Court adopts rules revisions

The Tennessee Supreme Court has adopted extensive revisions to the state rules of practice procedure and evidence effective July 1, 2009, subject to ratification by the Tennessee General Assembly. The series of orders entered Jan. 8 were received today by the TBA. The amendments to the Rules of Appellate Procedure, Civil Procedure, Criminal Procedure, Juvenile Procedure and Rules of Evidence come as a result of the rules commission process employed by the court in developing and vetting rules proposals. Among the revisions to the rules are new rules on the discovery of electronically-stored information, the so-called "e-discovery amendments." In addition, a part of the package is a rule amendment recommended by the TBA as part of its 4ALL campaign. This proposal, developed by Danny Van Horn, makes explicit permission for residual funds from class action cases to be granted to the Tennessee Voluntary Fund for Indigent Civil Representation (TVFICR). The TVFICR is known colloquially as the cy pres fund.

Review all of the rules revisions

TODAY'S OPINIONS
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01 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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JAMES A. DELLINGER V. STATE OF TENNESSEE

Court: TSC

Attorneys:

Catherine Y. Brockenborough, Donald E. Dawson, and Sara Willingham, Nashville, Tennessee, for the appellant, James A. Dellinger.

Robert E. Cooper, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Jennifer L. Smith, Associate Deputy Attorney General; Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Wade V. Davies, Knoxville, Tennessee, for the amicus curiae, Tennessee Association of Criminal Defense Lawyers.

Patricia Head Moskal, Nashville, Tennessee, and Meir Feder, New York City, New York, for the amicus curiae, The Innocence Project.

Judge: HOLDER

We granted this appeal to decide an issue of first impression: whether a freestanding claim of actual innocence is cognizable in an initial petition for post-conviction relief under the Tennessee Post- Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 through -122. We have also chosen to discuss the petitioner's ineffective assistance of counsel claims and the burden of proof for prevailing on such claims. In 2003, the petitioner filed a petition for post-conviction relief. The post-conviction trial court denied his petition, and the Court of Criminal Appeals affirmed. The Court of Criminal Appeals held that: (1) a freestanding claim of actual innocence is not cognizable in an initial petition for post-conviction relief; (2) the post-conviction trial court applied the correct burden of proof to the petitioner's ineffective assistance of counsel claims; and (3) the petitioner was not denied the effective assistance of counsel. We hold that a claim of actual innocence based on new scientific evidence is cognizable in an initial petition for post-conviction relief. We affirm the Court of Criminal Appeals' denial of relief, however, because the petitioner has not met his burden of proof to support such claim. We also hold that the post-conviction trial court applied the correct burden of proof to the petitioner's ineffective assistance of counsel claims. To provide clarity in the law, however, we concurrently amend Tennessee Supreme Court Rule 28 section 8(D)(1). Finally, we hold that the petitioner was not denied the effective assistance of counsel. We affirm the judgment of the Court of Criminal Appeals in all other respects.

http://www.tba2.org/tba_files/TSC/2009/dellingerj_012209.pdf


DANNY RAY GIBBS, SR. v. SATURN CORPORATION ET AL.

Court: TWCA

Attorneys:

Kenneth Marshall Switzer, Nashville, Tennessee, for the appellant, Saturn Corporation.

Ann Buntin Steiner, Nashville, Tennessee, for the appellee, Danny Ray Gibbs, Sr.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. It involves the efforts of a retired employee of an automobile manufacturer to obtain workers' compensation benefits for an injury to his right shoulder that was diagnosed after his retirement and also to obtain reconsideration of an earlier award of workers' compensation benefits for a work-related injury to his left shoulder. Following a bench trial, the Circuit Court for Williamson County concluded that the retired employee had sustained a compensable injury to his right shoulder and awarded him benefits based on a thirty-two percent permanent partial disability to the body as a whole. The trial court also determined that the employee was neligible for reconsideration of the award for the injury to his left shoulder. On this appeal, the employer takes issue with the award for the injury to the employee's right shoulder, and the employee takes issue with the trial court's refusal to reconsider the award of benefits for the injury to his left shoulder. We have determined that the trial court properly declined to reconsider the award for the injury to the employee's left shoulder. We have also determined that the evidence does not preponderate against the trial court's conclusion that the injury to the employee's right shoulder was work- related. However, we have determined that the trial court erred by failing to limit the award of benefits for the injury to the right shoulder to the cap in Tenn. Code Ann. section 50-6-241(d)(1)(A) (2008).

http://www.tba2.org/tba_files/TSC_WCP/2009/gibbsd_012209.pdf


SOUTHERN CELLULOSE PRODUCTS, INC. v. STEPHEN DEFRIESE

Court: TWCA

Attorneys:

Harry F. Burnette and Doug S. Hamill, Chattanooga, Tennessee for the appellant, Stephen DeFriese.

