Judge denies Hooker subpoenas

Davidson County Chancellor Claudia Bonnyman today quashed subpoenas that John Jay Hooker might have used to force his critics to appear at his disciplinary hearing tomorrow. Hooker had been seeking to compel the testimony of several Supreme Court justices, other judges and former Attorney General Paul Summers in his effort to defend against charges of frivolous litigation and improper attacks on the judiciary. In her ruling, Bonnyman explained that Hooker had not proven that the witnesses could provide evidence useful to his defense. Read more in the Nashville Post
TODAY'S OPINIONS
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HAROLD DENNIS HARDAWAY & wife, SONYA HARDAWAY, v. HAMILTON COUNTY, TENNESSEE BOARD OF EDUCATION, DERTHICK, HENLEY & WILKERSON, CONSTRUCTION & IMPROVEMENT SPECIALTY CO., and HBJ CORPORATION

Court: TCA

Attorneys:

Harold & Sonya Hardaway, Chattanooga, Tennessee, pro se.

Craig R. Allen, Chattanooga, Tennessee, for appellee, Construction & Improvement Specialty Co.

Mary Neill Southerland, Chattanooga, Tennessee, for appellee, Hamilton County Board of Education.

Randolph A. Veazey, Nashville, Tennessee, for appellee, HBJ Corporation.

Judge: FRANKS

In this action for damages allegedly due to water runoff from construction for a new school, the Trial Court granted defendants summary judgment. On appeal, we conclude there are disputed issues of material fact, and remand and vacate the summary judgment.

http://www.tba2.org/tba_files/TCA/2007/hardawayh_112907.pdf


HEATHER HILL, ET AL. v. ANDREA GIDDENS, M.D., ET AL.

Court: TCA

Attorneys:

Russell John Johnson of Memphis, Tennessee for Appellants, Heather and LaQuinn Hill.

James T. McColgan and Liza V. Rubin of Memphis, Tennessee for Appellees, Andrea Giddens, M.D. and Memphis OB/GYN Associates, P.C.

Buckner Wellford, Jill M. Steinberg and Imad Abdullah of Memphis, Tennessee for Appellee, William David Stinson, M.D.

Judge: CRAWFORD

Patient filed a complaint against Doctors, OB/GYN Group, and Hospital (together "Defendants") alleging medical malpractice for failing to obtain informed consent and failing to properly care for Patient during and after her hospitalization. The trial court granted summary judgment in favor of the defendants on the grounds that Patient failed to provide a competent medical expert as required by T.C.A. section 29-25-115 (Supp. 2006). Patient appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/hillh_112907.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. C.W. and J.C.W., IN THE MATTER OF: C.W. (DOB 04/21/99) and J.W. (DOB 02/22/02), Children Less than Eighteen Years of Age

Court: TCA

Attorneys:

Thomas J. Tabor, Jr., Tazewell, Tennessee, for appellants.

Robert E. Cooper, Jr., Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for appellee.

Judge: FRANKS

The Trial Court terminated the parental rights of the parents of the two minor children. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/jcw_112907.pdf


HARRY McLEMORE, JR. v. CHARLES TRAUGHBER, TENNESSEE BOARD OF PROBATION AND PAROLES

Court: TCA

Attorneys:

Harry McLemore, Henning, TN, Appellant, pro se

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Hudson, Senior Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

An inmate filed a petition for a common law writ of certiorari, alleging that the Board of Paroles acted arbitrarily and illegally in denying parole. The chancery court dismissed the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The inmate appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2007/mclemoreh_112907.pdf


JAMES O. OVERTON, ET AL. v. TERRY L. DAVIS, ET AL.

Court: TCA

Attorneys:

Philip R. Crye, Jr., Clinton, Tennessee, for the appellants, James O. Overton and Betty Overton

John E. McDonald, Oak Ridge, Tennessee, for the appellees, Terry L. Davis and Kimberly J. Davis

Judge: SUSANO

Landowners brought action against adjacent neighbors to establish boundary line. Following a bench trial, the court held that each side is entitled to approximately half of the disputed area. Landowners appeal from the trial court's resolution of the boundary dispute. The neighbors agree with landowners' assertion that the evidence does not support the line found by the trial court. The judgment of the trial court is vacated. This case is remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/overtonj_112907.pdf


LINDA L. WEBER, v. DONALD D. WEBER, JR.

