'Split the Baby' bill defeated as committees wind down

Both the Senate and House Judiciary committees held their last announced committee meetings of the 2010 legislative session today. In the Senate committee a version of the "split the baby" bill -- which would have established a rebuttable presumption that shared parenting is in the best interests of the child -- went down to a 4-3-2 defeat; a bill to address perceived deficiencies in comity, choice of law and venue was recommended; and legislation to severely restrict pretrial diversion was placed in the general subcommittee, ending consideration for this session.

In the House committee the pretrial diversion bill was sent to summer study; no motion was made for reconsideration of the bill to enact a good faith exception to the exclusionary rule; a bill to reinstate the ban on pre-negotiated contracts for court reporter services advanced.
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
06 - TN Court of Criminal Appeals
00 - 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.

GINA SCARLETT FERRARI PACE v. WARD REDDEN PACE

Court: TCA

Attorneys:

Sarah S. Richter, Nashville, Tennessee, for the appellant, Ward Redden Pace.

D. Scott Parsley, Michael K. Parsley, Nashville, Tennessee, for the appellee, Gina Scarlett Ferrari Pace.

Judge: STAFFORD

This is a post-divorce modification of child custody and support. Father/Appellant appeals the trial court's order, which increased his child support obligation, modified his parenting time, and ordered him to pay Mother/Appellee's attorney's fees. Finding that the trial court erred in eliminating Father's one-week of uninterrupted summer visitation and not allowing him an additional night per week visitation, we reverse that portion of the order. Further, we find that the trial court erred in providing Father with a "credit" towards his child support in exchange for his payment of Mother's mortgage. Accordingly, we vacate the trial court's amount of child support ordered, as well as the trial court's award of attorney's fees to Mother. We affirm the trial court's findings on both Mother's and Father's income. Affirmed in part; reversed in part; vacated in part and remanded.

http://www.tba2.org/tba_files/TCA/2010/paceg_042710.pdf


STATE OF TENNESSEE EX REL. THE COMMISSIONER OF THE DEPARTMENT OF TRANSPORTATION v. WILLIAM H. THOMAS, JR.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General; Michael E. Moore, Solicitor General; and George G. Boyte, Jr., Jackson, Tennessee, for the appellant, State of Tennessee

William L. Hendricks, Jr., and Clayton C. Chandler, Memphis, Tennessee, for the appellee, William H. Thomas, Jr.

Judge: KIRBY

This appeal involves subject matter jurisdiction with respect to billboard permits. The defendant's application for a State permit to erect a billboard in Shelby County was denied, so he filed an administrative appeal from this decision. Meanwhile, the defendant proceeded to erect the billboard in Shelby County without a State permit. The State filed this petition in Shelby County to enjoin the defendant from erecting the billboard pending resolution of the administrative appeal. The defendant argued that the State was not entitled to injunctive relief because he had unfairly been denied a State permit. The defendant also filed a counterclaim based on alleged improper conduct by State officials, seeking to enjoin the State from improperly enforcing its regulations against him in all cases in which he had been denied a State billboard permit. The trial court entered an order enjoining the State from improper enforcement of the billboard regulations. Later, after lengthy evidentiary hearings, the trial court ordered the State to grant the defendant State permits for various billboard sites and assumed continuing jurisdiction over certain administrative proceedings in which the defendant had appealed the denial of billboard permits. The State now appeals. We find that, by statute, the trial court in Davidson County has exclusive subject matter jurisdiction over the matters asserted by the defendant in response to the petition for injunctive relief and in his counterclaims. Therefore, we reverse the decision of the trial court based on lack of subject matter jurisdiction, dismiss the counterclaim in its entirety, and remand.

http://www.tba2.org/tba_files/TCA/2010/thomasw_042710.pdf


JACK WEBB, v. DAVID BRIAN HAYS, et al.

Court: TCA

Attorneys:

Shawn P. Sirgo, Nashville, Tennessee, for the appellant, David Brian Hays.

Stephen E. Grauberger, Mt. Juliet, Tennessee, for the appellee, Jack Webb.

Mark T. Smith, Gallatin, Tennessee, for the appellee, Philip C. Kelly.

