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Friday, February 09, 2007

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Crackdown on polluters coming, Cooper vows

Environmental protection is one of three top concerns for Tennessee's new attorney general. Robert Cooper outlined his priorities, which also include consumer protection and health care fraud and abuse (particularly in TennCare), during a speech yesterday to Tennessee newspaper publishers and editors. He said his office would start with companies responsible for rainwater runoff from construction sites that pollutes streams, curbing "the worst cases of repeated noncompliance" with environmental law. "When we find that, we are going to come down on it with both feet. We're going to skip the administrative process and go straight to court," Cooper said, also noting that criminal prosecutions are possible. The Commercial Appeal has the story:

http://www.commercialappeal.com/mca/local/article/0,2845,MCA_25340_5338970,00.html

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. B.B.M.

Court: TCA

Attorneys:

Scott A. Hodge, Morristown, Tennessee, for the Appellant, B.B.M.

Robert E. Cooper, Jr., Attorney General and Reporter, and Kimberly J. Dean, Deputy Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services

Judge: SWINEY

This is the second appeal to this Court of the Juvenile Court's judgment terminating the parental rights of B.B.M. (Mother) to her four children. After a second trial, the Juvenile Court held that: (1) there was clear and convincing evidence that grounds existed to terminate Mother's parental rights pursuant to Tenn. Code Ann. Section 36-1-113(g)(2) and (g)(3); (2) there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest; and (3) that the Department of Children's Services (DCS) had made reasonable efforts to assist Mother to reunite with her children. Mother appeals challenging each of these rulings. After a careful review of the record, we affirm the Juvenile Court's judgment in all respects.

http://www.tba2.org/tba_files/TCA/2007/bbm_020907.pdf

PAUL RUSSELL and wife, VIRGINIA RUSSELL v. I. ALLAN HOWARD, ET AL.

Court: TCA

Attorneys:

Mickey Hall, Winchester, TN, for Appellants

Jeffrey D. Ridner, Tullahoma, TN; J. Stanley Rogers, Manchester, TN for Appellees, I. Allan Howard and Marilyn J.Howard

John W. Butler, Knoxville, Attorney for Appellees B&V Systems, Inc. and Willowbrook Golf Club L.L.C.

This is an appeal from a nuisance case. The plaintiff landowners filed a complaint alleging a recurring nuisance caused by the construction of a golf course adjacent to their property. The plaintiffs alleged that a part of their property, which was located in a natural drainage pattern even prior to the golf course's construction, became flooded after periods of heavy rainfall as a result of the construction of the fairway and installation of a drainage system by the defendant golf course developers and owners. A trial was held, and the chancery court entered judgment in favor of the defendants. The plaintiffs filed a timely appeal to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2007/russellp_020907.pdf

STEVE WHERRY AND MARY HOPKINS, CO-EXECUTORS OF THE ESTATE OF MARGARET ARCHER, DECEASED

Court: TCA

Attorneys:

James D. R. Roberts, Jr., and Janet L. Layman, Nashville, Tennessee, for the appellants, Steve Wherry and Mary Hopkins, co-executors of the Estate of Margaret Archer, deceased

Clifford D. Pierce, Jr., and Scott B. Ostrow, Memphis, Tennessee, for the appellee, Union Planters Bank, N.A.

Judge: KIRBY

This case involves the alleged negligent administration of a trust. In 1964, the plaintiffs' decedent established a $1.7 million trust and named herself as the sole beneficiary. The defendant bank was named as the trustee and was given sole discretion to manage the trust investments. From 1964 until the decedent's death in 1999, the bank managed the trust fund and sent the decedent monthly statements describing the trust activities. When the trust terminated, it was worth approximately $880,000. The plaintiffs, co-executors of the decedent's estate, brought this action on behalf of the estate for negligent administration of the trust, arguing that the bank negligently failed to maximize the rate of return on the trust assets. The bank filed a motion for summary judgment based on, inter alia, the doctrine of ratification, asserting that the decedent had ratified the bank's management of the trust assets by failing to object to its decisions over the thirty-five-year life of the trust. The plaintiffs argued that the decedent was not sufficiently sophisticated in financial matters to ratify the bank's actions. The trial court granted the bank's motion for summary judgment. The plaintiffs now appeal. We affirm, concluding that, in light of the undisputed facts that the decedent was legally competent and was fully informed of the bank's actions in managing the trust investments, the decedent's level of sophistication in financial matters is immaterial.

