Puryear nomination dead, senator says

U.S. Sen. Lamar Alexander, R-Tenn., announced yesterday that the nomination of Nashville lawyer Gus Puryear for federal judge is dead for the year, and that the process for filling the Middle District court slot will have to begin again after a new president takes office in January. Alexander blamed the failure on election year politics. Several prison and civil rights groups also have vigorously objected to the nomination.

The Tennessean has the story

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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VELMA LYNN SAUNDERS MANUEL v. DAVIDSON TRANSIT ORGANIZATION

Court: TWCA

Attorneys:

David M. Drobny, Nashville, Tennessee, for the appellant, Davidson Transit Organization.

David E. High and Peter D. Heil, Nashville, Tennessee for the appellee, Velma Lynn Saunders Manuel.

Judge: HARRIS SR.

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) for a hearing and a report of findings of fact and conclusions of law. The employee, Velma Lynn Saunders Manuel, was injured in an automobile accident which occurred as she was returning to her home from receiving medical treatment for a compensable work injury. She sought benefits for the additional injury. Her employer, Davidson Transit Organization, denied the claim. The trial court ruled that the additional injury arose from and in the course of the employment, and awarded 28 percent permanent partial disability to the body as a whole. On appeal, the employer contends that the trial court erred by finding the injury to be compensable. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2008/manuelv_092408.pdf


IN RE: A.N.F. (d/o/b 10/24/99), a Child Under Eighteen Years of Age

Court: TCA

Attorneys:

Betty Stafford Scott, Jackson, TN, for Appellants.

Kelli Barr Summers, Brentwood, TN, for Appellee.

Judge: HIGHERS

This opinion involves two consolidated appeals. The first case involves post-divorce petitions to modify a parenting plan, filed by the husband and the wife, regarding custody of two children. The second case was filed by the wife and a third party, seeking to establish the third party's parentage of one of the two children. For the following reasons, we affirm the trial court's decision in the custody case as modified, and we affirm the trial court's decision in the paternity case.

http://www.tba2.org/tba_files/TCA/2008/anf_092408.pdf


ESTATE OF HILLARD CARTWRIGHT, ET AL. v. STANDARD FIRE INSURANCE COMPANY

Court: TCA

Attorneys:

David E. Danner, Esq., Antioch, Tennessee, for the appellants, the Estate of Hillard C. Cartwright, Wilma C. James.

Jade Rogers Maberry, Gallatin, Tennessee, for the appellee, Standard Fire Insurance Company.

Judge: DINKINS

Wilma C. James and the Estate of Hillard C. Cartwright, challenge the trial court's determination that Ms. James did not have standing to enforce an insurance contract between Mr. Cartwright and Standard Fire Insurance Company because she was neither a party to nor an intended beneficiary of the policy, and that the Hillard Cartwright estate could not enforce the policy because the estate did not have an insurable interest in the property at the time of loss. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/cartwrighth_092408.pdf


MICHELLE CAROL LANGFORD v. DAN B. LANGFORD

Court: TCA

Attorneys:

Dan B. Langford, II, Only, Tennessee, Pro Se.

Megan A. Kingree, Shelbyville, Tennessee, for the appellee, Michelle Carol Langford.

Judge: BENNETT

Father appeals the amount of child support set by the trial court in a default judgment of divorce. Father was ordered to pay support in the amount of $581 per month. Father is incarcerated and argues it was error for the court to base the amount of child support on his pre-conviction earning capacity. Finding the evidence in the record does not preponderate against the trial court's findings, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2008/langfordm_092408.pdf


VICKIE ROBNETT v. EDWARD H. TENISON, JR.

Court: TCA

Attorneys:

James R. Tomkins, Nashville, Tennessee, for the appellant, Edward H. Tenison, Jr.

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Vickie Robnett.

Judge: CLEMENT

The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2008/robnettv_092408.pdf


JENNIFER MCCLAIN SWAN v. FRANK EDWARD SWAN

Court: TCA

Attorneys:

Christopher D. Heagerty, Knoxville, Tennessee for the Appellant, Frank Edward Swan.

