Attorney General issues opinion on 'good funds'

In an opinion favorable to lawyers involved in residential closings, the Tennessee Attorney General has opined that the Good Funds statute requires lenders to provide funding for loans with as little float as possible. At issue were provisions of the act requiring that tellers checks be handled in such a manner as to clear in two days and requiring that wired funds be immediately available. The statue, backed by the TBA, was effective Sept. 1. The TBA as well as the bankers and land title associations had provided the attorney general with some background on the issues.

http://www.tba2.org/tba_files/AG/2006/ag_06-14.pdf

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. LARRIE MACLIN AND STATE OF TENNESSEE v. MICHAEL LEBRON ANDERSON
CORRECTED OPINION: There was a one-word change made on page 17, last sentence under 3. Excited Utterance Analysis, the word "find" was changed to "hold."

Court: TSC

Attorneys:

Lance Chism, Memphis, Tennessee, attorney for Defendant-Appellant, Larrie Maclin.

Ardena J. Garth, District Public Defender, Donna Robinson Miller, Assistant District Public Defender, Chattanooga, Tennessee, attorneys for Defendant-Appellant, Michael Lebron Anderson.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney General, attorneys for Appellee, State of Tennessee in State v. Larrie Maclin.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; William Cox, District Attorney General; and Boyd Patterson, Assistant District Attorney General, for Appellee, State of Tennessee in State v. Michael Lebron Anderson.

Judge: BARKER

We granted permission to appeal these cases and then consolidated them to determine a question common to both: whether the admission at trial of an unavailable witness’s “excited utterance” to law enforcement officers at the crime scene violated the defendant’s right to confront witnesses against him. We conclude that—depending on the particular facts of a case—an excited utterance can be “testimonial.” If the statement is determined to be “testimonial,” then under Sixth Amendment analysis as outlined in Crawford v. Washington, 541 U.S. 36 (2004), and under Article I, Section 9 of the Tennessee Constitution, which guarantees the defendant’s right to “meet the witnesses face to face,” it is inadmissible unless the witness was unavailable and the defendant had a prior opportunity for cross-examination. If the statement is not testimonial, then admissibility is governed by the standards of Ohio v. Roberts, 448 U.S. 56 (1980). We reverse the Court of Criminal Appeals in State v. Maclin and dismiss charges against the defendant for reckless aggravated assault; we affirm the lower court’s conviction in State v. Anderson of the defendant for burglary of a building other than a habitation.

http://www.tba2.org/tba_files/TSC/2006/maclinlarrie_012006.pdf


R. V. CHILDERS V. GOODYEAR TIRE & RUBBER CO.

Court: TWCA

Attorneys:

James M. Glasgow, Jr., Union City, Tennessee, for the appellant, Goodyear Tire and Rubber Co.

Michael P. Pfrommer, Memphis, Tennessee, for the appellee, R. V. Childers.

Judge: HARMON

This workers compensation appeal has been referred to the Special Worker’s Compensation Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts the trial court erred in finding that the employee suffered permanent, total disability as a result of an injury, which occurred on April 15, 1993, during the course of his employment with Goodyear Tire and Rubber Company. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tennessee Code Annotated § 50-6-225(e)(2), affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2006/childers_012006.pdf


IN RE CHRISTIAN B., NATHANIEL B., STEPAN B., REANNE B. & DOLTON B.

Court: TCA

Attorneys:

G. Earl Patton, Crossville, Tennessee, for the appellants, Mary Katherine W.B. and Christopher M.B.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee Department of Children’s Services.

Benjamin C. Pearson, Crossville, Tennessee, Guardian ad Litem for Christian B., Nathaniel B., Stepan B., REanne B. and Dolton B.

Judge: SUSANO

The trial court terminated the parental rights of Mary Katherine W.B. (“Mother”) and Christopher M.B. (“Father”) with respect to their five minor children: Christian B. (DOB: August 13, 1993), Nathaniel B. (DOB: August 11, 1996), Stepan B. (DOB: April 22, 1998), REanne B. (DOB: March 3, 1999), and Dolton B. (DOB: January 1, 2001). Mother and Father appeal, arguing that the evidence preponderates against the trial court’s findings, stated to bemade by clear and convincing evidence, that grounds for termination exist in this case. We affirm the trial court’s judgment terminating the parental rights of the parents but vacate one of the bases upon which the trial court relied.

http://www.tba2.org/tba_files/TCA/2006/christianb_012006.pdf


HEINRICH W. OBERKIRSCH v. JANIS L. OBERKIRSCH

Court: TCA

Attorneys:

J. Todd Faulkner, Nashville, Tennessee, for the appellant, Janis L. Oberkirsch.

Joe M. Brandon, Jr., Smyrna, Tennessee, for the appellee, Heinrich W. Oberkirsch.

