Former Supreme Court Justice O'Brien dies

Judge Charles O'Brien died today at age 86. He was a member of the 83rd and 84th Tennessee General Assemblies before being elected to the Court of Criminal Appeals in 1970. He served there until his appointment to the Tennessee Supreme Court in 1987 by Gov. Ned McWherter.

At press time, visitation is tentatively set for this Sunday from 3 p.m. to 5 p.m. at Bilbrey Funeral Home in Crossville. The funeral is tentatively set for Monday at 1 p.m. and will be held at the Tansi Community Church, near Crossville.

http://www.tba2.org/tbatoday/news/2007/obrien_011807.html

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

GEORGE R. FUSNER, JR., AS DESIGNATED REPRESENTATIVE OF THE MEXICAN CONSULATE V. COOP CONSTRUCTION CO., LLC, ET AL.

Court: TSC

Attorneys:

Christian M. Garstin, Nashville, Tennessee, for the appellants, Coop Construction Co., LLC and Hartford Casualty Insurance Company

George R. Fusner, Jr., Brentwood, Tennessee, as the designated representative for the appellee, the Mexican Consulate

Judge: CLARK

We granted review of this workers’ compensation case to clarify whether non-resident foreign nationals can qualify as “dependents” under Tennessee Code Annotated section 50-6-210 and receive benefits due upon an employee’s death. We accepted review before the case was heard or considered by a Special Workers’ Compensation Appeals Panel. We hold that non-resident foreign nationals can be “dependents” under our workers’ compensation laws. In this case, we affirm the trial court’s judgment that the decedent employee’s parents were “dependents,” but we reverse the trial court’s finding that they were “actual dependents” under the statute. We remand the case for further proceedings consistent with this opinion, including for a determination of the benefit due to the parents as “partial dependents” under Tennessee Code Annotated section 50-6-210(d).

http://www.tba2.org/tba_files/TSC/2007/fusnerg_011807.pdf


ALLSTAR CONSULTING GROUP, A/K/A ALLSTAR CONSULTING GROUP, LLC v. TRINITY CHURCH & CHRISTIAN CENTER AND TRUSTMARK NATIONAL BANK

Court: TCA

Attorneys:

Ted I. Jones, Memphis, Tennessee, for the appellant, Trinity Church & Christian Center

Lenal Anderson, Jr., Memphis, Tennessee, for the appellee, Allstar Consulting Group, a/k/a Allstar Consulting Group, LLC

Judge: KIRBY

This is a breach of contract case. The plaintiff finance broker and the defendant church entered into an agreement under which the plaintiff broker was to assist the church in obtaining a loan, and the church would pay the plaintiff a 3% broker’s fee for this service. The plaintiff broker negotiated a financing arrangement as requested by the church. Independent of the plaintiff, the church obtained financing from a different lender. The plaintiff then claimed a right to its broker’s fee under the parties’ agreement, claiming that it had an exclusive arrangement with the church. The church refused to pay the fee, denying that it had an exclusive arrangement with the plaintiff broker. The plaintiff filed the instant lawsuit against the church to recover its broker’s fee. The trial court held in favor of the plaintiff, concluding that the parties’ agreement was exclusive. The church now appeals. We affirm, finding that the issue turns on the credibility of the witnesses.

http://www.tba2.org/tba_files/TCA/2007/allstarconsulting_011807.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES V. M.R.N. IN THE MATTER OF: C.M.I.R. d/o/b 10/25/94 and J.B.I.N. d/o/b 3/18/99, children under the age of eighteen years

Court: TCA

Attorneys:

J. Robert Hamilton, Lebanon, TN, for Appellant

Michael E. Moore, Acting Attorney General & Reporter, Douglas Earl Dimond, Senior Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

In this appeal from the termination of a mother’s parental rights, the juvenile court initially ordered that state services be provided to the mother and her two sons after the state received a referral regarding one son’s excessive absences from school. After fifteen months of services, the court ordered the removal of the children from the home and placement of them in foster care. It later became apparent that the mother’s husband had been physically abusive to one of the sons, and that mother had severe mental and emotional problems. State services continued to be provided in order to assist the mother over the next several years, and the husband was ordered not to have any unsupervised contact with the boys when they visited the mother. Three trial home visits with the mother were unsuccessful, and the state filed for termination of the mother’s parental rights. After a termination hearing, the trial court ordered that the mother’s rights be terminated, finding clear and convincing evidence of persistence of conditions that led to removal and mother’s mental incompetence to care for the children, and it found that termination of the mother’s parental rights was in the best interests of the children. We affirm.

http://www.tba2.org/tba_files/TCA/2007/nicholsm_011807.pdf


ROSALIND PRUITT, INDIVIDUALLY AND AS MOTHER AND NEXT OF KIN OF DOMONIQUE PRUITT, A MINOR v. CITY OF MEMPHIS

Court: TCA

Attorneys:

David A. McLaughlin and Peter B. Gee, Jr., Memphis, Tennessee, for Appellants Rosalind Pruitt, Individually and as Mother and Next of Kin of Domonique Pruitt, a minor

J. Michael Fletcher, Memphis, Tennessee, for Appellee City of Memphis

Judge: KIRBY

This is a negligence case brought under the Tennessee Governmental Tort Liability Act. The plaintiff’s minor daughter slipped and fell at a public swimming facility and broke her arm. The plaintiff filed suit against the defendant swimming facility, alleging that her minor daughter slipped on a wet concrete floor in the dressing room area and that the swimming facility created and maintained a dangerous and defective condition that caused her daughter’s injury. At trial, the defendant swimming facility moved for an involuntary dismissal at the close of the plaintiff’s proof. The trial court granted the motion and dismissed the case. The plaintiff now appeals, arguing that the trial court applied an adult standard of care to her minor daughter, and that she established a prima facie case of negligence against the defendant. We affirm, finding that the plaintiff failed to make out a prima facie case of negligence.

