15 Apply for Shelby County Chancery Court

The Governor’s Commission for Judicial Appointments will consider 15 applicants when it meets Sept. 10 in Memphis to select nominees for a vacancy on the Shelby County Chancery Court. That post is open due to the appointment of Chancellor Kenny Armstrong to the Tennessee Court of Appeals. The applicants are: Mischelle Alexander-Best, Kenneth Raymond Besser, Matthew G. Buyer, Julie Ann Dichtel Byrd, Oscar C. Carr III, Lee Ann Pafford Dobson, Charles W. McDonald, Kimbrough Brown Mullins, James Robert Newsom III, Howard Rex Peppel, David L. Pool, Kevin E. Reed, William Michael Richards, Dennis J. Sossaman and David Michael Waldrop. The commission will interview the applicants at the Hilton Memphis beginning at 9 a.m. with a public comment session. Applications from all the candidates can be found on the AOC website.

Today's Opinions

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

Tennessee Supreme Court DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


STATE OF TENNESSEE v. NOURA JACKSON

Court: TN Supreme Court

Attorneys:

Valerie T. Corder, (on appeal and at trial), and Arthur Quinn (at trial), Memphis, Tennessee, for the appellant, Noura Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Amy P. Weirich and Stephen P. Jones, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: CLARK

The defendant was charged with the June 2005 first degree premeditated murder of her mother. The jury convicted her of second degree murder after a trial in which the evidence was entirely circumstantial. The Court of Criminal Appeals affirmed her conviction and sentence, although the judges on the Panel were not unanimous as to the rationale for the decision. We granted the defendant’s application for permission to appeal. We hold that the lead prosecutor’s remark during final closing argument at trial amounted to a constitutionally impermissible comment upon the defendant’s exercise of her state and federal constitutional right to remain silent and not testify. We also hold that the prosecution violated the defendant’s constitutional right to due process by failing to turn over until after trial the third statement a key witness gave to law enforcement officers investigating the murder. The State has failed to establish that these constitutional errors were harmless beyond a reasonable doubt. Therefore, we vacate the defendant’s conviction and sentence and remand for a new trial.


TN Court of Appeals

EDWIN DENNISON, ET AL. v. GLENNA OVERTON

Court: TN Court of Appeals

Attorneys:

Jerrold L. Becker, Knoxville, Tennessee, for the appellants, Edwin Dennison, Kaye Dennison, Joel Campbell, and Christine Campbell.

Michael H. Meares and Charles B. Dungan, Jr., Maryville, Tennessee, for the appellee, Glenna Overton.

Judge: SWINEY

Edwin Dennison, Kaye Dennison, Joel Campbell, and Christine Campbell (“Plaintiffs”) sued attorney Glenna Overton (“Defendant”) for legal malpractice. Defendant filed a motion for summary judgment alleging that Plaintiffs’ claim was barred by the statute of limitations and that Defendant’s actions were not the proximate cause of any loss to Plaintiffs. After a hearing, the Circuit Court for Blount County (“the Trial Court”) granted Defendant summary judgment after finding and holding, inter alia, that Plaintiffs had notice of the alleged negligence and the fact that Plaintiffs had suffered an injury by August of 2009 and, therefore, the suit filed on September 21, 2010 was barred by the applicable one year statute of limitations. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in finding their suit barred by the statute of limitations and whether the Trial Court erred in finding that Plaintiffs could not prove that Defendant’s actions were the proximate cause of any loss to Plaintiffs. We find and hold, as did the Trial Court, that Plaintiffs were on notice of the alleged negligence and loss in August of 2009 and that their suit, therefore, was barred by the statute of limitations. We affirm the Trial Court’s judgment.


THERESA R. FRANCIS v. ROBERT A. FRANCIS, JR.

Court: TN Court of Appeals

Attorneys:

Theresa R. Francis, Pro Se.

Robert A. Francis, Jr., Pro Se.

Judge: FARMER

Wife appeals the trial court’s division of property and denial of an award of alimony in this divorce action. We affirm.


KENNETH D. HARDY v. TENNESSEE STATE UNIVERSITY, ET AL.

