Tennessee Plan supporters speak out on retention vote

Gov. Phil Bredesen was in Memphis last week for the ceremonial swearing in of new Criminal Appeals Court Judge Camille McMullen and used the opportunity to reaffirm his commitment to the Tennessee Plan. The Memphis Daily News reports he stated that preservation of the plan was a "must-do" for the state. In remarks made to the Mountain Press, Supreme Court Justice Gary Wade said the plan is a far superior and more productive method for choosing appellate judges. Speaking about how the plan protects the independence of the judiciary Wade said, "You do feel more able to apply the rule of law without the influence of politics." Finally, today's editorial in the Knoxville News Sentinel calls on Tennesseans to support retention of the seven judges who will appear on Thursday's ballot, even if they have misgivings about the process.
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Court: TWCA


James M. Glasgow, Jr. and Kirk L. Moore, Union City, Tennessee, for the appellant, Goodyear Tire & Rubber Company

Jay E. DeGroot, Jackson, Tennessee, for the appellee, Joel Davis Moultrie.


This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (Supp. 2007) for a hearing and a report of findings of fact and conclusions of law. After working an evening shift at his job, the employee awoke the next morning with severe back pain. He sought medical treatment through his family physician who referred him to a neurosurgeon. Within a few days, he had surgery to repair bone spurring and degenerative changes in his cervical spine. After the surgery, he informed his supervisor that he believed his job caused his condition. He made a workers' compensation claim, which his employer denied. The trial court found that his injury was work-related and awarded 50% permanent partial disability to the body as a whole. The employer has appealed, contending that the claim is barred by failure to comply with the notice requirement of the workers' compensation law, and that the employee did not sustain his burden of proof concerning causation. We affirm the judgment of the trial court.


IN RE C.A.H. & K.M.H.

Court: TCA


William J. Eledge, Lawrenceburg, Tennessee, for the appellant, Anthony H.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lauren S. Lamberth, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.


Father appeals the trial court's decision terminating his parental rights. Because the Department of Children's Services failed to show by clear and convincing evidence that it made reasonable efforts to make it possible for the children to return home, we reverse with respect to the two statutory grounds upon which the trial court based its decision: substantial noncompliance with the permanency plans and persistence of conditions. We further remand for the trial court to make findings of fact and conclusions of law with respect to the third ground for termination alleged in the petition: abandonment pursuant to Tenn. Code Ann. section 36-1-102(1)(A)(iv).



Court: TCA


R. Christopher Gilreath, Memphis, Tennessee, for the appellant, Robert T. Hogan.

M. Beth Rainwater, Memphis, Tennessee and Michael C. Hermann, Thomas R. Peters, and Mark R Kurz, Belleville, Illinois, for the appellee, Illinois Central Railroad Company.


Plaintiff failed to comply with the trial court's discovery order to produce two witnesses for deposition within forty-five days, and Defendant moved to dismiss under Tennessee Rule of Civil Procedure 37.02. Plaintiff appeals, asserting the trial court abused its discretion where there was no evidence of willful or dilatory conduct by Plaintiff. We vacate and remand.



Court: TCA


George Matthews, Nashville, Tennessee, Pro Se.

Andrew D. McClanahan, Attorney General Robert E. Cooper, Jr., and Kevin C. Klein, Nashville, Tennessee, for the appellee, Joan Lawson.


An inmate sued his public defender for malpractice in his criminal trial. The trial court dismissed the case for failure make a partial payment of the filing fee and failure to obtain post-conviction relief. We affirm based upon the inmate's failure to obtain post-conviction relief, an issue that was either not appealed or waived.



Court: TCA


J. Philip Harber, Clinton, Tennessee, for the appellants, Ralph B. Potter and Sam McKinney.

John D. Schwalb, Knoxville, Tennessee, for the appellees, Tracy T. Harris, in her official capacity as Administrator of Elections for Carter County, Tennessee, and Sidney Davidson, Leonard Lewis, Bud Whitehead, Millard Garland, and Dean Perry, in their official capacities as Commissioners of Election for Carter County, Tennessee.

Judge: LEE

Relators submitted a signed referendum petition to repeal the local options sales tax to the county election commission for certification; however, the commission determined that many signatures on the petition were invalid and the petition lacked a sufficient number of valid signatures to meet the required statutory threshold and, therefore, declined to certify the petition. Relators filed a petition for writ of mandamus, and the trial court granted summary judgment in favor of the commission. We affirm the judgment of the trial court upon our determination that the relators failed to establish a genuine issue of material fact as to whether the commission's actions were arbitrary and capricious; as to whether there was an abridgement of the relators' constitutional rights to vote, engage in free political speech, or petition the government for redress of grievances; and as to whether the number of valid petition signatures was sufficient upon the commission's recount/reevaluation of petition signatures after suit was filed.