David F. Hensley, Chattanooga, Tennessee for the appellee, Southern Cellulose Products, Inc.

Judge: WADE

After the employee suffered an employment-related injury to his right extremity, for which he was entitled to workers' compensation, the employer filed suit contesting any award of benefits for the employee's claim that the injury aggravated his pre-existing bipolar disorder. The trial court awarded compensation for the injury to the right extremity, capped at 1.5 times the impairment rating, but denied compensation for aggravation of the pre-existing condition. The employee appealed. The appeal was 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 cause is remanded with instructions for a determination of whether the trial court had subject matter jurisdiction.

http://www.tba2.org/tba_files/TSC_WCP/2009/scellulose_012209.pdf


JACKIE WAYNE BALLARD v. SONYA RENEE BALLARD

Court: TCA

Attorneys:

Grant C. Glassford, Brentwood, TN, for Appellant.

Thomas F. Bloom, Nashville, TN; Larry H. Hagar, Madison, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the trial court erred in awarding Wife $5,015.00 as her share of the appreciation of the marital home. We are also asked to determine whether the trial court erred in awarding Husband $18,780.00 for attorney's fees when he made no claim for alimony, and failed to show both his need for such an award and Wife's ability to pay. We reverse the circuit court's award of $5,015.00 to Wife, and find that Wife is entitled to no appreciation of the marital home as she made no "substantial contribution to its preservation and appreciation" such that the appreciation became marital property. We affirm the circuit court's award of $18,780.00 to Husband for attorney's fees.

http://www.tba2.org/tba_files/TCA/2009/ballardj_012209.pdf


IN RE: ESTATE OF ELSIE STINCHFIELD BROWNLEE, ET AL. v. JACQUE BROWNLEE HUGHES, ET AL.

Court: TCA

Attorneys:

Betty Lou Taylor, Hartsville, TN, for Appellant.

Sue Hynds Dunning, Gallatin, TN, for Appellee.

Bruce N. Oldham, Gallatin, TN, for Appellee.

Judge: STAFFORD

This case involves the construction of a holographic will. Decedent died in 2006, and was survived by her four children. Her will states that one of her sons is to "have" the "home place." Two of the other siblings, the Appellees, contest the trial court's determination that the Decedent's will transfers fee simple title in the Decedent's real property owned at the time of her death to her son. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/brownleee_012209.pdf


BETTY L. GRAHAM v. BOARD OF DIRECTOR LAKE PARK CONDO-SIGNAL VIEW

Court: TCA

Attorneys:

Betty Lou Graham, Jasper, Tennessee, Pro Se Appellant.

Scott N. Davis, Chattanooga, Tennessee for the Appellee, Board of Directors Lake Park Condominium Association.

Judge: SWINEY

Betty L. Graham ("Plaintiff") sued the Board of Director Lake Park Condo-Signal View ("Defendant") in General Sessions Court for Hamilton County. The General Sessions Court granted summary judgment to Defendant on eight of Plaintiff's ten claims and later dismissed the remaining two claims with prejudice. Plaintiff appealed to the Circuit Court for Hamilton County. The Circuit Court granted partial summary judgment to Defendant on the same eight claims as the General Sessions Court had but did so on the sole basis that the appeal to the Circuit Court was untimely as to those eight claims and, subsequently granted Defendant's motion to dismiss the remaining two claims. Plaintiff appeals to this Court. We reverse the grant of partial summary judgment on the eight claims, and affirm the dismissal of the other two claims.

http://www.tba2.org/tba_files/TCA/2009/grahamb_012209.pdf


IN RE: ADOPTION OF T.L.H., A Minor Child
ERIK HOLT v. CHRISTOPHER LEE MORRIS, et ux, SARAH LYNN MORRIS


Court: TCA

Attorneys:

James Y. Ross, Sr., Waynesboro, TN, for Appellant.

