ABA president urges support for Tennessee Plan

American Bar Association President Thomas Wells was in Memphis this week where he sat down with the Commercial Appeal's editorial board to discuss Tennessee's judicial selection process and other issues important to the ABA. Wells said the state's system is far better than having judges directly elected and that forcing judges to stand for election and raise campaign contributions creates a perception that justice is "for sale." TBA President Buck Lewis was also quoted in the story as saying there are ways to fine-tune the current system without dismantling it.

Read more of the interview in the Commercial Appeal

TODAY'S OPINIONS
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BANC OF AMERICA INVESTMENT SERVICES, INC., v. CHRISTINA TUCKER DAVIS, as Executrix of the Estate of STEPHEN G. TUCKER, deceased, and DOROTHY TUCKER WATERS, and TERESA CURETON

Court: TCA

Attorneys:

Bruce D. Gill, and James F. Exum, III., Chattanooga, Tennessee, for appellants.

James R. Kennamer, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

In this interpleader action, plaintiff held an IRA account established by decedent. When decedent died dispute arose between his companion and his blood relatives, because he had designated his companion as the sole beneficiary of his IRA account, but in his Will he gave the IRA account to his relatives. The contending parties raised this dispute in their pleadings and after an evidentiary hearing, the Trial Court ruled that the designee on the IRA account was entitled to the proceeds because the relatives did not carry the burden of proof to establish undue influence was exercised on the decedent when he established the IRA account. We affirm the Judgment of the Trial Court and remand with the cost of the cause taxed to appellants.

http://www.tba2.org/tba_files/TCA/2009/bancofam_020509.pdf


LYNDA GRISHAM v. STEVEN G. MCLAUGHLIN, M.D. ET AL.

Court: TCA

Attorneys:

R. Stephen Doughty, Nashville, Tennessee, for the appellant, Lynda Grisham.

Clarence James Gideon, Jr. and Alan Stuart Bean, Nashville, Tennessee, for the appellees, Steven G. McLaughlin, M.D. and Premier Orthopaedic & Sports Medicine, PLC.

Judge: BENNETT

Patient sued orthopedic surgeon and his medical practice for medical malpractice. The trial court found that the patient's expert witness did not satisfy the locality rule, Tenn. Code Ann. section 29-26- 115(a). The expert's testimony was, therefore, ordered stricken and summary judgment was granted. The patient appealed these two decisions. We affirm.

http://www.tba2.org/tba_files/TCA/2009/grishaml_020509.pdf


IN THE MATTER OF H. L. F. ET AL.

Court: TCA

Attorneys:

James Reed Brown, Byrdstown, Tennessee, for the appellant, T. W.

Onnie Winebarger, Byrdstown, Tennessee, for the appellant, J. F.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua D. Baker, Assistant Attorney General, for the State of Tennessee, Department of Children's Services.

Amy V. Hollars, Livingston, Tennessee, Guardian Ad Litem.

Judge: CLEMENT

The unmarried parents of four minor children appeal the circuit court's finding that their four children are dependent and neglected and that both parents committed severe abuse. The circuit court found the four children dependent and neglected pursuant to Tenn. Code Ann. section 37-1-102(b)(12)(B), (F), and (G), and found that both parents perpetrated severe child abuse against their children due to the father's sexual abuse of three minor girls in the home, including aggravated rape and aggravated sexual exploitation of their twelve-year-old daughter, and the mother's knowing failure to protect her children. The circuit court also found that aggravated circumstances existed and, therefore, pursuant to Tenn. Code Ann. section 37-1-166(g)(4)(A) the Department of Children's Services was no longer required to make reasonable efforts to assist the parents in obtaining services so they could be reunited with their children. Finding no error and that the evidence in the record is clear and convincing, we affirm.

http://www.tba2.org/tba_files/TCA/2009/hlf_020509.pdf


MARY BETH HORAN v. IAN CHARLES MCLEOD

Court: TCA

Attorneys:

Sandra Jones, Nashville, Tennessee, for the appellant, Ian Charles McLeod.

