Legislative committees pass different judicial election bills

The state's two legislative chambers advanced different judicial election proposals from their respective Government Operations committees today. The Senate committee voted out SB2114 by Senate Majority Leader Mark Norris, R-Collierville, and Dewayne Bunch, R-Cleveland, as amended and reported on yesterday in TBA Today. That bill would abolish merit selection, replacing it with unfettered gubernatorial appointments to fill vacancies. Supreme Court justices appointed to fill unexpired terms would run in contested, partisan elections in 2010 and 2012, and all five justices would be up for partisan contested elections in 2014. Lt. Governor and Senate Speaker Ron Ramsey, R-Blountville, was summoned to the committee and in a rare move voted to break a party-line tie vote to refer the bill to the Senate Judiciary Committee.

Less than an hour later the House Government Operations Committee moved HB1448 -- not a companion to the Senate proposal -- which is sponsored by Rep. Joe McCord, R-Maryville, and was amended in the House Judiciary Committee last week to continue merit selection with a restructured judicial selection commission and to bring a greater degree of transparency to the proceedings. That bill now goes to the Finance Committee for final consideration before floor action.

Legislation by House Judiciary Committee Chair Kent Coleman, D-Murfreesboro, and Vice Chair Jon Lundberg, R-Kingsport, which contains provisions similar to the McCord measure will be heard next week.

Read more in the Knoxville News Sentinel's Humphrey on the Hill blog

TODAY'S OPINIONS
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CITY OF LAKEWOOD ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
CORRECTION appears on page ten (10) of the opinion.


Court: TCA

Attorneys:

Jonathan Harwell, D. Alexander Fardon, and D. Matthew Foster, Nashville, Tennessee, for the appellant, City of Forest Hills.

James Blumstein, Nashville, Tennessee, Special Counsel for City of Forest Hills.

Joe M. Haynes, Goodlettsville, Tennessee, for the appellant, City of Goodlettsville.

Lora Barkenbus Fox, Kevin Klein, Kathryn Evans, James W. J. Farrar, Paul J. Campbell, and Matthew J. Sweeney, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County, Tennessee.

Judge: BENNETT

Six cities within Davidson County sued the Metropolitan Government claiming they were discriminated against in the provision of services in violation of Metropolitan Charter section 18.15. The chancellor held that the matter was nonjusticiable. Two cities appealed. We reverse the chancellor's order and, in the interest of judicial economy, determine the meaning of section 18.15.

http://www.tba2.org/tba_files/TCA/2009/cityoflakewood_Corr_042909.pdf


KAYE LOCKWOOD v. RONALD G. HUGHES, ET AL.

Court: TCA

Attorneys:

Jean Dyer Harrison, Nashville, Tennessee, for the appellant, Kaye Lockwood.

Joseph M. Huffaker and Mary Beth Haltom, Nashville, Tennessee, for the appellees, Ronald G. Hughes and Patricia T. Hughes and d/b/a Ronny Hughes Builders.

Judge: DINKINS

Buyer of home filed complaint against Sellers for, among other things, violation of the Tennessee Consumer Protection Act ("TCPA"). The trial court granted summary judgment to Sellers on the TCPA claim on the ground that it was barred by the statute of repose. Buyer filed a Motion to Alter or Amend the Judgment, raising a new argument, which the trial court denied. On appeal, Buyer challenges: (1) the trial court's grant of summary judgment, asserting that material facts were in dispute regarding Buyer's allegation that Sellers fraudulently concealed defects in the home and that the fraudulent concealment tolled the statute of repose and (2) the trial court's failure to consider the new argument raised in Buyer's Motion to Alter or Amend. Finding the trial court's actions to be proper in all respects, we affirm the decision.

http://www.tba2.org/tba_files/TCA/2009/lockwoodk_042909.pdf


DONALD WAYNE ROBBINS AND JENNIFER LYNN ROBBINS, FOR THEMSELVES AND AS NEXT FRIEND OF ALEXANDRIA LYNN ROBBINS v. PERRY COUNTY, TENNESSEE, A GOVERNMENTAL ENTITY

Court: TCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the appellants, Donald Wayne Robbins and Jennifer Lynn Robbins.

James I. Pentecost, Jackson, Tennessee, for the appellee, Perry County, Tennessee.

