Nominations open for Access to Justice awards

The Tennessee Bar Association's Access to Justice Committee is soliciting nominations for the 2008-2009 Access to Justice Public Services Awards, including the Ashley T. Wiltshire Public Service Attorney of the Year Award, the Harris Gilbert Pro Bono Award and the Law Student Volunteer Award. These awards will be presented at the TBA Public Service Awards Luncheon, Jan. 17, 2009. The deadline for nominations is Aug. 22. Find out more and submit your nomination here:

http://www.tba.org/committees/AccesstoJustice/atjawards.html

TODAY'S OPINIONS
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STEPHEN E. DePASQUALE, M.D. v. DONALD H. CHAMBERLAIN, M.D., ET AL.

Court: TCA

Attorneys:

John P. Konvalinka and Katherine Higgason Lentz, Chattanooga, Tennessee, for the Appellants, Donald H. Chamberlain, M.D., and Chattanooga Gyn-Oncology, LLC.

James T. Williams and Neil A. Brunetz, Chattanooga, Tennessee, for the Appellee, Stephen E. DePasquale, M.D.

Judge: SWINEY

Stephen E. DePasquale, M.D. ("Plaintiff") was employed by Chattanooga Gyn-Oncology, LLC. Plaintiff's employment was terminated in August 2006. The parties entered into a negotiated settlement agreement (the "Agreement"), whereby Plaintiff was to receive $49,500 in severance pay, conditioned upon his abiding by the terms of the Agreement. The Agreement also provided that if either party defaulted, the non-defaulting party was entitled to attorney fees if suit was filed to enforce the terms of the Agreement. When Plaintiff did not receive payment, he filed this suit to enforce the terms of the Agreement and sought damages in the amount of $49,500, plus interest and attorney fees. Donald H. Chamberlain, M.D. and Chattanooga Gyn-Oncology, LLC ("Defendants") claimed Plaintiff had breached the terms of the Agreement and was not entitled to any severance pay. Defendants also sought an award of attorney fees. Following a trial, the Trial Court determined that Plaintiff had breached the Agreement and was not entitled to any severance pay. The Trial Court further determined that Defendants were not entitled to an award of attorney fees. Defendants appeal claiming the Trial Court erred when it refused to award them attorney fees. Plaintiff raises a separate issue, claiming that the Trial Court erred when it determined that he had breached the Agreement. We reverse the Trial Court's judgment against Plaintiff, and remand for the entry of judgment in favor of Plaintiff for $49,500, plus attorney fees to be determined by the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/depasquales_071508.pdf


STATE OF TENNESSEE v. HEATH BRENT CLARK

Court: TCCA

Attorneys:

Jheri Beth Rich, Lewisburg, Tennessee, for the appellant, Heath Brent Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Mike McCowen, District Attorney General and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Heath Brent Clark, was indicted by the Marshall County Grand Jury for multiple offenses including burglaries, thefts, vandalism and evading arrest. He pled guilty to all the charges. At a sentencing hearing, Appellant was sentenced as a Range II multiple offender to an effective sentence of eighteen years. Appellant asserts on appeal that the trial court improperly denied an alternative sentence and that consecutive sentencing was excessive given the fact that the offenses all occurred during a twenty-four hour period of time. We conclude that the trial court properly denied alternative sentencing and that despite Appellant's waiver of the issue regarding consecutive sentencing, the trial court properly ordered consecutive sentencing. Therefore, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2008/clarkh_071508.pdf


ANTHONY HARRIS v. STATE OF TENNESSEE, STEPHEN DOTSON, WARDEN

Court: TCCA

Attorneys:

Anthony L. Harris, pro se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Anthony Harris, has appealed the trial court's order dismissing his petition for writ of habeas corpus in which Petitioner alleged that he was ineffectively represented and that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/harrisa_071508.pdf


STATE OF TENNESSEE v. JEFFREY MARK KLOCKO

Court: TCCA

Attorneys:

Patrick T. McNally, Nashville, Tennessee, for appellant, Jeffrey Mark Klocko. It is the policy of this Court to refer to minor victims by their initials. For privacy reasons, we will also refer to the victim's mother and brother by their initials.

