Friday, September 16, 2011
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Judges, TBA offer new civics education resource

Just in time for Constitution Day (Sept. 17) and the annual celebration of the creation of the American form of government, the Tennessee Bar Association and the Tennessee Judicial Conference have partnered together to offer a new civics education resource. GAVELS (Gaining Access Valuable Education about the Legal System) will pair lawyers and judges together to make presentations in their communities in order to improve the public's understanding of our legal system and better equip citizens to be active participants in our democratic society. Presentations can be adapted from 15 minutes to one hour, depending on the needs of the group. Topics are available to fit the interests of any organization. Further details and a joint public announcement are expected next week.

Visit the TBA website now to learn more
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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - 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.
JOHANNA L. GONSEWSKI v. CRAIG W. GONSEWSKI

Court: TSC

Attorneys:

Jeffrey L. Levy (on appeal), Derek K. Burks (at trial), Nashville, Tennessee, and William L. Moore, Jr. (on appeal), Gallatin, Tennessee, for the appellant, Craig W. Gonsewski.

Edward J. Gross, Nashville, Tennessee, for the appellee, Johanna L. Gonsewski.

Judge: CLARK

We granted review in this divorce case to determine whether alimony in futuro should be awarded to a spouse who has a college degree, good health, a stable work history in a relatively high paying job, and a lack of demonstrated need for such long-term alimony. The trial court divided the parties' real and personal property, declined to award spousal support of any type to either party, and denied a request made by both parties that they be awarded their attorney's fees and expenses. The Court of Appeals affirmed the trial court's division of the marital estate, but reversed the trial court's judgment regarding spousal support and ordered the husband to pay the wife alimony in futuro in the amount of $1,250 per month until her death or remarriage. The Court of Appeals also awarded the wife, in the form of alimony in solido, her attorney's fees and expenses, both at trial and on appeal. We conclude that the award of alimony in futuro and the award of attorney's fees and expenses is inappropriate in this case. Additionally, the wife has failed to demonstrate that transitional alimony is appropriate. We therefore reverse the Court of Appeals and reinstate the trial court's judgment.

http://www.tba2.org/tba_files/TSC/2011/gonsewskij_091611.pdf
DR. WILLIAM P. HARMAN v. UNIVERSITY OF TENNESSEE
With dissenting opinion

Court: TSC

Attorneys:

Randall D. Larramore, Chattanooga, Tennessee, for the appellant, Dr. William P. Harman.

Brian A. Lapps, Jr., and Thomas C. Doolan, Knoxville, Tennessee, for the appellee, University of Tennessee.

Judge: LEE

The issue presented in this case is whether the employee's complaint states a cause of action for relief under the Tennessee Public Protection Act. The employee, hired as a university professor and department head, filed suit against the university after he was removed as department head. On motion of the university, the trial court concluded that the complaint failed to allege that the employee was discharged or terminated or that he was discharged or terminated for refusing to participate in or for refusing to remain silent about illegal activities and dismissed the complaint pursuant to Tennessee Rule of Civil Procedure 12.03. A cause of action arises under the Act when an employer discharges or terminates the employee for refusing to participate in or for refusing to remain silent about illegal activities. We determine that because the employee was neither terminated nor discharged from his employment, only removed as department head, the complaint does not allege facts from which we can reasonably infer a claim under the Tennessee Public Protection Act. Therefore, we affirm the trial court's Tennessee Rule of Civil Procedure 12.03 dismissal of the employee's complaint.

http://www.tba2.org/tba_files/TSC/2011/harmanw_091611.pdf

HOLDER dissenting
http://www.tba2.org/tba_files/TSC/2011/harmanw_DIS_091611.pdf
PAUL BOTTEI v. GAYLE E. RAY, COMMISSIONER TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Janet M. Kleinfelter, Deputy Attorney General; for the appellants, Gayle Ray, Commissioner, Tennessee Department of Correction; Rick Bell, Warden, Riverbend Maximum Security Institution; and Jennie L. Jobe, Warden, Lois DeBerry Special Needs Facility.

Christopher Minton and Michael J. Passino, Nashville, Tennessee, for the appellee, Paul Bottei.

Judge: BENNETT

Plaintiff sought access to a plethora of public records from several state prison officials. Access was granted, but the name(s) of the supplier(s) of the substances necessary to carry out lethal injection executions and the employees who procured those substances were redacted based on the defendants' interpretation of Tenn. Code Ann. section 10-7-504(h)(1). Plaintiff filed suit under the Public Records Act and the trial court determined that the names were not to be redacted. Defendants filed a notice of appeal and sought a stay under Tenn. Code Ann. section 10-7-505(e), but the trial court ruled it did not have jurisdiction. Defendants moved this court for a stay, which this court granted. We affirm the trial court's decision as to the redaction of the names but reverse the trial court's decision as to its jurisdiction to provide the certification under Tenn. Code Ann. section 10-7-505(e).

http://www.tba2.org/tba_files/TCA/2011/botteip_091611.pdf
IN RE: THE CONSERVATORSHIP OF PAUL ESTIL LINDSEY

Court: TCA

Attorneys:

Richard W. Parks, Memphis, Tennessee, for the appellant.

