Governor to lift ban on executions

Governor Phil Bredesen reportedly will lift a 90-day moratorium on executions in Tennessee when the ban expires tomorrow. Yesterday, the state Department of Corrections unveiled new rules governing the use of lethal injections. The rules are designed to spell out in greater detail the process for administering injections. But some criminal defense attorneys criticized the new rules saying the changes were little more than "window dressing." Others have complained that the entire review and revision process was done in secret. Challenges to the new protocol are expected. The Tennessean has more on the story:

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Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TSC


David A. Siegel, Memphis, Tennessee, for the appellants, David Austin, Tina Austin, and April Austin, a minor, by and through her parents and next friends, David Austin and Tina Austin

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee


We granted review in this case to determine whether Tennessee Code Annotated section 20-1-119 (Supp. 2006) provides a plaintiff with a ninety-day extension of the statute of limitations when a defendant does not explicitly allege the fault of a nonparty. We conclude that the statute gives a plaintiff an additional ninety days to file suit against a potential nonparty tortfeasor whenever a defendant's answer gives a plaintiff notice of the nonparty's identity and alleges facts that reasonably support a conclusion that the nonparty caused or contributed to the plaintiff's injury. We also conclude that Tennessee Code Annotated section 20-1-119 applies whether the nonparty is alleged to be partially responsible or totally responsible for the plaintiff's injuries. Because Fayette County's answer identifies the State as a nonparty and alleges facts that reasonably support a conclusion that the State caused the Austins' injuries, we hold that Tennessee Code Annotated section 20-1-119 is applicable and that the Austins' complaint was timely filed. Accordingly, we reverse the decision of the trial court and remand this case for proceedings consistent with this opinion.


Court: TCA


H. Scott Saul, Nashville, Tennessee, for Defendant/Appellant Melissa Kay Cunningham

Rosemary E. Phillips, Goodlettsville, Tennessee, for Plaintiff/Appellee John Patrick Cunningham, Jr.

Judge: KIRBY

This is a post-divorce case involving child visitation rights with a stepparent. The mother and biological father of the child divorced in 1993 in Sumner County. Under the Sumner County divorce decree, the mother was designated the primary residential parent and the biological father was granted parenting time. The mother remarried. In 2002, the mother and the stepfather divorced in Robertson County. The mother and stepfather, the parties to this appeal, entered into a marital dissolution agreement that provided the stepfather visitation with the minor child. The agreement was incorporated into the Robertson County divorce decree. Two years later, a dispute arose regarding the stepfather's visitation. The stepfather filed a petition in Robertson County to enforce his visitation rights with the minor child. The biological father intervened, alleging that the Robertson County court did not have jurisdiction to address visitation matters related to the minor child. The trial court refused to address visitation matters for lack of jurisdiction, but enforced the parties' marital dissolution agreement by requiring the breaching party to pay attorney's fees. This decision was not appealed. Two months later, the stepfather filed another petition in the Robertson County court seeking reinstatement of visitation. The mother filed a motion to dismiss, asserting res judicata. The trial court denied the mother's motion and reinstated the stepfather's visitation. The mother now appeals. We vacate the order on visitation, finding that the Robertson County court did not have subject matter jurisdiction to adjudicate visitation matters relating to the minor child.


Court: TCA


Neil M. McIntire, Nashville, Tennessee, for the appellant, Robert C. Marks

F. Evans Harvill, Clarksville, Tennessee, for the appellees, W. Garnett Ladd, III and Gerda Ladd Mayo


The matters at issue pertain to the fee awarded a Co-Executor of an estate. The Co-Executor appeals contending he was entitled to a contractual fee equal to five percent of the gross estate based on an oral agreement with the ninety-four year old widow of the testator who served as his co-executor. The Special Master and Chancellor made concurrent findings that the appellant had failed to properly administer the estate. They also found that his claimed excuse, that he was acting according to the wishes of his ninety-four year old Co-Executrix, did not relieve him of his affirmative fiduciary duties as a personal representative. The Chancellor awarded him a fee of $25,000 for his services as Co-Executor. We have concluded he is entitled to no fee for his services.


