Judicial commission organizes, sets date for court vacancy

The new Judicial Nominating Commission elected officers, adopted bylaws and discussed procedure at its organizational meeting today. Commission member David Bautista of Johnson City was elected chair. Bill Young of Chattanooga was named vice chair and Tom Lawless of Nashville was named secretary. The commission temporarily adopted the bylaws of the former selection commission, and reviewed and adopted a hearing procedure that conforms to prior practice. Much of the discussion revolved around the limits placed on information the commission can receive under the new statutory scheme and the new "Sunshine Act" requirements for hearings and deliberations. In addition, the commission set Oct. 16 as its hearing date for the 30th Judicial District court vacancy created by the pending resignation of Judge D'Army Bailey. The hearing will be held in Memphis. Applications are due Oct. 8.

Learn more about the application process from the AOC

TODAY'S OPINIONS
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KYLE McDONNELL v. CONTINENTAL MACHINE MOVERS

Court: TWCA

Attorneys:

James H. Tucker, Jr. and Colin M. McCaffrey, Nashville, Tennessee, for the appellant, Continental Machinery Movers.

Ben Boston, Lawrenceburg, Tennessee, for the appellee, Kyle McDonnell.

Judge: HARRIS

In this workers' compensation action, the employee, Kyle McDonnell, was assigned to work at a job site in Kentucky. His employer, Continental Machinery Movers, paid for food and lodging. While waiting in a truck for his co-workers to return from breakfast, he suffered an apparent seizure. Subsequently, his shoulder was painful and he sought and received medical care at a local emergency room. An evaluating physician testified that the seizure had caused a dislocation of his shoulder joint. Mr. McDonnell sought workers' compensation benefits, but the employer denied liability. The trial court found that Mr. McDonnell was a "traveling employee," and that the injury was compensable. Continental Machinery Movers has appealed. We conclude that the injury did not arise from the employment and, therefore, reverse the trial court's decision.

http://www.tba2.org/tba_files/TSC_WCP/2009/mcdonnellk_092309.pdf


WILLIAM ALLGOOD and ROSE ALLGOOD v. GATEWAY HEALTH SYSTEMS d/b/a GATEWAY MEDICAL CENTER and DR. CHRISTOPHER HOFFMAN

Court: TCA

Attorneys:

Debra A. Wall, Clarksville, Tennessee, for the Plaintiffs/Appellants William Allgood and Rose Allgood

John Eskew, Suzanne M. Pearson, Dan L. Nolan, and Jennifer A. Deen, Clarksville, Tennessee, for the Defendant/Appellee Dr. Christopher Hoffman

Judge: KIRBY

This is an appeal from a grant of summary judgment. The plaintiff patient filed a lawsuit against the defendant physician alleging medical negligence. The patient attempted personal service on the physician by leaving the summons and the complaint at the reception desk of the hospital at which the physician practiced. Eventually, the summons and the complaint were delivered to the physician. The summons stated that service would be made by the commissioner of insurance or the U.S. mail. In his answer to the complaint, the physician asserted insufficiency of service of process, and stated that the summons indicated that service was made by the commissioner of insurance through the U.S. mail. No new process was issued. After passage of time, the limitations period for the claim against the physician elapsed. The physician then filed a motion for summary judgment, alleging that the attempt at personal service was insufficient because no one at the hospital was authorized to accept service of process on his behalf, service was not re-issued so as to toll the statute of limitations, and as a result, the patient's claims were time-barred. The trial court granted summary judgment in favor of the physician. The patient appeals, arguing that the physician waived the defense of insufficiency of service of process because his answer did not include the facts supporting the defense, as required by Rule 8.03 of the Tennessee Rules of Civil Procedure. We reverse, finding that the defendant physician failed to comply with Rule 8.03, thereby waiving the defense.

http://www.tba2.org/tba_files/TCA/2009/allgoodw_092309.pdf


KAY F. FRITZ v. CVS CORPORATION D/B/A CVS PHARMACY, INC.

Court: TCA

Attorneys:

Kay F. Fritz, pro se Appellant.

G. Michael Luhowiak and Jennifer L. Kent, Chattanooga, Tennessee, for the Appellee CVS Corporation d/b/a CVS Pharmacy, Inc.