Judge: FRANKS

Plaintiff, a non-resident, brought this action against defendant real estate agent for releasing funds from a sale to defendant Hays, who had been employed by the plaintiff to sell items of personalty for plaintiff and improve plaintiff's real estate properties for sale. Further, that Hays improperly filed a lien against plaintiff's property, resulting in damages to plaintiff. The Trial Court granted the real estate agent summary judgment and, after a trial, entered a monetary judgment against Hays in favor of plaintiff. Plaintiff appeals the issue of summary judgment in favor of the real estate agent, and Hays appeals the monetary judgment entered against him in favor of plaintiff. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2010/webbj_042710.pdf


STATE OF TENNESSEE v. JOHN BARLOW

Court: TCCA

Attorneys:

William D. Massey and Lorna S. McClusky (on appeal), Michael J. Johnson and J. Mark Alston, Assistant Public Defenders (at trial), Memphis, Tennessee, for the Defendant- Appellant, John Barlow.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy P. Weirich and Marianne L. Bell, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, John Barlow, was convicted by a Shelby County Criminal Court jury of aggravated child abuse and aggravated child neglect, Class A felonies. The trial court sentenced Barlow as a Range I, violent offender to concurrent sentences of twenty-five years for the aggravated child abuse conviction and fifteen years for the aggravated child neglect conviction, for an effective sentence of twenty-five years. In Barlow's appeal, he argues that: (1) the evidence is insufficient to support his convictions, (2) the convictions for aggravated child abuse and aggravated child neglect violate his right against double jeopardy, (3) the trial court erred in declaring Dr. Robert Sanford and Dr. Karen Lakin as expert witnesses, (4) the trial court erred in allowing Dr. Lakin to testify that the victim suffered from an "abusive head trauma incident [that was] most probably associated with [a] bed[-]wetting episode," and (5) the State committed several incidents of prosecutorial misconduct. We conclude that the evidence is insufficient to support Barlow's conviction for aggravated child neglect. Accordingly, the judgment of conviction for aggravated child neglect is vacated. However, the judgment of the trial court in all other respects is affirmed. Because Barlow's fifteen-year sentence for his aggravated child neglect conviction was to be served concurrently with his twenty-five-year sentence for aggravated child abuse, his effective sentence is unchanged.

http://www.tba2.org/tba_files/TCCA/2010/barlowj_042710.pdf


STATE OF TENNESSEE v. DONALD RAY BLEVINS

Court: TCCA

Attorneys:

Michael Meise, Dickson, Tennessee, for the appellant, Donald Ray Blevins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Dale Potter, District Attorney General, and Tom Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Warren County Grand Jury indicted Appellant, Donald Ray Blevins, for two counts of delivery of cocaine, a Schedule II controlled substance, in an amount of less than 0.5 grams, and one count of delivery of cocaine, a Schedule II controlled substance, in an amount of 0.5 grams or more. These offenses were based upon three drug transactions involving a confidential informant's telephone calls to Appellant and further dealings with two other individuals. Following a jury trial, Appellant was convicted of facilitation of delivery of cocaine in an amount less than 0.5 grams, delivery of cocaine in an amount less than 0.5 grams, and delivery of cocaine in an amount of 0.5 grams or more. The trial court sentenced Appellant as a Range I, standard offender and imposed an effective nine-year sentence to be served at thirty percent. Appellant appealed his convictions arguing that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion to sever offenses. We have reviewed the record on appeal. We conclude that the evidence was sufficient to support Appellant's convictions of the delivery offenses based upon the theory of criminal responsibility. In addition, the evidence was sufficient to support his conviction for facilitation of delivery. We also conclude that the trial court did not abuse its discretion in determining that the telephone calls were part of a common scheme or plan and for that reason the denial of Appellant's motion to sever offenses was proper. Therefore, we affirm the judgments of the lower court.

http://www.tba2.org/tba_files/TCCA/2010/blevinsd_042710.pdf


STATE OF TENNESSEE v. ERICA HARRISON and ALEXIS HARRISON

Court: TCCA

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the Defendants-Appellants, Erica Harrison and Alexis Harrison.

