Monday, March 03, 2008
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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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.
IN THE MATTER OF: L.L.F. (d/o/b 12/08/00) & T.H.F. (d/o/b 9/27/99) STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v. B.W.R., ET AL.

Court: TCA

Attorneys:

John Philip Parsons, Cookeville, TN, for Appellant

Robert E. Cooper, Jr., Attorney General and Reporter, Scott Edward Schwieger, Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

This is a termination of parental rights case. The Department of Children’s Services instituted a dependency and neglect proceeding and the mother’s two minor children were placed in DCS’ custody. At the time, the children and the mother were living with her boyfriend in Tennessee. After the children were placed in foster care, the mother moved back to Florida. Permanency plans were entered into with the goal of reunification with the mother. DCS created revised permanency plans with the goal changed to adoption. Ultimately, DCS initiated a termination proceeding based on the following statutory grounds: 1) abandonment by failure to visit; 2) abandonment by failure to support; 3) abandonment by failure to establish a suitable home; 4) substantial non-compliance with the permanency plan; and 5) persistent conditions. A hearing was held, and the trial court terminated the mother’s rights based on each of the aforementioned grounds. The mother appeals, and we affirm.

http://www.tba2.org/tba_files/TCA/2008/statedcs_030308.pdf
SWANSON DEVELOPMENTS, LP v. BILL TRAPP and JIM OLSEN, INDIVIDUALLY, and d/b/a PAKSOURCE a/k/a PARKSOURCE

Court: TCA

Attorneys:

Rodney M. Scott, Murfreesboro, Tennessee, for Appellant.

Brad W. Hornsby and Jonathan L. Miley, Murfreesboro, Tennessee, for Appellee.

Judge: FRANKS

Plaintiff filed this action in General Sessions Court, seeking back rent and possession of properties leased to defendants. The Sessions Court gave plaintiff monetary judgment against defendants, who appealed to Circuit Court and made an appeal bond in the amount of $500.00 pursuant to Tenn. Code Ann. § 27-5-103. In Circuit Court plaintiff contended that defendants should have given an appeal bond as specified in Tenn. Code Ann. § 29-18-130 and asked the Circuit Court to dismiss the appeal. The Circuit Court refused and ultimately dismissed plaintiff’s claims. On appeal we hold that defendants failed to give the proper statutory bond to appeal the case to Circuit Court and that the appeal was not properly perfected and the Judgment of the Sessions Court will be reinstated upon remand.

http://www.tba2.org/tba_files/TCA/2008/swansondev_030308.pdf
ELLIS JUNIOR BURNETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Darwin C. Colston, Murfreesboro, Tennessee, for the Petitioner, Ellis Junior Burnett.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General; William Whitesell, District Attorney General; and David Puckett, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 2001, a Cannon County jury convicted the Petitioner, Ellis Junior Burnett, of aggravated arson,2 and he received a twenty-three-year sentence. The conviction was affirmed by this Court on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief, which was heard by the post-conviction court and denied. The Petitioner now appeals, claiming the post-conviction erred when it: (1) failed to give him a full and fair post-conviction evidentiary hearing; (2) denied his claim of ineffective assistance of counsel; (3) denied his claim that the trial court failed to properly instruct the jury as to lesser included offenses; and (4) denied his claim that the trial court failed to properly instruct the jury on circumstantial evidence. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/burnette_030308.pdf

JOSEPH M. TIPTON, P.J., concurring.
http://www.tba2.org/tba_files/TCCA/2008/burnette_concur_030308.pdf
STATE OF TENNESSEE v. JAMSHID MAGHAMI

Court: TCCA

Attorneys:

Dan. R. Alexander, Nashville, Tennessee, for the appellant, Jamshid Maghami.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

After a bench trial, the Defendant, Jamshid Maghami, was convicted of three counts of unlawfully maintaining an automobile graveyard. The trial court subsequently conducted a sentencing hearing and ordered consecutive terms of thirty days on each count. Five days were ordered to be served in the local jail, with the balance of the sentences to be served on probation. In this direct appeal, the Defendant argues that the evidence is insufficient as a matter of law to support his convictions and that the trial court erred by ordering consecutive sentences. Following a review of the sparse record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/maghamij_030308.pdf
MARCUS ODOM v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Adam T. Dodd, Murfreesboro, Tennessee, for the appellant, Marcus Odom.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William Whitesell, District Attorney General; and David L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Marcus Odom, appeals from the Cannon County Circuit Court’s order dismissing his petition for post-conviction relief. He argues that the dismissal was erroneous because he did not receive the effective assistance of counsel prior to and at the time of the entry of his guilty pleas. Following our review, we conclude that the Petitioner has not demonstrated that his trial counsel was constitutionally ineffective. Consequently, we affirm the post-conviction court’s order of dismissal.

http://www.tba2.org/tba_files/TCCA/2008/odomm_030308.pdf
STATE OF TENNESSEE v. JEREMY C. WATKISS

Court: TCCA

Attorneys:

Michael R. Giaimo, Livingston, Tennessee, and Thomas H. Bilbrey, Assistant Public Defenders, Lafayette, Tennessee, for the appellant, Jeremy C. Watkiss.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Howard Lee Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Jeremy C. Watkiss, was convicted of passing a forged instrument in an amount greater than $10,000 but less than $60,000, a Class C felony. He was sentenced as a Range I standard offender to three years and ordered to serve ninety days in jail and six years on supervised probation. On appeal, the defendant argues that the trial court erred by admitting an affidavit of forgery into evidence in violation of the Confrontation Clauses of the Tennessee and United States Constitutions, and in violation of the Tennessee Rules of Evidence pertaining to admission of hearsay statements. Upon review of the record and the parties’ briefs, we dismiss the defendant’s appeal for failure to file a timely notice of appeal.

