Mid-term evaluations of appellate judges underway

The Judicial Performance Evaluation Commission is conducting mid-term evaluations of appellate judges. Surveys have been sent electronically to attorneys who have had a case heard by appellate judges, as well as to court personnel, trial judges and other appellate judges. The information provided in the evaluations is completely anonymous, according to the Administrative Office of the Courts, and will be used by the commission as part of the judicial evaluation process. The commission will also interview the judges this fall before completing the evaluations at the end of the year. For more information contact Aaron Conklin at aaron.conklin@tncourts.gov or (615) 741-2687.
TODAY'S OPINIONS
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AMERICAN LEGION POST 212 V. HOLLIS F. SUMMERS, ET AL.
Memorandum Opinion


Court: TCA

Attorneys:

Hollis F. Summers, Corryton, Tennessee, pro se appellant.

Scott Hahn, Knoxville, Tennessee, for the appellee, American Legion Post 212.

The trial court in this matter granted a motion to dismiss and entered a default judgment for the plaintiff, American Legion Post 212 ("Post 212"). The defendant, Hollis F. Summers ("Mr. Summers"), who was not present at the hearing, had removed the action to federal court days earlier. Under 28 U.S.C. section 1446(d), once a case is removed to federal court, a state court has no authority to take further action in the matter. Accordingly, because the trial court had no jurisdiction over the case, we must summarily reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2010/americanlegion_082010.pdf


WILLIAM C. BROTHERS v. OFFICE OF THE GOVERNOR, PHIL BREDESEN, ET AL.

Court: TCA

Attorneys:

William C. Brothers, Henning, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Jennifer L. Brenner, Assistant Attorney General, Nashville, Tennessee, for the appellees, Office of the Governor, Phil Bredesen, et al

Judge: HIGHERS

Appellant filed petitions seeking increased library access as well as his release from incarceration. Because Appellant has been unconditionally released from prison, we find his appeal moot and affirm the trial court's dismissal of his claims.

http://www.tba2.org/tba_files/TCA/2010/brothersw_082010.pdf


VERIC DEAN OSGOOD v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Kevin W. Shepherd, Maryville, Tennessee, for the appellant, Veric Dean Osgood.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Veric Dean Osgood, pled guilty in the Blount County Circuit Court to two counts of aggravated kidnapping, one count of aggravated robbery, and one count of aggravated burglary. He received a total effective sentence of thirty years in the Tennessee Department of Correction. Subsequently, he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that his pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the Petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCA/2010/osgoodv_082010.pdf


DEWAYNE SHARKEY v. MOLLY O'TOOLE, M.D.

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the appellant, Dewayne Sharkey.

E. Reynolds Davies, Jr., John T. Reese, Nashville, Tennessee, for the appellee, Molly O'Toole, M.D.

Judge: COTTRELL

An inmate appeals a summary judgment dismissing his medical malpractice and 42 U.S.C. section 1983 claims against the correctional facility's psychiatrist. Since the defendant's doctor negated essential elements of both claims with her expert affidavit and plaintiff failed to create a genuine issue of material fact, the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2010/sharkeyd_082010.pdf


STATE OF TENNESSEE EX REL. ARLIE "MAX" WATSON, ET AL. v. LARRY WATERS, ET AL.

Court: TCA

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, for the appellants, State of Tennessee ex rel. Arlie "Max" Watson, Peggy Marshall, Gerra Davis-Mary, and John A. Meyers.

Rhonda L. Bradshaw, Knoxville, Tennessee, for the appellees, Larry Waters, Sevier County Board of Commissioners, and Sevier County, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter, and Steven A. Hart, Special Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: MCCLARTY

A group of Sevier County residents identifying themselves as "Public Spirited Citizens" ("Plaintiffs") filed a set of quo warranto lawsuits against Sevier County, the Sevier County Board of Commissioners ("Board"), and Larry Waters, the County Mayor of Sevier County ("Mayor") (collectively "Defendants"). The trial court determined that Plaintiffs lacked standing. We affirm.

http://www.tba2.org/tba_files/TCA/2010/watsonm_082010.pdf


WELLMONT HEALTH SYSTEM v. JOHN QUINTON QUALLS, ET AL.

Court: TCA

Attorneys:

Bradley E. Griffith, Johnson City, Tennessee, for the appellants, Blue Cross Blue Shield of Tennessee and Tennessee Rural Health Improvement Association.

David W. Blakenship, Kingsport, Tennessee, for the appellees, John Quinton Qualls and Sarah E. Qualls.

