Holder announces court's emphasis on access to justice

Chief Justice Janice Holder told attendees of the Tennessee Alliance for Legal Services Statewide Equal Justice Conference yesterday that access to justice is the new strategic priority for the Supreme Court. As part of its effort, Holder told the gathering in Manchester that the court has created a new ATJ coordinator position and is reviewing proposed ATJ-related rules submitted by the Tennessee Bar Association. She also said the court supports the TBA's push to get law firms to adopt formal pro bono policies. TBA President Buck Lewis was unable to address the gathering live, but spoke to the group by webcast earlier in the day.
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.

DENNIS PYLANT v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Eric S. Cartee and Paul Bruno (oral argument) Nashville, Tennessee, for the appellant, Dennis Pylant.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Senior Counsel; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: CLARK

We accepted this appeal to determine whether the post-conviction court erred in denying Petitioner Dennis Pylant's claim of ineffective assistance of counsel at trial. In 2001, a jury convicted Petitioner of the first degree felony murder of two-year-old S.J.D. in the perpetration of aggravated child abuse. The Court of Criminal Appeals affirmed Petitioner's conviction and this Court denied Petitioner's application for permission to appeal. Petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel at trial. At the hearing, Petitioner adduced testimony about self-incriminating statements made by the victim's mother but which trial counsel did not present to the jury at trial. The post-conviction court struck this testimony as hearsay and denied Petitioner's claim for relief. The Court of Criminal Appeals affirmed the post-conviction court. We hold that the post-conviction court erred in striking the proffered testimony as hearsay. We also hold that, because the post-conviction court made no credibility findings with respect to the proffered witnesses, we are unable to reach the merits of Petitioner's claim. Accordingly, we reverse the Court of Criminal Appeals' judgment in this case and remand for a new post-conviction hearing.

http://www.tba2.org/tba_files/TSC/2008/pylantd_092508.pdf


HOWELL ANDERSON d/b/a ANDERSON TRUSS v. SEQUATCHIE COUNTY, ET AL.

Court: TCA

Attorneys:

William W. Burton, Murfreesboro, Tennessee, for the appellant, Howell Anderson, d/b/a Anderson Truss Company.

L. Thomas Austin, Dunlap, Tennessee, for the appellee, Sequatchie County; Joe A. Conner, for the appellees, Galloway Enterprises, Inc., and George Galloway

Judge: COTTRELL

The plaintiff appeals a jury verdict finding that he failed to fulfill a condition in a conditional sales contract that would have required Sequatchie County to convey a parcel of property to him. The County appeals the trial court's suggestion of additur that would award plaintiff interest on the purchase price the County attempted to reimburse plaintiff. We affirm the jury verdict but reverse the additur.

http://www.tba2.org/tba_files/TCA/2008/anderson_092508.pdf


ROGER MOON v. DALE KEISLING

Court: TCA

Attorneys:

Harold E. Deaton, Jamestown, Tennessee, for the appellant, Dale Keisling.

Phillips M. Smalling, Byrdstown, Tennessee, for the appellee, Roger Moon.

Judge: CLEMENT

The defendant in an action to quiet title to real property appeals the trial court's dismissal of his Counter-Complaint. An Order of Summary Judgment in favor of the plaintiff that was dispositive of all issues in the action to quiet title had been entered months before the defendant made his motion to amend his answer and to file a counter-complaint. In the post-judgment motion, the defendant contended that the issues he desired to raise in the proposed Amended Answer and Counter-Complaint had been raised but not resolved by the trial court. The trial court granted the motion to amend. Subsequently, the trial court dismissed the Counter-Complaint finding that it raised no new issues. We have determined the Order of Summary Judgment resolved all issues between the parties and no motions for relief pursuant to Tenn. R. Civ. P. 59 or 60 had been filed. Therefore, the Order of Summary Judgment became a final, non-appealable judgment thirty days after its entry. Once the Order became a final, non-appealable judgment, the trial court lacked jurisdiction to entertain the defendant's motion to amend or to consider any issues arising from the amended pleadings. We, therefore, hold that the Order of Summary Judgment entered on April 18, 2005 is the final judgment in this matter. We also vacate the order granting the defendantís motion for leave to amend his pleadings and remand with instruction for the trial court to enter an order denying Keislingís oral motion to amend and striking his Answer and Counter-Complaint.

