CASA honors state senator, Nashville attorney

Tennessee Court Appointed Special Advocates (CASA) today honored State Sen. Charlotte Burks, D-Monterey, as its Legislator of the Year and Nashville attorney Lane Simpson as its Advocate of the Year. Both awards were presented this morning during the group's annual meeting. Sen. Burks was recognized for her work on issues of domestic violence and child abuse, while Simpson, an attorney with the Tennessee Department of Children's Services, was hailed for his commitment to children in the foster care system, and especially his work with older youth in need of transitional housing and services. The keynote address was given by Mary Lee, an attorney with Youth Villages in Memphis. She spoke about her own experience as a child in the foster care system, encouraging those in attendance to help young people develop goals for their lives and advocate for themselves.

Learn more about CASA in Tennessee

TODAY'S OPINIONS
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STATE OF TENNESSEE V. BILLY RAY IRICK

Court: TSC

Attorneys:

C. Eugene Shiles, Jr., and Howell G. Clements, Chattanooga, Tennessee, for the appellant, Billy Ray Irick.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; James E. Gaylord, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Leland Price and Kenneth Irvine, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: CLARK

The appellant, death-row inmate Billy Ray Irick, challenges the trial court's order of August 20, 2010, finding that he is presently competent to be executed according to the standards enunciated in Panetti v. Quarterman, 551 U.S. 930 (2007), Ford v. Wainwright, 477 U.S. 399 (1986), and Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999). Applying de novo review, we hold that the trial court applied the correct legal standards in adjudicating the question of the appellant's present competence for execution. Additionally, after carefully and thoroughly reviewing the record on appeal, we conclude that the evidence fully supports and does not preponderate against the trial court's factual finding that the appellant is presently competent to be executed. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC/2010/irickb_0922110.pdf


STATE OF TENNESSEE v. DAVID LYNN JORDAN

Court: TSC

Attorneys:

George Morton Googe, District Public Defender, Jackson, Tennessee, and Lloyd Tatum, Henderson, Tennessee, for the appellant, David Lynn Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; James E. Gaylord, Asst. Attorney General; James G. Woodall, District Attorney General; Al Earls and Jody S. Pickens, Asst. District Attorneys General, for the appellee, State of Tennessee.

Judge: CLARK

The defendant was convicted by a jury of the first degree murders of Renee Jordan, Jerry Hopper, and David Gordon, and the attempted first degree murders of James Goff and Larry Taylor, as well as leaving the scene of an accident. The jury sentenced the defendant to death for each of the first degree murders. The trial court sentenced the defendant to twenty-five years for each of the attempted murders, to be served consecutively, and to thirty days for the misdemeanor. On appeal, we hold (1) the trial court erred in ruling pursuant to Tennessee Rule of Evidence 615 that persons attending the guilt/innocence phase of the trial could not testify at the sentencing hearing; (2) the trial court's ruling regarding witness sequestration did not violate the defendant's right to a public trial; (3) the trial court erred in allowing an expert to incorporate hearsay testimony within his opinion without a limiting instruction; (4) the trial court did not err in permitting a victim's fiancée to offer victim impact testimony; (5) the prosecution engaged in improper argument during the sentencing hearing; (6) the trial court did not err in its instructions to the jury on the felony murder aggravating circumstance; (7) the various aggravating factors charged were not duplicative; (8) each of the death sentences satisfies our statutory mandatory review; and (9) the cumulative errors in this case do not entitle the defendant to relief. As to the remaining issues raised by the defendant, we agree with the Court of Criminal Appeals's conclusions and attach as an appendix to this opinion the relevant portions of that court's decision. The defendant's convictions and sentences are affirmed.

http://www.tba2.org/tba_files/TSC/2010/jordand_092210.pdf


PUGH'S LAWN LANDSCAPE COMPANY, INC. v. JAYCON DEVELOPMENT CORPORATION

Court: TSC

Attorneys:

Kathy Baker Tennison and Stuart B. Breakstone, Memphis, Tennessee, for the appellant, Pugh's Lawn Landscape Co., Inc.

Stephen F. Libby, Memphis, Tennessee, for the appellee, Jaycon Development Corporation.