http://www.tba2.org/tba_files/TCA/2007/wherrys_020907.pdf

COREY D. ANDERSON v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Corey D. Anderson, pro se, Henning, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Corey D. Anderson, appeals the Lauderdale County Circuit Court's summary dismissal of his petition for writ of habeas corpus. In 1995, Anderson pled guilty to two counts of delivery of a controlled substance and received concurrent eight-year suspended sentences. In 1999, Anderson pled guilty to second degree murder, attempted especially aggravated robbery, and felon in possession of a handgun. As a result of these convictions, he received concurrent sentences of thirty-five years for second degree murder, thirteen years for especially aggravated robbery, and two years for felon in possession of a handgun. Anderson was sentenced as a Range II offender for each of the three imposed sentences, with the sentence for second degree murder to be served at 100% as a violent offender. The sentences imposed in 1999 were ordered to be served consecutively to the 1995 sentences. He is presently incarcerated in the West Tennessee State Prison. On appeal, Anderson asserts that the trial court erred in summarily dismissing his petition because he contends that his 1999 guilty pleas and resulting sentences were illegal, "as well as void," as they were imposed outside the appropriate sentence range. Additionally, he argues that the trial court erred by failing to address his claim that his 1995 sentences for delivery of controlled substances had expired. After review, we affirm the judgment of the Lauderdale County Circuit Court.

http://www.tba2.org/tba_files/TCCA/2007/andersonc_020907.pdf

STATE OF TENNESSEE v. VERNITA FREEMAN

Court: TCCA

Attorneys:

Garland Erguden (on appeal); James Hale and Jane Sturdivant (at trial), Assistant Public Defenders, Memphis, Tennessee, for the Appellant, Vernita Freeman

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Kevin Rardin and Muriel Conner, Assistant District Attorneys General, for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Vernita Freeman, was found guilty by a Shelby County jury of first degree felony murder in the perpetration of aggravated child abuse, aggravated child abuse, and aggravated child neglect of her eleven-month-old daughter. For these convictions, Freeman received concurrent sentences resulting in an effective sentence of life imprisonment. On appeal, Freeman contends: (1) that the trial court erred in denying her motion to suppress her statement to the police; and (2) that the evidence is insufficient to support her convictions. Within her sufficiency argument, Freeman also contends that her dual convictions for aggravated child abuse and aggravated child neglect violate double jeopardy protections. After review, we conclude that Freeman's suppression issue is without merit. Furthermore, we conclude that the evidence is legally sufficient to support her convictions of first degree felony murder and aggravated child abuse. Accordingly, those convictions are affirmed. We conclude, however, that the evidence is insufficient to support her conviction for aggravated child neglect. As such, this judgment of conviction is vacated and dismissed, and the case is remanded for entry of a corrected judgment form to reflect this holding for Department of Correction purposes.

http://www.tba2.org/tba_files/TCCA/2007/freemanv_020907.pdf

STATE OF TENNESSEE v. JAMIE ROSKOM

Court: TCCA

Attorneys:

Joe M. Brandon, Jr., Smyrna, Tennessee, for the Appellant, Jamie Roskom

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Jamie Roskom, was convicted by a Bedford County jury of violating the Sexual Offender Registration, Verification, and Tracking Act of 2004, a Class E felony. On appeal, Roskom argues that he was indicted for failing to "register" as a sexual offender, which is a violation of section 208 of the Act; however, he was convicted of failing to "report," which is a violation of section 204. See T.C.A. section 40-39-208(1), -204(c) (Supp. 2004). As such, Roskom asserts that he was not given notice of the crime for which he was convicted, and there is "no proof that [he] [committed] the offense for which he was indicted." After review of the record, we agree and conclude that the indicted offense of failing to "register" impermissibly varied from the proof at trial, which established the separate offense of failing to "report." Accordingly, Roskom's conviction for violation of the "sex offender registration act" is reversed and dismissed.

http://www.tba2.org/tba_files/TCCA/2007/roskomj_020907.pdf

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Court says no to Baker request, explains two issues

The Tennessee Supreme Court answered yesterday's petition to rehear from Jerry and Louise Baker quickly, saying the court ruling would stand as it had been set: that A.M.H. should be returned to her natural parents. The court also took the opportunity to "clarify two issues in this case: the applicability of the concurrent findings doctrine and the continued participation of the guardian ad litem and the attorney ad litem."

Read what the court said

Read the court's order of denial

School board rejects attempt to alter desegregation suit

In a historic vote last night, the Jackson-Madison County School Board voted 5-4 along racial lines to not seek dismissal of the school system's long-standing desegregation court order. Such a move would have given the school system more autonomy. But several of the board's black members reported that their constituents do not trust the school system to do what is best for students.