State Court Summit produces plan of action

Several hundred officials from around the nation agreed on plans to improve relations among all three branches of government, and to work to preserve adequate funding for courts and related government services, at last week's State Court Summit. Among those attending the Charlotte event from Tennessee were: Chief Justice Janice Holder, Administrative Office of the Courts Director Libby Sykes, TBA President Buck Lewis, TBA Executive Director Allan Ramsaur, State Senators Jamie Woodson and Doug Overbey, State Rep. Kent Coleman and Legal Counsel to the Governor Steve Elkins.

Read more about the summit and plans

TODAY'S OPINIONS
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STATE OF TENNESSEE v. JOEY DEWAYNE THOMPSON
CORRECTION - On page 6, second line from bottom of the page, a comma was added after the word "prosecution"


Court: TSC

Attorneys:

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Joey Dewayne Thompson.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe and Cameron L. Hyder, Assistant Attorneys General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant was initially charged with premeditated first degree murder and felony murder of one victim (Counts I and II in the indictment) and the attempted first degree murder of a second victim (Count III). He was found guilty of the lesser-included offense of second degree murder on the first count, a mistrial resulted on the second count, and, as to the third count, the jury acquitted the defendant on the primary charge but returned a guilty verdict of attempted second degree murder, a lesser-included offense. On direct appeal, the Court of Criminal Appeals, because of error in the instructions to the jury, reversed the convictions on Counts I and III and remanded for a new trial. Prior to the second trial, the State voluntarily dismissed Count III, the attempted second degree murder charge, and prosecuted the defendant only on Count I, for second degree murder, and Count II, for felony murder, both of the first victim. After the jury returned verdicts for the lesser-included offenses of voluntary manslaughter on Count I and second degree murder on Count II, the trial court imposed sentence and merged the two convictions. The defendant appealed, contending that because the prior jury had in effect returned a verdict of acquittal on the attempted first degree murder of the second victim, and because the alleged attempted first degree murder was the only possible predicate offense to support the felony murder charge in the retrial, the trial court had erred by allowing the felony murder charge to go to trial. The Court of Criminal Appeals affirmed the conviction. Because collateral estoppel, as a corollary in criminal cases of the constitutional protection against double jeopardy, precludes a guilty verdict on the requisite predicate offense for felony murder, we must reverse and dismiss the second degree murder conviction as a lesser-included offense of the improper primary charge. Otherwise, the judgment of the Court of Criminal Appeals upholding the conviction and sentence for voluntary manslaughter is affirmed.

http://www.tba2.org/tba_files/TSC/2009/thomasj_051509.pdf


TRACY LYNN AUTRY, BY AND THROUGH HER NEXT FRIEND AND MOTHER, CAROL HOOD, AND CAROL HOOD, IN HER INDIVIDUAL CAPACITY v. PHIL HOOKER, TEACHER AT MILAN HIGH SCHOOL; JAMES TOWATER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF SCHOOLS OF THE MILAN SPECIAL SCHOOL DISTRICT; TIM WARREN, AS PRINCIPAL OF MILAN HIGH SCHOOL; JERRY JOHNSON, FEDERAL RIGHTS COORDINATOR OF THE MILAN SPECIAL SCHOOL DISTRICT; AND BOARD OF DIRECTORS OF THE MILAN SPECIAL SCHOOL DISTRICT

Court: TCA

Attorneys:

Sam J. Watridge, Humboldt, Tennessee, for the appellant, Tracy Lynn Autry.

Jennifer K. Craig and Jay G. Bush, Jackson, Tennessee, for the appellees, James Towater, Tim Warren, Jerry Johnson, and the Board of Directors of the Milan Special School District.

Judge: KIRBY

This appeal involves a sexual harassment claim by a student against a school district. The plaintiff was a student at a high school located in the defendant school district. In her senior year, the plaintiff enrolled in a class taught by the defendant teacher. Several times during class, the teacher made inappropriate comments to the plaintiff. The plaintiff reported the teacher's behavior, an investigation was conducted, and ultimately the teacher received a letter of reprimand. The plaintiff then filed this lawsuit against the teacher, the school district, and other school district employees in their official capacities. The trial court granted summary judgment in favor of the school district and its employees, and it denied summary judgment to the teacher. The plaintiff student now appeals the grant of summary judgment in favor of the school district and its employees. We affirm, concluding that the student's claims essentially alleged civil rights violations and, therefore, these defendants are immune from suit under the GTLA.

http://www.tba2.org/tba_files/TCA/2009/autryt_051509.pdf


JENNIFER H. BROWN v. WILLIAM RICHARD BROWN

Court: TCA

Attorneys:

Jerry W. Hamlin, Ashland City, Tennessee, for the appellant, William Richard Brown.

