Wade Addresses Ramsey's Efforts to Unseat Justices

Tennessee Supreme Court Chief Justice Gary Wade called an effort by Lt. Gov. Ron Ramsey to have him unseated from the bench in the upcoming August election “different and disconcerting” during an interview with the Bristol Herald Courier yesterday. Ramsey has led a public campaign urging voters not to retain Wade and fellow justices Connie Clark and Sharon Lee. Wade, who was appointed by Democratic Gov. Phil Bredesen, said the legislation providing for a retention system for Supreme Court justices was designed to remove partisan politics from the appellate court system, but Ramsey’s tactics have changed the process this year. “I guess we are getting a lesson in hardball politics,” Wade said.

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
03 - TN Court of Appeals
05 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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TN Court of Appeals

TIMOTHY DAVIS, AS SURVIVING SPOUSE AND NEXT OF KIN OF KATHERINE MICHELLE DAVIS v. MICHAEL IBACH, M.D., AND MARTINSON ANSAH, M.D.

Court: TN Court of Appeals

Attorneys:

Timothy G. Wehner and Ashley D. Cleek, Jackson, Tennessee; Robert A. Talley and Jennifer S. Harrison, Memphis, Tennessee; and Hubert B. Jones, Dyersburg, Tennessee, for the Appellants, Michael Ibach, M.D., and Martinson Ansah, M.D.

Charles M. Agee, Jr., and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the Appellee, Timothy Davis.

Judge: KIRBY

This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, he timely filed a certificate of good faith, as required by the medical malpractice statute. The certificate did not include a statement that the executing party had “zero” violations of the statute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turn filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice. The defendants argued that, if the certificate of good faith does not strictly comply with the statutes, the trial court must dismiss the case with prejudice. The trial court granted the voluntary nonsuit without prejudice, and the defendants now appeal that decision. Discerning no error, we affirm.


THOMAS HAGER, ET AL. v. JOHN GEORGE

Court: TN Court of Appeals

Attorneys:

Stephen E. Grauberger, Mt. Juliet, Tennessee, for the appellants, Thomas Hager and Bobbye Hager.

Frank E. Mondelli Sr., Nashville, Tennessee, for the appellee, John George.

Judge: MCBRAYER

This case involves a dispute regarding the use of an abandoned county road. The road runs through the land of John George, Appellee, who sought to deny his neighbors, Thomas and Bobbye Hager, Appellants, access to the road. The Hagers brought suit claiming they had acquired rights to use the road through adverse possession, a private access easement pursuant to the abandonment of a public road, or a prescriptive easement. The trial court found that the Hagers had established the creation of a prescriptive easement but limited their right to maintain the easement to emergency conditions only. The Hagers argue that the trial court erred in restricting their ability to reasonably maintain the easement. Mr. George contends that the trial court erred in finding the Hagers had acquired rights in the road through a prescriptive easement. We find that the trial court correctly held that the Hagers acquired a prescriptive easement but that a right to conduct reasonable maintenance is a necessary incident of an easement by prescription. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings.


PATRICIA MULHAIRE-BREEDEN v. NASHVILLE MIDNIGHT OIL, LLC ET AL.

Court: TN Court of Appeals

Attorneys:

James Allen Frazier, Jr., Thompson Station, Tennessee, for the appellant, Patricia Mulhaire-Breeden.

David Anthony, Nashville, Tennessee, for the appellee, Nashville Midnight Oil, LLC d/b/a Tequila Cowboy.

Judge: CLEMENT

This is an appeal from an order setting aside a default judgment. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.


TN Court of Criminal Appeals

GARY CARR v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gary Carr, Henning, Tennessee, pro se.

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

Judge: PAGE

The Petitioner, Gary Carr, appeals the Circuit Court for Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.


REGINALD FOWLER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Michael R. Tabler (on appeal); and John E. Eldridge (at post-conviction hearing), Knoxville, Tennessee, for the appellant, Reginald Fowler.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and TaKisha Fitzgerald and Leland Price, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Reginald Fowler, was convicted of aggravated arson following a bench trial, and he was sentenced to twenty years in the Tennessee Department of Correction. Following an unsuccessful direct appeal, he filed the instant petition for post-conviction relief raising the following issues: (1) whether he was denied a fair trial due to the alleged impairment of the trial judge; (2) whether ineffective assistance of trial counsel rendered his waiver of a jury trial involuntary; and (3) whether trial counsel’s assistance was ineffective by failing to present the testimony of a pharmacologist at trial. After an evidentiary hearing, the postconviction court denied relief. Following our review, we affirm the judgment of the postconviction court.


