U.S. justice refuses stay in Memphis custody case

Justice John Paul Stevens yesterday refused to stay a Tennessee Supreme Court order transferring custody of Anna Mae He to her natural parents. In reacting to the news, an attorney for the the girl's foster parents said they still have legal challenges available and are determining whether to pursue them. In related news, the Tennessee Supreme Court's transfer order arrived in Memphis chancery court yesterday. A spokesman said the order would be processed and delivered to the juvenile court today, the Commercial Appeal reports.


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

With Concurring Opinion

Court: TCA


Robert E. Boston, Andrew S. Naylor, Rebekah J. Stephens, Nashville, Tennessee, for the appellant, BFS Retail and Commercial Operations, LLC

Charles W. McElroy, Dudley M. West, Nashville, Tennessee, for the appellee, Charles Smith

Judge: CAIN

National retail tire and automotive service corporation filed action against district manager for violation of corporation's covenant not to compete after manager resigned and accepted new position with corporation's competitor. Trial court granted manager's motion for summary judgment, finding that manager had not violated the non-compete agreement since manager's new position was located outside the geographic location in which he was previously employed by corporation. Corporation appealed. Finding that the provisions of the contract are not, as a matter of law, limited to a geographic component, we reverse.




Court: TCA


Randy P. Lucas, Gallatin, Tennessee, for the appellant, D. S. M.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services


Mother appeals termination of parental rights for persistence of conditions under Tenn. Code Ann. Section 36-1-113(g)(3) claiming the Department failed to make reasonable efforts at reunification and that termination was not in the child's best interest. We affirm.



Court: TCA


Larry D. Ashworth; Peter D. Heil, Nashville, Tennessee, for the appellant, O'Charley's/Donelson Foods, Inc.

H. Rowan Leathers III, Nashville, Tennessee, for the appellee, Bacar Constructors, Inc.; Tom Corts, Nashville, Tennessee, for the appellee, Tenn-Ky Automatic Sprinkler Company, Inc.


After a three day trial, the trial court found that defendant installers were not liable for a sprinkler system failure caused by faulty maintenance. The evidence preponderates in favor of the trial court's finding regarding fault, and we affirm.



Court: TCCA


Robert T. Bateman, Clarksville, Tennessee, for the appellant, Robert Taylor Downey

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; C. Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The appellant, Robert Taylor Downey, was found guilty by a jury in the Montgomery County Circuit Court of especially aggravated robbery, conspiracy to commit especially aggravated robbery, aggravated burglary, and reckless endangerment. The appellant received a total effective sentence of twenty-four years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's denial of his motion to suppress his videotaped oral and written statements, the trial court's refusal to dismiss the indictments after a Rule 16 discovery violation by the State, the sufficiency of the evidence sustaining his especially aggravated robbery and conspiracy to commit especially aggravated robbery convictions, and the imposition of consecutive sentencing. The State concedes that the trial court failed to make the necessary findings for the imposition of consecutive sentencing and asks that the case be remanded. Upon review of the record and the parties' briefs, we affirm the appellant's convictions, but we remand to the trial court for a new sentencing hearing on the issue of consecutive sentencing.



Court: TCCA


Gary L. Anderson, Knoxville, Tennessee, for the appellee, Harvey Phillip Hester

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellant, State of Tennessee

Judge: OGLE

The State appeals the Hamilton County Criminal Court's granting the petitionerís request for post-conviction relief from his convictions for two counts of second degree murder and one count of attempted second degree murder and effective sixty-two-year sentence. In this appeal, the State claims that the trial court erred by concluding (1) that the petitioner received the ineffective assistance of trial counsel and (2) that the petitioner did not voluntarily and knowingly waive his right to a twelve-member jury verdict. Upon review of the record and the parties' briefs, we conclude that the trial court erred by granting the petitioner's request for post-conviction relief and reverse the judgment of the trial court.



Court: TCCA


Roy Alvin Jenkins, Jr., Wartburg, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Garry G. Brown, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee


The pro se petitioner, Roy Alvin Jenkins, appeals from the summary dismissal by the trial court of his "Motion for Modification of Illegal Sentence." We dismiss this appeal holding that Tennessee Rule of Appellate Procedure 3(b) does not authorize a direct appeal of a dismissal of a motion to correct an illegal sentence.



Court: TCCA


William Moree, Wartburg, Tennessee, pro se

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; for the appellee, State of Tennessee

Judge: OGLE

The petitioner, William Moree, petitioned the Criminal Court for Monroe County for relief from his allegedly illegal sentence. Alternatively construing the pleading as one seeking habeas corpus, post-conviction, or other relief, the trial court found that it demonstrated no basis for relief and dismissed the petition. The state moves this court to affirm the judgment pursuant to Tennessee Court of Criminal Appeals Rule 20. We sustain the state's motion and affirm the order of dismissal.



Court: TCCA


Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Alton Ray Thomas

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Charles F. Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The appellant, Alton Ray Thomas, pled guilty in the Bedford County Circuit Court to driving under the influence (DUI), fifth offense, and driving on a revoked licence, fifth offense. The trial court imposed a total effective sentence of three years, eleven months, and twenty-nine days. On appeal, the appellant challenges the trial court's failure to grant alternative sentencing, specifically community corrections. Upon our review of the record and the parties's briefs, we affirm the judgments of the trial court.



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