Robert L. Jackson and Elizabeth A. Garrett, Nashville, Tennessee, for the appellee, Jennifer H. Brown.

Judge: KIRBY

This is a divorce case involving child custody issues. When, the parties married, the mother was nineteen years old and the father was forty-two years old. They had three children during the fifteen-year marriage. The mother filed for divorce. After a trial, the mother was designated as the primary residential parent for the stated reason that the father was then fifty-eight years old and needed to be free to continue to earn income for the benefit of the family for as long as possible. The trial court did not award monthly alimony, but the mother received an award for attorney's fees as alimony in solido. The father now appeals, challenging the trial court's designation of the mother as the primary residential parent and its award of attorney's fees to the mother. We affirm, finding no abuse of the trial court's discretion in either decision.

http://www.tba2.org/tba_files/TCA/2009/brownj_051509.pdf


JAMES CAMPBELL v. GEORGE LITTLE, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF CORRECTION, RICKY BELL, WARDEN, AND MIKE CRUTCHER, DEPUTY WARDEN

Court: TCA

Attorneys:

James Campbell, Nashville, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Kellena Baker, Assistant Attorney General, for the appellees, George Little, Commissioner of the Tennessee Department of Correction; Ricky Bell, Warden; and Mike Crutcher, Deputy Warden.

Judge: KIRBY

This is a petition for common law writ of certiorari. The petitioner, a prisoner, was convicted of possession of drugs by the prison disciplinary board. He filed this petition for a writ of certiorari challenging his administrative conviction. The prisoner's petition, however, was not properly verified, and it did not state that it was the first application for the writ. On these bases, the respondents filed a motion to dismiss the petition. The petitioner filed a motion for leave to file an amended petition to cure the defects. The trial court denied the petitioner's motion to amend, because it was not filed within sixty days after the final decision of the lower tribunal. It granted the respondents' motion to dismiss. We affirm the trial court's denial of the petitioner's motion to amend and its dismissal of the initial petition.

http://www.tba2.org/tba_files/TCA/2009/campbellj_051509.pdf


IN THE MATTER OF: C.W.M., M.L.M., AND T.G.M.

Court: TCA

Attorneys:

Bud Sharp, McMinnville, Tennessee, for the appellant, the children's father.

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

Judge: CLEMENT

Father of three minor children appeals the termination of his parental rights. The trial court terminated Father's rights on the grounds he abandoned the children by failing to provide a suitable home, the persistence of the conditions that resulted in removal from Father's custody, and Father's failure to substantially comply with the permanency plans, and upon the finding that termination was in the children's best interests. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2009/cwm_051509.pdf


DAVID ARNOLD FERRELL v. FLETCHER LONG

Court: TCA

Attorneys:

David Arnold Ferrell, Spencer, Tennessee, Pro Se.

Edward T. Farmer, Springfield, Tennessee, for the appellee, Fletcher W. Long.

Judge: BENNETT

The plaintiff, who paid for legal representation for his brother, sued the attorney for breach of contract, fraud, theft by deception and conversion. The trial court found that the suit had been commenced after the statute of limitations had run. The plaintiff appealed, claiming that his motion for default judgment should have been granted, the statute of limitations had not run, and the judge should have recused himself. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2009/ferrelld_051509.pdf


JAMES HILL v. TENNESSEE BOARD OF PROBATION AND PAROLE

Court: TCA

Attorneys:

James Hill, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jennifer L. Brenner, Nashville, Tennessee, for appellee, Tennessee Board of Probation and Parole.

Judge: FRANKS

The petitioner filed Writ of Certiorari, seeking a review of the actions of defendant. The Trial Judge, reacting to defendant's Motions, dismissed the Petition without prejudice on the grounds that petitioner had not complied with Tenn. Code Ann. section 41-21-801, et seq., and had not complied with the requirements of the statutes, viz., 41-21-805 and 41-21-807. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2009/hillj_051509.pdf


BOOKER T. HOLLOWAY and wife, BRENDA HOLLOWAY v. JAMES C. PURDY and CHRIS PURDY

Court: TCA

Attorneys:

Stephen W. Vescovo, Memphis, Tennessee, for the Intervening Plaintiff/Appellant State Farm Mutual Automobile Insurance Company.

