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| Thursday, March 17, 2011 |
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Elliott to appear at tort revision hearing
TBA President Sam Elliott is slated to appear at next week's House Judiciary Subcommittee meeting where proponents and opponents of the tort legislation have been allocated time to speak. The hearing, which will take place in Room 16 of Legislative Plaza on Wednesday, March 23, begins at 3:30 pm CDT. Elliott said today that he has been hearing from TBA members about the tort revision legislation and that he and the TBA leadership will continue to listen to members as they share their views regarding important changes proposed in Tennessee law dealing with compensation for injuries. The principal focus of the hearing is on SB 1522 and HB 2008, which are part of Governor Bill Haslam's legislative package for the year. The Tennessee General Assembly website is expected to feature a live webcast of the hearing.
Watch it here on Wednesday
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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.
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IN THE MATTER OF JASON C.H. ET AL.
Court: TCA
Attorneys:
Joe R. (Jay) Johnson II, Springfield, Tennessee, for the appellant, Robert B.
Robert E. Cooper, Jr., Attorney General and Reporter; Joe Whalen, Associate Solicitor General; and Dianne Stamey Dycus, Deputy Attorney General, for the appellee, Tennessee
Department of Children's Services.
Judge: CLEMENT
Father appeals the termination of his parental rights. The trial court found the Department of Children's Services proved the grounds of abandonment and substantial noncompliance
with the requirements of the permanency plan and that the termination of Father's parental rights was in the best interest of the child. Father appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2011/jasonch_031711.pdf
JAN OGLESBY and JOHN OGLESBY v. EDWIN T. RIGGINS
Court: TCA
Attorneys:
Donald A. Donati and William B. Ryan, Memphis, Tennessee, and D. Briggs Smith Batesville, MS, for the appellants, Jan Oglesby and John Oglesby.
Garrett M. Estep, Memphis, Tennessee, for the appellee, Edwin T. Riggins.
Judge: STAFFORD
This case arises from a car accident in which Appellant was injured when her vehicle was struck by Appellee's vehicle. Following a jury trial, the jury awarded Appellant damages,
including $100,000 for Appellant's loss of earning capacity claims. Acting as the thirteenth juror, and based upon its finding that Appellant had failed to meet her burden to show loss of earning capacity, the trial court suggested remittitur of the entire $100,000 loss of earning capacity award. Appellant appeals. Discerning no error, we affirm.
http://www.tba2.org/tba_files/TCA/2011/oglesbyj_031711.pdf
ANTHONY F. STIEL, JR. v. SUSAN M. STIEL
Court: TCA
Attorneys:
James D. Helton II, Franklin, Tennessee, for the appellant, Anthony F. Stiel, Jr.
Mary Frances Lyle, Nashville, Tennessee, for the appellee, Susan M. Stiel.
Judge: CLEMENT
This post divorce appeal arises from the lack of symmetry between the parties' 1995 Final Divorce Decree and a 1996 Qualified Domestic Relations Order that was not entered into
contemporaneously with the Divorce Decree. The ex-husband, a General Motors retiree, contends the trial court erred in finding that his ex-wife was entitled to the marital portion
of his early retirement supplements of his pension and in finding that her benefits are based on post-divorce increases to his pension benefits. For her issue, the ex-wife contends the trial court erred in failing to grant her survivorship rights in the ex-husband's retirement benefits. We affirm the trial court in all respects.
http://www.tba2.org/tba_files/TCA/2011/stiela_031711.pdf
ROBERTO CARLOS URTUZUASTEGUI a/k/a Jose M. Carrion-Casillas v. GEORGE D. KIRKLAND, ET AL.
Court: TCA
Attorneys:
Micheal C. Skouteris, Russell W. Lewis, and William B. Walk, Jr., IV, Memphis, Tennessee, for the appellant, Roberto Carols Urtuzuastegui.
Carl Wyatt and Lewis W. Lyons, Memphis, Tennessee, for the appellees, George D. Kirkland and Vickers Distributing and Transfer, Inc.