Court: TCA


Louis Hofferbert, Knoxville, Tennessee, Attorney/Appellant.

Bruce Hill, Knoxville, Tennessee, for the Appellee, Doris Powers.


This appeal involves whether a will was properly executed as required by Tenn. Code Ann. section 32- 1-104. The statute requires the attesting witnesses to "sign" the will in the presence of the testator and in the presence of each other. The witnesses to the will in the present case initialed the first two pages of the will. On the third and final page, the names of the witnesses were typed onto the will, as opposed to actually being signed by the witnesses. The witnesses also provided affidavits of attesting witnesses pursuant to Tenn. Code Ann. section 32-2-110. The Trial Court held that the will was not properly executed. We hold that initialing the first two pages and providing affidavits of attesting witnesses pursuant to Tenn. Code Ann. section 32-2-110 is insufficient to comply with the explicit requirements of Tenn. Code Ann. section 32-1-104 that the witnesses sign the will. The judgment of the Trial Court that the will was not properly executed is, therefore, affirmed.



Court: TCCA


Jackie F. Curry, Pro Se, Mountain City, Tennessee.

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

Judge: SMITH

A Johnson County jury convicted Petitioner of three separate counts of aggravated rape. The trial court sentenced Petitioner to three twenty-two-year sentences to be run consecutively to each other. Petitioner was unsuccessful on appeal. State v. Jackie F. Curry, No. E2000-02475-CCA-R3-CD, 2001 WL 872789 (Tenn. Crim. App., at Knoxville, Aug. 2, 2001), perm. app. denied (Tenn. Nov. 5, 2001) Petitioner filed a petition for a writ of habeas corpus. The habeas corpus court summarily dismissed the petition. Because Petitioner did not adhere to the mandatory requirements for filing a petition for writ of habeas corpus, we affirm the habeas corpus court's summary dismissal.



Court: TCCA


Robert L. Vogel, Knoxville, Tennessee, for the appellant, Nikia Grasty.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe and John Bledsoe, Assistant Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Nikia Grasty, appeals the dismissal of his petition for writ of habeas corpus. Discerning no error, we affirm the judgment of the habeas corpus court.



Court: TCCA


Deborah B. Lonon, Assistant Public Defender, Blountville, Tennessee, for the appellant, Lana Billings Henry.

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


The Defendant, Lana Billings Henry, appeals from the sentencing decision of the Sullivan County Criminal Court. In October 2007, the Defendant entered guilty pleas to multiple counts of forgery and theft. Under the terms of the agreement, the Defendant received an effective six- year sentence as a Range II, multiple offender, and the manner of service was submitted to the trial court. Following a sentencing hearing, the trial court ordered the Defendant to serve her sentences in the Department of Correction. On appeal, the Defendant argues that a sentence of community corrections was appropriate. After review, we affirm the sentencing decision of the trial court.



Court: TCCA


James R. Hickman, Jr., Sevierville, Tennessee, for the appellant, George A. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Steven Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Petitioner, George A. Johnson, was convicted by a Sevier County Jury of rape and statutory rape. As a result, he received an effective sentence of twenty years. Petitioner appealed his convictions and sentence to this Court. See State v. George A. Johnson, No. E2003-02881-CCA-R3-CD, 2005 WL 225025, at *1 (Tenn. Crim. App., at Knoxville, Jan. 31, 2005), perm. app. denied (Tenn. May 2, 2005). Petitioner subsequently sought post-conviction review on the basis of ineffective assistance of counsel. The post-conviction court denied the petition, determining that Petitioner failed to carry the burden required for post-conviction relief. We agree and, therefore, affirm the denial of the post-conviction petition.



Court: TCCA


Robert Wilson Jones, District Public Defender; and Harry Sayle and Time Albers, Assistant District Public Defenders (at trial); and Garland Ergüden, Assistant District Public Defender (on appeal), for the appellant, Gerald Sanford.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michael Davis and Greg Gilbert, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Gerald Sanford, appeals his Shelby County Criminal Court conviction on one count of first degree murder. In this appeal, he contends that there was insufficient evidence to convict him of the crime. We affirm the judgment of the trial court.



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