Supreme Court seeks comment on Rule 31 revisions

The Tennessee Supreme Court today published for comment revisions to Rule 31 on court-annexed alternative dispute resolution. The proposal made by the court’s ADR Commission would require Rule 31 mediators who are licensed by another agency to be in good standing with that agency; establish a new designation for Rule 31 family mediators who are "Specially Trained in Domestic Violence"; provide for Rule 31 mediator designation for sitting judges upon retirement; permit non-lawyer mediators to use continuing education credits for licensing by another agency to satisfy mediation training requirements; and, establish new procedures for revocation and suspension of Rule 31 designations. Comments are due not later than Aug. 21. See the order and the proposed rule:

http://www.tba2.org/tbatoday/news/2006/rule31_062206.pdf

TODAY'S OPINIONS
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Knoxville, Tennessee
Editor-in-Chief, TBALink

SEDLEY ALLEY v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Barry C. Scheck, Vanessa Potkin, and Colin Starger, New York, New York, and Paul R. Bottei and Kelley J. Henry, Nashville, Tennessee, for the appellant, Sedley Alley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Associate Deputy Attorney General, for the appellee, State of Tennessee.

Judge: DAVID G. HAYES

In 1985, the Petitioner, Sedley Alley, was convicted of aggravated rape, kidnapping, and first degree murder. For the capital crime of first degree murder, the jury imposed the sentence of death. Petitioner Alley’s execution was scheduled for May 17, 2006; however, on May 16, 2006, the Governor, upon recommendation of the Tennessee Board of Probation and Parole, granted a fifteen-day reprieve to allow the Petitioner the opportunity to petition the trial court for DNA testing of “those additional items that were not included in his 2004 petition.” On May 19, 2006, Petitioner Alley filed a petition to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition on May 31, 2006. Our supreme court, on June 2, 2006, rescheduled Petitioner Alley’s execution for June 28, 2006. See State v. Sedley Alley, No. M1991-00019-SC-DPE-DD (Tenn., at Nashville, June 2, 2006) (order). The Petitioner sought and was granted expedited review by this Court. Upon review of the record and the responses by both parties, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TSC/2006/alleys062206.pdf


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

Corrected. See Order issued 6-22-6: "The opinion shall be revised to eliminate references to the petitioner's effort to withdraw an unrelated post-conviction action."


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-reidpCORR062206.pdf

Order correcting opinion.
http://www.tba2.org/tba_files/TSC/2006/holton-reid_order062206.pdf


SUSAN V. CESPEDES v. SODEXHO MARRIOTT SERVICES, INC., ET AL.

Court: TWCA

Attorneys:

Phillip R. Newman, Franklin, Tennessee, for appellant, Susan V. Cespedes.

Richard C. Mangelsdorf Jr., Nashville, Tennessee, for appellees, Sodexho Marriott Services, Inc., Sodexho, Inc., and Insurance Co. of the State of Pennsylvania.

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 employee appeals the trial court’s finding that the preponderance of the evidence failed to prove that the work accident caused the injury to her lower back. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2006/cespedess062206.pdf


CYNTHIA A. FISHER v. PLUS MARK, INC.

Court: TWCA

Attorneys:

Jeffrey C. Taylor, Morristown Tennessee, attorney for appellant, Plus Mark, Inc.

J. Russell Pryor, Greeneville, Tennessee, attorney for appellee, Cynthia Fisher.

Judge: JON KERRY BLACKWOOD, 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 trial court awarded the Employee a 50 percent vocational disability for bilateral carpal tunnel syndrome. The Employer appealjudgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2006/fisherc062206.pdf


LEE’S HOME CENTER, INC. v. BOBBY A. MORRIS ET AL.

Court: TCA

Attorneys:

Louis W. Oliver, III, Hendersonville, Tennessee, for the appellant, Bobby A. Morris.

W. Bryan Brooks, Parks T. Chastain, and Scott T. Foster, Nashville, Tennessee, for the appellee, Lee’s Home Centers, Inc.

Judge: WILLIAM C. KOCH, JR.

