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Friday, February 16, 2007

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Ashworth to lead TBA in 2009-2010

With no competing candidates filing to challenge her, Nashville attorney Gail Ashworth will become the next vice president of the Tennessee Bar Association, putting her on track to lead the organization in the 2009-2010 bar year. Ashworth, a member of the Gideon & Wiseman firm, currently serves as the TBA's general counsel. Her election will become official following certification by the Board of Governors.

There will be contested elections for two Board of Governors seats -- those representing the Middle Tennessee Grand Division and the First District. In the Middle Tennessee district, Nashville attorneys Barbara Holmes and Timothy Warnock will compete for the seat, while in the First District, Kingsport attorney Frank Johnstone will face Sevierville attorney Cynthia Richardson Wyrick. See a complete listing:

http://www.tba2.org/tbatoday/news/2007/tbaelex_02162007.html

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. F.R.G.

Court: TCA

Attorneys:

C. Brad Sproles, Kingsport, Tennessee, for the appellant, F.R.G.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, General Civil Division, for the appellee, State of Tennessee Department of Children�s Services

Judge: SUSANO

The trial court terminated the parental rights of F.R.G. ("Mother") and R.K.B. ("Father") with respect to their minor child, C.G.B. ("the child") (DOB: December 31, 2003), upon finding, by clear and convincing evidence, that grounds for terminating their parental rights existed and that termination was in the best interest of the child. Mother appeals, arguing procedural defects in the trial court's termination of her parental rights. We affirm.

http://www.tba2.org/tba_files/TCA/2007/frg_021607.pdf

KENNETH W. NEELEY v. PIEDMONT NATURAL GAS CO., INC., d/b/a NASHVILLE GAS

Court: TCA

Attorneys:

G. Christopher Holder, Murfreesboro, Tennessee, for the appellant, Kenneth W. Neeley

William B. Jakes, III, Nashville, Tennessee, for the appellee, Piedmont Natural Gas Company, d/b/a Nashville Gas

Judge: COTTRELL

Plaintiff appeals the trial court's grant of summary judgment to the defendant in this negligence action. Because the plaintiff failed to present any evidence to establish duty of care or breach of a duty, we affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/neelyk_021607.pdf

CARRIE SWINFORD v. JEREMY HUMBERT

Court: TCA

Attorneys:

David L. Leonard, Greeneville, Tennessee, for the appellant, Jeremy Humbert

Regina L. Shepherd, Elizabethton, Tennessee, for the appellee, Carrie Swinford

Judge: SUSANO

The parties to this litigation formerly resided in Tennessee. The plaintiff, Carrie Swinford ("Mother"), gave birth to a daughter on February 15, 2005. Shortly thereafter, Mother filed a "paternity and legitimation" action against Jeremy Humbert ("Father"). Father admitted paternity after a DNA test revealed a 99.997% probability that he was the child's biological father. Both parents sought to be designated as the child's primary residential parent. Approximately six and a half months after the child was born, Mother moved to Ohio. Father is now a resident of North Carolina. Following a trial, the court below designated Mother as the child's primary residential parent and awarded Father co-parenting time of five hours every other Saturday, and five hours every other Sunday. The trial court ordered that Father's time with the child would be limited to visits in the state of Ohio. The trial court encouraged the parties to reach an agreement on increased visitation once the child became familiar with Father. The trial court also indicated to Father that a petition seeking increased co-parenting time could be filed in the event he and Mother were unable to reach an agreement. Father appeals. He claims that the best interest of the child dictates that he have more co-parenting time. Finding no abuse of discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2007/swinfordc_021607.pdf

DUDLEY W. TAYLOR, d/b/a THE TAYLOR LAW FIRM v. JAMES DALLE, KATHERINE DALLE, MOSHE SHLOUSH, CLARENCE L. HENDRIX and ROBERT HICKMAN

Court: TCA

Attorneys:

Craig J. Donaldson, Greenback, Tennessee, for appellants

Dudley W. Taylor, Knoxville, Tennessee, for appellee

Judge: FRANKS

In this action for a judgment for fees for legal services rendered, the Trial Court entered Judgment for plaintiff and defendants appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2007/taylord_021607.pdf

STATE OF TENNESSEE v. ANTHONY BONDS

Court: TCCA

Attorneys:

Garland Erguden, Assistant Public Defender, Memphis, Tennessee, for the Appellant, Anthony Bonds

