Sunset committee members split on selection, retention

The joint House-Senate Government Operations Subcommittee on Judiciary, Law Enforcement and Criminal Justice held its statutorily required public hearings today on the sunset of four judicial branch and related agencies. The committee split on its recommendations on three of the agencies but one, the Tennessee Code Commission, was recommended for an eight-year sunset extension.

The split came on the question of extending the Judicial Council, the Judicial Evaluation Commission and the Judicial Selection Commission. The three Senate members, led by Senator Dewayne Bunch, R-Cleveland, voted to defer a vote on the extension until after July 1, 2009. On the House side, by a 3-1 vote, members recommended extension of all three entities for a four-year period. Much of the discussion at the hearing focused on how the Judicial Selection Commission and Judicial Evaluation Commission function within the context of Tennessee's merit selection, performance evaluation and retention election system. Lawmakers noted that the action was meant to signal that there has yet to be any real accommodation reached regarding the makeup of the commissions or the role the Judicial Council plays in commenting on the impact legislative proposals would have on the judicial system.

Today's hearings were conducted in the statutorily proscribed manner under the Tennessee Governmental Entity Review Law in TCA Title 4, Chapter 29. In making the respective motions for deferral and recommendations for extension, both sides noted that the full Government Operations Committee could, when the General Assembly convenes in January, take action to continue, terminate or reconstitute any of the entities or create new ones.
TODAY'S OPINIONS
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REGINA F. ANDERSON v. ALFRED ANDERSON
With Dissenting Opinion


Court: TCA

Attorneys:

Alfred Anderson, Cordova, TN, pro se.

Herschel L. Rosenberg, Memphis, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the trial court erred in granting, and then failing to set aside, its Order of Judgment against Appellant. Appellant contends that he did not receive notice that his case was set for trial, as the court clerk failed to enter his address into the computer system, although it was provided in his Answer. In his Motion to Set Aside Default Judgment, Appellant sought relief pursuant to Tennessee Rule of Civil Procedure 60.01. However, in his brief, Appellant argues that the Judgment should be set aside pursuant to Tennessee Rules of Civil Procedure 55.02, 60.01, and 60.02. Because Appellant did not raise Rule 55.02 before the trial court, and because a default judgment was not issued against Appellant, Rule 55.02 relief is inappropriate. Moreover, although Appellant raised Rule 60.01 before the trial court, the error alleged by Appellant is not a "clerical error" within the meaning of Rule 60.01. Finally, Appellant did not seek Rule 60.02 relief by motion, as required by the Rule, nor did he raise Rule 60.02 before the trial court . Thus, we affirm the decision of the circuit court. Additionally, we decline to find Appellant's appeal frivolous or to require Appellee to pay the costs associated with this appeal.

http://www.tba2.org/tba_files/TCA/2008/andersonr_121708.pdf

KIRBY dissenting
http://www.tba2.org/tba_files/TCA/2008/andersonr_DIS_121708.pdf


IN THE MATTER OF MALAINA H.

Court: TCA

Attorneys:

Thomas J. Tabor, Jr., Tazewell, Tennessee, for the Appellant, Rhonda H.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

The Juvenile Court terminated the parental rights of Rhonda H. ("Mother") to her daughter, Malaina H. ("the Child"). The Juvenile Court found that the Department of Children's Services ("DCS") had proven by clear and convincing evidence that grounds existed to terminate Mother's parental rights on the grounds of abandonment, failure to substantially comply with the statement of responsibilities in Mother's permanency plan, and persistence of conditions making it unsafe to return the Child to Mother's care. The Juvenile Court also found clear and convincing evidence that terminating Mother's parental rights was in the Child's best interest. Mother appeals claiming, among other things, that DCS failed to prove clearly and convincingly that grounds existed to terminate her parental rights. Mother also challenges the Juvenile Court's finding that DCS had proven clearly and convincingly that termination of her parental rights was in the Child's best interest. We vacate the portion of the Juvenile Court's judgment finding and holding that grounds had been proven based on persistence of conditions. The judgment of the Juvenile Court is affirmed as modified.

http://www.tba2.org/tba_files/TCA/2008/malainah_121708.pdf


AGUSTIN PUGA v. LORIA SCARLETT

Court: TCA

Attorneys:

Brian O. Bowhan, Antioch, Tennessee, for the appellant, Loria Scarlett.

Thomas H. Castelli, Murfreesboro, Tennessee, for the appellee, Agustin Puga.

Judge: DINKINS

Defendant appeals a jury's award of punitive damages, asserting that the trial court erred in its jury instruction on punitive damages. Defendant also appeals the trial court's inclusion of a truck as an asset of an LLC, asserting that the truck was owned by a necessary party who was never joined to the proceedings. Finding the chancery court's actions to be proper in both respects, the judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2008/pugaa_121708.pdf


RHONDA LYNN G. (PICKLE) WHEELER v. JACKIE DAVID PICKLE

Court: TCA

Attorneys:

G. Michael Casey, Jackson, Tennessee, for the Defendant/Appellant Jackie David Pickle.

Terry L. Wood, Corinth, Mississippi, for the Plaintiff/Appellee Rhonda Lynn G. (Pickle) Wheeler.

