TBA Today

Friday, May 22, 2009

Search our Database for Opinions and News Items

Price for convention goes up after tomorrow -- register now

Sign up now for the Tennessee Bar Association convention before the prices go up -- late fees apply after May 23. You won't want to miss this huge event in Memphis, June 18-20. Your registration includes:

-- Installation of TBA's new president, Gail Vaughn Ashworth, and awards at the Lawyers Luncheon

-- A ground-breaking discussion between former Senator Howard Baker and former Congressman Harold Ford Jr. on the best way to get America back on track

-- Lots of great music! Party at Graceland with the rockabilly music of The Dempseys and the next night, The Bouffants and the Jimmy Church Review

-- Lots of great CLE, including one seminar from the attorneys who were ethics prosecutors in the recent Duke University Lacrosse team case

-- And much more!

Click here for more about the convention

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
07 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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.

ROBERT DANIELS and PEGGY DANIELS, v. MICHAEL D. WRAY

Court: TCA

Attorneys:

Robert P. Gritton, Murfreesboro, Tennessee, for Appellant, Michael D. Wray.

Alan M. Sowell and Nathaniel K. Cherry, Nashville, Tennessee, for Unnamed Appellee, Direct General Insurance Company.

Judge: PICKENS

Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed theamendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.

http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf

IN RE D.S.P.

Court: TCA

Attorneys:

Mark K. Green, Columbia, Tennessee, for the appellant, Rachel M.

William M. Harris, Lawrenceburg, Tennessee, for the appellee, Anthony P.

Judge: DINKINS

On father's petition to modify custody order, the trial court found a material change in circumstances and that a change in custody from mother to father was in the best interest of the child. Mother appeals, asserting that a change of custody was not in the best interest of the child. Finding that the trial court did not abuse its discretion, the judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2009/dsp_052209.pdf

IN RE M.F.O. AND J.O.O., II

Court: TCA

Attorneys:

L. Samuel Patterson, Jr., Columbia, Tennessee, for the appellant, J.O.O, II. William C. Barnes, Jr., Columbia, Tennessee, for the appellant, M.F.O..

Elizabeth C. Driver, Senior Counsel, Office of the Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

Judge: DINKINS

Parents appeal order of Juvenile Court terminating parental rights to their five children. Trial Court found that parents had abandoned the children by failure to provide support; that parents had failed to substantially comply with the requirements of the permanency plan; that the conditions which led to the children being placed in the custody of the Department of Children's Services persisted; and that termination was in the best interest of the children. We affirm the judgment, as modified.

http://www.tba2.org/tba_files/TCA/2009/mfo_052209.pdf

EVELYN HOLLY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson, Memphis, Tennessee, for the appellant, Evelyn Holly.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Evelyn Holly, appeals the post-conviction court's denial of her petition for post-conviction relief. On appeal, she argues that she received the ineffective assistance of counsel. Specifically, she argues that her trial counsel was ineffective in failing to investigate the effects of her mental condition and medication which precluded her from meaningful participation in her own defense. Additionally, the petitioner asserts that trial counsel failed to hire an expert to contradict the testimony of the medical examiner and failed to call a witness who would have exonerated her. 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/hollye_052209.pdf

DE ANDRE KENDALL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Juni Samrat Ganguli, Memphis, Tennessee, for the appellant De�Andre Kendall.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General; Lacy Elaine Wilber, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, De Andre Kendall, appeals the trial court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition for post-conviction relief fails as it is barred by the statute of limitations. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2009/kendalld_052209.pdf

TONY MARTIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Tony Martin, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and Elizabeth B. Marney , Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Tony Martin, appeals the dismissal of his motion to reopen his petition for post-conviction relief. The petitioner claims on appeal that State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (Gomez II) established a previously unrecognized constitutional right to have a jury, rather than the trial judge, determine the existence of facts necessary to enhance his sentence. The state has filed a motion requesting that this court affirm the Shelby County Criminal Court's dismissal of the motion to reopen pursuant to Rule 20, Rules of the Court of Criminal Appeals. We grant the state's motion and affirm the judgment of the criminal court.

http://www.tba2.org/tba_files/TCCA/2009/martint_052209.pdf

RONALD DONNELL MOORE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Marty B. McAffee and Vicki M. Carriker, Memphis, Tennessee, for the appellant, Ronald Donnell Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dennis Johnson and Thomas Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Ronald Donnell Moore, appeals the judgment of the Shelby County Criminal Court denying post-conviction relief. In 1994, the petitioner was convicted of first degree murder and sentenced to life imprisonment. In seeking post-conviction relief on appeal, the petitioner argues that he was denied his Sixth Amendment right to the effective assistance of counsel. Specifically, the petitioner asserts that his counsel was ineffective: (1) in failing to seek proper jury instruction on the burden of proof; (2) in failing to request jury instruction on the lesser-included offenses of first degree murder, in particular, the offenses of reckless homicide and criminally negligent homicide; and (3) in failing to object to the presence of a mannequin in the courtroom. After review, the judgment of the court denying post-conviction relief is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/moorer_052209.pdf

STATE OF TENNESSEE v. QUINTON SANDERS

Court: TCCA

Attorneys:

Cornelius Bostick (on appeal), Memphis, Tennessee, and John Herbison (at trial), Nashville, Tennessee, for the appellant, Quinton Sanders.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich and Greg Gilbert, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Quinton Sanders, was convicted by a Shelby County jury of murder in the perpetration of a felony. For his conviction, the defendant was sentenced to life in the Tennessee Department of Correction. On appeal, the defendant raises the following issues: (1) whether the trial court erred in denying a motion to exclude evidence of the defendant's gang affiliation; (2) whether the trial court properly found that a prima facie case of purposeful discrimination by the state in the exercise of peremptory challenges had not been established; and (3) whether the trial court erred in denying a motion to grant a mistrial. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/sandersq_052209.pdf

