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Monday, November 29, 2010

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State Supreme Court stays execution for West, 3 others

The Tennessee Supreme Court today issued an order staying the execution of Stephen Michael West, scheduled for Nov. 30, to allow the trial court to test the constitutionality of the state's new lethal injection procedure. West had been moved to "death watch." Pending the resolution of this issue, the court has also stayed the scheduled executions for Billy Ray Irick, Edmund Zagorski and Edward Jerome Harbison. West's lawyers, Stephen Alan Ferrell and Roger W. Dickson, had appealed to the state Supreme Court, the U.S. Supreme Court and the Sixth Circuit Court of Appeals. West has challenged Tennessee's three-drug execution protocol, saying it violates the constitutional ban on cruel and unusual punishment.

An editorial in the Tennessean Sunday had urged the court to stop the executions, proposing that it let the state commission on the death penalty "further its study of whether Tennessee's execution system works at all."

See related documents on the AOC web site

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.

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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.

DAWN BROWN ET AL. v. TENNESSEE TITLE LOANS, INC.

Court: TSC

Attorneys:

J. Bartlett Quinn, Stephen D. Barham, and Justin L. Furrow, Chattanooga, Tennessee, for the appellant, Tennessee Title Loans, Inc.

James R. Kennamer, Chattanooga, Tennessee, for the appellees, Dawn Brown, Anne Devries, Carly Hahn, and Greg Walton.

Judge: CLARK

We granted this interlocutory appeal to answer a single question of first impression: whether the Tennessee Title Pledge Act, Tenn. Code Ann. sections 45-15-101 to -120 (2000), permits a private right of action on behalf of pledgors against title pledge lenders who allegedly charged excessive interest and prohibited fees. The trial court granted the defendant's motion to dismiss plaintiffs' Title Pledge Act allegations for failure to state a claim, and the Court of Appeals reversed. We hold that the Title Pledge Act does not expressly create an individual private right of action, and plaintiffs have not carried their burden of establishing that the legislature intended to imply such a right. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

http://www.tba2.org/tba_files/TSC/2010/brownd_112910.pdf

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_112910.pdf

TOM AGNEW v. MERITAN, ET AL.

Court: TCA

Attorneys:

Tom Agnew, Kingsport, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solictor General, and Lindsey O. Appiah, Assistant Attorney General, Nashville, Tennessee, for the appellee Tennessee Department of Labor and Workforce Development.

Judge: MCCLARTY

In this matter, the plaintiff appeals the decision of the Board of Review of the Tennessee Department of Labor and Workforce Development that he is disqualified from receiving unemployment compensation benefits pursuant to Tenn. Code Ann. section 50-7-301, as a result of his failure to establish that he had covered wages not provided by an unemployment workrelief program financed by a federal agency under Tenn. Code Ann. section 50-7-207(c)(5)(G). The trial court upheld the decision of the Board of Review. We affirm.

http://www.tba2.org/tba_files/TCA/2010/agnewt_112910.pdf

IN RE: KIERSTEN CIERRA BURCHETTE

Court: TCA

Attorneys:

Scott Justice, Jefferson City, Tennessee, for the Appellant, Carey A. Bible.

Rebecca D. Slone, Dandridge, Tennessee, for the Appellee, Chadwick J. Burchette.

Judge: SWINEY

This lawsuit involves whether custody of Kiersten Cierra Burchette (the "Child") should be changed from Carey A. Bible ("Mother") to Chadwick J. Burchette ("Father"). Father filed an emergency petition seeking custody. Father claimed, among other things, that the Child was being sexually abused by Mother's boyfriend. Although the emergency petition eventually was dismissed, the Juvenile Court did designate Father as the Child's primary residential parent. The Juvenile Court, however, specifically reserved ruling on who should pay certain medical expenses as well as a bill for the deposition of Father's private investigator. The Juvenile Court also reserved ruling on all child support issues. Mother appeals. We dismiss this appeal for lack of a final judgment.

http://www.tba2.org/tba_files/TCA/2010/burchettek_112910.pdf

RICHARD L. HOLLOW, TRUSTEE, et al., v. MICHAEL L. INGRAM, et al.

