Wednesday, August 24, 2011
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Bivins named to criminal appeals court

Gov. Bill Haslam has appointed Williamson County Circuit Judge Jeff Bivins to the state Court of Criminal Appeals. Bivins, 50, was one of the three candidates recommended by the Judicial Nominating Commission to fill a vacancy on the court's middle section created by the retirement of Judge David H. Welles. The other two nominees were Jeffrey Allen DeVasher, an assistant public defender in Nashville, and Mark A. Fulks, senior counsel and appellate team leader in the office of the Attorney General & Reporter.

Read more about Bivins in the Tennessean
TODAY'S OPINIONS
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RANDALL D. KISER v. IAN J. WOLFE ET AL.
With a Concurring & Dissenting Opinion

Court: TSC

Attorneys:

Christopher D. Markel, Chattanooga, Tennessee, for the appellant, Randall Kiser.

N. Mark Kinsman and J. Chad Hogue, Chattanooga, Tennessee, for the appellee, Consumers Insurance Company.

Judge: WADE

The plaintiff, an employee of the insured, was injured while driving the insured's tow truck. He filed suit against the defendant and later sought to invoke the insured's uninsured motorist policy in an amount equal to the liability coverage for bodily injury. The insurer filed a motion for partial summary judgment, seeking to limit uninsured motorist coverage to the amount listed on the first page of the policy rather than the amount otherwise fixed by statute. The trial court denied the motion, but the Court of Appeals reversed. We affirm the judgment of the Court of Appeals, holding that the insured was entitled to a partial summary judgment. When the insured signs an application indicating the selection of uninsured motorist coverage lower than the liability limits, but neglects to initial a provision designed to confirm the selection of coverage less than the standard provided by statute, the "in writing" requirement under Tennessee Code Annotated section 56-7-1201(a)(2) (2008) has been satisfied. The cause is remanded to the trial court for the entry of partial summary judgment and such other proceedings, as may be necessary.

http://www.tba2.org/tba_files/TSC/2011/kiserr_082411.pdf

LEE concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/kiserr_CON_082411.pdf
KIMBERLY SHEA (MATHENY) COYLE v. GREGORY E. ERICKSON, et al.

Court: TCA

Attorneys:

Dale C. Allen, Luis C. Bustamante, and Darsi N. Sirknen, Knoxville, Tennessee, for the appellant, Shawn Claytor Matheny.

Charles M. Finn and Wayne R. Kramer, Knoxville, Tennessee, for the appellant, Gregory E. Erickson, Trustee.

W. Tyler Chastain and Margo J. Maxwell, Knoxville, Tennessee, for the appellee, Kimberly Shea (Matheny) Coyle.

Judge: FRANKS

Plaintiff brought this declaratory judgment action to have the Court declare that she was entitled to the proceeds of a trust fund, as she was the legitimate child of her father. The Trial Court granted partial summary judgment on the grounds that all the records of her birth, baptismal records, and the parents divorce, and the father never questioning her legitimacy, established her legitimacy, and the defendant's son who challenged her right to the proceeds had no standing to question her legitimacy. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2011/coylek_082411.pdf
JEANETTE HILL v. MICHAEL LESTER HILL

Court: TCA

Attorneys:

Michael Lester Hill, Pikeville, Tennessee, Pro Se.

Philip M. Jacob, Cleveland, Tennessee, for the appellee, Jeanette Hill.

Judge: STAFFORD

This is a post-divorce action. Appellant/Father, who is incarcerated for sexually abusing his step-daughter, appeals the trial court's: (1) grant of Appellee/Mother's petition to change the surnames of the two minor children that were born to the marriage; (2) denial of Appellant/Father's petition to grant him visitation with the minor children; and (3) entry of an order requiring Appellant/Father to execute a qualified domestic relations order to effectuate the trial court's award of assets as child support. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/hillj_082411.pdf
TREVOR MOORE, ET AL. v. HOUSTON COUNTY BOARD OF EDUCATION, ET AL.

Court: TCA

Attorneys:

Sheri S. Phillips, Clarksville, Tennessee, for the appellants, Trevor Scott Moore, Ronald Scott Moore, Heather Lynn Moore.

