LSC funding to get one more shot: call your rep now

Lawyers in Tennessee and other states are being urged to contact their Congressional representatives and ask them to support restored funding to the Legal Services Corporation. The ABA reports that Tennessee will see more than $200,000 cut from its current budget if the bill passed out of the House Appropriations Committee last week is approved by the full House. That bill cuts fiscal year 2007 funding by $13 million nationwide to $313 million. As early as tomorrow, Rep. David Obey (D-Wis.) plans to offer an amendment on the House floor to add $25 million in funding, restoring the LSC budget to where it was in 2003. Contact information is available at the ABA's Grassroots Advocacy Center:

http://www.capitolconnect.com/abacc/default.aspx

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

SUPREME COURT DISCRETIONARY APPEALS

Grants & Denials List


Court: TSC

http://www.tba2.org/tba_files/TSC/2006/certlist062606.pdf


PAUL DENNIS REID, JR. v. STATE OF TENNESSEE

ADOLPHO A. BIRCH, JR., J., concurring in part and dissenting in part.


Court: TSC

Attorneys:

Michael J. Passino, Nashville, Tennessee; and Kelly A. Gleason and Nicholas D. Hare, Assistant Post-Conviction Defenders, Nashville, Tennessee, for Appellant, Paul Dennis Reid, Jr.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Associate Deputy Attorney General; Victor S. Johnson, III, District Attorney General; Tom Thurman, Deputy District Attorney General; and Roger Moore, Assistant District Attorney General, for Appellee, State of Tennessee.

Joseph D. Tydings, Washington D.C., and F. Clay Bailey, Nashville, TN, for Amicus Curiae, Counsel for the National Alliance on Mental Illness.

Judge: CORNELIA A. CLARK

We granted interlocutory review in this post-conviction capital case to clarify the procedure for determining competency to proceed in a post-conviction action. For the reasons explained herein, we hold that the civil standard for mental incompetence adopted in State v. Nix, 40 S.W.3d 459 (Tenn. 2001), applies to a competency determination during post-conviction proceedings. To trigger a hearing on competency, a petitioner must make a prima facie showing of incompetence by submission of affidavits, depositions, medical reports, or other credible evidence. A petitioner bears the burden of proving that he or she is incompetent by clear and convincing evidence. A finding of incompetence requires neither a stay of the post-conviction proceedings nor abeyance of individual issues. A trial court should appoint, if necessary, a “next friend” or guardian ad litem to pursue the action on behalf of the petitioner. Accordingly, the decision of the trial court is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/reidpd062606.pdf

ADOLPHO A. BIRCH, JR., J., concurring in part and dissenting in part.
http://www.tba2.org/tba_files/TSC/2006/reidpdDISS.pdf


ENNIX HAIRSTON, ET AL. v. LILLIAN B. NEWSOM

Court: TCA

Attorneys:

Ennix Hairston, Jackson, TN, pro se

John S. Little, Jackson, TN, for Appellee, Lillian B. Newsom

Kyle C. Atkins, Humboldt, TN, for Appellee, Tennessee Farmers Mutual Insurance Company as Uninsured Motorist Carrier

Judge: ALAN E. HIGHERS

This appeal stems from a negligence action resulting from an automobile accident. A husband and wife filed suit against the defendant alleging personal injury and property damage resulting from the defendant’s alleged negligence that caused the automobile accident involving the wife and the defendant. In addition to the wife’s claims, the husband brought claims against the defendant for loss of consortium and loss of services. Additionally, the wife’s uninsured motorist insurance carrier was served but unnamed. Both Newsom and the uninsured motorist insurance carrier filed Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The circuit court granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The order adjudicated the wife’s personal injury claims only. On appeal, the plaintiffs assert that the circuit court erred when it granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. However, because we find that the circuit court failed to execute a final order disposing of all of the plaintiffs’ causes of action, we dismiss the appeal for lack of subject matter jurisdiction pursuant to rule 3(a) of the Tennessee Rules of Appellate Procedure.

http://www.tba2.org/tba_files/TCA/2006/hairstone062606.pdf


IN RE LAMONT B., II

Court: TCA

Attorneys:

Yvette Y. Cain, Nashville, Tennessee, for the appellant, Veronica W.

