TBA-backed bills on the move

Several key pieces of TBA-backed legislation are working their way toward the governor’s desk as committees in the General Assembly are starting to shut down for the year. The House Judiciary and Children and Family Affairs committees have already finished up their work and the Senate Judiciary may close next week. Get more details in this week’s legislative wrap up.

http://www.tba2.org/tbatoday/legislation/2006/update_050406.html

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. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

01 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. 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. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

DARYL KEITH HOLTON v. STATE OF TENNESSEE and PAUL DENNIS REID, Jr. v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Associate Deputy Attorney General; William Michael McCown, District Attorney General (Holton); and John W. Carney, Jr., District Attorney General, and Arthur Bieber, Assistant District Attorney General (Reid), for the Appellant, State of Tennessee.

Donald E. Dawson, Post Conviction Defender, and Kelly A. Gleason, Assistant Post-Conviction Defender, Nashville, Tennessee, for the Appellee, Daryl Keith Holton.

Kelly A. Gleason, Assistant Post-Conviction Defender, and Nicholas D. Hare, Assistant Post-Conviction Defender, Nashville, Tennessee, for the Appellee, Paul Dennis Reid, Jr.

Judge: E. RILEY ANDERSON

We granted these appeals to determine whether a post-conviction trial court has the authority to consider petitions that are filed by the Post-Conviction Defender but are not verified under oath or signed by the petitioners. In Holton v. State, the post-conviction trial court entered an order staying Holton’s execution, appointing counsel, and requiring Holton to meet with counsel and a court-appointed mental health expert. In Reid v. State, the post-conviction trial court entered an order staying Reid’s execution, appointing counsel, and staying the post-conviction proceedings. In both cases, the Court of Criminal Appeals denied the State’s application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. After reviewing the records and applicable authority, however, we conclude that the post-conviction trial courts did not have the authority to consider the petitions because they had not been signed or verified under oath and because the Post-Conviction Defender did not establish a proper basis to initiate the proceedings as “next friend.” Accordingly, the post-conviction trial courts’ orders are vacated, and the petitions are dismissed.

http://www.tba2.org/tba_files/TSC/2006/holtond,reidp050406.pdf


SANDRA DENISE TOMLIN v. FEDERAL RESERVE BANK OF ATLANTA/NASHVILLE BRANCH, ET AL.

Court: TWCA

Attorneys:

Jerry R. Humphreys, Nashville, Tennessee, attorney for Appellant, Federal Reserve Bank of Atlanta/Nashville Branch.

Ann Buntin Steiner, Nashville, Tennessee, attorney for Appellee, Sandra Denise Tomlin.

Judge: WILLIAM H. INMAN, SR.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and conclusions of law. The Plaintiff asserted gradually occurring back problems coupled with arm injuries, long subsisting. Her treating physician diagnosed degenerative disc disease, aggravated by the duties of her job. An independent medical examiner, and another physician, disagreed, finding no organic basis for her complaints, which implicated malingering.

http://www.tba2.org/tba_files/TSC_WCP/2006/tomlins050406.pdf


N RE: ESTATE OF CLIFFORD FRANKLIN BAKER, ET AL. v. LEE KING, ET AL.

Court: TCA

Attorneys:

J. Steven Anderson of Memphis, Tennessee for Appellant, Tommie Baker

Harold F. Johnson of Jackson, Tennessee for Appellees, Lee King and Baker King

Judge: W. FRANK CRAWFORD

This appeal involves a challenge to the validity of an antenuptial agreement. Executors under the decedent’s Will filed a petition in the General Sessions Court of Madison County, Probate Division, to have Will admitted to probate. Decedent’s wife then filed a notice and petition for elective share, for specific property, year’s support, homestead, and expedited hearing. The Executors, also beneficiaries under decedent’s Will, opposed the petition based on an antenuptial agreement the wife had entered into with the decedent prior to their marriage, and the wife challenged the enforceability of the antenuptial agreement. Following a hearing, the court upheld the validity of the antenuptial agreement, finding that the wife entered into the agreement knowledgeably and that the doctrine of equitable estoppel prohibited the wife from contesting the antenuptial agreement. Wife appeals. The dispositive question before this Court is whether the evidence preponderates against the trial court’s finding that the antenuptial agreement was valid and enforceable. We conclude that the record and applicable law do not support the trial court’s decision to enforce the antenuptial agreement. We reverse and remand this case to the probate court for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2006/bakerc050406.pdf


WAYNE FAUST, ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

Court: TCA

Attorneys:

Karl F. Dean, Director of Law, James L. Charles, Michael B. Bligh; Matthew J. Sweeney, April Y. Berman, Nashville, Tennessee, for the appellants, The Metropolitan Government of Nashville and Davidson County and the Metropolitan Employee Benefit Board.

