Amendment Moving Forward Would End Merit Selection

In this final week of the 107th General Assembly, the legislature appears poised to pass a resolution to amend the state constitution to introduce a modified federal style of appointments to fill appellate and Supreme Court vacancies. SJR 710, by Sen. Brian Kelsey, R-Collierville, eliminates current language in the Constitution that contemplates elections, and replaces it with a process by which the governor will appoint a judge, subject to the confirmation by both houses of the General Assembly. Once in office, the judge would stand for a retention election. This change would end the current merit selection/retention election process in Tennessee

The resolution passed in the Senate on Monday and is set for consideration tomorrow in the House. If passed, the resolution would be before the 108th General Assembly, where it would require a two-thirds vote, in order to go on the ballot for public consideration in November 2014.

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.

02 - TN Supreme Court
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
04 - 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









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TN Supreme Court

STATE OF TENNESSEE v. NELSON AGUILAR GOMEZ and FLORINDA LOPEZ

Court: TN Supreme Court

Attorneys:

Jeffrey Allen Devasher, Nashville, Tennessee (on appeal); J. Michael Engle and Mary Kathryn Harcombe (at trial), for the appellant, Florinda Lopez.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Clark Bryan Thornton, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: HOLDER

A mother and father were jointly tried on two counts of felony murder and three counts of aggravated child abuse as a result of the death of their child. Only the mother testified in her own defense. During direct examination, the mother did not testify about prior incidents in which the father assaulted her. On cross-examination, father’s counsel asked the mother whether she believed the father was capable of “hurting” the victim. The trial court ruled sua sponte that counsel for the father had “opened the door” to cross-examination about the father’s assaults against the mother. The father was convicted of two counts of felony murder and three counts of aggravated child abuse, and the trial court merged the felony murder counts. The mother was convicted of two counts of facilitation of felony murder and two counts of aggravated child abuse, and the trial court merged the facilitation of felony murder counts. The Court of Criminal Appeals dismissed one aggravated child abuse count against the father but affirmed the ruling of the trial court in all other respects. Only the mother appealed. We hold that the evidence of prior assaults by the father was inadmissible and that the parties did not open the door to cross-examination about the father’s assaults against the mother. We reverse the mother’s conviction and remand the case for a new trial.


EARLINE WADDLE v. LORENE B. ELROD

Court: TN Supreme Court

Attorneys:

Wm. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Lorene B. Elrod.

Mary Beth Hagan and John T. Blankenship, Murfreesboro, Tennessee, for the appellee, Earline Waddle.

Judge: CLARK

In this appeal we must determine whether the Statute of Frauds, Tenn. Code Ann. § 29-2- 101(a)(4) (Supp. 2011), applies to a settlement agreement requiring the transfer of an interest in real property; and, if so, whether emails exchanged by the parties’ attorneys satisfy the Statute of Frauds under the Uniform Electronic Transactions Act (“UETA”), Tenn. Code Ann. §§ 47-10-101 to -123 (2001 & Supp. 2011). We hold that the Statute of Frauds applies to settlement agreements requiring the transfer of an interest in real property and that the emails, along with a legal description of the property contained in the cross-claim, satisfy the Statute of Frauds. Accordingly, we affirm the judgment of the Court of Appeals enforcing the settlement agreement.


TN Workers Comp Appeals

SANDRA M. BUTTREY v. ALTRIA GROUP, INC.

Court: TN Workers Comp Appeals

Attorneys:

John W. Barringer, Jr. and Neesha S. Hetcher, Nashville, Tennessee, for the appellant, Altria Group, Inc.

Tracy W. Moore, Columbia, Tennessee, for the appellee, Sandra M. Buttrey

Judge: KURTZ

The employee had degenerative disk disease for a number of years prior to April 2009, when she reported to her employer that she was experiencing significantly increased neck pain and symptoms, and she sought treatment. The employer denied the employee’s claim for workers’ compensation benefits. The trial court credited the testimony of the employee and of one of the treating physicians and awarded the employee 28.5% permanent partial disability to the body as a whole. The employer appeals, asserting that the employee’s injury was not caused by her employment. We affirm the judgment of the trial court.


TN Court of Appeals

IN RE: DAKOTA C. R. (d/o/b 6/11/2004), JIMMY D. R. JR. (d/o/b 3/5/2006), NATHANIEL E. R. (d/o/b 2/23/2007)

Court: TN Court of Appeals

Attorneys:

Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, Rosanna R. and Jimmy Dale R.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, Shanta J. Murray, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services

Judge: HIGHERS

This appeal arises out of dependency and neglect proceedings regarding three minor children. The circuit court found all three children dependent and neglected, and it found the youngest child had been severely abused. We affirm the dependency and neglect finding and the severe abuse finding with regard to Mother. However, we reverse the severe abuse finding with regard to Father.