Judge: HOLDER

We granted appeal in this case to address whether parties may modify by agreement the scope of judicial review of an arbitrator's award. We hold that judicial review of arbitration awards is governed by the Tennessee Uniform Arbitration Act ("TUAA"). As such, the provision in the parties' arbitration agreement purporting to expand the scope of the judicial review beyond that set forth in the TUAA is invalid. We further hold that the failure of this provision constitutes a mutual mistake requiring rescission of the parties' arbitration agreement. We therefore reverse the judgment of the Court of Appeals, vacate the trial court's judgment confirming the arbitrator's award, and remand this case to the trial court for further proceedings.

http://www.tba2.org/tba_files/TSC/2010/pughslawn_092210.pdf


ELIZABETH SAMS TUETKEN v. LANCE EDWARD TUETKEN

Court: TSC

Attorneys:

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

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

Judge: HOLDER

We granted appeal in this case to determine the trial court's scope of review of the parties' arbitration award. After thoroughly reviewing the record, we conclude that the parties entered into binding arbitration governed by the Tennessee Uniform Arbitration Act ("TUAA") and reaffirm our holding in Pugh's Lawn Landscape Co., Inc v. Jaycon Development Corp., No. W2008-01366-SC-R11-CV,_ S.W.3d_,_ (Tenn. 2010), that the judicial review of an arbitration award is confined to the grounds enumerated in the TUAA. The provision in the parties' arbitration agreement modifying the trial court's scope of review therefore is invalid, and the invalidity of this provision is a mutual mistake justifying rescission of the parties' agreement to arbitrate. Because our holding necessitates additional proceedings on remand, we further hold that parenting issues may not be submitted to binding arbitration in Tennessee because such arbitration eliminates the trial court's determination of the children's best interests. We therefore reverse the judgment of the Court of Appeals, vacate the judgment of the trial court, and remand the case to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2010/tuetkene_092210.pdf


ROY L. CRAWFORD v. TENNESSEE DEPARTMENT OF CORRECTION and QUENTIN WHITE, in his capacity as COMMISSIONER OF THE TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Petitioner/Appellant Roy L. Crawford, Nashville, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, and Arthur Crownover, II, Nashville, Tennessee, for the Respondent/Appellees, Tennessee Department of Correction and Quentin White

Judge: KIRBY

This appeal concerns a post-judgment motion. The petitioner is an inmate in the custody of the respondent department of correction. The petitioner inmate filed a complaint for declaratory judgment regarding the department of correction's denial of his request for a parole hearing. The department answered the complaint, and no action was taken on the case by either party in the two years that followed. The trial court entered a case management order, requiring the petitioner inmate to set a date for a final hearing within a given time. After the petitioner inmate failed to do so, the trial court dismissed the petitioner's complaint without prejudice. Nearly a year later, the petitioner filed a motion for summary judgment. Ultimately, the trial court concluded that it lacked subject matter jurisdiction to consider the motion because it was filed after the order of dismissal became final. The petitioner appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/crawfordr_092210.pdf


DEXTER RIDGE SHOPPING CENTER, LLC v. DAVID N. LITTLE, KAREN LITTLE AND LITTLE ANTIQUES, LLC, D/B/A ANTIQUE MARKET OF CORDOVA AND AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY AND REID JONES D/B/A REID JONES INSURANCE AGENCY

Court: TCA

Attorneys:

Julie C. Bartholomew, Somerville, Tennessee, for the appellant, Dexter Ridge Shopping Center, LLC.

Don G. Owens, III, Memphis, Tennessee, for the appellees, American National Property and Casualty Company and Reid Jones d/b/a Reid Jones Insurance Agency.

Judge: KIRBY

This appeal involves service of a garnishment. In the underlying action, the plaintiff recovered a judgment against the defendant debtor. At the time, the judgment debtor was an independent insurance agent located in Tennessee. In a discovery response, the debtor stated that he worked for a Missouri insurance company, but he listed his Tennessee office as his work address. The plaintiff issued a garnishment to the Missouri insurance company as the garnishee, and had it served at the Tennessee address, where it was accepted by a front-desk employee. The employee gave the garnishment to the debtor. Therefore, the garnishee did not receive the garnishment and did not respond. The trial court issued a conditional judgment and scheduled a hearing for the garnishee to appear and show cause why the conditional judgment should not be made final. After the hearing, the trial court found that the employees at the Tennessee insurance office were not agents of the garnishee Missouri company, and that service of the garnishment was not effective. The trial court therefore vacated the conditional judgment. The plaintiff-garnishor now appeals. We affirm and agree with the trial court that service of the garnishment was not effective.

http://www.tba2.org/tba_files/TCA/2010/dexterridge_092210.pdf


FLOYD L. FLETCHER, ET AL. v. ASHLEY R. WHITE, ET AL.