John David Schwalb, Franklin, Tennessee, and Clifford Knott McGown, Jr., Waverly, Tennessee, for the appellees, Houston County Board of Education, Tyler Perry and Melissa Perry.

Judge: DINKINS

This matter arises from an assault of a student which occurred at Houston County Middle School. The parents of the victim sued the Houston County Board of Education, two HCMS students who participated in the assault, and the mothers of the students involved in the attack. Following a bench trial, the court granted Plaintiffs a judgment for $50,578.97. The court determined that the school board was 25 percent at fault; the court also found that the school board was immune pursuant to the discretionary function exception of the Tennessee Governmental Tort Liability Act and dismissed the case against the board. The court then granted plaintiffs judgment against the non-governmental defendants jointly and severally for 75 percent of the monetary award. We affirm the trial court's holding that the Board was negligent, reverse the trial court's ruling that the school board was immune, and modify the judgment to hold the defendants jointly and severally liable for the entire amount of damages awarded.

http://www.tba2.org/tba_files/TCA/2011/mooret_082411.pdf
STATE OF TENNESSEE v. SANDY L. BINKLEY

Court: TCCA

Attorneys:

David Ridings and Jason Elliott, Goodlettsville, Tennessee, for the Appellee, Sandy L. Binkley.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; Sallie Wade Brown, Assistant District Attorney General, for the Appellant, State of Tennessee.

Judge: WEDEMEYER

A Sumner County jury convicted the Defendant, Sandy L. Binkley, of two counts of statutory rape by an authority figure. The trial court sentenced the Defendant to six years in prison for each conviction and ordered the sentences to be served consecutively, for a twelve-year effective sentence. On appeal, the Defendant contends that the trial court erred: (1) when it excluded testimony from her expert witness; and (2) when it improperly sentenced her to the maximum sentence within her range and improperly imposed consecutive sentences. After a thorough review of the record and applicable authorities, we conclude the trial court properly excluded the expert's testimony and also properly sentenced the Defendant. We, therefore, affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/binkleys_082411.pdf
STATE OF TENNESSEE V. KOREY BRADLEY

Court: TCCA

Attorneys:

Joseph McClusky, Memphis, Tennessee (on appeal); and Paul Springer, Memphis, Tennessee (at trial) for the appellant, Korey Bradley.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General, William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Korey Bradley was charged with attempted second degree murder of Brandon Williams, aggravated assault of Brandon Williams, and felony reckless endangerment of Jarvis McDaniel. Following a jury trial, Defendant was convicted of misdemeanor reckless endangerment as a lesser-included offense of attempted second degree murder, and guilty as charged on the aggravated assault and felony reckless endangerment. He was sentenced to eleven months, twenty-nine days for misdemeanor reckless endangerment, eight years for aggravated assault, and three years for felony reckless endangerment. The trial court ordered the eight-year and three-year sentences to be served consecutively with each other and concurrently to the sentence for misdemeanor reckless endangerment for an effective eleven-year sentence to be served in confinement. On appeal, Defendant argues that (1) his conviction for aggravated assault should be merged into his conviction for misdemeanor reckless endangerment resulting in one conviction for misdemeanor reckless endangerment; (2) the trial court erred by failing to instruct the jury on aggravated assault as a lesser included offense of attempted second degree murder; (3) the evidence was insufficient to support his convictions for felony reckless endangerment; and (4) his effective sentence was excessive. After a thorough review of the record, we remand for the trial court to merge the conviction for misdemeanor reckless endangerment of Brandon Williams with the conviction for aggravated assault of Brandon Williams. All other aspects of the judgments are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/bradleyk_082411.pdf
STATE OF TENNESSEE v. CHRISTOPHER FIELDER

Court: TCCA

Attorneys:

Paul K. Guibao and Matthew S. Lyons, Memphis, Tennessee (on appeal); and Robert Wilson Jones, District Public Defender; Glenda Adams, Assistant Public Defender; and Jennifer Johnson, Assistant Public Defender, Memphis, Tennessee (at trial), for the appellant, Christopher Fielder.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; Pamela Fleming, Assistant District Attorney General; and Garland Erguden, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Christopher Fielder, was indicted along with his co-defendants Korry Hernandez and John Karcher for the class A felonies of especially aggravated robbery and especially aggravated kidnapping of Jason Seitz. Defendant proceeded to be tried by a Shelby County jury. His co- defendants testified against him pursuant to negotiated plea agreements. The jury found Defendant guilty as charged. The trial court sentenced Defendant to serve twenty years for each of the Class A felony convictions, and ordered the sentences to be served concurrently with each other. Defendant appeals, arguing that the evidence was insufficient to support his convictions and that the sentences are excessive because (1) the trial court improperly applied enhancement factors; (2) the trial court erroneously failed to apply appropriate mitigating factors; and (3) his sentences are excessive and disproportionate when compared with the sentences received by his co-defendants. We find no error and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/fielderc_082411.pdf
STATE OF TENNESSEE v. JAMES EARL GARRETT, JR.

Court: TCCA

Attorneys:

Jerred A. Creasy, Dickson, Tennessee, for the appellant, James Earl Garrett, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindy Paduch Stempel, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Ray Crouch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant appeals the 20-year effective sentence imposed for his Dickson County Circuit Court convictions of two counts of the facilitation of second degree murder, claiming that the trial court erred by misapplying the enhancement factors and by imposing consecutive terms. Discerning no reversible error, we affirm.

http://www.tba2.org/tba_files/TCCA/2011/garrettj_082411.pdf
SHANNON LEE JARNIGAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Troy L. Bowlin, II, Morristown, Tennessee, for the appellant, Shannon Lee Jarnigan.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, District Attorney General, and Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

A Hamblen County Jury convicted Petitioner, Shannon Lee Jarnigan, and her co-defendants of one count each of first degree premeditated murder. They were each sentenced to life in prison. State v. George Arthur Lee Smith, et. al., No. E2009-00984-CCA-R3-CD, 2007 WL 4117603, at *1 (Tenn. Crim. App., at Knoxville, Nov. 19, 2007), perm. app. denied, (Tenn. Feb. 25, 2008). Petitioner was unsuccessful on direct appeal to this Court. Id. Petitioner subsequently filed a petition for post-conviction relief alleging that she was afforded the ineffective assistance of counsel and her constitutional rights were violated by various means. The post-conviction court denied the petition. Petitioner appeals this decision. After a thorough review of the record, we conclude that Petitioner has not proven her allegations. Therefore, we affirm the denial of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2011/jarnigans_082411.pdf
STATE OF TENNESSEE v. DANTHONY MICHAEL PENDER

Court: TCCA

Attorneys:

K. Jeffrey Luethke, (on appeal) and Kristen Morrell, (at trial) Kingsport, Tennessee, for the appellant, Danthony Michael Pender.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; H. Greeley Wells, District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Danthony Michael Pender, was indicted by the Sullivan County Grand Jury for aggravated robbery in August of 2008. After a jury trial, Appellant was convicted as charged and sentenced as a Range I, standard offender to twelve years in incarceration. Appellant seeks a review of his conviction after the denial of a motion for new trial. On appeal, the following issues are presented for our review: (1) whether the evidence is sufficient to support the conviction; (2) whether the jury verdict was contrary to the law and evidence; (3) whether the trial court erred by failing to grant the motion for judgment of acquittal; and (4) whether the trial court erred by denying the motion for new trial. After a review, we determine that all of Appellant's issues involve the sufficiency of the convicting evidence. We determine that the evidence was sufficient to sustain the conviction. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/penderd_082411.pdf
TODAY'S NEWS
Legal News
U.S. Supreme Court
Career Opportunities
TBA Member Services
Legal News
Court elects presiding judge, issues report
Shelby County Criminal Court Judge Chris Craft today was elected presiding judge of the Court of the Judiciary. He replaces Judge Don Ash, who served in the role for the past four years. The court also elected First Judicial District Circuit Court Judge Jean Stanley as presiding judge pro tem to serve if Craft must recuse himself. In addition, the court released its annual report today, providing statistical data and information about its work during the past fiscal year. In an effort to improve transparency, this year's report offers more details about its work, a more comprehensive breakdown of how cases were resolved, a year-by-year statistical comparison, and information about the types of conduct that resulted in private discipline.
Read more online
D.C. lawyer helped Summit prep for announcement
Last week, Washington D.C. attorney Robert B. Barnett flew to Knoxville to meet with his longtime friend and client, Pat Summit, half expecting her to step down after 38 years as UT's women's basketball coach following a diagnosis of early-onset Alzheimer's disease. But Summitt told Barnett she did not believe her symptoms were severe enough yet to retire, and that she would like to coach at least three more years if possible, according to the Washington Post. In related news, Memphis lawyer and humorist Bill Haltom praises Summit for her work elevating women's sports in his most recent blog post.
Read it here
Editorial: Addressing America's justice gap
An editorial in yesterday's New York Times lays out the realities of the nation's "justice gap"-- in which low-income Americans who cannot afford a lawyer are fending for themselves in court and often times, fairing the worse for it. Calling the situation a "shameful state of affairs," the paper offers several practical suggestions and calls on government, law schools and the profession to work together to redesign and fortify the country's "grossly deficient" legal services system. The editorial follows an earlier opinion piece arguing that the state courts are in a "state of crisis." That piece tracked the findings of an American Bar Association report called "Crisis in the Courts: Defining the Problem," which was released this month.
Download the ABA report
Classes start at UM Law
Fall classes got underway Monday at the University of Memphis School of Law with 145 first-year students and 280 upperclassmen. The first year class represents 12 different states, 36 undergraduate majors and ages ranging from 21 to 46. Women make up 39 percent of the class, while students of color represent 14 percent. The new class had orientation last week, culminating in a swearing-in ceremony and signing of the honor code. A networking reception Friday at the Belz Museum of Asian & Judaic Art was supported by Jack Belz, Belz Enterprises and the law firm of Glassman, Edwards, Wyatt, Tuttle & Cox PC.
Learn more about the first year class in this release
New journal to focus on race, gender, social issues
The University of Tennessee has approved the College of Law's newest journal, The Tennessee Journal of Race, Gender & Social Justice (RGSJ), which will focus on legal developments regarding race, gender and other societal topics. Staff members of the journal also will research predominant and controversial issues regarding these topics. The first issue is expected to be published during the spring of 2012. The news was published by The Informant.
U.S. Supreme Court
ABA weighs in on prosecutorial duties
The American Bar Association (ABA) has filed an amicus brief in a pending U.S. Supreme Court appeal filed by an inmate who claims his constitutional rights were violated when prosecutors failed to turn over exculpatory evidence. At issue is whether the failure violated his rights under Brady v. Maryland because the information was material to guilt. The ABA brief does not address the merits of the claims. Instead, it asks the court to recognize that prosecutors' ethical obligations to disclose exculpatory evidence before trial are separate from and broader than the constitutional standards established in the Brady case.
Learn more from the ABA
Court rulings mixed on use of GPS
As rapidly evolving technological advances allow people to be tracked by global positioning devices (GPS) found in most new cell phones, Congress and courts nationwide are trying to balance privacy rights with the needs of law enforcement to locate criminals. A federal judge in Maryland recently refused to issue a warrant for a suspect's cell phone GPS data, saying the government was trying to use technology "not to collect evidence of a crime, but solely to locate a charged defendant." But other courts have been more permissive. The U.S Supreme Court is scheduled to take up one aspect of the issue in its next term -- addressing whether police can place GPS devices on cars to track suspects without obtaining warrants.
The Tennessean has more from the Baltimore Sun
Career Opportunities
Litigation lawyers sought for document review
Counsel On Call is seeking a number of litigation attorneys to assist with electronic discovery review and analysis at its new Discovery Center in Nashville. The agency anticipates ongoing opportunities with indefinite duration as well as flexible full-time or reduced-hour schedules. Candidates should have at least two years of litigation experience, preferably in a law firm or corporate environment. Prior electronic document review experience is preferred but not required. To apply submit resumes to resumes@counseloncall.com
Learn more on JobLink
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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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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