Court seeks comments on rules amendments

Changes permitting law students from out-of-state schools to engage in supervised clinical practice in Tennessee and a new requirement that graduates of a law school in a foreign country take 28 semester hours at an American law school to qualify to take the bar exam were published for comment by the Tennessee Supreme Court yesterday. Permitting supervised practice by students from any accredited or approved school was advocated by the TBA when the clinical practice rule was last reviewed. The deadline for submitting written comments is March 2, 2009, and should be addressed to Clerk Michael W. Catalano, 100 Supreme Court Building, 401 Seventh Ave., North, Nashville, TN 37219-1407. Download the orders to amend Section 7.01 and Section 10.03.
TODAY'S OPINIONS
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SARAH DALE PRUITT v. MICHAEL A. PRUITT

Court: TCA

Attorneys:

James L. Weatherly, Jr., and Sarah S. Richter, Nashville, Tennessee, for the appellant, Michael A. Pruitt.

James H. Drescher, Nashville, Tennessee, for the appellee, Sarah Dale Pruitt.

Judge: CLEMENT

Husband appeals the finding that he was in willful contempt of the Final Decree of Divorce and the Qualified Domestic Relations Order (QDRO), which were entered at the time of the parties' divorce in 1997, pursuant to which, inter alia, Wife was to be designated as the surviving spouse for purposes of Husband's annuity. In October of 2004, Husband took early retirement, after which the 1997 QDRO was presented to the pension plan administrator for the administrator's acceptance. The administrator rejected the QDRO because it was not in compliance with the plan's internal guidelines. In 2006, the parties agreed to an amended QDRO that materially and substantively changed the division of marital property in the Final Decree and submitted it to the plan administrator. The administrator rejected the amended QDRO because it too was not in compliance with the plan's internal guidelines. Thereafter, it was discovered that Husband had irrevocably waived the surviving spouse option when he took early retirement. Believing Husband had willfully violated the Final Decree of Divorce and QDRO, Wife filed this contempt action. The trial court found Husband in contempt because he willfully failed to designate Wife as the survivor beneficiary. We have determined that the respective rights and responsibilities of the parties flow from the Final Decree of Divorce and the initial QDRO, which was contemporaneously entered with the Final Decree in January 1997. We have also determined that Husband violated the court's order; however, we find the evidence insufficient to prove beyond a reasonable doubt that Husband's failure to designate Wife as the survivor beneficiary was willful.

http://www.tba2.org/tba_files/TCA/2008/pruitts_120208.pdf


IN THE MATTER OF: THE ESTATE OF ALLEN CRAWFORD ROBERTS, DECEASED WILLIAM B. SIMMONS, EXECUTOR, ET AL. v. ESTHER MAY ROBERTS

Court: TCA

Attorneys:

Larry Rice, Rachel Gallant, Memphis, TN, for Appellant

Lewis K. Garrison, Phillip J. Cooper, James H. Bostick, Memphis, TN, for Appellee

Judge: HIGHERS

In this appeal, we are asked to determine whether the probate court erred when it granted Appellee's motion for a directed verdict. The probate court found that Appellants, in their proof in chief, did not satisfactorily make out a prima facie case of the Antenuptial Agreement's validity under the statutes and appellate opinions of Tennessee as Appellants failed to establish that there was a satisfactory disclosure of Mr. Roberts' assets. On appeal, Appellants contend that the motion for a directed verdict was improperly granted as reasonable minds could conclude that the Antenuptial Agreement was presented to, read, and understood by Appellee at execution and that the Antenuptial Agreement constituted a full and fair disclosure as required by Tennessee law. Although Appellants have urged an incorrect standard of review, we find, after a de novo review of the evidence, that Appellants made out a prima facie case by a preponderance of the evidence. We reverse and remand to the probate court for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/robertsa_120208.pdf


EMILY N. WILLIAMS v. CHARLES CLIBURN

Court: TCA

Attorneys:

David R. Howard, Gallatin, Tennessee, for the appellant, Emily N. Williams.

M. Allen Ehmling, Gallatin, Tennessee, for the appellee, Charles A. Cliburn.

Judge: DINKINS

Plaintiff appeals the dismissal of her personal injury action as barred by the savings statute, Tenn. Code Ann. section 28-1-105. The trial court measured the period for refiling the action from the date of entry of an Order of Non-Suit which had been sent to the court by facsimile rather than from the date of entry of the hard copy of the order. We find that the trial court correctly held that the operative date for purposes of the Tennessee savings statute was the date of entry of the first order received and signed by the court, but that Plaintiff was not given notice of entry of the order, as his counsel had requested. Consequently, we reverse the trial court's dismissal of this action and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/williamse_120208.pdf


STATE OF TENNESSEE v. DARYL DEWITT GODWIN

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, for the appellant, Daryl Dewitt Godwin.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Daryl Dewitt Godwin, pled guilty to theft of property over $60,000, a Class B felony, and was sentenced as a Range I, standard offender to ten years in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying alternative sentencing. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/godwind_120208.pdf


JESSIE HODGES v. RICKY J. BELL, WARDEN

Court: TCCA

Attorneys:

Jessie Hodges, Pro Se, Nashville, Tennessee.