Felix H. Bean, III, Memphis, Tennessee, for the appellee.

Judge: FARMER

This is an action to establish a conservatorship. The trial court assigned one-half of Petitioner's attorney's fees and fees of the guardian ad litem to Respondent, although Respondent died before the matter was fully adjudicated and no fiduciary was appointed. We reverse.

http://www.tba2.org/tba_files/TCA/2011/lindseyp_091611.pdf
DANIELLE MALMQUIST v. SHEM MALMQUIST

Court: TCA

Attorneys:

Robert L. DeLaney, Nashville, Tennessee, for the appellant, Danielle Malmquist.

Roger K. Rutledge, Memphis, Tennessee, for the appellee, Shem Malmquist.

Judge: STAFFORD

This case involves post-divorce petitions for contempt and recusal. During the divorce, the trial judge issued an injunction preventing the parties from filing any actions against the other party without the judge's prior approval. Appellee filed the present action for contempt against Appellant for violation of that injunction. Prior to the hearing on the contempt petition, Appellant filed a motion for the trial judge to recuse himself based on threats allegedly made by Appellant on the judge's life. The trial judge denied the motion to disqualify and found Appellant in contempt. Appellant appeals. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2011/malmquistd_091611.pdf
YOUNG BOK SONG v. KATHRYN LEHMAN and JAMES C. THORNTON

Court: TCA

Attorneys:

Young Bok Song, Mountain City, Tennessee, pro se

Christopher D. Owens, Johnson City, Tennessee, for the appellees, Kathryn Lehman and James C. Thornton

Judge: HIGHERS

Plaintiff was involved in a previous lawsuit in North Carolina in which he sued several police officers. Plaintiff then instituted the present case against two North Carolina attorneys who represented the police officers in the North Carolina litigation. The trial court granted the attorneys' motion to dismiss for lack of personal jurisdiction. It also denied Plaintiff's request for the appointment of an attorney and an interpreter. We affirm.

http://www.tba2.org/tba_files/TCA/2011/songy_091611.pdf
STATE OF TENNESSEE v. WAYNE LAMAR DONALDSON, JR.

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellant, the State of Tennessee.

James Bryan Lewis, Nashville, Tennessee, for the appellee, Wayne Lamar Donaldson, Jr.

Judge: WOODALL

In an indictment returned by the Davidson County Grand Jury, Defendant Wayne Lamar Donaldson, Jr., was charged with possession of, with intent to sell or deliver, twenty-six grams or more of a substance containing cocaine within a drug-free school zone. The drugs were seized after a traffic violation stop of Defendant by an officer of the Metropolitan Davidson County Police Department. Defendant filed a motion to suppress all evidence seized during the stop. Following an evidentiary hearing, the trial court entered an order which granted the motion, and subsequently entered an order dismissing the indictment based upon the State's acknowledgment that it could not proceed to trial without the evidence. The State has appealed. Based upon the finding of facts made by the trial court and the application of the law to those facts, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/donaldsonw_091611.pdf
STATE OF TENNESSEE v. CHRISTOPHER ANTHONY HOLMAN

Court: TCCA

Attorneys:

Gregory Dean Smith, Clarksville, Tennessee, for the appellant, Christopher Anthony Holman.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Christopher Anthony Holman, appeals from the Montgomery County Circuit Court's sentencing of him on multiple felonies following entry of "open" guilty pleas. Defendant does not challenge the length of the sentences imposed by the trial court, and does not contest the trial court's order of partial consecutive sentencing. The sole issue on appeal is Defendant's assertion that the order of service by incarceration of the effective sentence of twenty-two years is error. He argues that he "should be re-sentenced with the opportunity to enter a drug rehab [sic] program that accepts sex offenders." After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/holmanc_091611.pdf
TODAY'S NEWS
Legal News
Upcoming
TennBarU CLE
TBA Member Services
Legal News
Court reverses decision in Gonsewski alimony case
The Tennessee Supreme Court today reversed a Court of Appeals decision that would have awarded lifetime and lump-sum alimony support to a divorced spouse who is in good health, has a well-paying job and received significant property assets in the divorce. The court determined the award of lifetime alimony and attorneys' fees to be inappropriate and reinstated the trial court's judgment in the case.