Court: TN Court of Appeals

Attorneys:

Ann Buntin Steiner, Nashville, Tennessee, for the appellant, Kenneth D. Hardy.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Melissa Brodhag, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee State University, Tennessee Board of Regents, and Chief Sylvia Russell.

Judge: DINKINS

Former police officer at Tennessee State University filed suit against the university, the Tennessee Board of Regents, and the chief of the university police department under the Tennessee Human Rights Act, the Tennessee Public Protection Act, and Title VII of the Civil Rights Act of 1964. The trial court granted the defendants’ motion for summary judgment and former officer appeals. We vacate the order granting summary judgment and remand the case for further proceedings.


MIDDLE TN REHABILITATION HOSPITAL, LLC v. HEALTH SERVICES & DEVELOPMENT AGENCY, ET AL.

Court: TN Court of Appeals

Attorneys:

Alexandra Coulter Cross, Nashville, Tennessee, for the appellant, Middle Tennessee Rehabilitation Hospital, LLC.

Robert E. Cooper, Jr., Attorney General and Reporter; Sue A. Sheldon, Senior Counsel; Nashville, Tennessee, for the appellee, Tennessee Health Services and Development Agency.

Byron R. Trauger; Paul W. Ambrosius; W. Justin Adams; and Thomas A. Wiseman, III; Nashville, Tennessee, for the appellee, HealthSouth Rehabilitation Hospital of Williamson County, LLC.

Judge: HOLLARS

This appeal arises from a petition for judicial review of the Tennessee Health Services and Development Agency’s decision to deny one and grant the other of two competing applications for a certificate of need to establish a rehabilitation hospital. Discerning no error, we affirm the chancery court’s order upholding the agency’s decision.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. DAVID ORLANDO AVINGER

Court: TN Court of Criminal Appeals

Attorneys:

Jack Byrd, Nashville, Tennessee for the appellant, David Orlando Avinger.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Janice Norman, Assistant District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, David Orlando Avinger, was indicted by a Davidson County grand jury for first degree premeditated murder, first degree felony murder, and especially aggravated robbery. After a jury trial, Appellant was convicted of the lesser included offense of second degree murder, as well as the charged offenses of felony murder and especially aggravated robbery. The trial court merged the convictions for second degree murder and felony murder, and Appellant was sentenced to an effective life sentence. On appeal, Appellant challenges the sufficiency of the convicting evidence and alleges that the trial court impermissibly limited defense counsel’s cross-examination of a witness. After reviewing the record, we find that the evidence was sufficient to convict Appellant and that there was no error in the ruling of the trial court related to the limitation of the witness’s testimony. Accordingly, we affirm the judgments of the trial court.


CHRISTOPHER FIELDER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Christopher Fielder.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Christopher Fielder, appeals from the Shelby County Criminal Court’s denial of post-conviction relief, contending that he received the ineffective assistance of counsel at trial. Specifically, the Petitioner alleges that trial counsel failed to request a jury instruction on merger of the offenses, tasking it with determining whether the kidnapping of the victim was beyond that necessary to complete the especially aggravated robbery. After considering the record and the applicable authorities, we affirm the judgment of the postconviction court.


STATE OF TENNESSEE v. BRIAN GAULDIN

Court: TN Court of Criminal Appeals

Attorneys:

Noel J. Riley, III, Dyersburg, Tennessee for the appellant, Brian Gauldin.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; C. Phillip Bivens, District Attorney General; Lance Webb, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Brian Gauldin, was indicted by the Dyer County Grand Jury for two counts of the sale of .5 grams or less of cocaine in a drug free zone, one count of the sale of a schedule III controlled substance in a drug free zone, and one count of the sale of .5 grams of more of cocaine in a drug free zone. Prior to trial, the State chose to nolle prosequi one count of the sale of .5 grams or less of cocaine in a drug free zone and one count of the sale of a schedule III controlled substance in a drug free zone. After a jury trial, Appellant was found guilty of one count of the sale of .5 grams or more of cocaine in a drug free zone and one count of the sale of .5 grams or less of cocaine in a drug free zone. Appellant was sentenced to an effective sentence of twenty years as a Range IV, Persistent Offender. Appellant appeals, arguing that the evidence was insufficient to support the convictions. After a review of the record and applicable authorities, we determine that the evidence was sufficient to support the convictions. Consequently, the judgments of the trial court are affirmed.