Court: TCA

Attorneys:

David E. Fielder, P. Edward Pratt and Melissa Loney Stevens, Knoxville, Tennessee, for appellants Bryan E. Testerman and William Ted Phillips, Jr., and Lewis S. Howard, Jr., Knoxville, Tennessee, for the appellant, Scott W. Davis.

Joseph J. Levitt, Jr., and Jason T. Murphy, Knoxville, Tennessee, for the appellee, Patrick J. Schaad, Trustee, and E. Jerome Milson, Knoxville, Tennessee, for the appellees, Richard L. Hollow, Trustee, Kent W. Ingram, David L. Ingram, and Albert J. Ingram.

Judge: FRANKS

The parties, owners of a tract of land, ultimately agreed to the sale of the property by a Special Master appointed by the Court. The sale was held and the Master ultimately reported the purchase and asked that the sale be confirmed. Before the Court acted on the Master's Report, the plaintiff moved for a dismissal pursuant to Tenn. R. Civ. P. Rule 41, which the Trial Court granted and dismissed the case. On appeal, we hold that the Trial Court was required to act on the Master's Report before entertaining any motion to dismiss the case, and reinstate the action and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/hollowr_112910.pdf

CHRIS LAWRENCE v. LEIGH ANN LAWRENCE

Court: TCA

Attorneys:

W. Andrew Fox, Knoxville, Tennessee, for the appellant, Chris Lawrence.

R. Deno Cole, Knoxville, Tennessee, for the appellee, Leigh Ann Lawrence.

Judge: SUSANO

Leigh Ann Lawrence ("Mother") secretly tape recorded her 2 1/2-year-old daughter's telephone conversation with the child's father, Chris Lawrence ("Father"), during the course of a divorce and custody dispute. After the divorce was concluded, Father filed a complaint against Mother seeking damages for, among other things, wiretapping in violation of Tenn. Code Ann. section 39-13-601 (2006). Father filed a motion for partial summary judgment which the trial court denied upon finding that "[n]o set of facts would create liability under section 39-13-601 et seq. for [Mother's] interception of [Father's] communication with his daughter." The court then entered partial summary judgment in favor of Mother and certified the judgment as final. Father appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/lawrencec_112910.pdf

NEW SOUTH FEDERAL SAVINGS BANK v. BRENDA PUGH

Court: TCA

Attorneys:

William L. Gribble, Maryville, Tennessee, for the appellant, Brenda Pugh.

Ronald G. Steen, Jr. and Corinne E. Martin, Nashville, Tennessee, for the appellee, New South Federal Savings Bank.

Judge: SUSANO

This is an appeal of two unlawful detainer actions consolidated below. New South Federal Savings Bank ("New South") filed separate detainer warrants against Brenda Pugh seeking possession of two non-adjacent properties conveyed to New South at a foreclosure sale instituted after Pugh defaulted on a loan secured by a deed of trust on the properties. The general sessions court dismissed the actions. On appeal, the trial court rejected Pugh's challenge to the foreclosure. The court held in favor of New South and ordered that it be restored to possession of the properties. Pugh appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/newsouth_112910.pdf

RAY BELL CONSTRUCTION CO., INC. v. STATE OF TENNESSEE, TENNESSEE DEPARTMENT OF TRANSPORTATION
With Dissenting Opinion

Court: TCA

Attorneys:

Robert Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and Melissa Moreau, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee.

Gregory L. Cashion, Matthew J. DeVries, and Craig N. Mangum, Nashville, Tennessee, for the appellee, Ray Bell Construction Company, Inc.