Jeffrey Spark, Nashville, Tennessee, for the appellee, Laurice B.

Robert M. Robinson, Nashville, Tennessee, Guardian ad litem, for Lamont B., II.

Judge: WILLIAM C. KOCH, JR.

This case concerns an initial custody determination of a four-year-old child. The child’s parents ended their relationship before he was born. The child’s mother was his sole caregiver during the first four months of his life, then the child’s parents shared parenting responsibilities equally for the next eighteen months. The father eventually filed a petition in the Davidson County Juvenile Court seeking to be designated as the child’s primary residential parent. Following a bench trial, the juvenile court designated the father to be the child’s primary residential parent after finding him to be comparatively more fit. The mother has appealed. We affirm the juvenile court.

http://www.tba2.org/tba_files/TCA/2006/lamontb062606.pdf


DONALD EUGENE MITCHELL v. ANTHONY KECK, KAREY KECK, AND CARL CARRUBA, JR.

Court: TCA

Attorneys:

David T. Black, Maryville, Tennessee, for appellant.

Duncan V. Crawford, Maryville, Tennessee, for appellees.

Judge: HERSCHEL PICKENS FRANKS

Plaintiff asked the Court to declare right of way over defendants’ properties. The Trial Court refused. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2006/mitchelld062606.pdf


TRACYE JENAE SIMPSON (BROGDEN), et al. v.

CHARLES D. SUSANO, JR., J., concurring in part and dissenting in part.


Court: TCA

Attorneys:

John P. Konvalinka, Jim K. Petty, and Jillyn M. Pullara, Chattanooga, Tennessee, for the Appellant Ralph Edward Simpson.

Tracye Jenae Simpson (Brogden) and Sydney Jenae Simpson, pro se Appellees.

Judge: D. MICHAEL SWINEY

This appeal involves child support arrearages incurred by Ralph Edward Simpson (“Father”) over the course of many years. Following a trial, the Trial Court concluded that certain payments made directly to the child were gratuitous and should not count as a credit against Father’s child support obligation. The Trial Court also concluded that various payments made by Father to third parties for expenses incurred on the child’s behalf and which were made as expressly directed by Tracye Jenae Simpson (“Mother”) also should not count as credits against Father’s child support obligation. We affirm the Trial Court’s conclusion with respect to the money sent directly to the child. However, we conclude that the Trial Court erred in its conclusion that Father should not be given a credit for payments made to third parties for expenses related to the child and which were made by Father in accordance with the express directives of Mother. The judgment of the Trial Court is, therefore, affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2006/simpsont062606.pdf

CHARLES D. SUSANO, JR., J., concurring in part and dissenting in part.
http://www.tba2.org/tba_files/TCA/2006/simpsontCON062606.pdf


SUNTRUST BANK v. SHEEP, INC., and MARILYN POWELL

Court: TCA

Judge: HERSCHEL PICKENS FRANKS

The Trial Court dismissed the case on the grounds the process issued more than one year after the issuance of the previous process was invalid. On appeal, we vacate.

http://www.tba2.org/tba_files/TCA/2006/suntrustvsheep062606.pdf


STATE OF TENNESSEE v. CALVIN WAYNE CARUTHERS,

Court: TCCA

Attorneys:

Joel H. Moseley, Sr., Nashville, Tennessee, for the Appellant, Calvin Wayne Caruthers.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: JAMES CURWOOD WITT, JR.