James S. Sharp, Jr., and Cecilia S. Petersen, Knoxville, Tennessee for the Appellee, Jennifer McClain Swan.

Judge: SWINEY

Jennifer McClain Swan ("Mother") and Frank Edward Swan ("Father") were divorced in March of 2006 in Knox County Chancery Court ("Chancery Court"). The parties have two minor children born of the marriage ("the Children"). In October of 2006, Mother obtained first an Ex Parte Order of Protection against Father and then a Bridging Ex Parte Order of Protection from the Fourth Circuit Court for Knox County ("Circuit Court"). Over the next few months, Mother filed multiple petitions for contempt alleging that Father had violated the Order of Protection. After a hearing, the Circuit Court entered an order finding and holding, inter alia, that Father had violated the Bridging Order of Protection a total of forty-four times, that Father would serve time in the Knox County Penal Farm, that Mother had a no-contact Order of Protection against Father for ten years, and that Mother would be allowed to relocate outside the state of Tennessee without having to reveal her address to Father. The Circuit Court also entered a modification of the Chancery Court's Permanent Parenting Plan that, inter alia, named Mother the primary residential parent and provided that Father would have co-parenting time with the Children only upon the recommendation and approval of Father's psychologist, the Children's psychologist, the Guardian Ad Litem, and the Court. Father appeals to this Court. We vacate the Permanent Parenting Plan entered by the Circuit Court and affirm the remainder of the Order of Protection.

http://www.tba2.org/tba_files/TCA/2008/swanj_092408.pdf


ERIC L. ANDERSON v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Eric L. Anderson, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General, and Tony Clark, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Eric L. Anderson, appeals the trial court's summary dismissal of his petition for writ of habeas corpus in which he alleged that his pleas of guilty to three counts of aggravated rape were not made voluntarily, knowingly, and intelligently; that he received ineffective assistance of counsel; and that his sentences violate the principles set forth in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 (2007). After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/andersone_092408.pdf


MARCIE A. MURRAY v. REUBEN HODGE, WARDEN

Court: TCCA

Attorneys:

Marcie A. Murray, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Marcie A. Murray, appeals as of right the Davidson County Criminal Court's summary dismissal of her petition for a writ of habeas corpus. The petitioner seeks relief from her sentences of life imprisonment plus twenty years resulting from her convictions in Davidson County for first degree murder and conspiracy to commit first degree murder. The habeas corpus court summarily dismissed her petition for failure to state a cognizable claim. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2008/murraym_092408.pdf


STATE OF TENNESSEE v. MACEO LAJUAN PARKER

Court: TCCA

Attorneys:

Michael A. Colavecchio, Brentwood, Tennessee, for the appellant, Maceo Lajuan Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Amy H. Eisenbeck, Assistant District Attorney General; and Tammy H. Meade, Assistant District Attorney General, for the appellee, the State of Tennessee.

In case no. 2006-C-2041, Defendant, Maceo Lajuan Parker, was indicted in count one for possession with intent to sell or deliver 0.5 grams or more of cocaine, a Class B felony, and in count two for simple possession of marijuana, a Class A misdemeanor. In case no. 2006-C-2070, Defendant, in a joint indictment with co-Defendants Olen Lovelle Marcus, Jr. and Ian Colby Jones, was charged in count three for possession with intent to sell or deliver 0.5 grams or more of cocaine, in count four for simple possession of marijuana, and in count five for possession of drug paraphernalia. Defendant entered a plea of guilty in case no. 2006-C-2041 to the lesser included offense of attempted possession of under 0.5 grams of cocaine, a Class D felony, with an agreed sentence of two years as a Range I, standard offender, and the State agreed to enter a nolo prosequi as to count two. Defendant entered a plea of guilty in case no. 2006-C-2070 to possession of over 0.5 grams of cocaine with an agreed sentence of eight years as a Range I standard offender, with such sentence to be served consecutively to his sentence in case no. 2006-C-2041. As part of the negotiated plea agreement, the State entered a nolo prosequi as to counts four and five of the indictment. Following a sentencing hearing, the trial court imposed the agreed sentences of two years in case no. 2006-C- 2041, and eight years in case no. 2006-C-2070. The trial court ordered Defendant to serve his sentences consecutively because he was on bond when he committed the offense in case no. 2006-C-2070, for an effective sentence of ten years. See T.C.A. section 40-20-111(b). The trial court denied Defendant's request for alternative sentencing, and ordered Defendant to serve his sentences in confinement. In his appeal, Defendant challenges the trial court's denial of his request for alternative sentencing. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/parkerm_092408.pdf