Judge: MCCLARTY

This case concerns an alleged breach of contract involving the incentive clause of a Tennessee Department of Transportation ("TDOT") road construction contract. Before the Claims Commission, TDOT argued that the contract language was clear in prohibiting an extension, alteration, or amendment of the incentive clause. The Claims Commission agreed with the position of Ray Bell Construction Company ("RBCC") that it was entitled to a modification of the incentive provision. To so find, the Commission held that "a definite latent ambiguity exists for which parol evidence not only is admissible, but frankly, absolutely necessary in both understanding and deciding the issues in this case." TDOT has appealed. We affirm the decision of the Claims Commission.

http://www.tba2.org/tba_files/TCA/2010/raybell_112910.pdf

SWINEY dissenting
http://www.tba2.org/tba_files/TCA/2010/raybell_DIS_112910.pdf

MONYA JILL RAYANNE ROBERTS v. JAMES KEVIN ROBERTS

Court: TCA

Attorneys:

Sarah C. Easter, Knoxville, Tennessee, for the appellant, James Kevin Roberts.

Richard T. Wallace, Sevierville, Tennessee, for the appellee, Monya Jill Rayanne Roberts.

Judge: SUSANO

On appeal, James Kevin Roberts ("Husband") challenges the trial court's refusal to grant a continuance to allow his fifth attorney time to prepare for trial, the trial court's refusal to exclude an expert witness called by Monya Jill Rayanne Roberts ("Wife"), the division of the marital estate, the amount of child support and the award of discretionary costs to Wife. Wife challenges the trial court's denial of her request for "supplemental" attorney"s fees. We affirm.

http://www.tba2.org/tba_files/TCA/2010/robertsm_112910.pdf

IN RE ESTATE OF BILLY JOE WALLS

Court: TCA

Attorneys:

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Patricia Pemberton.

Robert W. Knolton, Oak Ridge, Tennessee, for the appellee, Barbara Brown.

Judge: SUSANO

This appeal arises out of a challenge to the trial court's subject matter jurisdiction. Upon the death of the testator, Billy Joe Walls, wills executed by him were submitted for probate in different states. Patricia Pemberton was appointed personal representative under a 2009 will admitted to probate in the trial court. Barbara Brown is the appointed personal representative under a 2007 will admitted to probate in the Circuit Court of Morgan County, Alabama. Brown initiated these proceedings by filing a complaint in the trial court to contest the will submitted by Pemberton. Subsequently, Brown sought summary judgment, asserting that the trial court lacked subject matter jurisdiction. Alternatively, Brown moved to transfer the case to Alabama under the doctrine of forum non conveniens. The trial court dismissed Pemberton's petition on both grounds. She appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/wallsb_112910.pdf

STATE OF TENNESSEE v. WILLIAM ALEXANDER BEASLEY, IV

Court: TCCA

Attorneys:

G. Frank Lannon and Melanie R. Bean, Lebanon, Tennessee, for the Appellant, William Alexander Beasley, IV.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia S. Lee, Assistant Attorney General; Tom P. Thompson, District Attorney General; Howard Chambers, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, William Alexander Beasley, IV, pled guilty to aggravated assault, a Class C felony, with the trial court to determine the length and manner of service of his sentence. After a hearing, the trial court ordered the Defendant to serve six years in the Tennessee Department of Correction. The Defendant appeals, contending the trial court: (1) erred when it denied his request for an alternative sentence; and (2) failed to properly apply pre-trial jail credit to his sentence. After a thorough review of the record and applicable law, we affirm the sentence of incarceration, but we remand for the entry of a corrected judgment that includes jail credits of 205 days.

http://www.tba2.org/tba_files/TCCA/2010/beasleyw_112910.pdf

WILLIAM COLLIER v. CHERRY LINDAMOOD, WARDEN

Court: TCCA

Attorneys:

William Collier, Clifton, Tennessee, pro se.

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

Judge: WITT

The petitioner, William Collier, appeals from the summary dismissal of his petition for writ of habeas corpus wherein he challenged his November 2008 convictions of possession of heroin with intent to sell or deliver within 1000 feet of a school. In this appeal, the petitioner claims entitlement to habeas corpus relief via a sentence illegality. Discerning no error, we affirm the habeas corpus court's summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2010/collierw_112910.pdf

STATE OF TENNESSEE v. JAMES WALTER GROOMS

Court: TCCA

Attorneys:

Ethel P. Rhodes, Assistant Public Defender, Morristown, Tennessee, for the appellant, James Walter Grooms.

