authorize the legislature to use merit selection and retention elections to choose appellate judges. House action today centered on the House Finance Committee, which recommended a different plan that would end merit selection and institute legislative confirmation. Tennessee Bar Association President Danny Van Horn reiterated the TBA view, confirmed by the TBA Board this weekend, that the constitution did not need to be amended and that the proposed constitutional amendments amount to "dangerous experimentation" with the fundamentals of our government. He urged lawyers to contact lawmakers seeking renewal of the present Tennessee Plan and resisting efforts to move forward with constitutional amendments to deal with a problem that does not exist.

Read Resolutions SJR183 and SJR710. Contact information for lawmakers can be found here.

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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.


TN Court of Appeals

IN RE: AYDEN K.M.

Court: TN Court of Appeals

Attorneys:

Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, Kelly Marie MacCord.

Steve Merritt and Cynthia C. Blair, Maryville, Tennessee, for the appellee, Jon Kyle McMillan.

Judge: SWINEY

This appeal concerns a dispute over parentage. Kelly Marie MacCord (“Petitioner”) filed suit against Jon Kyle McMillan (“Respondent”) in the Juvenile Court for Blount County (“the Juvenile Court”), seeking to overturn Respondent’s designation as the father of the minor child Ayden K.M. (“the Child”) and also seeking custody of the Child. The Juvenile Court held that Petitioner did not have standing to deny that Respondent was the Child’s father, noting that Petitioner had signed a sworn Acknowledgment of Paternity (“AOP”) in Texas that recognized Respondent as the father of the Child. Subsequently, Petitioner went to Texas and successfully challenged the AOP in a Texas trial court (“the Texas Court”). Respondent filed a writ of mandamus with the Court of Appeals of Texas, which held that the Texas Court did have subject matter jurisdiction. Petitioner returned to Tennessee seeking to enforce the Texas judgment. The Juvenile Court declined to give full faith and credit to the Texas judgment, holding that the Texas Court lacked jurisdiction. Petitioner appeals. We hold that the Texas Court did have the appropriate jurisdiction and, therefore, the Texas judgment is entitled to full faith and credit. We reverse the judgment of the Juvenile Court.


KIRK ALAN ESTES v. KATHY JO ESTES

Court: TN Court of Appeals

Attorneys:

Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellant, Kathy Jo Estes.

Robert J. Turner, Nashville, Tennessee, for the appellee, Kirk Alan Estes.

Judge: COTTRELL

Father and Mother were divorced in 2001 and Father was ordered to pay child support. The parties reconciled in 2002 and began living together but did not remarry. They had another child in 2004. They shared a bank account during their period of reconciliation into which Father deposited his paychecks and from which Mother paid the family’s living expenses, including the children’s expenses. The parties separated again in 2006. Father did not give Mother child support payments during their four years of living together, but resumed paying child support once they separated again in 2006. Father filed a petition to modify the parenting plan, and Mother filed a counter-petition seeking child support payments for the period from 2002 through part of 2006 when she and Father resumed cohabitation. The trial court gave Father credit for the necessaries he paid for the children’s support during the reconciliation period but ordered Father to pay Mother $32,886 for child support payments that accrued during that time as well as health insurance premiums and medical expenses that Mother paid over that period. Mother appealed the trial court’s refusal to award her child support for the child born during the parties’ reconciliation, and Father appealed the trial court’s refusal to give him more credit for his contribution to the children’s necessaries during the reconciliation period. We affirm the trial court’s judgment denying Mother’s request for support for the child born during the parties’ reconciliation, but reverse the judgment ordering Father to pay child support during the time the parties were living together as a family unit.


STEPHANIE S. JERNIGAN v. LEONIDAS J. JERNIGAN

Court: TN Court of Appeals

Attorneys:

Jonathan Jackson Pledger, Franklin, Tennessee, for the appellant, Leonidas J. Jernigan.

Shawn J. McBrien, Lebanon, Tennessee, for the appellee, Stephanie S. Jernigan.

Judge: COTTRELL

The trial court granted a divorce to the mother of two children, named her as their primary residential parent, and awarded the father temporary visitation with the children. The father subsequently entered into an agreed order that suspended his visitation, with a provision that visitation was to resume only upon the recommendation of the children’s counselor. The mother eventually filed a motion to terminate the father’s visitation, while the father filed a petition for contempt against the mother and also sought to have his visitation restored. The court appointed a guardian ad litem, who recommended against resuming visitation between the father and his children. By that time, the father had not seen his children for over four years. The court dismissed the father’s petition without an evidentiary hearing. We vacate the trial court’s order and remand this case for a prompt evidentiary hearing on the father’s petition.


