Last minute effort on Tennessee Plan falls short

Lt. Gov. John Wilder's final effort last night to extend the life of the Judicial Selection Commission fell short of the votes it needed to be discharged from committee. The vote to call the bill directly to the Senate floor failed 15-18, with all 16 Republicans voting against the move. They were joined by Senators Rosalind Kurita, D-Clarksville, and Mike Williams, I-Maynardville. The commission is slated to go into a one-year wind down starting July 1. It will expire in 2009 unless lawmakers vote to extend it. Read about it in the City Paper:

http://nashvillecitypaper.com/news.php?viewStory=60360

TODAY'S OPINIONS
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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.

RICKIE B. CLAYTON v. ROSIE B. CLAYTON

Court: TCA

Attorneys:

Terry R. Clayton, Nashville, TN, for Appellant.

Patricia A. Woods, Memphis, TN, for Appellee.

Judge: HIGHERS

This appeal arises out of divorce proceedings. The parties were married for fourteen years and had two children. The trial court declared the parties divorced based on stipulated grounds; divided the marital estate; designated the mother primary residential parent and the father alternate residential parent; and ordered the father to pay the mother $200 per month in alimony in futuro. The father appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/claytonr_052108.pdf


STATE OF TENNESSEE v. J.R.

Court: TCA

Attorneys:

Keith E. Haas, Assistant Public Defendant, Newport, Tennessee, for the Appellant, J.R.

Robert E. Cooper, Jr., Attorney General and Reporter, and John H. Bledsoe, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee.

Judge: SWINEY

J.R. was adjudged delinquent by the Trial Court for committing incest in violation of Tenn. Code Ann. section 39-15-302 (2006). The issue on appeal is whether a blood relationship of brother and sister under Tenn. Code Ann. section 39-15-302 no longer exists after the parental rights of the siblings' parents are terminated and one of the siblings later is adopted. The Trial Court held that the siblings retain the status of brother and sister for purposes of the incest statute even if their parents' parental rights are terminated and one of the siblings later is adopted. We agree and affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/jr_052108.pdf


JOSH W. NEWELL v. JEFF MAITLAND, ET AL.

Court: TCA

Attorneys:

Sam J. Watridge, Humboldt, TN, for Appellant.

James I. Pentecost, Jon A. York, Brent S. Usery, Jackson, TN, for Appellees, Gibson County, Joe Shepard, Ronnie Riley and Jeff Maitland.

Robert E. Cooper, Jr., Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel, Nashville, TN, for Appellees Perry Sharpe and Beth Dudley.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Heather C. Ross, Senior Counsel, Nashville, TN, for Appellee District Attorney General Garry Brown.

Judge: HIGHERS

This appeal involves a negligence action filed after the plaintiff was charged with child rape. The plaintiff sued the sheriff's deputy and Department of Children's Services employee who interviewed the alleged victim; the sheriff; the county mayor; the county itself; a Department of Children's Services supervisor; and the District Attorney General. The plaintiff contended that if a "child protective team" had interviewed the victim, he would not have been arrested and charged with child rape. The trial court dismissed the claims against the state employees for lack of jurisdiction, and it dismissed the claims against the county employees pursuant to the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. section 29-20-101, et seq. The sheriff's deputy was also named as a defendant in his individual capacity, and the trial court granted his motion for summary judgment. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/newellj_052108.pdf


STATE FARM FIRE & CASUALTY CO. v. DAVID STONE, ET AL.

Court: TCA

Attorneys:

David C. Hollow, Knoxville, Tennessee, for the appellant, State Farm Fire & Casualty Co.

David T. Black, Maryville, Tennessee, for the appellees, David Stone, individually and as surviving spouse of Rhonda Stone, and Laura Beth Stone, a minor, by and through her surviving parent, David Stone.