http://www.tba2.org/tba_files/TCA/2008/moonr_092508.pdf


CATHERINE SMITH V. SALLY BRITTINGHAM SMITH and JOHN MICHAEL CHARLES SMITH

Court: TCA

Attorneys:

Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Catherine Smith

Grant C. Glassford, Franklin, Tennessee, for the appellee, Sally Brittingham Smith

Judge: KIRBY

This is an appeal from an order joining a third party in a divorce action. During the husband and wife's marriage, husband's mother gave the couple a substantial amount of money. The wife filed for a divorce in circuit court. Soon after, the husband's mother filed a lawsuit in chancery court against the husband and wife, alleging breach of an agreement to repay the funds and to grant her a security interest in the marital home. Simultaneously, she filed a lien lis pendens on the marital home. The marital home was sold, and the chancery court transferred the husband's mother's lien lis pendens to the proceeds of the sale. The husband allowed a default judgment to be taken against him in his mother's chancery court lawsuit. Subsequently, the circuit court granted the wife's motion to join the husband's mother in the divorce proceedings as a necessary party. Thereafter, the chancery court case was transferred to the circuit court. The circuit court held a trial on the merits; it found no agreement by the wife to repay the monies given to the couple by the husbandís mother, and dismissed her claim against the wife. The husband's mother was awarded damages against the husband for the full amount of the money loaned, to be paid out of his share of the proceeds from the sale of the marital home. The circuit court's distribution of the martial estate, however, effectively eliminated his share of the proceeds. The husband's mother appeals, arguing that she was improperly joined in the divorce action, and that the circuit court did not give proper effect to her lien lis pendens against the proceeds from the sale of the marital home. On appeal, we affirm, finding that the joinder was proper and finding no error in the application of the lien against the husband's share of the proceeds.

http://www.tba2.org/tba_files/TCA/2008/smithc_092508.pdf


UNIVERSAL OUTDOOR, INC., ET AL. v. TENNESSEE DEPARTMENT OF TRANSPORTATION

Court: TCA

Attorneys:

Robert L. J. Spence, Jr., Patti C. Bowlan, Memphis, Tennessee, for the appellants, Universal Outdoor, Inc. and Eller Media.

Robert E. Cooper, Jr., State Attorney General & Reporter; Michael E. Moore, Solicitor General; Larry M. Teague, Deputy Attorney General, for the appellee, Tennessee Department of Transportation.

Judge: COTTRELL

The Tennessee Department of Transportation ordered the removal of a long-existing billboard to permit the expansion of a highway right-of-way. The billboardís owner removed the sign and reinstalled it on another part of its leasehold, within 30 feet of its original location. The Department refused to renew the permit for the sign or to issue a new permit because its new location did not comply with the requirements of The Billboard Regulation and Control Act of 1972. The owner challenged that decision at an administrative hearing, arguing that it was entitled to maintain the nonconforming billboard at its new location under the "grandfathering" clause of the zoning statute. The administrative law judge disagreed and ordered the billboard's removal. The chancery court affirmed the decision of the administrative law judge. We affirm the chancery court.

http://www.tba2.org/tba_files/TCA/2008/universaloutdoor_092508.pdf


STATE OF TENNESSEE v. CHARLES H. WARFIELD, III

A correction has been made on page 1 regarding appellee / appellant representation.


