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.

http://www.commercialappeal.com/mca/local/article/0,2845,MCA_25340_5347625,00.html

TODAY'S OPINIONS
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BFS RETAIL AND COMMERCIAL OPERATIONS, LLC v. CHARLES SMITH
With Concurring Opinion


Court: TCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCA/2007/bfsretail_021307.pdf

KOCH CONCURRING
http://www.tba2.org/tba_files/TCA/2007/bfsretail_con_021307.pdf


IN THE MATTER OF F. C. M.

Court: TCA

Attorneys:

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

Judge: COTTRELL

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.

http://www.tba2.org/tba_files/TCA/2007/fcm_021307.pdf


O'CHARLEY'S/DONELSON FOODS INC. v. TENN-KY AUTOMATIC SPRINKLER COMPANY, INC., ET AL. Corrected Opinion

Court: TCA

Attorneys:

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.

Judge: COTTRELL

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.

http://www.tba2.org/tba_files/TCA/2007/ocharley_corr_021307.pdf


STATE OF TENNESSEE v. ROBERT TAYLOR DOWNEY

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2007/downeyr_021307.pdf


HARVEY PHILLIP HESTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2007/hesterh_021307.pdf


ROY ALVIN JENKINS, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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

Judge: WILLIAMS

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.

http://www.tba2.org/tba_files/TCCA/2007/jenkinsr_021307.pdf


WILLIAM MOREE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2007/moreew_021307.pdf


STATE OF TENNESSEE v. ALTON RAY THOMAS

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2007/thomasa_021307.pdf


TODAY'S NEWS

Legal News
Legislative News
Knox Term Limits
BPR Actions
TBA Member Services

Legal News
Court asks for more study on fee dispute arbitration, appellate mediation
The Tennessee Supreme Court issued orders today re-establishing two task forces that had studied and presented proposed rules on attorney fee dispute arbitration and appellate mediation. The Task Force to Study Attorney Fee Dispute Arbitration will review comments submitted on Proposed Rule 47 and report back by March 1. The Task Force to Study Appellate Mediation will review comments submitted on Proposed Provisional Rule 48 and report back by April 15.
Download the orders
Study finds state death penalty manual confusing
An Associated Press review of Tennessee's procedural manual for executions found that the document is a "cut-and-paste jumble of conflicting instructions that mixes new lethal injection instructions with those for the old electric chair." Governor Bredesen cited the manual's conflicting provisions in his decision to place a three-month moratorium on executions in the state.
Read the AP's findings
Committee says judge should oversee juvenile program
The Bradley County Juvenile Committee entered the debate between Juvenile Judge Daniel Swafford and Mayor D. Gary Davis over who controls the county's juvenile program. In reviewing the situation, the committee concluded that the juvenile judge, not the mayor, has oversight authority of juvenile programs.
The Cleveland Banner has more
School board should reconsider vote, paper says
The Jackson Sun responded to the County Board of Education's decision not to seek unitary status for the school system by calling on the board to reconsider. The paper also expressed disappointment that the vote fell along racial lines.
Read the full editorial
U.S. House approves district court patent program
Legislation passed by the U.S. House of Representatives yesterday would establish a pilot program in at least five U.S. district courts to assess the benefits of channeling patent cases to district judges with greater interest and expertise in patent law. The program seeks to respond to the high reversal rate of district court decisions by the Federal Circuit Court of Appeals.
Read more from the bill's sponsor
Legislative News
Apply sunshine law to legislature, pair say
Sen. Bill Ketron, R-Murfreesboro, and Rep. Tom DuBois, R-Columbia, have reintroduced legislation that would make all records of the General Assembly open to inspection. The state's current open records law, known as the Sunshine Law, does not apply to the legislature. Previous attempts to do so have met with resistance, reports the Daily Herald.
Read about their proposals
Ketron, DuBois also plan juvenile prosecution bill
Sen. Bill Ketron, R-Murfreesboro, and Rep. Tom DuBois, R-Columbia, also are working on legislation that would allow prosecutors to seek the death penalty for juveniles convicted of capital offenses. They acknowledge, however, that they face significant challenges in overcoming constitutional issues with the idea.
The Daily Herald has details
Online vote tracking unveiled
The General Assembly's web site has been upgraded to make it easier for the public to track legislation supported by particular lawmakers. New features include links from member directories to legislation sponsored by each member, links from bill summaries to full copies of bill texts, and an option to link from bills to other similar proposals.
Check it out here
Stay current on legislation with TBA updates
With legislators focused on choosing leaders and reorganizing, few bill have been introduced so far this session. The TBA watch and action lists, however, already carry some items of note.
Check out TBA legislative updates
Knox Term Limits
Mayor to address county commission
Knox County Commission Chairman Scott Moore has agreed to hold a special meeting for Mayor Mike Ragsdale to present his nominees for the county Ethics Committee and explain his call for a special election to fill the seats of term-limited officials. The meeting will take place Feb. 20 in the main assembly room of the City County Building at 8 a.m. In granting Ragsdale's request for a special session, Moore stipulated that the meeting would last no longer than 30 minutes.
The News Sentinel reports on the story
BPR Actions
Two attorneys reinstated
Donna Ann Byrd of Hixson and Craig J. Donaldson of Greenback have been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. A list of all attorneys suspended and reinstated for 2005 CLE violations is available
on the TBA's web site
TBA Member Services
MBNA MasterCard offers low rate
Show your TBA affiliation and get a low annual percentage rate with the TBA MBNA MasterCard.
Click here to learn more

 
 
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