Judge: SUSANO

State Farm Fire & Casualty Co. filed a "Complaint for Declaratory Relief" with respect to the claim of David Stone seeking damages arising out of the death of his wife, Rhonda Stone, who was killed by the alleged negligent driving of an uninsured motorist. At the time of the accident, the Stones had a personal liability "umbrella" insurance policy with State Farm, which provided $1 million in personal liability coverage above and beyond the Stones' underlying insurance policies, including their automobile liability insurance policy. Their umbrella policy does not, by its language, include uninsured motorist ("UM") coverage. However, Mr. Stone argues that UM coverage should be read into their umbrella policy because the Stones did not reject such coverage in writing, which Mr. Stone says is required by the applicable statute. State Farm argues that the statute in question, Tenn. Code Ann.section 56-7-1201(a) (2000), applies only to automobile insurance policies and does not impose the rejection-in-writing requirement on umbrella policies. Based upon the parties' "Agreed Stipulations," the lower court, at a bench trial, agreed with Mr. Stone's interpretation of the statute. We disagree with the interpretation placed upon the statute by Mr. Stone and the trial court. Accordingly, we reverse.

http://www.tba2.org/tba_files/TCA/2008/statefarm_052108.pdf


CLARENCE CARNELL GASTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Clarence Carnell Gaston, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Lacy Elaine Wilber, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The Petitioner, Clarence Carnell Gaston, appeals the lower court's denial of his petition for habeas corpus 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. The Petitioner has failed to comply with the procedural prerequisites for seeking habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2008/gastonc_052108.pdf


ROBERT KIMBREL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert Kimbrel, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Preston Shipp, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The Petitioner, Robert Kimbrel, appeals the trial court's denial of his petition for coram nobis 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. We conclude that the State's motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2008/kimbrelr_052108.pdf


STATE OF TENNESSEE v. GREGORY DERRICK MANESS

Court: TCCA

Attorneys:

Chadwick G. Hunt, Savannah, Tennessee, for the Appellant, Gregory Derrick Maness.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Gregory Derrick Maness, appeals the sentencing decision of the Chester County Circuit Court ordering that his sentences be served in confinement. Following Maness' guilty pleas to the filing of a false report, a Class D felony, and to the misdemeanor crimes of domestic assault and theft, Maness received an effective four-year sentence in the Department of Correction. On appeal, Maness raises the sole issue of whether the trial court erred "by sentencing [him] to the Tennessee Department of Corrections [sic], rather than an available alternative to incarceration?" After review, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/manessg_052108.pdf


STATE OF TENNESSEE v. HOLDEN GREGORY REECE

Court: TCCA

Attorneys:

Thomas V. Testerman, Newport, Tennessee, for the appellant, Holden Gregory Reece.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General; Amanda H. Inman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In March 2006, the defendant, Holden Gregory Reece, was indicted on one count of theft of property valued at $1000 or more, one count of aggravated burglary, four counts of burglary, and one count of vandalism of $1000 or more. In July 2006, the defendant pled to the offenses as alleged in the indictment; as a condition of his plea, he was placed on judicial diversion for six years and ordered to pay restitution, with the amount of restitution to be determined at a later date. Following an April 2007 restitution hearing, the trial court ordered restitution in the amount of $38,761.35, with the defendant and co-defendant John Paul Golden held jointly and severally liable for the restitution amount. Reece appeals, arguing that the trial court's imposed restitution was excessive in that a portion of the damages as computed in the restitution order were caused in a separate criminal episode, and as such the imposition of joint and several liability for the entire restitution amount was improper. The defendant also asserts that the trial court did not take his inability to pay into consideration when computing the restitution amount. After reviewing the record, we affirm the restitution amount and joint and several liability imposed by the trial court.

http://www.tba2.org/tba_files/TCCA/2008/reeceh_052108.pdf


JEFFREY A. SIMMONS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeffrey A. Simmons, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel West Harmon, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Jeffrey A. Simmons, was denied the writ of habeas corpus by the Hardeman County Circuit Court based upon his claims that (1) the indictments were void because they listed "Jane Doe" as the victim, (2) the indictments were void because they failed to allege a mens rea, and (3) the trial court was without jurisdiction to sentence him because it did not comply with Tennessee Code Annotated section 40-35-209(a) by not sentencing him within forty-five days of conviction. Upon review, we hold that the trial court properly dismissed the petition and affirm its order dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2008/simmonsj_052108.pdf


