ABA to resume evaluation of federal judicial nominees

The American Bar Association announced today that the Obama Administration has requested its Standing Committee on the Federal Judiciary resume its historical role in evaluating the professional qualifications of potential federal judicial nominees. The committee has over 50 years of experience performing this task, which involves an extensive review of each potential nominee's integrity, professional competence and judicial temperament.

Read the ABA's announcement

TODAY'S OPINIONS
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JOANN ABSHURE, ET AL. v. JEREMIAH UPSHAW, M.D., ET AL.

Court: TCA

Attorneys:

Kenneth Raymond Besser and Al H. Thomas, Memphis, Tennessee, for the Appellants, Joann Abshure and Billy Jack Abshure.

William Lynn Bomar, Memphis, Tennessee, for the Appellee, Methodist Healthcare Memphis Hospitals.

Judge: FARMER

This is a medical malpractice action filed against individual Defendants/Physicians and Defendant Hospital. Following Plaintiffs' second Tennessee Rule of Civil Procedure 41.01 voluntary dismissal of individual Defendants, Defendant Hospital moved for summary judgment. The trial court awarded Hospital summary judgment upon concluding that the evidence demonstrated negligence on part of one Defendant/Physician only, and Plaintiffs had failed to assert a claim of vicarious liability against Hospital for the alleged negligence of its agent, Defendant/Physician prior to twice dismissing Physician. The trial court determined Plaintiffs' cause of action had been extinguished where the statute of repose applicable to claim against Physician had expired, and that Plaintiffs had conferred on Physician an affirmative right not to be sued again. Plaintiffs appeal. We reverse in part, affirm in part, and affirm the award of summary judgment to Defendant Hospital.

http://www.tba2.org/tba_files/TCA/2009/abshurej_031709.pdf


TAMMY RENEE ADAMS v. JEFFERY FARRELL ADAMS

Court: TCA

Attorneys:

Betty Stafford Scott, Jackson, TN, for Appellant.

Michael A. Carter, Milan, TN, for Appellee.

Judge: HIGHERS

This appeal involves a father's petition to modify a parenting plan due to an alleged material change in circumstances. The trial court found that a material change in circumstances had occurred, and that it was in the children's best interest for the father to be named primary residential parent. The trial court awarded the father his attorney's fees. Mother appeals. We affirm and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/adamst_031709.pdf


WILLIAM L. ODOM, JR., ET UX. v. HAROLD OLIVER, ET AL.

Court: TCA

Attorneys:

Thomas M. Minor, Somerville, Tennessee, for the appellants, William L. Odom, Jr., and wife, Abby Odom.

Julie C. Bartholomew, Somerville, Tennessee, for the appellees, Harold Oliver and wife, Patsy Oliver.

Russell E. Reviere and Jonathan D. Stewart, Jackson, Tennessee, for the appellees, Todd Pulse and Hardeman County Results Realty, Inc.

Judge: FARMER

Purchasers brought this action against sellers, realtor, and realty company of home that they purchased, alleging fraudulent concealment, and violation of the Tennessee Residential Property Disclosures Act. We affirm summary judgment for realtor and realty company, but we reverse the trial court's order granting summary judgment to sellers.

http://www.tba2.org/tba_files/TCA/2009/odomw_031709.pdf


STATE OF TENNESSEE v. DUSTIN WAYNE CAPPS

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General, and Philip H. Morton, Assistant District Attorney General, for the appellant, State of Tennessee.

Mark E. Stephens, District Public Defender and Christy Murray, Assistant Public Defender, for the appellee, Dustin Wayne Capps.

Judge: SMITH

Defendant, Dustin Capps, was charged with aggravated robbery based upon the robbery of a Pilot convenience store in Knoxville, Tennessee. During the investigation of the robbery, a videotape of the crime from the store's surveillance camera was taken by the police. Sometime between viewing the videotape and the hearing on Defendant's pre-trial motions, the lead investigator lost the videotape. The trial court held a hearing to determine whether Defendant's right to a fair trial had been violated by the loss of the videotape. The trial court determined that the loss of the videotape did violate Defendant's right to a fair trial and subsequently dismissed the indictment. The State appealed the trial court's ruling. After a thorough review of the record, we find that the trial court did not abuse its discretion in dismissing the indictment. Therefore, we affirm the ruling of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/cappsd_031709.pdf


STATE OF TENNESSEE v. GARY DOUGHERTY

Court: TCCA

Attorneys:

Richard A. Tate, Blountville, Tennessee, for the Appellant, Gary Dougherty.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Kent Chitwood and Kaylin Hortenstine, Assistant District Attorney Generals, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Sullivan County jury convicted the Defendant, Gary Dougherty, of two counts of attempt to commit first degree murder and two counts of aggravated assault. The trial court merged all counts and sentenced the Defendant to twenty-two years as a standard offender in the Tennessee Department of Correction ("TDOC"). The Defendant appeals, contending: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it enhanced his sentence. Having determined that we lack jurisdiction in this case, we dismiss the Defendant's appeal.

http://www.tba2.org/tba_files/TCCA/2009/doughertyg_031709.pdf


JIMMY DALE PICKETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David L. Stewart, Winchester, Tennessee, for the appellant, Jimmy Dale Pickett.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Jimmy Dale Pickett, appeals the Franklin County Circuit Court's denial of his petition for post-conviction relief. In 2005, the Petitioner was convicted by a jury of first degree premeditated murder and especially aggravated robbery and, thereafter, sentenced to life imprisonment and twenty years, respectively. On appeal, the Petitioner argues that he was denied the effective assistance of counsel at trial. He submits that trial counsel failed to object to a violation of the rule of sequestration, failed to move to suppress the initial warrantless search of the victim's trailer, and failed to obtain expert testimony in support of the defense theory and to suppress a confession. Following our review of the record and the parties' briefs, we conclude that the Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/pickettj_031709.pdf


CHARLES E. ROBINSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Christina Farrell Daugherty, Franklin, Tennessee, for the appellant, Charles E. Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General, Kim R. Helper, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Charles E. Robinson, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that his trial counsel's assistance was ineffective because he failed to (1) call an expert witness to rebut the State's fingerprint evidence; (2) challenge the chain of custody for the handgun introduced as an exhibit at trial; (3) object to the admission of testimony concerning the .22 caliber bullets found in Petitioner's residence; (4) request a transcript of the preliminary hearing; (5) file a motion to suppress; (6) request oral argument on the motion for new trial; (7) object to the prosecutor's statements during oral argument; and (8) stipulate that Petitioner was a convicted felon. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/robinsonc_031709.pdf


STATE OF TENNESSEE v. BRUCE WARREN SCARBOROUGH

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, for the appellant, Bruce Warren Scarborough.

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

Judge: TIPTON

The defendant, Bruce Warren Scarborough, was convicted by a Knox County Criminal Court jury of two counts of aggravated rape, Class A felonies, and was sentenced to consecutive terms of sixty years as a career offender in the Department of Correction. On appeal, he argues that the trial court erred in (1) denying his motion to suppress the in-court and out-of-court identifications of him and his tattoos, (2) failing to grant a new trial due to prosecutorial misconduct during closing argument, (3) classifying him as a career offender, and (4) ordering consecutive sentences. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/scarboroughb_031709.pdf


CHARLES BENNY SEABOLT, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brian J. Hunt, Clinton, Tennessee, for the appellant, Charles Benny Seabolt, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; William Paul Phillips, District Attorney General; and Jared R. Effler and Amanda Sammons, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Charles Benny Seabolt, Jr., appeals from the Claiborne County Criminal Court's denial of his petition for post-conviction relief. On appeal, he alleges that he is entitled to relief because his trial counsel was ineffective and that he was denied due process. Upon review, we discern no error in the post-conviction court's determination that trial counsel was not ineffective, and we hold that the petitioner has waived his due process issue.

http://www.tba2.org/tba_files/TCCA/2009/seaboltc_031709.pdf


STATE OF TENNESSEE v. JAMES TERRY

Court: TCCA

Attorneys:

Thomas V. Testerman, Newport, Tennessee, for the appellant, James Terry.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Amanda H. Inman and Joe C. Crumley, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, James Terry, was convicted by a Cocke County Circuit Court jury of one count of rape, a Class B felony, and was sentenced as a Range I, standard offender to twelve years in the Department of Correction. On appeal, he contends that the evidence is not sufficient to support his conviction and that his sentence is excessive. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/terryj_031709.pdf


Requiring Lender to Negotiate with Borrower before Foreclosure

TN Attorney General Opinions

Date: 2009-03-17

Opinion Number: 09-28

http://www.tba2.org/tba_files/AG/2009/ag_09_28.pdf

TODAY'S NEWS

Supreme Court Report
Legal News
Legislative News
Court of the Judiciary
TennBarU CLE
TBA Member Services

