'Split-the-Baby' revived and out of committee, TBA legislative initiatives complete

Split-the-Baby SB 2881 HB 2916
The bill, now amended to provide for maximum parenting participation consistent with best interests of the child, cleared the House Family and Children's Affairs but with a limited pledge by the sponsor not to amend the bill. Action now focuses on the Senate Judiciary committee, which could take the bill up as early as tomorrow.

60-Day Foreclosure Notice SB 3519 HB 3588
Legislation sponsored by Sen. Doug Overbey (R-Maryville) to require a new notice encouraging contact with the lender and exploration of eligibility for relief programs to those in default on home mortgages was adopted by the Senate last night. The House completed work on the measure sponsored by Rep. Kent Coleman (D- Murfreesboro) on Thursday. It now goes to the governor for signature.

Uniform Child Abduction Prevention Act SB 3065 HB2995
The Senate last night completed legislative action on the TBA bill sponsored by Sen. Jamie Woodson (R-Knoxville) and Rep. John Deberry (D-Memphis) to specify factors that could lead to concern about whether a parent was about to move a child to another jurisdiction without authorization.
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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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.

JOSEPH KEVIN ADAMS v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court: TCA

Attorneys:

Charles L. Trotter, Jr., Huntingdon, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company

J. Brandon McWherter, Clinton H. Scott, Jessica F. Salonus, Jackson, Tennessee, for the appellee, Joseph Kevin Adams

Judge: HIGHERS

The plaintiff made a claim under his homeowner's insurance policy after his house burned. The insurer denied the claim because, after the policy was issued, the plaintiff deeded the property to his sons so that it would pass to them if he died, and he did not notify the insurer. The plaintiff sued the insurer for breach of contract. The insurer claimed that the plaintiff had no insurable interest in the property, that he breached a "warranty of ownership" under the policy, that he had a duty to disclose the change of ownership after the policy issued, and that he violated a provision of the policy addressing concealment and fraud. The trial court ruled in favor of the plaintiff and ordered the insurer to pay him approximately $72,000 in accordance with the policy limits. The trial court also awarded discretionary costs to the plaintiff, but it denied the plaintiff's request for prejudgment interest. The insurer appeals, claiming that the plaintiff was not entitled to recover under the policy for various reasons, and that the trial court erred in awarding the plaintiff discretionary costs. The plaintiff contends that the trial court erred in declining to award prejudgment interest. We affirm the trial court's award pursuant to the insurance policy and its award of discretionary costs, and we vacate the portion of the judgment denying the request for prejudgment interest and remand for such an award.

http://www.tba2.org/tba_files/TCA/2010/adamsj_041310.pdf


SAMANTHA MACKUS KNIGHT v. JAMES DARRELL MACKUS

Court: TCA

Attorneys:

Bradley C. Ball, Memphis, Tennessee, for the appellant, James Darrell Mackus

T. Tarry Beasley, II, Memphis, Tennessee, for the appellee, Samantha Mackus Knight

Judge: HIGHERS

At the parties' divorce, Mother was named primary residential parent of their minor child and Father was allowed visitation. The parties continued living together for approximately one year following their divorce, and thereafter, they exercised alternating one-week visitation for approximately one year. Father petitioned to be named primary residential parent citing his increased visitation with the child as a material change in circumstances. The trial court denied his petition without making the findings required by Tennessee Code Annotated section 36-6-101(a)(2)(B)(i). We vacate the trial court's order denying Father's petition, and we remand to the trial court with instructions to make the necessary findings and then to render its decision accordingly.

http://www.tba2.org/tba_files/TCA/2010/knights_041310.pdf


STATE OF TENNESSEE v. DARRELL ANDERSON

Court: TCCA

Attorneys:

Paul J. Springer, Memphis, Tennessee, for the Defendant-Appellant, Darrell Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Damon K. Griffin, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Darrell Anderson, was convicted by a Shelby County jury of first degree premeditated murder and sentenced to life. In this appeal, he presents the following issues for our review: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred in giving a description of photographs that were not in evidence in response to a jury question; (3) whether the trial court erred in denying him an opportunity to make an offer of proof regarding the truthfulness of an officer's testimony; (4) whether the trial court erred in making comments in the presence of the jury which were unfairly prejudicial; (5) whether the trial court erred in excluding certain evidence; (6) whether he was unfairly prejudiced by the conduct of the State; (7) whether the trial court erred in qualifying an expert and admitting his conclusions; and (8) whether the trial court erred in failing to instruct the jury on the State's duty to preserve evidence. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/andersond_041310.pdf


STATE OF TENNESSEE v. ROBERT CHRISTOPHER DIAL

Court: TCCA

Attorneys:

Lawrence W. Moon, Jr., Assistant Public Defender, Columbia, Tennessee, for the appellant, Robert Christoper Dial..