STATE OF TENNESSEE v. DENISE ANDREA TAYLOR

Court: TCCA

Attorneys:

Richard A. Tate, Assistant Public Defender, Blountville, Tennessee, for the appellant, Denise Andrea Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Greeley Wells, District Attorney General and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Denise Andrea Taylor, appeals as of right from her convictions by a Sullivan County jury of two counts of obtaining a Schedule III controlled substance, Lorcet, by fraud, a Class D felony, and one count of attempting to obtain a Schedule III controlled substance, Lorcet, by fraud, a Class D felony. She was sentenced to four years for each offense and ordered to serve the sentences concurrently with each other and consecutively to sentences she had received for unspecified Georgia convictions. The defendant contends that the evidence is insufficient to support two of her convictions. The State contends that this court does not have jurisdiction because the record does not reflect that a written order denying the defendant's motion for new trial was filed. We conclude that this court has jurisdiction to consider the appeal and that the evidence is sufficient to support the defendant's convictions. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/taylord_052209.pdf

STATE OF TENNESSEE V. ALFRED C. WHITEHEAD

Court: TCCA

Attorneys:

Niles S. Nimmo, Nashville, Tennessee, for the appellant, Alfred C. Whitehead.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Matthew Pietsch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Alfred C. Whitehead, pled guilty to possession of more than .5 ounces of marijuana with the intent to sell or deliver. As part of the guilty plea, Appellant reserved the following certified question of law for appeal pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure to determine whether the trial court erred in denying the motion to suppress. We determine that the trial court properly denied the motion to suppress where the initial seizure occurred after police officers entered the residence based on consent. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/whiteheada_052209.pdf

Charter of the City of Clarksville

TN Attorney General Opinions

Date: 2009-05-22

Opinion Number: 09-94

http://www.tba2.org/tba_files/AG/2009/ag_09_94.pdf

TODAY'S NEWS

Legal News
Passages
Legislative News
Disciplinary Actions
TBA Member Services

Legal News

Names go to governor for 13th Circuit Court spot

The Judicial Selection Commission met today in Cookeville and submitted the following names to the governor to fill the Circuit Court vacancy in the 13th judicial district created by the retirement of Judge John Turnbull: Wesley Thomas Bray of Algood; Amy V. Hollars of Livingston; and Lillie Ann Sells of Cookeville. Turnbull, who has served on the circuit court since 1989, is set to retire on June 15.

The Administrative Office of the Courts reported the news

Desegregation order dismissed for Shelby County schools

Yesterday the 6th U.S. Circuit Court of Appeals granted the Shelby County Schools district "unitary status," meaning the system can operate without discrimination, and reversed stricter standards ordered on the school system by U.S. District Judge Bernice Donald in Memphis in 2007. The ruling gives the control of school construction, rezoning, staffing and transportation back to the school district for the first time since 1963, when a group of black students sued for equality.

The Commercial Appeal has the story

Justice Department asks for dismissal of Clinton suit

The Justice Department is asking a judge to dismiss a lawsuit by conservative watchdog group Judicial Watch that argues that Hillary Rodham Clinton cannot legally serve as secretary of state.

Investigation reveals possible ethics violations

A new report released today alleges that a Memphis city councilwoman paid $5 in exchange for favorable treatment in the vehicle registration process, and in another case paid nothing. The report, part of an administrative investigation by Deputy County Attorney Danny Presley, paints a picture of a government office where workers routinely accepted small tips in violation of the county's ethics policy.

The Commercial Appeal reports

Passages

Clarence Evans' visitation today, services Saturday

Nashville lawyer J. Clarence Evans died Wednesday. He was 92. Visitation will be at the family home, 940 Tyne Blvd., today from 5 p.m. to 7:30 p.m. A funeral service will be held at First Presbyterian Church at 10 a.m. on Saturday, May 23. Burial will be at Harpeth Hills Cemetery with full military honors. In lieu of flowers, donations may be made to The Association of Graduates West Point Fund, 698 Mills Road, West Point, NY 10996.

Former KBA President Joe Haynes dies

Former Knoxville Bar Association President Joe R. Haynes Jr. died Wednesday at 88. He was a 1948 graduate of UT Law School. He was also a former Tennessee Bar Association Board of Governors member. The family will receive friends on Sunday, May 24, from 3 to 5 p.m. at Central Baptist Church in Fountain City. The funeral service will follow at 5 p.m. Mr. Haynes will be buried at 1 p.m. on May 25 at Lynnhurst Cemetary. In lieu of flowers, memorials may be made to Central Baptist Church, Fountain City.

The News Sentinel has more

Legislative News

State and Local Government Committee reopened to take up Knox matter

Senate State and Local Government Committee Chairman Bill Ketron, R-Murfreesboro, said today he is reopening the closed committee at the request of fellow senators. The meeting is scheduled for Tuesday. The measure would block Knox County from making changes through its charter in the duties or responsibilities of the sheriff, register of deeds, county clerk, property assessor or trustee.

Read about it in the News Sentinel

Disciplinary Actions

Memphis lawyer suspended

On May 14 Memphis lawyer James T. Allison of was suspended by the Tennessee Supreme Court for 60 days for violating disciplinary rules by overdrawing his attorney trust account and commingling personal and operating funds within his trust account. Allison paid personal and operating expenses from his trust account, failed to keep adequate trust account records, and failed to timely respond to the inquiries of the Board of Professional Responsibility.

Read the BPR release

TBA Member Services

First Tennessee is TBA's preferred provider

First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more

on the TBA Web site

Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.