Paul A. Bates, Lawrwenceburg, TN, for Appellees.

Judge: HIGHERS

This is an appeal from an order terminating a father's parental rights and granting a stepfather's petition for adoption. Because the final order does not contain sufficient findings of fact and conclusions of law justifying the trial court's decision, we vacate the order and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/holte_012209.pdf


MARTA MOLCHKO MYERS v. PHILLIP DWIGHT MYERS

Court: TCA

Attorneys:

Robin L. Miller and R. Wayne Peters, Chattanooga, Tennessee, for the appellant, Marta Molchko Myers.

Randall W. Morrison, Tullahoma, Tennessee, for the appellee, Phillip Dwight Myers.

Judge: CLEMENT

In this divorce action, Wife appeals the trial court's classification and division of the marital estate and the decision to not award her alimony. The principal marital asset is Husband's interest in the business known as Myers Trucking; however, it was disputed whether the business and the commercial trucks used in the business were solely owned by Husband or whether the business was a partnership in which he only had a 50 percent interest. It was also disputed whether many of the business' valuable assets were owned by his parents. The trial court awarded Myers Trucking to Husband and awarded Wife $125,000 for her marital interest in the business without determining whether Husband solely owned the business or whether the business was a partnership equally owned by Husband and his father and without determining whether the business or the parents owned the trucks used in the business. We have determined the trial court failed to determine the ownership and value of the disputed assets and to value the marital property; therefore, the court could not have made an equitable distribution of the marital estate. We have also determined that the record is inadequate for us to determine these issues on appeal. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/myersm_012209.pdf


MARIAN NEAMTU v. IVETA NEAMTU

Court: TCA

Attorneys:

Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Marian Neamtu.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Iveta Neamtu.

Judge: CLEMENT

This is an appeal from a divorce action in which both Husband and Wife challenge various findings and rulings of the trial court. Husband appeals claiming the trial court erred in not finding Wife a non-credible witness, finding Wife is unable to work due to a lengthy illness, awarding Wife alimony in futuro, and requiring him to pay Wife's COBRA insurance. Wife appeals claiming that the trial court erred in its division of marital property and the amount of alimony awarded. We affirm the trial court's decision in all respects.

http://www.tba2.org/tba_files/TCA/2009/neamtum_012209.pdf


IN THE MATTER OF: T.L.N. and M.C.F.

Court: TCA

Attorneys:

Mark K. Green, Columbia, Tennessee, for the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Dinah L. Clark, Guardian Ad Litem.

Judge: FARMER

The trial court terminated Mother's parental rights on the grounds of abandonment for failure to provide a suitable home, non-compliance with the permanency plan, and persistence of conditions. We reverse.

http://www.tba2.org/tba_files/TCA/2009/tln_012209.pdf


JEFFERSON LEE YOUNG V. ENERPAC

Court: TCA

Attorneys:

Roy P. Neuenschwander, Knoxville, Tennessee, for appellant, Jefferson Lee Young.

R. Kim Burnette, Knoxville, Tennessee, for appellee, Enerpac.

Judge: FRANKS

Plaintiff filed this action after the statute of limitations had run, and defendant moved to dismiss. Plaintiff attempted to invoke the discovery rule, claiming that his injuries had required surgery and he was sedated for a few days following the accident. The Trial Court granted the defendant summary judgment and plaintiff has appealed. We affirm the Trial Court on the grounds that the discovery rule was not applicable to the circumstances of this case.

http://www.tba2.org/tba_files/TCA/2009/youngj_012209.pdf


STATE OF TENNESSEE v. BRITTANY ANN KIESTLER

Court: TCCA

Attorneys:

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Brittany Ann Kiestler.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and P. Neal Oldham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

After a bench trial, the Lauderdale County Circuit Court convicted the appellant, Brittany Ann Kiestler, of two counts of contributing to the delinquency of a minor and ordered her to serve eleven months, twenty-nine days on supervised probation. On appeal, the appellant contends that the evidence is insufficient to support her convictions. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/kiestlerb_012209.pdf


