Judges Recuse Selves from Suit Over Judicial Selection

All but one of Tennessee's 12 Court of Appeals judges and two Supreme Court judges have recused themselves in an appeal of John Jay Hooker's latest effort to invalidate the state's system for selecting appeals court judges. If all five Supreme Court justices recuse themselves, Gov. Haslam could be called upon to name special Supreme Court justices to hear any appeal of the eventual Court of Appeals decision — just as then-Gov. Don Sundquist did in another of Hooker's cases, in 1998.

Hooker's latest suit, filed earlier this year, contends that Haslam's appointment of Jeff Bivins to the Court of Criminal Appeals violates the state constitution, but Davidson County Circuit Court Judge Hamilton Gayden dismissed the lawsuit in June. Hooker appealed, filing motions calling on the Court of Appeals and Supreme Court judges to recuse themselves from hearing the appeal. Supreme Court Chief Justice Cornelia Clark and Justice William Koch have recused themselves, along with the appeals judges. The other three Supreme Court justices filed an order calling on Hooker and the attorney general's office to file briefs on a possible recusal. Read more in the News Sentinel

Today's Opinions

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01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
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TN Supreme Court

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


TN Court of Appeals

IN THE MATTER OF: ALIJAH K. F.

Court: TN Court of Appeals

Attorneys:

Appellant Anthony F., Memphis, Tennessee, self-represented.

Timothy David Hughes, Memphis, Tennessee, for the appellee, Latarcha Beloch F.

Judge: PER CURIAM

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.


O’RANE M. CORNISH, SR. v. STEVEN C. COOPER, ET AL.

Court: TN Court of Appeals

Attorneys:

O’Rane Mansolin Cornish, Sr., Memphis, Tennessee, self represented.

Rex L. Brasher, Jr., Memphis, Tennessee, for the appellee, Steven Craig Cooper.

Judge: PER CURIAM

Appellant filed his Notice of Appeal one day past the deadline imposed by Rule 4 of the Tennessee Rules of Appellate Procedure. Accordingly, this Court lacks jurisdiction and we must dismiss this appeal.


HERITAGE OPERATING, LP v. HENRY COUNTY PROPANE GAS, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Anthony Michael Noel, Brian F. Walthart and George H. Rieger, II, Nashville, Tennessee, for the appellants, Henry County Propane Gas, Inc., Estate of Danny Blakemore and Gorman Hines.

Kevin C. Baltz, R. Charles Wilkin, III and Kara E. Shea, Nashville, Tennessee, for the appellee, Heritage Operating, LP.

Judge: FARMER

The trial court entered an order granting Plaintiff’s motion to compel discovery and for discovery sanctions, and stated that the order was final under Tennessee Rules of Civil Procedure 54.02. Defendant did not file a notice of appeal within 30 days of entry of the trial court’s order. Plaintiff subsequently filed a notice of voluntary nonsuit. Defendants filed a notice of appeal within 30 days of the trial court’s entry of an order of voluntary dismissal, and appeal the trial court’s award of discovery sanctions to Plaintiff. We hold that the order awarding sanctions was not an effective final judgment under Rule 54.02. Defendants’ appeal accordingly is timely. We vacate the award of sanctions and remand for further proceedings.


MICKEL HOBACK, v. CITY OF CHATTANOOGA

Court: TN Court of Appeals

Attorneys:

Phillip A. Noblett, Patrick P.H. Bobo, and Melinda Foster, Chattanooga, Tennessee, for the appellant, City of Chattanooga.

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellee, Mickel G. Hoback.

Judge: FRANKS

The City Commission terminated plaintiff as a police officer. He then filed a certiorari petition to the Chancery Court, where the Chancellor held that the Commission applied the wrong legal standard to the case, and the Chancellor reversed the Commission and ordered plaintiff to be reinstated as a policeman. On appeal, we affirm the Trial Court's ruling that the Commission applied the wrong legal standard to the facts of the case, but vacate the reinstatement of the officer and remand to the City Commission to apply the proper legal standards in a new trial in plaintiff's case.


ROGER D. ROACH, et al., v. DON BUNCH, et al.