Court: TCA

Attorneys:

Dana C. McLendon, III, Franklin, Tennessee, for Appellant.

Deana C. Hood, Franklin, Tennessee, for Appellee.

Judge: FRANKS

In this dispute over child support owing by the father, the Trial Court ordered child support ended on the grounds the child turned 18 and his high school class had graduated, but ordered payments of back child support arrearage. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/weberl_112907.pdf


BESSIE L. WHITE, ET AL. v. PREMIER MEDICAL GROUP, ET AL.

Court: TCA

Attorneys:

Steven R. Walker, Memphis, Tennessee; Randall Kinnard, Mark S. Beveridge, Lisa W. Rowan, Nashville, Tennessee, for the appellants, Bessie L. White, Linda R. Locke, Debra A. Anderson and Thomas W. Jones.

Steven Edward Anderson, Nashville, Tennessee, for the appellees, Premier Medical Group and Scott William McLain, M.D.

Judge: CLEMENT

In this medical malpractice action against a treating physician, his medical group, and several hospital entities, the plaintiffs contend the trial court erred by including in the jury instructions the defense of superseding cause requested by the treating physician and his medical group. The plaintiffs argue the evidence was insufficient to justify the instruction. It is proper to charge the law upon an issue of fact within the scope of the pleadings upon which there is material evidence sufficient to sustain a verdict. The record contains material evidence regarding each of the essential elements of the defense of superseding cause sufficient to sustain a verdict of superseding cause; therefore, an instruction as to superseding cause was appropriate.

http://www.tba2.org/tba_files/TCA/2007/whiteb_112907.pdf


BRUCE WOOD, ET AL. v. METROPOLITAN NASHVILLE BOARD OF HEALTH, ET AL.

Court: TCA

Attorneys:

Bruce Wood, Pro Se; Bessie Hanserd, Pro Se; Elizabeth Harris, Pro Se; R.C. Bartlett, Pro Se; Susan Henderson, Pro Se.

Lora Barkenbus Fox and Paul J. Campbell, II, Nashville, Tennessee, for the appellees, Metropolitan Nashville Board of Health and Metropolitan Nashville Government.

Anne C. Martin and Susan High-McAuley, Hendersonville, Tennessee, for the appellee, North American Galvanizing.

Judge: Bennett

This is an appeal challenging the issuance of several permits to North American Galvanizing Company by the Air Pollution Division of the Metropolitan Department of Health. Appellants base their challenge on the failure of the Department to consider the location of the company as well as noise and exhaust fumes arising from truck traffic traveling through a residential neighborhood to and from the company. They also challenge the representation of both the Department and the Board of Health by Metropolitan Department of Law attorneys. The Chancellor ruled against the appellants. We affirm.

http://www.tba2.org/tba_files/TCA/2007/woodb_112907.pdf


STATE OF TENNESSEE v. CLIFTON DECHANCE HARRISON

Court: TCCA

Attorneys:

William A. Kennedy, Assistant Public Defender, for the appellant, Clifton Dechance Harrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs and William Harper, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Clifton Dechance Harrison, pleaded guilty to three counts of selling cocaine within 1,000 feet of a school, Class B felonies, see T.C.A. section 39-17-417(a)(3), -432(b) (2003); three counts of selling more than .5 grams of cocaine, Class B felonies, see id. section 39-17-417(a)(3), (c)(1); and one count of selling cocaine, a Class C felony, see id. section 39-17-417(a)(3), (c)(2). Pursuant to a plea agreement with the State, the defendant received an effective sentence of 20 years. In this appeal, the defendant challenges the trial court's denial of alternative sentencing, and we affirm. The case must be remanded to the trial court, however, for correction of numerous errors in the judgments.

