Monday, July 26, 2010
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Roberts' Court: Conservative and likely to stay that way

Chief Justice John G. Roberts Jr., having presided over five terms on the U.S. Supreme Court, has overseen the court reach a conservative result 65 percent of the time. If the Roberts court continues on the course suggested by its first five years, "it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment's right to bear arms," an analytical report from The New York Times says. "Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes."

Read The New York Times' analysis
TODAY'S OPINIONS
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IN RE: CYNTHIA M-M, ET AL.
With Dissenting Opinion

Court: TCA

Attorneys:

Carl Richard Moore, Murfreesboro, Tennessee, for the appellee Jonathan N.

Joe Eric Hennessee, Murfreesboro, Tennessee, for the appellants, Todd H. and Deserae H.

Judge: DINKINS

Father of child appeals the trial court's denial of his motion to continue hearing to terminate his parental rights and subsequent termination of his rights on the grounds of abandonment and failure to establish/exercise paternity. Finding that the court erred not recessing the hearing to allow Father to be present at the termination hearing, we vacate the judgment terminating Father's parental rights and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/cynthiam_072610.pdf

CLEMENT dissenting
http://www.tba2.org/tba_files/TCA/2010/cynthiam_DISS_072610.pdf
IN THE MATTER OF DAVID J. B. ET AL.

Court: TCA

Attorneys:

James L. Baum, Burns, Tennessee, for the appellant, Patricia S.

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

Judge: CLEMENT

Mother appeals the termination of her parental rights to her two youngest children. The trial court found three grounds upon which to terminate Mother's parental rights: abandonment by failure to provide a suitable home, failure to remedy persistent conditions and mental incompetence; and the court found that termination was in the children's best interests. We affirm.

http://www.tba2.org/tba_files/TCA/2010/davidjb_072610.pdf
TENNESSEE PROTECTION AGENCY, INC. v. JORDON D. MATHIES

Court: TCA

Attorneys:

Terry R. Clayton, Nashville, Tennessee, for the appellant, Jordan D. Mathies.

Patrick Johnson, Nashville, Tennessee, for the appellee, Tennessee Protection Agency, Inc.

Judge: BENNETT

Party A obtained a default judgment in general sessions court against Party B. The general sessions court subsequently granted Party B's motion to set aside the default judgment. Party A appealed to circuit court. The circuit court reversed the general sessions court's decision to set aside the default judgment. Party B appeals to this court. We affirm the decision of the circuit court.

http://www.tba2.org/tba_files/TCA/2010/tpa_072610.pdf
LONNIE H. WILLIAMS, ET AL. v. ESTATE OF JAMES P. HOLLINGSWORTH, III, ET AL.

Court: TCA

Attorneys:

Brian J. Hunt, Clinton, Tennessee, for the appellant, Laurel Valley Investments, Inc.

Chris Ralls, Maryville, Tennessee, for the appellees, Lonnie H. Williams and wife, Patricia A. Williams.

Judge: SUSANO

The original complaint in this case was filed by Lonnie H. Williams and his wife, Patricia A. Williams ("the Williams") against a neighboring landowner, James P. Hollingsworth, III, following damage to their property allegedly caused by excavation, logging, and road construction conducted on Hollingsworth's properties. The Williams sought injunctive relief (1) to prohibit Hollingsworth from further diverting surface water and debris onto their land, and (2) to require restoration of their property. They also sought related damages. Subsequently, Laurel Valley Investments, Inc., a Florida corporation, was added as a party defendant after the Williams determined that the corporation owned part of the property on which the erosion-causing activities occurred. The Williams alleged the joint and several liability of Hollingsworth and Laurel Valley. Years into the case, the parties entered into an agreed settlement that purported to settle their dispute. Later, the Williams filed a petition for contempt that sought enforcement of the settlement order. At a bench trial, the court permitted the Williams to take a non-suit as to the estate of Mr. Hollingsworth. The trial court found Laurel Valley in violation of the court's orders and awarded the Williams damages of $194,915.60. Laurel Valley appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/williamsl_072610.pdf
BARBARA ANN WYATT v. DELMER COLEMAN WYATT

Court: TCA

Attorneys:

Cynthia Fields Davis, Crossville, Tennessee, for the appellant, Delmer Coleman Wyatt.

Barbara Sabiston Lyle, formerly Wyatt, Beaufort, North Carolina, appellee, Pro Se.

