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| Monday, March 07, 2011 |
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Not much progress since 'Caperton,' but report finds promise in Tennessee efforts
Two years after the U.S. Supreme Court heard oral argument in the landmark Caperton v. Massey case, few states have adopted disqualification rules addressing the tsunami of money that has flowed into state judicial elections over the last decade, a new report says. The case was about a coal company CEO who spent millions to elect a West Virginia judge who then went on to throw out a multi-million dollar damages award against the CEO's company. Major newspapers across the country called for states to adopt disqualification rules, yet a recent
report by the Brennan Center for Justice
shows that while "a handful of states have adopted promising new rules, the majority of state courts have failed to adopt any reforms that respond to the threats identified in Caperton." Tennessee is one of the states where "promising" rules have been proposed, the report says.
Gavel Grab has more
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TODAY'S OPINIONS
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SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_030711.pdf
ROBIN BAKER v. A & L INDUSTRIAL CONSTRUCTION AND MAINTENANCE, INC.
Court: TWCA
Attorneys:
J. Eddie Lauderback, Johnson City, Tennessee, for the appellant, A & L Industrial Construction and Maintenance, Inc.
Gregory W. Francisco, Kingsport, Tennessee, for the appellee, Robin Baker.
Judge: KURTZ
The employee sustained a compensable injury to her left wrist. She alleged that she also sustained a neck injury as a result of the same incident. The employer denied the neck claim. The employee's evaluating physician expressed somewhat contradictory opinions regarding the causal relationship between the work incident and her neck injury. The trial court held that the employee had a compensable neck injury in addition to her wrist injury and awarded
benefits accordingly. The employer has appealed that finding. We affirm the judgment.
http://www.tba2.org/tba_files/TSC_WCP/2011/bakerr.pdf
ANNE MARIE SMITH v. INTEX ENTERPRISES, LLC
Court: TWCA
Attorneys:
J. Brent Moore and Michael T. Schmitt, Nashville, Tennessee, for the appellants, Intex Enterprises, LLC and CNA Insurance Company.
J. Timothy Bobo and Ryan C. Edens, Clinton, Tennessee, for the appellee, Anne Marie Smith.
Judge: KURTZ
The employee filed a motion to compel her employer to provide medical treatment pursuant to a court-approved settlement concerning a claim for an injury sustained in 2002. Her employer opposed the motion, contending that any medical treatment sought by the employee was due to a separate injury sustained in 2004. In the settlement of the 2004 claim, the employee had waived her right to future medical treatment. The trial court granted the employee's motion, and her employer has appealed. We conclude that the employee's claim for medical treatment is not ripe for judicial resolution, and vacate the trial court's order.
http://www.tba2.org/tba_files/TSC_WCP/2011/smitha_030711.pdf
APPLEBY TRUST LIMITED, Trustee v. NEW ENGLAND LIFE INSURANCE COMPANY, A DIVISION OF METROPOLITAN LIFE INSURANCE COMPANY
Court: TCA
Attorneys:
Bruce S. Kramer, Scott A. Kramer, Memphis, Tennessee, for the appellant, Appleby Trust Limited
Prince C. Chambliss, Jr., Memphis, Tennessee, for the appellee, New England Life Insurance Company
Judge: HIGHERS
Current owner of a life insurance policy filed a complaint for declaratory judgment, alleging that the life insurance company wrongfully terminated the policy after failing to notify the current owner of the impending lapse of the policy for nonpayment of premiums. The life insurance company filed a motion for summary judgment, along with an affidavit and a copy of the policy, in an attempt to demonstrate that it had provided notice in accordance with the policy terms. The current owner filed a response along with an affidavit. The trial court granted summary judgment to the life insurance company. We affirm.
http://www.tba2.org/tba_files/TCA/2011/applebytrust_030711.pdf
EDMOND CATO ET AL. v. D. L. BATTS ET AL.
CORRECTION On page fourteen (14) of the opinion, the name "Stevens" has been changed to "Butler". Changes have been made at the end of 1st paragraph and within the 1st, 2nd and 4th lines of the 2nd paragraph.
Court: TCA
Attorneys:
Shawn P. Sirgo and Curtis R. Harrington, II, Nashville, Tennessee, for the appellants, Edmond and Duanna Cato.
