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| Tuesday, January 31, 2012 |
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Budget proposal includes pay raises, state job cuts
In his second State of the State address, Gov. Bill Haslam on Monday proposed a $31 billion state budget for the coming year that provides a 2.5 percent pay raise for state employees while abolishing 1,166 government jobs. Budget provisions include keeping some programs previously slated to go, including alcohol and drug abuse treatment and juvenile justice grants. There is also a $76.8 million increase for the Department of Correction, to open a new state prison in Bledsoe County, and to cover an anticipated increase in the number of state prisoners held in county jails at state expense.
The News Sentinel reports
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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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JENNIFER PITTS BRADFORD V. DAVID WILSON PITTS
Court: TCA
Attorneys:
Jennifer Pitts Bradford, Lexington, Kentucky, Pro Se.
Eric J. Morrison and M. Todd Riley, Knoxville, Tennessee, for the appellee, David Wilson
Pitts.
Judge: MCCLARTY
This is the second appeal of this post-divorce case in which David Wilson Pitts ("Father")
petitioned for suspension or termination of his child support obligation owed to Jennifer Pitts
Bradford ("Mother"). The trial court denied Father's request, holding that Father failed to
prove that a substantial variance in his income was present. Father appealed, and this court
directed the trial court to consider Father's tax return in determining whether a substantial
variance existed. On remand, the trial court found that a substantial variance existed between
Father's income at the time of the divorce as reflected in the tax return and his income at the
time of the request for suspension or termination. The trial court modified Father's support
obligation and imposed sanctions against Mother. Mother appeals. We reverse the trial
court's imposition of sanctions against Mother but affirm the decision of the trial court in all
other respects.
http://www.tba2.org/tba_files/TCA/2012/bradfordj_013112.pdf
IN RE HAVEN T.
Court: TCA
Attorneys:
Curtis L. Bowe, III, Chattanooga, Tennessee, for the appellant, Jennifer G.
Leslie B. McWilliams, Chattanooga, Tennessee, for the appellee, Clint T.
Judge: SUSANO
Haven T. is the daughter of Clint T. ("Father") and Jennifer G. ("Mother"). The parties were
never married. Father initiated the present litigation by filing a petition for custody after
Mother notified him she would be moving from Chattanooga to Johnson City to attend
college. At the hearing that followed, the parties stipulated that this was the "initial" custody
determination for Haven although the juvenile court had entered an order in 2003 adopting
a "parenting plan" that, by agreement, gave the parties equal time with Haven. The court
awarded custody to Father. Mother appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2012/havent_013112.pdf
REBECCA WEBB v. MARK THOMAS WEBB
Court: TCA
Attorneys:
Mark Webb, Santa Monica, California, Pro Se.
Randall W. Morrison, Tullahoma, Tennessee, for the Appellee, Rebecca Webb.
Judge: DINKINS
Father in divorce action appeals trial court's designation of Mother as primary residential
parent and division of marital property. Because the order appealed does not resolve all
claims, we dismiss the appeal for lack of a final judgment.
http://www.tba2.org/tba_files/TCA/2012/webbr_013112.pdf
STATE OF TENNESSEE v. JOSEPH DEAN MOORE
Court: TCCA
Attorneys:
Luke A. Evans, Caleb B. McCain, and James T. Pinson, Murfreesboro, Tennessee, for the
appellant, Joseph Dean Moore.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; William C. Whitesell, Jr., District Attorney General; and David L. Puckett,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The defendant, Joseph Dean Moore, appeals his conviction and sentence after being found
guilty by a Cannon County jury on the charge of failure to appear, a Class E felony. On
appeal, the defendant contends that the evidence is insufficient to support his conviction,
arguing that his resolve to kill himself constituted a good, reasonable excuse for failing to
appear at a legal proceeding. Further, he contends that the maximum sentence of four years,
as a Range II offender, was excessive and that he should have been given an alternative
sentence of probation. Concluding that no reversible error occurred upon this record, we
affirm the judgment from the trial court.
http://www.tba2.org/tba_files/TCCA/2012/moorej_013112.pdf
STATE OF TENNESSEE v. SUSAN GAIL STEPHENS
Court: TCCA
Attorneys:
Russ Heldman and Erin M. Walker, Franklin, Tennessee, and Edward M. Yarbrough,
Nashville, Tennessee, for the appellant, Susan Gail Stephens.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney.