VELDA J. SHORE v. MAPLE LANE FARMS, LLC, ET AL.
CORRECTION: On page 20 of the original opinion a word was omitted in the 2nd paragraph.

Court: TN Court of Appeals

Attorneys:

Michael H. Meares, Maryville, Tennessee, for the appellant, Velda J. Shore.

John T. Johnson, Jr., Knoxville, Tennessee, for the appellees, Maple Lane Farms, LLC, Robert A. Schmidt d/b/a Maple Lane Farms, and Al Schmidt d/b/a Maple Lane Farms.

Judge: MCCLARTY

The plaintiff homeowner appeals from the trial court’s dismissal of her complaint, in which the court found the defendants’ farm activities were protected from the application of the local zoning laws by the Tennessee Right-to-Farm Act, Tennessee Code Annotated section 43-26-101, et seq. We affirm the judgment of the trial court.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. ANDREW KELLY KING

Court: TN Court of Criminal Appeals

Attorneys:

Daniel J. Cantwell (on appeal), Kingsport, Tennessee and Patrick Denton (at the revocation hearing), Blountville, Tennessee, for the appellant, Andrew Kelly King.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; and Barry Staubus, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Andrew Kelly King, appeals the Sullivan County Criminal Court’s order revoking his probation for robbery, vandalism, and attempted escape and ordering his fouryear sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation and ordering him to serve his sentence. We reverse the judgment of the trial court because the court improperly relied upon potential parole in making its determination. The case is remanded to the trial court for a new hearing.


STATE OF TENNESSEE v. FRANCISCO R. LIRIANO

Court: TN Court of Criminal Appeals

Attorneys:

Derrick L. Scretchen, Nashville, Tennessee for the Defendant-Appellant, Francisco Liriano.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General and John Zimmerman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Davidson County jury convicted the Defendant-Appellant, Francisco R. Liriano, of conspiring to deliver more than 300 grams of cocaine, a Class A felony. He received a community corrections placement of fifteen years following one year of confinement. The sole issue presented for our review is whether the evidence sufficiently established that Liriano was a knowing participant in the conspiracy. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. MATTHEW C. WELKER

Court: TN Court of Criminal Appeals

Attorneys:

William (Jake) Bradley Lockert, III, District Public Defender; Drew W. Taylor, Assistant Public Defender, for the Defendant-Appellant, Matthew C. Welker.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General and Suzanne M. Lockert- Mash, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Matthew C. Welker, appeals from the Stewart County Circuit Court’s order revoking his probation. Welker pled guilty to residing with a minor as a sex offender, and he received a suspended sentence of two years following 90 days of confinement. On appeal, Welker claims that the trial court abused its discretion in revoking his probation and in ordering him to serve the sentence in confinement. Upon review, we affirm the judgment of the trial court.


Winner Selected for 2012 Jon Hastings Memorial Award Writing Competition

Congratulations to William Airhart, Vanderbilt University Law School (class of 2012) as winner of the Jon Hastings Memorial Award Writing Competition.  This writing competition sponsored by the TBA Environmental Law Section is in memory of Jon Hastings, one of the founding members of the Section. William's paper is titled "After AEP: The Climate Change Tort and the Social Cost of Carbon."


Sentencing Commission Proposes New Guidelines

The U.S. Sentencing Commission has proposed several new amendments to the federal sentencing guidelines. The proposed changes cover securities fraud, mortgage fraud, human rights offenses, drug offenses, contraband cellphones in prison, cigarette offenses, trafficking in fake Indian goods and animal crush videos. The commission must submit its proposed guideline amendments to Congress by May 1. Congress will have 180 days to act on the proposals, which will take effect Nov. 1 unless Congress votes to modify or disapprove them. ABAJournal.com has more


Are Tweeting Bans a First Amendment Violation?