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant was convicted by a Davidson County jury of three counts of aggravated sexual battery, six counts of sexual battery by an authority figure and one count of assault by offensive or provocative contact in connection with allegations made by his step-daughter, A.R., and her friend, B.M. Following a sentencing hearing, the trial court sentenced Appellant to eight years for each aggravated sexual battery conviction, to be served concurrently, three years for each sexual battery by an authority figure conviction, two of those terms to be served consecutively to each other and consecutively to the concurrent eight-year sentences. The remaining sentences were all ordered to be served concurrently. Appellant's effective sentence was fourteen years. On appeal, Appellant argues that the trial court erred in: (1) denying his motion pursuant to Rule 412 of the Tennessee Rules of Evidence concerning A.R.ís prior sexual conduct; (2) denying his motion for judgment of acquittal upon the close of the State's proof; (3) overruling his objections to certain questions asked by the State and allowing the State to make inflammatory statements during closing and rebuttal arguments; and (4) sentencing Appellant to consecutive sentences. We affirm the trial court's denial of Appellant's motion under Rule 412 and motion for judgment of acquittal. We likewise find no prosecutorial misconduct that warrants the reversal of Appellant's convictions. We have, however, determined that Appellant's case must be remanded for resentencing because the trial court failed to make findings with regard to the imposition of consecutive sentencing. We affirm the Appellant's convictions in all other respects. Therefore, we affirm in part, vacate Appellant's sentence, and remand for resentencing.

http://www.tba2.org/tba_files/TCCA/2008/klockoj_071508.pdf


JOHNNY L. MCGOWAN, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Johnny L. McGowan, Jr., Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Elaine Wilber, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Johnny L. McGowan, Jr., appeals from the trial court's dismissal of his petition for a writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial courtís denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/mcgowanj_071508.pdf


STATE OF TENNESSEE v. ROBERT BRADLEY SPIVEY

Court: TCCA

Attorneys:

John B. Nisbet, III, (on appeal) and Joe L. Finley (at trial), Cookeville, Tennessee, for the Appellant, Robert Bradley Spivey.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany, Assistant Attorney General; William E. Gibson, District Attorney General; Mark E. Gore, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

After a bench trial, the Defendant was convicted of: Driving Under the Influence ("DUI"), third offense; possession of a prohibited weapon; and driving on a revoked license. The trial court sentenced the Defendant to an effective sentence of eleven months and twenty-nine days to be served in jail. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his DUI conviction; and (2) the trial court erred when sentencing him. Finding no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/spiveyr_071508.pdf


STATE OF TENNESSEE v. FRANKLIN DOUG SWEENEY, JR.

Court: TCCA

Attorneys:

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Franklin Doug Sweeney, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Sharon Reddick, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Franklin Doug Sweeney, Jr., was indicted by the Davidson County Grand Jury for one count of arson and one count of vandalism of property valued at over $60,000. Appellant was found guilty by a jury of both charges. The trial court sentenced Appellant to three years for arson and eight years for vandalism as a Range I standard offender. After the denial of a motion for new trial, Appellant sought an appeal. On appeal, Appellant contends that: (1) the trial court erred by failing to allow Appellant to cross-examine witnesses on various issues; (2) Appellant cannot be convicted of vandalizing property in which he has a possessory interest; (3) the trial court should have instructed the jury to reduce the value of the property vandalized by the amount of Appellant's interest in the property; and (4) the trial court erred by denying alternative sentencing. Following a review of the record and the parties briefs, we conclude that the trial court properly ruled on evidentiary issues, that the evidence supported the convictions, and that the trial court properly denied alternative sentencing. Further, we conclude that the trial court's failure to instruct the jury as to the effect of Appellant's interest in the value of the property vandalized was harmless error. Accordingly, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2008/sweeneyf_071508.pdf


FREDRICK TUCKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Isaac T. Conner, Nashville, Tennessee, for the appellant, Fredrick Tucker.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Fredrick Tucker, appeals the Davidson County Criminal Courtís denial of his petition for post-conviction relief from his jury conviction for child rape and resulting twenty-one-year sentence. He contends that he received the ineffective assistance of counsel because his trial attorney (1) failed to attack the victimís credibility aggressively during cross-examination and (2) failed to call any favorable witnesses on his behalf. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/tuckerf_071508.pdf


Applicability of Section 6 of Chapter 170 of Public Acts of 2007

TN Attorney General Opinions

Date: 2008-07-15

Opinion Number: 08-123

http://www.tba2.org/tba_files/AG/2008/ag_08-123.pdf

TODAY'S NEWS

Legal News
TennBarU CLE
TBA Member Services

Legal News
State workers say Ford did not influence TennCare decisions
Former state senator John Ford's lawyer opened his defense today, calling four state employees involved in the selection of a TennCare dental services contractor, all of whom testified that Ford never contacted them nor attempted to influence the process of awarding the contract to Doral Dental Services.

