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| Tuesday, March 29, 2011 |
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'Modest' rules amendments heard by judiciary committees
The House and Senate Judiciary committees today heard presentations on the Tennessee Supreme Court's amendments to the Tennessee rules of practice and procedure. The proposals, which Supreme Court liaison Justice Bill Koch characterized as "modest," include a proposal by the Tennessee Bar Association to permit declarations under penalty of perjury in lieu of sworn affidavits. The Senate committee recommended the ratification resolutions for adoption. The House committee will take up the resolutions next week. The amendments will be effective on July 1 if approved by the full House and Senate.
Go to the Judiciary section of the TBA Legislative Action List for related documents
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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.
01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
03 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders
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.
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DAVID LEE WRIGHT EX REL. KAITLYN LEE WRIGHT v. ANITA J. WRIGHT ET AL.
Court: TSC
Attorneys:
James P. Romer, Jamestown, Tennessee, for the appellant, Kaitlyn Lee Wright, a minor, in his capacity as guardian ad litem.
Johnny V. Dunaway, LaFollette, Tennessee, for the appellee, David Lee Wright, parent and next friend of Kaitlyn Lee Wright, a minor.
John A. Day, R. Burke Keaty, II, and Phillip H. Miller, Nashville, Tennessee, for the Amicus
Curiae, Tennessee Association for Justice.
Judge: CLARK
We granted this appeal to determine the proper method for computing a reasonable attorney's fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000 settlement for a minor injured in an automobile accident, the trial court awarded the attorney $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney's contingent fee agreement with the minor's father. The court-appointed guardian ad litem appealed the fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an evidentiary hearing and determined that $131,000 would be a reasonable attorney's fee, and
the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial court applied the correct legal standard by analyzing the ten factors set forth in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee award was neither illogical, based on an erroneous assessment of the evidence, nor an injustice to the minor. We therefore affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TSC/2011/wrightd_032911.pdf
KATHY ELAINE SCHIFFNER v. CURTIS JAMES SCHIFFNER
Court: TCA
Attorneys:
Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellant, Curtis James Schiffner.
Cynthia A. Cheatham, Manchester, Tennessee, for the appellee, Kathy Elaine Schiffner.
Judge: DINKINS
In a divorce action, Husband appeals trial court's award of alimony to Wife, asserting that the amount was excessive and the duration was not supported by the evidence. Finding the
trial court did not abuse its discretion in the nature, duration and amount of alimony awarded, the judgment is affirmed.
http://www.tba2.org/tba_files/TCA/2011/schiffnerk_032911.pdf
RODNEY M. BUTLER v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Rodney M. Butler, Jackson, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred L. (Al) Earls, Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Petitioner, Rodney M. Butler, appeals pro se after the Madison County Circuit Court summarily dismissed his post-conviction petition seeking relief from his guilty plea to driving under the influence, fourth offense, a Class E felony, for which he received a three-year sentence with a 35 percent release eligibility. We conclude that Petitioner should have been afforded an evidentiary hearing, and for the reasons stated herein, we reverse the judgment of the post-conviction court and remand this matter for further proceedings consistent with this opinion.
http://www.tba2.org/tba_files/TCCA/2011/butlerr_032911.pdf
STATE OF TENNESSEE v. STACY LEE FLEMING
Court: TCCA
Attorneys:
Blake D. Ballin and Richard S. Townley, Memphis, Tennessee, for the Defendant-Appellant, Stacy Lee Fleming.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; D. Michael Dunavant, Attorney General; and P. Neal Oldham, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Defendant-Appellant, Stacy Lee Fleming, was convicted by a Tipton County jury of delivery of more than 0.5 grams of cocaine, a Class B felony. He was sentenced as a career
offender to thirty years in the Tennessee Department of Correction. On appeal, Fleming claims: (1) the insufficiency of the evidence; (2) the trial court abused its discretion by
restricting the cross-examination of a State's witness; (3) the State committed prosecutorial misconduct in its closing argument; and (4) the trial court erred by sentencing Fleming as a career offender. Upon review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/flemings_032911.pdf
STATE OF TENNESSEE v. MICHAEL SMALL
Court: TCCA
Attorneys:
Patrick E. Stegall, Memphis, Tennessee, for the Defendant-Appellant, Michael Small.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alexia Fulghum, Assistant
District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Defendant-Appellant, Michael Small, was convicted by a Shelby County Criminal Court jury of two counts of aggravated robbery, Class B felonies. On appeal, Small argues that the trial court erred in imposing a twenty-year sentence consecutive to his effective sentence of forty years for three previous convictions for aggravated robbery. Upon review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/smallm_032911.pdf
Constitutionality of limitation of intrastate telephone switched access charges
TN Attorney General Opinions
Date: 2011-03-29
Opinion Number: 11-30
http://www.tba2.org/tba_files/AG/2011/ag_11_30.pdf
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| TODAY'S NEWS |
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Legal News
Passages
General Assembly News
Court of the Judiciary
U.S. Supreme Court
Upcoming
TBA Member Services
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| Legal News |
| Merit selection defenders speaking up |
| With merit selection of judges under attack in numerous states, its defenders are speaking up. Among those quoted from across the country is Nashville lawyer
Zan Blue, who writes that "merit selection is effective in keeping courts fair and impartial... [and] keeps the judiciary free of partisan politicking and special-interest spending." |
Gavel Grab has more
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| Wilson County court has $59 million in uncollected fees |
| Wilson County Circuit Court Clerk Linda Neal has been the subject of controversy before, but now she's under scrutiny by the Wilson County judicial committee that's trying to find out why $59 million in court fees have not been collected during the 12 years she's been in office. When Neal eventually came up with the figure after being asked several times -- she first estimated the gap to be $100,000 -- by Judicial Committee Chair Gary Keith, he said,
"I'd like to fell out of the chair. This is unbelievable. You know, this is more money than it takes to build a high school," Keith said. |
WSMV has this story
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| UT moot court team competes in London |
| The TJ Zia Gentry International Mediation Team made history last week sas
The first Moot Court Team to represent the University of Tennessee School of Law in a competition overseas last week came back from London with high marks in both mediation and advocacy and was awarded the 2011 "Outstanding New International Mediation Program" award for their efforts.