Robert E. Copper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendants-Appellants, Erica Harrison and Alexis Harrison, each entered an open guilty plea to one count of theft of property valued at more than five hundred dollars ($500) but less than one thousand dollars ($1,000), a Class E felony, with the length and manner of service of the sentence to be determined by the trial court. Both requested judicial diversion, which the court denied. The trial court sentenced Erica Harrison as a Range I, standard offender to 180 days in the Tennessee Department of Correction with the balance of her two-year sentence to be served on supervised probation and sentenced Alexis Harrison as a Range I, standard offender to 90 days in the Tennessee Department of Correction with the balance of her sentence to be served on supervised probation. On appeal, Erica and Alexis Harrison argue that the trial court abused its discretion by (1) denying judicial diversion and (2) denying full probation. Upon review, we affirm the trial court's judgments but remand for a new sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2010/harrisone_042710.pdf


DANIEL LIVINGSTON v. STATE OF TENNESSEE, STEPHEN DOTSON, WARDEN

Court: TCCA

Attorneys:

Daniel Livingston, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

In 2002, a jury convicted the petitioner, Daniel Livingston, of evading arrest in a vehicle with risk of injury, a Class D felony, inter alia. The trial court sentenced him as a career offender to twelve years in the Tennessee Department of Correction. On July 28, 2009, the petitioner filed a petition for writ of habeas corpus, alleging that the indictment for evading arrest was insufficient to vest the trial court with jurisdiction. The circuit court dismissed the petition, and the petitioner now appeals. Following our review, we affirm the order of the circuit court.

http://www.tba2.org/tba_files/TCCA/2010/livingstond_042710.pdf


STATE OF TENNESSEE v. HECTOR DIAZ PENA IN RE: AARON BONDING COMPANY, T BONDING COMPANY & AROUND THE CLOCK BONDING COMPANY, LLC
With Dissenting Opinion

Court: TCCA

Attorneys:

James W. Tiller (on appeal and at hearing) and Peter J. Strianse (at hearing), Nashville, Tennessee, for the appellant, Hector Diaz Pena.

James W. Tiller (on appeal and at hearing), and Jeremy Gourley and Herbert R. Rich (at hearing), Nashville, Tennessee, for the appellant sureties, Aaron Bonding company, T Bonding Company, and Around The Clock Bonding Company, LLC.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and John Zimmerman and Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The appellants, Aaron Bonding Company, T Bonding Company, and Around the Clock Bonding Company, LLC, appeal the order of a final forfeiture against them, arguing that the trial court abused its discretion in issuing the order. Following our review of the record, we dismiss this appeal as being premature and remand the case to the trial court to issue an order of final disposition pursuant to Tennessee Rule of Civil Procedure 58, from which the appellants may then appeal.

http://www.tba2.org/tba_files/TCCA/2010/penah_042710.pdf

OGLE dissenting
http://www.tba2.org/tba_files/TCCA/2010/penah_DIS_042710.pdf


STATE OF TENNESSEE v. JOHNNY VILLALOBOS

Court: TCCA

Attorneys:

Harry E. Sayle III, (on appeal), and William Johnson (at trial), Memphis, Tennessee, for the appellant, Johnny Villalobos.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Shelby County jury convicted the defendant, Johnny Villalobos, of robbery, a Class C felony. The trial court sentenced the defendant as a Range I offender to four years in the workhouse. On appeal, the defendant contends that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/villalobosj_042710.pdf


