Former ABA president praises Tenn. judicial selection

The immediate past president of the American Bar Association -- a lawyer who has practiced in Alabama his entire career -- fielded questions from the Chattanooga Times Free Press editorial boards this morning, talking about such issues as the elections of judges, the biggest challenges currently facing the legal profession and how more poor people across the nation can get access to legal help.

"I will tell you from a personal standpoint that those of us in Alabama who have partisan elections of judges look at Tennessee with a great deal of envy with how you select your Supreme Court judges through a merit selection plan. I certainly hope you don't do away with it," H. Thomas Wells Jr. told the paper.

The Times Free-Press has the story

TODAY'S OPINIONS
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STATE OF TENNESSEE V. BRANDON KEITH OSTEIN AND TERESA GALE FOXX

Court: TSC

Attorneys:

Wendy S. Tucker, Nashville, Tennessee, for the appellant, Brandon Keith Ostein.

Eugenia R. Grayer, Nashville, Tennessee, for the appellant, Teresa Gale Foxx.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Associate Deputy Attorney General; Victor S. Johnson III, District Attorney General; and Hugh Ammerman, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: CLARK

We granted permission to appeal in this case to address the circumstances under which the identity of a confidential informant must be disclosed pre-trial to a criminal defendant. Defendants Brandon Keith Ostein and Teresa Gale Foxx were arrested and charged with drug offenses after police officers executed a search warrant at Foxx's apartment. The affidavit in support of the search warrant referred to information provided by a confidential informant. Ostein and Foxx filed motions for disclosure of the informant's identity. After a hearing, the trial court concluded that the confidential informant was a material witness and ordered disclosure. The State sought and obtained an interlocutory appeal, and the Court of Criminal Appeals reversed the trial court. Ostein and Foxx sought permission to appeal, which we granted. Upon our close review of the limited record before us, we hold that Ostein and Foxx have failed to demonstrate by a preponderance of the evidence that the confidential informant is a material witness or otherwise important to their defense. The trial court ordered disclosure based on a clearly erroneous assessment of the evidence, resulting in reversible error. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TSC/2009/osteinb_082009.pdf


RAYMOND D. PLUNK v. OZBURN-HESSEY LOGISTICS, LLC

Court: TWCA

Attorneys:

Russell John Johnson, Memphis, Tennessee for the appellant, Raymond D. Plunk.

David Riley, Memphis, Tennessee for the appellee, Ozburn-Hessey Logistics, LLC.

Judge: ALISSANDRATOS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he sustained a hernia in the course of and arising from his employment. Employer denied liability. After a trial on the merits, the trial court ruled in favor of Employer. Employee has appealed, contending that the evidence preponderates against the trial court's finding. Because Employee has not filed a transcript or statement of the evidence, we find that the evidence does not preponderate against the trial court's finding and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/plunkr_082009.pdf


FRANKLIN JAMES WILLIAMS v. THE GOODYEAR TIRE & RUBBER COMPANY ET AL.

Court: TWCA

Attorneys:

W. Lewis Jenkins, Jr. and Dean P. Dedmon, Dyersburg, Tennessee, for the appellants, Goodyear Tire & Rubber Company and Liberty Mutual Insurance Company.

Jay E. DeGroot, Jackson, Tennessee, for the appellee, Franklin James Williams.

Judge: ALISSANDRATOS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he developed carpal tunnel syndrome as a result of his work for Employer. Employer denied the claim. At trial, an evaluating physician opined that the condition was work-related but admitted that he had no specific knowledge of the tasks performed by Employee in the course of his job. Employer sought to exclude the testimony of the physician, contending that it was based upon speculation. The trial court admitted the testimony, found the condition to be compensable, and awarded benefits. On appeal, Employer contends that the trial court erred by admitting the physician's testimony, that the evidence preponderates against the judgment, and by not applying the missing witness rule as to the treating physician, who did not testify. Further, Liberty Mutual contends that there is no evidence in the record that it was Employer's insurer at the time of this injury. We dismiss the complaint against Liberty Mutual and otherwise affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/williamsf_082009.pdf


BYRD AND ASSOCIATES, PLC v. JENNIFER SILISKI AND ALAN SILISKI

Court: TCA

Attorneys:

Jennifer Siliski, Franklin, Tennessee, Pro Se.

