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Friday, April 03, 2009

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Supreme Court announces Access to Justice Commission

The Tennessee Supreme Court today announced the creation of the Tennessee Access to Justice Commission and named 10 legal and community leaders to serve on it. Speaking in the Old Supreme Court Chambers in the State Capitol, Chief Justice Janice Holder challenged the group to chart its own course, while building upon the information and collaboration among legal professionals already in place. "The forty-plus events planned for today and tomorrow by the Tennessee Bar Association for Statewide Public Service Day illustrates the success that is possible when we in the legal profession -- judges and lawyers alike -- combine our efforts in pursuit of a noble goal, to address the unmet civil legal needs in Tennessee."

Read more about the commission and its members

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.

TORRIE D. JOHNSON v. JASON B. JONES, ET AL.

Court: TCA

Attorneys:

Michael H. Sneed, Nashville, Tennessee, for the appellant, Torrie D. Johnson.

David S. Zinn, Brentwood, Tennessee, for the appellees, Jason B. Jones and Calvin Jones.

Judge: COTTRELL

The trial court dismissed plaintiff's refiled negligence suit on the basis that it was barred by the applicable statute of limitations and was not subject to the Savings Statute, Tenn. Code Ann. section 28-1- 105(a). Plaintiff appeals arguing that since plaintiff's counsel neglected to date the certificate of service on the non-suit order filed in her prior suit, the non-suit order was not effective. According to plaintiff, since the non-suit order was not effective, then the one-year period under the Savings Statute, Tenn. Code Ann. section 28-1-105(a) was extended. The dismissal is affirmed.

http://www.tba2.org/tba_files/TCA/2009/johnsont_040309.pdf

STATE OF TENNESSEE v. MARK ANTHONY BUNTLEY

Court: TCCA

Attorneys:

Andrew Jackson Dearing, Shelbyville, Tennessee, for the appellant, Mark Anthony Buntley.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Mark Anthony Buntley, was convicted by a jury of bribing a witness, a Class C felony. For his conviction, the defendant was sentenced to nine years in the Tennessee Department of Correction. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his conviction; and (2) whether the trial court imposed an excessive sentence.

http://www.tba2.org/tba_files/TCCA/2009/buntleym_040309.pdf

DONTEZ SHELTON FLOWERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

S. Craig Moore, Fayetteville, Tennessee, for the appellant, Dontez Shelton Flowers.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; Hollyn L. Hewgley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Dontez Shelton Flowers, appeals the Lincoln County Circuit Court's denial of his petition for post-conviction relief. On appeal, the petitioner argues that: (1) his initial 2005 community corrections sentence was illegal in that it imposed a two-year term of incarceration; (2) the trial court improperly found him guilty of violating his community corrections sentence in that he was not actually on community corrections when he violated one of the terms of the community corrections agreement; and (3) he received the ineffective assistance of counsel as related to his plea of violating community corrections. After reviewing the record, we conclude that the petitioner's first issue was untimely raised and that the other two issues are without merit. Accordingly, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/flowersd_040309.pdf

KASSY JANIKOWSKI v. DWIGHT BARBEE, WARDEN (STATE OF TENNESSEE)

Court: TCCA

Attorneys:

Kassy Janikowski, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and John Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Kassy Janikowski, appeals the Shelby County Criminal Court order dismissing her petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the order pursuant to Rule 20, Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/janikowskik_040309.pdf

JANICE SCHAAP JOHNSON v. MARK LANIER JOHNSON

Court: TCCA

Attorneys:

Janice S. Johnson, Nashville, Tennessee, Pro Se.

Roger Reid Street, Jr. and M. Matthew Milligan, Franklin, Tennessee, for the appellee, Mark L. Johnson.

Judge: DINKINS

Husband filed Petition to Modify Child Support because, among other things, one of the minor children turned eighteen. Following a hearing on the matter, the trial court found that a significant variance in the circumstances existed to require the modification of each party's child support obligation. On appeal, Wife raises issues with the trial court's (1) imputation and calculation of both party's annual income; (2) allocation of the children's private school tuition; (3) failure to hold a hearing on Wife's Motion to Rehear; (4) suspension of discovery and failure to address a pending Motion to Compel; and (5) failure to award legal expenses. Finding that the trial court did not err, we affirm its decision in all respects.

