Committee delays open government proposals

A special committee studying the state's open government laws voted unanimously today to delay making any recommendations to the legislature until 2008. Read more in the Knoxville News Sentinel:

http://www.knoxnews.com/kns/state/article/0,1406,KNS_348_5172950,00.html

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

DONNA KAY BRISTER DAVIS v. JOHN W. DAVIS
With Dissenting Opinion


Court: TCA

Attorneys:

Edward M. Bearman, Memphis, Tennessee, for Plaintiff/Appellant Donna Kay Brister Davis.

William Neal Small, Memphis, Tennessee, for Defendant/Appellee John W. Davis.

Judge: KIRBY

This is a divorce case. After ten years of marriage, the parties separated. Subsequently, their marital home was destroyed in a fire. The husband then executed a quit claim deed on the home to the wife. Consequently, the insurance proceeds on the home were paid to the wife, with none distributed to the husband. Both parties then filed for divorce. During the trial, the husband testified that the wife persuaded him to quit claim his interest in the home to her so that she could deal with the insurance company and sell the land on which the home stood. The husband sought a share of the insurance proceeds and the proceeds from the sale of the land. The wife alleged that the husband quit claimed his interest in the home to her as a gift. At the conclusion of the divorce proceedings, the trial court held, inter alia, that the home was a marital asset, despite the existence of the quit claim deed, and granted husband a share of the proceeds from the insurance and the sale of the land. The wife appeals. We affirm, finding that the evidence does not preponderate against the trial court's conclusion that, by executing the quit claim deed the husband did not intend to make a gift of his interest in the property to the wife.

http://www.tba2.org/tba_files/TCA/2006/davisd_112706.pdf

HIGHERS Dissenting
http://www.tba2.org/tba_files/TCA/2006/davisd_diss112706.pdf


REBECCA LEE BRADSHAW OWINGS v. WILLIAM ALBERT OWINGS

Court: TCA

Attorneys:

Todd A. Snow, Memphis, Tennessee, for the appellant, Rebecca Lee Bradshaw Owings.

James W. Hodges, Jr., Memphis, Tennessee, for the appellee, William Albert Owings.

Judge: KIRBY

This is a post-divorce petition to modify child support. When the parties divorced in 1995, the mother was granted custody of the parties' two children, and the father was ordered to pay child support. The father was self-employed. In 2003, the mother filed the instant petition to increase the father's child support obligation, alleging that the father's income had increased since the divorce. The mother sought to prove the amount of the father's income by submitting into evidence his bank statements for the previous three-year period, and calculating from that his average monthly deposits. In response, the father filed an affidavit stating that he received less monthly income from his various business interests than the mother's proof indicated. At trial, he relied on his own testimony, the testimony of his accountant, and the gross income reported on his federal income tax returns. After a trial, the trial court found the father's testimony credible and concluded that the father's income tax returns were the best evidence of his income. Based on the tax returns, the trial court held that the father's level of income did not result in a significant variance in his child support obligation and consequently denied the mother's petition. The mother now appeals. We vacate in part and modify in part, finding that the evidence preponderates against the trial court's holding that the father's income tax returns accurately reflected his income, as that term is defined in the Child Support Guidelines, and find a significant variance in his child support obligation based on the father's pretrial affidavit and his testimony as to his income.

http://www.tba2.org/tba_files/TCA/2006/owingsr_112706.pdf


IN RE: ESTATE OF HAROLD N. WALKER, DECEASED WADE WALKER v. RUBY WALKER

Court: TCA

Attorneys:

Johnny V. Dunaway, LaFollette, Tennessee for the Appellant, Wade Walker.

Wanda G. Sobieski and Diane M. Messer, Knoxville, Tennessee for the Appellee, Ruby Walker.

Judge: SWINEY

In 1988, Harold N. Walker and his wife, Ruby Walker, executed separate wills. Harold N. Walker died in December of 2002, and his will was admitted to probate. Letters Testamentary were issued naming Wade Walker Personal Representative of the Estate of Harold N. Walker (Plaintiff). Ruby Walker filed a petition seeking, among other things, exempt property, spousal support, and an elective share of the Estate of Harold N. Walker (the Estate). Randy A. Walker, Harold N. Walker's son and a beneficiary under the will of Harold N. Walker, answered Ruby Walker's petition claiming, in part, that Harold N. Walker and Ruby Walker had executed mutual wills that constituted a contract under which Ruby Walker had waived her right to seek exempt property, spousal support, and an elective share of the Estate. Plaintiff then sued Ruby Walker and Randy Walker seeking, among other things, a determination of whether Ruby Walker had waived all right, claim, and interest to the Estate. After a trial, the Trial Court entered an order finding and holding, inter alia, that no clear and convincing evidence was presented that Harold N. Walker and Ruby Walker had entered into a contract wherein Ruby Walker had given up her right to dissent from her husband's will. Plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/walkerw_112706.pdf