George E. Barrett, James Bryan Lewis, Gerald E. Martin; David Komisar, Nashville, Tennessee, for the appellees, Wayne Faust, Robert Clark, and Nashville Police Civil Association, Inc.

C. Dewey Branstetter, Mark A. Mayhew, Nashville, Tennessee, for the appellee intervenor-plaintiffs, Owen Frame, et al.

Judge: WILLIAM B. CAIN

This case involves eligibility for enhanced retirement benefits of certain employees of a local government. In 1996, civilian employees of the police department sued alleging that an administrative interpretation of eligibility requirements that allowed civilian employees of the fire department into the enhanced benefits plan available only to “firemen” and “policemen” deprived the police department civilian employees of their rights to equal protection. Over the almost-eight-year course of this litigation in the trial court, a number of orders were entered that are challenged in this appeal. The practical result of these orders is that a large number of individuals who were civilian employees of the two departments at specified times, which times differed for the two departments, were included in an enhanced benefit plan for which they were clearly not eligible by the terms of the ordinances establishing the plan. For the reasons set out below, we reverse the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2006/faustw050406.pdf


IN RE: M.R.W., T.D.B., and A.N.B.

Court: TCA

Attorneys:

Thomas H. Miller, Franklin, Tennessee, for the Appellant, M.D.B.

Paul G. Summers, Attorney General and Reporter and Sharon G. Hutchins, Assistant Attorney General, for the State of Tennessee Department of Children’s Services.

Judge: DAVID R. FARMER

The trial court terminated Mother’s parental rights based on abandonment, substantial non-compliance with a permanency plan, and persistence of conditions leading to removal. Mother appeals, asserting the trial court erred by failing to make findings of fact regarding each ground for termination asserted by the Department of Children’s Service and by failing to enter its order within thirty days of the trial of the matter as required by Tennessee Code Annotated § 36-1-113(k). We affirm.

http://www.tba2.org/tba_files/TCA/2006/mrw050406.pdf


IN RE: BERTHA ROBERSON, DECEASED

Court: TCA

Attorneys:

Dennis W. Powers, Gallatin, Tennessee and John R. Pappellants, Sue S. Chambers and Frank A. Wright.

Nathan Harsh and Gwynn K. Smith, Gallatin, Tennessee, for the appellee, Samuel Robert Gilmore, Executor of the Estate of Bertha Roberson.

Judge: DAVID R. FARMER

The probate court construed a reference to “Mary Todd” in testator’s Will as referring to testator’s grandmother, and not testator’s mother. It also determined that, upon the death of testator’ s son, son’s heirs did not take the remainder of a trust established by testator for son’s welfare. We affirm.

http://www.tba2.org/tba_files/TCA/2006/robersonb050406.pdf


ALEXANDER C. WELLS v. JAMES HEFNER, ET AL.

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Alexander C. Wells.

Paul G. Summers, Attorney General and Reporter, and Leslie Ann Bridges, Senior Counsel, for the appellees, James Hefner, Timothy Quain, and Dean Roberts.

Judge: FRANK G. CLEMENT, JR.

Plaintiff appeals the summary dismissal of his complaint for malicious prosecution against three officials at Tennessee State University. A former student of Plaintiff, a professor at Tennessee State University, filed a complaint with the Affirmative Action Officer at TSU, alleging sexual harassment by Plaintiff in the fall of 1990. Following a series of administrative proceedings within the university, Plaintiff was found to have violated its policy on sexual harassment and its standards of professional conduct and responsibility for which his employment was terminated. Plaintiff then filed a Petition for Review with the Chancery Court and successfully appealed his termination. As a consequence, his employment was reinstated. Thereafter, Plaintiff filed this action against three university officials who participated in the proceedings that led to his termination, asserting they lacked probable cause. We have determined the defendants never brought a lawsuit or judicial proceeding against Plaintiff, an essential element to a cause of action for malicious prosecution, and thus affirm the summary dismissal of the complaint.

http://www.tba2.org/tba_files/TCA/2006/wellsa050406.pdf


STATE OF TENNESSEE v. ANTONIO D. RICHARDSON

+ Concur


Court: TCCA

Attorneys:

Ross E. Alderman, District Public Defender; and Emma Rae Tennet, J. Michael Engle, and Graham Prichard, Assistant District Public Defenders, for the Appellee, Antonio D. Richardson.

Paul G. Summers, Attorney General & Reporter; C. Daniel Lins, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Sue Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: JAMES CURWOOD WITT, JR.