The appellant, Wheeler Bonding Company, Inc. (hereinafter “Wheeler”), appeals the order of the Davidson County Criminal Court requiring Wheeler to pay a portion of Defendant Calvin Wayne Caruthers’ bond premium to the criminal court clerk in satisfaction of the defendant’s restitution obligation from a 1992 theft conviction. The state concedes Wheeler’s claim, and we reverse and vacate the criminal court’s order.

http://www.tba2.org/tba_files/TCCA/2006/caruthersc062606.pdf


Rental License Ordinance

TN Attorney General Opinions

Date: 2006-06-26

Opinion Number: 06-103

http://www.tba2.org/tba_files/AG/2006/ag_06-103.pdf

Confidentiality of records from reserve audit of governmental pool

TN Attorney General Opinions

Date: 2006-06-26

Opinion Number: 06-104

http://www.tba2.org/tba_files/AG/2006/ag_06-104.pdf

TODAY'S NEWS

Legal News
Passages
Election 2006

Legal News
Sobieski named interim UT law dean
The University of Tennessee College of Law said today it has named professor and associate dean John Sobieski Jr.as interim dean. Sobieski will take over for Dean Thomas C. Galligan Jr. who is leaving Aug. 1 to become president of Colby-Sawyer College in New Hampshire. Galligan had been UT's law dean since 1998. Read more about him in the
Knoxville News Sentinel.
Tennessean agrees: Judges shouldn't have to answer questions
"As a state senator and a lawyer, David Fowler must know that the questionnaire he is sending to Tennessee's appellate judges is totally unfair," the Tennessean said in a weekend editorial. "If those judges respond to the questions posed by a new group headed by Fowler, Family Action Council, they'll be violating the code of conduct that the Tennessee Bar Association developed for judges. If they do not respond to the questionnaire -- or even if they respond by saying the state's judicial canons don't permit them to answer such questions -- they'll be giving Fowler ammunition to say that they are trying to hide their views from the people of this state." Last week, the Chattanooga Times Free Press came out against Fowler's questionnaire, and now the Tennessean follows suit.
Read the editorial.
Information on capital cases
Paul Dennis Reid and Sedley Alley are still scheduled to be executed by lethal injection within hours of each other on Wednesday, although motions from all directions are being filed. Today, Alley's defense team filed for a stay of execution again asking that DNA testing be done on evidence taken from the crime scene in 1985. Read the motions and orders and keep track of other developments in these and other Tennessee capital cases on a web site set up by the Administrative Office of the Courts.
Check here for the latest filings
Child rape defendant tries to fire lawyer
Bizarre behavior by Dennis G. Coldiron Friday morning delayed his child rape trial for over two hours and led to his $25,000 bond being revoked. He'll now have to stay in jail at least until the jury reaches a verdict. Coldiron, 50, called defense attorney David Boyd Friday morning to say he was fired. Boyd told him he is court appointed and Coldiron could not fire him. Read more in
The Maryville Daily Times.
Knox County judge at center of charter controversy
Three weeks after a chancery court ruling invalidating the Knox County charter, the fallout continues in many areas. The latest person affected by the ruling is General Sessions Judge Jimmy Kyle Davis, who was appointed to the bench by the county commission using the rules of the charter. Read the details from
WATE-6.
Man says he's on heroin to avoid jury duty
A man made a mockery of the justice system when he tried to get removed from a jury pool in a death penalty case by claiming he is a heroin addict and a killer, a judge said. Read what great lengths a person will go to to avoid jury duty at
Tri-Cities.com
Evidence questioned in landmark Ware case
The attorney for a man convicted in 1996 of raping and killing a 4-year-old girl is attacking the reliability of scientific evidence used in the United States for the first time during the trial of Paul William Ware in Chattanooga. During the trial, prosecutors said mitochondrial DNA evidence linked Ware, 36, directly to the crime. The handling and testing of mitochondrial DNA were evolving at the time, and Ware’s trial was the first time such evidence was presented in a criminal case, Chattanooga lawyer Gerald Tidwell said. Read more in the
Chattanooga Times Free Press.
Passages
Knoxville lawyer David G. Brown dies
David G. Brown, longtime head of the Brown, Brown and West real estate firm, died Friday following a short illness. He was 80. He graduated from Washington & Lee University with his law degree and was licensed to practice law in 1948.
Read the obituary.
Election 2006
Molester case is chief issue in judge race
A decision allowing a father convicted of child molestation in 1992 to have unsupervised visitation with his 7-year-old son has become an issue in an election for judge of Circuit Court, Division I in the state's 21st Judicial District, the Tennessean reports.
Read the story.

 
 
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