Applicants sought for Judicial Evaluation Commission

With most of the public attention focused on the 186 lawyers who have offered themselves for the Judicial Nominating Commission (JNC), the TBA, to date, has not received any expressions of interest in the new Judicial Performance Evaluation Commission. That panel will recommend whether to retain or replace appellate judges in retention elections. The commission will have nine members, three of whom must be lawyers. The Tennessee Judicial Council will appoint one lawyer and the speakers of the Tennessee House and Senate will each appoint one lawyer.

Unlike the JNC, there is no formal application process for the evaluation body. The speakers will receive recommendations from interested groups, but are not bound by those recommendations. The TBA Board has developed a process to make its recommendation to the appointing authorities, which is detailed here. The TBA will hold a special board meeting on Aug. 13 where the principal focus will be on making recommendations on lawyer applicants for the new JNC, but also will include a review of any lawyer candidates for the evaluation commission.

The Judicial Council will meet Aug. 10 to name the members of the Judicial Performance Evaluation Commission it is authorized by statute to appoint: three judges, one lawyer and one non-lawyer. A Judicial Council subcommittee chaired by Nashville lawyer Harlan Dodson will make a recommendation to the full council.
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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
05 - TN Court of Criminal Appeals
04 - 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.

DONNA MARIE RICHMOND, ET AL. v. JEAN FRAZIER
CORRECTION


Court: TCA

Attorneys:

John W. Cleveland, Sweetwater, Tennessee, for Appellants, Donna Marie Richmond, Harry Richmond, II, and Rebecca R. White.

Thomas A. Peters, Kingsport, Tennessee, for Appellee, Jean Frazier.

Judge: MCCLARTY

This appeal concerns the termination of a lease and the subsequent initiation of a detainer action. Donna Marie Richmond, Harry Richmond, II, and Rebecca R. White ("Lessors") alleged that the lessee, Jean Frazier ("Ms. Frazier"), defaulted on the Church Hill Lease ("Lease") as a result of the deteriorating condition of the Church Hill Shopping Center. When Ms. Frazier refused to relinquish the premises after termination of the Lease, Lessors filed the detainer action to reclaim the property. After a trial, the Chancery Court held that Ms. Frazier did not break the Lease because of the prior course of conduct of the parties and that Ms. Frazier took reasonable care of the premises. Based on the plain language of the Lease agreement and the factual findings of the trial court, we reverse.

http://www.tba2.org/tba_files/TCA/2009/richmondd_CORR_080509.pdf


TENNESSEE COMMUNITY ORGANIZATIONS v. TENNESSEE DEPARTMENT OF FINANCE & ADMINISTRATION, DIVISION OF MENTAL RETARDATION SERVICES

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dianne Stamey Dycus, Deputy Attorney General, for the appellant, Tennessee Department of Finance and Administration, Division of Mental Retardation Services.

William B. Hubbard and Robyn E. Smith, Nashville, Tennessee, for the appellee, Tennessee Community Organizations.

Judge: DINKINS

An association of organizations who are licensed by the State of Tennessee to provide services to people with mental retardation and developmental disabilities filed a petition for writ of mandamus seeking to compel the State agency with whom the providers contract to perform its duty under Tenn. Code Ann. section 33-5-108 to assess in writing the fiscal impact on providers of a new requirement the agency adopted. The Chancery Court for Davidson County granted the petition after having found that the association had standing to file such a petition and that issuance of a writ of mandamus was appropriate. The State appeals. We affirm the judgment of the trial court as modified.

http://www.tba2.org/tba_files/TCA/2009/tncommunity_080509.pdf


ELIZABETH SAMS TUETKEN v. LANCE EDWARD TUETKEN

Court: TCA

Attorneys:

Rachael Emily Putnam, Kay Farese Turner, Memphis, Tennessee, for the Appellant, Elizabeth Sams Tuetken.

Mitchell D. Moskovitz, Adam N. Cohen, Memphis, Tennessee, for the Appellee, Lance Edward Tuetken.