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, 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, Anthony Bonds, was convicted by a Shelby County jury of attempted especially aggravated robbery and sentenced to ten years in the Department of Correction. On appeal, Bonds raises the single issue of sufficiency of the evidence. Following review of the record, we conclude that the evidence is sufficient to support the verdict and, accordingly, affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2007/bondsa_021607.pdf

STATE OF TENNESSEE v. BARRY BROWN

Court: TCCA

Attorneys:

Robert L. Parris, Memphis, Tennessee, for the appellant, Barry Brown

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WILLIAMS

The defendant, Barry Brown, was convicted of three counts of aggravated robbery, Class B felonies. Two of the counts of aggravated robbery were merged, and the trial court imposed a thirty-year sentence on each conviction, to be served consecutively to each other for an effective sixty-year sentence in the Department of Correction as a persistent offender. The defendant appeals claiming that: (1) the evidence was insufficient to support the verdict; (2) the trial court erred in failing to suppress pretrial statements made by the defendant; and (3) the trial court erred by granting the State's motion to consolidate. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/brownb_021607.pdf

PIERRE ANDRE BROWN A/K/A ANTHONY ANDERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Pierre Andre Brown, pro se

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General, for the appellee, the State of Tennessee

Judge: WILLIAMS

The Petitioner, Pierre Andre Brown, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/brownp_021607.pdf

ERIC CARTER v. GLEN TURNER, WARDEN AND STATE OF TENNESSEE

Court: TCCA

Attorneys:

Eric Carter, pro se

Robert E. Cooper, Jr.,, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, the State of Tennessee

Judge: MCLIN

The Petitioner, Eric Carter, appeals the trial court's order denying his petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court's judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/cartereric_021607.pdf

ROSE MARIE HERNANDEZ v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Karla D. Ogle, Fayetteville, Tennessee, for the Appellant, Rose Marie Hernandez

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; and Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Rose Marie Hernandez, appeals the dismissal of her petition for post-conviction relief by the Bedford County Circuit Court. Hernandez pled guilty to seventy counts of forgery, which the trial court merged into thirty-five convictions of forgery, and received an effective sentence of thirty-three years and six months in the Department of Correction as a Range III persistent offender. On appeal, she asserts that her pleas were not knowingly and voluntarily entered due to the ineffective assistance of counsel. Hernandez argues that counsel was deficient in: (1) failing to adequately consult with her and failing to obtain and review discovery material; and (2) "misinform[ing] [her] about the sentencing and enhancing process." Following review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/hernandezr_021607.pdf

ANDRE NEELY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brett B. Stein, Memphis, Tennessee, for the Appellant

Robert E. Cooper, Jr., Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, for the appellee, the State of Tennessee

Judge: HAYES

The Petitioner, Andre Neely, appeals the lower court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. After a review of the pleadings, the lower court's order and the applicable law, this Court concludes that the lower court properly determined that the Petitioner's claims were waived and properly dismissed the petition. Accordingly, we affirm the court�s dismissal.

http://www.tba2.org/tba_files/TCCA/2007/neelya_021607.pdf

CHARLES WADE SMITH, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lloyd R. Tatum, for the appellant, Charles Wade Smith, III

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Ronald L. Davis, District Attorney General; Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: THOMAS

Petitioner, Charles Wade Smith, III, was convicted by a Perry County jury of second degree murder and received a sentence of seventeen years as a violent offender. His conviction was affirmed on appeal. State v. Charles Wade Smith, III, No. M2001-01740-CCA-R3-CD, 2003 WL 22116629 (Tenn. Crim. App. Sept. 11, 2003). On September 9, 2004, the petitioner, through counsel, filed a petition for post-conviction relief alleging ineffective assistance of counsel related to the petitioner's alleged impairment due to drugs or alcohol during the trial. After an evidentiary hearing, the trial court found that the petitioner had failed to prove any allegations by clear and convincing proof and denied the petition. Upon full consideration of the record, we agree and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/smithc_021607.pdf

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Cooper open, but cautious about new powers

Recently appointed Tennessee Attorney General Bob Cooper told lawmakers this week that he is open to adding more police powers for his office. He went on to warn them, though, that if the powers were added and efforts to make the office an elected position were successful, future attorney generals could use the powers to politicize the office.

Judge Echols named civilian aide with Army

Secretary of the Army Dr. Francis Harvey today invested Judge Robert Echols of Nashville as a civilian aide during ceremonies at the Pentagon. Echols, a U.S. District Judge for the Middle District of Tennessee, served for 35 years in the U.S. Army National Guard, reaching the rank of brigadier general.