Later, questions arose over a key "missing witness" in the case -- the Doral Dental Services founder and former owner, Craig R. Kasten, who signed a consulting agreement with Ford's firm in 2002. Ford's defense attorney, Asst. Federal Public Defender Isaiah S. Gant, told U.S. District Judge Todd J. Campbell that it now appears Kasten will be present Wednesday but that he is "confident that Mr. Kasten" will invoke his Fifth Amendment rights and not testify in any detail.
Follow the trial in the Commercial Appeal
Appeals court sends House case back to district court
A three-judge federal appeals court panel says it can't determine if Tennessee should be barred from retrying former death row inmate Paul House and is sending the case back to district court for "further fact-finding."
The Tennessean reported this AP story
Report of city investigation follows court clerk's resignation
A report released today by the City of Chattanooga says that City Court Clerk Edward C. Hammonds had a "strong pattern" of sending sexually explicit e-mails to subordinates as well as starting sexually explicit conversations, the Chattanooga Times Free Press reports. Hammonds resigned Monday amid the allegations.
Read more about the case
Judge: Detainees should testify in trial
Attorneys for Salim Ahmed Hamdan, Osama bin Laden's former driver, said Monday that they intend to call other detainees to testify at his upcoming military trial in Guantanamo Bay, entangling the landmark proceeding in yet another difficult legal issue. "I want the government to know that I see this as relevant, necessary and exculpatory," the judge said. "I just believe the defendant cannot have a fair trial without this evidence."
The Washington Post has the story
Maury Co. litigation tax may jump by $40
The Maury County Commission is considering increasing the litigation tax from $10 to $50 to help pay for the building of a new criminal justice center. Maury County handles about 35,000 civil and criminal cases a year, said Kathy Kelley, the county's circuit court clerk. County Mayor Jim Bailey said he expects the county will solicit bids to build the criminal justice center early in 2009. The project was estimated to cost about $20 million.
The Columbia Daily Herald reports
4 Tennessee firms in Top 200 for pro bono, AmLaw says
American Lawyer Magazine lists four firms with Tennessee offices in its "Pro Bono Scorecard 2008," a ranking of the 200 largest law firms in the country as to their pro bono performance in 2007. The firms include Adams and Reese (#142), Baker Donelson (# 144), Husch Eppenberger (#154), and Ogletree Deakins (#181). The list is determined using the nation's 200 highest-grossing firms, ranked by their pro bono score on the most recent Am Law 200 survey. Half of the score comes from the average number of pro bono hours per lawyer, while the other half represents the percentage of lawyers who perform more than 20 hours of pro bono work.
Read the list
Rove says he'll talk to lawmakers, just not testify
Former White House adviser Karl Rove on Monday defended his defiance of a congressional subpoena, saying he's offered lawmakers other ways to question him about allegations of political pressure at the Justice Department. "It's not between me and Congress. I've not asserted any personal privilege. This is between the White House and Congress," Rove said. Rove, now a Fox News contributor, was responding to questions from Television Critics Association members during a Fox News panel session.
The Daily News Journal carried this AP story
Judge: Tiffany bears burden to protect own trademark
A federal judge in New York has ruled against Tiffany in its suit claiming eBay failed to prevent sales of counterfeit jewelry. U.S. District Judge Richard Sullivan turned down Tiffany's suggestion that eBay should be responsible for removing listings for fake goods before they are published. "Tiffany must ultimately bear the burden of protecting its trademark," Sullivan said. His decision comes after a two-day bench trial last November.
ABAJournal.com connects you to the story
TennBarU CLE
This week's webcast looks at Offer of Judgment Rule
The TBA's new TennBarU Webcasting program gives you easy access to the next generation of online education. When you join in a TennBarU Webcast, you'll be in the middle of the classroom, whether you are at home, in your office or on the road. These programs let you watch programs as they occur or at your convenience, take part in polls, follow along with Powerpoint presentations and ask questions or raise issues for speakers to address. The next webcast will be at noon Thursday featuring Laura Kidwell from the Attorney General's office providing an introduction and discussion of basic issues of the Offer of Judgment Rule.
See what else TennBarU has coming this summer.
TBA Member Services
UPL enforcement resources available
The TBA Standing Committee on the Protection of the Public from the Unauthorized Practice of Law encourages all lawyers in Tennessee to be alert to the unauthorized practice of law (UPL), which harms Tennessee consumers. Resources now are available to help lawyers report UPL to local bar associations and the state attorney general. Local bars that do not already have a process in place for handling UPL complaints, may want to check out a sample protocol on TBALink.
Visit the UPL webpage for more information

 
 
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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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