Judge: STAFFORD

This appeal involves the trial court's decision to modify an arbitrator's award in a dispute concerning the parties' parenting plan and their child support obligations. Appellant contends that the trial court erred because modification of the arbitrator's award was not permissible under the Uniform Arbitration Act. We have reviewed the trial court's order referring this dispute to the arbitrator and concluded that the Uniform Arbitration Act is inapplicable. Instead, we find that this was a non- binding dispute resolution proceeding governed by Tennessee Supreme Court Rule 31. Accordingly, we affirm the trial court's decision to modify the arbitrator's award.

http://www.tba2.org/tba_files/TCA/2009/tuetkene_080509.pdf


STATE OF TENNESSEE v. ANDREW LYNN KENDALL

Court: TCCA

Attorneys:

Scott Carpenter, Assistant District Public Defender, for the appellee, Andrew Lynn Kendall.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Steven Sword, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Andrew Lynn Kendall, pleaded guilty in the Knox County Criminal Court to four counts of statutory rape by an authority figure, see T.C.A. section 39-13-532 (2006), and the trial court imposed consecutive three-year sentences for an effective sentence of 12 years' incarceration. The trial court also declared the defendant a "child sexual predator," see id. section 39-13-523 (Supp. 2007), and ordered that he serve 100 percent of his sentence undiminished by any sentence reduction credits. In this appeal, the defendant asserts that the trial court erred by imposing consecutive sentences and by ordering 100 percent service of the 12-year effective sentence. We affirm the imposition of consecutive sentences but reverse the order of 100 percent service because the defendant does not meet the statutory definition of a "child sexual predator."

http://www.tba2.org/tba_files/TCCA/2009/kendalla_080509.pdf


STATE OF TENNESSEE v. JASON J. MATTHEWS

Court: TCCA

Attorneys:

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Jason J. Matthews.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and J. Douglas Dicus and Patrick Butler, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Jason J. Matthews, was convicted of second degree murder, a Class A felony, and sentenced to twenty-five years in the Tennessee Department of Correction as a Range I, standard offender. On appeal, he raises eight issues: 1) whether the evidence was sufficient to support the conviction; 2) whether there was prosecutorial misconduct; 3) whether the trial court erred in determining that the testimony of the defendant's wife did not violate the marital communication privilege; 4) whether the trial court erred in admitting a statement made by the defendant's wife in violation of the Confrontation Clause; 5) whether the trial court improperly instructed the jury; 6) whether the trial court erred in allowing the State to introduce autopsy photographs into evidence; 7) whether the trial court erred in sentencing the defendant; and 8) whether the trial court erred in not granting the defendant's motion for change of venue. After careful review, we affirm the judgments from the trial court on all issues except the defendant's sentencing. The defendant's maximum sentence runs afoul of Blakely and its progeny; thus, the defendant's sentence is set at twenty-two years.

http://www.tba2.org/tba_files/TCCA/2009/matthewsj_080509.pdf


CHRISTINA DELAROSA SANCHEZ a.k.a. CHRISTINA REYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David Hopkins, Nashville, Tennessee, for the appellant, Christina Delarosa Sanchez a.k.a. Christina Reyes.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel Sorbrero and Katrin N. Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Christina Delarosa Sanchez a.k.a. Christina Reyes, appeals the Davidson County Criminal Court's denial of her petition for post-conviction relief. The petitioner, pursuant to a negotiated plea agreement, pled guilty to two counts of felony murder and received two consecutive sentences of life without parole. On appeal, she contends that her guilty plea was not knowingly and voluntarily entered because she suffered from a mental illness at the time she pled and because trial counsel was ineffective in: (1) failing to have a mental evaluation done; (2) improperly advising the petitioner that funds were not available for such an evaluation; and (3) only allowing the petitioner twenty-four hours to decide to accept the plea agreement or proceed to trial. Following review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/sanchezc_080509.pdf


STATE OF TENNESSEE v. JOSHUA CALEB SIMMONS

Court: TCCA

Attorneys:

J. Al Johnson, Spencer, Tennessee, for the defendant-appellant, Joshua Caleb Simmons.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Mark E. Tribble, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Joshua Caleb Simmons ("Simmons"), pled guilty to promotion of methamphetamine manufacture, a Class D felony. He received two years' probation after the service of ninety days in jail. As part of the plea agreement, Simmons reserved a certified question of law pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The certified question is "[w]hether the detention of the Defendant exceeded the constitutionally lawful period of detention considering the cite and release statute and the seat belt statute so as to make the subsequent consent, search and seizure of evidence illegal and therefore inadmissible?" Following our review, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/simmonsj_080509.pdf


LATONYA TAYLOR v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dumaka Shabazz, Nashville, Tennessee, for the petitioner-appellant, Latonya Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter Renee W. Turner, Assistant Attorney General Victor S. Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Latonya Taylor ("Taylor"), appeals from the Criminal Court for Davidson County's denial of post-conviction relief. She was originally convicted by a Davidson County jury of aggravated robbery, especially aggravated kidnapping, and two counts of kidnapping. For these convictions, the petitioner received an effective twenty-three-year sentence in the Tennessee Department of Correction. The petitioner argues that the post conviction court erred in finding: (1) "that the kidnapping related charges are valid even though the aggravated kidnapping and kidnapping convictions violate the due process protections;" and (2) "that counsel was effective[.]" Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/taylorl_080509.pdf


Deposits by the Clerk and Master

TN Attorney General Opinions

Date: 2009-08-05

Opinion Number: 09-146

http://www.tba2.org/tba_files/AG/2009/ag_09_146.pdf

Applicability of City of Smyrna's Storm Water User Fees to Agricultural Land

TN Attorney General Opinions

Date: 2009-08-05

Opinion Number: 09-147

http://www.tba2.org/tba_files/AG/2009/ag_09_147.pdf

Board's Authority to Impose Fee Upon Application to Transfer Probation/Parole Supervision

TN Attorney General Opinions

Date: 2009-08-05

Opinion Number: 09-148

http://www.tba2.org/tba_files/AG/2009/ag_09_148.pdf

Juvenile Court Jurisdiction

TN Attorney General Opinions

Date: 2009-08-05

Opinion Number: 09-149

http://www.tba2.org/tba_files/AG/2009/ag_09_149.pdf

TODAY'S NEWS

Legal News
Politics
Disciplinary Actions
TBA Member Services

Legal News
Debate continues after 6th Circuit ruling on Tenn. Plan
A statewide debate continues after the U.S. Sixth Circuit Court of Appeals last week upheld a lower court's dismissal of a lawsuit challenging the Tennessee Plan, the state system for appointing appellate court judges. TBA executive director Allan Ramsaur and former TBA president Buck Lewis are quoted in a story in today's Memphis Daily News addressing opponents' arguments that the plan has never been found to be constitutional.
Read more here
Nashville lawyer to head ABA TIPS section
Nashville lawyer John R. Tarpley has been appointed chair of the American Bar Association Tort Trial & Insurance Practice Section. He will serve a one-year term beginning this month. Tarpley, a partner with Lewis, King, Kreig & Waldrop PC, has extensive experience in torts, transportation, product liability, commercial law, construction and insurance litigation. He earned his law degree in 1980 from the University of Tennessee. Tarpley served as president of the TBA from 2003 to 2004. The ABA announced the news today.