Court: TCA


W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the Appellant, Cherretha Yvonne Tate

Amanda G. Branam, Chattanooga, Tennessee, for the Appellee, Burley Champion

Judge: LEE

Mr. Champion (the "Landlord") had several trenches dug in his tenant's yard to repair a leaking water pipe. After repairing the pipe, the Landlord did not cover the trenches, and Ms. Tate (the "Tenant") complained repeatedly. Over time, grass grew over the trenches. Three months after the trenches were dug, the Tenant, after returning from a shopping trip and carrying two bags, fell in one of the trenches and was injured. The Tenant sued the Landlord for negligence. The trial court granted the Landlord's motion for summary judgment, finding that the uncovered trench was open and obvious and therefore, it was not foreseeable to the Landlord that the Tenant would step into a known hazard. After careful review, we find that the Landlord owed a duty of reasonable care to the Tenant; that the Landlord did not affirmatively negate an essential element of the Tenant's proof, i.e., the Landlord's duty of care to the Tenant; and, as a result, summary judgment was inappropriate. We vacate and remand.


Court: TCCA


Philip A. Condra, District Public Defender and Robert G. Morgan, Assistant Public Defender, for the appellant, William Shane Bright

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; J. Michael Taylor, District Attorney General and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: SMITH

The defendant was indicted for three counts of solicitation to commit first degree murder, committed while he was in prison for a previous, unrelated conviction. The defendant pled guilty to the three counts. As part of his plea agreement, he received three sentences of ten years each to be served concurrently. In a separate sentencing hearing, the trial court determined that the three concurrent sentences should be served consecutively to the sentence he was serving at the time the crimes were committed. The defendant appeals, arguing that he should have received concurrent sentences and that he was entitled to pre-trial jail credits for time served between the continuation of a parole hearing and his sentencing. We affirm the judgment of the trial court.


Court: TCCA


Micaela Burnham, Sevierville, Tennessee, for the appellant Kenneth Clay Davis

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

Judge: SMITH

The Appellant, Kenneth Clay Davis, was indicted for identity theft and violation of the habitual motor vehicle offender act. The Appellant was convicted by a jury on both counts and received an effective twelve-year sentence as a career offender. After the denial of a motion for new trial, the Appellant initiated this appeal. On appeal, the following issues are presented for our review: (1) whether the evidence was sufficient to support the Appellant's convictions; and (2) whether the State had a duty to preserve a video tape of the Appellant's traffic stop when the tape was defective and failed to record the stop. Because we determine that there was sufficient evidence to support the Appellant's convictions and that the State had no duty to preserve evidence that did not exist, we affirm the judgments of the trial court.


Court: TCCA


Dexter Frank Johnson, Pro Se, Tiptonville, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee

Judge: SMITH

The petitioner, Dexter Frank Johnson, pled guilty to two counts of first degree murder, one count of attempt to commit first degree murder and one count of attempted aggravated burglary. As a result, the petitioner was sentenced to life in prison for the two first degree murder convictions, twenty-five years for attempt to commit first degree murder and six years for attempted aggravated burglary. The trial court ordered the sentences to run concurrently. The petitioner sought post-conviction relief. The petition was dismissed and this Court affirmed the dismissal of the post-conviction petition. See Dexter Frank Johnson v. State, No. 03C01-90503-CR-00088, 1996 WL 49252 (Tenn. Crim. App., at Knoxville, Feb. 13, 1996), perm. app. dismissed, (Tenn. Nov. 9, 1998). Since that time, the petitioner has unsuccessfully sought habeas corpus relief on two occasions. See Dexter Frank Johnson v. State, No. E2004-01260-CCA-R3-HC, 2004 WL 1945744 (Tenn. Crim. App., at Knoxville, Sept. 2, 2004), perm. app. denied (Tenn. Dec. 20, 2004); Dexter Johnson v. State, No. 03C01-9707-CR-00241, 1999 WL 41837 (Tenn. Crim. App., at Knoxville, Feb. 2, 1999), perm. app. denied, (Tenn. Jun. 14, 1999). The petitioner subsequently filed a third petition for habeas corpus relief in Hamilton County Circuit Court, which was denied by the trial court. On appeal, he challenges the trial court's decision denying habeas corpus relief. Because we determine that the petitioner filed his petition in the improper venue, failed to comply with the mandatory procedural requirements as set forth in Tennessee Code Annotated section 29-21-107, and does not state a claim for habeas corpus relief, we affirm the dismissal of the petition.


Legislative News
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Legislative News
House floor action planned on two TBA priorities
Two TBA-sponsored bills cleared their final committee hurdle today and are set for floor action in the House on Thursday. They are: HB2098, which makes revisions to domestic relations law and HB467, which deals with transfer taxes. Both bills have already passed the full Senate.