Watch for an upcoming CLE webcast on the decision from the TBA's TennBarU.
Read the court's decision
Halloween deadline to apply for Circuit Court vacancy
The Judicial Nominating Commission is now accepting applications for the Circuit Court vacancy in the 20th Judicial District, which serves Davidson County. The vacancy was created by the impending retirement of Circuit Court Judge Barbara Haynes. The deadline to apply is Oct. 31.
Get the details from the Administrative Office of the Courts
Patent reform act signed into law
President Obama today signed H.R. 1249, the "Leahy-Smith America Invents Act," passed by the Senate the week before. The act presents the most comprehensive overhaul of the Patent Statute (35 U.S.C.) since it was enacted in 1952, including changing our system of awarding patents from those who invent first to those who file their application first.
Law.com tells you more
Bivens sworn in
Gov. Bill Haslam swore in Jeff Bivins to the Tennessee Court of Criminal Appeals, Middle Section of Tennessee, this morning at the Historic Courthouse on the Square in Franklin. Bivins, 50, has most recently served as Circuit Court Judge for the 21st Judicial District that includes Hickman, Lewis, Perry and Williamson counties.
The Williamson Herald has more
Sex offender ban at library questioned
A policy by the Knox County Public Library that bans sex offenders from library facilities, raises concern from the deputy director of the American Library Association Office of Intellectual Freedom. She questions whether the policy might violate the organization's Code of Ethics, which emphasizes equality for all patrons.
The News Sentinel looks into it
Tried in Baumgartner's court, man seeks new trial
Knoxville defense attorney Bruce Poston has asked for a new trial for Samson Quince, who was convicted in a trial presided over by Criminal Court Judge Richard Baumgartner. A new trial may be needed not only for Quince but possibly other defendants whose cases are in legal limbo since Baumgartner pleaded guilty earlier this year to official misconduct. There are 11 defendants who were convicted in trials presided over by Baumgartner but whose motions for new trial were still pending when Baumgartner abruptly stepped down from the bench.
The News Sentinel reports
Editorial: Voter ID law in question
In an editorial, the Commercial Appeal looks at questions raised about whether or not the new voter ID law is constitutional, acknowledging the divide between Republicans and Democrats on the need for the law. "The constitutionality of any law that discourages an eligible voter from voting, especially in the South, with its history of poll taxes and literacy tests, is a legitimate question." the paper says. "Neither Democrats nor Republicans should be afraid to ask it."
Read the editorial
Doubts persist as executions near
Troy Davis is scheduled to die next Wednesday in Georgia, but doubts about his guilt are being heard loudly from death penalty opponents as well as from proponents. And a social media campaign is drawing support from hundreds of thousands of people around the world. Executing Davis "risks taking the life of an innocent man and would be a grave miscarriage of justice," said former President Jimmy Carter. Conservative figures have also become involved, including former Deputy Attorney General Larry Thompson, who served under President George W. Bush. He urged the pardons board to grant Davis clemency because "it is clear now that the doubts plaguing his case can never be adequately addressed." The News Sentinel has this AP story.

And in Texas, a black man convicted of a double murder 16 years ago was at least temporarily spared from lethal injection yesterday when the U.S. Supreme Court agreed to review his lawyers' claims that race played an improper role in his sentencing.
WATE carried this AP story.
Upcoming
LSC president to keynote EJU conference
Legal Services Corporation President Jim Sandman will be the keynote speaker at this year's Equal Justice University (EJU) conference, Oct. 12-14 at Paris Landing State Park. The conference, sponsored jointly by the Tennessee Bar Association and the Tennessee Alliance for Legal Services (TALS), will also feature training and networking opportunities for attendees. Sandman, president of LSC since January, has more than three decades of legal experience both in private practice and public service.

Sponsors include: National Association of Social Workers Tennessee Chapter, Tennessee Disability Coalition, Tennessee Voices for Children, Tennessee Commission on Aging and Disability, Miller & Martin PLLC, Waller Lansden Dortch & Davis, Disability Law & Advocacy Center of Tennessee, Metal Health Cooperative of Tennessee, Bass, Berry & Sims, and Tennessee Association of Mental Health Organizations.
Register online or find out more now
Teen courts to observe at Supreme Court
Teen court participants from Lake and Crockett counties will spend Monday in Nashville learning about the courts system and observing the Tennessee Supreme Court in action. The two courts will start at the Tennessee Bar Center with a panel discussion featuring lawyers and a criminal defense investigator from the federal public defender's office. Later they will hear oral arguments before the Workers Comp panel and hear from Supreme Court Justice Sharon Lee.
Minority law student reception next week
The Minority Opportunities Committee of the Knoxville Bar Association will host a Minority Law Student Reception on Sept. 22 from 5:30 to 7 p.m. The event will be at the Sunsphere at World's Fair Park and the guest speaker will be Knoxville Mayor Daniel T. Brown. KBA members are invited to attend at no charge. Respond by Sept. 19 here or call 865-522-6522.
TennBarU CLE
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See the full catalog of courses available now
TBA Member Services
Free online legal research available 24/7
Online legal research through Fastcase is FREE to members of the Tennessee Bar Association. A benefit that is national in scope with unlimited usage, unlimited customer service and unlimited printing, it offers nationwide caselaw with smarter searching. And it all comes AT NO COST to TBA members.
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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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