Judge: KIRBY

This appeal involves child support in the form of funds to be deposited into a savings account. The parties had two children and divorced. The mother was the primary residential parent. The father was ordered to pay some child support, below the guideline amount, directly to the mother. In addition, he was ordered to open and fund a savings account to be used to pay the children's uninsured medical expenses. The order also stated that, once the children reached majority, any amounts left in the savings account were to be disbursed to the children. The father never opened or funded the savings account. The mother sought an award for the amounts that were supposed to have been deposited in the savings account. The trial court granted such an award in favor of the mother, and the father appeals. He argues that the amount that he was ordered to deposit into a savings account for uninsured medical expenses could not have been considered child support because the unused funds were to be disbursed to the children after they reached majority. He also argues that child support payments he made after the children reached majority should have been credited against any arrearage related to the savings account. We affirm, finding that the amounts ordered to have been placed in the savings account were part of the father's child support obligation, and that the trial court did not err in declining to grant the father credit against the award based on child support paid after the children reached majority.

http://www.tba2.org/tba_files/TCA/2008/wheelerr_121708.pdf


RALPH E. WILLIAMS, JR. v. TENNESSEE DEPARTMENT OF HUMAN SERVICES

Court: TCA

Attorneys:

Appellant, Ralph E. Williams, Jr., Chattanooga, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Juan G. Villasenor, Assistant Attorney General, for the Appellee, Tennessee Department of Human Services.

Judge: KIRBY

This child support enforcement case involves the issue of subject matter jurisdiction to review an administrative decision. The petitioner father was under orders to pay child support in Hamilton County. After falling in arrears on his obligations, the Tennessee Department of Human Services issued notices of license revocation. The father requested an administrative hearing, but failed to appear at the hearing. Consequently, the Department issued administrative orders finding that father had abandoned his appeal. The father filed a petition for reconsideration, which was denied. The father filed a petition for judicial review with the Chancery Court in Davidson County. The Davidson County Chancery Court found that it lacked subject matter jurisdiction over the petition because it did not have jurisdiction over the original orders of support. It dismissed the father's petition and transferred it to Hamilton County. The father now appeals, raising a multitude of issues going to the merits of his case. We affirm the Davidson County Chalacked subject matter jurisdiction over the father's petition.

http://www.tba2.org/tba_files/TCA/2008/williamsr_121708.pdf


IN RE Z.R.S.

Court: TCA

Attorneys:

Dennis L. Nordhoff, Franklin, Tennessee, for the appellant, R.S.C.

Robert E. Cooper, Jr., Attorney General and Reporter, and Preston Shipp, Assistant Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

Judge: SUSANO

The trial court terminated the parental rights of R.S.C. ("Father") to his daughter, Z.R.S., ("the Child"), who was ten years old at the time of trial. The trial court found, by clear and convincing evidence, that several grounds for terminating Father's parental rights existed and that termination is in the best interest of the Child. Father appeals, challenging the trial court's finding that clear and convincing evidence of grounds to terminate were established. Father also challenges the trial court's finding that the evidence showed, clearly and convincingly, that termination is in the Child's best interest. We affirm.

http://www.tba2.org/tba_files/TCA/2008/zrs_121708.pdf


LEROY BRIMMER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson and Matthew S. Lyons, Memphis, Tennessee, for the appellant, Leroy Brimmer.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel NewtoGeneral, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Leroy Brimmer, appeals the denial of his petition for post-conviction relief from his conviction for first degree premeditated murder, arguing that he received ineffective assistance of trial counsel. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2008/brimmerl_121708.pdf


STATE OF TENNESSEE v. WHITNEY ANN GRAVES

Court: TCCA

Attorneys:

William L. Moore, Jr., Gallatin, Tennessee, for the appellant, Whitney Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General, and William G. Lamberth, II, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Officer Teddy Loftis, Jr. stopped Appellant, Whitney Ann Graves, for driving with her highbeam lights directed at oncoming traffic. After stopping Appellant, Office Loftis administered several field sobriety tests. Appellant's performance was not satisfactory and Officer Loftis obtained a blood alcohol test, the results of which were .19. Appellant was indicted for two counts of driving under the influence ("DUI"). She filed a motion to suppress based on the argument that she was illegally seized by the officer. The trial court held a hearing and denied the motion. Appellant pled guilty to one count of DUI while reserving a certified question for appeal. Appellant's certified question presented to this Court is: "whether the officer had reasonable suspicion, based on specific and articulable facts, to conduct an investigatory stop of the Defendant or whether the Defendant was stopped in violation of her protection against unreasonable search and seizure as established in the United States and Tennessee Constitutions." We have thoroughly reviewed the record on appeal and find that the facts do not preponderate against the trial court's findings that a traffic violation occurred. We, therefore, conclude that there was probable cause for the stop, and the seizure fits within one of the narrow exceptions to the warrant requirement. For this reason, we affirm the trial court's denial of the Appellant's motion to suppress.