Judge: MCCLARTY

Plaintiff hospital filed a lawsuit against defendant patient for unpaid medical expenses. Defendant patient filed a third party complaint against defendant insurance company alleging that the insurance company was responsible for the unpaid medical expenses pursuant to a health insurance policy. After a bench trial, the trial court concluded that the insurance contract was ambiguous and construed it against the defendant insurance company. Defendant insurance company appeals. After reviewing the record and the health insurance policy, we conclude that the policy was not ambiguous and the insurance contract specifically excluded coverage of patient's pre-existing condition. Accordingly, we reverse.

http://www.tba2.org/tba_files/TCA/2010/wellmont_082010.pdf


STATE OF TENNESSEE v. MARIO CHAMBERS

Court: TCCA

Attorneys:

Jacob E. Erwin, Memphis, Tennessee, for the Defendant-Appellant, Mario Chambers.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa S. McCusker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

In the Shelby County Criminal Court, the Defendant-Appellant, Mario Chambers, entered guilty pleas to four Class E felonies and one Class A misdemeanor. Specifically, Chambers pled guilty to possession of Morphine with intent to sell, possession of Hydrocodone with intent to sell, possession of Alprazolam with intent to sell and possession of marijuana. As a part of his plea agreement, Chambers received concurrent two-year sentences for each of the felony convictions to be served in the county workhouse and a concurrent thirty-four day sentence to be served in the county jail for the misdemeanor conviction, with the manner of service to be determined by the trial court. On appeal, Chambers argues that the trial court erred in denying an alternative sentence. Upon review, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2010/chambersm_082010.pdf


STATE OF TENNESSEE v. CARLOS KENNEDY

Court: TCCA

Attorneys:

George M. Googe, District Public Defender; Kandi K. Collins, Assistant Public Defender, for the Defendant-Appellant, Carlos Kennedy.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. Woodall, District Attorney General; and Brian M. Gilliam, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Carlos Kennedy, was convicted by a jury in the Circuit Court of Chester County of rape of a child, a Class A felony, attempted rape of a child, a Class B felony, assault, a Class A misdemeanor, and coercion of a witness, a Class D felony. He was sentenced to twenty-five years for rape of a child, ten years for attempted rape of a child, eleven months and twenty-nine days for assault, and four years for coercion of a witness. The trial court ordered the sentence for attempted rape of a child to be served consecutively with the sentence for rape of a child. It also ordered the sentences for assault and coercion of a witness to run concurrently with the conviction for rape of a child. Thus, Kennedy received an effective sentence of thirty-five years in the Tennessee Department of Correction. On appeal, Kennedy claims: (1) that the conviction for rape of a child is not supported by sufficient evidence; (2) the trial court erred by prohibiting defense counsel from questioning the victim and her mother about a prior allegation of sexual abuse made by the victim; and (3) the trial court erred by imposing consecutive sentencing. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/kennedyc_082010.pdf


WILLIAM PATRICK ROBINSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William Patrick Robinson, Tiptonville, Tennessee, Pro Se.

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

Judge: MCMULLEN

The petitioner, William Patrick Robinson, appeals pro se from the Circuit Court of Carroll County's dismissal of his petition for post-conviction relief. He pled guilty to first degree felony murder and especially aggravated robbery and was sentenced to life imprisonment without the possibility of parole and a concurrent term of twenty-five years imprisonment, respectively. The State filed a motion requesting this court to affirm the post-conviction court's order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/robinsonw_082010.pdf


STATE OF TENNESSEE v. BRENT R. STEWART

Court: TCCA

Attorneys:

Noel H. Riley II., Dyersburg, Tennessee, for the appellant, Brent R. Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Karen Burns, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

In this appeal, the defendant claims that his due process rights were violated because the judge presiding over his probation revocation had previously served as a member of his drug court team and had received ex parte information regarding the defendant's conduct at issue by virtue of his prior involvement. After due consideration, we agree that the Due Process Clause requires that a defendant's probation revocation be adjudicated by a judge who has not previously reviewed the same or related subject matter as part of the defendant's drug court team. Accordingly, we reverse the decision below and remand the defendant's case for a new hearing in front of a different judge.