JOSE LUIS QUINTERO a/k/a JOSE VILLALBA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jose Luis Quintero a/k/a Jose Villalba, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General; Tom P. Thompson, District Attorney General Pro Tempore; and David Durham, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Jose Luis Quintero a/k/a Jose Villalba, appeals as of right the Wilson County Criminal Court's summary dismissal of his post-conviction petition challenging his 2002 convictions for two counts of first degree murder because it was filed beyond the one-year statute of limitations. The petitioner contends that his petition is not time-barred because it was filed within one year of the denial of application for a writ of certiorari by the United States Supreme Court. He also contends that the statute of limitations should have been tolled due to his alleged mental incompetence caused by his alleged non-fluency in the English language and marginal literacy in the Spanish language. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/quinteroj_092408.pdf


TODAY'S NEWS

Legal News
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
York named DA for 13th Judicial District
Gov. Phil Bredesen has appointed Crossville attorney Randall A. York as the district attorney general in the 13th Judicial District. The vacancy was created by William E. Gibson's resignation. The 13th Judicial District is composed of Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White Counties.
Read more about the appointment
Supreme Court halts Va. execution
The Supreme Court stopped the execution of a Virginia death row inmate yesterday, a move some say might signal a nationwide halt to lethal injections until the court decides next year whether the procedure amounts to cruel and unusual punishment. It was the second time the justices have stopped an execution since agreeing to determine whether the injections carry a potential for pain that would violate constitutional standards.
The Washington Post reports
DAs' campaign focuses on 'just the facts'
Dan Alsobrooks, district attorney general for the 23rd Judicial District, writes in today's Tennessean that the Tennessee District Attorneys General Conference's campaign "What's the Rush?" does not need to use scare tactics when talking to kids about out-of-wedlock births. "It gives teens 'just the facts'," he says. "And for most...that's scary enough." The program, launched earlier this month, focuses on the financial and legal consequences of teen parenting.
Read his piece in the Tennessean
Protection strengthened for design patents
Patent lawyers say a rare en banc ruling this week by the U.S. Court of Appeals for the Federal Circuit will strengthen protection of design patents. The decision holds that courts should use an "ordinary observer" test, which asks whether the designs are substantially the same in the eyes of an ordinary observer, rather than a "point of novelty" test, which asks whether the design incorporates the novelty of an already-patented design.
Learn more on Law.com
Court clerk clears closet of 'scary stuff'
The McMinn County Circuit Court clerk engaged in some interesting fall cleaning last week -- removing hundreds of rifles, shotguns and other firearms, as well as marijuana and jugs of old moonshine from her office closet. The items were leftover evidence and exhibits from trials, some dating back 40 years.
Tri Cities.com carried this AP story
Disciplinary Actions
Jefferson City lawyer reinstated
C. Douglas Berryhill of Jefferson City has been reinstated to the practice of law in Tennessee after complying with 2007 requirements for continuing legal education.
View the full CLE suspension list
Upcoming
TBA YLD heads back to school
The YLD is going back to school and you are invited to come along. Each fall, the TBA and the Young Lawyers Division visit Tennessee's four law schools and hold networking events and student membership drives. The first visit this year is scheduled for Oct. 2 at the University of Memphis. During the day, TBA will have an informational table in the student lounge from 11 a.m. to 4 p.m. and serve a pizza lunch at noon. In the evening, join students for a networking reception from 5:30 to 7 p.m. at the Grove Grill.
Get more information or RSVP

TBA Member Services
Unlimited free online legal research for TBA members
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
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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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