Judge: SWINEY

This action was filed by Kay F. Fritz ("Plaintiff") alleging that CVS Corporation d/b/a CVS Pharmacy, Inc. ("Defendant") negligently filled a prescription by giving her the wrong medication, resulting in physical and disabling injuries. Although Plaintiff has been represented by counsel at various times during this lawsuit, she has proceeded pro se since December 2006. At a pre-trial conference the day before trial, the Trial Court continued the matter because the Trial Court discovered that Plaintiff did not have the necessary medical proof and would have lost at trial. The Trial Court ordered the Plaintiff to secure the services of an attorney and gave her one week to do so. After Plaintiff did not retain an attorney, the Trial Court sua sponte entered an order involuntarily dismissing this action without prejudice. Plaintiff appeals. We conclude that the Trial Court erred when it involuntarily dismissed this action. We vacate the involuntary dismissal and remand the case for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2009/fritzk_092309.pdf


HERITAGE EARLY CHILDHOOD DEVELOPMENT CENTER, INC. ET AL. v. TENNESSEE DEPARTMENT OF HUMAN SERVICES

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Amy T. McConnell, Assistant Attorney General, for the appellant, Tennessee Department of Human Services.

Mimi Phillips and R. H. "Chip" Chockley, Memphis, Tennessee, for the appellee, Heritage Early Childhood Development Center, Inc., and Heritage Enrichment Center, Inc.

Judge: CLEMENT

This appeal arises from the permanent termination of two child care centers' participation in the federally funded "Child Care Certificate Program." The Tennessee Department of Human Services required each child care center to sign a "Regulated Provider Agreement" to participate in the Program. Pursuant to the Agreement, the child care centers were to comply with the Department's Policy & Procedures Manual for the Program. When the Department made the determination that the child care centers had failed to comply with the Manual, the Department unilaterally and permanently terminated their participation in the Program. Thereafter, the two child care centers (the "petitioners") filed a Petition for Declaratory Judgment seeking to declare the Department's Policy & Procedures Manual void because the policies and procedures therein constituted "rules," as that term is defined in the Uniform Administrative Procedures Act (APA), and the Manual had not been promulgated in accordance with the APA; therefore, the Manual could not be the basis for termination of their Provider Agreements or their participation in the Program. The petitioners also contended that they were deprived of due process and equal protection. After the Department filed an Answer, the petitioners filed a Tenn. Civ. P. Rule 12.03 Motion for Judgment on the Pleadings. Following a hearing, the Chancery Court found that the termination of the petitioners from the Program was "void because, as applied in this case, the program manual conflicted with due process requirements under Tennessee statutes and regulations." The Chancellor did not rule on whether the Manual should have been promulgated in accordance with the APA. On appeal, the Department contends the Chancellor erred in finding that the petitioners should have been afforded due process because the Department was exercising a contractual right to terminate the centers for breach of the agreement, to which no right of due process attached. We have concluded that the policies and procedures relied upon by the Department to terminate the petitioners from the Program constitute "rules," as that term is defined in Tenn. Code Ann. section 4-5-102 of the APA, which were not promulgated as the APA requires. Because the "rules" relied upon by the Department to permanently terminate the petitioners' participation in the Program constitute rules, which were not promulgated in accordance with the APA, they are invalid. Accordingly, they cannot serve as the basis for the termination of the petitioners' participation in the Program. We, therefore, affirm the grant of the petitioners' Tenn. Civ. P. Rule 12.03 Motion for Judgment on the Pleadings.

http://www.tba2.org/tba_files/TCA/2009/heritageearly_092309.pdf


STATE OF TENNESSEE v. CALVIN JAMES BOLES

Court: TCCA

Attorneys:

Jason Gichner (at trial), Nashville, Tennessee, and Emma Rae Tennent (on appeal), Nashville, Tennessee, for the Appellant, Calvin James Boles.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant pled guilty to burglary, a Class D felony, agreed to an eight-year sentence as a persistent offender, with the trial court to determine the manner of service of the sentence. The trial court ordered that the eight-year sentence be served in prison, and it is from this judgment that the Defendant now appeals, asserting that an alternative sentence should have been imposed by the trial court. After a thorough review of the record and relevant authorities, we conclude the trial court did not err when it denied the Defendant's request for alternative sentencing. As such, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/bolesc_092309.pdf


DAVID LEE COLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellant, David Lee Cole.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Mickey Layne, District Attorney General; and Jason Ponder, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, David Lee Cole, appeals as of right the Coffee County Circuit Court's denial of his petition for post-conviction relief. He argues that the denial was error because, prior to pleading guilty to two counts of aggravated sexual exploitation of a minor, two counts of incest, and two counts of statutory rape, he did not receive the effective assistance of counsel and, therefore, his pleas were entered involuntarily. As specific grounds for relief, he contends that trial counsel failed to properly investigate his case and prepare a defense strategy, trial counsel pressured him into pleading guilty, and trial counsel misinformed him about criteria for parole. Furthermore, the Petitioner contends that the State did not provide a sufficient factual basis to support his convictions. After the appointment of counsel and an evidentiary hearing, the post-conviction court found that the Petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/coled_092309.pdf


STATE OF TENNESSEE v. COREY GILLIAM

Court: TCCA

Attorneys:

Joseph S. Ozment, Memphis, Tennessee, for the defendant-appellant, Corey Gilliam.

