Justice Birch to retire in August

Former Chief Justice Adolpho A. Birch Jr. will end a 43-year judicial career, including 19 years of appellate court service, with his Aug. 31 retirement from the Tennessee Supreme Court, he announced this afternoon. Birch's announcement comes on the heels of Justice Riley Anderson's retirement announcement yesterday.


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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TSC


Jodie A. Bell, Nashville, Tennessee, for the Appellant/Appellee, William Glenn Wiley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Lisa A. Naylor, Assistant District Attorney General, for the Appellant/Appellee, State of Tennessee.


We granted the applications for permission to appeal filed by the State of Tennessee and the petitioner to determine 1) whether State v. Burns, 6 S.W.3d 453 (Tenn. 1999), which clarified the analysis for determining lesser-included offenses, created a new constitutional rule that must be applied retroactively to post-conviction cases, 2) whether the petitioner was entitled to post-conviction relief under the DNA Relief Act, and 3) whether the petitioner was denied his right to the effective assistance of counsel at trial. The trial court and the Court of Criminal Appeals granted a new trial as to the petitioner’s felony murder conviction because the jury had not been charged on the lesser-included offense of second degree murder but denied post-conviction relief as to the petitioner’s conviction for especially aggravated robbery. After due consideration, we conclude 1) that State v. Burns did not create a new constitutional rule that must be retroactively applied to post-conviction cases, 2) that the petitioner was not entitled to a new trial or other relief based on DNA results, and 3) that the petitioner was denied his constitutional right to effective assistance of counsel. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded for a new trial on felony murder and especially aggravated robbery.



Court: TCA


Gordon Ball, Knoxville, Tennessee, for the Appellant Don Daugherty.

John A. Lucas and John T. Winemiller, Knoxville, Tennessee, for the Appellee Sony Electronics, Inc.


This potential class action lawsuit was filed by Don Daugherty (“Plaintiff”) on behalf of himself and all other Tennessee residents who purchased certain specified DVD players from Sony Electronics, Inc. (“Sony”). Plaintiff alleged in his complaint that the DVD players were inherently defective, that Sony was aware of these defects, and that Sony nevertheless marketed and sold the defective DVD players. Plaintiff brought claims for breach of express warranty, breach of implied warranty, unjust enrichment, money had and received, as well as a violation of the Tennessee Consumer Protection Act. Sony’s motion seeking to have all of the claims dismissed was granted by the Trial Court. Plaintiff appeals the dismissal of all five claims. We affirm the judgment of the Trial Court with respect to the claims for breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. We reverse the judgment of the Trial Court dismissing Plaintiff’s Tennessee Consumer Protection Act claim.


CHARLES D. SUSANO, JR concurring.


Court: TCA


Stephen A. Marcum, Huntsville, Tennessee, for the appellants, David Helton and wife, Charlotte Helton.

Jay Arthur Garrison, Knoxville, Tennessee, for the appellee, Glenn Enterprises, Inc. dba Linmar Hospitality.


David Helton and his wife, Charlotte Helton, brought suit against Glenn Enterprises, Inc., dba Linmar Hospitality, the operator of a Fairfield Inn in Knox County, for compensatory damages arising out of the theft of their drag racing vehicle and other personal property losses, all of which occurred while the plaintiffs were guests at the defendant’s motel. At the conclusion of a jury trial, the court directed a verdict for the defendant, holding that there was no liability shown by the proof. This holding was predicated upon the fact that the parking lot where the plaintiffs parked their truck and trailer, while close to the defendant’s motel, was not actually on the defendant’s property. The plaintiffs appeal, arguing that the duty established by the Supreme Court in the case of McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891 (Tenn. 1996) should apply to the facts of this case. They contend that they made out a question for the jury on the McClung issue as well as on the issue of liability under the Tennessee Consumer Protection Act (“the TCPA”). We vacate the trial court’s judgment on these two issues and remand for a new trial.



Court: TCA


Tracey Robinson-Coffee, Nashville, Tennessee, for the Appellant Dwight Kelley Lindsay.

Mary Arline Evans and Alan D. Johnson, Nashville, Tennessee, for the Appellee Tammy Hopkins Lindsay.