STATE OF TENNESSEE v. CARLOS BURRIS

Court: TCCA

Attorneys:

Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee, for the Appellant, Carlos Burris.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Jerry Woodall, District Attorney General; and Rolf Hazlehurst, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Carlos Burris, was convicted by a Madison County jury of misdemeanor possession of cocaine. On appeal, Burris argues that the evidence is insufficient to support the conviction. After review, we affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2006/burrisc_112706.pdf


MICHAEL EVANS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael Evans, pro se, Petros, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Michael Evans, appeals the Shelby County Criminal Court's dismissal of his petition for post-conviction relief. Evans' petition was summarily dismissed by the post-conviction court upon grounds that it was time-barred by the statute of limitations. On appeal, Evans contends that application of the statute of limitations in this case serves to deny him his right to due process. Following review of the record before us, we affirm the dismissal of the petition as it was filed outside the one-year statute of limitations and because Evans has failed to establish any ground which would support a tolling of the statute.

http://www.tba2.org/tba_files/TCCA/2006/evansm_112706.pdf


STATE OF TENNESSEE v. ROBERT OKEY JOHNSON

Court: TCCA

Attorneys:

Richard A. Spivey, Kingsport, Tennessee, for the appellant, Robert Okey Johnson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

Pursuant to plea agreements with the state, the defendant, Robert Okey Johnson, pled guilty to one count of aggravated assault and two counts of failure to appear. He received probation for his convictions for failure to appear. For his aggravated assault conviction, he agreed to a three-year sentence with the manner of service to be determined by the criminal court. After a sentencing hearing, the court ordered the defendant to serve his sentence in confinement. On appeal, the defendant challenges the court's sentence of confinement. Following our review of the parties' briefs and applicable law, we affirm the court's judgment.

http://www.tba2.org/tba_files/TCCA/2006/johnsonr_112706.pdf


STATE OF TENNESSEE v. BOBBY MATHIS

Court: TCCA

Attorneys:

Edward H. Moody, Assistant Public Defender, for the appellant, Bobby Mathis.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Connie Trobaugh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Bobby Mathis, was convicted by a Hancock County Criminal Court jury of delivery of a Schedule II controlled substance, a Class C felony, and was sentenced by the trial court as a Range II multiple offender to ten years in the Department of Correction. Following the denial of his untimely filed motion for a new trial, the defendant filed an untimely notice of appeal to this court in which he argues that the evidence was insufficient to sustain his conviction; the trial court erred by admitting an inaccurate transcript of the tape recording of the undercover drug transaction; his Sixth Amendment right to confront witnesses was violated by the admission of the tape recording, which contained the voice of his wife, who was deceased by the time of his trial; his due process rights to a fair trial were violated by his appearance before the jury in prison attire; the trial court erred by granting the Stateís motion not to disclose the last name of the confidential informant; and he received an excessive sentence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/mathisb_112706.pdf


STATE OF TENNESSEE v. JERRY L. PERKINS

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; Shari Young and John Williams, Assistant District Attorneys General, for the Appellant, State of Tennessee.

Richard Hughes, District Public Defender; Amy Reedy, Assistant Public Defender, Cleveland, Tennessee, for the Appellee, Jerry L. Perkins.

Judge: WEDEMEYER

A Bradley County jury convicted the Defendant of one count of reckless homicide and one count of abuse of a corpse. The trial judge imposed a three year sentence and a one year sentence, respectively, and it ordered the sentences run consecutively. The trial court determined that the Defendant should receive probation on time served for the three year sentence and probation effective immediately for the one year sentence, in part because the Defendant had already spent sixteen months in jail before trial. The State appeals contending the trial court erred in sentencing the Defendant because the trial court mistakenly believed it was required to place the defendant on probation. We agree and reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/perkinsj_112706.pdf