http://www.tba2.org/tba_files/TCCA/2008/watkissj_030308.pdf
Constitutionality of HB3043: Constitutionality of video testimony from child victims

TN Attorney General Opinions

Date: 2008-02-29

Opinion Number: 08-38

http://www.tba2.org/tba_files/AG/2008/ag_08-38.pdf
Prosecutorial discretion as to plea-bargaining in DUI cases

TN Attorney General Opinions

Date: 2008-02-29

Opinion Number: 08-39

http://www.tba2.org/tba_files/AG/2008/ag_08-39.pdf
Constitutionality of Partial Birth Abortion Statute and Parental Consent Law

TN Attorney General Opinions

Date: 2008-02-29

Opinion Number: 08-40

http://www.tba2.org/tba_files/AG/2008/ag_08-40.pdf
Requirement that applicants seeking commission as a Notary Public be lawful permanent residents

TN Attorney General Opinions

Date: 2008-02-29

Opinion Number: 08-41

http://www.tba2.org/tba_files/AG/2008/ag_08-41.pdf
TODAY'S NEWS
Legal News
Politics
Passages
Upcoming
TBA Member Services
Legal News
Buchanan appointed to 10th district Circuit seat
Cleveland attorney Ginger Wilson Buchanan was appointed to the 10th Judicial District Circuit Court bench Friday by Tennessee Gov. Phil Bredesen. Buchanan, 38, was one of three applicants for the judgeship who were recommended to the governor by the Judicial Selection Committee. She was appointed to replace Judge John Hagler who resigned Dec. 31, 2007.
The Cleveland Daily Banner has the story
Judge: Dossett's body may not be exhumed
The body of former Knox County District Attorney General Ed Dossett may not be exhumed for a follow-up autopsy, Knox County Criminal Court Judge Richard Baumgartner has ruled for the second time. The autopsy is sought by a team of special prosecutors in the case of Dossett's widow, Raynella Dossett Leath, who is charged in the death of her second husband, David Leath. "A gravesite is a sacred place and should not be disturbed unless it appears to be absolutely essential to the administration of justice," the judge wrote in a decision filed Friday.
The News Sentinel has the details
Mukasey won't prosecute White House aides
U.S. Attorney General Michael Mukasey says the Justice Department won't seek the prosecution of White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers. He said the White House aides involved in the case cannot be prosecuted because they were following legal advice from the Justice Department. Mukasey's refusal further escalates a dispute between the administration and Congress over the firings of nine U.S. attorneys in 2006.
The Washington Post has the story
Harrington named chief policy deputy
Lawrence Harrington, 54, will join the state attorney general's office as chief policy deputy. He will work on special projects and policy initiatives as well as oversee legislative relations and communications strategies. A graduate of Vanderbilt Law School and MTSU, and native of Jackson, Harrington has worked in both the public and private sectors.
Read more about him
Vanderbilt names Zeppos chancellor
Former law professor and current interim chancellor Nicholas S. Zeppos has been named to Vanderbilt University's top position, chancellor. Zeppos, 53, left his constitutional law practice in Washington and moved to Nashville in 1987 to be a law professor at Vanderbilt. He was an associate dean before being named provost and vice chancellor for academic affairs in 2002. He had served as interim chancellor since Gordon Gee left in July to become president at Ohio State University.
Read more in the Tennessean
Prisoners can be dropped from TennCare roll
U.S. District Judge John T. Nixon has agreed to let the state drop prisoners from its TennCare rolls, but the status of thousands more enrollees remains under legal review. The agreement between the state and TennCare advocates will lead to an estimated 1,100 prisoners being removed from state's expanded Medicaid program.
The Commercial Appeal carried this AP story
Editorial: Scrapping Tennessee Plan would be 'step backward'
A Commercial Appeal editorial on March 1 states that tossing the Tennessee Plan in favor of direct elections would be a step backward. It recognizes that wide-open elections are costly, and such judicial elections in other states demonstrate "the weakness of the direct election method, producing judges who survive the process by incurring a huge debt to special interests."
Read the editorial
Adelphia founders appeal rejected
Adelphia Communications founder John Rigas and his son, Timothy, lost their final appeal today of their convictions for fraud that led to the collapse of the nation's fifth-largest cable television company. The Supreme Court rejected the appeal without comment. The elder Rigas, 83, is serving a 15-year prison term, while his son, the former chief financial officer, was sentenced to 20 years in prison.
Law.com tells you more
Politics
Tuke announces run for Senate
Former Democratic Party Chairman and Nashville lawyer Bob Tuke has officially announced his bid for the U.S. Senate.
NewsChannel 5 reports this AP story
Passages
VU professor emeritus Trautman dies
Emeritus Professor Herman L. Trautman, who served on Vanderbilt's law faculty from 1950 to 1977, died Feb. 25. He was 96. A highly respected expert in taxation, Trautman was the last surviving member of a core group of five renowned professors who joined Vanderbilt's law faculty between 1947 and 1957. Contributions may be made to the West End United Methodist Church, Vanderbilt Law School or the charity of your choice.
Read a tribute to him from Vanderbilt University Law School
Upcoming
Delaware Supreme Court justice to speak at UT
On March 6-7, the University of Tennessee College of Law will host noted Delaware jurist Randy J. Holland, a justice on the Delaware Supreme Court. The youngest person ever to be appointed to that court, Holland will discuss "Delaware's Highest Court: Corporate Law and a Lot More."
The Informant has details
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.
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