Procedural, evidence rules amendments published

A proposal to permit declarations under penalty of perjury in lieu of sworn affidavits and a provision addressing the treatment of orders which preserve certified questions of law following a criminal plea agreement -- both proposals made by the Tennessee Bar Association -- are among more than a dozen amendments to the Rules of Appellate, Civil and Criminal procedure and Rules of Evidence published today by the Tennessee Supreme Court. The court invites public comment on the proposals through Nov. 19. Various sections of the TBA will review the amendments for consideration of filing any comments.

Some of the changes proposed by the court's Advisory Commission include:

-- Incorporating the statutory definition of "legal holiday" into the Appellate, Civil and Criminal procedure rules.

-- Amending TRCP 3 and 4 to permit plaintiffs to intentionally delay service of a summons for up to 30 days following the filing of a complaint. After 30 days from the filing of a complaint, a good faith effort to effect service would be required. The rule expressly would provide that intentionally delaying service for more than 30 days from the original filing of the complaint would be ineffective for purposes of tolling the statute.

-- Adding a new provision to TRCP 26 requiring that a party who calls an expert witness disclose the witness's qualifications, cases in which the witness has testified, and a statement of compensation paid for the testimony.

-- Amending TRCP 45 to require motions to quash a subpoena be made within 14 days after the subpoena is served or before the time specified in the subpoena for compliance.

-- Adding a new TRCP 72, proposed in response to a TBA recommendation, that would permit statements signed with "I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct" to be filed in lieu of an affidavit or sworn declaration.

-- Adding a new subdivision (b)(J) to Tennessee Rule of Criminal Procedure 11 setting forth a requirement that as part of a plea agreement a defendant must be advised of the effect a plea would have on his immigration or naturalization status. This provision comes as a result of the U.S. Supreme Court's decision in Padilla v. Kentucky.

-- Amending Rule of Evidence 611 to permit a lawyer to ask leading questions when calling a witness "who is identified with an adverse party." This is the only change to the Rules of Evidence.

Download a complete copy of the proposed amendments

TODAY'S OPINIONS
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PAUL WAYNE DOUTHIT v. GRIFFIN INDUSTRIES, INC. ET AL.

Court: TWCA

Attorneys:

Desiree I. Hill and M. Neal Cope, Nashville, Tennessee, for the appellants, Griffin Industries, Inc. and Liberty Mutual Group.

Richard T. Matthews, Columbia, Tennessee, for the appellee, Paul Wayne Douthit.

Judge: HARRIS

The employee, Paul Douthit, sustained a compensable injury to his left knee, which resulted in an anatomical impairment of 2% of the leg. He was able to return to his prior employment, and his claim was settled for 3% permanent partial disability to the leg, pursuant to Tennessee Code Annotated section 50-6-241(d)(1)(A). He subsequently had a second injury. A committee composed of his peers determined that both injuries were preventable, which led to his termination for violation of a company rule. He filed this petition for reconsideration in accordance with Tennessee Code Annotated section 50-6-241(d)(1)(B)(ii). The trial court found that Mr. Douthit's termination was not the result of intentional misconduct, that his conduct did not rise to the level of ordinary negligence, and that he was eligible for reconsideration. The trial court awarded an additional 9% permanent partial disability to the leg. The employer, Griffin Industries, has appealed, contending that "intentional misconduct" is an incorrect standard, that the findings of the peer committee are not reviewable, and that the trial court, therefore, erred in reconsidering the settlement. We agree that the "intentional misconduct" standard is not in conformity with existing case law, but affirm the trial court's determination that the employee was eligible to seek reconsideration.

http://www.tba2.org/tba_files/TSC_WCP/2010/douthitp_090810.pdf


MELVIN HILL v. WHIRLPOOL CORPORATION

Court: TWCA

Attorneys:

David T. Hooper, Brentwood, Tennessee, for the appellant, Whirlpool Corporation.

Monica Mayo-Grinder, Nashville, Tennessee, for the appellee, Melvin Hill.