http://www.tba2.org/tba_files/TCCA/2007/harrisonc_112907.pdf


CARL JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance Chism, Memphis, Tennessee, for the Appellant, Carl Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Carl Johnson, appeals the order of the Shelby County Criminal Court denying his petition for post-conviction relief. Johnson, who was convicted of especially aggravated robbery, is currently serving a sentence of twenty-five years in the Department of Correction. Following the affirmance of his conviction on direct appeal, Johnson filed a petition for post-conviction relief alleging numerous instances of ineffective assistance of counsel, which was denied. On appeal, this court remanded the case for an evidentiary hearing 'solely on the petitioner's complaint of the ineffective assistance of counsel regarding lesser-included offense instructions and Owens." Following an evidentiary hearing, during which Johnson challenged only trial counsel's failure to request that aggravated assault be charged as a lesser-included offense of especially aggravated robbery, the post-conviction court again denied relief finding that trial counsel was not ineffective for failing to request the lesser charge. In the instant appeal, Johnson challenges the denial of relief. Following a review of the record and the law applicable at the time of trial, we find no reversible error and affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/johnsonc_112907.pdf


STATE OF TENNESSEE v. MARLON DUANE KISER

Court: TCCA

Attorneys:

Brock Mehler (at trial and on appeal) and Peter D. Heil (on appeal), Nashville, Tennessee, and Karla G. Gothard (at trial), Mary Ann Green (at trial), Howell G. Clements (at trial), and Hugh J. Moore (at trial), Chattanooga, Tennessee, for the appellant, Marlon Duane Kiser.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; William H. Cox, District Attorney General; and Barry A. Steelman, Executive Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

Following a change of venire, a Davidson County jury convicted the appellant, Marlon Duane Kiser, in the Hamilton County Criminal Court of first degree premeditated murder and two counts of first degree felony murder. After a sentencing hearing, the jury found that the State had proved the following aggravating circumstance: The murder was committed against a law enforcement officer engaged in the performance of official duties, and the appellant knew or reasonably should have known that such victim was a law enforcement officer engaged in the performance of official duties. See Tenn. Code Ann. section 39-13-204(i)(9). Upon further finding that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, the jury sentenced the appellant to death for each conviction. On appeal, the appellant claims that (1) his right to an impartial jury was violated by the trial court's failure to excuse incompetent jurors for cause; (2) the trial court erred by refusing to excuse for cause jurors who would not consider mitigating evidence; (3) the prosecution used peremptory challenges to excuse jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986); (4) the trial court erred by failing to a hold a pretrial hearing on the admissibility of proposed expert scientific testimony; (5) the evidence is insufficient to support the convictions; (6) the trial court erred by permitting testimony regarding statements made by the appellant regarding his alleged hostility toward police and willingness to kill; (7) the trial court erred by limiting the appellant's proof; (8) the trial court erred by excluding evidence of another person's alleged confession to the victim's murder; (9) the jury instructions on "reasonable doubt" were unconstitutional; (10) the appellant's waiver of rights at the sentencing hearing was unconstitutional; (11) the trial court erroneously denied the appellant's requested instruction on residual doubt; (12) the jury was required to unanimously agree to a life sentence in violation of established case law; (13) Tennessee Rule of Criminal Procedure 12.3(b) violates principles of due process and the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny; (14) the prosecution is vested with unlimited discretion as to whether to seek the death penalty; (15) the death penalty was imposed in a discriminatory manner; (16) the cumulative effect of the errors at trial violated his due process rights; (17) the statutory capital sentencing scheme in this state fails to articulate or apply meaningful standards for proportionality review in violation of his due process rights; and (18) lethal injection constitutes cruel and unusual punishment and is unconstitutional in this state. Upon review of the record and the parties briefs, we conclude that the appellant is not entitled to relief and affirm the judgments of conviction but remand the case to the trial court in order for the court to enter only one judgment of conviction for first degree murder.

http://www.tba2.org/tba_files/TCCA/2007/kiserm_112907.pdf


TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Upcoming
Knox Term Limits
TBA Member Services