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Mike Bottoms, District Attorney General, and Brent Cooper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

In Maury County on June 17, 2002, Appellant pled guilty to two counts of attempted aggravated sexual battery. He was sentenced to two six-year sentences to be served consecutively. He was placed on probation. After violating probation, he was placed on Community Corrections. On July 10, 2008, Appellant's Community Corrections officer filed a violation report. After a hearing, the trial court revoked Appellants Community Corrections sentence and ordered him to serve his full twelve year sentence. On appeal, Appellant argues that the trial court abused it discretion in revoking his Community Corrections sentence and that the trial court did not have authority to impose the full twelve year sentence. We conclude that the trial court did not abuse its discretion in revoking the Community Corrections sentence. However, we agree with Appellant that he had previously served the first six-year consecutive sentence, and the trial court can only impose the remaining six-year sentence. Therefore, we affirm the revocation of the Community Corrections sentence, and modify Appellant's sentence to six years.

http://www.tba2.org/tba_files/TCCA/2010/dialr_041310.pdf


DERRICK D. FUTCH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Derrick D. Futch, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glenn Baitey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Derrick D. Futch, pleaded guilty to aggravated sexual battery, a Class B felony. The trial court sentenced him to 8 years, at 100 percent, in the Tennessee Department of Correction. The petitioner filed a petition for post-conviction relief, which the post-conviction court summarily dismissed. The petitioner appeals the summary dismissal of his petition for post-conviction relief. After a review of the record, the parties' briefs, and applicable law, we reverse the judgment of the post-conviction court and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/futchd_041310.pdf


STATE OF TENNESSEE v. MARQUENTIS JOHNSON

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the defendant, Marquentis Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Marquentis Johnson, pleaded guilty on June 20, 2005 to two counts of theft over $1,000, Class D felonies, and one count of theft over $500, a Class E felony, pursuant to a negotiated plea agreement. The trial court sentenced him as a standard offender to four years for each count of theft over $1,000 and two years for theft over $500, to be served concurrently for an effective sentence of four years in Community Corrections. The Circuit Court of Madison County revoked the defendant's community corrections sentence and resentenced him as a standard offender to serve each sentence consecutively, for an effective sentence of ten years, in the Tennessee Department of Correction. On appeal, the defendant challenges the circuit court's imposition of consecutive sentencing. Following our review, we affirm the judgment of the circuit court.

http://www.tba2.org/tba_files/TCCA/2010/johnsonm_041310.pdf


RODNEY NELSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Sean H. Muizers, Memphis, Tennessee, for the appellant, Rodney Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Abby Wallace and Alanda Dwyer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Rodney Nelson, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. The petitioner, in three separate cases, pled guilty to eight counts of aggravated robbery, Class B felonies, and two counts of aggravated burglary, Class C felonies, and received an effective sentence of 21.6 years as a mitigated offender. On appeal, the petitioner raises the single issue of whether his guilty plea was entered knowingly and voluntarily. Following review of the record, we find no error and affirm the denial.

http://www.tba2.org/tba_files/TCCA/2010/nelsonr_041310.pdf


CHARLES OWENS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the appellant, Charles Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson, III District Attorney General, and Brian Holmgren, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Charles Owens, was convicted by a Davidson County jury of six counts of aggravated sexual battery. He received a sentence of twenty-four years. State v. Charles Owens, No. M2005-02571-CCA-R3-CD, 2007 WL 1094136, at *1 (Tenn. Crim. App., at Nashville, Apr. 12, 2007), perm. app. denied, (Tenn. Aug. 20, 2007). Petitioner's convictions were affirmed on appeal. Id. Petitioner subsequently sought post-conviction relief on the basis of alleged ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied the petition for relief. Petitioner appeals, arguing that the post-conviction court improperly denied the petition for relief. We agree with the post- conviction court that Petitioner failed to show that he received ineffective assistance of counsel for counsel's failure to object to various things at trial, in part because this Court had already determined on direct appeal that the alleged "prosecutorial misconduct" at trial did not affect the outcome of trial. Accordingly, because we determine that the post-conviction court properly dismissed the petition for post-conviction relief, the judgment of the post- conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/owensc_041310.pdf