Robert E. Cooper, Jr., Attorney General and Reporter Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dean DeCandia, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Corey Gilliam, was convicted by a Shelby County jury of theft of property valued at over $1,000, felon in possession of a handgun, leaving the scene of an accident resulting in injury, and driving on a suspended license. He was sentenced to twelve years as a career offender for the theft of property conviction, six years as a career offender for the felon in possession of a handgun conviction, eleven months and twenty-nine days for the leaving the scene of an accident resulting in injury conviction, and eleven months and twenty-nine days for the second or subsequent driving on a suspended license conviction. The trial court ordered the sentences to be served consecutively. In this appeal, the defendant argues: (1) the insufficiency of the evidence; (2) the trial court erred by providing the jury with an instruction on reasonable doubt that was unconstitutional; (3) the trial court erred by finding that the defendant's 2007 conviction for aggravated robbery was admissible for impeachment; (4) the imposition of consecutive sentencing violated the Sixth Amendment; (5) the State failed to elect when the defendant drove on a suspended license in the indictment; and (6) the jury instructions for leaving the scene of an accident resulting in injury and driving on a suspended license failed to charge a mens rea. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/gilliamc_092309.pdf


DANNY RAY LACY v. CHERRY LINDAMOOD, WARDEN, AND STATE OF TENNESSEE

Court: TCCA

Attorneys:

Danny Ray Lacy, Waynesboro, Tennessee, Pro Se.

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

Judge: WELLES

The Petitioner, Danny Ray Lacy, was convicted by a jury of first degree murder and sentenced to life without parole. The Petitioner filed a petition for habeas corpus relief, contending that his conviction was void due to erroneous jury instructions at trial and ineffective assistance of counsel. The Wayne County Circuit summarily dismissed the petition, finding that the Petitioner had failed to state a cognizable claim for relief. After our review of the record, we agree and affirm the order summarily dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2009/lacyd_092309.pdf


JAMES MILLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Barbara Hobock (on appeal) and Cynthia Chandler-Snell (on appeal and at hearing) Humboldt, Tennessee, for the petitioner, James Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Garry G. Brown, District Attorney General; and Larry Hardister, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, James Leon Miller (hereinafter "the petitioner"), was convicted by a jury of criminal responsibility for first degree murder and criminal responsibility for aggravated assault. He now appeals the denial of post-conviction relief, claiming "the trial court erred in finding that the trial court counsel effectively assisted and represented the [petitioner]." Upon our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/millerj_092309.pdf


STATE OF TENNESSEE v. RAYMOND POINDEXTER

Court: TCCA

Attorneys:

Jheri Beth Rich, Lewisburg, Tennessee, for the appellant, Raymond Poindexter.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Charles Crawford, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Raymond Poindexter, pleaded guilty to one count of failure to appear, a Class E felony. See Tenn. Code Ann. section 39-16-609(e). The trial court sentenced him to one year in the Department of Correction, that sentence to be served consecutively to the nine-year sentence for which he failed to appear and three additional Coffee County sentences, for a total effective sentence of twenty years in the Department of Correction. In this direct appeal, he contends that the trial court erred in ordering consecutive sentences. After our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/poindexterr_092309.pdf


ALEJANDRO AVILA-SALAZAR v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Alejandro Avila-Salazar.

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

Judge: WELLES

The Petitioner, Alejandro Avila-Salazar, pleaded guilty on September 6, 2006, to one count of second degree murder and one count of attempted aggravated rape. He was sentenced to serve forty years for the second degree murder conviction and twelve years for the attempted aggravated rape conviction, those sentences to be served concurrently at 100%. He later filed a petition for post- conviction relief alleging that his guilty plea was not knowingly and intelligently entered because he received ineffective assistance of counsel. A post-conviction hearing was held on March 10, 2008, after which the post-conviction court denied the Petitioner relief. In this appeal, the Petitioner contends that the post-conviction court erred in holding that he received the effective assistance of counsel and that he entered his guilty plea knowingly and intelligently. After our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/salazara_092309.pdf


STATE OF TENNESSEE v. BRIAN DAVID THOMASON

Court: TCCA

Attorneys:

Mark L. Agee, Trenton, Tennessee, for the defendant-appellant, Brian David Thomason.