This appeal involves a dispute between a contractor and a material supplier regarding engineered wood I-joists. The contractor refused to pay for the I-joists because he believed they contributed to a structural failure in a house he had built. The supplier filed suit against the contractor in the Chancery Court for Robertson County. The contractor filed a counterclaim for breach of implied warranty of fitness for a particular purpose. The supplier moved for summary judgment on its claim and on the contractor’s counterclaim. The trial court granted the supplier’s motion and entered a $22,917.91 judgment for the supplier. The contractor takes issue on this appeal only with the dismissal of its counterclaim. We have determined that the trial court erred by dismissing the contractor’s counterclaim because the record contains genuine, material disputes with regard to the facts relevant to the counterclaim.

http://www.tba2.org/tba_files/TCA/2006/leehome062206.pdf


CONNIE J. NORRIS v. EAST TENNESSEE

Corrected. The correction is a misspelled word on page 7.


Court: TCA

Attorneys:

J. Mikel Dixon, Knoxville, Tennessee, for the appellant, Connie J. Norris.

Bruce A. Anderson, Knoxville, Tennessee, for the appellee, East Tennessee Children’s Hospital.

Robert H. Watson, Jr. and Nathan D. Rowell, Knoxville, Tennessee, for the appellees, Robert R. Madigan, M.D., and Cameron J. Sears, M.D.

James H. London and Margaret G. Klein, Knoxville, Tennessee, for the appellee, Howard C. Filston, M.D.

Dixie W. Cooper and Amy D. Hampton, Nashville, Tennessee, for the appellee, Donald H. Nguyen, M.D.

Judge: CHARLES D. SUSANO, JR.

This is a medical malpractice case arising out of the postoperative treatment and care of Emit Greg Norris (“the child”), the minor child of Connie J. Norris (“the plaintiff”). At the conclusion of the plaintiff’s case-in-chief, the remaining defendants moved for a directed verdict. The trial court determined that the plaintiff had failed to present a prima facie case of acts or omissions of medical negligence that proximately caused the condition that resulted in the child’s death. Accordingly, the trial court granted the defendants’ motion and dismissed the plaintiff’s case. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/norriscCORR062206.pdf


FIDES NZIRUBUSA v. UNITED IMPORTS, INC., ET AL.

Court: TCA

Attorneys:

Joel H. Moseley, Sr., Joel H. Moseley, Jr., Nashville, Tennessee, for the appellants, United Imports, Inc. and Farhad Soheilinia.

Charles K. Grant, Mark A. Baugh, Yanika C. Smith, Nashville, Tennessee, for the appellee, Fides Nzirubusa.

Judge: PATRICIA J. COTTRELL

The buyer of a used car sued the dealer who sold it to her, alleging that after she paid off the car loan in full, the seller refused to release his lien and give her clear title to the vehicle unless she paid him additional money and persuaded her friends to buy cars from him. For his part, the dealer claimed that the buyer still owed on the car loan, and he denied the other allegations. He also argued that the buyer’s claim under the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et seq, was time-barred because it was filed more than five years after she bought the car. After a full hearing on the merits, the trial court ruled for the buyer and held that the seller’s refusal to release his lien amounted to a continuing violation of the Act which prevented the running of the statute of limitations. The court awarded the buyer treble damages and attorney fees, both of which are authorized by the Tennessee Consumer Protection Act. We affirm.

http://www.tba2.org/tba_files/TCA/2006/unitedimports062206.pdf


STATE OF TENNESSEE v. HENRY HAWKINS

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, Phyllis L. Aluko (on appeal) and Timothy J. Albers (at trial), Assistant Public Defenders, for the appellant, Henry Hawkins.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Horne Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

A Shelby Count Criminal Court jury convicted the defendant, Henry Hawkins, of four counts of aggravated robbery, a Class B felony, and the trial court sentenced him as a Range II, multiple offender to seventeen years for each count of aggravated robbery with the first three counts to be served concurrently to one another and consecutively to the fourth count, for an effective sentence of thirty-four years in the Department of Correction. The defendant appeals, claiming (1) that the evidence was insufficient to support the verdict, (2) that the defendant was improperly impeached with a prior conviction, (3) that judicial comments abridged the defendant’s due process and jury trial rights, (4) that the trial court gave improper jury instructions, and (5) that the trial court erred in sentencing the defendant. We conclude that although the trial court erred in failing to charge attempted aggravated robbery, attempted robbery, aggravated assault, and assault as lesser included offenses of aggravated robbery, the error was harmless beyond a reasonable doubt. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/hawkinsh062206.pdf