http://www.tba2.org/tba_files/TCCA/2009/johnsonj_040309.pdf

STATE OF TENNESSEE v. COREY DWAN JORDAN a/k/a/ FREDERICK ANDRE ABERNATHY

Court: TCCA

Attorneys:

Gregory M. Galloway, Nashville, Tennessee, for the appellant, Corey Dwan Jordan, a/k/a Frederick Andre Abernathy.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

A Bedford County jury found the defendant, Corey Dwan Jordan, a/k/a Frederick Andre Abernathy, guilty of one count of selling 0.5 grams or more of a Schedule II controlled substance (cocaine) and one count of delivery of 0.5 grams or more of a Schedule II controlled substance (cocaine), both Class B felonies. The trial court merged the two counts and sentenced the defendant to eighteen years in the Department of Correction as a Range II, multiple offender. On appeal, the defendant argues that: (1) the trial court erred by denying his motion to sit somewhere other than next to defense counsel at trial; (2) the trial court overruled the defendant's motion to exclude certain hearsay testimony; (3) the evidence was insufficient to sustain his conviction; and (4) the trial court erred by admitting evidence of pending charges against him at his sentencing hearing. The State argues that this appeal should be dismissed based upon an untimely filed notice of appeal. After reviewing the record, we conclude that the notice of appeal was untimely filed and that the interests of justice do not support our waiving of the timeliness requirement in this case. Accordingly, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2009/jordanc_040309.pdf

STATE OF TENNESSEE v. DAVID MARK McDADE

Court: TCCA

Attorneys:

Vanessa Pettigrew Bryan, District Public Defender; Dana M. Ausbrooks, Assistant District Public Defender, for the appellant, David Mark McDade.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim R. Helper (on appeal) and Ronald L. Davis (at trial), District Attorneys General; Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, David Mark McDade, pled guilty to one count of aggravated assault, a Class C felony, and was sentenced to four years in the Department of Correction as a Range I, standard offender. The defendant appeals, arguing that the trial court erred in denying the defendant full probation and ordering him to serve his sentence in confinement. After reviewing the record, we conclude that the trial court properly sentenced the defendant and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mcdaded_040309.pdf

COREY MOTEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kim D. Meloni, Memphis, Tennessee, for the appellant, Corey Moten.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachael Newton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Corey Moten, appeals the post-conviction court's denial of his petition for post-conviction relief. On appeal, he argues that he received the ineffective assistance of counsel. Specifically, he argues that his trial counsel was ineffective in failing to challenge the suppression of his statement on the grounds that it was involuntarily given. After a thorough review of the record and the parties' briefs, the judgment of the post-conviction court denying post-conviction relief is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/motenc_040309.pdf

STATE OF TENNESSEE v. TONEKA Y. REID

Court: TCCA

Attorneys:

Dana M. Ausbrooks and David Ausbrooks, Assistant District Public Defenders, attorneys for appellant, Toneka Y. Reid.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Kim R. Helper, District Attorney General; and Derek K. Smith, Deputy District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Toneka Y. Reid, appeals as of right from her jury conviction in the Williamson County Circuit Court of theft of property valued at five hundred dollars or less, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and twenty-nine days to be served in jail. The defendant contends that the trial court erred in denying her motion to suppress and in denying probation or alternative sentencing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/reidt_040309.pdf

STATE OF TENNESSEE v. STANLEY M. ZELEK, II

Court: TCCA

Attorneys:

Michael Clemons, Lebanon, Tennessee, for the appellant, Stanley M. Zelek, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General, Tom P. Thompson, Jr., District Attorney General; Linda D. Walls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Stanley M. Zelek, II, was convicted by a jury in the Criminal Court for Wilson County of driving under the influence (DUI), a class A misdemeanor. After he waived his right to have a jury determine whether he had prior DUI convictions, the court convicted him of third offense driving under the influence. The defendant received a sentence of eleven months and twenty-nine days consisting of 300 days' incarceration, 120 of which to be served day-for-day, and sixty-four days' probation. The defendant waived his right to have a jury determine the amount of the fine for his conviction, and the trial court set a fine of $1100 and revoked the defendant's driver's license for five years. The court also determined that the defendant violated the implied consent law and revoked his license for one year. On appeal, the defendant contends: (1) the trial court erred in determining that the defendant was neither "stopped" nor "seized" by the arresting officer; (2) the trial court erred in denying the defendant's motion to suppress regarding the seizure giving rise to the charges; and (3) the trial court erred in taking judicial notice of a city ordinance and basing its denial of the suppression motion on this ordinance. We affirm the judgment of conviction, but we remand the case for the trial court to correct the implied consent license suspension to two years pursuant to Tennessee Code Annotated section 55-10-406(a)(4)(A)(ii) (Supp. 2003).