Bert W. McCarter, Murfreesboro, Tennessee, for the appellee, Mary Beth Horan.

Judge: BENNETT

After Mother's death, Aunt of child filed a dependency and neglect proceeding against Father in juvenile court. Father and Aunt signed an agreed order on August 4, 2004, settling the matter. On April 25, 2005, Father filed a motion for relief under Tenn. R. Civ. P. 60.02 seeking to vacate the August 4, 2004 order and parenting plan. He later filed a petition with the juvenile court to vacate the August 4, 2004 agreed order and parenting plan pursuant to Tenn. R. Juv. P. 34. Both the Rule 60.02 motion and the Rule 34 petition were denied. Father appealed to circuit court. The circuit court heard arguments on the motion and petition and denied them both. Father appealed, claiming that he should have gotten a de novo trial in circuit court and alleging procedural irregularities in the juvenile court proceedings prior to the August 4, 2004 agreed order. We affirm the circuit court, finding that Father received the hearing he was due in circuit court and that the time for appealing the juvenile court proceedings leading up to the August 4, 2004 agreed order has long passed.

http://www.tba2.org/tba_files/TCA/2009/horanm_020509.pdf


JOSEPH MORGAN v. DARIN HALL ET AL.

Court: TCA

Attorneys:

Joseph Morgan, Nashville, Tennessee, Pro Se.

Kevin C. Klein, Andrew D. McClanahan and Christopher M. Lackey, Nashville, Tennessee, for the Appellee, Sheriff Daron Hall and Davidson County Sheriff's Office.

Judge: CLEMENT

A former inmate in the Davidson County jail filed a Petition for Permanent Injunction against the Davidson County Sheriff and the Davidson County Sheriff's Office in which he alleged he had been mistreated while incarcerated. The defendants moved to dismiss the former inmate's petition for injunctive relief on the ground that he was no longer incarcerated, and thus his action for injunctive relief was moot. The plaintiff failed to respond to the motion and did not attend the hearing on the motion. The trial court granted the defendants' motion to dismiss from which the plaintiff appealed. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/morganj_020509.pdf


HOLLY THRASHER v. RIVERBEND STABLES, LLC, ET AL.

Court: TCA

Attorneys:

Kirk L. Clements, Goodlettsville, Tennessee, for the appellant, Holly Thrasher.

Michael H. Johnson and M. Kristin Selph, Nashville, Tennessee, for the appellees, Riverbend Stables, LLC, Stephen Daniel, and Michael Daniel.

Judge: CLEMENT

Plaintiff appeals the summary dismissal of her complaint arising out of the death of her Tennessee Walking Horse while the horse was being trained at Riverbend Stables, LLC. Plaintiff filed suit claiming the horse died as a result of the defendants' negligence and gross negligence. The trial court dismissed the complaint upon a finding that the claims of negligence were barred by the exculpatory provisions in the parties' written agreement and Plaintiff had failed to make out a prima facie claim of gross negligence. Finding the exculpatory agreement between Plaintiff and Riverbend Stables enforceable, we affirm the trial court's determination that Plaintiff's claim of ordinary negligence is barred by the parties' agreement. As for Plaintiff's claim of gross negligence, we have concluded Riverbend Stables failed to negate an essential element of that claim and failed to establish that Plaintiff cannot prove an essential element of that claim at trial, as is required under the summary judgment analysis stated in Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76 (Tenn. 2008) and Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008); therefore, Riverbend Stables is not entitled to summary judgment.

http://www.tba2.org/tba_files/TCA/2009/thrasherh_020509.pdf


STATE OF TENNESSEE v. STEPHEN MARK ADDLEBURG

Court: TCCA

Attorneys:

P. Richard Talley, Dandridge, Tennessee, for the appellant, Stephen Mark Addleburg.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Mike Flynn, District Attorney General; and Julie Canter, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: WOODALL