Court: TCA

Attorneys:

Byron D. Bryant, Knoxville, Tennessee, for the appellants, Floyd L. Fletcher and Fayda S. Fletcher.

Toby R. Carpenter, Knoxville, Tennessee, for the appellees, Ashley R. White and Consumers Insurance USA, Inc.

Judge: MCCLARTY

Mr. Fletcher, who was injured in an automobile accident involving an uninsured motorist, sued the insurance company after it denied uninsured motorist benefits under his towing policy. Insurance company filed a motion for summary judgment claiming that the towing policy did not provide uninsured motorist coverage for Mr. Fletcher's accident because it involved a non-covered auto. After a hearing on the motion, the trial court granted summary judgment to the insurance company. Mr. and Mrs. Fletcher appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2010/fletcherf_092210.pdf


KIMBERLY SMITH, v. THOMAS SMITH

Court: TCA

Attorneys:

Rebecca D. Slone, Dandridge, Tennessee, for the appellant, Kimberly Smith.

Douglas R. Beier, Morristown, Tennessee, for the appellee, Thomas Smith.

Judge: FRANKS

A few years after the parties divorced, the mother filed a Petition for Full Custody of the children and child support. Following long delays, the Trial Court gave the mother custody of the remaining minor child and ordered child support for the child from the father from the date of the hearing forward. The mother appealed, insisting that retroactive child support should be granted to the date of filing the petition. We hold the child support should be granted from the date of the filing of the Petition and remand for a determination of that back child support.

http://www.tba2.org/tba_files/TCA/2010/smithk_092210.pdf


STATE OF TENNESSEE v. TIMOTHY DELANDO METCALF

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; Terry Jordan, Assistant Public Defender, Blountville, Tennessee, for the Defendant-Appellant, Timothy Delando Metcalf.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Julie Canter, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Timothy Delando Metcalf, pled guilty in the Circuit Court of Sullivan County to burglary, a Class E felony, and theft of $500 or less, a Class A misdemeanor, and appeals the denial of his request for an alternative sentence. Metcalf received a sentence of one year in the Tennessee Department of Correction for the burglary conviction and a suspended sentence of eleven months and twenty-nine days for the theft conviction. In this appeal, Metcalf claims the trial court should have also granted probation for the burglary conviction. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/metcalft_092210.pdf


STATE OF TENNESSEE v. JOSHUA LYNN PARKER
With Dissenting and Concurring Opinion


Court: TCCA

Attorneys:

Keith E. Haas, Assistant Public Defender, Newport, Tennessee, for the appellant, Joshua Lynn Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; and Al Schmutzer, Jr., District Attorney General Pro Tempore, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Joshua Lynn Parker, was convicted by a Cocke County Circuit Court jury of second degree murder, a Class A felony, and attempted rape, a Class C felony. See T.C.A. sections 39-13-210 (1997) (amended 2006) (second degree murder); 39-12-101 (2006) (criminal attempt); 39-13-503 (2006) (rape). The Defendant was sentenced to serve thirty-five years years at 100 percent for second degree murder conviction and eight years at thirty-five percent for attempted rape conviction. The sentences were imposed to run consecutively. On appeal, the Defendant argues that (1) the evidence was legally insufficient to support his convictions; (2) the admission of hearsay statements by the victim violated his Confrontation Clause rights; and (3) testimony regarding his service on the "can crew," a work group of jail inmates, prejudiced him at his trial. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/parkerj_092210.pdf

WITT dissenting and concurring
http://www.tba2.org/tba_files/TCCA/2010/parkerj_DISS_092210.pdf


STATE OF TENNESSEE v. JOE MICHAEL TURNER

Court: TCCA

Attorneys:

Albert J. Newman, Jr. (on appeal) and Mitchell Harper (at trial), Knoxville, Tennessee, for the appellant, Joe Michael Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Joe Michael Turner, was convicted by a Knox County Criminal Court Jury of two counts of aggravated rape, one count of especially aggravated kidnapping, three counts of aggravated kidnapping, and one count of aggravated assault. The trial court imposed an effective sentence of one hundred years in the Tennessee Department of Correction. On appeal, the appellant challenges the sentences imposed by the trial court. Upon review, we conclude that the trial court should have merged the kidnapping convictions. Therefore, the judgments of conviction for the especially aggravated kidnapping and the aggravated kidnappings are vacated and the case is remanded for entry of a judgment of especially aggravated kidnapping that includes the merged aggravated kidnapping convictions. The judgments of the trial court are affirmed in all other respects.

http://www.tba2.org/tba_files/TCCA/2010/turnerj_092210.pdf


TODAY'S NEWS

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Legal News
Tennessee BPR moving offices
The Tennessee Board of Professional Responsibility is moving to 10 Cadillac Drive, Suite 220, Brentwood, TN 37027. During the move -- from the close of business, Wednesday, Sept. 29, until 8 a.m. CDT, Wednesday, Oct. 6 -- telephones, fax machines and computer networks will be down. Telephone and fax numbers, along with email addresses, all will remain the same at the new location.

Pro Bono Program recognized by non-profit center
Nashville's Pro Bono Program last night received The Frist Foundation Award of Achievement for Team Building at the Center for Nonprofit Management's Salute to Excellence. The program, a joint venture of the Nashville Bar Association and Legal Aid Society, was recognized for its efforts to meet the growing need for civil legal assistance. Efforts included work with community partners such as Habitat for Humanity, Catholic Charities, Room in the Inn, FiftyForward and St. Luke's Community Center; work with in-house corporate counsel; targeted training for lawyers in unemployment benefits, debt collection, bankruptcy, adoption and wills; and improved processes for individual referrals through law firms. The Frist Foundation presented the program an award of $20,000.
See a photo from the event on TBAConnect
Hawkins assistant DA resigns
Longtime Hawkins County Assistant Attorney General Doug Godbee has resigned over accusations that he solicited sexual favors from a female defendant. District Attorney General Berkeley Bell said he requested the resignation after the unnamed accuser presented him with text and voicemail messages from Godbee. Bell also said he turned the case over to DA Russell Johnson of Kingston.
The News Sentinel has the story
Federal judge rejects state ballot-access rules
U.S. District Court Judge William Haynes has overturned Tennessee's ballot access law in a ruling that benefits minor parties. Haynes ruled that a 1972 law defining "statewide political party" is overly restrictive and violates free speech and association rights of minor party members. The plaintiffs in the case, the Libertarian, Constitution and Green parties, did not ask for injunctive relief so the ruling will not affect this year's elections. The groups applauded the ruling and pledged to work with the state legislature to craft a new law.
Learn more in the Nashville Post
DA's office gets DUI prosecutor grant
Tennessee's 17th Judicial District Attorney General's office has been awarded a highway safety grant of $156,558 to support a DUI prosecutor. The district covers Bedford, Lincoln, Marshall and Moore counties. The Elk Valley Times reports that state Sen. Bill Ketron, R-Murfreesboro, and Reps. George Fraley, D-Winchester, and Pat Marsh, R-Shelbyville, helped secure the funds.
Read more
Tony Alamo seeks new trial
Convicted evangelist Tony Alamo says the government failed to prove that he moved young girls across state lines for sex, and is asking for a new trial. The 76-year-old Alamo is serving a 175-year sentence after being convicted last year of 10 counts. Short of a new trial, Alamo's lawyer asked the 8th Circuit Court of Appeals to consider a new sentencing hearing, claiming the original judge was biased.
WMC-TV Memphis has this AP story
Justice Ginsburg talks about life balance, gender equality
In a series of podcasts produced by the American Bar Association Journal, U.S. Supreme Court Justice Ruth Bader Ginsburg talks about issues related to career, family and the role of women in the law. The first episode focuses on gender discrimination cases she handled as a lawyer and how views on equality have changed over the past 30 years. In the second episode Ginsburg talks about her legal advocacy, rise to the high court, marriage and the changes women have seen in law and parenthood.
Check out these and other podcasts from the ABA Journal
Court to hear Arizona immigration appeal
The 9th U.S. Circuit Court of Appeals in San Francisco says it will hear arguments Nov. 1 in Arizona's appeal of a ruling that put parts of its new immigration law on hold. State lawyers argue that the lower court erred in accepting speculation that the law could burden legal immigrants and in concluding that the federal government likely would prevail at trial.
Nashville News 2 has this AP story
Supreme Court Report
Court extends comment period, amends CLE rule
The Tennessee Supreme Court yesterday filed two orders. The
first order extends until Dec. 31 the comment period for a proposed mentoring program that would provide continuing legal education credit for participants. The
second order deletes Section 8.03 of Rule 21 and replaces it in its entirety. The revised rule now requires attorneys who attend out of state CLE programs, or other programs for which the sponsor does not report and pay the per-hour fee, to pay the fee at the time the hours are reported -- rather than at the end of the year as had been the case. Both actions were requested by the CLE Commission.