Robert E. Cooper, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Kim Morrison, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, James Walter Grooms, appeals his Hamblen County Criminal Court jury conviction of telephone harassment, a Class A misdemeanor, for which he received a sentence of 11 months and 29 days' incarceration suspended after the service of 10 days in jail. He argues that the evidence is insufficient to support his conviction and that the trial court imposed an excessive sentence. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/groomsj_112910.pdf

STATE OF TENNESSEE v. EMMETT LEJUAN HARVELL AND BARDELL NELSON JOSEPH, A.K.A. SHAWN ANGLIN, A.K.A. BILLONTAE SMONTEZ ADAMS

Court: TCCA

Attorneys:

Richard McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Emmett Lejuan Harvell.

Dawn Deaner, District Public Defender, and Emma Rae Tennent (on appeal), J. Michael Engle, and Kristin Neff (at trial), Assistant District Public Defenders, for the appellant, Bardell Nelson Joseph.

Robert E. Cooper, Jr., Attorney General; Deshea Dulany Faughn, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendants, Emmett Lejuan Harvell and Bardell Nelson Joseph, were both convicted of tampering with evidence, a Class D felony, and simple possession of a Schedule VI controlled substance, a Class E felony. In addition, Defendant Joseph was convicted of possession of a handgun by a convicted felon, a Class E felony. On appeal, both defendants argue that the evidence was insufficient to support their convictions, and Defendant Joseph argues that he was sentenced improperly. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/harvelle_112910.pdf

STATE OF TENNESSEE v. JOHN AYRES HEWITT

Court: TCCA

Attorneys:

John E. Eldridge (on appeal) and Donald R. Coffey (at trial), Knoxville, Tennessee, for the appellant, John Ayers Hewitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Sarah Winningham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

Appellant John Ayres Hewitt was convicted of driving under the influence (DUI), third offense and several other offenses stemming from a traffic stop and ensuing blood alcohol test. He was given an effective sentence of 11 months and 29 days, which was to be suspended after 150 days in custody. On appeal, Appellant contends that the arresting officer lacked probable cause to initiate the traffic stop. Appellant cites the videotape from the officer's dashboard camera as evidence that he did not engage in any suspicious driving and as a basis for discrediting the officer's testimony. Based upon our review, we see no error in the trial court's denial of Appellant's motion to suppress. However, we have determined that there are errors in the sentences noted on the judgments in counts ten and eleven. We therefore must remand the case to the trial court to address those judgments. The judgments are affirmed in all other respects.

http://www.tba2.org/tba_files/TCCA/2010/hewittj_112910.pdf

JAMES L. JOHNSON v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

James L. Johnson, Pro Se., Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Joe Crumley, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, James Lee Johnson, appeals from the dismissal of a petition for writ of habeas corpus in which he argued that the trial court erred by failing to merge his three convictions and that the sole remaining conviction had expired. After a review, we affirm the dismissal of the petition for writ of habeas corpus because Petitioner has failed to establish that his judgments were void or that his sentences have expired. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/johnsonj_112910.pdf

STATE OF TENNESSEE v. THOMAS DAVID JOHNSON

Court: TCCA

Attorneys:

Howell G. Clements and Paul Cross, Monteagle, Tennessee, for the Appellant, Thomas David Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Shelton and David McGovern, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Marion County jury convicted the Defendant, Thomas David Johnson, of attempted voluntary manslaughter, and the trial court sentenced him to three years, to be suspended after the service of sixty days in jail. On appeal, the Defendant contends: (1) that the trial court erred when it denied his motion for judgment of acquittal; (2) that the trial court erred when it denied the Defendant's request for judicial diversion; and (3) that the trial court erred when it denied him full probation. After a thorough review of the law and relevant authorities, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/johnsont_112910.pdf

STATE OF TENNESSEE v. CONNELL NORTON

Court: TCCA

Attorneys:

James O. Martin, Nashville, Tennessee (on appeal) and Richard McGee, Nashville, Tennessee (on appeal and at plea hearing), for the Appellant, Connell Norton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; William Copeland, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Franklin County grand jury indicted the Defendant, Connell Norton, for one count of possession of a Schedule VI controlled substance with the intent to sell or deliver and one count of possession of drug paraphernalia. The Defendant moved to suppress the evidence against him, which was seized during a search of his home following a warrantless entry. The trial court denied the motion to suppress. The Defendant pled guilty to possession of a Schedule VI controlled substance with the intent to sell or deliver, but reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the search of his home was lawful. Because the trial court failed to state in the record the factual findings and conclusions of law supporting the denial of the motion to suppress, we are precluded from reviewing the issue before us. Therefore, we remand the case for the trial court to enter an order stating its factual findings and conclusions of law, and for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/nortonc_112910.pdf

STATE OF TENNESSEE v. BRANDON D. THOMAS

Court: TCCA

Attorneys:

Dan T. Bryant, District Public Defender; and Trenena G. Wilcher, Assistant District Public Defender, McMinnville, Tennessee, for the appellant, Brandon D. Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Thomas Miner, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Appellant, Brandon D. Thomas, appeals his conviction for simple possession of marijuana after a jury trial in Warren County. Appellant received a sentence of eleven months and twenty-nine days for the conviction. On appeal, the sufficiency of the evidence is challenged. After a thorough review of the record, we determine that the evidence is sufficient to support the conviction. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/thomasb_112910.pdf

TODAY'S NEWS

Court of the Judiciary
Legal News
U.S. Supreme Court
Your Practice
TBA Member Services

Court of the Judiciary

Russell reprimanded for case that took nearly 11 years

The Court of Judiciary today filed a public reprimand to Judge F. Lee Russell for excessive delay in a bench trial, a violation of Canon 313(8), which requires a judge "to dispose of all matters promptly, efficiently, and fairly." Judge Russell tried the case on Nov. 12, 1999, and entered a final order on Oct. 12, 2010 -- 10 years and 11 months after the bench trial.

Download the order

Legal News

More help on the way for pro se litigants

Civil court records show the number of self-represented cases has increased from 925 in 2006 to 1,571 this year, according to Davidson County Circuit Court Clerk Richard Rooker. And although there are no records on how they do, the results are often not favorable to the untrained. Margaret Behm, who chairs the Supreme Court's Access to Justice Commission, said it is taking steps to make it less expensive to get legal help from a professional. She says soon there will be more incentives for lawyers and law students to take on cases for free or at a reduced cost. Plain language forms for less-complicated legal matters also are forthcoming, she said, and librarians and court clerks will be trained to guide people to legal resources.

The Tennessean has this story

Goldin denies former MLGW exec's motion to dismiss

Former Memphis Light, Gas and Water Division president and CEO Joseph Lee is still at the center of legal wrangling over a six-figure settlement the city of Memphis paid him last year. Shelby County Chancellor Arnold Goldin ruled last week that "sufficient allegations have been made" by the city, and Lee's motion to dismiss was denied.

The Memphis Daily News reports

Nashville lawyer profiled

Stites & Harbison lawyer Alexandra McKay is profiled in

The Tennessean

U.S. Supreme Court

Stevens' new role in retirement more public, opinionated

Justice John Paul Stevens told 60 Minutes this week that he opposed the Supreme Court decision that resulted in an election win for George W. Bush and the more recent Citizens United decision, which overturned laws that restricted corporate campaign spending. Stevens changed his mind about the death penalty in 2008, when he concluded it is unconstitutional, saying that the Supreme Court had dismantled death-penalty safeguards, creating a system that is "shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria," a New York Times article says.

ABAJournal.com connects you

Your Practice

New app offers information on Mexican legal system

Need to know about Mexican law, but don't want to spring for the cost of a Mexican legal reference book? A new iPad, iPhone app from Thomson Reuters could be your answer. It runs $29.95 and includes 2,300 legal terms, making it a quick reference guide for judges and legal professionals with clients with business in Mexico, as well as law students and faculty studying Mexican law.

TBA Member Services

Program offers savings on auto insurance

See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734

or get an online rate quote

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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.