Robert E. Cooper, Jr.,Attorney General and Reporter; David H. Findley, Assistant Attorney General; Garry G. Brown, District Attorney General; and Harold E. Dorsey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the Defendant-Appellant, Brian David Thomason ("Thomason"), appeals from the denial of his application for pretrial diversion to the Gibson County District Attorney General's office, which was upheld by the trial court. Upon review of the record and applicable authority, we reverse the judgment of the trial court and remand this matter to the trial court to grant Thomason pretrial diversion under such terms and conditions as are deemed appropriate under all circumstances.

http://www.tba2.org/tba_files/TCCA/2009/thomasonb_092309.pdf


TODAY'S NEWS

Legal News
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Disciplinary Actions
TennBarU CLE
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Legal News
More Americans eligible for legal aid this year
New statistics released by the U.S. Census Bureau show that nearly 54 million Americans qualified for legal aid in 2008 -- about three million more than the prior year and the largest number in the history of the Legal Services Corporation. The number includes 18.5 million children and 20.7 million adult women, and represents almost 18 percent of all Americans. The 2008 data also showed a seven percent increase in the number of Americans living at 100 percent of poverty -- the first statistically significant increase since 2004.
Read more from the Census Bureau
State appeals district court's TennCare decision
The state yesterday appealed a federal judge's ruling to keep alive an 11-year-old class action lawsuit brought by the Tennessee Justice Center. The center filed the suit in 1998 to restore TennCare coverage to hundreds of thousands of children it says were eligible for the program. The state had sought dismissal of the suit from the district court and now has appealed to the U.S. Court of Appeals for the Sixth Circuit.
Read more in the Tennessean
DOJ issues new rules for state secrecy claims
The U.S. Justice Department today revamped the process government agencies use to block the release of information under claims of state secrecy. Under the new guidelines, the attorney general has to approve requests and the standard agencies have to meet has been increased. The department said it made the change to restore the confidence of judges, Congress and civil liberty groups that criticized both the Bush and Obama administrations for excessive secrecy. The new policy will take effect Oct. 1.
CNN reported the news
Bradley County seeks child advocacy center
Bradley County organizations have joined together to establish a Child Advocacy Center in the county, which currently uses a center in McMinn County. CACs are child-focused, community-oriented facilities where children victimized by abuse are interviewed and observed by law enforcement, prosecutors and state agency personnel. With a growing number of cases in Bradley County -- 432 last year -- advocates would like to see a center closer to home.
Read about the efforts in the Cleveland Daily Banner
Hamilton jury approves record asbestos verdict
A Hamilton County jury this week returned a record $1.4 million verdict against National Service Industries, doing business as North Brothers. The trial is believed to be only the second asbestos trial in the state in the last 15 years or so, and the verdict is believed to be the first rendered against North Brothers in any state, attorneys said.
Chattanoogan.com has details
Mayor may have violated law by choosing attorney
The Rutherford County mayor may have violated the law when he choose a defense attorney to represent the county against a recent lawsuit. Under a charter with the state, only the county commission has the authority to hire outside legal counsel. Despite that limitation, mayors have often hired expert lawyers on the county attorney's advice. Now the mayor is calling for a change in the law.
The Rutherford Daily News Journal reports
Memphis bar opens new leadership class with retreat
The Memphis Bar Association's Leadership Forum held its kickoff retreat Friday at the Lichterman Nature Center. The forum, which trains attorneys in their third to eighth year of practice, focuses on interaction, self-awareness and civility.
Read more in the Memphis Daily News
Upcoming
Constitution Society holds Supreme Court preview
The Nashville Chapter of the American Constitution Society will hold its 2009-2010 Supreme Court Term Preview on Oct. 1 from 5 to 6:30 p.m. in the Flynn Auditorium at Vanderbilt University Law School. The presentation will feature three panelists -- journalist Greg Stohr of Bloomberg News; Vanderbilt University Law School Professor Lisa Schultz Bressman, a former clerk for Supreme Court Justice Stephen Breyer; and Tennessee Solicitor General Michael Moore -- discussing cases to be considered in the upcoming court term. The event is free and open to the public. For additional details contact Christopher Coleman at (615) 313-900 or ccoleman@lchb.com.
Download a flyer about the event
Disciplinary Actions
Missouri lawyer reinstated after paying BPR fee
Ungyong Kim, formerly of Nashville and now of St. Louis, Mo., has been reinstated to the practice of law in Tennessee after paying the 2009 BPR fee and required fines.
View all attorneys suspended and reinstated for 2009 fee violations
TennBarU CLE
Getting paid a problem? TennBarU online ethics course can help
Collecting fees is not directly addressed in the Rules of Professional Conduct, however both the rules and malpractice carriers have something to say on the issue. This online course from TennBarU explores practice management strategies to help reduce the number of non-paying clients and discusses ethical obligations for collecting fees from such clients.
Register or learn more
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Join your colleagues on the TBA's new Social Networking platform for members called TBA Connect. This service provides many of the same features of mainstream sites such as Linked In or Facebook, but access is limited to members of the Tennessee Bar Association and approved guests.
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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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