|Thursday, September 25, 2008
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.
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DENNIS PYLANT v. STATE OF TENNESSEE
Eric S. Cartee and Paul Bruno (oral argument) Nashville, Tennessee, for the appellant, Dennis
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
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.
HOWELL ANDERSON d/b/a ANDERSON TRUSS v. SEQUATCHIE COUNTY, ET AL.
William W. Burton, Murfreesboro, Tennessee, for the appellant, Howell Anderson, d/b/a Anderson
L. Thomas Austin, Dunlap, Tennessee, for the appellee, Sequatchie County; Joe A. Conner, for the
appellees, Galloway Enterprises, Inc., and George Galloway
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
ROGER MOON v. DALE KEISLING
Harold E. Deaton, Jamestown, Tennessee, for the appellant, Dale Keisling.
Phillips M. Smalling, Byrdstown, Tennessee, for the appellee, Roger Moon.
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.
CATHERINE SMITH V. SALLY BRITTINGHAM SMITH and JOHN MICHAEL CHARLES SMITH
Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Catherine Smith
Grant C. Glassford, Franklin, Tennessee, for the appellee, Sally Brittingham Smith
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.
UNIVERSAL OUTDOOR, INC., ET AL. v. TENNESSEE DEPARTMENT OF TRANSPORTATION
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
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.
STATE OF TENNESSEE v. CHARLES H. WARFIELD, III
A correction has been made on page 1 regarding appellee / appellant representation.
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.
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.
Memo from JUDGE J.C. MCLIN
TBA Member Services
|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]
|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
|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.,
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 firstname.lastname@example.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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