LOUIS TYRONE ROBINSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Louis Tyrone Robinson, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Garry G. Brown, District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Louis Tyrone Robinson, proceeding pro se, presents a Rule 3 appeal from the Gibson County Circuit Court's denial of his "Motion to Reopen Post-Conviction Petition." Robinson seeks post-conviction relief in five separate cases arising from crimes which occurred during a period between August 1989 and October 1992. The post-conviction court denied Robinson's motion on the following grounds: (1) that the motion failed to present a new claim of constitutional error under the limited circumstances set out in Tennessee Code Annotated Section 40-30-117; (2) that no post-conviction petition had ever been filed in four of the five cases; (3) that the statute of limitations had expired for post-conviction relief; and (4) that Robinson's claims had been previously addressed. Because the Appellant failed to comply with the statutory requirements for appealing the denial of a motion to reopen, this court is without jurisdiction to review the issue. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2006/robinsonl_112706.pdf


JOSEPH G. WILLIAMS, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph G. Williams, Jr., Northwest Correctional Complex, Tiptonville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and H. Greeley Wells, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Joseph G. Williams, Jr., appeals from the post-conviction courtís order dismissing his combined petition for post-conviction relief and petition for a writ of habeas corpus. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/williamsj_112706.pdf


TODAY'S NEWS

Legal News
BPR Actions
Election 2006
TBA Member Services

Legal News
Hamilton County judges defend absences
Hamilton County's five general sessions judges have missed 160 court sessions so far this year, according to court records. Critics argue that the missed dates create backlogs and disrupt cases. The judges counter that the days off include state-mandated attendance at seminars and conferences and personal vacation which mirrors other county workers.
The Chattanooga Times Free Press has the story
Hawkins prosecutor resigns
Veteran Hawkins County prosecutor Doug Godbee has resigned for personal and medical reasons amid allegations of improper conduct involving a client. District Attorney General Berkeley Bell has asked the Tennessee Bureau of Investigation to look into the complaint and has requested the Tennessee District Attorneys General Conference to appoint an outside counsel to review the TBI's findings.
Read more in the News Sentinel
Missing lawyer spotted in Nebraska
Clarksville attorney Van L. Riggins Jr., who has been missing since Oct. 14, was spotted recently at a Lincoln motel. Local authorities are working with Clarksville police to locate Riggins, who is under investigation for allegedly taking $200,000 from clients.
The Clarksville Leaf Chronicle reports on the story
Jail camera jeopardizes security
An East Tennessee county that has beamed live 24-hour video from its jail on the Internet for nearly six years may end the practice following complaints of harassment and security concerns.
The News Sentinel ran this AP story
Judge denies release of Colley's TBI file
U.S. Magistrate Clifford Shirley has denied the release of documents related to an investigation into Deputy Governor Dave Cooley's dismissed speeding ticket. A Nashville-area lawyer had sought access to the file in hopes of showing a pattern of political favoritism and influence that would help his client. WMC-TV Memphis reported the development.

Judge Childers reapppointed to ABA commission
Memphis Circuit Court Judge Robert L. Childers has been appointed to another term on the American Bar Association's Commission on Lawyer Assistance Programs, which educates the legal community on assistance available to lawyers suffering from addiction, mental health issues and other personal problems. As a member of the commission, he also chairs the Judicial Assistance Committee.
Read a press release about his work with lawyer assistance programs
Vanderbilt law journal earns distinction
The Vanderbilt Journal of Transnational Law ranked eighth among comparative and international law journals in the Washington & Lee Law Library's 2006 law journal ranking. The ranking is based on how often the publication is cited in other academic journals and court decisions and includes law journals published in the U.S. and the United Kingdom.

BPR Actions
Knoxville lawyer suspended
The state Supreme Court suspended the law license of Robert E. Nichols on Nov. 21 for failing to respond in a timely manner to a complaint of misconduct filed with the Board of Professional Responsibility. The suspension is temporary but remains in effect until lifted by the court.
Read the BPR release
Election 2006
Sides differ on how to handle charter ruling
When the Tennessee Supreme Court rules on the constitutionality of the Knox County charter -- a ruling that could come any day -- the county commission plans a closed-door meeting with the county law director to discuss the ruling's ramifications. County Mayor Mike Ragsdale, however, is pushing for discussions to be held in an open meeting, raising issues about attorney client privilege.
Read more in the Knoxville News Sentinel
TBA Member Services
Alimony Bench Book now available
The 4th Edition of the Alimony Bench Book is now available from the TBA Family Law Section. This newest edition is available for purchase at the TBA's online bookstore or by calling 800-899-6993 or in Nashville at 383-7421
Order online now

 
 
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