TODAY'S NEWS

Legal News
Legislative News
Politics
TBA Member Services

Legal News
Sixth Circuit considers state's execution method
The 6th Circuit Court of Appeals this week heard oral arguments in the case of condemned inmate E.J. Harbison. The court will use the case to determine whether or not Tennessee's lethal injection method is unconstitutional. In 2007, District Judge Aleta Trauger found the method constituted cruel and unusual punishment.
Read about the hearing in the Nashville City Paper
Court holds first access to justice town hall meeting
The Tennessee Supreme Court took its Access to Justice initiative to Jackson yesterday with a public meeting at the downtown library. A nine-person panel led by Justice Cornelia Clark included local lawyers, judges and representatives from local agencies. The group discussed current access to justice challenges and took questions and statements from the audience. The meeting is the first of five the court plans to hold around the state.
Read about the event in the Jackson Sun
Presidential oath retaken last night
Because he got one word out of sequence when taking the oath of office Tuesday, President Obama took it again last night out of an "abundance of caution," said White House Counsel Greg Craig. After misstating the oath on inauguration day, U.S. Supreme Court Chief Justice John G. Roberts Jr. visited the White House yesterday for the do-over.
The Commercial Appeal has more
Commission sets date for 15th Judicial District hearing
The Judicial Selection Commission will meet on Feb. 10 at the John W. Music Judicial Building in Lebanon to initiate the process of filling the vacancy in the 15th Judicial District Criminal Court created by the death of Judge James O. Bond. Three attorneys filed for consideration prior to the deadline.
See the commission's notice
Guantanamo prison to close within a year
President Obama today signed executive orders closing the prison at Guantanamo Bay (as well as any other CIA secret prisons) and outlawing certain forms of torture. The first order calls for review of all detainee cases and relocation of prisoners with full closure of the prison within a year. The second order subjects the CIA to the same rules the military must follow.
The ABA Journal links to several key stories
Paper covers 4ALL campaign
The Memphis Commercial Appeal this week carried an extensive story on TBA President Buck Lewis' 4ALL campaign, which is designed to educate lawyers and the public about the need for increased legal services for the poor. The story covered each component of the campaign including proposals for legislative and Supreme Court rule changes, a call for Tennessee law firms to adopt formal pro bono policies, and a statewide public service day on April 4.
Read the article
15 interview for Shelby court
In search of a replacement for former General Sessions Division 10 Judge Anthony Johnson, Shelby County Commissioners interviewed 15 attorneys yesterday. One focus of the questioning was whether candidates would be willing to hear only domestic violence cases as the county's domestic violence court has been dissolved due to lack of funds. Commissioners will vote Monday on an interim judge who will serve until the 2010 election.
The Commercial Appeal has the list of candidates
Women's law group elects new officers, board members
The East Tennessee Lawyers Association for Women (ETLAW) has elected a new board of directors for 2009. They are Debra House, president; Wynne Hall, president-elect; Becky Franklin, secretary; Betty James, treasurer; Leslie Muse and Dawn Coppock, program chairs; Karen Crutchfield and Justice Sharon Lee, membership chairs; Donna Holt, TLAW representative; Heather Anderson, IOLTA grant review representative; and Sharon Frankenberg, community outreach chair.

Legislative News
House committee chairs named
House Speaker Kent Williams has appointed Republicans to chair seven of the chamber's 13 standing committees, almost evenly dividing the chairmanship posts. Democrats continue to chair the Judiciary and Finance committees, while Republican Beth Harwell will preside over the all-important Commerce Committee.
The Nashville Post has the full list
Committee debates caps on nursing home liability
A special legislative committee is studying the effects of litigation on nursing homes and whether caps should be placed on damages won in lawsuits against them. The Tennessean reports that Senate Speaker Ron Ramsey has made the issue part of his legislative agenda for the year. Speaking for the Tennessee Association of Justice at a hearing yesterday, Daniel Clayton argued that the focus should be on improving care. Last month, a federal report ranked the state's nursing homes as some of the worst in the nation.
Learn more about the issues
Politics
Sheriff announces for Congress
Bradley County Sheriff Tim Gobble this morning announced he would seek the Republican nomination for the congressional seat now held by Zach Wamp. Gobble is the latest of several southeast Tennesseans to express interest in the seat including Sen. Dewayne Bunch, R-Cleveland; Rep. Gerald McCormick, R-Chattanooga; Republican Party Chair Robin Smith; and Sen. Bo Watson, R-Hixson.
The Times Free Press reports
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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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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