STEPHEN TODD MAYS v. MELISSA GAIL MAYS

Court: TN Court of Appeals

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Stephen Todd Mays.

Melanie R. Bean, Lebanon, Tennessee, for the Appellee, Melissa Gail Mays.

Judge: DINKINS

In this divorce action, Husband appeals the trial court’s determination of the amount of his monthly income, grant of alimony in futuro to Wife, amount of child support he was ordered to pay, and denial of the introduction of certain of Husband’s tax records; Husband also contends that the trial court erred in holding him in civil contempt for, inter alia, nonpayment of his spousal and child support obligations. We affirm the court’s determination of the amount of his monthly income and finding that Wife is entitled to alimony. Finding that the evidence preponderates against the trial court’s finding that Wife cannot be rehabilitated, we vacate the award of alimony in futuro and remand the case for the court to reconsider the nature and amount of alimony. We also remand the case for the court to reconsider the amount of child support and, as necessary, to make findings required by the child support guidelines. We affirm the holding that Husband was in civil contempt, but vacate the sentence of 180 days imprisonment. In all other respects the judgment is affirmed.


BOBBY D. WALL v. SELMA CURTIS

Court: TN Court of Appeals

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Selma Curtis.

Steven T. Atkins, Clarksville, Tennessee, for the appellee, Bobby D. Wall.

Judge: COTTRELL

Homeowner and Contractor entered into an agreement for the construction of a new house. The contract provided that no changes would be made to the terms and specifications of the contract without a writing describing the changes signed by both parties. The parties ignored this provision and made changes without preparing change orders. Before the house was completed the parties had a dispute, and the homeowner contracted with someone else to complete her house. Homeowner alleged Contractor breached the contract by walking off the job and refusing to complete the house, and Contractor alleged Homeowner fired him and told him not to return to her property. Contractor sued Homeowner for breach of contract and sought to recover his damages, which included expenses he incurred for materials and labor that Homeowner refused to pay. Homeowner counterclaimed for breach of contract and sought to recover as damages the amount she paid other contractors to complete her house. The trial court found Homeowner committed the first breach and entered judgment for Contractor in the amount of $21,120.69. Homeowner appealed, arguing the evidence did not support the trial court’s judgment. Concluding the evidence supports the trial court’s findings of fact, we affirm the trial court’s judgment in all respects.


TN Court of Criminal Appeals

LEON GOINS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Danny H. Goodman, Tiptonville, Tennessee, for the appellant, Leon Goins.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Leon Goins, appeals the denial of his petition for post-conviction relief challenging his Dyer County Circuit Court jury conviction of possession with intent to sell or deliver .5 grams or more of cocaine and resulting 25-year sentence. In this appeal, he asserts that he was denied the effective assistance of counsel. Discerning no error, we affirm.


CONNIE HUGHES v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

David H. Crichton, Elizabethton, Tennessee, for the appellant, Connie Hughes.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Anthony W. Clark, District Attorney General; and Kenneth C. Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Carter County jury convicted the Petitioner, Connie Hughes, of first degree murder, abuse of a corpse, and forgery under $1000. The trial court sentenced the Defendant to life imprisonment for the first degree murder and to two concurrent one-year sentences on the remaining convictions. The Petitioner appealed her convictions, and this Court affirmed her convictions. State v. Connie Hughes, No. E2006-00062-CCA-R3-CD, 2007 WL 1319373, at *1 (Tenn. Crim. App., at Knoxville, May 7, 2007), perm. app. denied (Tenn. Sept. 17, 2007). The Petitioner filed a petition for post-conviction relief claiming that she received the ineffective assistance of counsel because her attorney at trial “opened the door” for the petitioner’s incriminating statements to be admitted into evidence at trial. The post-conviction court denied her request for relief after a hearing on the petition. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed her petition. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.


COURTENAY D. ROBERTSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Courtenay D. Robertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Courtenay D. Robertson, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief attacking his jury convictions of attempt to commit second degree murder, aggravated arson, and felony evading arrest on the basis of ineffective assistance of counsel. Following our review, we affirm the order of the post-conviction court.


STATE OF TENNESSEE v. ANTONIO WICKS

Court: TN Court of Criminal Appeals

Attorneys:

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Antonio Wicks.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; Lora D. Fowler and Kevin Rardin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Antonio Wicks, appeals his Shelby County Criminal Court jury conviction of second degree murder, challenging the sufficiency of the evidence to support his conviction, the trial court’s limitation of cross-examination of a State witness, and the trial court’s imposition of a 25-year sentence. Discerning no error, we affirm the judgment of the court.


