Nominating Commission reopens Memphis judgeship

At a meeting today, the Judicial Nominating Commission decided to reopen the application process for filling the 30th Judicial District seat vacated by former Judge D'Army Bailey. The meeting was a continuation of a session held in Memphis two weeks ago to consider nominations for the seat. Only three lawyers applied for the position. The commission decided it could recommend only two of the applicants -- JoeDae Jenkins and Linda Harris -- to the governor. Staff consulted with the governor's office, which indicated the governor would like a full complement of three applicants. The governor is cooperating in the process by not making a decision until the commission is able to recommend three nominees. After discussing several options, including reopening just one position, the commission decided to reopen the entire nomination process. A new application deadline of Dec. 1 has been set. The commission will meet to consider nominations on Dec. 17, 18 or 19, depending on the availability of commission members.

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TODAY'S OPINIONS
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IN RE: ALIYAH W., ET AL.

Court: TCA

Attorneys:

Ben H. Houston II, Knoxville, Tennessee, for the appellant, Kenneth W.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lindsey O. Appiah, Assistant Attorney General, Nashville, Tennessee, for the appellee, Department of Children's Services.

Judge: SUSANO

This is a termination of parental rights case. Victoria W. ("Mother") and Kenneth W. ("Father") had four children: Sedal (DOB: 10-17-92), Kenneth, Jr. (DOB: 9-15-94), Seth (DOB: 3-31-96), and Aliyah (DOB: 9-24-99). Following a domestic violence incident between the parents, the children were taken into protective custody. Ten months later, the Department of Children's Services ("DCS") moved to terminate Father's parental rights. At the conclusion of a bench trial, the court found that each of the grounds alleged in support of the petition had been proven and ordered Father's parental rights terminated. Father appeals, challenging the trial court's determination that the evidence showed, clearly and convincingly, that grounds exist for termination and that termination is in the children's best interest. Father also contends that DCS failed to make reasonable efforts toward reuniting him with the children. We affirm.

http://www.tba2.org/tba_files/TCA/2009/aliyahw_102809.pdf


TIPPY LYNN BAILEY v. ROGER VALL GROOMS, ET AL.

Court: TCA

Attorneys:

Carl R. Ogle, Jr., Jefferson City, Tennessee, for Appellant, Tippy Lynn Bailey.

Ben W. Hooper, III, Newport, Tennessee, for Appellee, Pat Proffitt.

Judge: MCCLARTY

This negligence action arose from a gunshot injury suffered by the plaintiff during an altercation at a social gathering held on Defendant Pat Proffitt's land. Defendant Roger Vall Grooms fired the weapon that injured the plaintiff, and Defendant Jessie Proffitt was also involved in the altercation. Defendant Pat Proffitt filed a motion for summary judgment. After a hearing, the trial court entered an order of summary judgment for Defendant Pat Proffitt, holding that hosting an adult party on his property did not create a legal duty on the defendant's part to prevent adult attendees from becoming intoxicated and injuring each other. The plaintiff timely appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2009/baileyt_102809.pdf


ESTATE OF JEFFREY MAURO CUSATIS v. ROBERT R. CASEY, M.D.

Court: TCA

Attorneys:

Kevin W. Shepherd, Maryville, Tennessee, for Appellant, Susan Thompson, Administratrix of the Estate of Jeffrey Mauro Cusatis.

Robert H. Watson, Knoxville, Tennessee, for Appellee, Robert R. Casey, M.D.

Judge: MCCLARTY

In this appeal, plaintiff contends that the trial court erred in granting summary judgment in favor of defendant. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/cusatisj_102809.pdf


MARCEL ELUHU, M.D. v. HCA HEALTH SERVICES OF TENNESSEE, INC., D/B/A CENTENNIAL MEDICAL CENTER

Court: TCA

Attorneys:

C. Bennett Harrison, Jr., Brian Holmes, and Jay N. Chamness, Nashville, Tennessee, for the appellant, Marcel Eluhu, M.D.

Dixie W. Cooper, Lisa D. York, Clarence James Gideon, and Catherine Corless, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc., d/b/a Centennial Medical Center.

Judge: BENNETT

Cardiologist whose hospital privileges were revoked brought suit against the hospital asserting multiple causes of action, including breach of contract. Finding the hospital entitled to immunity under the Health Care Quality Improvement Act and the Tennessee Peer Review Law, the chancellor granted the hospital's motion for summary judgment on all claims for monetary damages. The court subsequently granted the hospital's motion for summary judgment on all remaining claims for injunctive and declaratory relief. We have concluded that the court erred in granting summary judgment on the claims for injunctive relief other than the breach of contract claims. Otherwise, we affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2009/eluhum_102809.pdf


IN RE ESTATE OF RICHARD CLAY HUMPHREYS

Court: TCA

Attorneys:

James D. Culp, Johnson City, Tennessee, for the Appellant, Richard A. Humphreys.