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Alan Siliski.

Rebecca E. Byrd, Franklin, Tennessee, for the appellee, Byrd & Associates, PLC.

Judge: CLEMENT

The dispositive issue on appeal pertains to a party's fundamental and constitutional right to a jury trial guaranteed by Tenn. Const. art. I, section 6, and whether the defendants impliedly waived their right to a jury trial by being late for court. Both defendants had timely demanded a jury trial in their respective answers to the complaint; however, neither defendant was in the courtroom when court convened at 9:10 a.m. on the morning of trial. When the defendants appeared, the trial judge required that the case proceed to trial without a jury. The facts in this case reveal that the case was set to begin at 9:00 a.m. on July 5, 2007, that the trial judge convened court at 9:10 a.m., that immediately upon taking the bench the trial court ascertained that the defendants were not in the courtroom, and that without making any inquiry concerning their absence made the finding that the defendants had implicitly waived their right to a jury trial. The facts also reveal that one of the defendants, Alan Siliski, had been in the courtroom prior to court being convened, but went outside to await the arrival of his attorney, who had called to advise he was running late. As for the other defendant, Jennifer Siliski, the facts reveal that the plaintiff voluntarily dismissed its case against her during a pretrial conference three days earlier; however, a few hours after the conference the plaintiff informed the court, but not Ms. Siliski, that it had reconsidered and determined that Ms. Siliski was an indispensable party, therefore, it was not dismissing its case against her. Plaintiff contends Ms. Siliski received word of the change via a circuitous route from plaintiff's counsel to Mr. Siliski's counsel to Mr. Siliski, who was to inform Ms. Siliski that she was again a party in the fraudulent conveyances action. Ms. Siliski, however, insists that no one informed her that she was once again a party. It is undisputed that the plaintiff did not directly inform Ms. Siliski of this important fact and no one else testified that they personally informed Ms. Siliski of the change of circumstances prior to the morning of the trial. We have determined the above facts are not sufficient to support a finding that either defendant impliedly waived his or her right to a jury trial because a waiver should not be inferred without reasonably clear evidence of an intent to waive. Therefore, the defendants are entitled to a jury trial as each defendant had timely demanded. Accordingly, the judgments entered against the defendants as a result of the bench trial are vacated, and this matter is remanded for a jury trial on the issues.

http://www.tba2.org/tba_files/TCA/2009/siliskij_082009.pdf


LAURA LEA SPARKMAN v. DAVID JEREMY LYLE

Court: TCA

Attorneys:

Jonathan L. Miley, Old Hickory, Tennessee, for the appellant, David Jeremy Lyle.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Laura Lea Sparkman.

Judge: CLEMENT

This appeal concerns Mother's petition for contempt against Father for failing to pay child support pursuant to the Final Decree of Divorce, and Father's counter-petition to modify the parenting plan. At the time of the divorce, Father was unemployed but seeking employment. The Final Decree of Divorce required Father to pay child support of $100 per week "until such time as [Father] obtains employment, at which time the amount of child support to be paid will be 21% of current income." When Father obtained employment, he paid child support in the amount of 21% of his income, which was less than $100 per week. No order was entered modifying the child support obligation in the Final Decree. Months later, the petitions at issue were filed. Following a hearing, the trial court found that Father was in contempt for failing to pay the specified amount of $100 a week until the date an order was entered modifying his child support obligation. The trial court also dismissed Father's counter-petition finding no material change in circumstances existed for modification. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/sparkmanl_082009.pdf


THOMAS & ASSOCIATES, INC. v. TENNESSEE AMERICAN CONTRACTORS, INC.

Court: TCA

Attorneys:

James H. Harris III, Nashville, Tennessee, for the appellant, Tennessee American Contractors, Inc.

Vic L. McConnell, Nashville, Tennessee, for the appellee, Thomas & Associates, Inc.