Edward J. Gross, Nashville, Tennessee, for the appellees, D. L. Batts and Helen Batts.
Judge: CLEMENT
Purchasers of home filed this action against the sellers for negligent misrepresentation and fraudulent misrepresentation for the failure to disclose defects in the home. The trial court
found for the purchasers on their claim of negligent misrepresentation but denied their claim of fraudulent misrepresentation and their request for rescission. Purchasers appealed contending the trial court erred by not finding fraudulent misrepresentation and partially denying their motion to alter or amend the judgment in which they sought to introduce new evidence. We affirm the ruling of the trial court in all respects.
http://www.tba2.org/tba_files/TCA/2011/catoe_COR_030711.pdf
ELMA LOU HALE v. GERALD D. HALE ET AL.
Court: TCA
Attorneys:
L. Thomas Austin, Dunlap, Tennessee, for the appellants, Gerald D. Hale and Bonnie F. Hale.
J. Al Johnson, Spencer, Tennessee, for the appellee, Elma Lou Hale.
Judge: CLEMENT
This is the second appeal of an action to partition 74 acres. Plaintiff is a widow who owns a one-half interest in the land as a tenant in common with Defendants, Plaintiff's stepson and
his wife. Plaintiff filed this action in 2008 to partition the property by sale. Defendants opposed a sale and sought partition in kind. The trial court ordered the property sold upon findings that a partition in kind was impractical and that the two tracts were more valuable if sold together. Defendants appealed, and we affirmed with instructions that the property be sold on remand. Before the sale, a survey was conducted which revealed that Defendants' home, located on a one-acre tract owned separately by Defendants, encroached on the property held by the parties as tenants in common. In order to resolve the encroachment issue, the trial court ordered Plaintiff to quitclaim a mere 0.168 acres to Defendants and ordered Defendants to quitclaim a like-sized portion of the property of equal value to Plaintiff. Although this remedy was favorable to Defendants, they nonetheless appealed, claiming the trial court had no legal authority to order them to quitclaim any property to
Plaintiff. We have determined the trial court is authorized to partition a portion of the property in kind, pursuant to Tenn. Code Ann. section 29-27-104, and to order that the remaining
property be partitioned by sale. Thus, we affirm.
http://www.tba2.org/tba_files/TCA/2011/haleg_030711.pdf
RENASANT BANK, a Mississippi Charter Bank Doing Business in Tennessee v. WILLIAM R. HYNEMAN, ET AL.,
Court: TCA
Attorneys:
Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellant, William R. Hyneman.
Stephen W. Vescovo and Jonathan Louis May, Memphis, Tennessee, for the appellee, Renasant Bank.
Judge: FARMER
This is a breach of contract case. The trial court found two defendants liable for breaches of continuing guaranty agreements related to a construction loan and awarded judgment for the plaintiff. The trial court, however, did not adjudicate a pending cross-complaint. Although the court attempted to certify the judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, the court's order did not make the express findings essential to certification. Because the trial court did not properly certify the judgment as final, we do not have jurisdiction to consider the issues raised before us. We dismiss the appeal.
http://www.tba2.org/tba_files/TCA/2011/renasantbank_030711.pdf
STATE OF TENNESSEE v. JANE DOE
Court: TCCA
Attorneys:
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellant, State of Tennessee.
