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Thursday, March 05, 2009

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TBA legislative initiatives advance

Legislation permitting state lawyers to voluntarily engage in pro bono activities on their own time was recommended for passage by both the House and Senate Judiciary Committees this week. The legislation (SB 548 by Norris, HB 416 by Lundberg) does not permit district attorneys or public defenders to do pro bono work -- a provision that was requested by the two groups. All of the state employee restrictions dealing with volunteer activities and the Rules of Professional Conduct continue to apply.

The bill to make technical corrections to the TBA-sponsored Tennessee Condominium Law also cleared legislative hurdles this week. SB 922 by Stanley was recommended for passage by the Senate Commerce Labor and Agriculture Committee. The Industrial Impact Subcommittee recommended the House version of the bill (HB 595 by Coleman) for consideration by the House Commerce Committee.

Finally, the TBA bill prohibiting court reporters from taking depositions if the reporter has had sexual relations with a lawyer or party within the last two years is awaiting a hearing. The legislation -- SB 838 by Woodson, HB 403 by Sontany -- expands the statutory prohibition on court reporters providing services to family members to also include those who have had sexual relations with the reporter.

Follow action on all of TBA's legislative priorities

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

IN RE: GRACIE H. AND J'IZAIA H.

Court: TCA

Attorneys:

Donald (Trey) Winder, III, Athens, Tennessee for the Appellant, Christina H.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Lindsey O. Appiah, Assistant Attorney General; for the Appellee, State of Tennessee Department of Children's Services.

Judge: SWINEY

The State of Tennessee Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of Christina H. ("Mother") to the minor child, Gracie H. The Juvenile Court later granted DCS leave to amend the petition to also terminate Mother's parental rights to the minor child, J'Izaia H. After a trial, the Juvenile Court found and held, inter alia, that clear and convincing evidence existed to terminate Mother's parental rights to Gracie H. under Tenn. Code Ann. sections 36-1-113(g)(1), (2), (3), and (8) and that termination was in Gracie H.'s best interest. The Juvenile Court also found and held, inter alia, that clear and convincing evidence existed to terminate Mother's parental rights to J'Izaia H. under Tenn. Code Ann. section 36-1-113(g)(8) and that termination was in J'Izaia H.'s best interest. Mother appeals the termination of her parental rights to Gracie H. and J'Izaia H. We affirm.

http://www.tba2.org/tba_files/TCA/2009/gracieh_030509.pdf

INOCENCIO R. SIERRA ORTEGA v. ALMA A. FLORES

Court: TCA

Attorneys:

Cynthia A. Cheatham, Manchester, Tennessee, for the appellant, Alma A. Flores.

Eric J. Burch, Manchester, Tennessee, for the appellee, Inocencio R. Sierra Ortega.

Judge: FARMER

This is a modification of child custody case. The trial court granted Father's motion for directed verdict and denied Mother's petition to modify the child custody order which awarded joint custody and set parenting time for the parties' infant child at alternate three month intervals. Mother appeals. We reverse and remand for entry of judgment consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2009/ortegai_030509.pdf

DEBRA R. RIPLEY v. ANDERSON COUNTY BOARD OF EDUCATION, ET AL.
CORRECTION on page 4

Court: TCA

Attorneys:

Arthur F. Knight, Knoxville, Tennessee, for the appellants, Anderson County Board of Education; V.L. Stonecipher, Director of Schools; and Anderson County Board of Education Members: Dr. John Burrell, Gail Martin, Greg Crawford, Ron Hagans, Peggy Hayes, and Wanda McCrosky.

J. Mikel Dixon, Knoxville, Tennessee, for the appellee, Debra R. Ripley.

Judge: LEE

The issue presented in this case is whether the trial court erred in reinstating a teacher's employment after determining that her actions did not warrant her dismissal by the school board. After careful review, we affirm the judgment of the chancery court, finding that, while the teacher's conduct on the day in question was inappropriate, her termination was not warranted.

http://www.tba2.org/tba_files/TCA/2009/ripleyd_CORR_030509.pdf

SHELBY COUNTY HEALTH CARE CORPORATION, ET AL. v. NATIONWIDE MUTUAL INSURANCE COMPANY
CORRECTION on pages 2 and 4

Court: TCA

Attorneys:

Curtis H. Goetsch, Germantown, TN, for Appellant, Shelby County Healthcare Corporation, et al.

Gordon C. Aulgur, Nashville, TN, for Appellee, Nationwide Mutual Insurance Company.