Judge: CLEMENT

Parents of a sixteen-year-old filed this wrongful death action against Perry County alleging that the failure of the Sheriff's Department to serve an Order of Protection was the proximate cause of a single-vehicle accident in which their daughter died. The mother of the decedent obtained an ex parte Order of Protection against the daughter's boyfriend. Six days later, prior to the order of protection being served, their daughter was involved in a fatal single-vehicle accident while in the company of the boyfriend. When the parents filed suit for wrongful death under the Governmental Tort Liability Act, Perry County filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss claiming, in part, that there was no causal connection between the failure to serve the order of protection and the vehicular accident. The trial court granted the County's Motion to Dismiss. We affirm the dismissal of the Complaint upon the trial court's finding that the Complaint, taking all factual allegations as true and drawing all reasonable inferences from them, does not support a claim for wrongful death because no reasonable person could conclude that the failure to serve the order of protection was either the cause in fact or the legal cause of the vehicular accident and the decedent's death.

http://www.tba2.org/tba_files/TCA/2009/robbinsd_042909.pdf


CHRISTY LEANN SMITH v. LEONA M. PRATT, EXECUTRIX OF THE ESTATE OF STEPHEN M. PRATT, M.D., DECEASED, AND HCA HEALTH SERVICES OF TENNESSEE, INC. D/B/A CENTENNIAL MEDICAL CENTER
CORRECTION


Court: TCA

Attorneys:

Frank Grace, Jr., Brian D. Cummings, Clarence James Gideon, and Brian P. Manookian, Nashville, Tennessee, for the appellants, Leona M. Pratt, Executrix of the Estate of Stephen M. Pratt, M.D., Deceased, and HCA Health Services of TN, Inc. d/b/a Centennial Medical Center.

George H. Nolan and Eric W. Smith, Nashville, Tennessee, for the appellee, Christy Leann Smith.

Judge: BENNETT

Patient sued her surgeon for malpractice and the hospital for allowing the surgeon to practice in its facilities. The trial court ruled that the hospital was not eligible for the qualified immunity provided in Tenn. Code Ann. section 63-6-219(d)(1). We reverse.

http://www.tba2.org/tba_files/TCA/2009/smithc_Corr_042909.pdf


TOM R. SMITH v. THOMAS HARDING POTTER

Court: TCA

Attorneys:

Jay R. Slobey, Nashville, TN, for the Appellant Tom Smith.

Pro Se, for the Appellee, Thomas Harding Potter.

Judge: STAFFORD

Appellant and Appellee are both licensed attorneys practicing in the State of Tennessee. This appeal arises from Appellant's efforts to recover money owed by Appellee on two promissory notes. The trial court found that the promissory notes were executed in recognition of Appellee's debt under two lease agreements. The court concluded that the lease agreements called for fee-splitting between attorneys in violation of Rule 1.5(e) of the Rules of Professional Responsibility. We do not address the merits of the trial court's conclusion on this question. Instead, we find that no final judgment exists in this case.

http://www.tba2.org/tba_files/TCA/2009/smitht_042909.pdf


STATE OF TENNESSEE v. MIKE BROTHERTON
CORRECTION


Court: TCCA

Attorneys:

Matthew M. Maddox, Huntingdon, Tennessee, for the appellant, Mike Brotherton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Hansel McCadams, District Attorney General; and Steven Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Mike Brotherton, pled guilty to the offense of driving under the influence, first offense, and reserved a certified question of law regarding the validity of the traffic stop that resulted in his arrest. After careful review, we conclude that the trooper lacked reasonable suspicion to make the traffic stop and dismiss the charge against the defendant.

http://www.tba2.org/tba_files/TCCA/2009/brothertonm_CORR_042909.pdf


STATE OF TENNESSEE v. DAVID W. FRAZIER
CORRECTION


Court: TCCA

Attorneys:

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, David W. Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Following a jury trial, the defendant, David W. Frazier, was convicted by a Weakley County jury of one count of driving under the influence, second offense, ("DUI 2nd"), a Class A misdemeanor, and sentenced to a term of eleven months and twenty-nine days, sixty days of which was to be served in the county jail. The defendant was initially indicted by a Weakley County jury for DUI 2nd and violation of the implied consent law. He subsequently filed a motion to dismiss the indictment, as the preliminary hearing tape was inaudible. The State agreed, and the court dismissed the indictment. Subsequently, a second preliminary hearing was held, and the defendant was reindicted by a grand jury. The defendant then filed a motion to dismiss the second indictment upon grounds that he had previously been charged and indicted for the same offenses. The court denied the motion. On appeal, he raises the single issue of whether the trial court erred in failing to dismiss the second indictment because the State failed to timely reindict the defendant and because the second indictment violates double jeopardy principles. After review of the record, we find no merit to the defendant's contentions and affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2009/frazierd_CORR_042909.pdf