Judge: STAFFORD
This is an appeal from the trial court's grant of summary judgment in favor of Appellees and from the trial court's grant of a Tennessee Rule of Civil Procedure 41.02(1) motion for involuntary dismissal in favor of Appellees. The trial court granted both motions upon its finding that Appellant had committed fraud upon the court in filing his complaint under an assumed name. Specifically, the court granted the motion for summary judgment finding that the statute of limitations had expired because the amended complaint did not relate back to the original complaint, which the court determined was a nullity ab initio. The Rule 41.02 motion was granted based upon the court's finding that the Appellant had perpetrated a fraud upon the court in filing the complaint under an assumed name. Concluding that there is a dispute of material fact as to whether Appellant committed fraud and, specifically, as to whether Appellant's alleged mental incapacity negates a finding of fraud, we reverse both
the order on the motion for summary judgment and the order granting the Rule 41.02 motion. We remand for further hearing on the issues of fraud and mental incapacity. Reversed and remanded.
http://www.tba2.org/tba_files/TCA/2011/urtuzuasteguir_031711.pdf
STATE OF TENNESSEE v. JAY BEAN
Court: TCCA
Attorneys:
Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant Public Defender, Murfreesboro, Tennessee, for the appellant, Jay Bean.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Defendant, Jay Bean, filed a "Motion to Furlough Defendant" from his sentence of incarceration in order for him to be admitted to a drug treatment program. The trial court
denied the motion and Defendant filed a notice of appeal. Among other assertions, the State argues that the appeal should be dismissed because Defendant's chosen avenue to seek review of the trial court's order, Tennessee Rule of Appellant Procedure 3(b), does not permit an appeal as of right in this case. We agree with the State and dismiss the appeal.
http://www.tba2.org/tba_files/TCCA/2011/beanj_031711.pdf
ANTONIO BONDS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Antonio Bonds, pro se, Whiteville, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: MCLIN
The petitioner, Antonio Bonds, appeals the trial court's denial of his petition for post-conviction relief as time-barred. The petitioner asserts that he is entitled to a tolling of the
post-conviction statute of limitations. We have reviewed the record and the parties' briefs. Because the facts of this case do not warrant a tolling of the statute of limitations, we affirm the decision of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/bondsa_031711.pdf
STATE OF TENNESSEE v. ELTON CRAWFORD
Court: TCCA
Attorneys:
Paul K. Guibao, Memphis, Tennessee, for the appellant, Elton Crawford.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; William L. Gibbons, District Attorney General; and Carrie Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Elton Crawford, entered an Alford guilty plea in the Shelby County Criminal Court to the attempted rape of his daughter and was sentenced as a Range I, standard
offender to four years in the county workhouse. The sole issue he raises on appeal is whether the trial court abused its discretion in denying his request for probation. Following our
review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/crawforde_031711.pdf
STATE OF TENNESSEE v. JEFFREY GAYLON DOUGLAS
Court: TCCA
Attorneys:
Gregory D. Gookin, Assistant Public Defender, for the appellant, Jeffrey Gaylon Douglas.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Jeffrey Gaylon Douglas, was convicted by a Madison County Circuit Court jury of rape, a Class B felony, and sexual battery, a Class E felony, and sentenced to
concurrent terms of ten and two years, respectively. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/douglasj_031711.pdf
STATE OF TENNESSEE v. CHARLES PHILLIP MAXWELL
Court: TCCA
Attorneys:
Ashley D. Preston, Nashville, Tennessee, for the Defendant-Appellant, Charles Phillip Maxwell.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Kyle S. Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
Defendant-Appellant, Charles Phillip Maxwell, was convicted by a Davidson County Criminal Court jury of driving on a suspended license, a Class B misdemeanor. The trial court imposed a six-month sentence, with Maxwell to serve forty-eight hours in jail prior to serving the remainder of his sentence on probation. In Maxwell's appeal, he argues that the
trial court erred: (1) in failing to appoint counsel to represent him at trial; and (2) in orally denying his interlocutory appeal for the appointment of competent counsel. The State has
conceded that the trial court committed reversible error in refusing to appoint counsel for Maxwell prior to trial. We reverse the trial court's judgment and remand for a new trial
following the appointment of counsel.
http://www.tba2.org/tba_files/TCCA/2011/maxwellc_031711.pdf
STATE OF TENNESSEE v. ELGENE PORTER aka "TWIN"
Court: TCCA
Attorneys:
Mitchell Shannon, Murfreesboro, Tennessee, for the appellant, Elgene Porter aka "Twin."
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William Whitesell, District Attorney General; and J. Paul Newman, Assistant
District Attorney General; for the appellee, State of Tennessee.
Judge: WELLES
Following a jury trial, the Defendant, Elgene Porter aka "Twin," was convicted of conspiracy to commit aggravated burglary, aggravated burglary, attempted aggravated robbery,
aggravated rape, and two counts of aggravated kidnapping. For these convictions, he received an effective sentence of forty-two years at 100% in the Department of Correction.