Cookie company launches charity contest
Nashville-based Christie Cookie has launched an online giveaway to charities and the Legal Aid Society of Middle Tennessee and the Cumberlands is trying to cash in on the deal. From now until Oct. 15, supporters of the legal aid group can visit Christie Cookie's web site and nominate the agency. The charity with the most nominations will receive $10,000. The runner-up will receive $5,000. And 10 runner-ups will get $1,000 each. (Please note that Christie Cookie will use your email address to promote their mail order cookie products but you can opt out of the list at any time).
Vote here
Case against court clerk's son dismissed
Three Chattanooga area youth charged with providing false identification to police have had their cases privately dismissed and their records expunged by General Sessions Court Judge Ron Durby. Judge Durby's criminal court clerk is the mother of one of the boys and employer of two of them. Durby defended his decision to dismiss the charges privately rather than in open court saying he wanted to give the teens a "tongue lashing." He also said he did not consider stepping aside from the case, though he is close friends with his clerk.
Read more at Chattanoogan.com
Tenn. law prof nominated to ABA commission
University of Tennessee College of Law professor Penny White has been nominated by the American Bar Association's Litigation Section to serve on the Commission on the American Jury Project. The project is an ABA initiative aimed at implementing jury innovations throughout the United States by working with courts, rulemaking bodies, state legislatures and organized bars. In addition, the project is dedicated to educating the public, interest groups, government officials, national media and the legal profession about the importance of jury service and jury reform. The UT College of Law reported the news.

Writing contest for law students announced
The University of Missouri-Kansas City Law Review devotes part of one issue each year to a collection of "Law Stories" -- short tales about various aspects of the legal world. For the next edition, the theme will be 1L Revisited: true stories about being a new law student. Current law students and graduates from 2006 or later are invited to submit stories. Winning submissions will be published in the Spring 2010 issue of the law review, and the first place winner will receive a $500 prize. The deadline to submit stories is Oct. 23.
Learn more about the contest
Politics
Memphis mayoral election reset for Oct. 15
The special election to replace former Memphis Mayor Willie Herenton is now set for Oct. 15, the same day election commissioners plan to hold a special election to fill the seat of state Sen. Paul Stanley, R-Germantown. Yesterday, the Shelby County Election Commission moved the date (originally set for Oct. 27) to combine the two elections and comply with state law about when the office was declared vacant. The qualifying deadline for candidates in both elections is Sept. 3. Deadline for withdrawal is Sept. 10.
The Commercial Appeal reports
Disciplinary Actions
Memphis lawyer suspended
Memphis lawyer Matthew Ian John was suspended from the practice of law on July 23 for 30 days and ordered to pay the costs of his disciplinary proceedings after the state Supreme Court found that he signed another lawyer's name as a witness to a power of attorney and failed to properly advise a client as to a conflict of interest. The court determined these actions violated Tennessee Rules of Professional Conduct 1.7 and 8.4.
Download the BPR's release
Nashville lawyer censured
The Board of Professional Responsibility censured Nashville lawyer Malcolm McCune on Aug. 5 for transferring a client's case to an associate without notifying the client, failing to communicate with the client and failing to monitor the case, despite remaining the counsel of record. Sometime later the associate left the firm and took the client's case with him despite McCune's failure to obtain the client's consent. The board determined that McCune did not act with reasonable diligence, did not adequately communicate with his client, and did not adequately supervise the associate to whom he transferred the case.
Read the BPR's release
Morgan County lawyer reinstated
On July 31, Morgan County lawyer Randy Miller was reinstated to the practice of law after the Board of Professional Responsibility found that he adequately responded to a complaint of misconduct. He had been suspended on Feb. 24 for failing to respond to the board about a complaint.
Read the BPR notice
17 lawyers reinstated after paying BPR fee
The following lawyers have been reinstated to the practice of law after paying the 2009 BPR registration fee: Joseph Edward Beecham, Roger Dean Brooks, James Richard Carr, Clifford Todd Chapman, Michael Perry Davis, Theodore Augustus Erck, Anne Bowles Ferrell, Mark Keith Goins, Jonathan Evan Gower, William Clary Lunsford, Oscar Lee Malone III, Adam John Ouellette, Jonathan Jackson Pledger, Jerry Wells Vaughan Jr., Gerald Webb Jr., Michael Gregory Williams and Mary Elizabeth Yarbrough.
See the list of all attorneys suspended for 2009 fee violations
TBA Member Services
Secure, compliant data backup service now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
Learn why lawyers trust i365 for online data backup solutions

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2009 Tennessee Bar Association