Court: TN Court of Appeals

Attorneys:

Douglas T. Jenkins, Rogersville, Tennessee, for the appellants, Leon Epling, Rhonda Epling, and Jenny Epling.

Kevin C. Stevens, Knoxville, Tennessee, for the appellees, Roger D. Roach, et al.

Judge: FRANKS

Plaintiffs who own homes in Mallard Baye subdivision, brought this action against defendants who had constructed a septic system on several of the residential lots serving other properties, alleging that defendants acted in violation of the restrictive covenants of their subdivision. Following a bench trial, the Trial Court held that the defendants' construction of the septic system violated the subdivision restrictive covenants, and the defendants appealed. On appeal, we affirm the Judgment of the Trial Court.


IN RE WILLIAM S. ET AL.

Court: TN Court of Appeals

Attorneys:

Clayton Michael Cardwell, Nashville, Tennessee, for the appellant, Kevin Dean S.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Douglas Earl Dimond and Marcie Eubanks Greene, Assistant Attorneys General; for the appellee, State of Tennessee, Department of Children’s Services.

Susie Piper McGowan, Nunnelly, Tennessee, Guardian Ad Litem.

Judge: BENNETT

Father appeals the termination of his parental rights. The trial court found multiple grounds for termination of his rights and that termination was in the best interest of the two children. Father appealed. Because he did not appeal the ground of wanton disregard for the welfare of the children, we find it unnecessary to discuss the other grounds at length. We do find, however, that there is clear and convincing evidence supporting a finding that additional grounds exist. We further find that termination of Father’s parental rights is in the best interest of the children. Consequently, we affirm the trial court.


TRENA WINKLER v. PINNACLE PROPERTIES I, LLC and ERSHIG PROPERTIES, INC.

Court: TN Court of Appeals

Attorneys:

James Bryan Mosely, Nashville, Tennessee, for the appellant, Trena Winkler.

Daniel H. Rader III, Cookeville, for the appellee, Pinnacle Properties I, LLC, and Ershig Properties, Inc.

Judge: CANTRELL

The plaintiff tripped and fell in a parking lot. She sued the owners, claiming that the step up from the parking lot to a ramp leading onto the sidewalk was a hidden danger because it was painted the same color as the top surface of the ramp. The court below granted the defendants a summary judgment, holding that the defendants had not violated any duty to the plaintiff and that the sole cause of the injury was the plaintiff’s inattention to the surroundings. After a review of the record, we hold that the defendants are not entitled to a judgment as a matter of law. We therefore reverse the lower court’s judgment and remand the cause for further proceedings.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. TUCSON BIGGS

Court: TN Court of Criminal Appeals

Attorneys:

Claiborne H. Ferguson, Memphis, Tennessee, for the appellee, Tucson Biggs.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General, and Patience Branham, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Defendant, Tucson Biggs, of voluntary manslaughter. At the sentencing hearing, the State requested that the Defendant be sentenced as a Range II, multiple offender. The Defendant objected, claiming that the State did not comply with Tennessee Code Annotated section 40-35-202(a) by providing notice of its intent to seek an enhanced punishment. The trial court agreed with the Defendant and sentenced him to six years as a Range I offender. On appeal, the State contends that the Defendant was on notice that he would face an enhanced punishment because, before trial, the State filed a notice of intent to seek the death penalty and a notice of intent to impeach the Defendant’s testimony with his prior convictions, which satisfied the statutory requirements. After a thorough review of the record and relevant authorities, we agree that the State’s filings satisfied the purposes of the statutory notice requirement. As such, we reverse the judgment of the trial court and remand for a new sentencing hearing.


STATE OF TENNESSEE v. JERRY ELLIOT

Court: TN Court of Criminal Appeals

Attorneys:

Hewitt Chatman, Jackson, Tennessee, for the appellant, Jerry Elliot.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Jerry Elliot, was found guilty by a Henderson County Circuit Court jury of aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2010). He was sentenced as a Range II, multiple offender to ten years’ confinement. On appeal, he contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.