GOP Lawyers ‘Eyeing Possibility’ of AG Appointment

A recent article in the Tennessee Journal suggests that a number of Republican lawyers are “eyeing the possibility of becoming the first Tennessee attorney general to carry the party’s label since Reconstruction.” Among those being mentioned as challengers to AG Robert Cooper are Bill Young, director of the Administrative Office of the Courts; Herbert Slatery, counsel to the governor; state Sen. Doug Overbey; Senate Majority Leader Mark Norris; Tom Lawless, chairman of the Governor’s Commission on Judicial Appointments; and Safety Commissioner and former Memphis district attorney Bill Gibbons. Of the group, only Overbey has said he plans to apply, according to the journal. Knoxnews reporter Tom Humphrey also looks at the topic, suggesting that the justices likely will have to evaluate attorney general candidates through a political lens and select the applicant in their best political interest.


The Economist: Judges Shouldn't Act Like Politicians

In what may be the first international review of Tennessee's retention elections, an article in the latest issue of the Economist argues that electing judges is a bad idea because judges are not like politicians. “It is fine for a politician to make deals with voters ... But it is an abuse of power for a judge to promise – or even hint – that he will decide future cases on any basis other than the facts and the law.” The piece points to comments from Alexis de Tocqueville, whose travels in America coincided with the spread of judicial elections. Tocqueville called judicial elections an attack “against the democratic republic itself” and predicted they would “sooner or later, have disastrous results.” The editors conclude that while elections originally were seen as a way to insulate judicial nominations from the perception of corruption, they now are having the opposite effect.


National Bar Targets Police Misconduct in Key Cities

Memphis is one of 25 cities being targeted by the National Bar Association (NBA) as part of a national campaign to gain access to police department records. Beginning Sept. 1, the group says it will file open records requests and send preservation of evidence notices to police departments with “an alleged history of police misconduct and brutality.” The requests will seek details about the number of individuals who have been killed, racially profiled, wrongfully arrested and/or injured while pursued or in custody. The NBA will release its findings to the public and urge the U.S. Department of Justice to conduct a full investigation of any problems found. Read more on the NBA website.


Rape Kit Lawsuit Refiled in Circuit Court

Three women who filed suit in federal court against Memphis and Shelby County over the untested rape kit backlog have refiled the suit in Shelby County Circuit Court. Attorneys for the women asked the federal court to dismiss the case, which it did last week. The state suit repeats claims made in the original suit but does not include the claim that the backlog violates the U.S. Constitution. The women are seeking class-action status for their claim of negligence, which is based on the state Governmental Tort Liabilities Act. The move does not impact a “Jane Doe” lawsuit working its way through federal court, Memphis Daily News reports.


State Officials Appeal Occupy Nashville Ruling

Two Tennessee officials are asking a federal appeals court to find that they did not violate the rights of Occupy Nashville protesters arrested in October 2011, the Times Free Press reports. U.S. District Judge Aleta Trauger last year found Safety Commissioner Bill Gibbons and former General Services Commissioner Steven Cates violated protesters’ rights when they imposed a last-minute curfew and then had those who refused to leave arrested. In briefs filed with the 6th U.S. Circuit Court of Appeals, the state argues that Gibbons and Cates should be granted qualified immunity for their actions. Because Gibbons is married to 6th Circuit Judge Julia Gibbons, all judges in the circuit have recused themselves. A panel of three judges from other circuits heard arguments in Cincinnati today.


Judge Philyaw Not Reappointing 2 Magistrates

Juvenile Court Judge Rob Philyaw said he is not reappointing two of six court magistrates, Chattanoogan.com reports. Leaving their posts will be Emma Andrews, who has been a magistrate for 16 years, and Elizabeth Gentzler, a magistrate for four years. Both handled child support and parentage cases at the Child Support Division. Philyaw described his actions saying, “The magistrates serve at the pleasure of the judge. Coming into a new term, it has been decided to not reappoint these two ...” Philyaw also said a replacement for Andrews has been chosen, but he is not yet ready to announce the name.