STATE OF TENNESSEE v. KENNETH HAMM

Court: TN Court of Criminal Appeals

Attorneys:

Vicki M. Carriker (on appeal) and S. Ronald Lucchesi (at trial), Memphis, Tennessee, for the appellant, Kenneth Hamm.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Kenneth Hamm, was convicted by a Shelby County Criminal Court jury of attempt to commit rape of a child, a Class B felony. See T.C.A. §§ 39-13-522 (2010) (rape of a child), 39-12-101 (criminal attempt), 39-12-107 (criminal attempt classification). The trial court sentenced him as a Range I, standard offender to ten years and one month in confinement. On appeal, he contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting into evidence his uncorroborated statements to Officer Diffee; (3) the court erred in excluding evidence of the victim’s previous allegations of sexual abuse by others; and (4) the court erred by applying insufficient weight to the mitigating factors during sentencing. We affirm the judgment of the trial court.


BILLY McILLWAIN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Brandon L. Newman (on appeal) and Jennifer Deen (at post-conviction hearing), Trenton, Tennessee, for the appellant, Billy McIllwain.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Garry Brown, District Attorney General; and Larry Hardister and Stephanie Hale, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Billy McIllwain, appeals the Gibson County Circuit Court’s denial of his petition for post-conviction relief from his 2009 convictions for first degree murder, two counts of aggravated assault, and possession of a deadly weapon with the intent to employ it in the commission of the offense and his effective sentence of life plus six years. The Petitioner contends that the trial court erred by denying him relief because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. RANDY SHERRILL

Court: TN Court of Criminal Appeals

Attorneys:

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the Appellant, Randy Sherrill.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; C. Phillip Bivens, District Attorney General; Lance E. Webb, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Lake County jury convicted the Defendant, Randy Sherrill, of sale of a Schedule II controlled substance in a drug-free zone. The trial court sentenced the Defendant to serve eight years as a multiple offender. On appeal, the Defendant contends that: (1) “Markham Park” is not listed as a “park” by the State of Tennessee, the City of Tiptonville, or the Federal Government; (2) the State committed a Brady violation by not informing defense counsel of its confidential informant’s drug use during the time period of his transactions with the Defendant; (3) the State failed to prove chain of custody; and (4) the trial court, Tiptonville Police Chief England, and the State, engaged in improper conversations with the jury after jury deliberations had begun. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgment.


TN Attorney General Opinions

Appeals of Orders of Protection

Court: TN Attorney General Opinions

Date: 2014-07-08

Opinion Number: 69


Feds Give Tennessee 10 Days to Address ACA Failures

The federal director of Medicaid programs is giving Tennessee 10 days to submit a correction plan after failing to provide services for people as required by the Affordable Care Act. The Tennessean reports that the crux of the problem concerns delays with bringing a $35 million computer system online. Tennessee is also criticized for not providing people with face-to-face help in applying and for not setting up a program that allows hospitals to temporarily enroll people in Medicaid if they are presumed eligible.


Civil Rights Groups: Children Facing Deportation Should Have Counsel

Civil rights groups filed a lawsuit today in federal court against Attorney General Eric Holder and other U.S. officials. They contend it is "fundamentally unfair" to require children facing deportation hearings to proceed without legal representation and are seeking a court order requiring the Department of Justice to arrange to provide defense counsel for juveniles throughout the country. Recently the Obama Administration said that protections for unaccompanied immigrant children in a sex-trafficking law are partly responsible for tying the government’s hands in dealing with the current influx of children crossing the border alone. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, signed into law by then-president George W. Bush, was originally pushed by a bipartisan coalition of lawmakers as well as by evangelical groups to combat sex trafficking. The bill gave substantial new protections to children entering the country alone who were not from Mexico or Canada by prohibiting them from being quickly sent back to their country of origin. The ABA Journal has more from the New York Times.


Law Schools See Smallest Incoming Class Since 1970s

Law schools admitted 39,675 first-year students last year, the smallest incoming class since the 1970s. That number represents an 11 percent drop from the prior year and a 24 percent drop in three years. According to figures from the Law School Admission Council, the number of applicants for the first-year class in 2014 has dropped nearly 8 percent from last year. Bucking the trend are Harvard Law School and students who score high on the Law School Admission Test. More high-scoring students are applying to law school, and applications to Harvard’s law school are up significantly this year, the ABA Journal reports. At least one school -- Thomas M. Cooley Law School's Ann Arbor, Michigan, campus -- is not enrolling any first-years this fall.