Judge: CLEMENT

The issue on appeal is whether the trial court erred in imposing Tenn. R. Civ. P. 11 sanctions against the defendant and its attorneys for failing to dismiss the counterclaim filed against the plaintiff. Prior to the trial of the case, the plaintiff filed a Rule 11 motion for sanctions contending the filing of defendant's counterclaim violated Rule 11. Thereafter, the case went to trial on the plaintiff's complaint and defendant's counterclaim. At the close of the proof, the defendant voluntarily dismissed its counterclaims. After the trial was concluded, the trial court held that the defendant and its attorneys violated Rule 11 because the evidence presented at trial revealed that the counterclaim had no basis in fact or law and they failed to dismiss the counterclaim when the motion for sanctions was filed. We have determined the trial court applied an incorrect legal standard by evaluating the issue with the wisdom of hindsight instead of examining the circumstances existing at the time the counterclaim was signed by the attorneys, and for imposing sanctions for failing to voluntarily dismiss the counterclaim, because Rule 11 does not impose a duty to review or reevaluate a pleading once filed or to take affirmative steps thereafter to dismiss a previously filed pleading. Therefore, we reverse the imposition of Rule 11 sanctions.

http://www.tba2.org/tba_files/TCA/2009/thomas&assoc_082009.pdf


STATE OF TENNESSEE v. STACEY WAYNE CREEKMORE

Court: TCCA

Attorneys:

Joe Costner, Maryville, Tennessee, for the appellant, Stacey Wayne Creekmore.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Michael L. Flynn, District Attorney General; and Andrew Watts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Stacey Wayne Creekmore, presents for review a certified question of law following his guilty plea to driving under the influence (DUI), second offense, a Class A misdemeanor. See Tenn. R. Crim. P. 37(b)(2)(I). As a condition of his guilty plea, the defendant explicitly reserved a certified question of law challenging the denial of his motion to suppress evidence obtained pursuant to a warrantless stop. The defendant argues that the officer lacked reasonable suspicion, as required under both the United States and Tennessee Constitutions, to conduct an investigatory stop of his vehicle. Following review of the record, we find no error in the denial of the motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/creekmores_082009.pdf


STATE OF TENNESSEE v. ANDREW ALLEN CROSS

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III (on appeal), Shelbyville, Tennessee, and William Harold (at sentencing hearing), Shelbyville, Tennessee, for the Appellant, Andrew Allen Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; Chuck Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Andrew Allen Cross, pled guilty to two counts of sale of less than .5 grams of a Schedule II controlled substance, a Class C felony, and to two counts of delivery of less than .5 grams of a Schedule II controlled substance, a Class C felony. The trial court merged the delivery counts into the sale counts and sentenced the Defendant to an effective sentence of four years and six months in the Tennessee Department of Correction. The Defendant now appeals, claiming that the trial court erred by denying him a community corrections sentence. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2009/crossa_082009.pdf


STATE OF TENNESSEE v. DAVID E. OFFUTT

Court: TCCA

Attorneys:

Laura Clift Dykes, Interim District Public Defender; Kati Weiss and Laura Getz, Assistant District Public Defenders (at trial); and Charles E. Walker, Nashville, Tennessee (on appeal), attorneys for appellant, David E. Offutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, David E. Offutt, appeals as of right his jury convictions in the Davidson County Criminal Court for three counts of attempted rape, three counts of attempted incest, and two counts of sexual battery by an authority figure. The trial court imposed consecutive six-year sentences for each attempted rape conviction, merged the attempted incest convictions into the attempted rape convictions, and imposed consecutive five-year sentences for each sexual battery by an authority figure conviction. The trial court ordered each group of sentences to be served concurrently, for a total effective sentence of eighteen years. The defendant contends that the evidence is insufficient to support his convictions, that the trial court erred in admitting evidence of other sexual acts committed by the defendant against the victim, and that the trial court erred in imposing consecutive sentences. Following our review, we reinstate the defendant's convictions for attempted incest and remand for sentencing on those counts; the judgment of the trial court is affirmed in all other respects.

http://www.tba2.org/tba_files/TCCA/2009/offuttd_082009.pdf


STATE OF TENNESSEE v. JAMES D. WILSON

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal) and Larry Wilks and Burton Glover, Springfield, Tennessee (at trial) for the defendant-appellant, James D. Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Dent Morris and Jason White, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, James D. Wilson ("Wilson"), was convicted by a Robertson County jury of second degree murder. He was sentenced as a Range II, multiple offender to serve forty years in the Tennessee Department of Correction. In this appeal, Wilson argues: (1) the insufficiency of the evidence, (2) the trial court erred by not declaring a mistrial or giving a curative instruction when the State referred to the victim's death in the instant case as a "murder" in its opening statement, (3) the jury charge given by the trial court was "incomplete" and "confusing" in violation of the United States and Tennessee Constitutions, and (4) his sentence is excessive. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wilsonj_082009.pdf