Court: TCCA

Attorneys:

Russell Heldman, Nashville, Tennessee, for the appellee, Charles H. Warfield, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mary Katherine White, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: MCLIN

The defendant, Charles H. Warfield, III, was indicted on one count of reckless driving, one count of possession of a controlled substance and one count of possession of drug paraphernalia. The defendant applied for pretrial diversion. The District Attorney General denied the defendant's application. The trial court granted the defendant's writ of certiorari. After a hearing, the trial court determined that the prosecutor abused her discretion by denying pretrial diversion. The state argued on interlocutory appeal that the trial court erred by concluding that the prosecutor abused her discretion and by ordering that the defendant be placed on pretrial diversion. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/warfieldc_corrected_092508.pdf

Memo from JUDGE J.C. MCLIN
http://www.tba2.org/tba_files/TCCA/2008/warfieldc_memo_092508.pdf


TODAY'S NEWS

Politics
Legal News
Upcoming
TBA Member Services

Politics
Kurita files suit against Democrats
State Sen. Rosalind Kurita has filed suit in the U.S. District Court for the Middle District of Tennessee against the Tennessee Democratic Party's Executive Committee and others over her removal as the official Democratic nominee for the 22nd Senatorial District, NashvillePost.com reports. Kurita claims she was denied due process of law in the hearings that cost her the Democratic nomination, that she had no avenue of appeal and that procedures used were created after her opponent, Tim Barnes, filed a complaint. She claims these actions were in violation of the 14th Amendment.
Read the NashvillePost.com story [subscription required]
Legal News
Michigan law school cuts out LSAT
University of Michigan undergrads interested in applying at the university's law school for the 2010 term won't have to take the Law School Admissions Test, and they won't have to pay an application fee. In fact, if they do take the LSAT, they won't be considered. The school has announced a new program in which the school will consider Michigan undergrads based on their transcripts, demonstrated leadership and community service, and resilience in dealing with adversity, according to the law school's website.
ABAJournal.com connects you to the story
Meares must appear before judge to decide misconduct
Former Circuit Court Judge Mike Meares will have to appear before a judge to determine whether or not he is guilty of judicial misconduct. The case is to determine if he acted inappropriately in connection with the sentencing of a woman who pleaded guilty to voluntary manslaughter in June.
Blount Today reports
MS-13 member 'Spia' sentenced to life
A leader of La Mara Salvatrucha, or MS-13, was sentenced today to life in prison for his participation in a racketeering enterprise, Acting Assistant Attorney General of the Criminal Division Matthew Friedrich and U.S. Attorney for the Middle District of Tennessee Edward M. Yarbrough announced. Ronald Fuentes, a/k/a "Spia," was sentenced in Nashville, by Chief U.S. District Judge Todd J. Campbell of the Middle District of Tennessee. The case was prosecuted by Assistant U.S. Attorney Jimmie Lynn Ramsaur of the Middle District of Tennessee and Trial Attorney John Han of the Criminal Division's Gang Squad.
Read more from the Department of Justice
Gitmo prosecutor quits, cites 'ethical qualms'
A Guantanamo military prosecutor is quitting because of "ethical qualms" about the system for turning over exculpatory evidence to the defense. Lt. Col. Darrel Vandeveld, an Army Reserve officer, is seeking to be returned to civilian status. He filed a declaration with the military court explaining his concerns, report the New York Times and the Washington Post.
ABAJournal.com connects you to the stories
Upcoming
Watch the presidential debate on the big screen
The Nashville Bar Association Fun Committee, along with L.A.W. and the Napier Looby Bar Association will host a viewing of Nashville's Presidential Debate at the Belcourt Theatre, 2102 Belcourt Ave., Oct. 7, 7:30 to 9:30 p.m. Admission is free; there will be a cash bar.

Golf tournament to benefit pro bono arts group
The Vanderbilt Law School Charity Golf Tournament will be held Oct. 3 at the Hermitage Golf Course. This year's tournament benefits the Tennessee Volunteer Lawyers for the Arts, a non-profit organization dedicated to providing pro bono legal services to the state's creative community. For more information or to register contact TNVLA at (615) 298-9309 or info@tnvla.org

Event will focus on international information sharing
The TBA is sponsoring a program on the "Impact of International Information Sharing," featuring William F. Baity, Deputy Director of the Financial Crimes Enforcement Network (FinCEN). Set for Oct. 10 in Memphis, the event is being hosted by the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC.
Find out more or reserve your place now
TBA Member Services
TBA, Bank of America team up for no-fee credit card
The TBA World Points Rewards MasterCard from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
Click here to learn more

 
 
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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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