TODAY'S NEWS

Legal News
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
E-mail case with jury
Jurors will resume deliberations Wednesday morning in the federal trial of David Kernell, accused of intruding into Sarah Palin's Yahoo! e-mail account in 2008 by guessing his way past security questions. After deliberating a little more than five hours this afternoon, jurors asked the judge for guidance on the legal definition of "access" to a computer. U.S. District Court Judge Thomas Phillips told jurors that that was their decision and referred back to his original instructions.
The News Sentinel has more
Teens visit legislators to promote Youth Courts
Twenty-five Wilson County high school students who participate in the state Youth Court Program will convene in Nashville tomorrow for the fourth annual Youth Court Day on the Hill. The teens will start the day at the Tennessee Bar Center with a training session and a presentation by Assistant Attorney General Gregory Nies. From there they will visit the state capitol to meet with legislators.
Read more about this year's Youth Court Day on the Hill
Judge honors Montgomery Teen Court
Judge Elizabeth Rankin on Monday presented members of the Montgomery County Teen Court with certificates of appreciation at its final session of the school year. The group meets once a week throughout the school year to decide appropriate punishments for first-time juvenile offenders. Through their roles, they help present facts and evidence, defend the accused juvenile and take care of the sentencing. Punishments can include writing a letter of apology to the victim, completing community service and completing various classes and counseling.
The Leaf Chronicle reports on the Montgomery County Youth Court
Judge sued for actions in divorce case
A man whose ex-wife fled to Japan with their two children, then was arrested in Japan after attempting to take the children back, is suing a local judge and an attorney who handled his divorce. Dr. Christopher Savoie of Franklin has filed federal and state lawsuits claiming that actions by Williamson County Circuit Court Judge James G. Martin resulted in his son, 9, and daughter, 7, being abducted by their mother.
The Tennessean has the story
Put your 2 cents into the law firm survey of economics
The National Law Journal and ALM Legal Intelligence are joining forces for what they call "one of the most comprehensive benchmarking surveys for law firms," The Survey of Law Firm Economics. They would like you to take part by following this link. The survey collects a host of statistics from law firms, allowing them to break down by firm size and region spending patterns on everything from associates to office equipment. Law firms that participate will receive a free excerpt of the results and a free metropolitan area study of local compensation, billing rates, and billable hours. The survey deadline has been extended to May 7, and the NLJ will report on the results in the Aug. 30, edition.
Learn more from the National Law Journal
Former JAG named ABA executive director
Last week the American Bar Association named Jack L. Rives, formerly the judge advocate general, United States Air Force, as its new executive director. The appointment is effective May 1. Rives served as senior U.S. Air Force (three star rank) attorney and was responsible for managing some 2,600 active duty, reserve and civilian lawyers. He led a reorganization of the delivery of legal services at Pentagon Headquarters.
ABAnow.org has details
Class action suit filed against red-light camera system
Four Knoxvillians are suing the city of Knoxville and Redflex Traffic Systems Inc., a former operator of the city's red-light camera system, contending that the program from 2005 to 2008 was contrary to the Tennessee Constitution. The suit was filed in Knox County Chancery Court as a class action.
The News Sentinel has the story
Chavez jails judge, threatens judicial independence
In a move that has drawn criticism as an attack on judicial independence in Venezuela, President Hugo Chavez has jailed a criminal court judge. Maria Lourdes Afiuni, was jailed on corruption charges after she allowed the release of a former banker who had once benefited from his ties to the government. Just 15 minutes after her ruling on Dec. 10, intelligence agents stormed Afiuni's court, arresting her and her entire staff. In a televised speech the following day, Chavez said Afiuni, 46, deserved a maximum 30-year jail sentence "in the name of the dignity of the country."
Listen to the story on npr.org
Upcoming
Dialogue on civil rights and freedom of expression set for Wednesday
Marking the 20th anniversary of Germany's reunification and the 50th anniversary of the Nashville sit-ins, dissident German artists from the former East Germany will join Joe Goldthreate and Dr. Rip Patton, participants from the Nashville sit-ins, and George Barrett, a Nashville attorney active in the civil rights movement, for a dialogue on civil rights and freedom of expression at the First Amendment Center. The panel is April 28 from 3 to 5 p.m. with a reception following. The event is open to the public, but seating is limited. To RSVP, call (615) 727-1333.
Get details from the First Amendment Center
Disciplinary Actions
Dyersburg lawyer suspended
Dyersburg lawyer Thomas H. Strawn Jr. was suspended April 20 by the Tennessee Supreme Court for two years pursuant to Rule 9, Section 4.2, of the Rules of the Supreme Court. He was placed on probation for 22 months following 60 days of active suspension, with eight days' credit on the actual suspension for time spent on temporary suspension. Strawn violated disciplinary rules by neglecting clients' Chapter 13 Bankruptcy cases.
Download the BPR release
TBA Member Services
Secure, compliant data backup service now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
Learn why lawyers trust i365 for online data backup solutions

 
 
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.

© Copyright 2010 Tennessee Bar Association