Pro Se Clients Increase Use of Forms, Services

With unprecedented numbers of distressed litigants applying for free legal services, reaching out to lawyers for reduced fees, or representing themselves, the Tennessee Supreme Court Access to Justice Commission continues to work to help people who can't afford a lawyer. The Nashville Ledger explores the progress, including the recent data showing an increase of Tennessee attorneys doing free legal work, and the publication of the court's eight plain-language divorce forms. Anne-Louise Wirthlin, the court's Access to Justice Coordinator, says judges and court clerks are reporting an increase in people using the forms, and the ATJ Commission is in the process of developing plain-language forms for other situations.

The Nashville Pro Bono Program and attorneys from Waller Lansden Dortch & Davis, LLP are also involved in this effort, hosting monthly programs to explain self representation. The first is Aug. 7, from 5-7 p.m., at the Legal Aid Society’s downtown headquarters.

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
05 - TN Court of Appeals
11 - 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

JOHN P. BILBY v. TENNESSEE BOARD OF PROBATION AND PAROLE, ET AL.

Court: TN Court of Appeals

Attorneys:

John P. Bilby, Only, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, Lee Pope, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Board of Probation and Parole, et al

Judge: HIGHERS

A prisoner filed a pro se petition for writ of certiorari, which the trial court dismissed sua sponte for failure to prosecute due to the prisoner’s failure to file the necessary summonses. The prisoner appeals. We affirm.


TIA GENTRY v. DALE LARKIN

Court: TN Court of Appeals

Attorneys:

This appeal arises from a dispute over the settlement of a lawsuit. Teresa Larkin died in 2003, with her life insurance proceeds and her estate passing to her husband, Dale Larkin (“Larkin”). Teresa Larkin’s minor daughter, Tia Gentry (“Gentry”), sued Larkin, her stepfather, alleging that he caused the death of her mother and that, as a result, he should not receive any life insurance proceeds or inheritance because of the “Slayer’s Statute.” Gentry and Larkin settled the lawsuit and split the life insurance proceeds and the estate of Teresa Larkin. Later, Larkin was convicted of first degree murder in the death of Teresa Larkin. Gentry filed this suit in the Circuit Court for Washington County (“the Trial Court”), seeking to overturn the agreement based upon fraud in the inducement as Larkin had represented that he did not kill Teresa Larkin. Larkin filed a motion to dismiss. The Trial Court held that the issues in this lawsuit already had been, or could have been, litigated, and, as inequitable as the result might seem in light of Larkin’s conviction for first degree murder in the death of Teresa Larkin, Gentry’s lawsuit must be dismissed. Gentry appeals. We affirm the judgment of the Trial Court.

Thomas C. McKee and Charles J. London, Johnson City, Tennessee, for the appellee, Dale Larkin.

Judge: SWINEY

This appeal arises from a dispute over the settlement of a lawsuit. Teresa Larkin died in 2003, with her life insurance proceeds and her estate passing to her husband, Dale Larkin (“Larkin”). Teresa Larkin’s minor daughter, Tia Gentry (“Gentry”), sued Larkin, her stepfather, alleging that he caused the death of her mother and that, as a result, he should not receive any life insurance proceeds or inheritance because of the “Slayer’s Statute.” Gentry and Larkin settled the lawsuit and split the life insurance proceeds and the estate of Teresa Larkin. Later, Larkin was convicted of first degree murder in the death of Teresa Larkin. Gentry filed this suit in the Circuit Court for Washington County (“the Trial Court”), seeking to overturn the agreement based upon fraud in the inducement as Larkin had represented that he did not kill Teresa Larkin. Larkin filed a motion to dismiss. The Trial Court held that the issues in this lawsuit already had been, or could have been, litigated, and, as inequitable as the result might seem in light of Larkin’s conviction for first degree murder in the death of Teresa Larkin, Gentry’s lawsuit must be dismissed. Gentry appeals. We affirm the judgment of the Trial Court.


IN RE: MICHAEL B. Q.