http://www.tba2.org/tba_files/TCCA/2009/zeleks_040309.pdf

Effect of Senate Bill 1061

TN Attorney General Opinions

Date: 2009-03-04

Opinion Number: 09-45

http://www.tba2.org/tba_files/AG/2009/ag_09_45.pdf

County Board of Education Donations to 501(c)(3) Non-Profit Organization

TN Attorney General Opinions

Date: 2009-04-03

Opinion Number: 09-46

http://www.tba2.org/tba_files/AG/2009/ag_09_46.pdf

County Employees Sued in Individual Capacities

TN Attorney General Opinions

Date: 2009-04-03

Opinion Number: 09-47

http://www.tba2.org/tba_files/AG/2009/ag_09_47.pdf

Conflict of Interest: Chairman of County School Board

TN Attorney General Opinions

Date: 2009-04-03

Opinion Number: 09-48

http://www.tba2.org/tba_files/AG/2009/ag_09_48.pdf

Legislature's Power to Pass Laws Regulating Service of Process in General Sessions Courts

TN Attorney General Opinions

Date: 2009-04-03

Opinion Number: 09-49

http://www.tba2.org/tba_files/AG/2009/ag_09_49.pdf

TODAY'S NEWS

Legal News
Justice 4ALL
Legislative News
TBA Member Services

Legal News

Ruling takes judge off the case

An East Tennessee judge has been benched -- at least temporarily -- because of an "appearance of bias and prejudice" against a Greeneville law firm, the Tennessee Supreme Court said in a recently delivered opinion. Lawyers for John T. Milburn Rogers had argued that a long-running feud between 3rd Judicial District Judge John Wilson and their client left him unable to fairly try a case being handled by Rogers. The court agreed.

Appointments could change face of 2 appeals courts

President Barack Obama on Thursday nominated a federal judge from Maryland and another from New York to serve on U.S. appeals courts, moving to change the political balance of both the 2nd and 4th U.S. Circuit Courts of Appeals.

News Channel 9 in Chattanooga has the story

Gay marriage OK in Iowa

Iowa became the third state -- and the first in the nation's heartland -- to legalize gay marriage. The state's Supreme Court ruled today that a state law restricting marriage to between a man and woman violated Iowa's constitution.

The Commercial Appeal has more

Justice 4ALL

Lewis to host 4ALL web cast

Get a live report on Saturday's 4-4 Pro Bono Public Service Day activities at 11:30 a.m., when the TBA presents a live webcast with TBA President Buck Lewis. The report will provide an update from the 44-plus public services events occurring across the state. Following the webcast, Lewis will travel to Knoxville to observe pro bono efforts there.

Watch it here

Hug a great reward for pro bono work

The satisfaction that comes with taking on a pro bono case can be great -- even if it involves more than 60 hours of your time, Memphis lawyer Kacey Faughnan tells the Memphis Commercial Appeal. "It was the first time a client has ever hugged me," Faughnan recalled. "She hugged me in court. She was incredibly appreciative." The article uses Faughnan's experience and that of her client as part of a story outlining the need for legal services for the poor and upcoming 4-4 Pro Bono Public Service Day events in Memphis.

Read the Memphis Commercial Appeal story

40-plus Chattanooga lawyers to volunteer

More than 40 Chattanooga lawyers have volunteered to take part in 4-4 Pro Bono Public Service Day events there this Saturday, the Chattanooga Times Free Press reports. The newspaper also offers an interview with TBA Vice President Sam Elliott, who talks about the event as a way to serve the public and raise awareness about the growing problem of providing legal access to the poor.

Also taking part in Saturday's event will be members of CLSA -- Chattanooga Legal Professionals -- who are providing breakfast and lunch for the volunteer attorneys; and members of the Southeast Tennessee Paralegal Association and other paralegals and paralegal students.

Legislative News

Track legislation of interest to Tennessee attorneys

The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.

TBA Bill Tracking Service

TBA Member Services

Free online legal research is hot TBA benefit

Online legal research is available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.

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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.