Municipal Resident’s Eligibility for Enrollment in County School

TN Attorney General Opinions

Date: 2006-06-21

Opinion Number: 06-102

http://www.tba2.org/tba_files/AG/2006/ag_06-102.pdf

TODAY'S NEWS

Legal News
BPR Actions
TBA Member Services

Legal News
Wyatt firm pledges $50,000 a year for minority scholarships
The Wyatt, Tarrant & Combs law firm is committing $50,000 per year toward scholarships aimed at increasing diversity at a quartet of regional law schools, the Commercial Appeal reports. The Lexington, Ky.-based firm will be funding four separate scholarships-- one each at the Universities of Memphis, Louisville, Tennessee and Kentucky-- with a goal to attract highly qualified minority students to the schools and ultimately, the legal profession. The scholarship awards cover 100 percent of tuition for three years, a stipend, and a 1L Summer clerkship in Wyatt, Tarrant & Combs' Louisville, Lexington, Memphis or Nashville offices.

Judge denies sister's stay effort; Reid execution on
A Montgomery County judge has turned down the latest attempt by Paul Dennis Reid's sister to delay her brother's execution, scheduled for next week. Circuit Judge John Gasaway issued a written order Wednesday denying a stay of Reid's June 28 execution date. Read the full story in the
Tennessean.
Capital case information available as it happens
With two executions -- Sedley Alley and Paul Dennis Reid -- both set for next Wednesday, and several others with upcoming execution dates, motions and orders are being submitted seemingly around the clock. To keep up with each person's case, the Administrative Office of the Courts has set up a web page where information will be "posted within minutes of being filed," AOC spokesperson Sue Allison says.
Check here for the latest filings
Court may weigh in on charter
Over the objection of Knox County's law director, Senior U.S. District Court Judge James H. Jarvis said Wednesday he would ask the state Supreme Court to determine whether the Knox County charter is valid. "Let's get it closed," Jarvis said. "Let's get it decided, get this whole mess straightened out." Read more in the
Knoxville News Sentinel.
Eason exhibits ‘quiet grace’
The Tennessee Bar Association's president-elect, Chattanooga lawyer Marcia Eason, is profiled by the Chattanooga Times Free Press.
Read the story.
Law firm starts women's initiative
Baker Donelson Bearman Caldwell & Berkowitz has launched a firm-wide program to enhance the role of women in the practice. The Women's Initiative focuses on enhancing the recruitment and retention of women attorneys, increasing their representation in leadership positions, improving their career development and advancing the economic value of the firm by capitalizing on the talents of women attorneys. Read more about it in the
Memphis Business Journal.
BPR Actions
Maryville lawyer suspended
Maryville lawyer Charles David Deas' license to practice law was temporarily suspended, pursuant to Rules of the Supreme Court of Tennessee, upon a finding that he had failed to respond to the Board of Professional Responsibility concerning complaints of misconduct.
Read the BPR release.
Columbia lawyer suspended for one year
The Supreme Court entered an order suspending the law license of Michael E. Gilmer for one year to run concurrent with his five-year suspension imposed April 21. Gilmer abandoned his law practice without notice to his clients, and failed to finish clients’ cases. He failed to adequately communicate with clients, failed to return a client file, and failed to respond to complaints filed with the Board of Professional Responsibility.
Read the BPR release.
Memphis lawyer suspended
The Tennessee Supreme Court temporarily suspended the law license of William Anthony Helm, a Memphis attorney, pursuant to Section 4.3 of Tennessee Supreme Court Rule 9 because of Helm's failure to respond to several complaints of ethical misconduct and because of the Board's concern that Helm posed a substantial threat of irreparable harm to the public due to his abandonment of his law practice and his clients in the late winter and spring of this year.
Read the BPR release.
TBA Member Services
Student loans at low rates through SunTrust
The TBA and SunTrust Bank now have a Partnership Program to help alleviate the burden of student loans. Members and their families can consolidate their federal student loans at a special low fixed rate - right now as low as 5.375%. In addition, those with consolidation loans greater than $10,000 are eligible to reduce their interest rate by another 1.5% for on-time payments and automatic debit payments.
Learn more

 
 
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