Judge: KURTZ

After a plant closure, employee sought reconsideration of a prior workers' compensation settlement for right shoulder and elbow injuries in accordance with Tenn. Code Ann. section 50-6-241(a)(2) (2008). Employer denied that he was entitled to reconsideration of the elbow injury because it was a separate injury to a scheduled member. Id. section 50-6-241(a)(1). The trial court found that the two injuries were concurrent and that employee was entitled to receive reconsideration as to both. It further found that employee had proven three of the four factors set out in Tenn. Code Ann. section 50-6-242(a) (2008) by clear and convincing evidence and was therefore not limited by the six times impairment cap. The trial court awarded 57.5% permanent partial disability to the body as a whole. On appeal, employer contends that the trial court erred by finding the injuries to be concurrent and by finding that employee had satisfied the requirements of Tenn. Code Ann. section 50-6-242(a). We affirm the holding that the injuries were concurrent but find that employee did not satisfy his burden of proof under Tenn. Code Ann. section 50-6-242(a). We modify the judgment accordingly.

http://www.tba2.org/tba_files/TSC_WCP/2010/hillm_090810.pdf


STATE OF TENNESSEE, EX REL. COMMONWEALTH OF KENTUCKY v. STEVEN FARMER

Court: TCA

Attorneys:

Steven Farmer, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Warren Jasper, Senior Counsel, for the appellee, State of Tennessee ex rel. Commonwealth of Kentucky.

Judge: KIRBY

This appeal involves the registration of a foreign order. In 1991, the parents of a minor child were divorced in Texas, and the father was ordered to pay child support. Soon thereafter, the mother moved with the child to Kentucky and began receiving public assistance on behalf of the child. Because the mother was receiving public assistance, the father's child support obligation was assigned to the Commonwealth of Kentucky. In 2006, the father moved to Tennessee. Thereafter, Kentucky registered the Texas child support order in Tennessee and sought to enforce it. The father contested the registration of the child support order. The trial court rejected the father's challenges and ordered that the child support order be registered for enforcement in Tennessee. The father now appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/farmers_090810.pdf


GLYNDA SHEALY v. CHUONG C. WILLIAMS, ET AL.

Court: TCA

Attorneys:

Kent L. Booher, Lenoir City, Tennessee, for the appellant, Glynda Shealy.

Mary K. Longworth, Loudon, Tennessee, for the appellees, Chuong C. Williams and Nickie Ann Dunker.

Judge: MCCLARTY

This appeal involves a dispute between adjacent landowners over boundary lines with respect to a fence and ownership of property constituting a substantial portion of a concrete driveway to one neighbor's house. Glynda Shealy ("Plaintiff") sued Chuong C. Williams and Nickie Ann Dunker ("Defendants") for trespass and malicious encroachment, claiming that Defendants' concrete driveway and backyard fence encroached upon Plaintiff's adjoining properties. In response, both Defendants asserted a defense of adverse possession. Upon conclusion of a bench trial, the trial court found, inter alia, that the concrete driveway intruded on Plaintiff's property but that Defendant Dunker had a prescriptive easement in a gravel driveway for ingress and egress. Additionally, the trial court ordered Defendant Dunker to remove her backyard fence to the legally established boundary lines and awarded Plaintiff $50 in nominal damages. After the trial court dismissed Defendant Williams from this lawsuit, Defendant Dunker filed a motion to amend her answer to add a defensive claim of easement by prescription. The trial court granted the motion. Plaintiff appealed. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2010/shealyg_090810.pdf


STATE OF TENNESSEE v. EDWARD LEE ADKINS

Court: TCCA

Attorneys:

Norris A. Kessler, III, for the appellant, Edward Lee Adkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; J. Michael Taylor, District Attorney General; Steven M. Blount and William Copeland, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