Court: TN Court of Appeals

Attorneys:

Darrell W. Sproles, Knoxville, Tennessee, for the appellant, Michael R.Q.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsey O. Appiah, Assistant Attorney General for appellee, State of Tennessee, Department of Children’s Services.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsey O. Appiah, Assistant Attorney General for appellee, State of Tennessee, Department of Children’s Services.

Judge: STAFFORD

This is a termination of parental rights case. Father/Appellant appeals the trial court's termination of his parental rights to the minor child at issue. By clear and convincing evidence, the trial court found two grounds for termination of Father’s parental rights: (1) abandonment by an incarcerated parent, and (2) prison sentence of more than ten years, imposed when the child was under the age of eight. The trial court also found, by clear and convincing evidence, that termination of Father’s parental rights was in the child’s best interest. Discerning no error, we affirm.


TOWN OF MIDDLETON, TENNESSEE, ET AL. v. CITY OF BOLIVAR, TENNESSEE, ET AL.

Court: TN Court of Appeals

Attorneys:

William B. Hubbard and Cynthia Hubbard Wiel, Nashville, Tennessee, for the appellants, City of Bolivar and Bolivar Gas Department.

James Andrew Farmer and Charles H. Farmer, Jackson, Tennessee, for the appellees, City of Middleton, Tennessee and City of Whiteville, Tennessee.

Judge: STAFFORD

In this case, we are asked to address the question of whether the Municipal Gas System Tax Equivalent Law of 1987, Tennessee Code Annotated Section 7-39-401 through 406, or the Revenue Bond Law, Tennessee Code Annotated Section 7-34-101, et seq., negate the provisions of ordinances passed by Appellees, the Town of Middleton, Tennessee and the Town of Whiteville, Tennessee, which granted Appellant, the City of Bolivar and its municipal utility, the right to franchise in the Appellee towns. We conclude that: (1) Appellants may be liable for both franchise fees under the ordinances, and for payments in lieu of taxes under the Municipal Gas System Tax Equivalent Law because franchise fees are not in the nature of taxes on the valuation of property and are “operating expenses” for the privilege of doing business; (2) although the ordinances initially granted Bolivar’s utility exemption from payments in lieu of taxes to Appellees, by resolution, Bolivar waived its exemption and is now obligated to make payments in lieu of taxes to Appellees under the Municipal Gas System Tax Equivalent Law; (3) to the extent that the Whiteville ordinance conflicts with Bolivar’s statutory right to charge consumers for the actual costs of its services (which would include the franchise fee expenses), it is void; (4) the trial court’s award of pendente lite payments to Appellees was not reversible error in light of our holding that Appellees were (and are) entitled to the franchise fees. Reversed in part, affirmed in part, and remanded.


KENNETH A. PARIGIN, ET AL. v. M. SHANE MILLS, ET AL.

Court: TN Court of Appeals

Attorneys:

William Pendleton Price, III, Knoxville, Tennessee, for the Appellant, M. Shane Mills.

John Thomas Jones, Knoxville, Tennessee, for the Appellees, Kenneth A. Parigin, and Kimberly A. Wheatley.

Ronald A. Rayson, Knoxville, Tennessee, for the Appellee, The Zone, LLC.

Judge: PER CURIAM

On February 23, 2012, M. Shane Mills (“Defendant”) filed a notice of appeal of an order entered by the Trial Court on January 24, 2012. On June 12, 2012, this Court entered an order directing Defendant to show cause why this appeal should not be dismissed as premature. Defendant did not respond to the show cause order. We dismiss this appeal for lack of a final judgment.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. BRANDON ACKERMAN

Court: TN Court of Criminal Appeals

Attorneys:

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Brandon Ackerman.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Brian Holmgren and Kristin Menke, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Davidson County Criminal Court jury convicted the defendant, Brandon Ackerman, of four counts of soliciting sexual exploitation of a minor, see T.C.A. § 39-13-529(b)(1) (2006); two counts of child abuse, see id. § 39-15-401; and one count of rape of a child, see id. § 39-13-522, and the trial court imposed a total effective sentence of 27 and one half years’ incarceration, 20 years of which was to be served at 100 percent by operation of law, see id. § 39-13-523(b). In this appeal, the defendant asserts that the trial court erred by excluding the testimony of his expert witness, by admitting into evidence a video recording of the victim’s forensic interview, by permitting three State’s witnesses to testify regarding the hearsay statements of the victim, and by denying his motion to suppress his pretrial statements to his ex-wife and to police. Because the trial court erroneously admitted into evidence the video recording of the forensic interview and the victim’s hearsay statements to three witnesses and because those errors cannot be classified as harmless, the judgments of the trial court are reversed, and the case is remanded for a new trial.


STATE OF TENNESSEE v. SHIREA BARBER

Court: TN Court of Criminal Appeals

Attorneys:

Ted I. Jones, Memphis, Tennessee, for the appellant, Shirea Barber.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Brian Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Shirea Barber, was convicted by a Shelby County Criminal Court jury of driving under the influence, a Class A misdemeanor. See T.C.A. § 55-10-401 (2010). The trial court sentenced the Defendant to eleven months and twenty-nine days, with ten days’ confinement and the remainder on probation. On appeal, the Defendant contends that the evidence is insufficient to support her conviction. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. JEROME SIDNEY BARRETT

Court: TN Court of Criminal Appeals

Attorneys:

Dawn Deaner, District Public Defender; Jeffrey Devasher and James McNamara (on appeal), and Aimee Solway and Laura Dykes, (at trial), Assistant Public Defenders, Nashville, Tennessee, for the appellant, Jerome Sidney Barrett.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Tom Thurman, Katy Miller, and Rachel Sobrero, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Jerome Sidney Barrett, was found guilty by a Davidson County Criminal Court jury of second degree murder, a Class A felony, for a 1975 homicide. See T.C.A. § 39-2403 (1975) (amended 1979, 1985) (renumbered at § 39-2-211) (repealed 1989). He was sentenced to forty-four years, to be served consecutively to a life sentence for a previous conviction. On appeal, he contends that: (1) the evidence is insufficient to support the conviction; (2) the trial court erred in denying his motion to suppress; (3) the trial court erred in denying his motion to dismiss the prosecution due to excessive pre-indictment delay; (4) the trial court erred in admitting evidence that the Defendant stated he “had killed before”; (5) the trial court erred in allowing the State to ask a defense witness whether he was arrested, suspended, and had resigned from the police force in 1978; (6) the trial court erred in allowing the forensic pathologist who performed the victim’s autopsy to testify as an expert in DNA analysis; (7) the trial court erred in permitting impeachment of a defense witness with evidence of a misdemeanor conviction; (8) the trial court erred in imposing a forty-four year sentence; and (9) the trial court erred in ordering the sentence to be served consecutively to the Defendant’s life sentence. We affirm the judgment of the trial court.


MARIO BATEMAN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Taurece A. Riley, Memphis, Tennessee, for the appellant, Mario Bateman.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Amy Weirich, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Mario Bateman, appeals from the Shelby County Criminal Court’s denial of post-conviction relief from his conviction for first degree murder and resulting life sentence. On appeal, the Petitioner contends that he did not receive the effective assistance of counsel. We affirm the judgment of the trial court.


JAMES W. GANN, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jeffrey D. Ridner, Manchester, Tennessee, for the appellant, James W. Gann, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; and C. Michael Layne, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, James W. Gann, Jr., was convicted of first degree murder, arson, and setting fire to personal property, and he received an effective sentence of life imprisonment plus eight years. Subsequently, the petitioner filed a petition for post-conviction relief, alleging the ineffective assistance of counsel. The post-conviction court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. JANICE GATES

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. McClusky, Memphis, Tennessee, for the appellant, Janice Gates.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Susan Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Janice Gates, pled guilty to two counts of vehicular homicide, a Class C felony. The trial court sentenced the Defendant as a Range I, standard offender, to a concurrent sentence of six years for each conviction and ordered her to serve eighteen months in confinement before being released on probation for the remainder of the sentence. On appeal, the Defendant argues that the trial court erred by denying a sentence of full probation. Following our review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. JERRY ROMMELL GRAY