Supreme Court Report
Ginsberg to undergo chemotherapy, hints at vacancy
U.S. Supreme Court Justice Ruth Bader Ginsburg said today that her surgery for pancreatic cancer was successful but that she is scheduled to undergo a precautionary round of chemotherapy starting later this month. Ginsburg has not missed a session of the court because of the diagnosis -- just as she did not miss any sessions when she battled colon cancer 10 years ago. She said she did not anticipate having to skip any work because of the chemotherapy, either.
The Washington Post reports
Meanwhile, Ginsburg hinted at a public appearance last week that there would be a new justice soon. She did not elaborate or take questions from reporters.
Read more from WSMV TV News
Legal News
Davidson court budget cuts delay justice
Dismal economic conditions are forcing the Davidson County court system to cut expenses, which means possible salary reductions, layoffs and fewer jury trials. But while the court system tries to save $10,000 for every jury week it eliminates, the sheriff reports he is spending $91,000 a day to house the 1,483 defendants awaiting trial. Meanwhile, the workload has not decreased forcing judges to set more trials for the fewer jury weeks on the books.
The Tennessean has the story
State uses new process to calculate incarceration costs
State officials are taking steps to more accurately determine incarceration costs in Tennessee says James White, executive director of the state legislative Fiscal Review Committee. The move comes in response to concerns among lawmakers that the state was not accurately calculating costs. In testifying before the Joint Oversight Committee on Corrections, White said the formula has been updated to include a recidivism factor and the actual length of time served in prison.
The Memphis Daily News has more
Nominations due April 3 for pro bono awards
The TBA's Access to Justice Committee and Corporate Counsel Section are accepting nominations for the Corporate Counsel Pro Bono Initiative Awards through April 3. The awards, which recognize a corporate legal department and law firm that best exemplify a commitment to access to justice and pro bono service, will be presented at the third annual Corporate Counsel Pro Bono Initiative Gala June 16 at the Peabody Hotel in Memphis. For more information, contact TBA's Access to Justice Coordinator Anjanette Eash at a_eash@tnbar.org
Submit an award nomination
Immigrants in custody don't fit stereotype
A decade-long expansion of America's system for dealing with immigrants was supposed to sweep up criminals and quickly deport undocumented aliens. Instead, an Associated Press analysis of every person being held shows that most did not have a criminal record and many were not about to leave the country -- voluntarily or via deportation -- anytime soon.
Learn more from the Tennessean
NAACP says minorities targeted for subprime loans
The NAACP has sued two major banks for allegedly steering African American borrowers into costly subprime mortgages. The suits -- against subsidiaries of Wells Fargo and HSBC Holdings -- arrive at a time when the housing crisis and soaring unemployment already are causing disproportionate harm in black neighborhoods, leaders of the group say.
The LA Times has the story
Legislative News
Tenn. House launches residency investigation
The state House of Representatives began the rare process of looking into the residency of one of its own members today. Rep. Donna Rowland, R-Murfreesboro, is accused of living outside the Rutherford County district she represents. Her opponent in the general election filed a complaint against her, and although a Democratic leader made the motion, it was Republican Jason Mumpower who made the second to start the investigation. House Speaker Kent Williams is expected to appoint a six-member committee to look into the matter, reports Nashville Public Radio.

Court of the Judiciary
Two Nashville judges reprimanded
Two Nashville judges have been privately reprimanded by the Court of the Judiciary, but decided to make their letters public. The fist, Judge Gale Robinson, received a letter informing him that activities at a funeral home owned by his family violated at least three judicial canons. The second, Judge Casey Moreland, was reprimanded for allowing probation officers to squander official time and perform personal business at his home.
Read the letter to Judge Robinson
Read the letter to Judge Moreland
Read more on WTVF-NewsChannel 5
TennBarU CLE
Advanced Trial Skills
Advanced practitioners who want to polish their skills in preparing for and executing winning cross examination at trial should attend next week's Advanced Trial Skills CLE program from the TBA's TennBarU. The course begins with a survey of preparation strategies and objectives that inform both plaintiff and defendant. Moving from fact to expert witnesses, the course will examine how to design and defend Daubert questions at deposition. Then, the course will examine the particular skills and challenges presented by the expert cross examination at trial. This day-long program will be held March 26 in Nashville. It has been approved for 6.5 hours of general CLE credit.
Learn more or register now
TBA Member Services
UPL enforcement resources available
The TBA Committee on the Protection of the Public from the Unauthorized Practice of Law encourages local bar leaders to review the sample protocol for handling UPL complaints and to urge adoption by local bar associations. The sample protocol is available on the TBA website, along with the other UPL resources.
Visit the UPL webpage for more information

 
 
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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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