July 'Journal' features candidates' views on legal issues

In the July issue of the Tennessee Bar Journal, you will learn more about each of the gubernatorial candidates' positions on key issues facing the legal community -- judicial selection, electing trial judges, indigent defense, the civil justice system, workers' comp, selection of the attorney general and more.

Other articles include Clark Spoden's analysis of how the public interest has affected health care non-competition agreements, and Taylor C. Berger's points about what 'unpublished' and 'published' opinions really mean in this electronic age. Newly installed TBA President Sam Elliott writes his column about the desperate need to educate the public about our system of government -- and what he is going to do about it. Columnist Kathryn Reed Edge explains what to do when a bank gets "papered." Look for the Journal in your mailbox, or

read it online here.

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
04 - TN Court of Appeals
08 - 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.

JOSEPH MARION BARKER v. ANGEL CHANDLER

Court: TCA

Attorneys:

Lucian T. Pera, Brian S. Faughnan, Memphis, Tennessee; Christine P. Sun, New York, New York; Tricia R. Herzfeld, Nashville, Tennessee, for the appellant, Angel Chandler.

No Appellee Brief was filed.

Judge: STAFFORD

This is the second appeal from a parenting plan entered by the trial court. The only issue in both appeals involved the necessity of a "paramour provision" in the parenting plan. On remand from the first appeal, the trial court was directed by this Court to determine whether a paramour provision was in the best interests of the children. After a hearing, the trial court determined that it was in the best interests of the children to have a paramour provision in effect. Mother appealed. After reviewing the record, we find that the trial court abused its discretion by requiring a paramour provision as the record is devoid of any evidence to support a finding that the paramour provision is in the best interests of the children. Reversed.

http://www.tba2.org/tba_files/TCA/2010/barkerj_062910


THOMAS M. GAUTREAUX v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY

Court: TCA

Attorneys:

John P. Konvalinka and Matthew D. Brownfield, Chattanooga, Tennessee, for the appellant, Thomas M. Gautreaux.

Fred H. Moore and Joseph P. White, Chattanooga, Tennessee, for the appellee, Chattanooga- Hamilton County Hospital Authority.

Judge: MCCLARTY,

Thomas M. Gautreaux ("Gautreaux") filed a petition pursuant to the Tennessee Public Records Act for access to a settlement agreement involving Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") in a previous lawsuit. The Hospital denied the request, claiming that the document was privileged under the Tennessee Peer Review Law. Gautreaux then filed a petition for a show cause hearing. After the hearing, the trial court determined that the settlement agreement was exempt from disclosure under the Peer Review Law. Gautreaux appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/gautreauxt_062910.pdf


CHARLES D. STECHEBAR v. DEERE & COMPANY & JOHN DOE

Court: TCA

Attorneys:

Timothy L. Baldridge, Knoxville, Tennessee, for the appellant, Charles D. Stechebar.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Deere &Company.

Judge: MCCLARTY

This case concerns a complaint for review by writ of certiorari and supersedeas. The initial action was a personal injury suit, arising from an automobile accident in which Plaintiff Charles D. Stechebar's vehicle was allegedly hit by a tractor-trailer owned by Defendant Deere and Company ("Deere") and driven by Defendant John Doe, an unidentified employee of Deere. The personal injury suit was dismissed with prejudice in the general sessions court when the plaintiff failed to appear for the initial trial date. The record reflects that twelve days before the initial trial date, the plaintiff had filed an amended civil summons and obtained a new trial date. Fifty days after the dismissal, the plaintiff filed an appeal to the circuit court, asserting that he had not been notified of the dismissal in time to file an appeal within the ten-day window required by Tenn. Code Ann. Section 27-5-108(a)(1). The circuit court dismissed the appeal for lack of jurisdiction. The plaintiff then filed the complaint for review by statutory writ of certiorari and supersedeas. The circuit court granted the defendant's motion to dismiss the writ on the ground that the plaintiff failed to state a claim for which review could be granted. We hold that the plaintiff stated a claim for relief under statutory writ of certiorari and supersedeas. The trial court's judgment is reversed and the case remanded to the trial court for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/stechebarc_062910.pdf


GLADYS TUTUREA, Individually and as Representative of GEORGE TUTUREA v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court: TCA

Attorneys:

Sam J. Watridge, Humboldt, Tennessee, for the appellant, Gladys Tuturea.

Charles L. Trotter, Jr., Huntingdon, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Judge: FARMER

This case arises out of the burning of a residence by the plaintiff's terminally ill husband -- now deceased -- during an unsuccessful suicide attempt. The plaintiff filed this suit to recover under three separate insurance policies for the loss of the residence, two vehicles, and personal property destroyed in the fire. The trial court held that the plaintiff, who it found was a resident of the decedent's household, was not entitled to recover under the terms of the policies. The court further held that the plaintiff was not entitled to recover under the innocent co-insured doctrine. We affirm.

http://www.tba2.org/tba_files/TCA/2010/tutureag_062910.pdf


STATE OF TENNESSEE v. GEORGE R. FYKE

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender; Sarah R. King, Assistant Public Defender; and Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the appellant, George R. Fyke.

