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| Monday, November 07, 2011 |
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National groups praise Tennessee's recusal plan
Justice at Stake (JAS) and a partner group, the Brennan Center for Justice, have strongly urged the Tennessee Supreme Court to adopt new judicial recusal rules proposed by the Tennessee Bar Association. "With million-dollar judicial campaigns becoming the norm across the country, disqualification in cases where campaign spending raises reasonable questions about a judge's impartiality has become imperative to preserving public confidence in the courts," JAS Executive Director Bert Brandenburg and Adam Skaggs, senior counsel for the Brennan Center, wrote the court in a letter dated Oct. 31.
Gavel Grab has the letter and the story
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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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00 - TN Worker's Comp Appeals
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_110711.pdf
AVIS BUDGET GROUP, INC. v. JAMES HAGOOD, d/b/a HAGOOD & SONS WRECKER SERVICE
Court: TCA
Attorneys:
Douglas T. Jenkins, Rogersville, Tennessee, for the Appellant, James Hagood d/b/a Hagood & Sons Wrecker Service.
Philip J. LaNasa, Knoxville, Tennessee, for the Appellee, Avis Budget Group, Inc.
Judge: PER CURIAM
Avis Budget Group, Inc. ("Avis") sued James Hagood d/b/a Hagood & Sons Wrecker Service ("Hagood") and, after a trial, the Trial Court entered its judgment on October 15, 2010 awarding a judgment in favor of Avis in the amount of $7,284 plus reasonable attorneys' fees. Subsequently, Hagood filed a motion to alter or amend or for a new trial, which the Trial Court denied. Hagood appealed to this Court. Since the award of reasonable attorneys' fees remains outstanding, we dismiss this appeal for lack of a final judgment.
http://www.tba2.org/tba_files/TCA/2011/avis_110711.pdf
ERIC KERNEY, ET AL. v. GARY ENDRES, ET AL.
Court: TCA
Attorneys:
W. Tyler Chastain, Margo J. Maxwell, and Gwendolyn M. Kerney, Knoxville, Tennessee, for the appellants, Eric Kerney and Cassandra Kerney.
Gary Endres and Susan Endres, Kingsport, Tennessee, pro se.
Judge: SWINEY
This case is before us for the second time on appeal. In our first Opinion, Kerney v. Endres, No. E2008-01476-COA-R3-CV, 2009 Tenn. App. LEXIS 408 (Tenn. Ct. App. June 30, 2009), no appl. perm. appeal filed ("Kerney I"), we found and held that defendants' beauty salon violated the restrictive covenants of residential use only, vacated the Trial Court's order to the contrary, and remanded the case for a determination of whether the restrictive covenants had been waived. On remand, the Trial Court entered its order finding and holding, inter alia, that the restrictive covenants of residential use only had been waived and were unenforceable. Plaintiffs appeal the finding of waiver to this Court. We find that the
evidence preponderates against the Trial Court's finding that the restrictive covenants had been waived. We, therefore, reverse the Trial Court's May 3, 2010 order.
http://www.tba2.org/tba_files/TCA/2011/kerneye_110711.pdf
CHARLES EDWARD CLIFF v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Brandon L. Newman, Trenton, Tennessee, for the Petitioner-Appellant, Charles Edward Cliff.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Garry G. Brown, District Attorney General; and Stephanie J. Hale, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Charles Edward Cliff, appeals the denial of post-conviction relief, contending that (1) his guilty plea was not knowingly and voluntarily entered and (2) he received
ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/cliffc_110711.pdf
STATE OF TENNESSEE v. MARTARIOUS HOSKINS
Court: TCCA
Attorneys:
Harry Sayle III, Assistant Public Defender, Memphis, Tennessee (on appeal); and Amy Mayne, Assistant District Public Defender (at trial), for the appellant, Martarious Hoskins.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Robert Ratton, III, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, Martarious Hoskins, appeals from his Shelby County Criminal Court jury convictions of aggravated robbery, arguing that the evidence was insufficient to support his
convictions. Discerning no error, we affirm.