In this direct appeal, the Defendant contends that: (1) the trial court erred in denying his motion to suppress statements he made to police; (2) the trial court erred in failing to
immediately remove a juror once a potential conflict was identified; (3) the trial court erred in setting the length of his sentences; and (4) the trial court erred in ordering partial
consecutive sentences. After our review of the record and the applicable authorities, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/portere_031711.pdf
STATE OF TENNESSEE v. TERRY ROBINSON
Court: TCCA
Attorneys:
Gregory D. Gookin, Assistant Public Defender, for the appellant, Terry Robinson.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Terry Robinson, was convicted by a Madison County Circuit Court jury of theft of property over $10,000, a Class C felony, and sentenced to ten years in the Department of Correction as a Range II offender. On appeal, he argues that the State committed prosecutorial misconduct in its rebuttal closing argument, and he challenges the sufficiency of the convicting evidence. After review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/robinsont_031711.pdf
STATE OF TENNESSEE v. CALVIN DEMETRIUS SHAW
Court: TCCA
Attorneys:
Hershell D. Koger, Pulaski, Tennessee, for the appellant, Calvin Demetrius Shaw.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Kyle Dodd, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
A Maury County Circuit Court jury convicted the appellant, Calvin Demetrius Shaw, of simple possession of cocaine, a Class A misdemeanor. During a sentencing hearing, the trial
court determined that the appellant had two prior convictions for simple possession and sentenced him to twenty months in confinement for simple possession as a Class E felony pursuant to Tennessee Code Annotated section 39-17-418(e). On appeal, the appellant contends that the trial court erred by sentencing him for a Class E felony when the jury found him guilty of a misdemeanor and that Tennessee Code Annotated section 39-17-418(e) is
unconstitutional because it allows for enhanced punishment without prior notice. The State concedes that the trial court improperly sentenced the appellant for a Class E felony. We
agree and conclude that the case should be remanded to the trial court for resentencing.
http://www.tba2.org/tba_files/TCCA/2011/shawc_031711.pdf
IN RE: LEROY CAIN, JR., BPR 006510
Court: TSC-Disciplinary Order
Judge: CLARK
Suspension
http://www.tba2.org/tba_files/TSC/2011/cainl_031711.pdf
ORDER LIFTING SUMMARY SUSPENSION FOR MICHAEL T. MCCLAMROCH, BPR 015226
Court: TSC-Disciplinary Order
Judge: WADE
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/mcclamrochm_031711.pdf
ORDER LIFTING SUMMARY SUSPENSION FOR DEBRA CHAVES NORWOOD, BPR 013026
Court: TSC-Disciplinary Order
Judge: WADE
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/norwood_031711.pdf
IN RE: HAROLD FAY SMITH, JR., BPR 009659
Court: TSC-Disciplinary Order
Judge: CLARK
Suspension
http://www.tba2.org/tba_files/TSC/2011/smithh_031711.pdf
IN RE: KATHY B. STILLMAN, BPR 020298
Court: TSC-Disciplinary Order
Judge: CLARK
Suspension
http://www.tba2.org/tba_files/TSC/2011/stillmank_031711.pdf
ORDER LIFTING SUMMARY SUSPENSION FOR GLENN DOUGLAS TACKETT, BPR 020304
Court: TSC-Disciplinary Order
Judge: WADE
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/tackettg_031711.pdf
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| TODAY'S NEWS |
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Legal News
U.S. Supreme Court
General Assembly News
Correction
Career Opportunities
Disciplinary Actions
TBA Member Services
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| Legal News |
| Napier-Looby Bar Foundation elects leaders |
| The Napier-Looby Bar Foundation has elected officers and board members for 2011. They are: President William Stover, attorney at law; Vice President Rita Roberts-Turner, Metropolitan Government of Nashville and Davidson County; Secretary Kinika Young, Bass, Berry & Sims; Treasurer Patrick W. Norton, Adams and Reese; and Immediate Past President Isaac Conner, Allegiant Athletic Agency. New board members are Nicole James with Baker, Donelson, Bearman, Caldwell & Berkowitz and Susan Tucker Jones with the Metropolitan Government of Nashville and Davidson County. All are from Nashville.