TERRENCE GARDNER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Timothy J. Francavilla, Memphis, Tennessee, for the appellant, Terrence Gardner.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Amy P. Weirich, District Attorney General; Betsy Weintraub and A. Brooks Irvine, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Petitioner, Terrence Gardner, of first degree felony murder, aggravated robbery, and aggravated assault, and he was sentenced to life plus four years in the Tennessee Department of Correction. This Court affirmed the Petitioner’s conviction on direct appeal. State v. Terrence Gardner, No. W2008-01089-CCA-R3-CD, 2009 WL 3172124 (Tenn. Crim. App., at Jackson, Oct. 5, 2009), perm. app. denied (Tenn. Mar. 15, 2010). In 2010, the Petitioner filed a petition for post-conviction relief, alleging that he had received the ineffective assistance of counsel. After a hearing, the postconviction court dismissed the petition. Finding no error, we affirm the post-conviction court’s judgment.


STATE OF TENNESSEE v. DANA HUBBARD

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, District Public Defender; Phyllis Aluko (on appeal) and Jennifer Johnson (at the plea & sentencing hearings), Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Dana Hubbard.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler and Bryan Davis, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

The Defendant, Dana Hubbard, pled guilty to theft of property valued over $1000, a Class D felony. See T.C.A. §§ 39-14-103, 39-14-105 (2010). He was sentenced as a Range I, standard offender to two years’ probation. On appeal, the Defendant contends that the trial court erred by denying his request for judicial diversion. We affirm the judgment of the trial court.


DARNELL HUBBARD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Sharon Fortner, Memphis, Tennessee, for the appellant, Darnell Hubbard.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and A. Brooks Irvine, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Petitioner, Darnell Hubbard, of first degree murder, and he received a sentence of life without the possibility of parole. On appeal, this Court affirmed the Petitioner’s conviction. State v. Darnell Hubbard, No. W2007-02482-CCA-R3-CD, 2009 WL 2568200, at *1 (Tenn. Crim. App., at Jackson, Aug. 20, 2009), perm. app. denied (Tenn. Nov. 23, 2009). The Petitioner filed a petition for post-conviction relief, asserting several claims of ineffective assistance of counsel and a claim that the State failed to disclose exculpatory evidence to the defense. After a hearing on the petition, the post-conviction court denied the petition. On appeal, the Petitioner contends that the post-conviction court erred when it denied his petition. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.


TAMAINE WORKS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joseph S. Ozment (on appeal), and Larry Copeland (at post-conviction hearing), Memphis, Tennessee, for the appellant, Tamaine Works.

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

Judge: TIPTON

The Petitioner, Tamaine Works, appeals from the Shelby County Criminal Court’s denial of post-conviction relief from his conviction for first degree premeditated murder and resulting life sentence. On appeal, the Petitioner contends that he did not receive the effective assistance of counsel and that the assistant district attorney general committed prosecutorial misconduct at his trial. We affirm the judgment of the trial court.


TJC Awarded Grant to Expand Partnerships

The Tennessee Justice Center (TJC) has been awarded a $5,000 grant from the American Bar Association (ABA) to expand its efforts to engage and partner with Tennessee lawyers and law firms. Michele Johnson, TJC managing attorney said the ABA Section of Litigation Justice Assistance Fund Grant will "help us take our partnership with Tennessee’s legal community to the next level." Learn more from the TJC


Editorial: Islamic Center Decision a Victory

In an editorial, the Daily News Journal says that the wrangling over the building of the Islamic Center of Murfreesboro "was an argument about nothing that wouldn’t go away, costing Rutherford County tens of thousands in legal fees and driving a wedge into the midst of our community." District Court Judge Todd Campbell's ruling was the "right move for a local group, [and] a victory for religious groups across the country," the paper says. "The First Amendment and state Constitution are clear about the rights of religious groups to worship freely. It is time to recognize those constitutional rights."


1st Amendment at Center of Hamilton County Prayer Dispute

In Hamilton County, both parties in the dispute over prayer at county commission meetings say the First Amendment is on their side. Lawyers for both the plaintiffs and the county also use Marsh v. Chambers -- a 1983 case in which the Supreme Court upheld legislative prayer in a 6-3 decision -- to help make their cases in briefs filed ahead of Thursday's hearing before U.S. District Judge Harry S. "Sandy" Mattice. Charles Haynes, director of the Religious Freedom Education Project at the Newseum and a senior First Amendment Center scholar, said none of the country's circuit courts of appeal have signaled they would be willing to strike down legislative prayer. "There are a lot of cases over the years about this issue, and Marsh is still good law," Haynes said. Nonetheless, "people are still pushing the envelope at what Marsh means," he said. In the past five years, two U.S. circuit courts have split on how to apply Marsh. But the 6th Circuit, hasn't ruled directly on legislative prayer. The Times Free Press has more. Meanwhile, the Knox County Commission today is expected to adopt a written policy regarding prayer before board meetings, the News Sentinel reports.