Judge: THOMAS
The Defendant, Susan Gail Stephens, was charged with two counts of statutory rape and two
counts of contributing to the delinquency of a minor. The Defendant applied for pretrial
diversion and has twice been denied. In the instant appeal, the Defendant challenges the
prosecutor's second denial of her application for pretrial diversion. Specifically, she claims
that the prosecutor erred on remand by: (1) declining to consider any new information
submitted by the Defendant since the date of the original application-information allegedly
relevant to her amenability to correction; and (2) failing to properly consider and weigh her
amenability to correction as instructed by this court in its previous decision. Following a
careful review of the record and the applicable authorities, we agree with the Defendant that
the prosecutor should have considered any evidence on remand, whether favorable or
unfavorable, that was relevant to the Defendant's current status for amenability to correction.
Accordingly, we hold that an abuse of prosecutorial discretion occurred and once again
remand the case to the prosecutor for consideration of all relevant factors. The judgment of
the trial court upholding the prosecutor's denial of diversion is vacated, and the case is
remanded to the trial court with instructions to remand to the prosecutor for further
proceedings consistent with this opinion.
http://www.tba2.org/tba_files/TCCA/2012/stephenss_013112.pdf
STATE OF TENNESSEE v. GEORGIA ANN TATE
Court: TCCA
Attorneys:
Eugenia R. Grayer, Nashville, Tennessee, for the appellant, Georgia Ann Tate.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Randall A. York, District Attorney General; Douglas Crawford, Assistant District
Attorney General; for the appellee, the State of Tennessee.
Judge: WOODALL
Pursuant to a negotiated plea agreement Defendant, Georgia Ann Tate, pled guilty to three
counts of the sale of less than 0.5 grams of cocaine, and received a sentence of five years for
each count, to be served concurrently with each other. Also, pursuant to the plea agreement,
she pled guilty to one count of sale of 0.5 grams or more of cocaine and received a sentence
of eight years to be served consecutively to the other sentences, for an effective sentence of
thirteen years. The manner of service of the effective sentence was agreed to be determined
by the trial court. Other pending charges were dismissed. The trial court ordered the entire
effective sentence to be served by incarceration. Defendant argues on appeal that the trial
court erred by denying her an alternative sentence. We affirm the judgments of the trial
court.
http://www.tba2.org/tba_files/TCCA/2012/tateg_013112.pdf
LARAIEL WINTON v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Stephen Ross Johnson and Brian J. Wanamaker, Knoxville, Tennessee, for the appellant,
Laraiel Winton.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The petitioner, Laraiel Winton, aggrieved by his Knox County Criminal Court jury
convictions of especially aggravated kidnapping and attempted aggravated robbery, filed a
petition for post-conviction relief alleging ineffective assistance of counsel and prosecutorial
misconduct. Following the appointment of counsel and an evidentiary hearing, the postconviction
court denied relief. In this appeal, the petitioner contends that successor counsel
committed ineffective assistance, that the State committed prosecutorial misconduct during
argument, and that trial counsel committed ineffective assistance in several instances not
previously raised on direct appeal. Determining that the allegations concerning trial
counsel's performance were previously determined, that the prosecutorial misconduct claim
is waived, and that the petitioner failed to establish prejudice concerning successor counsel's
ineffective assistance, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2012/wintonl_013112.pdf
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| TODAY'S NEWS |
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Legal News
Clarification
Upcoming
TBA Member Services
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| Legal News |
| Attorney general appeals Fisk art plan |
| Tennessee Attorney General Robert Cooper Jr. filed an application to appeal the court-approved cash-for-share of Fisk University's prestigious Stieglitz Collection on Monday, further extending the years-long legal battle over the collection of modern art.
Davidson County Chancery Court and the state's Court of Appeals approved the share sale. |
Read more in The City Paper
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| TBA passes bylaws change for better geographical representation |
| At its January meeting, the Tennessee Bar Association Board of Governors approved a bylaws change that adds additional seats and rezones districts.
Since the 1980s when the districts were drawn, there has
been a tremendous growth of the
number of lawyers and concentration
of lawyers in certain areas, which resulted
in some districts in the association
containing as few as 150 members
and other districts containing as many
as 2,700 members.
In making these changes, the
board attempted to balance the importance
of having substantial geographic
diversity against the need to mitigate
the extreme variance in the numbers
of members from board district to
board district.