On the evening of May 25, 2007, Appellant, Edward Lee Adkins, was arrested at the hospital for driving under the influence ("DUI"). This arrest occurred after Trooper Brandon Hunt was called to the scene of an accident where he found a truck registered to Appellant upside down in a ditch. When Trooper Hunt arrived at the hospital, he smelled alcohol and ordered a blood alcohol test. Appellant's blood alcohol level was found to be 0.19 percent by the Tennessee Bureau of Investigation ("TBI") Crime Laboratory. The Franklin County Grand Jury indicted Appellant for two counts of DUI, one count of DUI, third offense, one count of reckless driving, and one count of violation of the registration law. After a jury trial, Appellant was convicted of both counts of DUI, reckless driving, and violation of the registration law. The trial court held a bench trial and determined that Appellant was guilty of DUI, third offense. Appellant was sentenced to an effective sentence of eleven months and twenty-nine days, with one hundred and twenty days to be served in jail and the remainder to be served on probation. On appeal, Appellant argues that the trial court erred in admitting the two convictions used to support his conviction for DUI, third offense because they were not self-authenticating. Appellant also argues that the evidence was insufficient to support his convictions for DUI, third offense and reckless driving. After a thorough review of the record, we conclude that both issues are without merit. Therefore, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/adkinse_090810.pdf


STATE OF TENNESSEE v. DEREK ALTON BADGER

Court: TCCA

Attorneys:

Jack Dearing, Assistant Public Defender, (at trial); and Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, (on appeal) for the appellant, Derek Alton Badger.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Derek Alton Badger, was convicted of one count of aggravated sexual battery, a Class B felony. See Tenn. Code Ann. section 39-13-504(b). In this appeal, he contends that the State presented evidence insufficient to convict him. After our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/badgerd_090810.pdf


STATE OF TENNESSEE v. NADER DAQQAQ

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Nader Daqqaq.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James G. Woodall, District Attorney General; and Anna Banks Cash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Nader Daqqaq, was found guilty of driving under the influence ("DUI"). The trial court sentenced Defendant as a Range I, standard offender, to eleven months, twenty-nine days. The trial court ordered Defendant to serve nine months in confinement before being eligible for work release or trusty status. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/daqqaqn_090810.pdf


STATE OF TENNESSEE v. CHARLES HAYWOOD

Court: TCCA

Attorneys:

Jennifer D. Fitzgerald, Memphis, Tennessee, for the Defendant-Appellant, Charles Haywood.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa S. McCusker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Charles Haywood, was indicted by the Shelby County Grand Jury for one count of especially aggravated kidnapping, one count of attempted second degree murder, one count of aggravated robbery by use or display of a deadly weapon, and one count of possessing a firearm in the commission of attempted second degree murder. He entered an open guilty plea to one count of aggravated robbery, a Class B felony, as a Range I, standard offender, and the Shelby County Criminal Court sentenced him to twelve years of confinement in the Tennessee Department of Correction. On appeal, Haywood argues that his sentence is excessive. Upon review, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2010/haywoodc_090810.pdf


WALTER HIMES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Andre B. Mathis, Memphis, Tennessee, for the appellant, Walter Himes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Walter Himes, appeals the post-conviction court's dismissal of his post-conviction petition in which Petitioner alleged that his trial counsel rendered ineffective assistance of counsel, and that his guilty pleas were not voluntarily or knowingly entered. After a thorough review we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/himesw_090810.pdf


STATE OF TENNESSEE v. PATRICK POPE

Court: TCCA

Attorneys:

Rhonda Hooks-Kendricks, Columbia, Tennessee, for the appellant, Patrick Pope.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Mike Bottoms, District Attorney General, and Daniel J. Runde, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Patrick Pope, was indicted by the Maury County Grand Jury in March of 2007 for aggravated burglary, aggravated assault, aggravated robbery, and aggravated kidnapping. After a jury trial, Appellant was found guilty on all counts. Appellant was sentenced to an effective sentence of eleven years. After a hearing on the motion for new trial, the trial court entered a judgment of acquittal on the conviction for aggravated kidnapping. The trial court denied the remainder of the motion for new trial, and Appellant has appealed. On appeal, the following issues are presented for our review: (1) whether the evidence was sufficient to support the convictions; (2) whether the accomplice testimony was adequately corroborated; (3) whether the trial court properly sentenced Appellant. After a review of the record, we determine that the accomplice testimony was adequately corroborated by direct and circumstantial evidence, that the evidence was sufficient to support the convictions, and that the trial court properly sentenced Appellant to an effective sentence of eleven years. Accordingly, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/popep_090810.pdf