The use of Twitter is putting reporters on a collision course with judges who fear it could threaten a defendant’s right to a fair trial. The tension was highlighted recently by a Chicago court’s decision to ban anyone from tweeting or using other social media at the upcoming trial of a man accused of killing Oscar winner Jennifer Hudson’s family. A spokesman for the American Civil Liberties Union said Tweeting and social media are "merely the 21st century version of what reporters have always done — gather information and disseminate it." But the judge in the Illinois case fears that feverish tweeting on smartphones could distract jurors and witnesses when testimony begins next Monday. "Tweeting takes away from the dignity of a courtroom," said a media liaison for Cook County Judge Charles Burns. "The judge doesn't want the trial to turn into a circus." The Associated Press has more. The First Amendment Center reports on a Kansas judge who declared a mistrial in a murder trial after a newspaper reporter tweeted a photo that included the grainy profile of a juror, and how many college coaches are considering Twitter bans for student-athletes.


Conservatorships Under Scrutiny

Concern over possible abuses in the conservatorship process is prompting some elderly advocates to call for reforms and model laws across the country that grant more rights to the individual and offer more protection. The Tennessean reports on one recent case where an 82-year-old Nashville woman lost all of her possessions in a conservatorship case. State Rep. Gary Odom, D-Nashville, has filed a bill that would provide additional protection to people facing conservatorship, the newspaper reports. “We’ve got to make sure that people aren’t put into conservatorship without due process,” Odom says. His bill would set new notice requirements before a conservatorship could be imposed. It also would require additional medical proof, including sworn statements from three physicians, that an emergency conservatorship was justified.


Harris and Hill Elected to Waller Board

Waller Lansden Dortch & Davis has elected partners Robert Harris and Brent Hill to its board of directors for two two-year terms. NashvillePost.com has more [registration required].


Bi-partisan Group Honored for Helping Preserve Legal Funding

Six members of Congress will be honored today by the American Bar Association for helping preserve legal aid funding and providing leadership on issues critically important to the legal profession. Receiving the annual Congressional Justice Award will be Rep. Elijah E. Cummings, D-Maryland; Sen. Lindsey Graham, R-South Carolina; Sen. Kay Bailey Hutchison, R-Texas; Sen. Patty Murray, D-Washington; Sen. Jack Reed, D-Rhode Island; and Rep. Hal Rogers, R-Kentucky.


Confirmation for Judges Still Subject to Delay Tactics

The Senate confirmation process for federal judicial nominees has descended to a new level of contentiousness, Sen. Al Franken and a group of panelists said Tuesday in an event at the liberal Center for American Progress, the Blog of Legal Times reports. Even nominees with bi-partisan support in their home states are going through days of filibusters, he said. Jeremy Paris, chief counsel for nominations and oversight for the Senate Judiciary Committee majority staff, said there were only 28 judicial vacancies at this point in President George W. Bush’s presidency, compared with 82 vacancies for Obama right now. That is about one in 10 judgeships that remain open, including four judicial emergencies in the overwhelmed Ninth Circuit, he said.


TBA All Access Network: New Video Focuses on Client Relationships

Client relationships need to start from a solid foundation to be successful. In the latest TBA All Access Network video, Memphis attorney and ethics expert Brian Faughnan offers six key steps to consider when beginning these relationships.  Watch Faughnan’s program now or review any of the other video programming. All are program are five to 10 minutes long and can be watched at no cost.


Lawyer Advising City Has Same Immunity from Suit as Public Employees, Court Rules

The U.S. Supreme Court has ruled on behalf of a private lawyer who advised a California town, saying he is entitled to the same qualified immunity as a public employee. Chief Justice John G. Roberts Jr. wrote the unanimous opinion in Filarsky v. Delia. The common law rule, he wrote, did not draw a distinction between immunity for public servants and private individuals engaged in public service. That rule should be carried forward in suits claiming constitutional violations under Section 1983 of the Civil Rights Act, he said. Get the details from ABAJournal.com


Chattanooga Lawyer Censured

Chattanooga lawyer John McConnell Wolfe Jr. was censured by the Board of Professional Responsibility  on April 13 for not filing a lawsuit in time after a personal injury action against a Veterans’ Administration Hospital was denied. The lawsuit was dismissed because of the failure to comply with the statutory deadlines, then Wolfe failed to notify his client. Therefore he violated Rules of Professional Conduct 1.3 (diligence), 1.4 (communication), 3.2 (expediting litigation), and 8.4 (misconduct). Download the BPR release


 
 

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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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