http://www.tba2.org/tba_files/TCCA/2011/hoskinsm_110711.pdf
STATE OF TENNESSEE v. SHANTA JONES
Court: TCCA
Attorneys:
David W. Camp, Jackson, Tennessee, for the appellant, Shanta Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Shanta Jones, was convicted by a Madison County Circuit Court jury of facilitation of aggravated robbery, a Class C felony; facilitation of aggravated burglary, a
Class D felony; facilitation of aggravated assault, a Class D felony; and retaliation for past action, a Class E felony. See T.C.A. sections 39-11-403 (2010), 39-13-402 (2010), 39-14-403
(2010), 39-13-102 (Supp. 2009) (amended 2010), 39-16-510 (2010). The trial court sentenced the Defendant as a Range I, standard offender to six years for facilitation of aggravated robbery, to four years each for the burglary and assault convictions, and to two years for retaliation for past action, to be served concurrently. On appeal, the Defendant
contends that the evidence was insufficient to support her convictions. We affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/joness_110711.pdf
STATE OF TENNESSEE v. MARLON McKAY
Court: TCCA
Attorneys:
Tiffani S. Taylor, Memphis, Tennessee, for the appellant, Marlon McKay.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; General; William L. Gibbons, District Attorney General; and Stacy M. McEndree and Kevin
R. Rardin, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Marlon McKay, was convicted by a Shelby County Criminal Court jury of first degree felony murder and attempted aggravated robbery and was sentenced by the trial
court to consecutive terms of life plus six years in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and contends that the trial court committed plain error by granting the State's request to omit a portion of the pattern jury instruction on criminal responsibility. Following our review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/mckaym_110711.pdf
STATE OF TENNESSEE v. SUSAN A. WEBB
Court: TCCA
Attorneys:
Jerry Hoffer, Cleveland, Tennessee, for the Defendant-Appellant, Susan A. Webb.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney General; R. Steven Bebb, District Attorney General; and Brooklynn Martin, Assistant District
Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
In this interlocutory appeal, the Defendant-Appellant, Susan A. Webb, appeals the Bradley County Criminal Court's order denying her request for relief from the prosecutor's denial of
her application for pretrial diversion. On appeal, Webb argues: (1) the trial court erred in allowing the victim to testify at the hearing challenging the prosecutor's denial of pretrial diversion; (2) the trial court erred in allowing the prosecutor to "fill in the gaps" in proof after determining that the prosecutor initially abused her discretion in denying pretrial diversion; (3) the trial court erred in suggesting and allowing her to file a second application for pretrial diversion; (4) the unfavorable factors regarding the circumstances of the case and the need for deterrence did not outweigh the favorable factors as stated in her application for pretrial diversion; (5) the prosecutor considered irrelevant factors and drew "conclusions
based on conjecture and speculation" in evaluating her petition for pretrial diversion; (6) the prosecutor abused her discretion in using "conclusionary, flawed logic" in denying her
application for pretrial diversion, which resulted in an "arbitrary and capricious" decision; and (7) appellate review of the denial of her two applications for pretrial diversion is
improper. Upon review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/webbs_110711.pdf
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| TODAY'S NEWS |
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Legal News
U.S. Supreme Court
Politics
Disciplinary Actions
TBA Member Services
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| Legal News |
| No such thing as 'grandfathering in' to RPC |
| Morristown lawyer Paul Whetstone had argued on appeal that the current Rules of Professional Conduct did not apply to him because he was licensed in 1990 and "grandfathered in" under the previous rules that talked of zealously representing clients. Last week, the Tennessee Court of Criminal Appeals disagreed. Even an attorney licensed in the days when Andrew Jackson served on this state's supreme court would still be subject to the newer rules adopted in 2003, the opinion said. |
The ABAJournal has the story
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| 'Occupy' protestors file for trademark; Nelson is 'hero' |
A lawyer representing Occupy Wall Street protesters has filed an application with the U.S. Patent and Trademark Office
seeking to win exclusive commercial rights to "Occupy Wall Street" after several other applications connected to the demonstrations were filed.
The movement -- a protest of corporate greed -- now apparently has
T-shirts, coffee mugs and other merchandise emblazoned with Occupy locations and slogans.
And speaking of T-shirts, in Nashville protesters are talking about putting Davidson County Night Court Commissioner Tom Nelson's face on one.