Judge: KOCH

This appeal stems from the change of a nine-year-old child’s custody. The child was removed from his mother’s custody after animal control officers, responding to complaints of animal abuse, discovered deplorable conditions in her home caused by a menagerie of cats. The father filed a petition for change of custody in the Chancery Court for Rutherford County. Following a bench trial, the court granted the father’s petition and designated him as the primary residential parent. We agree with the trial court that there was a material change in circumstances warranting modification of the initial custody determination and that it is in the child’s best interests for the father to be the primary residential parent.

http://www.tba2.org/tba_files/TCA/2006/oberk_012006.pdf


STATE OF TENNESSEE v. CLIFFORD A. DAVIS

Court: TCCA

Attorneys:

Haylee Bradley, Ashland City, Tennessee, for the Appellant, Clifford A. Davis.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Clifford A. Davis, appeals the revocation of his probation by the Humphreys County Circuit Court. Davis’ revocation stems from his violation of Rule 7 of the conditions of probation which provides: “I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time.” Davis does not deny that he refused his probation officer’s request to search hisresidence. Rather, he argues that Rule 7 is unconstitutional in that it infringes upon his Fourth Amendment rights. Finding no constitutional error, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/davisclifforda_012006.pdf


JOEY LEE SMITH v. KEVIN MYERS, WARDEN
CORRECTED OPINION: Corrects to show file date of 1/18/06 rather than 2005.

Court: TCCA

Attorneys:

Joey Lee Smith, T.D.O.C. Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; W. Michael McCown, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Joey Lee Smith, appeals from the circuit court’s summary dismissal of his pro sepetition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law, we affirm the court’s dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2006/smithjoeylee_012006.pdf


STATE OF TENNESSEE v. MARLON ORLANDO WALLS

Court: TCCA

Attorneys:

Roger Eric Nell, District Public Defender; and Russell A. Church, Assistant Public Defender,Clarksville, Tennessee, for the appellant Marlon Orlando Walls.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Marlon Orlando Walls, was indicted on one count of first degree felony murder, one count of especially aggravated kidnapping, and one count of second degree murder. Following a jury trial, Defendant was convicted of first degree felony murder and especially aggravated kidnapping, and found not guilty of second degree murder. Defendant was sentenced to life imprisonment for the felony murder conviction and fifteen years for the especially aggravatedkidnapping conviction. The trial court ordered Defendant’s sentences to be served concurrently, and Defendant does not challenge the length or manner of service of his sentences. Defendant was granted a delayed appeal. In his appeal, Defendant argues (1) that the evidence is insufficient to support his convictions; (2) that the trial court erred in failing to instruct the jury on facilitation; (3) that the trial court erred in not declaring a mistrial; (4) that the trial court erred in failing to instruct the jury on the natural and probable consequences rule; and (5) that the trial court erred in not allowing into evidence proof that when the victim possessed the handgun, the victim was violating the terms/conditions of his community corrections sentence. After a thorough review of the record, we affirm the trial court’s judgments.

http://www.tba2.org/tba_files/TCCA/2006/wallsmarlonorlando_012006.pdf


The Juvenile Court's Authority to Order a Safety Plan

TN Attorney General Opinions

Date: 2006-01-17

Opinion Number: 06-012

http://www.tba2.org/tba_files/AG/2006/ag_06-12.pdf

Residential Closing Funds Distribution Act of 2005

TN Attorney General Opinions

Date: 2005-12-19

Opinion Number: 06-014

http://www.tba2.org/tba_files/AG/2006/ag_06-14.pdf

TODAY'S NEWS

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Legal News
Attorney says he will not seek judgeship
Jefferson City attorney James R. "Rick" Scroggins says he will not be a candidate to replace Fourth Judicial District Attorney General Al Schmutzer Jr., the Newport Plain Talk reports. After Schmutzer announced he will be retiring at the end of his term, there had been widespread speculation that Scroggins would seek the post.

Legislative News
Senators plan to continue Ford election review
A Senate committee is resuming its probe of Shelby County's Senate District 29 election after the Republican push to expel Sen. Ophelia Ford was halted by a Memphis federal judge, the Commercial Appeal reports.

Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a position on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.

State of State speech delayed
Gov. Phil Bredesen has pushed back the date of his State of the State speech one week to allow lawmakers more time during the special session on ethics, the Nashville City Paper reports. The State of the State speech is now scheduled for 6 p.m. Feb. 6 at the state Capitol.

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Explore your options for lawyers professional liability insurance
Arthur J. Gallagher and Co. is the TBA endorsed provider of Lawyers Professional Liability Insurance. The TBA endorsed program provides a secure, stable, responsive, affordable and flexible way for TBA members to meet their professional liability insurance needs. 


 
 
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