G. Jeff Cherry and David Veile, Lebanon, Tennessee, for the appellee, Jane Doe.
Judge: OGLE
The appellant, State of Tennessee, appeals the Davidson County Criminal Court's order granting the motion of the appellee, Jane Doe, to expunge a criminal indictment that was dismissed pursuant to a plea agreement. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/doej_030711.pdf
LOVARD DEANTA HORTON v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Elaine Heard, Nashville, Tennessee, for the appellant, Lovard Deanta Horton.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Tammy Meade,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
Petitioner, Lovard Deanta Horton, appeals from a Davidson County Court's dismissal of his petition for post-conviction relief. Petitioner was indicted in a multi-count indictment for
three counts of conspiracy to sell cocaine weighing 300 grams or more, one count of conspiracy to possess cocaine weighing 300 grams or more with the intent to sell, one count
of possession of marijuana weighing 70 pounds, one gram or more with intent to sell, one count of money laundering, one count of conspiracy to possess 300 pounds or more of
marijuana with intent to sell or deliver in a school zone, and one count of possession of 300 pounds or more of marijuana with intent to sell or deliver. Petitioner pled guilty to two
counts of conspiracy to sell cocaine weighing 300 grams or more, one count of possession of more than 70 pounds of marijuana with intent to sell, and one count of possession of more than 300 pounds of marijuana with intent to sell. He received an effective sentence of twenty-eight years as a Range I, Standard Offender. Petitioner filed a pro se petition for post-conviction relief alleging that he received ineffective assistance of counsel and that his guilty pleas were not knowingly and voluntarily entered. After a hearing on the petition, the post-conviction court denied relief. Petitioner has appealed. After a review, we determine that Petitioner has failed to present clear and convincing evidence that his guilty plea was involuntarily or unknowingly entered or that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.
http://www.tba2.org/tba_files/TCCA/2011/hortonl_030711.pdf
STATE OF TENNESSEE v. GARY DWAYNE JOHNSON
Court: TCCA
Attorneys:
Matthew Mayo, Nashville, Tennessee; and Michael Meise, Dickson, Tennessee, for the appellant, Gary Dwayne Johnson.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
Following a jury trial, the Defendant, Gary Dwayne Johnson, was convicted of one count of reckless endangerment, a Class E felony, one count of robbery, a Class C felony, one count
of assault, a Class A misdemeanor, two counts of carjacking, Class B felonies, one count of especially aggravated kidnapping, a Class A felony, and one count of felony escape, a Class E felony. See Tenn. Code Ann. sections 39-13-101(b)(1), -13-103, -13-305(b)(1), -13-401(b), -13
-404(b), -16-605(b)(2). The trial court found that the Defendant was a career offender and sentenced him to the following terms: six years for his reckless endangerment conviction, fifteen years for his robbery conviction, eleven months and twenty-nine days for his assault conviction, thirty years for each carjacking conviction, sixty years as a violent offender for his especially aggravated kidnapping conviction, and six years for his felony escape conviction. The trial court merged the Defendant's convictions for reckless endangerment
and robbery and ordered that all of his convictions, except the misdemeanor, run consecutively for a total effective sentence of 141 years. In this direct appeal, the Defendant
raises the following issues for review: (1) The evidence presented at trial was not sufficient to sustain his convictions for reckless endangerment, robbery, assault, and carjacking; (2) The trial court erred when it sentenced him as a career offender and when it ordered that his sentences run consecutively; and (3) The trial court erred when it denied the Defendant's motion to dismiss his Trial Counsel before the sentencing hearing. Following our review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/johnsong_030711.pdf
JAMES TAYLOR v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
James O. Martin, III (on appeal), and David Wicker (at trial), Nashville, Tennessee, for the appellant, James Taylor.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
The petitioner, James Taylor, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his convictions for first degree felony murder and
especially aggravated robbery and resulting sentences of life and forty years, respectively. On appeal, the petitioner contends that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/taylorj_030711.pdf
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| TODAY'S NEWS |
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General Assembly News
Passages
Legal News
U.S. Supreme Court
Your Practice
TBA Member Services
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| General Assembly News |
| Bill would abolish ban on corporate donations |
| A measure that overhauls Tennessee's campaign finance laws would abolish a longstanding ban on donations from companies, in a move that supporters say would put businesses on an equal footing with labor unions.
"I think there should be parity," said state Rep. Glen Casada, R-Franklin, the bill's sponsor in the state House of Representatives.
But the legislation could give corporations and special interests more influence over Tennessee politics, say opponents, and a survey of campaign finance records shows Tennessee's largest companies are already big donors to campaigns through their political action committees. |
The Tennessean has the story
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| Track legislation of interest to Tennessee attorneys |
| The 107th Tennessee General Assembly is now in session and the TBA has a number of tools to help you track the status of legislation. Watch TBA Today for regular news updates and follow the TBA Action List to track bills in the General Assembly that the TBA has a direct interest in -- those it has initiated, taken a position on, or has a policy on. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community. |
Find complete TBA legislative resources
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| Passages |
| Zoning administrator, VU law school grad West dies |
| Lon F. "Sonny" West, who became one of Metro Nashville government's biggest storehouses of institutional memory while working there for more than 55 years, died Saturday night of kidney cancer. He was 73.