Judge: SUSANO

In this divorce case, the trial court granted the parties a divorce on stipulated grounds and, pursuant to their agreement, divided the bulk of their property. The parties litigated the issue of how the proceeds from the sale of a piece of improved real estate should be distributed. Following a hearing, at which each of the parties testified, the court awarded Delmer Coleman Wyatt ("Husband") $6,500, the stipulated pre-marital value of the unimproved lot, based upon Husband's ownership of the lot before the parties' marriage. It then divided the remaining net proceeds from the sale of the improved property, i.e., $111,376.37, equally between Husband and his wife, Barbara Ann Wyatt ("Wife"). Husband appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/wyattb_072610.pdf
DUANE MICHAEL COLEMAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Duane Michael Coleman, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Duane Michael Coleman, appeals the dismissal of his petition for post-conviction relief. The Petitioner filed his petition outside the statute of limitations. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/colemand_072610.pdf
JIMMY GRAY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jimmy Gray, Pro Se, Pikeville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and James H. Stutts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Jimmy Gray, stands convicted of four counts of aggravated rape and is serving a sentence of eighty years in the Tennessee Department of Correction. On September 14, 2009, the petitioner filed a petition for writ of error coram nobis on the basis of newly discovered evidence. The trial court summarily dismissed the petition as filed outside the statute of limitations. On appeal, the petitioner claims that (1) due process requires tolling of the statute of limitations; (2) he filed his petition within one year of discovering new evidence; and (3) the trial court erred by summarily dismissing his petition. Following our review of the parties' briefs, the record on appeal, and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/grayj_072610.pdf
STATE OF TENNESSEE v. TRACY THOMAS HEPBURN

Court: TCCA

Attorneys:

Adam W. Parrish, Lebanon, Tennessee, for the appellant, Tracy Thomas Hepburn.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Bobby Hibbett, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Tracy Thomas Hepburn, was convicted of twenty-four counts of burglary, a Class D felony, three counts of attempted burglary, a Class E felony, fourteen counts of misdemeanor vandalism, six counts of vandalism, a Class E felony, two counts of vandalism, a Class D felony, ten counts of misdemeanor theft, one count of theft, a Class E felony, and two counts of theft, a Class D felony, in case nos. 02-0844, 02-0875, 02-0876, 02-0888, and 02-0291. The trial court sentenced Defendant as a Range III, persistent offender, to ten years for each Class D felony conviction, five years for each Class E felony conviction, and eleven months, twenty-nine days for each Class A misdemeanor conviction. The trial court imposed a combination of concurrent and consecutive sentencing for an effective sentence of one hundred years. On appeal, Defendant argues that the trial court erred in denying his motion to suppress and in imposing consecutive sentencing. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/hepburnt_072610.pdf
STATE OF TENNESSEE v. SEDRIC LAMONT HOLT

Court: TCCA

Attorneys:

Ashley Preston, Nashville, Tennessee, for the appellant, Sedric Lamont Holt.

Robert J. Cooper, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

A Davidson County Grand Jury returned an indictment against Defendant, Sedric Holt, for nine counts of aggravated robbery. Defendant subsequently pled guilty to five counts of robbery, all Class C felonies. The trial court sentenced Defendant as a Range I, standard offender, to five years each in counts two, three, seven, and eight, and four years in count four. Counts two and three were ordered to be served concurrently with each other and consecutively to count four. Counts seven and eight were ordered to be served concurrently with each other and consecutively to counts two, three, and four for an effective fourteen-year sentence in the Department of Correction. On appeal, Defendant argues that his sentence is excessive and that he should have been granted an alternative sentence. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/holts_072610.pdf
STATE OF TENNESSEE v. CECIL HUGHES, JR.

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender; and B. Jeffery Harmon, Assistant Public Defender, Jasper, Tennessee, for the appellant, Cecil Hughes, Jr.

Robert E. Cooper, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven Strain, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a guilty plea to aggravated assault on October 22, 2001, Defendant was sentenced to six years at thirty percent, with one year to be served in the county jail and five years on supervised probation. A probation violation warrant was issued on September 12, 2007, alleging that Defendant had violated the terms of his probation for failing to report and several other technical violations. The trial court revoked Defendant's probation on May 30, 2008, and ordered him to serve the remainder of his sentence incarcerated. On appeal, Defendant argues that the trial court erred in revoking his probation because his sentence was expired before the issuance of the violation warrant. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/hughesc_072610.pdf
GRADY WAYNE MEALER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Grady Wayne Mealer.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Grady Wayne Mealer, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel because he was denied the right to testify at trial. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/mealerg_072610.pdf
STATE OF TENNESSEE v. THERESA W. ROBINSON

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; D. Michael Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney General, for the appellant, State of Tennessee.

Terry Abernathy, Selmer, Tennessee, for the appellee, Theresa W. Robinson.