Officers, Others Named to U of M Law Alumni Board

Judge Robert L. “Butch” Childers is the new president of the Law Alumni Chapter of the Cecil C. Humphreys School of Law at the University of Memphis. Other officers are R. Hunter Humphreys, president-elect, and Vickie Hardy Jones, secretary-treasurer. In addition, the school announced that five new board members have been chosen. They are the Hon. George Ellis, the Hon. Gina Higgins, Richard Glassman, Mary Hackett, Michael Joiner and Todd Williams.


Judge Tosses Law Grads' Job Prospects Suit

A federal judge in Michigan has dismissed a suit by 12 Thomas M. Cooley law grads claiming they were misled about their job prospects. U.S. District Judge Gordon Quist dismissed the case on Friday, saying Cooley’s employment stats are “literally true” and the plaintiffs unreasonably relied on the school’s representations, the Wall Street Journal Law Blog reports. The judge also said the state’s consumer protection law does not apply to items purchased for a business purpose, including the purchase of a legal education. ABAJournal.com has more


Guns Used In Shooting Probably Legal Under Colorado Gun Laws

Police believe the an assault rifle and other weapons used in the shooting spree at a Colorado movie theater last week were purchased legally, even though the state adopted additional restrictions after the mass shootings at Columbine High School. The New York Times has a story on Colorado's gun laws, which it calls "lax." ABAJournal.com connects you to other stories.


Services Set for Knoxville Lawyer Robert Holland

Knoxville attorney Robert Shields Holland has died at the age of 68. He began his career teaching history, and coaching basketball and cross-country and later earned his law degree at the Cecil C. Humphreys School of Law at Memphis State University. He then practiced law with his brother Terry, and longtime Knoxville attorney Francis Headman. His daughter, Shannon M. Holland, later entered the practice. The family was to receive friends at Bearden United Methodist Church, at 4407 Sutherland Avenue in Knoxville, from 5 to 7 p.m. today, followed by a funeral service. Interment will be Tuesday at 11 a.m. at Middle Creek Cemetery, 1828 Middle Creek Road, in Sevierville. In lieu of flowers, the family has requested donations to the M.J. Ivens Memorial Scholarship, named to honor Mr. Holland's grandfather, at 225 Hiwassee College Drive, Madisonville 37354, or to Historic Middle Creek United Methodist Church Building Fund, 1828 Middle Creek Road, Pigeon Forge 37863. Read the obituary


Pro Bono Celebration This Thursday

Knoxville lawyers will gather Thursday, July 26, at the Square Room on Market Square for Celebrate Pro Bono! The festivities will begin at 5:30 p.m. with a dinner buffet. Tickets are $25 per person ($15 for law students) and may be ordered online, by fax to (865) 525-1162 or by mail to Legal Aid of East Tennessee, 502 S. Gay Street, Suite 404, Knoxville 37902. Tennessee Supreme Court Justices Sharon G. Lee and Gary R. Wade will serve as the masters of ceremonies. The evening also will feature a silent auction, and will wrap up with a presentation of the Knoxville Bar Association's Pro Bono Awards and awards for those who have performed extraordinary service to low-income clients through the Pro Bono Project. Learn more about the event


Federalist Society Hosts Labor Seminar

The Memphis Lawyers' Chapter of the Federalist Society will present a luncheon seminar on "Union Organizing Made Easier: The Obama NLRB" on Thursday, July 26, from 11:30 a.m. to 1 p.m. at The Madison Hotel. The speaker will be Raymond J. LaJeunesse, vice president and legal director at the National Right to Work Legal Defense Fund. The cost is $25 for society members and $30 for non-members. To register contact Greg Grisham at (901) 462-2616 or gregory.grisham@jacksonlewis.com.


 
 

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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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