David W. Bush, Elizabethton, Tennessee, for the Appellee, Shelia K. Humphreys.

James R. Wheeler, Jonesborough, Tennessee, for the Appellee, Todd A. Humphreys, Administrator of the Estate of Richard Clay Humphreys.

Judge: MCCLARTY

This appeal arises from the distribution of a decedent's estate ("the Estate"). After an evidentiary hearing, the trial court entered an Order to disburse the proceeds of the farm business on a partnership theory to the widow of the decedent. The decedent's son filed a motion requesting the trial court to reconsider the Order, and the trial court denied the motion. The son appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/humphreysr_102809.pdf


RENEE L. JOHNSON v. GRAYSON ROWSELL, ET AL.

Court: TCA

Attorneys:

Michael B. Schwegler, Bart Durham and Blair Pierson Durham, Nashville, Tennessee, for the Appellant, Renee L. Johnson.

William B. Jakes, Nashville, Tennessee, for the Appellee, Express Courier International, Inc.

Judge: STAFFORD

This is a summary judgment case arising from a personal injury lawsuit. Plaintiff/Appellant alleged liability on the part of Appellee delivery company arising from the negligent acts of its driver. Finding that the driver was an independent contractor, and that the exceptions to the general rule of non-liability on the part of the employer of an independent contractor do not apply in this case, we affirm the grant of summary judgment in favor of Appellee delivery company.

http://www.tba2.org/tba_files/TCA/2009/johnsonr_102809.pdf


CARLTON B. PARKS v. CITY OF CHATTANOOGA

Court: TCA

Attorneys:

Carlton B. Parks, appellant, Pro se.

Crystal R. Freiberg and Phillip A. Noblett, Chattanooga, Tennessee, for the appellee, City of Chattanooga.

Judge: SUSANO

This is the fourth lawsuit Carlton B. Parks ("the plaintiff") has filed against the City of Chattanooga ("the defendant") seeking redress for what he perceives to be his wrongful termination from employment as a police officer after he was accused of sexual assault, a charge for which he was later indicted. The criminal charges were subsequently dismissed, but the defendant refused to reinstate him. The first two actions by the plaintiff were filed in federal district court; each resulted in a summary judgment of dismissal. The third suit was filed in Hamilton County Circuit Court. It was dismissed on the ground that all claims were precluded by the prior cases. We affirmed the circuit court's decision. The present case, filed in chancery court, was partially dismissed as barred by the statute of limitations. The plaintiff later amended his complaint to include claims seeking an injunction and writ of mandamus. The plaintiff's complaint, as amended, was dismissed by the trial court as barred by the previous lawsuits. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/parksc_102809.pdf


RACHEL SUMNER, ET AL. v. METROPOLITAN NASHVILLE BOARD OF HEALTH, ET AL.

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the Appellants, Rachel Sumner, Michele Flynn, Eleanor Snyder, Bruce Wallenstein and Bruce Wood.

Sue B. Cain, J. Brooks Fox, Elizabeth A. Sanders, Nashville, Tennessee, for the Appellees, Metropolitan Government of Nashville, Davidson County.

Judge: STAFFORD

Appellants, citizens of Davidson County, sought review of the County's mosquito control policies, which were in effect in 2005. Upon review, the Appellee, Metropolitan Board of Health of Nashville and Davidson County, denied Appellants' claim for lack of standing. The trial court granted Appellants' common law writ of certiorari and affirmed the Board's findings. Upon review, we conclude that the Appellants' have no standing, and that the issues presented are rendered moot based upon the County's adoption of a new mosquito control policy in 2008. Affirmed.

http://www.tba2.org/tba_files/TCA/2009/sumnerr_102809.pdf


STATE OF TENNESSEE v. ROBERT BAKER, JR.

Court: TCCA

Attorneys:

