Thursday, May 21, 2009
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Judicial selection update: Competing bills will move forward next week

The House adjourned for the weekend before completing its calendar and taking up what appears to be the leading bill (HB1448 by Lundberg, McCord, Coleman) to continue merit selection and retention elections in Tennessee. The House should now take up the bill next Thursday. The Senate Finance Committee will take up the companion bill (SB1573 by Woodson, Norris) on Tuesday morning when the Senate returns from its long Memorial Day weekend.

"Supporters of merit selection and retention elections should be contacting their local lawmakers this weekend to ask for their support," said Sen. Doug Overbey (R-Maryville), a principal Republican supporter of merit selection in the Senate, in commenting on the proposals.

Meanwhile, advocates are keeping a close eye on a competing measure (SB2114, HB2141) which, as amended by Senate Government Operations Committee, would do away with merit selection and leave the governor with unchecked power to appoint. While it offers retention elections for the intermediate appellate courts, the measure insists on contested elections for the Tennessee Supreme Court, including the 2010 election for the seat held by Justice Sharon Lee. The companion to that bill, sponsored in the Senate by Sen. Mark Norris (R-Collierville) and amended by Sen. Dewayne Bunch (R-Cleveland), is still in the House Budget Subcommittee having been rolled for a week.
TODAY'S OPINIONS
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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 A.M.B.

Court: TCA

Attorneys:

Gary M. Williams, Hendersonville, Tennessee, for the appellants, Laveta Suzette Graham and Candice C. Graham.

Renard A. Hirsch, Sr., Nashville, Tennessee, for the appellee, Mitchell Ballard.

Judge: DINKINS

Former girlfriend of father and girlfriend's mother ("Petitioners") brought action seeking custody of father's child who lived with Petitioners for approximately five years. At a hearing to determine custody of the child, prior to the conclusion of Petitioner's case in chief, the juvenile court denied the custody petition; Petitioners appeal. Finding error, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2009/amb_052109.pdf
HOPE DENTON v. JAMES G. HAGGARD

Court: TCA

Attorneys:

Joseph Michael Dalton, Nashville, Tennessee, for the appellant, Hope Denton.

Michael Everett Spitzer, Hohenwald, Tennessee, for the appellee, James G. Haggard.

Judge: BENNETT

Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.

http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf
DORIS G. HOWELL, as Next of Kin and as Guardian of JESSIE J. WILLIAMS, a minor child of GINGER WILLIAMS, deceased, ET AL. v. DAVID M. TURNER, M.D., ET AL.

Court: TCA

Attorneys:

Dixie W. Cooper and Chris J. Tardio, Nashville, Tennessee, for the appellants, David M. Turner,M.D., David M. Turner, M.D., PC, David M. Turner, M.D., PLLC and Maury Emergency Physicians, PLLC

John A. Day, Rebecca C. Blair and Laura W. Bishop, Brentwood, Tennessee for the appellee, Doris G. Howell, as next of kin and as guardian of Jessie J. Williams, minor child of Ginger Williams, deceased and on behalf of Ginger Williams, deceased.

Judge: FARMER

This appeal arises out of the death of Ginger Williams ("Ms. Williams" or "Decedent") after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.

http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf
GEORGE A. KELLER v. LISA L. KELLER

Court: TCA

Attorneys:

Patricia A. Rust, Clarksville, Tennessee, for the appellant, George August Keller.

Gary J. Hodges, Clarksville, Tennessee, for the appellee, Lisa L. Keller.

Judge: BENNETT

Father filed a petition to modify the divorce decree, alleging that there had been a material change of circumstances such that the court should modify the parenting plan to make him the primary residential parent of the parties' child. The trial court found no material change of circumstances. Father appealed. We reverse.

http://www.tba2.org/tba_files/TCA/2009/kellerg_052109.pdf
REBECCA METTES v. J. THOMAS JOHN, JR., M.D.

Court: TCA

Attorneys:

Jeffrey B. Cox, Murfreesboro, Tennessee, for the appellant, Rebecca Mettes.

Michael F. Jameson, Nashville, Tennessee, for the appellee, J. Thomas John, Jr., M.D.

Judge: BENNETT

In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.

http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf
MARY HYDE RUTLEDGE v. ROBERT LEE RUTLEDGE

Court: TCA

Attorneys:

Robert Lee Rutledge, Prospect, Tennessee, Pro Se.

David A. Kozlowski, Columbia, Tennessee, for the appellee, Mary Hyde Rutledge.

Judge: COTTRELL

After entry of Agreed Order that granted a divorce and divided the parties' assets and liabilities, Husband appealed the Agreed Order alleging Wife withheld relevant financial information. The appeal is dismissed since the avenue to challenge an order based upon misconduct is under Tenn. R. Civ. Pro. 60.02, which gives the trial court an opportunity to decide the issue prior to any appeal.

http://www.tba2.org/tba_files/TCA/2009/rutledgem_052109.pdf
STATE OF TENNESSEE v. CURTIS LEE MAJORS
With Dissenting Opinion

Court: TCCA

Attorneys:

J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Curtis Lee Majors.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Robert E. McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Davidson County Grand Jury indicted the defendant, Curtis Lee Majors, on one count of possession with intent to sell or deliver less than 0.5 grams of cocaine within 1000 feet of a school, a Class B felony, and one count of tampering with evidence, a Class C felony. After a jury trial, the defendant was convicted of the lesser included offense of misdemeanor possession of cocaine, a Class A misdemeanor. The jury also convicted the defendant of evidence tampering as charged in Count 2 of the indictment. The trial court sentenced the defendant to fifteen years in the Department of Correction as a Range III, persistent offender. On appeal, the defendant contends that: (1) the evidence was insufficient to sustain his conviction for tampering with evidence; (2) the trial court gave an erroneous jury instruction regarding tampering with evidence; and (3) the trial court refused to apply one of the mitigating factors proposed by the defendant at his sentencing hearing. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/majorsc_052109.pdf

WITT DISSENTING
http://www.tba2.org/tba_files/TCCA/2009/majorsc_diss_052109.pdf
HB 1204 - State Selenium Water Quality Criteria and the Federal Clean Water Act

TN Attorney General Opinions

Date: 2009-05-21

Opinion Number: 09-93

http://www.tba2.org/tba_files/AG/2009/ag-09_93.pdf
Effect of Expiration of State Election Commission

TN Attorney General Opinions

Date: 2009-05-21

Opinion Number: 09-92

http://www.tba2.org/tba_files/AG/2009/ag_09_92.pdf
TODAY'S NEWS
Legal News
Legislative News
TBA Convention 2009
Disciplinary Actions
Your Practice
TBA Member Services
Legal News
Van Horn plans for TBA presidency
Newly elected TBA vice president Danny Van Horn talks about his hopes and plans for his presidency in 2011. And about how he couldn't wipe the smile off his face for hours after he learned of his victory.
The Memphis Daily News has the story
Former Memphis prosecutor says crack convictions unfair
Veronica Coleman-Davis, the U.S. attorney for the western district of Tennessee from 1993 to 2001, was one of seven witnesses testifying today before the House Judiciary subcommittee about the effect of the disparity between federal sentences for convictions for possession of powder and crack cocaine. She and others also testified that the disproportionate share of convictions for crack offenses are African Americans and that the system is perceived to be unfair.
Read more in the Commercial Appeal
Smith elected to serve end of Morris's term
Attorney Jimmy Smith of Troy, Tenn., was elected by the Obion County Commission to serve as the temporary replacement for outgoing General Sessions Judge Raymond Morris of Union City. Morris will retire July 1.
NorthWest Tennessee Today reports
Rule of law conference draws two court candidates
Two candidates for the impending vacancy on the Supreme Court took part in a conference Wednesday at Georgetown University Law Center on the importance of judicial independence. Solicitor General Elena Kagan gave the keynote address at the event and federal appeals court judge Diane Wood attended.
NewsChannel 9 reported this AP story
Legislative News
Dispute Resolution Section forms study commitee on AFA
TBA Dispute Resolution Section Chair Mark Travis appointed Bob Arrington and Marnie Huff to co-chair a study committee on the Arbitration Fairness Act of 2009 (AFA), pending in Congress as S. 931 and H.R. 1020. The AFA would significantly change the Federal Arbitration Act. The committee's purpose is to research the legislation and make recommendations to the Dispute Resolution Section Executive Council. The council will then decide on making recommendations to TBA leadership regarding what position, if any, to take on the AFA. Membership on the committee will be drawn from the dispute resolution section and other TBA sections in order to have a diversity of viewpoints.
TBA Convention 2009
Register for convention before prices go up May 23
Register now for the Tennessee Bar Association convention before the prices go up -- late fees apply after May 23. Of the many hot topics to be covered this year in Memphis, June 18-20, will be discussion between former Senator Howard Baker and former Congressman Harold Ford Jr. on the best way to get America back on track. It promises to be an exciting session -- historic enough that CSPAN has expressed interest in covering it.
Register here now
Disciplinary Actions
Nashville lawyer reinstated
By order of the Supreme Court entered on May 11, Nashville lawyer William W. Leech was reinstated to the practice of law, conditioned upon his continued compliance through December 2012 with his Tennessee Lawyer's Assistance Program (TLAP) Monitoring Agreement and a practice monitor.
Read the BPR release
Clinton lawyer censured
On May 18 Clinton lawyer Victoria H. Bowling received a public censure from the Tennessee Supreme Court. A petition for discipline was filed against her pursuant to Rule 9 of the Rules of the Supreme Court of Tennessee, violations of the Rules of Professional Conduct 3.5 and 8.4 by being found in criminal contempt for derogatory remarks and conduct disruptive to the Juvenile Court of Anderson County.
Read the BPR release
Your Practice
Apparently, judges do notice what you are wearing
Judges at the Seventh Circuit Bar Association meeting recently covered on the subject of how women dress for court with one senior judge admitting that he sometimes couldn't help but look. Women come into court wearing "skirts so short that there's no way they can sit down and blouses so short there's no way the judges wouldn't look," said Judge Michael McCuskey, chief judge of the U.S. District Court for the Central District of Illinois and a panel member. Another, Bankruptcy Judge Benjamin Goldgar said, "You don't dress in court as if it's Saturday night and you're going out to a party. Dress as a serious person who takes the court seriously."
Law.com carried this National Law Journal story
TBA Member Services
TBA, Bank of America team up for no-fee credit card
The TBA World Points Rewards MasterCard from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
Click here to learn more

 
 
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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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