http://www.tba2.org/tba_files/TCCA/2010/stewartb082010.pdf


KARDIUS WILKES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson, Memphis, Tennessee, for the appellant, Kardius Wilkes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Kardius Wilkes, was convicted by a jury of one count of first degree murder. This Court affirmed his conviction on direct appeal, and his application for permission to appeal was denied by the Tennessee Supreme Court. See State v. Kardius Wilkes, No. W2001-02172-CCA-R3-CD, 2002 WL 818255 (Tenn. Crim. App., Jackson, Apr. 26, 2002), perm. app. denied (Tenn. Oct. 7, 2002). He later filed a petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied the Petitioner relief. In this appeal, the Petitioner contends that the post-conviction court erred in denying him relief because his trial counsel failed to: (1) impeach a particular witness using transcripts of the Petitioner's first trial, which ended in a mistrial; (2) adequately meet with the Petitioner before his second trial; (3) call the Petitioner's brother as a witness; and (4) adequately investigate and interview potential witnesses. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2010/wilkesk_082010.pdf


TODAY'S NEWS

Legal News
Election 2010
Career Opportunities
Disciplinary Actions
TBA Member Services

Legal News
Chancellor says 'no sale' to Fisk
Chancellor Ellen Hobbs Lyle today rejected Fisk University's plan to sell a share of its art collection to an Arkansas museum, ordering the university and the state Attorney General's Office to find some way to keep Georgia O'Keeffe's famous art collection in Nashville. Lyle asked both parties to review their options and submit new proposals to the court by Oct. 8.
Read about it in the Tennessean
Deferred graduates turning to public interest law ... and staying there
When law firms with commitments to law school students began deferring offers in 2008 to make it through the crashing economic environment, a funny thing happened. Many of those students spent that off-year practicing public interest law. But that's not the funny part -- when the year was up a lot of them decided to keep doing it. "What's interesting about the deferral process is that, even though I thought it wasn't right, it got me to pursue what I wanted to do in the first place," Avi Singh said. A 2009 Harvard Law School graduate, Singh decided to stay on with the Santa Clara County public defender's office in San Jose, Calif., instead of returning to the firm Quinn Emmanuel after a four-month deferral. "Here, I'm helping clients on a very basic level," he said.
The New York Times tells you more about the trend
Irick execution moves forward
Criminal Court Judge Richard Baumgartner has rejected Billy Ray Irick's claim he is too mentally ill to be executed.
The News Sentinel reported the news
A spinal cord for a spinal cord?
A Saudi judge is considering having a man's spinal cord damaged as punishment after he was convicted of attacking another man with a cleaver and paralyzing him.
WKRN.com carried this AP story
Knox to hire Tindell as in-house lawyer
Knox County's Trustee-elect John Duncan III said Thursday that he plans to hire lawyer and former Knox County Republican Party Chairman Chad Tindell to serve as the department's in-house attorney, rather than outsource the position to a private firm.

Election 2010
Shelby Co. results certified, but some questions remain
The Shelby County Election Commission voted unanimously Thursday to certify the results of the controversial Aug. 5 election. However, some unfinished business remains, including an ongoing lawsuit filed by losing candidates Regina Morrison Newman and Minerva Johnican. Also, the Tennessee Bureau of Investigation is inspecting the election process, but it's uncertain when their results will be made public.
The Commercial Appeal has more
Dyer Co. overrules delay request, certifies election
The Dyer County Election Commission was asked to not certify August's Dyer County General Election during its meeting on Wednesday afternoon by a resident, Bennie Patterson, who was representing candidate for sheriff Rickie Tidwell. Patterson said Tidwell's lawyers had requested him to come to the commission and ask them to not certify the election until Aug. 23. "We've got about six issues that need to be looked at, talked about," Patterson said. After some discussion, the commission voted unanimously to certify August's general election.

Today, the commission voted to retain counsel, attorney Dean Dedmon, "in light of the circumstances of these questions that may involve a lawsuit."
The Dyersburg State Gazette has details from Wednesday's meeting
Career Opportunities
Boutique Memphis firm seeks trial attorney
The Adelman Law Firm PLLC in Memphis is seeking a trial attorney with 5 to 10 years of experience, preferably in the fields of health care and medical malpractice. The firm focuses on health care law, nursing home and medical malpractice defense. To apply for the opening contact Emily Headley at (901) 529-9313 or emily@adelmanfirm.com.
Learn more about the position on TBA's JobLink
Disciplinary Actions
Mississippi lawyer reinstated
Lexington, Miss., lawyer Brian Kelly Herrington was reinstated to the practice of law in Tennessee on Aug. 19 after complying with requirements for continuing legal education. He had been suspended on Aug. 26, 2008.

Kentucky lawyer reinstated
Hyden, Ky., lawyer Kenneth Ray Witt was reinstated to the practice of law in Tennessee on Aug. 19 after complying with requirements for continuing legal education. He had been suspended on Aug. 15, 2007.

TBA Member Services
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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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