Norris A. Kessler, III, Winchester, Tennessee, for the appellant, Robert Baker, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; J. Michael Taylor, District Attorney General, and William Copeland, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Robert Baker, Jr., was pulled over by a police officer in Winchester, Tennessee. After failing to perform two field sobriety tests and refusing to take a blood alcohol test, the officer arrested Appellant and took him to jail. The Franklin County Grand Jury indicted Appellant for driving under the influence ("DUI"), DUI, fourth offense, violation of the implied consent law, and reckless driving. Appellant filed a motion to suppress evidence of the field sobriety tests. This motion was unsuccessful. At the conclusion of a bifurcated jury trial, Appellant was found guilty of DUI and DUI, third offense. Appellant filed a successful motion for new trial, and the trial court conducted a bench trial on whether or not Appellant was guilty of DUI, fourth offense. At the conclusion of the bench trial, Appellant was convicted of DUI, third offense. Appellant now appeals from his conviction for DUI, third offense. Appellant argues that the trial court erred in denying his motion to suppress, that a previous DUI conviction in Minnesota was too remote in time to be used to enhance his DUI conviction, that the Minnesota conviction and a previous conviction in Rutherford County, Tennessee, were facially invalid and could not be used to enhance his DUI conviction, that the evidence was insufficient to support the conclusion that he was under the influence of an intoxicant when he was pulled over, and that the combination of all errors requires a reversal of his conviction. After a thorough review of the record, we conclude that the motion to suppress was correctly denied; the Minnesota conviction was within twenty years of the conviction in question, and therefore, not too remote; the Minnesota and Rutherford County convictions were not facially invalid; the evidence presented was sufficient to support Appellant's conviction; and there was no combination of errors such that Appellant's conviction must be reversed. Therefore, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/bakerr_102809.pdf


STATE OF TENNESSEE v. ANTHONY CHRISTOPHER BROWN

Court: TCCA

Attorneys:

Anthony Christopher Brown, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se Defendant, Anthony Christopher Brown, appeals as of right from his convictions for possession of less than .5 grams of cocaine, a Class C felony, and possession of drug paraphernalia, a Class A misdemeanor, arising from his bench trial in Davidson County Criminal Court. He received an effective sentence of three years as a Range I, standard offender. The Defendant contends that the evidence is insufficient to support his convictions. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/browna_102809.pdf


RHONDA GORDON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rhonda Gordon, pro se.

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

Judge: SMITH

This matter is before the Court upon the State's motion to affirm the judgment of the post-conviction court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Rhonda Gordon, has appealed the post-conviction court's order summarily dismissing the petition for post-conviction relief. In that petition, Petitioner alleges that she was afforded ineffective assistance of counsel and that her plea was not made intelligently, voluntarily and knowingly. Upon a review of the record in this case, we are persuaded that the post-conviction court was correct in summarily dismissing the petition for post-conviction relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/gordonr_102809.pdf


STATE OF TENNESSEE v. SCOTT EUGENE LINLEY

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender, for the appellant, Scott Eugene Linley.

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

Judge: THOMAS

The Defendant, Scott Eugene Linley, pled guilty to sale and delivery of 0.5 grams or more of cocaine, both Class B felonies, with the length and manner of sentences left to the discretion of the trial court, which merged the two counts. After a sentencing hearing, the trial court denied the Defendant's request for alternative sentencing and sentenced him to eight years in the Department of Correction. The Defendant appeals, arguing that the trial court erred by denying him alternative sentencing, particularly community corrections. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/linleys_102809.pdf


STATE OF TENNESSEE v. DELARIE KATRICE PURNELL

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; Michael J. Collins and William Harold, Assistant District Public Defenders, attorneys for appellant, Delarie Katrice Purnell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Delarie Katrice Purnell, pled guilty to sale and delivery of a Schedule VI controlled substance (counts 1 and 2), sale and delivery of a Schedule II controlled substance (counts 3 and 4), sale and delivery of a Schedule I controlled substance (counts 5 and 6), speeding (count 7), and simple possession of a Schedule VI controlled substance (count 8). At the sentencing hearing, the trial court denied alternative sentencing. The Defendant appeals, arguing that her sentence is excessive and contrary to law. Citing the Defendant's previous criminal convictions and criminal conduct, the court ordered the Defendant to serve an effective sentence of ten years as a Range I Standard Offender. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/purnelld_102809.pdf


STATE OF TENNESSEE v. DENISE RAE SINGH

Court: TCCA

Attorneys:

Joseph Liddell Kirk, Knoxville, Tennessee (on appeal), and Raymond Mack Garner, District Public Defender (at trial), for the appellant, Denise Rae Singh.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Senior Counsel, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Denise Rae Singh, appeals the trial court's order revoking her probation for her Class D felony conviction of facilitation of aggravated burglary and ordering her to serve her sentence in confinement. The State has filed a motion requesting that this court affirm the trial court's order pursuant to Tennessee Court of Criminal Appeals Rule 20. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/singhd_102809.pdf