Board of Law Examiners: Duncan Students Can Take Bar Through 2017

The Lincoln Memorial University John J. Duncan, Jr. School of Law received an extension from the Tennessee Board of Law Examiners to achieve American Bar Association accreditation, officials announced today. The board gave the school until December 2017 to earn ABA approval, which means that its students can sit for the state bar exam at least through that time. The extension follows a March 29 visit from the board, in which members met with students, administrators and members of the legal community and observed classes. WATE has the story


Criminal Court of Appeals Judge Arrested

Tennessee Court of Criminal Appeals Judge Jerry L. Smith is facing charges after he was arrested for driving under the influence in Knoxville. Smith, of Nashville, was arrested Monday night on Cumberland Avenue. WBIR reports


California to Vote on Death Penalty

A measure to abolish capital punishment in California qualified for the November ballot on Monday, Secretary of State Debra Bowen said. If it passes, the 725 California inmates now on Death Row will have their sentences converted to life in prison without the possibility of parole. It would also make life without parole the harshest penalty prosecutors can seek. The Los Angeles Times has this story  If passed, the measure would make California the 18th state in the nation without a death penalty. During the last five years, four states have replaced the death penalty and Connecticut  likely will soon follow.


NY Occupy Protester Tweets Can Be Subpoenaed

An Occupy Wall Street protester can't stop prosecutors from getting his tweets, a judge has ruled in a clash over the bounds of privacy in an age of living publicly on social networks. In a ruling Friday, Manhattan Criminal Court Judge Matthew A. Sciarrino Jr. said prosecutors weren't overreaching by seeking Malcolm Harris' public tweets for weeks before and months after his Oct. 1 disorderly conduct arrest on the Brooklyn Bridge, as well as the user information surrounding the Twitter account he used at the time. WSMV has this AP story


Sen. Henry Hospitalized

State Sen. Douglas Henry, 85, was hospitalized today after experiencing dizziness brought on by high blood pressure. He was checked into Vanderbilt Hospital shortly after this afternoon’s session ended. Henry was alert and able to move about on his own, a spokesman said. Henry’s condition will delay when the budget is taken up again in the Senate,  Senate Majority Leader Mark Norris, R-Collierville, said. Henry, a Nashville Democrat, is the vice chairman of the Senate Finance Committee, which is currently reviewing the budget. The Tennessean has more


Bill to Change Attorney General Selection Fails

A proposal to change the way the state attorney general is selected failed 16-15 in the Senate. Under the proposal, the governor would have appointed an attorney general and the legislature would have confirmed the selection. Currently, attorneys general are selected by state Supreme Court justices. Read the AP story


Conservatorship Bill Passes House, Goes to Governor

The state House voted unanimously Monday for a bill designed to protect citizens targeted to have their lives placed under the control of conservators. In brief discussion before the 95-0 vote, Rep. Gary Odom, D-Nashville, said the bill would require those petitioning to place someone in a conservatorship to disclose their relationship to the target of the petition and to disclose whether they had a criminal record. The bill already has passed the Senate and is expected to go to the governor later this week. Read more in the Tennessean


Eligible to Run? Candidate's Property Straddles District Line

A woman who has filed to run to run as a Democrat for the new 89th District state House seat lives in a house that seems to be in Anderson County, although her driveway and mailbox are in Knox. The 89th District lies entirely in Knox County. On Monday, Knox County Law Director Joe Jarret asked Chancellor John Weaver for a declaratory judgment. State Election Coordinator Mark Goins has said it appears to him that Shelley Breeding is an Anderson County resident, but that the election commission should seek a court ruling. Breeding is registered to vote in Knox County, her vehicle has Knox County tags, and she was recently summoned for jury duty in Knox County. The News Sentinel has more


Teen Court Celebrates 10 Years with Dinner, Auction

Sumner County's Tennessee Teen Court Program Inc. will celebrate 10 years of service with a scholarship benefit dinner, silent auction and awards May 3 at Hendersonville Christian Academy, 355 Old Shackle Island Road. Teen Court provides juveniles who are first-time offenders an opportunity to face a jury of their peers. All proceeds from the event will go to the program's Mary Ann Williams Scholarship. Williams was the program coordinator with the Sumner County Juvenile Court, and was instrumental in starting the teen court program, which since 2003 has awarded more than $40,000 in scholarships to Sumner County Teen Court seniors. Tickets are $15 and can be purchased by contacting Tammy Lee at 451-6035.


Arizona Immigration: Senator Says He'll Undo Law if Court Doesn't

The Supreme Court will hear oral arguments Wednesday on Arizona’s immigration enforcement law, which gives police broad authority to detain individuals suspected of being in the country illegally. If the U.S. Supreme Court upholds an Arizona immigration law after hearings this week, Sen. Chuck Schumer, D-N.Y., and other legislators say they will file legislation to undo it. Schumer said the Arizona law also makes it a federal crime for any individual to fail at any time to possess documents verifying their immigration status. The Blog of Legal Times has more


 
 

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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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