Robert E. Cooper, Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; John W. Carney, District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee, State of Tennessee,

Judge: WELLES

On April 5, 2007, the Defendant, George R. Fyke, pleaded guilty to four counts of forgery, one count of identity theft, and three counts of passing worthless checks. Pursuant to the terms of the plea agreement, he received an effective six-year sentence to be served in the Community Corrections Program for these convictions. Thereafter, on April 21, 2008, the Defendant pleaded guilty to one count of identity theft, one count of theft over $10,000, two counts of theft over $1,000, one count of attempted theft, and two counts of forgery. Also on that day, the Defendant admitted his violation of his April 2007 community corrections sentence. The trial court granted the Defendant a furlough to attend and complete a one-year rehabilitation program before sentencing. Following the Defendant's failure to complete the program, a sentencing hearing was held. The trial court ordered that the remainder of the Defendant's six-year sentence be served in confinement and, for the April 2008 convictions, imposed an effective eight-year sentence to be served on community corrections. On appeal, the Defendant argues that the trial court abused its discretion in ordering revocation of his community corrections sentence and that his eight-year sentence his excessive. After review, we affirm the sentencing decision of the trial court. However, we must remand for entry of a corrected judgment.

http://www.tba2.org/tba_files/TCCA/2010/fykeg_062910.pdf


STATE OF TENNESSEE v. RICKY LEE GANN, alias Rickey Lee Gann

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee, Assistant Public Defender; and Jane J. Buffaloe, Assistant Public Defender, attorneys for appellant, Ricky Lee Gann.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; District Attorney General; William H. Cox, District Attorney General; and Boyd Patterson, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Ricky Lee Gann, alias Rickey Lee Gann, pled guilty to seven counts of theft of property valued $1,000 or more, a Class D felony, two counts of theft of property valued $500 or more, a Class E felony, and two counts of theft of property valued $500 or less, a Class A misdemeanor. Following a sentencing hearing, the Defendant was sentenced to an effective six-year term in the Tennessee Department of Correction, followed by twelve years of probation. In this appeal as of right, the Defendant contends that the trial court erred in ordering consecutive sentences and in denying alternative sentencing. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/gannr_062910.pdf


STATE OF TENNESSEE v. ALEJANDRO CHEVO GUANA a.k.a. ALEJANDRO CHEVO GOUNA

Court: TCCA

Attorneys:

Blake D. Ballin, Memphis, Tennessee, for the appellant, Alejandro Chevo Guana.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., and Neal Oldham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

Appellant, Alejandro Chevo Guana, was convicted of first degree premeditated murder for killing Tennessee State Trooper Calvin Jenks during a routine traffic stop. He was sentenced to life in prison. He was also convicted of possession of marijuana with intent to deliver, for which he was to serve one year. He appeals, arguing the trial court erred in: (1) limiting his cross-examination of his co-defendant to reveal alleged bias; (2) denying a change of venue; (3) refusing to use his proffered jury questionnaire; (4) denying his request for individual and sequestered voir dire; and (5) finding the evidence sufficient for conviction where, he claims, the only evidence of premeditation was the testimony of his accomplice. We affirm.

http://www.tba2.org/tba_files/TCCA/2010/guanaa_062910.pdf


TRACY LYNN HARRIS v. JIM WORTHINGTON, WARDEN

Court: TCCA

Attorneys:

Robert L. Vogel, attorney for appellant, Tracy Lynn Harris.

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

Judge: THOMAS

The Petitioner, Tracy Lynn Harris, appeals as of right from the Morgan County Criminal Court's denial of his petition for habeas corpus relief. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2010/harrist_062910.pdf

TIPTON CONCURRING
http://www.tba2.org/tba_files/TCCA/2010/harrist_con_062910.pdf


STATE OF TENNESSEE v. KAREN KOONS

Court: TCCA

Attorneys:

Claudia S. Jack, District Public Defender; Richard H. Dunavant, Assistant Public Defender, Pulaski, Tennessee, for the Defendant-Appellant, Karen M. Koons.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Karen Koons, was convicted by a Lawrence County jury of driving under the influence, second offense, a Class A misdemeanor. She received a sentence of eleven months and twenty-nine days probation, following service of forty-five days in jail. On appeal, Koons challenges the sufficiency of the evidence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/koonsk_062910.pdf


STATE OF TENNESSEE v. TENITHIA MALENA

Court: TCCA

Attorneys:

Angela J. Hopson, Jackson, Tennessee, for the Defendant-Appellant, Tenithia Malena.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe L. Van Dyke, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN,