Judge: GLENN

The defendant, Theresa W. Robinson, was indicted for soliciting unlawful compensation, misuse of official information, and official misconduct. She applied for pretrial diversion, and the district attorney general denied her request. After granting her petition for a writ of certiorari, the trial court ruled that the district attorney general abused his discretion in denying pretrial diversion. The State appealed. Following our review, we conclude that we are without jurisdiction because the State cannot appeal the trial court's decision to grant pretrial diversion under Tennessee Rule of Appellate Procedure 3 and we decline review under Tennessee Rule of Appellate Procedure 10. Accordingly, the State's appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2010/robinsont_072610.pdf
ADAM WESTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mart S. Cizek, Clinton, Tennessee, for the appellant, Adam Wester.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; David C. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Adam Wester, appeals the Anderson County Criminal Court's denial of post-conviction relief from his conviction for felony murder in the perpetration of aggravated child abuse, for which he received life imprisonment. The Defendant contends that trial counsel was ineffective in failing to suppress the Petitioner's written statements to law enforcement and in failing to challenge the State's expert regarding the cause of the victim's injuries. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/westera_072610.pdf
TODAY'S NEWS
Legal News
Election 2010
Court of the Judiciary
TBA Member Services
Legal News
Judge steps aside in wake of 'improper' email from mayor
Judge Sherry Paty recused herself this afternoon in Hamilton County in a surprise announcement -- as the case she was hearing was nearly completely finished. She said she had received an email from Mayor Ron Littlefield outlining his frustration "by the slow, soft and reluctant pace of justice in the case of The Pet Company." From the bench, Paty said that "Mayor Littlefield has demonstrated an improper, unethical and perhaps contemptible disregard for the separation of powers between the judicial and executive branches of government. I am not an arm or extension of the mayor's office, but am a duly elected member of the judicial branch of government." Paty says she has referred the email to District Attorney Bill Cox.
NewsChannel 9 has the story
Opinion: Time for a woman on federal bench in Tennessee
In an opinion piece, the president of the Nashville Political Women's Caucus calls on President Obama to choose a woman to preside over the Middle District of Tennessee, to fill the position of retiring Judge Robert Echols.
Read it in the Tennessean
No cell phones in justice center is new rule
A new rule at the George P. Jaynes Justice Center in Jonesborough bans cell phones and electronic devices, except for attorneys, reporters and parole officers. It came as a surprise last week to those coming to the facility only to be made to put their cell phones back in their cars.
WCYB has the story
Juvenile Justice Center on track to reopen Oct. 1
A spokesperson for the Davidson County's Juvenile Justice Center, damaged in the May flooding, said the cleanup phase has officially transitioned from recovery to restoration, and an Oct. 1 reopen date is still realistic. The building sustained $4 million in damages, and is among Metro's top four most seriously damaged.
NewsChannel 5 has the report
Gonzales 'angry' about the ordeal
Former Attorney General Alberto Gonzales said on CNN this weekend that he "felt angry" about his treatment after the 2006 firings of nine U.S. attorneys.
Watch it on CNN
20 years of the ADA: How is it working?
It's been 20 years since the Americans with Disabilities Act became law. Is it working? Former Attorney General Richard Thornburgh says it's not enough.
CNN reports
Nonprofits get more time, IRS announces
Organizations at risk of losing their tax-exempt status because they failed to file required returns for 2007, 2008 and 2009 can preserve that status by filing returns by Oct. 15, the Internal Revenue Service announced today. The IRS has posted the names and last-known addresses of these at-risk organizations, which includes more than 9,300 Tennessee firms.
Learn more, and find the list, from the Nashville Business Journal
Election 2010
Herenton making the race about race
In the race for the Ninth District U.S. House seat, former Mayor Willie Herenton is accusing white two-term incumbent U.S. Rep. Steve Cohen of "trying to act black." He tells voters that they "need to come off that Cohen plantation and get on the Herenton freedom train." Cohen said "It appears that the former mayor is making race the basis of his campaign, but I don't think voters are going to go for that at all."
The Times News carried this AP story
Court of the Judiciary
Motion: Bell should pay for proceedings
Motions in the case against Judge John A. Bell were filed today asking the court to assign costs of the disciplinary proceedings to Bell as he was "found culpable of ethics and conduct violations." The court said it "is at best incongruous that State or Local Government, and the citizens and taxpayers of government, bear in any fashion the financial consequences of Judge Bell's own adjudicated malfeasance." Download this motion. Another motion asked that Judge J.S. (Steve) Daniel be replaced as counsel of record effective July 1, by Timothy R. Discenza. Daniel retired as Disciplinary Counsel, and Discenza has been named in his place.
Download this motion
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