Senate Judiciary acts on court improvement bills
The Senate Judiciary Committee today approved a package of bills recommended by the Administrative Office of the Courts' Court Improvement Project: SB621, which addresses adoption procedure changes; SB622, which pertains to counsel for unruly children; SB623, which deals with compensation of guardians ad litem; and SB624, which concerns service of process in termination cases.

Senate Judiciary Committee defers two bills
Legislation removing nursing home negligence actions from the elder abuse statute and relegating such actions only to medical negligence law was scheduled for consideration by the Senate Judiciary Committee today, but was deferred indefinitely subject to recall of the sponsor. A second bill requiring consideration of damages in divorce actions for adultery, abuse or alienation of affections was deferred to the last meeting of the committee.

Law enforcement group calls for major crime bills
With a $400 million budget surplus projected for the state next year, the Tennessee Public Safety Coalition yesterday renewed its push for roughly $88 million in new legislation to keep gun crime perpetrators behind bars longer, enact harsher penalties for gang crimes and add 64 prosecutors across the state.
The City Paper covered their lobbying effort
Legal News
Judge Daniel named counsel for Court of Judiciary
Tennessee Senior Judge J.S. "Steve" Daniel will end his 27-year career as a member of the state judiciary, including three years as one of five senior judges, to become chief disciplinary counsel for the Court of the Judiciary. He will succeed retired Court of Criminal Appeals Judge Joe Riley of Ridgely who will leave office on July 1. In his new role, Daniel will investigate complaints of judicial misconduct filed against Tennessee judges. The Administrative Office of the Courts announced the news today.
Read about Judge Daniel's career
Kickbacks, fraud case next for former state Sen. Ford
Having been found guilty of bribery in Memphis, John Ford now faces charges in a Nashville courtroom. Charged with six felony counts of concealing $800,000 in kickbacks from state contractors, Ford is to appear before U.S. District Judge Todd J. Campbell on Thursday for a status conference. Ford has pleaded "not guilty" but no trial date has been set. The Commercial Appeal explores the new charges and how a second indictment may actually help Ford.
Learn more
MLGW pays bill for Lee lawyer
In late March, Memphis Light, Gas and Water president Joseph Lee quietly struck a deal to have his personal legal bills covered by ratepayers. MLGW's general counsel authorized Lee to hire Robert Spence to represent him during ongoing investigations into possible malfeasance at the utility. The agreement did not go before MLGW's board or the city council. Spence has so far billed MLGW $61,698.50.
The Commercial Appeal has more on the story
Traffic stop study shows racial disparity
According to a new study by the U.S. Department of Justice, black, Hispanic and white drivers are just as likely to be pulled over by police, but (1) blacks and Hispanics are more likely to be searched and arrested and (2) police are more likely to threaten or use force against blacks and Hispanics than against whites in any encounter.
The News Sentinel covers news of the study
Justice Barker urges support for legal aid
In an opinion piece today in the Tennessean, Supreme Court Chief Justice William Barker writes that there is a gap in the state between those who can afford justice and those who cannot. He also cites the current disparity in state support of civil legal assistance compared to criminal assistance. Barker recently challenged lawyers, judges and elected officials to financially support legal aid efforts and makes the same appeal to the public in this guest column.
Read his appeal for support
High court sides with cops in chase case
The U.S. Supreme Court yesterday handed an important victory to police officers involved in high-speed chases, and took the unusual step of posting on its web site a videotape of the chase in question. The tape provided dramatic evidence for the justices, who normally decide issues of law and leave fact-finding to juries and lower courts.
Learn more in the News Sentinel
New drug court authorized
Anderson County officials have authorized a drug court pilot program that could go into operation in the Seventh Judicial District by July 2. Criminal Court Judge Don Elledge has agreed to act as the court's judge. The program will offer treatment and probation services, drug and alcohol testing and judicial supervision for nonviolent offenders.
Read more in the Oak Ridger
Lexington attorney pleads guilty to drug charge
Lexington defense attorney Steve Milam pleaded guilty Monday in Henderson County Circuit Court to two counts of obtaining or attempting to obtain prescription painkillers by fraudulent means, and one count of possession of a controlled substance. He had been facing 168 counts in two counties. He now faces a May 30 hearing to determine whether he will receive judicial diversion.
The Jackson Sun has the story
TBA Member Services
New Alimony Bench Book released
The 5th 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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