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

Judge: SMITH

Petitioner, Jessie Hodges, was convicted of robbery and sentenced as a persistent offender to twelve years in incarceration. His conviction was affirmed on direct appeal. State v. Jessie Nelson Hodges, No. W2001-00871-CCA-R3-CD, 2002 WL 927603, at *9 (Tenn. Crim. App., at Jackson, May 3, 2002), perm. app. denied (Tenn. Nov. 4, 2002). Petitioner unsuccessfully sought post-conviction relief. Jessie Hodges v. State, No. W2005-01852-CCA-R3-PC, 2006 WL 211829, at *2 (Tenn. Crim. App., at Jackson, Jan. 25, 2006), perm. app. denied (Tenn. May 30, 2006). Subsequently, Petitioner sought habeas corpus relief in the Davidson County Chancery Court. The habeas corpus court dismissed the petition. Petitioner appeals. We determine that the habeas corpus court properly found that it lacked subject matter jurisdiction. Therefore, the judgment of the habeas corpus court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/hodgesj_120208.pdf


DAVID H. PLEMONS, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, David H. Plemons, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, David H. Plemons, Jr., appeals the Marshall County Circuit Court's denial of his petition for post-conviction relief. The petitioner was convicted of second degree murder and is currently serving a sentence of nineteen years in the Department of Correction. On appeal, he argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective in: (1) failing to adequately confer with, meet with, and/or communicate with the petitioner regarding the merits of the case so that the petitioner could make an informed decision as to whether to proceed to trial or settle the case; and (2) effectively precluding the petitioner from exercising his right to testify. After review, the judgment of the post- conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/plemonsd_120208.pdf


Issuance of traffic citations based on evidence obtained from a surveillance camera

TN Attorney General Opinions

Date: 2008-12-02

Opinion Number: 08-179

http://www.tba2.org/tba_files/AG/2008/ag_08_179.pdf

Service of School Board Member as a Substitute Teacher: Tenn. Code Ann. section 49-2-203(a)(1)(D)

TN Attorney General Opinions

Date: 2008-12-02

Opinion Number: 08-180

http://www.tba2.org/tba_files/AG/2008/ag_08_180.pdf

Misdemeanor Arrests: the "police team doctrine"

TN Attorney General Opinions

Date: 2008-12-02

Opinion Number: 08-181

http://www.tba2.org/tba_files/AG/2008/ag_08_181.pdf

Archives and Records Management Fee

TN Attorney General Opinions

Date: 2008-12-02

Opinion Number: 08-182

http://www.tba2.org/tba_files/AG/2008/ag_08_182.pdf

TODAY'S NEWS

Legal News
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Search for missing attorney continues
The search for missing Nashville attorney Bill Grothe continues nearly two weeks after he was reported missing by his wife. In the days after his Nov. 19 disappearance, some of the 62-year-old attorney's belongings were found in a discarded grocery bag in front of a home in East Nashville. At the request of the Metro Police Department, the Office of Emergency Management continues to conduct bank searches along the Cumberland River on a daily basis, although no search was performed Monday because of the weather.
Read more in The City Paper
ADA changes explained to readers
Nashville lawyer Barbara Moss explains in this column how the changes in the Americans with Disabilities Act will affect the way the word "disability" is defined.
Read her column in the Tennessean
Traffic camera citations are constitutional, AG says
Tennessee Attorney General Robert Cooper reaffirmed Monday that citations based on traffic cameras are constitutional. Cooper was asked by state Sen. Steve Southerland, R-Greeneville, to consider the issues of equal protection, due process and privacy raised by camera enforcement, and concluded state law violates none of them. The News Sentinel reported this AP story.
Read the attorney general's opinion
Cheney, Gonzales indictments dismissed
A Texas judge has dismissed indictments against Vice President Dick Cheney and former Attorney General Alberto Gonzales that had been brought by a controversial prosecutor nearing the end of his term. Judge Manuel Banales on Monday granted motions to quash because alternate grand jurors were improperly allowed to deliberate the charges.
ABAJournal.com links you to the story and related documents
MBA web site to help public
The Memphis Bar Association has launched a new web site to provide public information on how find legal help and resources. The site includes an online MBA attorney directory by practice area and a "Frequently Asked Legal Questions and Answers" section.
Check it out
Upcoming
Court announcement will outline access to justice measures
The Tennessee Supreme Court will announce a new court initiative relating to access to justice at 2 p.m. on Dec. 5 in the Old Supreme Court Chambers in the State Capitol. According to a press release, "the court will outline general and specific measures to be undertaken in the coming year to improve access to justice in Tennessee." The event is open to the public and media. A reception will follow the announcement.
Contact Rebecca Rhodes to learn more or to RSVP
Disciplinary Actions
Franklin lawyer censured
On Nov. 18, Franklin lawyer Timothy John Wibking received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court. Wibking was charged with a misdemeanor. He violated the Rules of Professional Conduct by engaging in conduct that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.
Read the BPR release
Covington lawyer suspended
On Nov. 25, Covington lawyer Richard D. Cartwright was suspended from the practice of law for three years with the first year served as an active suspension followed by two years of probation. The suspension becomes effective Dec. 5. Cartwright committed a series of violations involving incompetent representation and misconduct.
For details, see the BPR release
TBA Member Services
December TBJ features electronically stored info
The December Tennessee Bar Journal highlights two articles about electronically stored information (ESI), covering how privilege interacts, as well as what the 6th Circuit has to say about its use. The articles, by M. James Thomas and Stephen J. Zralek, each suffered footnote translation problems causing the print versions to be incomplete. The Journal regrets this omission. Connect to the full text of the Thomas or Zralek articles, including footnotes, here.

Also in this issue, Sam Elliott examines Tennessee's constitutional right of revolution and Don Paine explains an update in the law, effective Jan. 1, that defines who must serve on jury duty. Columnist Dan Holbrook writes about the "great estate distortion," two books are reviewed, and columnist Bill Haltom points out that our state's new Supreme Court is "not your father's Supreme Court anymore." In his column, TBA President Buck Lewis addresses stress and depression. This issue should be on your desk by now, or you can
read the Journal online
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
Visit the site

 
 
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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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