Chief Justice honors pro bono work,
urges participation in statewide service day


Nearly 40 law firms were honored for adopting pro bono polices during the 2009 TBA Public Service Luncheon Saturday. Three individual attorneys were also honored during the program which featured a keynote address from Chief Justice Janice Holder, who urged attorneys across Tennessee to take part in the April 4 public service effort supported by the TBA.

See photos and learn more about those recognized

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
03 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2009/certlist_012009.pdf


IN RE: CHRISTOPHER Y.

Court: TCA

Attorneys:

Robbie C. Lewis, Kingsport, Tennessee for the Appellant, Kimberly Y.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General for the Appellee, State of Tennessee Department of Children's Services.

Judge: SWINEY

In March of 2007, the State of Tennessee Department of Children's Services ("DCS") filed a Petition to Terminate Parental Rights ("Petition") seeking to terminate the parental rights of Kimberly Y. ("Mother") to the minor child Christopher Y. ("the Child"). After trial, the Juvenile Court entered a Final Decree of Guardianship terminating Mother's parental rights to the Child and finding and holding, inter alia, that clear and convincing evidence existed to terminate Mother's parental rights to the Child pursuant to Tenn. Code Ann. sections 36-1-113(g)(1) and (g)(2), and that it was in the best interest of the Child for Mother's parental rights to be terminated. Mother appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/kimberlyy_012009.pdf


ESTATE OF ELIZABETH MOORING v. KINDRED NURSING CENTERS, ET AL.

Court: TCA

Attorneys:

F. Laurens Brock, David J. Ward, T. Ryan Malone, Chattanooga, TN, for Appellants

Parke S. Morris, Memphis, TN, for Appellee

Judge: HIGHERS

This appeal involves an arbitration agreement executed when the decedent was admitted to a nursing home. The trial court denied the nursing home's motion to compel arbitration. We vacate the trial court's order and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/mooringe_012009.pdf


THE ESTATE OF ADA TOWNSON, By and through her duly appointed Conservator, East Tennessee Human Resources Agency, by its representative agent, Carol Silvey, v. THE ESTATE OF JEANETTE EAST, By and through her duly appointed Conservator, Polk Cooley, Esq.

Court: TCA

Attorneys:

William A. Reeves, Knoxville, Tennessee, for appellant, The Estate of Ada Townson.

Jennifer E. Raby, Cockwood, Tennessee, for appellee, The Estate of Jeanette East.

Judge: FRANKS

The real parties at interest in this action are Carol Silvey, plaintiff and Jeanette East, defendant. They are represented by their respective conservators. Investments were made in the parties' joint names and when the investments matured, the conservator for Jeanette East made investments in a sole account of Jeanette East. The conservator for Carol Silvey brought this action for a declaration that the investments should remain in the joint estates. The Trial Judge approved the actions of the conservator for Jeanette East but on appeal, we order that the accounts be returned to the joint ownership status.

http://www.tba2.org/tba_files/TCA/2009/townsona_012009.pdf


STATE OF TENNESSEE v. LISA B. FULCHER

Court: TCCA

Attorneys:

Manuel B. Russ (on appeal); and John Herbison (at trial), Nashville, Tennessee, for the appellant, Lisa B. Fulcher.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Tom P. Thompson, District Attorney General; and Linda Walls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Upon her plea of guilty, the Defendant, Lisa B. Fulcher, was convicted of driving while under the influence of an intoxicant (fifth offense), a Class E felony. In exchange for her guilty plea, additional charges of evading arrest, violation of the implied consent law, violation of the open container law and failure to yield the right-of-way were dismissed. In accordance with her plea agreement, sentencing for the Defendant's DUI (fifth offense) conviction was left to the discretion of the trial court. Following a sentencing hearing, the Defendant was sentenced to four years in the Department of Correction. One hundred and fifty days of this sentence was ordered to be served day-for-day. This sentence was ordered to be served consecutively to a sentence the Defendant was serving at the time of sentencing. In this appeal, the Defendant argues that the trial court erred by: (1) finding her to be a Range II, multiple offender, (2) setting her sentence at the maximum of four years for the Class E felony conviction, and (3) denying any form of alternative sentencing. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/fulcherl_012009.pdf


STATE OF TENNESSEE v. HAROLD E. HOUSTON, JR.

Court: TCCA

Attorneys:

John Philip Parsons, Cookeville, Tennessee (on appeal); David N. Brady, District Public Defender; Alison E. Roberts, Assistant District Public Defender (at trial), for the appellant, Harold E. Houston, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Randall A. York, District Attorney General (on appeal); Anthony J. Craighead, District Attorney General pro tempore (at trial); Joshua D. Parsons, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

A Putnam County jury convicted the defendant of one count of attempted manufacture of a Schedule II controlled substance (methamphetamine), a Class D felony. After a sentencing hearing, the trial court ordered that the defendant serve 180 days in the county jail and three years on probation. The defendant appeals, arguing that (1) the trial court erred by denying the defendant's request for a continuance based on the State's failure to provide discovery in a timely manner; (2) the trial court erred by refusing to grant a mistrial based on the State's introduction of statements made by the defendant that had not been provided to defense counsel during discovery; (3) the trial court erred by failing to grant a mistrial or issue a curative instruction based on comments made by a prospective juror during voir dire; and (4) the trial court violated the defendant's Sixth Amendment rights by enhancing his sentence based on factors not found by the jury beyond a reasonable doubt. After reviewing the record, we conclude that the defendant's first three stated issues are without merit but that the trial court improperly applied an enhancement factor to the defendant's sentence. Accordingly, we affirm the defendant's conviction but remand the case to the trial court for a new sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2009/houstonh_012009.pdf