ACLU to Challenge Law Mandating Welfare Drug Tests

The American Civil Liberties Union of Tennessee is looking for people interested in challenging a new law mandating drug tests for some applicants for the state's Temporary Assistance to Needy Families (TANF), the Chattanooga Times Free Press reports. ACLU-Tennessee said the law, which took effect July 1, raises “serious constitutional concerns" and singles out limited-income people. Executive Director Hedy Weinberg said in a statement that research indicates TANF recipients "are no more likely to use illicit drugs than farmers, veterans, and students, who also receive government support.”


Chattanooga to Appeal Decision on Referendum Wording

The city of Chattanooga has filed notice that it plans to appeal a decision by Circuit Court Judge Neil Thomas on the issue of wording on the Domestic Partners Benefits Ordinance referendum, the Chattanoogan reports. Judge Thomas ruled Monday morning that the referendum will proceed as drafted by the group that gained signatures to put it on the ballot.


Former Tennessee Titans Take Hit Under New Workers’ Comp Law

Changes in workers' compensation laws have created new challenges for workers seeking help, including former professional athletes. In Tennessee, all workers seeking compensation face substantial cuts in benefits since a new law took effect July 1. Under the revised statute, employees will no longer have the right to appeal decisions in the state court system and factors that could boost benefits based on the severity and longevity of the injury were removed. Records show that some two dozen former Tennessee Titans football players have filed workers’ comp claims in Tennessee, while many more have sought compensation in California because it has more worker-friendly compensation laws. The Tennessean has more.


Mergers, 'Kaley' Ruling, Seersucker and More Covered in July TBJ

Kathryn Reed Edge gives the details of what a merger entails in the July issue of the Tennessee Bar Journal. Enjoy TBA Convention photos and stories in the printed version -- and read new TBA President Jonathan Steen's column, "If Not Us, Then Who?" Wade Davies explains the recent Kaley ruling about criminal defendants using their earnings to retain counsel (spoiler: they can't). And if you are wavering about buying a Seersucker suit this summer, read Bill Haltom's column for a nudge in favor of the cool, cotton ensemble.


McCadams Seeks Re-election, Stowe to Challenge

The Paris Post Intelligencer profiles two candidates for district attorney general for the 24th Judicial District. Hansel McCadams of Paris is seeking re-election for the post. He served as an assistant district attorney from 1984 to 1990. In 1990, was elected to the office of General Sessions/Juvenile Court judge for Henry County, and was re-elected in 1998. McCadams was elected as DA in 2006 and said throughout his term the 24th District has maintained a crime rate below the state average according to the Tennessee Bureau of Investigation statistics. Matt Stowe of Benton County is also running for the seat. He worked as a prosecutor in Boston, as well as serving the people of Texas as deputy solicitor general. He taught criminal law and criminal procedure at Cornell Law School and currently teaches ethics classes and criminal justice classes at Bethel University.


Get CLE Fast with Summer Blast

Need a few CLE hours fast? The TBA is offering programs from 8:30 a.m. to 4 p.m. on July 24. The Summer CLE Blast will offer 7 hours of dual CLE credit. Take as many or as few hours as you need. Registration desk will be open all day. Payment will be determined at checkout depending on the number of hours you attend. Learn more at TennBarU.


Fair Courts State Summit Planned This Month

Washington, D.C., based nonprofit Justice at Stake is hosting a first-of-its-kind event to bring together state advocates for fair courts, those working on issues that depend on access to fair courts and the national groups that support their work. The Fair Courts State Summit will take place July 27-28 in the nation's capital. Presentations will address how state courts impact issues lawyers care about, the current political landscape and its impact on the courts and how to talk about fair courts issues. Speakers include Iowa Supreme Court Chief Justice Mark Cady, former White House press secretary Robert Gibbs and from Tennessee, Tracey George, a professor at Vanderbilt University Law School, who will join a panel looking at groups attempting to politicize the courts and how they are organized and funded.


Fastcase: Free Premium-Level Legal Research

Have you been using your unlimited access to online legal research through Fastcase? It comes free with your TBA membership. Court opinions are available from all 50 states, the U.S. Supreme Court, all federal district and appellate courts, and the U.S. bankruptcy courts. Framed statutes, regulations, court rules and constitutions from all 50 states also are free. Log in through your TBA.org account and start saving money on your online legal research.


 
 

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.


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