STATE OF TENNESSEE v. DAVID LYNN SISK
With Dissenting and Concurring Opinion


Court: TCCA

Attorneys:

Wesley D. Stone, Knoxville, Tennessee (on appeal), and Brad Davidson, Newport, Tennessee (at trial), for the appellant, David Lynn Sisk.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James B. Dunn, District Attorney General; and Joe Crumley and Brownlow Marsh, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Cocke County Circuit Court jury convicted the defendant, David Lynn Sisk, of aggravated burglary, theft of property valued at more than $1,000 but less than $10,000, and theft of property valued at more than $10,000 but less than $60,000. The trial court determined that the defendant was a career offender and imposed a total effective sentence of 27 years' incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence, claims that the indictments charging theft are multiplicitous, argues that the trial court erred in its jury charge, and contends that the trial court erroneously declared him a career offender. Because the evidence was insufficient to support the defendant's convictions, we reverse the judgments of the trial court and dismiss the charges in this case. To facilitate any further appellate review, we also conclude that the theft indictments were impermissibly multiplicitous, necessitating the dismissal of the defendant's conviction of theft of property valued at more than $1,000 but less than $10,000, and that the trial court erroneously classified the defendant as a career offender.

http://www.tba2.org/tba_files/TCCA/2010/siskd_090810.pdf

THOMAS concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCCA/2010/siskd_DISS_090810.pdf


STATE OF TENNESSEE v. STEPHEN JAMES THOMPSON

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellant, State of Tennessee.

J. Russell Parkes and Charles M. Molder, Columbia, Tennessee for the appellee, Stephen James Thompson.

Judge: SMITH

The State appeals the trial court's dismissal of the charge of driving under the influence ("DUI") against Appellee, Stephen James Thompson. The trial court dismissed the charge after finding that the statute of limitations had expired before the Maury County Grand Jury indicted Appellee. On appeal, we determine that the trial court improperly dismissed the charges because Appellee waived his preliminary hearing and agreed to allow the case to be bound over to the grand jury prior to the expiration of the statute of limitations. Therefore, the judgment of the trial court is reversed and remanded for reinstatement of the indictment against Appellee for DUI.

http://www.tba2.org/tba_files/TCCA/2010/thompsons_090810.pdf


STATE OF TENNESSEE v. JOHN WAYNE WRIGHT

Court: TCCA

Attorneys:

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, John Wayne Wright.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, John Wayne Wright, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). Defendant entered a plea of guilty to possession of more than 0.5 ounces of marijuana with the intent to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Defendant to concurrent sentences of two years for his felony conviction and eleven months, twenty-nine days for his misdemeanor conviction. Both sentences were to be suspended and Defendant placed on probation after serving forty-five days in confinement. As a condition of his guilty pleas, Defendant properly reserved two certified questions of law concerning the stop and search of his vehicle and the subsequent search of his home. After a review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/wrightj_090810.pdf