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| County bar recognizes former legal aid head |
| The Rutherford/Cannon County Bar Association recently honored Murfreesboro lawyer Barbara Futter for her dedication to the legal needs of the community. Futter served as an attorney, and then as managing attorney, for the Murfreesboro office of the Legal Aid Society for 10 years. Last month she left the office to start her own practice. Futter began her career as an assistant public defender in Nashville and worked as executive director for Dismas Inc. The award was presented by R. Timothy Hogan, the outgoing president of the bar association.
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| Survey finds underfunded courts affect law practice |
| A new survey conducted by the American Bar Association's Task Force on Preservation of the Justice System shows there is a strong perception among lawyers and judges that our nation's courts are underfunded, and that this situation has a negative impact on the practice of law as well as public safety and access to justice. Key elements of the survey found that 61 percent of respondents believe underfunding increases pressure to plea bargain or settle cases, 61 percent believe underfunding results in delays in criminal hearings and 82 percent believe underfunding results in delays in civil cases. In addition, 77 percent believe underfunding has a negative impact on public safety and 71 percent believe underfunding creates significant barriers to access. |
Read more about the survey from the ABA
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| U.S. Supreme Court |
| Obama asks court not to expedite healthcare review |
| The Obama administration has advised the U.S. Supreme Court there is no need to be hasty in reviewing the new health care law. That message came in a brief filed in response to a request from the state of Virginia that the court expedite review of the law's individual health insurance mandate. The brief, filed by the U.S. Justice Department, says there is no need for the court to step in before a decision is issued by the 4th Circuit Court of Appeals and that there is "no basis for short-circuiting the normal course of appellate review."
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The ABA Journal links you to several resources on this story
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| General Assembly News |
| 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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| Correction |
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| An item in yesterday's TBA Today incorrectly stated that faculty member Dwight Aarons was honored posthumously for his service to the Black Law Students' Association at the College of Law's annual Blackshear Gala. While he was honored for his service, we are pleased to report that professor Aarons is alive and well. The award given posthumously was the first annual R.B.J. Campbelle Jr. Award, which was given to Campbelle, the first African American graduate of the college. Campbelle's family was on hand to accept the award on his behalf. |
Read more from the college
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| Career Opportunities |
| Trial counsel sought in Knoxville |
| The Knoxville law firm of Pitts & Brittian PC is seeking an experienced trial counsel with strong federal court experience for its expanding patent and trademark litigation practice. Interested individuals should submit a resume to info@pitts-brittian.com. For more information contact Robert E. Pitts at (865) 584-0105 or rpitts@pitts-brittian.com. |
More information about the firm is available on JobLink
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| Health care associate needed in Nashville |
| Special Counsel, Inc. is seeking a mid-level health care associate for a law firm in Nashville. Ideal candidates will have experience working with health care executives on a variety of issues including employment and buy-in agreements and joint ventures, and negotiating provider and hospital contracts. An understanding of health care regulation and reform issues is preferred. Qualified candidates should submit resume and transactions summary to nashville@specialcounsel.com.
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Learn more on JobLink
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| Disciplinary Actions |
| Nashville lawyer suspended |
| On March 3, Leroy Cain Jr. of Nashville was suspended by the Tennessee Supreme Court for one year, with four months to be served on active suspension and eight months to be served on probation. The court found that Cain violated disciplinary rules by failing to comply with a Probate Court Order and commingling personal and trust funds.
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Download the order
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| Memphis lawyer suspended |
| On March 3, Memphis lawyer Harold Fay Smith was suspended for two years and ordered to provide an accounting of a client's settlement proceeds and pay full restitution to his client within two years. Smith was found to have violated disciplinary rules by misappropriating the client's settlement proceeds.
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Download the court's order
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| Knoxville lawyer suspended |
| On March 3, Knoxville lawyer Kathy B. Stillman was suspended for three years, to be served after completing a one-year suspension imposed on July 1, 2010. Stillman must pay restitution of $875.00 to a client and be supervised by a practice monitor for six months. She was found to have violated disciplinary rules by abandoning a case and failing to respond to the Board of Professional Responsibility. |
Download the order
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| Three lawyers reinstated after CLE suspension |
| Knoxville lawyer Michael T. McClamroch, Memphis lawyer Debra Chaves Norwood and Nashville lawyer Glenn Douglas Tackett all have been reinstated to the practice of law after complying with requirements for continuing legal education. McClamroch was reinstated on Nov. 30, 2010; Norwood was reinstated Jan. 14; and Tackett was reinstated on March 10. |
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| TBA Member Services |
| Office Depot Discounts |
| Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from the store. |
Find out more
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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 2011 Tennessee Bar Association
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