The changes do not affect the election this year, but will be effective in 2013. |
Download the details
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| Memphis chapter of Federal Bar names officers |
| The Federal Bar Association's Memphis Mid-South Chapter has announced new officers for 2012: President J. Gregory Grisham with
Leitner, Williams, Dooley & Napolitan; President-Elect Eric E. Hudson with
Butler Snow O'Mara Stevens & Cannada; Vice President Craig A. Cowart with
The Weintraub Firm PC, a partner in Fisher & Phillips LLP; Treasurer Mary
Hale Morris with Burch Porter & Johnson; and Secretary Earl W. Houston II
with Martin Tate Morrow & Marston. Michael E. Gabel with Federal Express
Corporation moved into the position of immediate past president. |
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| Conviction upheld for Palin email hacker |
| A federal appeals court panel has upheld the conviction and sentence of a University of Tennessee student in the hacking of Sarah Palin's email in 2008.
The three-judge panel in a Monday decision affirmed the conviction of David Kernell. A Knoxville jury last April convicted Kernell of accessing a protected computer and destroying records to impede a federal investigation.
Kernell's attorney, Wade Davies, said he will seek a review by the full U.S. 6th Circuit Court of Appeals. |
The Washington Post has more
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| Defense lawyer says he'll run for judge's seat |
| Rutherford County Circuit Judge Don Ash and attorney Joe Brandon Jr. have traded allegations of bias and professional misconduct, and now Brandon has said he intends to run against Ash in a 2014 judicial election. Brandon, whose request for Ash to recuse himself has been denied, is representing the defendant in a murder case in Ash's court. |
The Tennessean has the story
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| Commissioner: No rush on replacing Judge Moon |
| The chair of the Hamilton County Commission said that there will be "no hurry" in replacing Judge Bob Moon, who died last week. The nine-member commission will make the appointment.
Until then, temporary replacements will stand in for Moon. Those helping out this week are Red Bank Judge Johnny Houston, attorney Stan Lanzo, Soddy Daisy Judge David Norton, East Ridge Judge Arvin Reingold and Collegedale Judge Kevin Wilson. |
The Chattanoogan reports
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| Court reverses, says Scholastic owes taxes |
| The Tennessee Court of Appeals
last week reversed a lower court's decision to not tax Missouri-based Scholastic Book Clubs Inc. for conducting online and mail order business with its customers in Tennessee.
At issue was nearly $6 million in sales and use taxes the state's Department of Revenue had determined that the company owed on amounts earned over a six-year period. |
NashvillePost.com has more [subscription required]
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| Smith celebrates 50 years in the law |
| Smith Cashion & Orr partner Don L. Smith recently celebrated his 50th anniversary as a Nashville lawyer. |
Read more about him in the Nashville Business Journal
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| Clarification |
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| A story in yesterday's edition incorrectly stated that the Tennessee Supreme Court will consider a federal lawsuit that challenges the authority of the Davidson County Sheriff's Office to enforce federal immigration law. Although the court has been asked to consider the matter, it has not taken any action, says Laura Click of the Administrative Office of the Courts. The process is at the briefing stage, after which time the court may ask for oral arguments before making a decision or it could decline to answer the question altogether. |
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| Upcoming |
| TBA hosts reception honoring Judge Childers |
| A reception honoring Memphis Judge Robert L. Childers, immediate past chair of the American Bar Association Commission on Lawyer Assistance Programs, will be given Feb. 4 at 5:30 p.m. The event, at the Sheraton New Orleans, is being held in conjunction with the ABA Mid-Winter Meeting taking place this week. The reception is hosted by the Tennessee Bar Association with generous support from the University of Tennessee
College of Law, the University of Memphis
Cecil C. Humphreys School of Law, Vanderbilt University Law School and Belmont University
College of Law. |
Download the invitation
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| Investiture for Judge Mashburn Feb. 24 |
| The investiture of Randal S. Mashburn as bankruptcy judge for the Middle District of Tennessee is set for Feb. 24 at 3 p.m. at the United States Customs House in Nashville. A reception will follow, and the public is invited to attend. |
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| TBA Member Services |
| Journal's Valentine issue features broken hearts |
| Just in time for Valentine's Day, the February Tennessee Bar Journal brings you Don Paine and Sarah Sheppeard's primer on "heartbalm law": When can you recover damages when there is a breach of promise to marry? Also in the issue: Russell Fowler traces the history of Tennessee's modern chancery court back to medieval England. TBA President Danny Van Horn writes about the new Code of Judicial Conduct. Columnist Monica Franklin details long-term care insurance. Edward Phillips teams up with Steven Kramer on the NLRB's 'quickie election' procedures. And Bill Haltom warns litigators about software that can do their jobs better and cheaper. |
Read the February issue
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| Let JobLink help you with your next career move |
| A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
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Visit the site
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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 2012 Tennessee Bar Association
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