http://www.tba2.org/tba_files/TCCA/2008/gravesw_121708.pdf


BOBBY JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan B. Feeney, Selmer, Tennessee (on appeal), and Benjamin Caldwell Mayo, Jackson, Tennessee (at trial), for the appellant, Bobby Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Bobby Johnson, appeals the denial of post-conviction relief by the Circuit Court for Madison County from his convictions for (1) attempted first degree murder, a Class A felony; (2) aggravated burglary, a Class C felony; (3) aggravated assault, a Class C felony; (4) burglary of a vehicle, a Class E felony; (5) theft of property valued less than $500, a Class A misdemeanor; and (6) harassment, a Class A misdemeanor. He received a sentence of fifteen years for attempted first degree murder, two six-year sentences for aggravated burglary and aggravated assault, a sentence of two years for burglary of a vehicle, and two eleven-month-twenty-nine-day sentences for the misdemeanors. The sentences were imposed concurrently for an effective sentence of fifteen years, and all sentences run consecutively to a prior out-of-state felony sentence. He contends that (1) he received the ineffective assistance of counsel when (a) trial counsel did not obtain the victim's medical records before the petitioner pleaded guilty and (b) trial counsel did not interview two potential alibi witnesses, and (2) trial counsel's deficient performance induced the petitioner to enter involuntary guilty pleas. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/johnsonb_121708.pdf


TODAY'S NEWS

Legal News
Practice Management
TBA Member Services

Legal News
Applications due Jan. 13 for circuit court vacancy
The Judicial Selection Commission has announced procedures for filling the 20th Judicial District Circuit Court vacancy created by the retirement of Davidson County Judge Muriel Robinson. All interested candidates should submit a completed Applicant Questionnaire and Tennessee Bureau of Investigation (TBI) background application -- both of which are available on Administrative Office of the Courts' web site -- no later than Jan. 13.
Learn more on the AOC web site
DA interested in trying more teens as adults
Nashville prosecutor Kathy Morante says she plans to look at transferring more youth out of the juvenile system next year because she is tired of seeing the same offenders return to juvenile court after being released by the Department of Children's Services. She believes that trying these offenders as adults will be a stronger deterrent. Rehabilitation advocates and those who manage jails, however, worry how they will safely accommodate a younger population.
The Tennessean looks at the issue
DA rejects ouster effort
Hamilton County District Attorney Bill Cox said Tuesday that evidence does not warrant proceeding with an ouster of East Ridge Mayor Mike Steele. Saying that an ouster petition is a drastic measure that should be used only against corrupt officials, Cox notified the court that his office would no longer be involved in a criminal action filed by a group of East Ridge citizens.
Read more at Chattanoogan.com
Legal aid agency forms new board
The Legal Aid Society of Middle Tennessee has named N. Houston Parks president of its board of directors. Parks, who has an extensive record of involvement with the agency, is chief financial officer at First Farmers and Merchants Bank in Columbia. Other officers for the 2008-2010 term are: Susan Kay, first vice president; Clisby Barrow, second vice president; Jim Weatherly, third vice president; Turner McCullough Jr., secretary; Drew Goddard, treasurer; Charlie Warfield, at large member; and Kathryn Edge, immediate past president.
Clarksville Online reports on Parks
Roane constable files civil rights suit
Roane County Constable Mark Patton, likely facing an ouster lawsuit over alleged intimidation and harassment of county law enforcement and citizens, is firing back. Yesterday, he filed suit alleging his civil rights were violated when the county commission named an interim constable. The lawsuit seeks $250,000 in damages and names the county, its 15 commissioners and County Attorney Tom McFarland among the defendants. The suit stems from a dispute over whether the commission had the right to appoint an interim constable after Patton resigned, but then reclaimed, his seat.
The News Sentinel has the story
Judge's spouse elected auxiliary president
Victor L. Robilio Jr. was named the first male president of the Auxiliary to the Memphis Bar Association at the group's Christmas event last week. Robilio, a worldwide importer and wholesaler of wines, spirits and water, is married to Circuit Court Judge Kay Spalding Robilio. In accepting the position, Robilio announced plans to make law school scholarships a primary focus of his year in office. The auxiliary, which was founded in 1958, is comprised of MBA members' spouses.

New background check offenders named
On the heels of news that a Tennessee Highway Patrol officer, a former airport police officer and a probation officer reportedly ran unauthorized criminal background checks on the state's web site comes news of two more incidents. WBIR.com reports that Tennessee Highway Patrol Sgt. Clifford Babits received a written reprimand for running checks on his wife, ex-wife and two adult children, and a third THP officer, Lt. Robert Eckerman, is under investigation for accessing information on his wife, ex-wife and son.
Read more
Practice Management
New study suggests firms remain financially sound
In an upbeat study of law firm health, the legal research firm Altman Weil Inc. yesterday said most firms remain financially sound and on good footing with their banks. The study, based on 700 of the largest firms in the country, found that most were paying lower interest rates compared to a year ago, and had not faced a shortage of adequate credit. The study's conclusion: market conditions have not yet fully hit law firm balance sheets, giving firms time to prepare for harder times. Read the Nashville Business Journal's report or the study's findings.

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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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