http://www.tba2.org/tba_files/TCA/2007/pruittr_011807.pdf


STATE OF TENNESSEE v. JOHN WILLIAM MATKIN, III

Court: TCCA

Attorneys:

Edward Cantrell Miller, District Public Defender, for the appellant, John William Matkin, III

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Johnnie D. Sellars and Steven R. Hawkins, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: TIPTON

The defendant, John William Matkin, III, appeals from the Sevier County Circuit Court’s revocation of his probationary sentences for his convictions of fourth or greater offense driving under the influence, a Class E felony, violation of the implied consent law, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. The defendant received an effective split confinement sentence of two years, five months and twenty-nine days with 180 days to be served in jail. Shortly after sentencing, the state filed a revocation warrant alleging that the defendant failed to report for his jail service and failed to report a new arrest. Following a hearing, the trial court found that the defendant failed to report to the jail to serve the confinement portion of his sentences and revoked the earlier grant of probation. The defendant appeals, contending that the lower court erred in revoking probation. Upon review, we hold that the defendant’s sentences in Counts 1 and 3 are illegal, vacate them, and remand for further proceedings. We affirm the probation revocation in Count 2 but reverse the trial court’s order that it did not have jurisdiction to consider a motion to modify the sentence and remand the case for the trial court to rule on the merits of the motion.

http://www.tba2.org/tba_files/TCCA/2007/matkinj_011807.pdf


CHAD DAVIS TRISDALE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Douglas Fields, Crossville, Tennessee, for the appellant, Chad Davis Trisdale

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William E. Gibson, District Attorney General; and Gary McKenzie and Douglas Crawford, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: MCLIN

The petitioner, Chad Davis Trisdale, appeals from the post-conviction court’s denial of post-conviction relief. On appeal, he contends that he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. Following our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court denying post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/trisdalec_011807.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Wade recuses self from selection case, Anderson will fill in
Tennessee Supreme Court Justice Gary R. Wade has recused himself from participating in a case involving the process for filling a vacancy on the court, Phil Bredesen v. Tennessee Judicial Selection Commission. The court has designated Retired Justice E. Riley Anderson to participate with Chief Justice William M. Barker and Justices Janice M. Holder and Cornelia A. Clark when oral arguments are heard at 1 p.m. Feb. 1 at the Supreme Court Building in Nashville.
Read the court's news release
Supreme Court sets disaster protocol for appellate courts
The Tennessee Supreme court today put down a new rule establishing a framework for continuity of operations of the appellate courts in case of a disaster. The rule allows the chief justice by order to extend filing deadlines and designate alternative places to file in the case of a disaster. The order remains in effect for 30 days unless lengthened or shortened by a majority of the court.
Read the rule
Panel OKs plan for firm to review Juvenile Court
The Shelby County Commission took the first step Wednesday in seeking independent advice about the operations of Juvenile Court, the Commercial Appeal reports.
Read more
Murfreesboro judge called in to hear Memphis rape case
Judge Steve Daniel of Rutherford County was summoned to Memphis for a bond hearing today in an unusual case, one in which a Shelby County sheriff's department employee was charged with paying for a woman for sex with her 8-year-old daughter, the Tennessean reports. The accused is also engaged to a Memphis judge; all of Shelby County's judges who preside over such matters recused themselves.
Read more about the case
2 judges to fill in for ailing Ray Jenkins
Two special judges have been assigned to fill in for ailing Knox County Criminal Court judge Judge Ray L. Jenkins, 70, who was recently hospitalized. Senior Judge Jerry Scott of Murfreesboro is filling in for Jenkins this week. Retired Judge James B. "Buddy" Scott will handle Jenkins' cases next week.
The News Sentinel has more
Workman set to die in May
A new execution date has been set for Philip Ray Workman, May 9, 2007, after the court determined that he presented no legal basis for denying the state's motion to reset execution date.
Read the court's order
Commission leader: The 'decision is ours'
Knox County Mayor Mike Ragsdale came up with a plan for replacing term-limited officeholders by Feb. 16, but County Commission Chair Scott Moore was not impressed, saying "The timing of the various meetings and the timing of any appointments to any vacancies are Knox County Commission's decisions. While we will consider all intelligent suggestions, the ultimate decision is ours."
Read more in the News Sentinel
Weekly defendant reports speed processing
Efforts to give judges and prosecutors weekly updates on criminal defendants are helping move people through the legal system more quickly, Hamilton County officials said yesterday.
The Chattanooga Times Free Press has more on the process
Book drive for Knox prisoners
The University of Tennessee College of Law Criminal Law Society is holding a book drive Jan. 8-22 for the library at the Brushy Mountain Correctional Facility. Nonfiction books are especially needed. Contact Erika Roberts at erober15@utk.edu to donate.

Funds denied for feasibility study for new justice center
The Cocke County Legislative Body denied a request by the Justice Center Task Force Committee to transfer $30,000 from litigation taxes into a fund that could be used for the feasibility study for a new justice center. County Mayor Iliff McMahan Jr. said he was trying to be proactive: "When the Tennessee Institution of Corrections comes in and sees the present overcrowding of the jail, then we'll be made to do something about it."
The Newport Plain Talk has more
TBA Member Services
The Complete Lawyer: Marketing yourself
The TBA brings you the newest issue of The Complete Lawyer magazine. Regardless of your practice area, the size of your firm, your age or gender, you can learn and effectively deploy the marketing skills that suit your personal style and goals. This edition includes tips from national marketing experts along with Tennessee lawyers who have increased their visibility and multiplied their success via savvy marketing approaches.
View the issue

 
 
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