Constitutionality of HB 82 as Amended

TN Attorney General Opinions

Date: 2008-05-21

Opinion Number: 08-112

http://www.tba2.org/tba_files/AG/2008/ag_08_112.pdf

Petition to Amend Knox County Charter

TN Attorney General Opinions

Date: 2008-05-21

Opinion Number: 08-113

http://www.tba2.org/tba_files/AG/2008/ag_08_113.pdf

TODAY'S NEWS

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Legal News
Court of Appeals nominees submitted to governor
The Judicial Selection Commission met today in Jackson and approved a slate of three candidates for Gov. Phil Bredesen to consider for filling a vacancy on the Court of Appeals, western division. The nominees are: William H. Haltom Jr. with Thomason, Hendrix, Harvey, Johnson & Mitchell PLLC in Memphis; Puryear attorney Todd A. Rose with Burch, Porter & Johnson PLLC; and 29th Judicial District Chancellor James Steven Stafford of Dyersburg. The vacancy was created by the death of Judge W. Frank Crawford.

Jury acquits Ford on federal bribery charges
After deliberating for the better portion of two days, a federal jury this afternoon acquitted former Memphis City Council member Edmund Ford Sr. on charges of taking bribes in 2006 in exchange for his support on a development and billboard project. Ford argued persuasively that the money he received was a loan.
The Commercial Appeal has more
Boult Cummings veterans start new law firm
Three attorneys with ties to one of Nashville's largest law firms are branching out on their own. Gino Bulso and George Nolan, trial lawyers at Boult Cummings Conners & Berry PLC will team up with Bill Leader, a former member of Boult Cummings, to form a new firm specializing in trial and appellate court practice. Initially called Leader & Bulso PLC, the firm's name will change to Leader, Bulso & Nolan PLC when Nolan joins the new practice July 15.
The Nashville Business Journal has more on the move
Judge's order baffles lawyers
Members of the Blount County legal community are scratching their heads over an order from Circuit Court Judge Mike Meares demanding that four lawyers appear in his courtroom and produce documents related to local court procedures. The order, which was not attached to any docketed case, was served on the attorneys after 10 p.m. on a Saturday night -- a move that created even more concern. Meares declined to comment about the order until he reviewed the documents and discussed them with his fellow judges.
The News Sentinel has more
Commissioners can't decide on jail issue
Putnam County commissioners met this week to approve a new jail annex to ease overcrowding at the justice center. The only problem was that of the three locations under consideration, they could not agree on one.
Cookeville Herald-Citizen reports
Retired UT professor indicted
Retired University of Tennessee professor J. Reece Roth was indicted yesterday by a federal grand jury on charges he violated the Arms Export Control Act while working at the school. The indictment accuses Roth of giving two graduate research assistants -- one from Iran and another from the People's Republic of China -- unfettered and unauthorized access to sensitive military arms information and then lying about it.
Read about it in the News Sentinel
Disciplinary Actions
Knoxville attorney suspended
On May 13, the Supreme Court of Tennessee suspended Carleton E. Bryant for six months, but waived the suspension and instead placed him on probation, subject to certain conditions, for the same time period. The court found that Bryant violated disciplinary rules by representing clients who had conflicts of interest with one of his existing clients, negligently allowing an employee to file a pleading with no merit, and negligently signing a document that contained factual misrepresentations.
Read the BPR's release
In a related story, Knox County Sheriff Jimmy "J.J." Jones said this afternoon his office will investigate the circumstances surrounding the suspension of Bryant, who represents the sheriff's office. Jones said an internal affairs review will be convened to determine if any general orders of the office have been violated, reports the News Sentinel.
Read more
Nashville lawyer suspended
On May 14, the state Supreme Court suspended Floyd Nolton Price for a period of three years, retroactive to March 14, 2005. The court also ordered Price to make restitution in the amount of $3,000 to a former client, submit another fee dispute to the Nashville Bar Association's fee dispute resolution process, and pay the expenses and costs of his disciplinary proceeding. The court found that Price neglected and abandoned clients, practiced law while suspended, and failed to communicate with clients, competently represent clients and comply with court orders.
Download the BPR notice
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Privilege tax due June 1
Tennessee's Professional Privilege Tax, as described in Tenn. Code Ann. Section 67-4-1701, is due June 1 for more than 20 professions, including lawyers.
Get more information and pay the $400 assessment online
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TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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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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