STATE OF TENNESSEE v. JOSEPH RAY PINSON

Court: TCCA

Attorneys:

Rickey W. Griggs and Shana Johnson, Assistant Public Defenders, Somerville, Tennessee, for the Defendant-Appellant, Joseph Ray Pinson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Bob G. Gray, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Joseph Ray Pinson, was convicted by a McNairy County jury of rape of a child, a Class A felony. He was sentenced as a child rapist to twenty years in the Tennessee Department of Correction. Pinson claims on appeal that the evidence was insufficient to support his conviction. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/pinsonj_041310.pdf


MICHELLE SHOEMAKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rebecca Brady, Cookeville, Tennessee, for the appellant, Michelle Shoemaker..

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Ton P. Thompson, Jr., District Attorney General, and Justin Harris, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Michelle Shoemaker, was unsuccessful in her direct appeal to this Court from her convictions in Jackson County for first degree murder, conspiracy and tampering with evidence. These convictions resulted in an effective life sentence. See State v. Michelle Shoemaker, No. M2005-02652-CCA-R3-CD, 2006 WL 3095446 (Tenn. Crim. App., at Nashville, Nov. 2, 2006), perm. app. denied, (Tenn. March 12, 2007). Following her unsuccessful direct appeal, she filed a petition for post-conviction relief alleging that she was afforded ineffective assistance of counsel by both her trial and appellate counsel. After conducting an evidentiary hearing on the post-conviction petition, the post-conviction court denied the petition. Petitioner now appeals the post-conviction court's denial of her petition. After a thorough review of the record, we conclude that Petitioner has been unable to prove that either trial or appellate counsel were ineffective. Therefore, we affirm the post- conviction court's denial of the petition.

http://www.tba2.org/tba_files/TCCA/2010/shoemakerm_041310.pdf


STATE OF TENNESSEE v. ANTONIO VAUGHN

Court: TCCA

Attorneys:

Wendy S. Tucker (on appeal) and Jeremy Parham (at trial), Nashville, Tennessee, for the appellant, Antonio D. Vaughn.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Davidson County jury found the defendant, Antonio Vaughn, guilty of possession of not less than one-half ounce nor more than ten pounds of marijuana with intent to sell or deliver within one thousand feet of a school, a class D felony. The trial court sentenced him, as a Range III career offender, to serve 12 years, at 100 percent, in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and the denial of his motion for a mistrial. After reviewing the parties' briefs, the record, and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/vaughna_041310.pdf


STATE OF TENNESSEE v. CORTERRIUS WORTHY

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, and Barry W. Kuhn, Assistant Public Defender, for the appellant, Corterrius Worthy.

Robert E. Cooper, Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Lora Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Corterrius Worthy, appeals the sentencing decision of the Shelby County Criminal Court. The defendant entered an open guilty plea to one count of robbery, a Class C felony. Following a hearing, the trial court denied the defendant's application for judicial diversion and sentenced the defendant to a term of three years. The court also denied the defendant's request for probation and ordered that the sentence be served in the Shelby County Workhouse. On appeal, the defendant argues that the trial court erred by denying judicial diversion and failing to grant probation. Following review of the record, we find no error and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/worthyc_041310.pdf