He is the "folk hero" who refused to issue criminal warrants against 29 Occupy Nashville protesters even though the governor himself had signed off on their arrests for violating a state-imposed curfew on Legislative Plaza.
Nelson found no probable cause, but Tennessee Highway Patrol officers still issued written citations. District Attorney General Torry Johnson's office has the authority to dismiss those citations and is currently reviewing the cases. |
The City Paper has more
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| Law adds 400 jobs, but still behind last year |
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The legal sector added 400 jobs in October according to the
U.S. Bureau of Labor Statistics's monthly employment report
released Friday. The modest rise was not enough to counter two consecutive months of job losses in an up-and-down year that has left the industry with substantially fewer positions than it had in October 2010, the BLS reported.
According to adjusted figures, the legal sector shed 1,200 jobs in September and 300 in August. The last month during which the industry enjoyed positive job growth was July, when the legal sector added 4,100 jobs.
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The AmLaw Daily reports on the findings
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| Photo IDs available free on Saturdays in some counties |
| Starting this Saturday and continuing until March, 19 driver license centers in 15 counties will open on Saturdays just to offer photo ID's. A state law that takes effect Jan. 1 requires voters to show valid photo identification at the polls starting in 2012. |
NewsChannel5 has the list of centers
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| It's 'Human Trafficking Awareness' week |
| Gov. Bill Haslam has declared Nov. 6 through 12 the first ever Human Trafficking Awareness Week. In Tennessee in just the past 24 months, officials reported 4,000 cases of human trafficking. Those reports came from 78 of the state's 95 counties. Advocates for change say the majority of the cases involve teenage girls. |
NewsChannel5 has more
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| 39 Civil Rights era cases open |
| Thirty-nine cases remain open under the U.S. Justice Department's
"Cold Case Initiative" and the Emmett Till Unsolved Civil Rights Crime Act.
The department reviewed deaths that occurred during the civil rights era, seeking any cases that could still be prosecuted. For most of the 124 deaths re-examined, investigators issued findings that no further action could be taken. |
The News Sentinel has the list
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| U.S. Supreme Court |
| Court to look at life sentences for juveniles |
| The U.S. Supreme Court has agreed to decide a pair of cases that challenge the constitutionality of life sentences for juveniles convicted in slayings committed when they were 14.
The cert petition claims the sentences of life without parole are cruel and unusual punishment. Lawyers for the youths seek to extend the Supreme Court's 2010 decision in Graham v. Florida that held sentences of life in prison without parole are unconstitutional for juveniles who have not been charged with murder. |
ABAJournal.com connects you to more
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| Politics |
| Biden slips into Nashville |
| Although no public events were planned for this visit, Vice President Joe Biden was in Nashville's Belle Meade as part of a fundraising trip through the south for the Obama re-election campaign. |
WSMV has the story
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| Disciplinary Actions |
| Tipton County lawyer censured |
| On Nov. 2, Tipton County lawyer Jewel Guy Boozer received a public censure from the Board of Professional Responsibility for failing to (1) pursue a matter he was hired to handle, (2) communicate with a client, (3) return the client's documents, and (4) respond to the board about the client's allegations of misconduct. The board found that these actions violated Rules of Professional Conduct 1.3, 1.4,1.16 and 8.1(b).
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Download the BPR's press release
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| Knox County lawyer censured |
| On Nov. 2, Knox County lawyer Melanie Ann Campbell-Brown received a public censure from the Board of Professional Responsibility for (1) paying advance funds to clients for purposes other than court costs and litigation expenses, (2) making one such payment from her trust account, and (3) notarizing documents in violation of statutory requirements. The board found that her actions violated Rules of Professional Conduct 1.8(e), 1.15(b) and 8.4(c).
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Read the BPR notice
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| Bedford County lawyer censured |
| On Nov. 2, Bedford County lawyer Robert Lee Marlow received a public censure from the Board of Professional Responsibility for comingling personal funds with client funds in his IOLTA trust account. The board found that this action violated Rules of Professional Conduct 1.15(a) and (b). However, it noted that there is no evidence that Marlow used client funds or that any client funds were lost.
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Learn more from the BPR
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| TBA Member Services |
| First Tennessee is TBA's preferred provider |
| First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association 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.
© Copyright 2011 Tennessee Bar Association
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