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.
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.

JOEL DAVIS MOULTRIE v. GOODYEAR TIRE & RUBBER COMPANY ET AL.

Court: TWCA

Attorneys:

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.

Judge: HARRIS

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.

http://www.tba2.org/tba_files/TSC_WCP/2008/moultriej_080408.pdf


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

Court: TCA

Attorneys:

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.

Judge: BENNETT

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).

http://www.tba2.org/tba_files/TCA/2008/cah_080408.pdf


ROBERT T. HOGAN v. ILLINOIS CENTRAL RAILROAD COMPANY

Court: TCA

Attorneys:

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.

Judge: FARMER

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.

http://www.tba2.org/tba_files/TCA/2008/hoganr_080408.pdf


GEORGE MATTHEWS v. JOAN LAWSON

Court: TCA

Attorneys:

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.

Judge: BENNETT

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.

http://www.tba2.org/tba_files/TCA/2008/matthewsg_080408.pdf


STATE, EX REL. RALPH B. POTTER, ET AL. V. TRACY T. HARRIS, ET AL.

Court: TCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCA/2008/potterr_080408.pdf


IN RE: THE ESTATE OF MATTIE E. STRINGFIELD

Court: TCA

Attorneys:

Louis Hofferbert, Knoxville, Tennessee, Attorney/Appellant.

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

Judge: SWINEY

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.

http://www.tba2.org/tba_files/TCA/2008/stringfieldm_080408.pdf


JACKIE F. CURRY v. STATE OF TENNESSEE & HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/curryj_080408.pdf


NIKIA GRASTY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/grastyn_080408.pdf


STATE OF TENNESSEE v. LANA BILLINGS HENRY

Court: TCCA

Attorneys:

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.

Judge: WELLES

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.

http://www.tba2.org/tba_files/TCCA/2008/henryl_080408.pdf


GEORGE A. JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/johnsong_080408.pdf


STATE OF TENNESSEE v. GERALD SANFORD

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/sanfordg_080408.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Forum on judicial district boundaries turns testy
At a public forum at the Hamblen County Courthouse last week, judges, prosecutors, public defenders and court clerks denounced any modification of the 3rd Judicial District's boundaries. Representatives of the 4th Judicial District also argued that perceived caseload discrepancies -- which motivated the state's inquiry into district boundaries -- don't exist in East Tennessee.
The Citizen Tribune has the story
A second concern aired by a number of judges at the forum was that the state-funded study does not address chronic docket overload in general sessions court.
Read about that issue
Reeves appointed to Judicial Selection Commission
Tennessee House Speaker Jimmy Naifeh has appointed Knoxville attorney Pamela L. Reeves -- with Reeves, Herbert & Murrian PA -- to the Judicial Selection Commission. Reeves will begin serving on Sept. 1, filling the seat being vacated by Jef Feibelman of Burch, Porter & Johnson PLLC in Memphis. Reeves was one of three nominees submitted to the speaker in June by the Tennessee Bar Association's Board of Governors.

Immigrant hired lawyer who faced disbarment
An immigrant facing a traffic violation and possible deportation knew she needed a lawyer. What she didn't know was that she and her husband hired one who had been censured four times and was facing disbarment. Gregg Ramos, a former president of the Nashville Bar Association, told the Tennessean that the role attorneys play for such clients is particularly important. "She's especially vulnerable. Court proceedings are new; the language is new to her."
Read more
Assistant DA convicted of DUI
Lawrence County Assistant District Attorney John Castleman pleaded guilty to driving under the influence of prescription antidepressants after an automobile accident on May 7. A first-time offender, Castleman was sentenced Friday to 48 hours in jail and fined $350 and court costs. According to the Columbia Daily Herald, District Attorney General Mike Bottoms announced he will keep Castleman on in his current position once he is released.

Texas appeals court rejects world court's appeal
A Texas court has refused to stop the impending execution of a man whose case has spurred two rulings by the International Court of Justice. The Texas Court of Criminal Appeals refused to issue a stay of execution Friday, SCOTUSblog reports, in the case of Jose Medellin. A request for a stay is now pending with Justice Antonin Scalia. The execution will be carried out Tuesday unless the U.S. Supreme Court or Texas Gov. Rick Perry decide to intervene.

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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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