The TJ Zia Gentry International Mediation Team of TJ Hatter, Yusuf Zia Malik and Aaron Gentry, was coached by Professor Becky Jacobs.
Schools from around the globe joined UT in participating in the event. |
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| Elliott inducted into Soddy Daisy Hall of Fame |
| Tennessee Bar Association President Sam Elliott was recently inducted into the third class of the Soddy Daisy High School Alumni Hall of Fame. His father, Gene Elliott, was part of the first class to be inducted, making them the first father and son inductees into the SDHS Alumni Hall of Fame. At the event, Judge Clarence Shattuck talked about Elliott's contributions to his profession and the community, and his life-long love of Civil War history. "Going to court is a lot like going to battle; it requires preparation and quick thinking on your feet, so it seemed like something in which I'd be interested. And I've enjoyed the profession," Elliott said.
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The Hamilton County Herald has more
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| Knox clerk's office employee arrested |
| A veteran employee of the Knox County Clerk's office was arrested on charges of theft and official misconduct.
Rhonda Gail Carter was arrested Monday morning, according to Knox County District Attorney General Randy Nichols. She was fired immediately after the arrest. |
Read more in the News Sentinel
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| Arizona execution proceeds with 3-drug cocktail, amid questions |
| The Arizona Supreme Court declined to stay a man's execution Monday after his attorney argued that the state should wait until it enacts its new lethal injection protocol. The U.S. Supreme Court refused to intervene.
Corrections Director Charles Ryan announced Friday that Arizona will switch to using just one drug in an effort to allay any "perceived concerns" that sodium thiopental is ineffective, but only after today's scheduled execution and one on April 5. |
The Commercial Appeal carried this AP story
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| Passages |
| Services for Matthew Boggan April 5 |
| Knoxville lawyer Matthew W. Boggan died March 24, four days after he turned 43. After graduating from the University of Tennessee College of Law in 2005, Mr. Boggan concentrated his practice in domestic and juvenile court cases. In honoring his wishes, his ashes will be dispersed over the Atlantic Ocean. A service to celebrate his life will be held at 5 p.m. on April 5 in the chapel of First Broad Street United Methodist Church in Kingsport. |
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| General Assembly News |
| Exclusionary rule moves from committee |
| The House Judiciary Committee today adopted -- with amendment -- the Exclusionary Rule Reform Act (HB0401, SB0559) by Sen. Randy McNally, R-Oak Ridge, and Rep. Eric Watson, R-Cleveland. The bill will now go to the House Calendar & Rules Committee. In the Senate, the Judiciary Committee voted down, by a 1-7 margin, a constitutional amendment that would have enacted legislative term limits. |
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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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| Court of the Judiciary |
| Baumgartner suspended |
| An order of interim suspension was entered today by the Court of the Judiciary for former Knoxville lawyer and judge Richard Baumgartner. He was charged and entered a plea of guilty to
official misconduct, pursuant to T.C.A 39-16-402(a)(2), a felony on March 10, in
the Criminal Court of Knox County.
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Download the order
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| Juvenile Judge Taylor charged |
| Formal charges were made today by the Court of the Judiciary against Juvenile Court Judge James Taylor of Hawkins County, for fund-raising. He had made an appearance before the Hawkins County Commission to gain approval to have a "Citizens Heritage Display" for the courtroom lobby of the Justice Center, while also "becoming involved in fund-raising designed to solicit and collect funds for the construction of said display." The display consists of historical documents including the 10 Commandments. Taylor is subject to the Code of Judicial Conduct, the court said, which prohibits these actions. He has 30 days to answer.
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Download the order
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| U.S. Supreme Court |
| Possible 'fatal flaw' emerges in Wal-Mart case |
| The massive class-action lawsuit against discount retailer Wal-Mart lost momentum and perhaps more than that today, according to a recent post in the Supreme Court's blog,
SCOTUSblog. The oral argument before the court on claims of widespread sex bias against its female workers
showed "a potentially fatal flaw" to stand out. It was what Justice Anthony M. Kennedy called an "inconsistency," but it clearly could scuttle the entire idea that some 500,000 female employees can combine their challenge to the company into one massive case.
Nearly all the court's members appeared troubled by aspects of the litigation,
especially whether Wal-Mart as a company had in place policies that encouraged supervisors to treat women employees differently than men.
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Read the details from the Los Angeles Times
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| Upcoming |
| Civility in digital age series set at Lipscomb |
| A four-part series, "Leadership and Civility in the Digital Age," will explore how technology has affected leadership, community and citizenship, and will be moderated by former Federal Communications Commissioner (FCC) Deborah Taylor Tate. The events are cosponsored by Lipscomb University and Centerstone and will be at Lipscomb. The kick-off discussion March 31 will feature current FCC Commissioner Robert McDowell.
The dates of subsequent parts of the series are April 5, 12 and 26.
All events are free and open to the public. |
Download more information from Lipscomb University
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| TBA Member Services |
| Avis benefits 'try harder' |
| TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.
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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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