School Board Member Conflicts of Interest

TN Attorney General Opinions

Date: 2010-04-13

Opinion Number: 10-46

http://www.tba2.org/tba_files/AG/2010/ag_10_46.pdf

Constitutional Validity of HB 2622/SB 2560 Relative to Health Care Coverage

TN Attorney General Opinions

Date: 2010-04-13

Opinion Number: 10-47

http://www.tba2.org/tba_files/AG/2010/ag_10_47.pdf

TODAY'S NEWS

Legal News
Legislative News
Upcoming
TBA Member Services

Legal News
Jarret to be named Knox Co. interim law director
A special session of the Knox County Commission has been called for April 20 to appoint Joe Jarret as emergency interim successor to former Law Director Bill Lockett. Jarret was Lockett's chief deputy and has been managing the office since Lockett resigned last week. Lockett, 55, stepped down just before pleading guilty to stealing thousands of dollars from his former law firm.
The News Sentinel has more
Johnson City lawyer on daytime TV
Johnson City lawyer Doug Carter begins a new TV segment this week called "Ask the Lawyer" on DayTime TriCities. Carter will field questions on air about many areas of law, with a focus on domestic issues.
See the first segment
Opinion: Schools are not religious-free zones
The director of the Religious Freedom Education Project at the Newseum, a project of the First Amendment Center, explains in an opinion piece how a Washington state case is part of recent "misbegotten efforts to turn public schools into religion-free zones." In the case, Nurre v. Whitehead, school officials barred students from playing an instrumental version of "Ave Maria" at graduation in 2006. When the U.S. Supreme Court refused to hear the case, Charles C. Haynes writes, "it sent a message to school officials that they have broad authority to ban any and all student expression that touches on religion at school events." Justice Samuel A. Alito Jr., in his dissent, said his First Amendment concern wasn't with school endorsement of religion, but rather with school suppression of free speech.
The Columbia Daily Herald carried this column
Opinion: Attorney general should not be elected
In an opinion piece, a reporter says that "Tennessee's attorney general does not need to be an elected politician. [These are] important job duties that should not necessarily go to the most politically savvy politician." She also points out that an incumbent would not be able to campaign statewide and still perform the job. "From a practical point of view, there's no good way to elect an attorney general for more than a term at a time."
The Columbia Daily Herald carried this opinion piece
Crone, Mason take practices in different directions
The Memphis law firm Crone & Mason PLC has dissolved and former managing partner Alan Crone has joined Bruce Kramer to start Kramer + Crone PLC. Former partner Miles Mason has started Miles Mason Family Law Group LLC. The long-time friends and partners decided to dissolve the firm as it became increasingly difficult to market the two very different practices in which the partners were engaged, Crone said. Crone was a litigator who focused on business and commerical issues, including mass torts. Mason has focused solely divorce and custody issues.
The Memphis Business Journal has more
Return of adopted Russian boy may be criminal act
The actions of a Shelbyville woman -- when she put her 7-year-old adopted son on a plane back to Russia -- have caused the Russian Foreign Minister to call for a suspension of all U.S. adoptions in Russia -- which totaled about 1,600 last year. Among the outrage, questions of criminal charges are coming up. Bob Tuke, a Nashville attorney and member of American Academy of Adoption Attorneys, said abandonment charges against the family could depend on whether the boy was a U.S. citizen.
The Washington Post reports
Legislative News
Cooper: You can't direct successors' on health care
State lawmakers can't pass any health care legislation that would tie the hands of future lawmakers, Attorney General Robert Cooper said in an opinion released Tuesday. Cooper has told lawmakers that they cannot bar their successors from acting on health care. The Health Care Freedom Act, a bill which is also pending in the General Assembly, seeks to do just that.
The Tennessean has more
Resolution opposing health care law passes House
A resolution proposed by Rep. Susan Lynn (R-Mt. Juliet) was debated for more than an hour yesterday before it passed 66-29. The proposal "expresses opposition to ... the creation of a federal health insurance exchange or connector, and the creation of a federal health insurance plan (public plan) option."
The Tennessean has the story
Upcoming
College mock trial finals in Memphis this weekend
Ten Memphis-area judges will volunteer at the 2010 American Mock Trial Association National Championship Tournament April 16-18, hosted by Rhodes College. The competition will feature the nation's top 48 college mock trial teams, each of which qualified through prior regional tournaments. More than 650 teams competed for spots in this year's national competition. The trials are open to the public; check the schedule here. Teams advancing to the championship round will be scored by a panel of celebrity judges including Tennessee Supreme Court Chief Justice Janice Holder, Memphis Mayor AC Wharton, Federal District Chief Judge Jon McCalla, Federal District Judge Bernice Donald, and Criminal Court Judge Chris Craft.
Read more about it
Participants to tell what it was like at the sit-ins
The Tennessee State Museum will host a panel discussion, "In Their Own Words: Reflections of the Nashville Sit-Ins," with participants of those sit-ins that began 50 years ago. The panel discussion will be held at the museum Saturday, April 17, at 2 p.m. It is open and free to the public.
The Tennessee State Museum gives you the details
TBA Member Services
TBA expands insurance services for members
The TBA Member Insurance Solutions Program has been expanded to offer assistance to members in meeting their health, life, disability and other insurance needs. Working with Graham Swafford III of Capital Financial Group, the TBA is now able to provide members with exclusive benefits, personalized service, and pricing discounts. Services and products offered include: disability income insurance, business overhead expense insurance, group life, long-term and short-term disability income insurance, long-term care insurance, and group health, dental and vision insurance along with other employee related benefits.
Learn more about TBA Insurance Solutions now

 
 
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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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