Judge: STAFFORD

Appellant hospital filed suit against Appellee insurance company for damages arising from Appellee's alleged impairment of the Appellant's hospital lien. The trial court granted summary judgment in favor of Appellant hospital, finding that Appellant had perfected its lien under Tenn. Code Ann. section 29-22-101, and that the Appellee had impaired that lien pursuant to Tenn. Code Ann. section 29-22-104. The trial court, however, limited Appellant's recovery to the amount of coverage under the insurance policy. We affirm as modified herein. Description of Correction: Corrections on pages 2 and 4 changed the pagination of the opinion. On page 2, the first paragraph has been modified. In the second paragraph, in (2) the phrase "and the Regional Medical Center of Northeast Arkansas" has been added after "proceeds to Medic One." On page 4, in the third full paragraph, 10th line, the phrase "and the Regional Medical Center of Northeast Arkansas" has been added after "proceeds to Medic One."

http://www.tba2.org/tba_files/TCA/2009/shelbycountyhealthcare_CORR_030509.pdf

KEVIN DEWITT FORD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Thomas F. Bloom, Nashville, Tennessee (on appeal); Kevin Dewitt Ford, Nashville, Tennessee, pro se (at evidentiary hearing); Dumaka Shabazz, Nashville, Tennessee, standby counsel for the appellant (at evidentiary hearing).

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brett Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Kevin Dewitt Ford, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his convictions on seven counts of aggravated robbery. The petitioner pled guilty to these offenses and received an effective sentence of fifty years in the Department of Correction. On appeal, the petitioner argues that he received the ineffective assistance of counsel. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/fordk_030509.pdf

STEVEN CRAIG GRIFFIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the Appellant, Steven Craig Griffin.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; Victor S. Johnson III, District Attorney General; Rachel Sobrero, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Petitioner, Steven Craig Griffin, of one count of aggravated kidnapping and six counts of aggravated rape. The trial court ordered the Petitioner to serve an effective sentence of eighty-five years in the Tennessee Department of Correction. On direct appeal, this Court affirmed the Petitioner's convictions and sentence. The Petitioner then filed a petition for post-conviction relief, the trial court denied the petition, and this Court affirmed. The Petitioner subsequently sought post-conviction relief in the form of DNA analysis of physical evidence associated with his aggravated rape convictions. The post-conviction court denied the request, and this Court affirmed. However, our Supreme Court reversed the post-conviction court's judgment and remanded the case. On remand, the post-conviction court ordered the DNA analysis. After it reviewed the results and found them unfavorable to the Petitioner, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that the DNA test results establish his claim of actual innocence of aggravated rape. 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/griffins_030509.pdf

STATE OF TENNESSEE v. SCOTTY LEE JOHNSON

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, District Public Defender (at trial), for the appellant, Scotty Lee Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; Mike Flynn, District Attorney General; and Robert Headrick, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WITT

The defendant, Scotty Lee Johnson, appeals from the revocation of his probation. In this appeal, he contends that the trial court erred by ordering incarceration. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2009/johnsons_030509.pdf

STATE OF TENNESSEE v. ANTHONY L. WILLIAMS

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the Appellant, Anthony L. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A jury convicted the Defendant, Anthony L. Williams, of first degree premeditated murder, felony aggravated assault, and felony reckless endangerment. The trial court ordered the Defendant to serve a life sentence for his first-degree murder conviction, a four-year sentence for his aggravated assault conviction, and a two-year sentence for his felony reckless endangerment conviction. The Defendant appeals, contending: (1) the evidence is insufficient to support his conviction for first degree premeditated murder; (2) the trial court erred by failing to instruct the jury on self-defense; and (3) the trial court erred by failing to instruct the jury on defense of others. After thoroughly reviewing the record and the relevant authorities, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/williamsa_030509.pdf

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Ex-Bush aides to testify on U.S. attorney firings

Former top Bush aides Harriet Miers and Karl Rove agreed late yesterday to testify before Congress under oath about the firings of U.S. attorneys. The agreement, which was brokered by aides to President Obama, calls for Miers and Rove to testify before the House Judiciary Committee in closed depositions "under the penalty for perjury." At issue is the firing of nine U.S. attorneys whom many believe were dismissed for political reasons.

The Commercial Appeal has more

Human Service Department hiring 30 lawyers

The Tennessee Department of Human Services has announced it will hire more than 30 lawyers over the next few months to handle Medicaid/TennCare appeal hearings throughout the state. Candidates should be able to work well with individuals in difficult situations, make independent and sound legal judgments, engage in persuasive written and oral communication, problem-solve, and manage time effectively. Those interested should send a resume to jobs.dhs@state.tn.us. Deadline is 5 p.m. on March 20. No phone calls please.

Download a job description and compensation information

Brewer named VP of judges' conference

Blount County General Sessions Judge William R. Brewer Jr. has been elected vice president of the Tennessee General Sessions Judges Conference for a second time. He previously served in the post in 1997. As a member of the conference's executive committee, he will help lead the organization, propose areas of focus for legislation initiatives, plan continuing legal education programs and generally promote the efficient and prompt administration of justice. Brewer has been presiding General Sessions judge in Blount County since 2006.

The Maryville Daily Times reported the news

Memphis law school reaches out to high schools

March is DiscoverLaw.org month, and the University of Memphis Cecil C. Humphreys School of Law is hosting an event tomorrow to increase diversity among its students. The Diversity Outreach Program is a day long event that allows minority high school students to learn more about the law school admission process and summer internships. The more than 200 students signed up to participate will attend a mock law class and enjoy a presentation by the Black Law Student Association's mock trial team.