Defendant entered a plea of guilty as a Range II multiple offender to violation of driving while a habitual traffic offender (HTO) and violation of the light law. Pursuant to the negotiated plea agreement, Defendant was sentenced to two years for his HTO violation conviction, and he received a ten-dollar fine for violation of the light law. Following a sentencing hearing, the trial court denied Defendant's request for alternative sentencing and ordered Defendant to serve his sentence in confinement. On appeal, Defendant contends the trial court erred in its denial of alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/addleburgs_020509.pdf


STATE OF TENNESSEE v. H.R. HESTER

Court: TCCA

Attorneys:

Rich Heinsman and Lee Davis, Chattanooga, Tennessee, for the appellant, H.R. Hester.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; R. Steven Bebb (on appeal) and Jerry N. Estes (at trial), District Attorneys General; and William W. Reedy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The McMinn County Grand Jury indicted the defendant, H.R. Hester, on one count each of premeditated first degree murder, attempted premeditated first degree murder, and aggravated arson. Following a jury trial, the defendant was convicted on all three counts. The jury found two aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond that necessary to produce death, see Tenn. Code Ann. section 39-13-203(i)(5); and (2) the victim of the murder was seventy years old or older, see Tenn. Code Ann. section 39-13-203(i)(14). The jury imposed the death sentence for the first degree murder conviction, and the trial court imposed sentences of twenty-five years and twenty years, respectively, for the attempted murder and aggravated arson convictions. All sentences were ordered to run consecutively to each other and to an earlier, two-year probationary sentence, for an effective sentence of death plus forty-seven years.

http://www.tba2.org/tba_files/TCCA/2009/hesterh_020509.pdf


STATE OF TENNESSEE v. JIMMY STUART MYNATT

Court: TCCA

Attorneys:

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Jimmy Stuart Mynatt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Jimmy Stuart Mynatt, appeals his convictions of first degree felony murder, second degree murder, and especially aggravated robbery. He was sentenced to life plus twenty-five years. On appeal, he contends that: the evidence was insufficient to support his convictions; the trial court should have granted his motion to suppress statements made to the police; and the trial court erred in instructing the jury. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mynattj_020509.pdf


CORNELIUS RICHMOND v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Britton J. Allan, Memphis, Tennessee, for the appellant, Cornelius Richmond.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis and Jennifer L. Bledsoe, Assistant Attorneys General; William L. Gibbons, District Attorney General; Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Cornelius Richmond, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. On appeal, the petitioner argues that he received the ineffective assistance of counsel which rendered his guilty pleas involuntary and unknowing. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/richmondc_020509.pdf


EARICE ROBERTS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, Earice Roberts.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris West, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Earice Roberts, appeals the denial of his petition for writ of error coram nobis, arguing that the trial court should have granted him relief on the basis of newly discovered evidence that a police officer and witness for the State had committed crimes in her official capacity as manager of the evidence and property room. Following our review, we affirm the order of the trial court denying the petition.

http://www.tba2.org/tba_files/TCCA/2009/robertse_020509.pdf


JEFFERY WAYNE ROBERTSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stanley Kurt Pierchoski, Lawrenceburg, Tennessee, for the Appellant, Jeffrey Wayne Robertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A Ball, Assistant Attorney General; T. Michel Bottoms, III, District Attorney General; James G. White, II, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Lawrence County jury convicted the Petitioner, Jeffery Wayne Robertson, of first degree murder. The trial court ordered him to serve a life sentence in the Tennessee Department of Correction. On direct appeal, this Court affirmed the Petitioner's conviction and sentence. The Petitioner then filed a petition for post-conviction relief, which the post-conviction court denied. The Petitioner now appeals, arguing that his trial counsel was ineffective because he: (1) failed to challenge evidence gathered during a search of the Petitioner's parents' home; and (2) failed to challenge expert testimony pertaining to comparative bullet lead analysis. The Petitioner also argues that he was denied due process at trial because the trial court failed to properly exercise its function as "gatekeeper" concerning the admissibility of the comparative bullet lead analysis expert witness testimony. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/robertsonj_020509.pdf