STATE OF TENNESSEE v. PATRICK SMALLWOOD

Court: TCCA

Attorneys:

Steven B. Ward, Madisonville, Tennessee, for the appellant, Patrick Smallwood.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General and Andrew Freiberg, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Patrick Smallwood, was convicted by a jury of one count of aggravated sexual battery and one count of attempted aggravated sexual battery. On appeal, Appellant challenges the sufficiency of the evidence. We determine that the evidence was sufficient to support the convictions. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/smallwoodp_012009.pdf


TODAY'S NEWS

Passages
Legal News
Legislative News
Upcoming
TBA Member Services

Passages
Trailblazing attorney Frances Loring dies
Services for Memphis attorney Frances Grant Loring will be tomorrow, Jan. 21, at 10 a.m. at St. Patrick Catholic Church with interment following in the Loring family lot in Elmwood Cemetery. Loring died Jan. 15 at the age of 85. She earned her law degree from the Vanderbilt School of Law. She was a founding member of the Association for Women Attorneys in 1979 and served as an at-large member on its executive committee. She was the first recipient of the AWA's annual award, the Marion Griffin-Frances Loring Award, which was named in honor of Griffin, the first woman attorney licensed to practice in Tennessee, and Loring. The award recognizes outstanding contributions by women lawyers. Donations may be made to St. Patrick Catholic Church, Our Lady of Sorrows Church, or to the charity of the donor's choice.
Read more about her in the Commercial Appeal
Legal News
First inauguration for Roberts as chief
Even with a slight bobble from Chief Justice John Roberts with the wording of the oath of office, Barack Obama was sworn-in as scheduled today. "Chief Justice John Roberts, using no notes, flubbed his lines, and Obama knew it," NBC News reports. This presidential inauguration is the first for Roberts. It is also the first time that a president will be sworn in by a chief justice he voted against -- Obama was one of 22 Senate Democrats to vote against Roberts' confirmation to the Supreme Court in 2005. Read more about the oath from ABA.Journal.com.
The Commercial Appeal carried this AP story
Watch Roberts give the oath to Obama
Low interest rates have negative effect on legal aid
Legal aid societies have been hit hard by the Federal Reserve's steep reduction of its benchmark interest rate, which finally plunged last month to near zero. The low rates have had an unplanned and severe effect on the groups, which depend heavily on revenues that are tied to the federal funds rate.
The New York Times reports
Kane is third applicant for Criminal Court seat
Brody Neill Kane, a Lebanon attorney with McBrien & Kane, has applied for the vacancy on the 15th Judicial District Criminal Court created by the death of Judge James O. Bond. The deadline to submit applications for the position is Jan, 21. David Earl Durham of Lebanon and Robert Neland Hibbett of Mt. Juliet have previously submitted applications.

Justice investigation into veteran homes will end
Tennessee and federal officials reached a settlement that will bring an end to a Department of Justice investigation into the care of residents at state-run veterans homes. The state temporarily stopped new admissions last year to three facilities after state inspectors found violence between residents and said the staff failed to protect residents and manage aggressive behavior. At two facilities, federal investigators said nutrition and hydration care were lacking and they found improper use of use of psychotropic medications and inadequate pain management and fall prevention. The Tennessee Attorney General's Office said in a Friday statement that it disagrees with the federal findings concerning violations of the law and the constitutional rights of residents at the homes in Humboldt and Murfreesboro.
The Leaf-Chronicle had this AP story
Guantanamo trials on hold until Obama reviews system?
Guantanamo prosecutors sought today to put the war crimes trials on hold while the future of the tribunals remains in doubt, said Navy Lt. Cmdr. Bill Kuebler, a military defense lawyer who represents a Canadian being tried before the tribunals. Under the proposal, the prosecutors would ask judges to stay pending cases while President Barack Obama's administration reviews the military commissions system and the legal alternatives for prosecuting suspected terrorists.
The Leaf-Chronicle had this AP story
'Eat or be eaten' mentality for law firms?
"For many high-end lawyers ... these are times to eat or be eaten," reports Business Week. The magazine notes that Sonnenschein Nath & Rosenthal recently "gobbled up 100 Thacher attorneys, swelling its ranks to 800 lawyers in 15 offices."
Read the story
Legislative News
Accusations from Mumpower: Williams harrassed state rep
House Speaker Kent Williams issued a statement today declaring he has "never sexually harassed anyone nor have I been reprimanded for any such behavior." The statement comes in response to 2007 allegations that Williams told state Rep. Susan Lynn, R-Mount Juliet, "I will give a week's pay just to see you naked." House Republican Leader Jason Mumpower, who prepared a memo on the matter dated April 11, 2007, released copies of the memo to the media today.
The News Sentinel reports
Upcoming
First of Supreme Court meetings kick off in Jackson
The Tennessee Supreme Court will conduct a public meeting on Jan. 21 in Jackson on access to justice issues in West Tennessee, the first in a series of five such meetings to be held across the state. The meeting will feature a panel of community members and leaders who will each speak briefly on access to justice issues of particular importance to the Jackson-Madison County area and to under-served areas of West Tennessee. The meeting will be 3 to 6 p.m. at the Jackson-Madison County Library. For more information contact Rebecca Rhodes.

TBA Member Services
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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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