DA’s Improper Conduct Necessitates New Trial

The Tennessee Supreme Court has ordered a new trial for Noura Jackson, a Shelby County woman convicted of the second-degree murder of her mother, because the court found there were constitutional errors made in the course of the proceedings. Specifically, the court found that Jackson’s right to remain silent, not testify at trial and receive due process was violated. Download the opinion.


Tracy Concedes Primary to DesJarlais

State Sen. Jim Tracy today conceded the Fourth Congressional District Republican primary to U.S. Rep. Scott DesJarlais, giving up on a nearly two-year campaign that he lost by just 38 votes. While he said he saw evidence that the race was even closer, Tracy said he did not want to hurt the party by prolonging the election any further. The Tennessean reports that while Tracy did not explicitly endorse DesJarlais, he made his loyalty to the party clear. DesJarlais will face Democrat Lenda Sherrell in the November general election.


Blackwood Assigned to McFarland Election Suit

Tennessee Supreme Court Chief Justice Gary Wade has appointed Senior Judge Jon Kerry Blackwood to hear Tom McFarland’s election lawsuit, the Roane County News reports. McFarland lost to Mike Pemberton in the race for 9th Judicial District Circuit Court judge. He is now suing Pemberton, the Roane County Election Commission and the Tennessee Coordinator of Elections claiming Pemberton did not meet residency requirements. WATE News 6 has more on the suit.


Swearing In, Retirement Events Added This Week

New events have been added to the TBA’s calendar of swearing in and retirement ceremonies for judges across the state. The additions include a ceremony Friday for incumbent and newly elected judges in Knox County. Knoxville Bar Association President Wade Davies will preside over the event and Tennessee Supreme Court Chief Justice Gary Wade will swear in many of the judges at 2 p.m. Also on tap are receptions honoring two retiring judges. Friends and supporters of Knox County Chancellor Daryl R. Fansler will gather on Wednesday from 5 to 6:30 p.m. at the Bistro by the Bijou in Knoxville, while Hamilton County Chancellor W. Frank Brown III will be honored at a retirement reception at noon on Friday at the county courthouse.


Child Trafficking Forum Set for Memphis

A coalition of federal agencies will hold a forum on human trafficking Sept. 9 from 8:30 a.m. to 4 p.m. at the National Civil Rights Museum in Memphis. The event will focus on combating child and youth exploitation with the goal of building greater awareness and better responses to the problem of child trafficking. Special training by the office of U.S. District Attorney Ed Stanton will be provided to law enforcement officers in attendance. Sponsors include the U.S. Department of Justice and U.S. Department of Health and Human Services. Registration is free, but is required.


UT Law Hosts Statewide ‘Kickoff to Law School’

The University of Tennessee College of Law is hosting “Kickoff to Law School” – a series of information and networking events at law firms across the state in September. The events are designed to give prospective students an opportunity to meet law school leaders and alumni and learn more about the school’s academic programs, admissions process and job market prospects for graduates. Each event will run from 5:30 to 7 p.m. Locations include Butler Snow in Memphis on Sept. 10; Baker Donelson in Nashville on Sept. 11; Hunter, Smith & Davis in Johnson City on Sept. 23; and Miller & Martin in Chattanooga on Sept. 24. For more information, call the admissions office at (865) 974-4131. RSVP at least three days before the event.


Former Washington County Bar President Dies

Robert J. “Bob” Jessee of Johnson City died Aug. 20. He was 60. A native of Bristol, Jessee graduated from the University of Tennessee and received his law degree from the Memphis State University Law School. He began the practice of law in 1978 in the office of Richard Pectol & Associates. He and his brother, Thomas C. Jessee, later formed the firm of Jessee & Jessee Attorneys in 1981. Jessee was a former president of the Washington County Bar Association and member of the Tennessee Criminal Defense Lawyers. The family received friends last Friday and will have a private graveside service. In lieu of flowers, donations to Friends of the Blue Ridge Parkway, the National Park Foundation or Second Harvest of East Tennessee are encouraged. Read more about Jessee’s life at TriCities.com.


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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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