Andrew H. Owens, Memphis, Tennessee, for the Uninsured Motorist Defendant/Appellee Clarendon National Insurance Company.

Judge: KIRBY

This appeal involves the Tennessee Uninsured Motorist Act. The plaintiffs owned a body shop that was insured under a garage owner's policy. The policy limited its uninsured motorist coverage to vehicles that were owned by the plaintiffs and listed on the policy. While driving to an auto parts store in a customer's car, one of the plaintiffs was hit by an uninsured motorist and sustained physical injuries. The plaintiffs then submitted claims to the insurance company that issued the garage owner's policy, and also to his customer's insurance company, seeking recovery under the uninsured motorist provisions of both policies. After the claims were denied, the plaintiffs filed a lawsuit against the uninsured motorist. The insurance company that issued the plaintiffs the garage owner's policy filed a motion for summary judgment, arguing that there was no coverage because the policy did not cover the plaintiffs while operating a non-owned vehicle. The trial court granted the motion for summary judgment. As a permissive operator, the injured plaintiff was covered under his customer's uninsured motorist policy. The customer's insurance company settled with the plaintiffs, obtained an assignment of their rights against the insurance company that issued them the garage owner's policy, and then intervened as a third party plaintiff. The intervening plaintiff now appeals the trial court's grant of summary judgment to the insurer under the garage owner's policy, arguing that the Uninsured Motorist Act prohibits such a limitation. We affirm, finding that the statute does not prohibit the limitation.

http://www.tba2.org/tba_files/TCA/2009/hollowayb_051509.pdf


TARRA HOWELL AND DENNIS LEE MOODY v. TANYA DEE BALLARD AND JOHNNY FREEMAN

Court: TCA

Attorneys:

Lanis L. Karnes, Jackson, Tennessee, for the respondent/Appellant Tanya Dee Ballard.

Betty Stafford Scott and Mary Jo Middlebrooks, Jackson, Tennessee, for the Petitioner/Appellee Tarra Howell.

Judge: KIRBY

This case involves the termination of parental rights. The mother has a history of criminal activity and past incarcerations, including one for facilitation of murder, and is currently incarcerated. Between incarcerations, the mother lived with her boyfriend, the father of the two youngest of the mother's five children. The mother's boyfriend is incarcerated for raping and sexually abusing the mother's two oldest daughters. With both the mother and her boyfriend incarcerated, the mother's sister obtained custody of the children and filed this petition to terminate the mother's parental rights. The trial court terminated the mother's parental rights, finding several grounds for termination and that termination was in the best interest of the children. The mother appeals, arguing that the termination order did not satisfy the statutory requirements, that the trial court erred in finding that grounds for termination exist, and that termination of the mother's parental rights is not in the best interest of the children. We find that the trial court's order, while less than optimal, satisfies the requirements of the statute as to one ground for termination. As to that ground, clear and convincing evidence supports the trial court's finding, as well as the finding that termination of the mother's parental rights is in the children's best interest. Therefore, we affirm.

http://www.tba2.org/tba_files/TCA/2009/howellt_051509.pdf


IN THE MATTER OF: Q.D.B, A.R.P., A.T.P. and A.A.W.

Court: TCA

Attorneys:

W. Ray Glasgow, Memphis, Tennessee, for the appellant, Kelly Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jill Z. Grim, Assistant Attorney General, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: FARMER

Mother appeals the trial court's judgment terminating her parental rights based on persistence of conditions. We affirm.

http://www.tba2.org/tba_files/TCA/2009/qdb_051509.pdf


STATE OF TENNESSEE v. TAMMY GARNER

Court: TCCA

Attorneys:

Robert G. Morgan, Jasper, Tennessee, for the Appellant, Tammy Garner.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Frank Borger-Gilligan, Assistant Attorney General; J. Michael Taylor, District Attorney General; Stephen Strain, Assistant District Attorney General, for the State of Tennessee.