TODAY'S NEWS

Supreme Court Report
Legal News
Politics
Practice Management
Upcoming
TBA Member Services

Supreme Court Report
Justice Ginsburg undergoes surgery for cancer
U.S. Supreme Court Justice Ruth Bader Ginsburg, 75, underwent surgery today in New York City for early-stage pancreatic cancer. The procedure was scheduled after a lesion was discovered during a routine check up last month. According to the attending surgeon, Ginsburg will likely remain in the hospital seven to 10 days. Today's news has fueled speculation about whether the justice will step down from the court earlier than planned.
The AP has the story
Legal News
DA clears snooping trooper
The Tennessee Highway Patrol officer who snooped on up to 182 Tennesseans in the state's criminal justice database will not face prosecution in state court, Davidson County District Attorney Torry Johnson said yesterday. Johnson said there was no proof that Ronnie Shirley personally benefited from the misuse of official resources -- the standard that is required for criminal charges.
The Tennessean has the story
Cumberland Law scholarship announced
Among the 60-plus scholarships offered through the Community Foundation of Middle Tennessee is one specifically for law students. The William Thomas McHugh and Lou Gower McHugh Scholarship provides funding for Middle Tennessee students who are working their way through the Cumberland School of Law at Samford University or plan to enroll in the law school and know they will need to work. Applications must be submitted by March 16.
Learn more on the foundation's site
Employment lawyer previews possible legislation
Frederick J. Lewis, a shareholder in the Memphis office of Ogletree, Deakins, Nash, Smoak & Stewart PC, discusses federal labor and employment legislation that might be considered by the Obama administration in this interview with the Memphis Daily News.
Read his insights here
Regional firms stand to gain in tough economy
Large companies are sending more work to regional law firms, which, in the past, they've relied on for less intensive matters. According to industry consultants, the driving force is a quest for lower rates. The switch is also positioning corporate counsel as "market makers." The AMLaw Daily looks at how several regional firms -- including Butler Snow, which has offices in Memphis -- are benefiting.
Read more about the trend
Politics
William's party affiliation to be decided Monday
State Republican Party Chairwoman Robin Smith plans to announce Monday whether state House Speaker Kent Williams will be ousted from the party. Williams, R- Elizabethton, infuriated fellow Republicans last month when he joined with all 49 House Democrats to win the speakership by one vote. Williams has emphasized he will always consider himself a Republican, but will leave the party if asked.
The Memphis Daily News reports
Future for Bredesen at HHS?
After former U.S. Senate Democratic Leader Tom Daschle withdrew his nomination to become President Obama's choice for Health and Human Services (HHS) secretary, Gov. Phil Bredesen's name began appearing on lists of possible nominees for the job. At a Kingsport Chamber of Commerce luncheon yesterday, the governor said he loves his current job but if someone calls, he will talk to them.
The Kingsport Times-News reports
Practice Management
Firms face challenge retaining associates
In a recent article in the Memphis Lawyer, several contributors cited an "alarming" attrition rate among law firm associates. The Memphis Daily News took up the theme yesterday in an article that looks at how the struggling economy has transformed the partnership track for many young lawyers.
Learn more about the trend and ways to retain workers
Upcoming
KBA sponsors courthouse ceremony
The Knoxville Bar Association will present a program on Feb. 19 to commemorate the 75th anniversary of the U.S. Post Office and Court House located at 505 Main Street. Activities include a brief history of the courtroom and historical significance of the building, and a tour of the second floor chambers. The tour runs from 4 to 4:30 with the program following from 4:30 to 5 p.m. For more information contact the association at (865) 522-6522.

TBA Member Services
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Learn more or enroll in the program now

 
 
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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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