The Defendant-Appellant, Tenithia Malena, was convicted by a Hardeman County Circuit Court jury of one count of burglary, a Class D felony, and one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony. The trial court approved the sentence recommendation by the State and sentenced Malena as a Range I, standard offender to three years of supervised probation for the burglary conviction. The court also ordered her to pay $20,000 in restitution by April 4, 2008 and ordered her to pay the restitution balance of $34,662.44 in monthly payments of $350.00 starting May 1, 2008. In addition, the trial court sentenced her, pursuant to the State's recommendation, as a Range I, standard offender to six years of supervised probation for the theft conviction, which was to be served consecutively to the burglary conviction, for an effective nine-year probationary sentence. In this appeal, Malena challenges (1) the sufficiency of the evidence, (2) the admission of her financial records as evidence related to the theft charge, and (3) the trial court's denial of her motion for new trial on the ground that extraneous prejudicial information was considered by the jury. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/malenat_062910.pdf


STATE OF TENNESSEE v. LINDA M. MORAN

Court: TCCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Linda M. Moran.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Hollynn L. Hewgley and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

Appellant Linda M. Moran pled guilty to a 207-count indictment after it was revealed that she had stolen approximately $73,000 from her employer over the course of nearly a decade. At sentencing, Appellant argued that she should be given some form of alternative sentencing. The trial court disagreed and imposed an effective sentence of nine years in custody. Appellant contends the trial court erred in denying alternative sentencing. We affirm.

http://www.tba2.org/tba_files/TCCA/2010/moranlm_062910.pdf


JOSEPH DEJUAN WEBSTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Theodora Pappas, Brentwood, Tennessee, for the appellant, Joseph Dejuan Webster.

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

Judge: SMITH

Petitioner, Joseph Dejuan Webster, was convicted by a Davidson County jury of first degree murder. State v. Joseph Dejuan Webster, No. M2007-00050-CCA-R3-CD, 2008 WL 2229208, at *1 (Tenn. Crim. App., at Nashville, May 29, 2008), perm. app. denied, (Tenn. Dec. 8, 2008). He received a life sentence for the conviction which was ordered to be served consecutively to a prior sentence. Id. Subsequently, Petitioner filed a petition for post- conviction relief. Petitioner filed an amended petition, and the post-conviction court held a hearing. After the hearing, the post-conviction court denied relief. We have reviewed the record and conclude that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/websterj_062910.pdf


TODAY'S NEWS

Supreme Court Report
Legal News
Politics
Disciplinary Actions
TBA Member Services

Supreme Court Report
Kagan hearings continue
Senate Judiciary Committee hearings for U.S. Supreme Court nominee Elena Kagan continued today, with repeated questioning about her admiration for her former boss, the late Justice Thurgood Marshall. "I love Justice Marshall," Kagan told the committee. "He did an enormous amount for me. But if you confirm me to this position, you will get Justice Kagan. You won't get Justice Marshall, and that's an important thing." Follow the hearing on C-SPAN.
Keep up with the hearings from ABAJournal.com
Court reaffirms ban on 'soft money'
Five months after the Supreme Court ruled in favor of unlimited corporate and labor spending in federal elections, the justices have turned down a request to consider ending the ban on raising soft money -- unlimited donations from corporations, unions and others -- by national party committees.
The First Amendment Center carried this AP story
Legal News
Governor signs immigration bill, amidst concerns
Gov. Phil Bredesen signed an immigration bill Monday that requires local jailers to report to federal officials those people whose immigration status they cannot verify. "While I do have concerns about this legislation," Bredesen said, "this bill seeks to set up a verification process similar to what exists in our state's major cities, and I have been supportive of these efforts." Last week, the American Civil Liberties Union of Tennessee asked Bredesen to veto the bill. Hedy Weinberg, the organization's longtime executive director, discussed the group's reasoning in this interview with The City Paper.
Read more about the signing in the Tennessesan
Kindle alert: Colleges must make accommodations for blind students
The U.S. Departments of Justice and Education sent a joint letter to college and university presidents today instructing them to find alternatives for blind students if Kindles and other electronic book readers are required in the classroom.
WKRN.com carried this AP story
Politics
Bar association endorses judicial candidates in Memphis
A committee of the Ben F. Jones chapter of the National Bar Association has endorsed candidates in all five of the Memphis area's special judicial elections on the Aug. 5 ballot. The committee also endorsed in three of the court clerk races on the ballot.
The Daily News tells you who they are
All Republican candidates claim Tea Party support
Republican gubernatorial candidates Bill Haslam and Ron Ramsey are both now claiming support from Tea Party activists, with both now producing lists of Tea Party supporters. The third major Republican candidate, Zach Wamp, has also actively courted Tea Party support but hasn't yet released a list of backers.
The News Sentinel has more
Disciplinary Actions
Nashville attorney censured
Nashville attorney Connie Allison was publicly censured by the Tennessee Supreme Court on June 25 for violating the Rules of Professional Conduct by failing to preserve the confidences of a client during the termination of her representation of the client as a result of a conflict of interest.
Download the BPR news release
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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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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