Judge: WEDEMEYER

A Grundy County jury convicted the Defendant, Tammy Garner, of theft of property valued at less than $500. The trial court sentenced her to serve one month in jail, followed by nine months on probation, and to pay $500 in restitution. On appeal, the Defendant claims that: (1) the evidence presented was insufficient to support her conviction; and (2) the trial court erroneously sentenced her. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/garnert_051509.pdf


TRACY LYNN HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Tracy Lynn Harris, Petros, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Hansel Jay McCadams, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, Tracy Lynn Harris, appeals from the Carroll County Circuit Court's denial of his motion to withdraw his guilty pleas. Following our review, we affirm the denial of the motion.

http://www.tba2.org/tba_files/TCCA/2009/harrist_051509.pdf


JEFFREY McKINNIE v. JOE EASTERLING, WARDEN

Court: TCCA

Attorneys:

Jeffrey McKinnie, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe L. VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Jeffrey McKinnie, appeals the dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2009/mckinniej_051509.pdf


STATE OF TENNESSEE v. DEVON WIGGINS

Court: TCCA

Attorneys:

H. Tod Taylor, Dyersburg, Tennessee, for the appellant, Devon Wiggins.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Lance Webb, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Dyer County Circuit Court jury convicted the appellant, Devon Wiggins, of two counts of selling one-half gram or more of cocaine within a drug-free school zone, and the trial court sentenced him to twenty-five years for each conviction to be served concurrently with each other but consecutively to prior sentences. The trial court also ordered the appellant to pay a five-thousand-dollar fine for each conviction. On appeal, the appellant contends that (1) Tennessee Code Annotated section 39-17-432 (2005) violates due process and resulted in his receiving an excessive sentence; (2) the evidence is insufficient to support the convictions; (3) the trial court erred by denying his motion for a bifurcated trial; (4) the trial court erred by refusing to instruct the jury on the sale of a counterfeit substance; (5) the trial court erred by failing to instruct the jury on facilitation as a lesser included offense; (6) the trial court erred by not recusing itself; (7) the prosecutor's closing statement was improper; and (8) the cumulative effect of the errors warrants a reversal of his convictions. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wigginsd_051509.pdf


Commissioner's Authority Under SB 976 to Regulate On Duty Carrying of Firearms

TN Attorney General Opinions

Date: 2009-05-15

Opinion Number: 09-85

http://www.tba2.org/tba_files/AG/2009/ag_09_85.pdf

TODAY'S NEWS

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TBA Member Services

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ABA president praises 4ALL efforts at national conference
Tennessee attorneys who have taken part in the TBA's Justice 4ALL campaign were praised by ABA President H. Thomas Wells Jr. during his luncheon address today at the 2009 Equal Justice Conference in Orlando. Wells highlighted the 4ALL program as an example of lawyers making a difference in providing access to justice to Americans in need.

Holder talks on court's role in access to justice efforts
Chief Justice Janice Holder spoke today on the role of state Supreme Courts in access to justice initiatives during the annual ABA Equal Justice Conference in Orlando. Justice Holder was joined by more than a dozen other Tennesseans at the gathering, which brings together all components of the legal community to discuss equal justice issues as they relate to the delivery of legal services to the poor and low-income individuals in need of legal assistance. Among those joining Justice Holder were: Access to Justice Commission Chair Margaret Behm; TBA Access to Justice Coordinator Anjanette Eash; AOC Access to Justice Coordinator Becky Rhodes; Tennessee Alliance for Legal Services Director Erik Cole; and 10 members of the TBA Access to Justice Committee, including its chair, Deb House.

Corker adds support for LSC funding increase
Tennessee Senator Bob Corker has joined in a bi-partisan dear colleague letter to the Senate Appropriations Committee urging an increase in Legal Service Corporation funding for the 2010 fiscal year. The effort calls for funding LSC at $435 million next year, some $45 more than in the current year. The letter says in part "Access to the legal assistance they need may well mean the difference between shelter and homelessness; medical assistance and unnecessary physical suffering; food on the family table and constant hunger; economic stability and bankruptcy; productive work and unemployment."
Read the full letter
GOP leader says he'll be tougher on court nominee
The top Republican on the U.S. Senate Judiciary Committee says his party should have been more forceful in evaluating the last two Democratic nominees for the Supreme Court. In an interview with C-SPAN scheduled to air Sunday at 9 a.m. and 5 p.m. Central time, Sen. Jeff Sessions, R-Ala., vowed a thorough confirmation process for President Barack Obama's choice to succeed retiring Justice David Souter, declining to rule out a filibuster.
The Blog of Legal Times has more
Race for juvenile court clerk draws crowd
With the recent campaign launch from Nashville court officer David Smith, the race for juvenile court clerk has gotten more crowded. Already in the field are incumbent Vic Lineweaver, Metro Council member Vivian Wilhoite and Metro School Board member Karen Johnson. Lineweaver has been a controversial figure this past term, when he was hit with two contempt of court charges for not producing necessary court files to referees.
Read more about the race in the City Paper
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Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
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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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