Authority of Shelby County Judicial Commissioners to Hear Orders of Protection

TN Attorney General Opinions

Date: 2009-08-20

Opinion Number: 09-151

http://www.tba2.org/tba_files/AG/2009/ag_09_151.pdf

TODAY'S NEWS

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Legal News
New Jersey courts embrace social networking
The New Jersey court system will be keeping lawyers informed of news and developments via cell phone texts and Twitter. The latest judicial opinions will be distributed via RSS feed and other court information will be posted on Facebook. The judiciary also has begun posting informational videos about using the state courts on YouTube.
Read the court's announcement
... But should judges be 'LinkedIn?'
Robert J. Ambrogi surveyed the number of judges who had profiles listed on LinkIn, and was surprised at what he found: Five U.S. Circuit Court judges, at least two federal district judges -- including Bernice Donald in Memphis -- and a number of state appellate and trial judges, including one state Supreme Court justice. While careful to say that "as far as I can determine, there is nothing inappropriate or unethical about a judge maintaining a profile on LinkedIn," he asks some interesting qusetions, such as: Could a judge's connections on LinkedIn or Facebook create the potential for conflicts of interest? Should litigants routinely vet a judge's social-networking profile in advance of a trial? Should judges be required to make public disclosures of the individuals and groups they connect to online?
Law.com's Legal Blog Watch reports
Lawyers convicted for witness tampering could get life
After nearly a week of deliberation, a federal jury in Brooklyn, N.Y., today convicted two lawyers in a witness-tampering case that reportedly could put them in prison for life. Robert Simels sat back in his chair at the defense table and looked furious as his associate, Arienne Irving, put her head down and cried.
ABAJournal.com connects you
Memphis leadership program extends deadline
The Memphis Bar Association's Leadership Forum has extended the deadline for applications for the 2009-2010 year to Aug. 31. MBA Executive Director Anne Fritz said the bar received 14 applications by the original deadline, but the class is made for a group of 25. The program is open to attorneys in their third to eighth year of practice.
The Memphis Daily News has more
Testimony supports embattled Texas judge
A retired Texas lawyer today testified in support of embattled Judge Sharon Keller, who has been accused of denying twice-convicted killer Michael Wayne Richard access to her court in the hours leading up to his execution in 2007. In his testimony, Roy Greenwood said that Texas Defender Service attorneys representing Richard allocated their resources "very poorly," and were at fault for failing to file a last-minute appeal on the night Richard was executed. Keller, the presiding judge of the Texas Court of Criminal Appeals, is up against judicial misconduct charges for closing her office at 5 p.m. on the evening of a scheduled execution as lawyers tried to file a last-minute appeal. The appeal was never heard, and four hours later, Richard was executed.
The San Antonio Star is covering the trial
Bass Berry completes litigation training program
Bass, Berry & Sims PLC recently completed its first associate litigation training program. The six-month program was designed to provide associates with direct litigation, trial advocacy and jury persuasion experience. The program ended with full-scale mock jury trials at Vanderbilt University Law School. Under the leadership of attorneys Michael Dagley and Overton Thompson, the goal of the training was to prepare associates to become first-chair trial lawyers early in their careers. Videos of the training sessions can be seen on YouTube The Memphis Daily News reported the story

Politics
Wharton begins process for city mayoral run
Shelby County Mayor A C Wharton picked up a petition today, the first step to run for Memphis mayor. The Oct. 15 special election is to replace Memphis Mayor Willie Herenton, who stepped down earlier this month. Herenton has also picked up a petition. To qualify for the election, petitions must be turned in by Sept. 3.
The Commercial Appeal reports
Upcoming
Supreme Court historical dinner planned
The 4th Annual Tennessee Supreme Court Historical Society's Dinner will be Oct. 20 at the Hutton Hotel in Nashville. The event will honor members of the court who served from 1974 to 1980 as well as the current members. Tickets are $135 per person. RSVP by Oct. 8 to Joy Day or call (615) 771-5008.
Download the invitation
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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