Firearms, Vehicle Towing, Guests, and Security Deposits on Leased Property

TN Attorney General Opinions

Date: 2009-10-28

Opinion Number: 09-170

http://www.tba2.org/tba_files/AG/2009/ag_09_170.pdf

Valuation of Farm Property

TN Attorney General Opinions

Date: 2009-10-28

Opinion Number: 09-171

http://www.tba2.org/tba_files/AG/2009/ag_09_171.pdf

TODAY'S NEWS

Celebrate Pro Bono
Legal News
Politics
Upcoming
TBA Member Services

Celebrate Pro Bono
Maryville, Jackson events serve low income clients
Reports continue to come in from pro bono events around the state. On Saturday, Legal Aid of East Tennessee, in collaboration with the New Hope Child Advocacy Center, hosted a free legal clinic in Maryville. Attorneys, law students and an interpreter volunteered to serve needy clients. In West Tennessee, a free CLE in Jackson drew more than 65 lawyers who learned how to handle pro bono cases. A free legal clinic later that night gave the attorneys an opportunity to put their skills to use. There are still a number of events planned around the state over the next three days.
Find an event in your area and get involved
Legal News
Former Memphis attorney called to grand jury
Memphis News Channel 3 reported late today that former Memphis city attorney Elbert Jefferson will appear before a federal grand jury tomorrow. Jefferson's attorney Ted Hansom confirmed that Jefferson would testify tomorrow morning, reportedly about his dealings with former Memphis mayor W.W. Herenton.
Learn more at www.wreg.com
6th Circuit nominee close to confirmation
The Nashville Post reported today that the nomination of Nashville attorney Jane Branstetter Stranch, a partner in Branstetter Stranch & Jennings, to the U.S. Court of Appeals for the Sixth Circuit appears to be close to becoming an actual appointment. The paper notes that she has avoided major controversy, and that with the support of Tennessee's U.S. senators, she will avoid opposition from within the Senate's Republican caucus.
Read more (subscription required)
Legal Aid receives grant, names capital campaign chair
The Legal Aid Society of Middle Tennessee and the Cumberlands will receive $149,500 from the Community Enhancement Fund, which is administered by the Metropolitan Government of Nashville and Davidson County. The funds will be used to provide free legal services to low-income victims of domestic violence. In announcing the grant, Nashville Mayor Karl Dean thanked the society for its commitment to serving residents in middle Tennessee.

In related news, the society has named Charles W. Bone, founder and chairman of Bone McAllester Norton PLLC, as chair of its 2010 Campaign for Equal Justice. He will be joined in the annual fund-raising effort by Large Firm Division chairs Tonya Mitchem Grindon of Baker, Donelson, Bearman, Caldwell & Berkowitz and James M. Weaver of Waller Lansden Dortch & Davis; Small Firm Division chairs Nancy Krider Corley of Corley Henard Lyle Levy & Langford and Allen Woods of the Law Offices of Woods & Woods; and Government Attorneys Division chair and Tennessee Attorney General Robert E. Cooper Jr. The fund-raising campaign comes at a time when the organization is reporting an 83 percent increase in requests for assistance over last year.

Federal tax fraud suit includes Nashville defendants
Federal authorities filed lawsuits against seven people accused of promoting a bogus tax return scheme, including an individual in Nashville. Under the scheme, individuals file a series of phony IRS forms claiming large income tax withholding. Officials say the tax preparers often falsely tell customers the government maintains secrets accounts of money for its citizens that can be accessed by filing false returns. The suit seeks a total of $562 million in refunds.
Read more in the Daily News Journal
Civil Rights Museum selects 2009 award recipients
The National Civil Rights Museum in Memphis has presented its National Freedom Award to Myrlie Evers-Williams, widow of civil rights leader Medgar Evers, and basketball great Julius "Dr. J" Erving. Evers-Williams was recognized for her commitment to the civil rights movement, pursuit of justice in her husband's murder and restoration of the NAACP's financial standing and reputation. Erving was recognized for his role as a philanthropist, including chairing the Hemophilia Foundation, coaching in the Special Olympics basketball program, and serving as an adviser to the March of Dimes.
Read about the award recipients in the Commercial Appeal
Politics
Jackson businessman joins GOP primary for Senate seat
Jackson financial planner Adrian Eddleman says he'll seek the Republican nomination for state Senate in District 27. The seat is currently held by Democrat Lowe Finney and it includes Madison, Gibson and Carroll counties. The 39-year-old Eddleman, a first-time office seeker, said he would focus on lowering taxes, creating jobs and growing industry. The Memphis Daily News carried this AP report.

Upcoming
Knoxville law school visits on tap for next week
The TBA YLD will be in Knoxville next week on Monday and Tuesday to host events at the new LMU Duncan School of Law and the University of Tennessee College of Law. At the Duncan School, TBA representatives will be on campus on Monday, Nov. 2, from 5-7 p.m. to talk about student memberships, network with 1Ls and share a pizza dinner.

On Tuesday, Nov. 3, the law school outreach team will visit the UT College of Law with an information table from 10 a.m. to 4 p.m. in the law school rotunda and a pizza lunch at noon. For local attorneys and students from both schools, a networking reception will be held on Tuesday night from 5:30-7 p.m. at Oodles Uncorked in Market Square. All TBA members are invited to attend any or all of these events. For more information contact TBA staff member Stacey Shrader at sshrader@tnbar.org or (615) 383-7421.

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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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