A Davidson County Criminal Court jury convicted the defendant, Antonio D. Richardson, of three counts of especially aggravated kidnapping, one count of aggravated assault, one count of felony reckless endangerment, and one count of burglary, all stemming from an unsuccessful attempt on January 12, 2003, to rob a Calhoun’s restaurant in the Rivergate area of Davidson County. Additionally, the defendant pleaded guilty to attempted especially aggravated robbery. The trial court imposed an effective Department of Correction (DOC) sentence of 67 years. Now on appeal, the defendant claims (1) that the convictions of especially aggravated kidnapping are prohibited by, on due process grounds, the conviction of attempt to commit especially aggravated robbery and (2) that the trial court erred in sentencing. Following our review, we reverse the convictions of especially aggravated kidnapping and order the charges on these counts dismissed. Otherwise, we affirm the convictions, although we remand for re-sentencing.

http://www.tba2.org/tba_files/TCCA/2006/richardsona050406.pdf

DAVID G. HAYES, Judge, separate concurring.
http://www.tba2.org/tba_files/TCCA/2006/richardsonaCON050406.pdf


TODAY'S NEWS

Legal News
Election 2006
Passages
Legislative News

Legal News
UPL? Suit filed says Nashville notarios practicing law
A class-action lawsuit was filed against Carmen Ceja and her company, Ceja Enterprises, by Nashville attorney Sean Lewis. The suit, filed in Chancery Court on behalf of a number of clients, seeks over $2 million in damages, charging that Ceja misrepresents herself to the Latino community, claiming that she is qualified to handle legal and financial matters that. Read about it in the
Nashville Scene.
Bob Ritchie: memories of an influential friend
Metro Pulse Associate Editor Jack Neely recalls his years as Knoxville lawyer Bob Ritchie's investigator. "He befriended every jury and judge; he seemed even to befriend the opposing counsel, let the jury know he thought the prosecutor was just a good, well-meaning fellow trying to do his job even though he was wrong ... He believed in the criminal-justice system and in the daily importance of his part in it."
Read the column.
March defense seeks details of deal made with informant
Perry March's defense team wants details of a deal between prosecutors and a jailhouse informant who is the star witness in a murder-for-hire case against the former Nashville attorney. The request was among several issues discussed during a hearing Wednesday to consider motions for March's upcoming trial on charges of conspiracy to commit murder. That trial is scheduled to begin June 5. Read the story in the
Tennessean.
Election 2006
Bebb wins DA race: Judge's race pits Reedy, Donaghy
Sandra Donaghy will oppose Criminal Court Judge Amy Armstrong Reedy in the fall general election, after Reedy's win in the Democratic Primary this week. Steve Bebb lost to Jimmy Logan in Bradley County in the Democratic Primary for 10th Judicial District Attorney General. However, Bebb carried McMinn and Monroe counties to advance to the General Election against Steve Crump who was unopposed in the Republican Primary. Read more in the
Cleveland Daily Banner.
Unofficial results give Sells narrow win
One of the most hotly contested races in the Putnam County Democratic Primary on Tuesday was also one of the closest. Criminal Court Judge Lillie Ann Sells appeared to have defeated Edwin Sadler by just a few hundred votes in the primary election, according to unofficial vote totals reported this morning by the counties within the 13th Judicial District. Read the story in the
Herald-Citizen.
Hearing set on interim state senator question
A court hearing is set May 17 to decide whether the Shelby County Commission can pick an interim state senator to replace Ophelia Ford, her lawyer told a federal magistrate Wednesday. Ford won a midterm election to the Senate by 13 votes last year, but senators have overturned those results, citing evidence of two ballots cast in the names of dead people and voting by felons and nonresidents of District 29 in Memphis. Read more in the
Tennessean.
Dunn wins district attorney general's race
Assistant District Attorney General James 'Jimmy' Dunn, of Cocke County, won the Republican primary on Tuesday by defeating Joseph 'Joe' Baker, a Sevierville attorney, by a margin of 1,635 votes to become the next Fourth Judicial District Attorney General.
Cocke County Online has the story.
Harsh campaigns fail to sway local voters
FRANKLIN -- Sheriff candidate Derrell Cagle tried to sway voters by attacking incumbent Sheriff Ricky Headley's musical ventures and morals. John Schwalb, who took on R.E. Lee Davies for Circuit Court judge, claimed his opponent engaged in business relationships with potential litigants and didn't disclose a conflict of interest. Judicial candidate Denise Andre, meanwhile, was lauded by even her opponent's supporters for running a "clean" campaign. So when does it help to go negative? When does it hurt? A political scientist weighs in with the
Tennessean.
Northeast Tennessee primary results
Voters in every Northeast Tennessee county except Johnson County went to the polls to elect party nominees for the August General Election on Tuesday. For a listing of the results for contested elections in the region, check
TriCities.com.
Passages
Lawyer's body found in Fort Loudoun Lake
The body of Joe M. Felknor, 49, was found Wednesday morning floating in Fort Loudoun Lake in Knoxville. It is being investigated as a suicide. "I have known Joe Mike his entire life," Jefferson County General Sessions Court Judge Ben Strand told the Knoxville News Sentinel. "He was a brilliant, brilliant young man. He just got involved in substance abuse."
Read the story.
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service

 
 
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