Legal News
New survey shows top female lawyers earn less than men
A new survey by the National Association of Women Lawyers shows "slow progress" for women in the upper echelons of big law firms. The National Survey on Retention and Promotion of Women in Law Firms found that only 16 percent of equity partners at large law firms are women, and that they earn almost $90, 000 less than their male counterparts -- a disparity that has increased from last year.
Download the study
Katrina lawyer charged with conspiracy to bribe judge
High-profile Mississippi lawyer Richard "Dickie" Scruggs has been charged with conspiring to pay a judge $50,000 to resolve a fee dispute in favor of his law firm. Scruggs is well known for handling tobacco litigation for the state of Mississippi and for suing State Farm on behalf of Hurricane Katrina victims. There are conflicting reports on whether Scruggs will continue representing Katrina victims, the Wall Street Journal Law Blog reports.
Read more on the charges in the New York Times
Paper highlights work of Memphis young lawyers
The Memphis Daily News today ran an interview with Stacie Winkler, new president of Memphis Bar Association's Young Lawyers Division, and highlighted the division's programs and projects. Winkler, an attorney with Thomason, Hendrix, Harvey, Johnson & Mitchell PLLC, said one of her goals is to increase activism among the 500-member group.
Read about the organization
Eliminating mandatory retirement poses challenges
With scores of attorneys poised to assume senior status, ditching mandatory retirement policies is growing in popularity. But such a move would require firms to develop a system for evaluating and rewarding older lawyers based on their contributions -- and that might prove difficult. The National Law Journal looks at the issue.
The story is posted on Law.com
Leahy rejects executive privilege claim
Patrick J. Leahy, D-VT., chairman of the U.S. Senate Judiciary Committee, today rejected White House claims of executive privilege and immunity for documents and testimony related to the firings of U.S. attorneys last year. The committee had issued subpoenas for documents and the testimony of four individuals. Leahy's move clears the way for a contempt vote by the committee, reports CQ Today.

Branham's pro bono work publicized
Attorney Andrew C. Branham, executive director of the Memphis office of Counsel on Call, is the subject of a profile piece in the Memphis Daily News today. Branham recently was honored by the TBA, and separately by the board of governors of the Legal Services Corporation, for his pro bono work and leadership on access to justice issues.
Read about his work
Top 100 legal blogs named
The December issue of the ABA Journal lists its top 100 blawgs (legal blogs) and gives readers a chance to vote for their favorites.
Check them out here
Legislative News
Lawmakers call for shorter session
State Senate Republicans want to make another run at shortening the legislative session, recommending that the legislature wrap up by April 9. Complicating that time frame is the fact that many lawmakers want to have final revenue projections in hand before passing the annual state budget, and that information is not available until May. But 2008 is an election year, and even Democrat leaders would like to see an April finish, reports the Memphis Daily News.

Supreme Court Report
Court takes up regulation of shipping companies
The court yesterday considered whether federal law bars the state of Maine from imposing handling requirements on delivery companies who ship cigarettes purchased online. The issue arose when Maine officials tried to crack down on Internet tobacco sales to minors.
The Tennessean has more
Knox Term Limits
New violations of open meetings rule suspected
Attorneys who won the Open Meetings Act lawsuit against the Knox County Commission this fall are concerned that commissioners could be violating a court order by deliberating through intermediaries out of the public view. Allegations have surfaced that commissioners are communicating with each other through lobbyists and friends. The court ruling prohibiting private deliberations imposes a $50 fine and 10 days in jail for future violations of the law but does not address the use of intermediaries.
Learn more in the News Sentinel
Upcoming
Swearing-in ceremony highlight of TBA Academy
A select group of Tennessee attorneys will soon experience the honor of being admitted to practice before the United States Supreme Court in a private swearing-in ceremony at the 24rd Annual TBA Academy. This year's Academy is scheduled for Jan. 21-23, with the ceremony to take place before the court on Jan. 22. Join TBA President Marcy Eason and other leaders in the Tennessee legal community in this exciting program. Contact TBA CLE Director Therese Byrne at (800) 899-6993 or by email to learn more.

TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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