Court sets execution date, clarifies sequestration rules
The Tennessee Supreme Court today upheld three death sentences against David Lynn Jordan for the first-degree murders of his estranged wife and two others at a state Department of Transportation facility in Jackson in 2005, and set execution for Sept. 27, 2011. In the unanimous opinion, the court also addressed for the first time whether Tennessee's rule of witness sequestration applies to capital sentencing trials. The justices ruled that witnesses in the sentencing phase can be present at trial.
Read more about the decision
Court rejects insanity claim
The state Supreme Court today affirmed a trial court's judgment that Billy Ray Irick is competent to be executed. Irick, 51, was convicted of killing a 7-year-old Knox County girl more than two decades ago. In appealing to the high court, Irick made a last-ditch effort to block his pending execution by arguing he is too insane to be executed. The court's opinion and previous fillings in the case are available on the AOC's website.
Access documents here
Upcoming
Higgins investiture set for Thursday
Newly elected 30th Judicial District Circuit Court Judge Gina Higgins will be sworn into office tomorrow, Thursday, Sept. 23 at 4 p.m. at the Memphis City Council Chambers (125 N. Main St.). Retired Circuit Court Judge George H. Brown Jr. will perform the ceremony. A reception will follow.

Still time to register for 2010 Supreme Court dinner
The Fifth Annual Tennessee Supreme Court Historical Society Dinner will be held Oct. 5 at the Loews Vanderbilt Hotel, 2100 West End Ave. in Nashville. A cocktail reception will begin at 6 p.m. with dinner and program following at 7 p.m. This year, Governor Phil Bredesen will give the keynote address. Tickets are $135 per person or $1,350 for a table of 10. To reserve your spot, contact Joy Day at (615) 771-5008 or jday@sutter-law.com. Checks should be made payable to the Tennessee Supreme Court Historical Society (TSCHS) and mailed to Joy Day, 341 Cool Springs Blvd. Ste 430, Franklin, TN 37067.
Download a brochure of the event
Resources
App provides jargon guide
The Los Angeles based law firm of Latham & Watkins has developed a free smart phone application to help lawyers navigate slang used by financial professionals and government regulators in the banking and capital finance arenas. The U.S. Book of Jargon defines more than 750 Wall Street terms, slang phrases and other legal phrases. The product is available as a free download from the iTunes App Store and can be used on Apple's iPhone, iPod Touch and iPad devices.
Learn more on the firm's website
TBA Member Services
Fall issue of Tennessee Young Lawyer now available
The fall 2010 issue of the Tennessee Young Lawyer hit inboxes today. For those who missed it, the issue highlights last spring's public service projects and offers a preview of activities planned this fall for young lawyers across the state. The issue also includes a primer on mechanics' and materialmen's liens in Tennessee authored by Knoxville lawyer Mike Baisley, and spotlights TBA President Sam Elliott's civics initiative for the year -- the first-ever TBA YouTube Video Contest. Special thanks to TYL Editor Lee Bowles of Lewisburg and YLD Publications Chair Hanson Tipton of Knoxville for managing production of the newsletter.
Download the new issue here

 
 
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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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