Tammy Hopkins Lindsay (“Mother”) and Dwight Kelley Lindsay (“Father”) were divorced in December of 2000, but have returned to court numerous times since then. Most of the post-divorce controversy centers around the amount of Father’s child support payment and the arrearages which have accrued since the divorce. After the most recent hearing, the Trial Court entered a detailed order resolving competing petitions filed by the parties. The only issue in this appeal concerns that portion of the Trial Court’s order which requires Father to pay an additional $50 each time he fails to exercise co-parenting time on a weekend, and an additional $25 for each day that he fails to exercise co-parenting time on a holiday or during the summer. We vacate only this particular portion of the Trial Court’s Order, and affirm the order as so modified.


Memorandum opinion


Court: TCA


Sandra Lynn Mathis Smith, Murfreesboro, Tennessee, for the appellant, David Pickelsimer.

Abby Rose Rubenfeld, Nashville, Tennessee, for the appellee, Meghan McGiboney.


This application for an interlocutory appeal concerns the jurisdiction of the Circuit Court for Rutherford County to consider a mother’s appeal from a decision of the Rutherford County Juvenile Court changing custody to the father. The Circuit Court denied the father’s motion to dismiss for lack of jurisdiction, but granted mother permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the Circuit Court that this is an appropriate case for an interlocutory appeal. Because the Juvenile Court’s decision does not arise out of a dependant or neglect proceeding, the appeal of the Juvenile Court’s order lies to this court rather than the Circuit Court. Accordingly, we vacate the Circuit Court’s order and remand the case to the Circuit Court with directions to transfer the appeal to this court.



Court: TCA


Leonard W. Yelsky, Cleveland, OH; Joseph D. Barton, Millington, TN, for Appellant

Larry E. Parrish, Memphis, TN, for Appellee


Following a transaction involving the sale of a business, the plaintiff filed suit against several defendants in federal court alleging causes of action grounded in federal and state law. The federal jury found some of the defendants liable, but they concluded that one of the defendants did not engage in any wrongdoing during the transaction at issue. Thereafter, the plaintiff filed suit in a Tennessee chancery court seeking to impose a constructive trust over funds held by the defendant exonerated by the jury. The defendant removed the case to the federal district court. The district court determined that the claim was barred by the doctrine of res judicata. The plaintiff appealed to the federal court of appeals, which ruled that the case was not properly removable, as it only presented a claim based upon state law. On remand to the chancery court, the defendant asserted the affirmative defenses of res judicata and collateral estoppel. The chancery court subsequently granted the plaintiff’s motion for summary judgment. The defendant appealed to this Court. We reverse the chancellor’s grant of summary judgment to the plaintiff, and we hold that the plaintiff’s claim for a constructive trust is barred by the doctrines of res judicata and collateral estoppel. Accordingly, we dismiss the case in its entirety.



Court: TCCA


Wayford Demonbreun, Jr., pro se.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Senior Counsel; and Brett Gunn, Assistant District Attorney General, for the appellee, the State of Tennessee.


The petitioner, Wayford Demonbreun, Jr., appeals the trial court's dismissal of his petition for habeas corpus relief. In this appeal, he alleges that his judgment of conviction for aggravated assault is void because the indictment was defective in that it failed to inform him of the essential elements of the offense for which he was convicted. The judgment of the trial court is reversed. The conviction at issue is vacated, habeas corpus relief is warranted as to that offense, and the cause is remanded for appropriate remedial action. Because the petitioner is also imprisoned for second degree murder, he is not entitled to release by virtue of this opinion.



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Ethics legislation advancing in General Assembly
The General Assembly took major steps forward this week in trying to adjourn the special session on ethics by the end of next week. The Senate worked until mid-day today trying to finish crafting a bill as a committee of the whole, and the House saw ethics legislation move through the State and Local Government Committee and the Budget Subcommittee of the House Finance Committee.
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.

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Cumberland County teen court ready for action
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Episcopal church considers sainthood for Thurgood Marshall
The Episcopal Diocese of Washington is to consider a resolution this Friday recommending that the late Supreme Court Justice Thurgood Marshall be considered a saint, according to a story in the Bristol Herald Courier. The resolution would designate May 17 as Marshall's feast day. On that date in 1954, Marshall, then a lawyer with the NAACP, won the Brown v. Board of Education school desegregation case.

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