Court: TN Court of Criminal Appeals

Attorneys:

John M. Boucher, Jr., Knoxville, Tennessee for the appellant, Jerry Rommell Gray.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Kevin J. Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Knox County Criminal Court jury found the appellant, Jerry Rommell Gray, guilty of first degree felony murder, attempted especially aggravated robbery, and attempted aggravated robbery. The trial court imposed a total effective sentence of imprisonment for life plus fifteen years. On appeal, the appellant argues that the trial court erroneously allowed the State to present fingerprint evidence in violation of Crawford v. Washington, 541 U.S. 36 (2004). The appellant also argues that the trial court erred in allowing the State to take additional fingerprints of the appellant during trial. Finally, the appellant contends that the trial court erred by failing to instruct the jury regarding accomplice testimony. Upon review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. BILLY McFARLAND

Court: TN Court of Criminal Appeals

Attorneys:

Philip A. Condra, District Public Defender; Vanessa D. King, Assistant Public Defender (at plea submission hearing); and Robert G. Morgan, Assistant Public Defender (at sentencing hearing and on appeal), for the appellant, Billy McFarland.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; James Michael Taylor, District Attorney General; Steven M. Blount and William Bobo Copeland, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Billy McFarland, pled guilty to one count of failure to timely report as a violent sexual offender, a Class E felony. See Tenn. Code Ann. §§ 40-39-204(b), -208. Following a sentencing hearing, the trial court imposed a two-year sentence to be served in confinement. In this appeal as of right, the Defendant contends that the trial court erred by denying his request for an alternative sentence. Following our review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. LEONARD MILLER

Court: TN Court of Criminal Appeals

Attorneys:

Paul E. Meyers, Jackson, Tennessee, for the appellant, Leonard Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zenter, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Leonard Miller, appeals the Madison County Circuit Court’s order revoking his probation for aggravated burglary and theft of property valued at $1000 or more but less than $10,000 and ordering the remainder of his ten-year sentence into execution. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. JAMES W. REMBERT

Court: TN Court of Criminal Appeals

Attorneys:

Russell Lance Miller, Clarksville, Tennessee, for the appellant, James W. Rembert.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Mark A. Fulks, District Attorney General; and Suzanne Lockert-Mash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, James W. Rembert , entered an open plea to offenses alleged in two separate indictments: a four-count indictment for burglary, theft, vandalism, and possession of a firearm by a convicted felon and an additional indictment for aggravated perjury. On appeal, the Defendant contends that the trial court’s imposition of consecutive sentencing was error because the trial court “erroneously presumed” that the Defendant was on bond for offenses in the four-count indictment when the offense of aggravated perjury was committed. Because no error of law requiring a reversal of the judgment is apparent on the record, and the evidence in the record does not preponderate against the findings of the trial court, the judgments of the trial court are affirmed pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.


DWAYNE JABBAR SEALES v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Philip J. Perez (on petition) and William Doak Patton (on appeal), Nashville, Tennessee, for the appellant, Dwayne Jabbar Seales.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Hunter Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Dwayne Jabbar Seales, appeals from the summary dismissal of his March 30, 2011 petition for post-conviction relief as time-barred. On December 19, 2002, the Petitioner pled guilty to aggravated assault and domestic assault, and following his 2011 arrest on an unrelated charge, immigration removal proceedings have been initiated against the Petitioner based upon his 2002 guilty plea convictions. On appeal, the Petitioner asserts that due process requires tolling of the post-conviction limitations period because of trial counsel’s failure to inform him of the deportation consequences of his plea. After a thorough review of the record and the applicable authorities, we affirm the post-conviction court’s judgment.