Mr. West started working for Davidson County in 1955, then worked for Metro after the city and county governments merged in 1963. The Vanderbilt University Law School graduate became the Metro zoning administrator in 1986.
Visitation will be 4 to 8 p.m. Thursday and 9 to 11 a.m. Friday at Judson Baptist Church, 4900 Franklin Road in Nashville, followed by a memorial service at 11 a.m. |
The Tennessean has more
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| Legal News |
| Black's Law Dictionary looks at 'getting Sheened' |
| Getting "borked" -- the phrase coined to describe a takedown like Robert Bork's 1987 failed U.S. Supreme Court appointment -- is being replaced by a new verb: "Charlie Sheen-ing," or more simply "sheening" or "sheened." Even Black's Law Dictionary is talking about it.
Bryan Garner, editor of Black's, talks about the "sheening"-as-a-verb phenomenon. (He had included "getting Borked" in the ninth edition of Black's Law Dictionary.) Garner came up with a related definition -- "to pull a Sheen," which "could mean to ridiculously try to defend oneself in the public media."
"I have no doubt that his name will spawn one or more meanings besides getting drunk," Garner told the newspaper. Thanks to ABA Journal for pointing readers to this |
New York Times article
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| Judge gives photo skills to benefit Amish family |
| Proceeds from the sale of a limited edition print will go to assist two Amish families who lost their four children in a flash flood in Dublin, Ky. The tragic incident occurred on Feb. 25 in Graves County, Ky. One of the photographers of the project is
Hamilton County General Sessions Court Judge Bob Moon |
Read more in the Chattanoogan
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| Obama ends ban on Gitmo military trials |
| President Barack Obama still intends to close the U.S. Navy base at Guantanamo Bay in Cuba. But today, by executive order, he has eliminated a ban he imposed nearly two years ago on conducting military trials there of detainees held at the facility.
The order apparently anticipates that military tribunals of some of the remaining 170 detainees could occur at Guantanamo Bay while trials of others are held in federal court. |
ABAJournal.com connects you to more of the story
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| U.S. Supreme Court |
| DNA evidence can be sought through civil rights law |
| A Texas death-row inmate seeking a right to DNA evidence may pursue his claim under the federal civil rights law, the U.S. Supreme Court has ruled.
The Supreme Court ruled in 2009 in District Attorney's Office v. Osborne that inmates have no constitutional right to DNA evidence but left open the question whether suits seeking the evidence could be brought under Section 1983. In today's 6-3 ruling in Skinner v. Switzer, the court allowed the claim. Hank Skinner came within about an hour of being executed last year. |
ABAJournal.com connects you to more
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| Sotomayor and Kagan making impact on court |
| Sonia Sotomayor and Elena Kagan are changing the dynamic on the country's high court.
Sotomayor is far more talkative than her predecessor David Souter. Yet she also is asking more pointed questions that reveal her thoughts on the law and her fact-based approach. "Slow down from the rhetoric and give me concrete details," she urged one lawyer.
Kagan jumps in more regularly, too, than did the man who preceded her, John Paul Stevens. She has developed a pattern of piercing questions. |
Learn more from the Tennessean
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| Your Practice |
| Mediation training held at ETSU |
| East Tennessee State University will offer a 40-hour civil mediation training approved by the Tennessee Supreme Court Alternative Dispute Resolution Commission, March 28 through April 1. This training is of benefit to attorneys, teachers, social workers, psychologists, executives, ministers, law enforcement officers, or anyone else dealing with conflict resolution. |
The Johnson City Press tells you more
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| TBA Member Services |
| Follow us! |
| Nearly 1,000 people and businesses are now getting regular updates on news from the Tennessee legal community by following the Tennessee Bar Association on Twitter. Join the crowd by following @tennesseebar or watch for the tag #tnlaw. You can also watch for regular updates on the TBA's Facebook page.
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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.
© Copyright 2011 Tennessee Bar Association
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