STATE OF TENNESSEE v. BARRY SINGLETON

Court: TCCA

Attorneys:

Byron B. Winsett and Charles S. Mitchell, Memphis, Tennessee (on appeal), and Leslie I. Ballin, Memphis, Tennessee (at trial), for the appellant, Barry Singleton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles Bell and Pamela Fleming, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Barry Singleton, appeals his convictions for aggravated kidnapping and aggravated rape. The defendant was sentenced to twelve years as a Range I, standard offender for the aggravated kidnapping conviction and to twenty-five years as a violent offender for the aggravated rape conviction. The sentences were ordered to run consecutively for an effective sentence of thirty-seven years. On appeal, he contends that: the evidence was insufficient to support his convictions; the trial court erred in allowing the State to introduce photographs into evidence that had not been provided to the defense prior to trial; it was error to allow a witness not provided to the defendant to testify; it was error to allow the victim to testify without providing the tape recording of her initial statement to police; and the court erred in imposing his sentence with regard to both the length and manner. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/singletonb_042909.pdf


TODAY'S NEWS

Legal News
Legislative News
TBA Convention 2009
Upcoming
TennBarU CLE
TBA Member Services

Legal News
AG settles 3 cases, sues 2 notarios publicos
Tennessee Attorney General Bob Cooper today settled three cases and filed two lawsuits against companies allegedly using misleading advertising to promote themselves as "notarios publicos." The settlement with companies in northern Mississippi, Nashville and Memphis requires them to comply with state advertising law and pay civil penalties and attorneys' fees. The suits, which were brought against companies in Chattanooga and Memphis, seek injunctions, restitution, civil penalties and attorneys' fees.
Read the AG's statement
Short staffing at Memphis rape center raising issues
As early as February, District Atty. Gen. Bill Gibbons recognized critical staffing problems at the Memphis Sexual Assault Resource Center and sought help, writing to the city council. Those concerns now have become public and include delays in testing sexual-assault victims, lack of trained nurses, overworked nurse practioners and management issues.
The Commercial Appeal has more
Baker, Donelson recognized for diversity efforts
The Memphis-based law firm Baker, Donelson, Bearman, Caldwell & Berkowitz PC has been named among the Top 100 Law Firms for Diversity and the Top 100 Law Firms for Women by MultiCultural Law, a magazine focused on diversity in the legal profession. This is the fifth consecutive year the firm has ranked at the top for diversity, and the second consecutive year it has ranked at the top for its inclusion of women. The Memphis Daily News reported the announcement.

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 Convention 2009
Bouffants, Jimmy Church Review to share stage at Memphis event
Memphis is known for great music, so it's no surprise that this year's TBA Annual Convention in the Bluff City features great musical entertainment. One highlight will be the Memphis Music Extravaganza, where the talented and big-haired Bouffants will share the stage with the big sound of the Jimmy Church Review, one of the mid-south's leading dance and show groups. The two bands will alternate performances on one stage to give you a full night of big fun. You won't want to miss this event or any of the other activities and programs scheduled for the 2009 TBA Convention, June 18-20 at the Peabody Hotel in Memphis.
Learn more about the convention or sign up now
Upcoming
UT Law sets preview day
The University of Tennessee College of Law will hold its next preview day on May 22. At the last event in February, more than 50 prospective students attended a presentation by the school that featured a welcome message from Dean Doug Blaze and remarks from current students and faculty about life at the college. For more information about the Preview Day contact the school at (865) 974-2521.

June 15 is elder abuse awareness day
June 15 is the fourth annual World Elder Abuse Awareness Day, and the day will be marked with a global celebration in Paris. For those unable to attend in person, the International Network for the Prevention of Elder Abuse (INPEA) encourages the wearing of purple to express solidarity with those working to raise awareness of and halt elder abuse.
Learn more from INPEA
TennBarU CLE
CLE: Media relations for attorneys
Some of the state's savviest attorneys and media professionals come together to present a hands-on program for attorneys speaking to the media or advising clients on how to deal with the media. This three-hour program will feature sessions on attorneys in the media and clients in the media and include a one-hour panel discussion chaired by attorneys and public relations specialists who compare their diverging views on hypothetical media scenarios. It all takes place May 7 at the Tennessee Bar Center in downtown Nashville.
Register now or find out more about this program
TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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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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