Research Shows Drop in Salaries

The erosion of new associate hiring at law firms has resulted in a dramatic three-year decline in starting salaries for recent law graduates. Research by NALP, formerly the National Association for Law Placement, found that average starting salaries for members of the class of 2011 holding full-time jobs fell by 6.5 percent compared with the previous class, to $78,653 from $84,111. The median reported salary dropped by 5 percent, to $60,000 from $63,000. The median starting salary has dropped by 17 percent since 2009, according to NALP, and the average salary has decreased by 16 percent. Learn more from the National Law Journal


Sept. 4 Trial Date Set on Municipal Schools Law

With U.S. District Court Judge Samuel “Hardy” Mays's ruling yesterday that municipal schools referendums in the greater Memphis area may take place, a Sept. 4 trial date has been set to determine whether statutes allowing the referendums are constitutional. Mays agreed that submissions of possible evidence for the non-jury trial, which will focus narrowly on the issue of whether the Public Chapter 905 law is invalid because it applies only to Shelby County, would be due Aug. 10 -- eight days after the Aug. 2 referendums. Read more in the Commercial Appeal


Buckelew Joins Johnson Firm in Paris

The Paris Post-Intelligencer has this story about Henry County native Jeremy Buckelew, who has joined the Paris law office of Shon Johnson as an associate attorney.


Lawyer Finds Volunteering at P.A.T.H. Rewarding

Chattanooga lawyer Bo Hixson talks about his 25 years of commercial litigation practice -- and his involvement with P.A.T.H. (Partnering With Attorneys to Help) to General Sessions Court. Through this program, individuals with a case on the Monday docket can receive basic information about Sessions Court rules and procedures from volunteer attorneys. Although Hixson is on the board of the Chattanooga Bar Association, which launched the program, he was not an immediate believer in P.A.T.H. “I was skeptical about it at first because of my concern about an attorney crossing the line from giving general guidance to giving legal advice,” he says. Then he volunteered one Monday morning, and the experience changed his opinion. Read more from the Hamilton County Herald


Early Voting Now Through July 28

Beginning today, registered voters will have the opportunity to cast their ballots for the August 2 state primary and county general elections. Early voting continues through July 28. Whether you vote early or on election day, valid state or federal photo identification is now required when voting in person. The Secretary of State's Office has more on this year's voter requirements. Help for voters is available in many areas, including these guides for Memphis and Knoxville


Bradley Co. Bar Helps Bring Candidate Forums

The third and final in a series of debates hosted by the Bradley County Bar Association and the Cleveland Lions Club is set for July 17, with candidates in the 3rd and 4th Congressional district races. The forum will be at the Johnson Theatre at Cleveland State Community College at 6:30 p.m., with a theme of  "An informed vote is the best vote." The Cleveland Daily Banner urges readers to attend the forum and writes that "sometimes it’s just best to hear what [candidates] have to say, and how they say it, in person and up-close in a comfortable, nonpartisan and enclosed atmosphere," and praises the bar association and Lions Club for organizing the events.


Johnson City Lawyer Suspended

The Tennessee Supreme Court suspended Johnson City lawyer Bryan Bradley Martin on July 11 for one year, but allowed him to serve all time on probation. Martin submitted a conditional guilty plea that he neglected clients’ matters and failed to communicate with his clients. The court found his actions violated Rules of Professional Conduct 1.1, 1.3, 1.4, 1.16, 3.2 and 8.4. Download the BPR release


Knoxville Attorney Disbarred Twice

Knox County lawyer John O. Threadgill was disbarred June 6, and then a second time on July 12 by the Tennessee Supreme Court. He was also ordered to pay restitution of more than $24,000 to four former clients. The Board of Professional Responsibility filed petitions for discipline against him pursuant to Rule 9, Section 8.2, of the Rules of the Supreme Court of Tennessee, charging him with misappropriation of client funds, neglect of client matters, failure to communicate with clients, and practicing law while suspended. The board also filed a petition for final discipline against him based upon his guilty plea to theft in State of Tennessee v. Threadgill. Download the BPR release


 
 

Questions, comments: Email us at TBAToday@tnbar.org

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.


© Copyright 2012 Tennessee Bar Association