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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
00 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

STATE OF TENNESSEE v. DEVIN BANKS

Court: TSC

Attorneys:

Robert Jones, Shelby County Public Defender; Phyllis Aluko and Tony N. Brayton, Assistant Public Defenders (on appeal); Kathy Kent and Latonya Burrow, Assistant Public Defenders (at trial); Memphis, Tennessee, for the appellant, Devin Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel; Clarence Lutz, Assistant Attorney General (on appeal); William L. Gibbons, District Attorney General; Stacy McEndree and Karen Cook, Assistant District Attorneys General (at trial); Memphis, Tennessee, for the appellee, State of Tennessee.

Judge: KOCH

This appeal involves a defendant who shot two persons during a robbery at the home of one of the victims. One of the victims died. A Shelby County grand jury indicted the defendant for (1) premeditated and intentional murder, (2) murder during the perpetration of a robbery, (3) attempted first degree murder, and (4) especially aggravated robbery. A jury found the defendant guilty on all counts. At the penalty phase of the trial, the jury found the presence of the aggravating circumstances in Tenn. Code Ann. section 39-13-204(i)(6) and (7) (2006) and sentenced the defendant to death. In a separate sentencing hearing, the trial court sentenced the defendant to twenty-five years for the attempted first degree murder and especially aggravated robbery convictions and ordered these sentences to be served consecutively to each other and to the sentence of death. The defendant appealed his convictions and sentences to the Court of Criminal Appeals. The Court of Criminal Appeals, after concluding that the trial court's submission of the Tenn. Code Ann. section 39-13-204(i)(6) aggravating circumstance to the jury was harmless error, affirmed the defendant's convictions and the sentences. State v. Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039 (Tenn. Crim. App. July 6, 2007).

We have concluded that the Court of Criminal Appeals erred by holding that the evidence did not support submitting the Tenn. Code Ann. section 39-13-204(i)(6) aggravating circumstance to the jury. We also hold as follows: (1) the trial court committed no errors with regard to the admission or exclusion of evidence, (2) the trial court did not err with regard to its handling of the Arabic language interpreter or the dismissal of one of the jurors, (3) the prosecutor's closing arguments did not result in reversible error, (4) the trial court did not commit reversible error with regard to the instructions for lesser-included offenses, (5) the evidence supports the defendant's convictions for attempted first degree murder and especially aggravated robbery, (6) the sentences of attempted first degree murder and especially aggravated robbery are not excessive, and the trial court did not err by ordering them to be served consecutively, (7) the evidence supports the defendant's first degree murder convictions, as well as the jury's finding that the Tenn. Code Ann. section 39-13-204(i)(6) and (7) aggravating circumstances apply in this case, (8) the defendant's multiple constitutional challenges to Tennessee's death penalty procedures are without merit, and (9) the defendant's constitutional challenge to Tennessee's lethal injection protocol is without merit. We also agree with the Court of Criminal Appeals's conclusion with respect to the remaining issues and attach to this opinion as an appendix the relevant portions of that court's opinion. Finally, in the discharge of our obligation under Tenn. Code Ann. section 39-13-306 (2006), we have thoroughly reviewed the record in this case and have determined (1) that the defendant's death sentence was not imposed in an arbitrary fashion, (2) that the evidence fully supports the aggravating circumstances in Tenn. Code Ann. section 39-3-204(i)(6) and (7), (3) that these aggravating circumstances outweigh the mitigating circumstances offered by the defendant, and (4) that the defendant's death sentence, taking into consideration the nature of the offenses and the defendant himself, is neither excessive nor disproportionate to the penalties imposed in similar cases. Accordingly, the judgment of the Court of Criminal Appeals, as corrected by this opinion, is affirmed.

http://www.tba2.org/tba_files/TSC/2008/banksd_110708.pdf


MARY HENDON ATKINS v. GREGORY JOHN MOTYCKA

Court: TCA

Attorneys:

Marlene Eskind Moses and John D. Kitch, Nashville, Tennessee, for the appellant, Gregory John Motycka.

D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellee, Mary Hendon Atkins.

Judge: CLEMENT

In this divorce action, the husband appeals the trial court's award of alimony in solido, an upward deviation in child support, and the issuance of a permanent injunction against his mistress. The trial court awarded the wife alimony in solido in the amount of $360,000, which was satisfied with an assignment of the husband's equity in the marital residence. The trial court made an upward deviation in child support, requiring the husband to pay more than twice the presumptive amount. The trial court also made the husband's mistress an involuntary third party and issued a permanent injunction prohibiting her from having any contact with the wife or the parties' children. The husband contends the assignment of his equity in the marital residence as alimony in solido constituted an inequitable distribution in the martial property, the upward deviation in child support is not justified, and the trial court lacked jurisdiction to issue an injunction against his mistress. We affirm the award of alimony in solido. We reverse the upward deviation in child support because the record fails to establish specific facts that justify a deviation from the presumptive amount of child support. We vacate the permanent injunction issued against the husband's mistress because the injunction is void due to the fact the trial court did not have jurisdiction over her.

http://www.tba2.org/tba_files/TCA/2008/atkinsm_110708.pdf


PEDRO AND GRISELDA VALADEZ, Individuals and as parents and next Friends of FATIMA VALADEZ, a minor v. NEWSTART, LLC, ET AL.