TODAY'S NEWS

Legal News
Election 2010
Upcoming
TBA Member Services

Legal News
DOJ investigating fire at Murfreesboro mosque site
The U.S. Justice Department has confirmed it is investigating a fire that burned construction equipment at the site of a future mosque in Murfreesboro. According to the Associated Press, the department is investigating the case as a civil rights matter and possible hate crime. In addition, the FBI is offering a $20,000 reward for information identifying those responsible for the fire. The move comes as part of a four-state investigation into alleged anti-Muslim incidents.
The Daily News Journal reports
Tennessee gets $10M to fight foreclosures
Tennessee will get about $10.2 million in Neighborhood Stabilization Program grants as part of a U.S. Housing and Urban Development program designed to help states reverse effects of the current foreclosure crisis. State and local governments can use the funds to buy land and property; demolish or rehabilitate abandoned properties; and/or offer down payment and closing cost assistance to low- to moderate-income homebuyers.
The Memphis Business Journal has the story
Bredesen requests new federal disaster designation
Gov. Phil Bredesen today asked President Obama to declare 10 Tennessee counties federal disaster areas following flooding and damage to roads and bridges last month. The counties are Clay, Cocke, Hardin, Jackson, Macon, Overton, Pickett, Putnam, Smith and Wayne. If approved, the designation would provide local governments with financial assistance to repair and rebuild public infrastructure.
Read more on the governor's website
Book offers history, analysis of Tennessee's death penalty
A newly released book -- Tennessee's New Abolitionists: The Fight to End the Death Penalty in the Volunteer State -- is a collection of essays that covers the history of the state's anti-death penalty movement, commentary on the state's 1976 decision to reinstate capital punishment, and reflections from death row inmates and those who care for them. Among the authors is former Tennessee Supreme Court Justice Penny J. White, who was ousted on a yes/no vote in the political furor following her decision to retry a man who had been found guilty of raping and killing a 78-year-old woman. A Nashville Scene review of the book suggests the piece would be stronger if it included opposing views, but concludes it should be required reading for all Tennesseans.
Read the full review
Former law partners in bitter, high-profile fight
The break up of a Knoxville law firm is playing out in open court with allegations of thievery, financial trickery and secret trysts. Michael S. Pemberton has accused former law partner Charles Edward "Eddie" Daniel of embezzling as much as $600,000 from the firm and absconding with financial records. Daniel claims Pemberton tricked him out of $2 million in fees, loans and firm equity, and lied to him about an adulterous affair.
The News-Sentinel has more
Public service award nominations due Friday
Nominations for TBA Public Service Awards are due this Friday, Sept. 10. Lawyers may be nominated in three categories: the Ashley T. Wiltshire Public Service Attorney of the Year, which recognizes a public service lawyer who demonstrates dedication to the development and delivery of legal services to the poor; the Harris Gilbert Pro Bono Volunteer of the Year Award, which recognizes significant pro bono work by a private attorney; and the Law Student Volunteer Award, which recognizes a student who has provided dedicated and outstanding pro bono services during the past year.
Learn more or submit a nomination here
Election 2010
Judge invalidates mayoral recall effort
Circuit Court Judge Jeff Hollingsworth yesterday said a group trying to recall Chattanooga Mayor Ron Littlefield failed in its effort because it did not get the 15,000 signatures required by state law. The group came up short because it relied on the city charter, which requires just 9,000 signatures. The court also threw out signatures on pages that were not dated, a requirement under state law. Local election officials apparently told recall leaders it was not necessary to date every page.
Read more on Chattanoogan.com
AG, Election Commission interpret vacancy differently
The question of whether the position of Sevier County clerk will appear on the November ballot depends on who you believe. According to the attorney general and comptroller, the position isn't officially vacant until the county commission votes to accept the resignation of former clerk Joe Feener -- at which point it will be too late for the office to be listed on the ballot. The state Election Commission, however, has a different interpretation: the vacancy occurred as soon as Feener tendered his resignation. Under that view, which would send candidates scrambling, the office would be up for election this fall.
The Mountain Press looks at the two interpretations of the law
Upcoming
Belmont legal clinic set for October
The Tennessee Bar Association Sports & Entertainment Section is partnering with Volunteer Lawyers & Professionals for the Arts to present the 2nd Annual Belmont Legal Clinic. This pro bono clinic will provide counsel to Belmont University students regarding copyright, trademark, contract and general entertainment law issues. The clinic will run from 4:30 to 7:30 p.m. on Oct. 14, at the university as part of Celebrate Pro Bono Month. Participating attorneys will have the opportunity to assist students with legal issues and provide informal mentoring. Attorneys interested in participating should contact Austen Adams for more information.

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

 
 
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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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