Court: TCA

Attorneys:

Tim Edwards, Memphis, TN, for Appellants.

Darrell E. Baker, Jr., Peter B. Winterburn, Memphis, TN, for Appellees Newstart, LLC, and Carl Pean, M.D.

Jerry E. Mitchell, Justin E. Mitchell, Memphis, TN, for Appellee Ericka Lee Gunn-Hill, M.D.

Judge: HIGHERS

In this appeal we are asked to reverse the trial court's grants of summary judgment to Appellees and adopt a loss of chance theory of recovery, thus allowing Appellants to recover for Appellees' alleged failure to timely notify them that their unborn child was afflicted with spina bifida such that they could participate in a clinical trial. Because our supreme court has expressly stated that Tennessee does not recognize a cause of action for loss of chance, we affirm.

http://www.tba2.org/tba_files/TCA/2008/valadezp_110708.pdf


RONALD WATSON v. ROBERTO GARZA, ET AL.

Court: TCA

Attorneys:

Glenn K. Vines, Jr., Memphis, TN, for Appellant.

R. Dale Thomas, Jesse D. Nelson, Jackson, TN, for Appellee.

Judge: HIGHERS

This appeal involves a motion to dismiss for insufficient service of process. The summons issued for service on the defendant-appellee was served by the deputy sheriff on a co-defendant. The trial court granted the defendant-appellee's motion to dismiss. We affirm.

http://www.tba2.org/tba_files/TCA/2008/watsonr_110708.pdf


TODAY'S NEWS

Legal News
Politics
Passages
Upcoming
TBA Member Services

Legal News
State offers help online for citizens struggling
The state has launched a new "Help for Tennessee Families" web site designed to help citizens in these difficult economic times with information about finding a job, job training, access to health care services, and tips for reducing energy and transportation costs. Tennesseans can access the new site at www.TN.gov by clicking on "Help for Tennessee Families' or at www.TN.gov/helpforfamilies.
Read more about the web site
2 lawyers appointed to BPR committee
Chattanooga area attorneys Elizabeth B. Donnovin and Bill Killian have been named to the District III Hearing Committee of the Tennessee Board of Professional Responsibility. Committee members approve or modify recommendations by the disciplinary counsel's office, or hear formal charges of misconduct against attorneys, pursuant to the Code of Professional Conduct.
Read more on Chattanoogan.com
Obama could name first female solicitor general
Will the next solicitor general be a woman? The names of several prominent female attorneys are being tossed around for the post, which is typically filled by the president before other Justice Department posts. No female has previously been appointed to the job.
The ABA Online Journal details some of the candidates
Politics
Nashville Post reports Rep. Williams solid for GOP
The Nashville Post reports this afternoon that Rep. Kent Williams, R-Elizabethton, will vote for a Republican for Speaker of the House, bolstering the chances that Rep. Jason Mumpower will fill the seat long held by Democratic Rep. Jimmy Naifeh. Williams, who voted for Nafieh last session and faced a conservative challenger in his primary, had been seen as a possible Nafieh vote this year as well.

GOP control will likely mean new faces in state offices
Republican control of the Tennessee legislature will likely lead to the removal of the three Democratic constitutional officers who are elected by the legislature. Just who will replace Secretary of State Riley Darnell, Comptroller John Morgan and Treasurer Dale Sims is now the topic of discussion across the state. Candidates include former state senator Rosalind Kurita, Nashville lawyer Justin Wilson and former congressman Van Hilleary.
Read more about this and the legislative outlook in the Commercial Appeal
Passages
West Memphis lawyer dies
Kent J. Rubens of the West Memphis law firm Rieves, Rubens & Mayton died Wednesday from complications of a brain aneurysm. Although based in Arkansas, Rubens was a well-known litigator in the Memphis legal community.
Read more in the Memphis Daily News
Upcoming
UT Law to host Order of Protection Day
The Fourth Circuit Court for Knox County will hold Order of Protection Day at the University of Tennessee College of Law on Nov. 13, in an effort to raise awareness about domestic violence. Court will begin at 8 a.m. with a lecture by Judge Bill Swann about domestic violence and orders of protection. Hearings will run from 9 a.m. until 4:30 p.m., with issues likely to arise including domestic abuse, substance abuse, family law, criminal assault and civil procedure.

TBA Member Services
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Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
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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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