ABA Ethics Panel Seeks Comments on UPL Issue

While finalizing resolutions to be presented to the American Bar Association (ABA) House of Delegates in August, the ABA Commission on Ethics 20/20 continues to grapple with the issue of how technology impacts the unauthorized practice of law. The panel is seeking input about how technology, which now allows lawyers to practice in a jurisdiction without physically being present, affects Rule 5.5 of the ABA Model Rules of Professional Conduct. Download a white paper on the issue or read more in the ABA Journal. Comments should be submitted to Natalie Vera at natalia.vera@americanbar.org no later than July 31. 

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
10 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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.


TN Court of Appeals

CITY OF CHATTANOOGA, TENNESSEE, ET AL. v. HARGREAVES ASSOCIATES, INC., ET AL.
With Dissenting Opinion

Court: TN Court of Appeals

Attorneys:

Michael A. McMahan, Valerie L. Malueg,, Sam D. Elliott, Wade K. Cannon, and David G. McDowell, Chattanooga, Tennessee, for the appellants, City of Chattanooga, Tennessee, and Chattanooga Downtown Redevelopment Corporation.

Marc H. Harwell and Benjamin T. Reese, Chattanooga, Tennessee, for the appellees, Hargreaves Associates, Inc., Continental Construction Co., The River City Co., NABCO Electric Co., Inc., Masonry Specialist Corp., Valley Crest Landscape Development, Inc., Hobbs Architectural Fountains, and Moffatt & Nichol, Inc.

Judge: MCCLARTY

The plaintiffs in this matter, the city and a redevelopment group, filed this action against the defendant entities involved in the design and construction of a large municipal project on the city’s waterfront. Also named as a defendant was the development manager for the project. The trial court granted summary judgment to the defendants on the basis that the plaintiffs’ lawsuit was barred by the applicable statute of limitations found in Tennessee Code Annotated section 28-3-105. The plaintiffs appeal. We affirm.


JANET CHARLENE HOOBERRY v. RONALD SCOTT HOOBERRY

Court: TN Court of Appeals

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant, Janet Charlene Hooberry.

Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee, Ronald Scott Hooberry.

Judge: CANTRELL

Wife filed a complaint against Husband seeking a legal separation or, in the alternative, an absolute divorce. Husband counter-claimed for a divorce. Both Wife and Husband alleged the other had engaged in marital misconduct. The trial court awarded Wife a legal separation for two years, ordered Husband to pay Wife $1,500 per month as alimony during that period, and divided the marital estate between the parties. The trial court refused Wife’s request for attorney’s fees. Wife appealed, claiming the trial court erred by failing to award her alimony in futuro, a larger portion of the marital estate, and her attorney’s fees. We affirm the trial court’s judgment in all respects. First, the statute addressing legal separation directs the trial court to make a final and complete adjudication of the parties’ support rights following the parties’ legal separation when the court awards the parties an absolute divorce. Thus, Wife’s request for alimony in futuro is premature. Second, Wife failed to show the court’s division of marital property was inconsistent with the factors set forth in Tenn. Code Ann. § 36-4- 121(c) or was not supported by a preponderance of the evidence. Third, Wife failed to establish that the trial court abused its discretion in denying her request for attorney’s fees.


STATE OF TENNESSEE ex rel. ROBIN TURNER v. JAMIE REED

Court: TN Court of Appeals

Attorneys:

Jamie Reed, pro se appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Warren Jasper, Senior Counsel; for the appellee, State of Tennessee ex rel. Robin Turner.

Judge: SWINEY

This appeal arises from a judgment for arrears in child support. The State of Tennessee ex rel. Robin Turner (“the State”) filed a civil contempt petition against Jamie Reed (“Reed”) in the Juvenile Court for Cocke County (“the Juvenile Court”). After a hearing, the Juvenile Court ordered Reed to pay $75 per month towards satisfying his $17,330 in arrears. The minor child at issue had attained majority age by the time of these proceedings. The Juvenile Court found Reed to be in substantial compliance with his payments, and he was given an opportunity to comply with the Court’s order. The Juvenile Court rejected Reed’s demands for a jury trial and for discharge of the arrearage. Reed appeals. We affirm the judgment of the Juvenile Court.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. TAVARIS CANTRELL BROOKS

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Tavaris Cantrell Brooks.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Tavaris Cantrell Brooks (“the Defendant”) pled guilty to one count of possession of less than .5 grams of cocaine with intent to sell and one count of possession of a firearm with intent to employ in the commission of a dangerous felony, and reserved a certified question regarding the legality of the search that led to his arrest. The State concedes that the trial court should have granted the Defendant’s motion to suppress and that his convictions must be reversed. We agree. Based on the illegality of the search leading to his arrest, and the necessary exclusion of the resulting evidence, we are constrained to reverse the Defendant’s convictions.


STATE OF TENNESSEE v. JEREMY ANTWAN BRYANT

Court: TN Court of Criminal Appeals

Attorneys:

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal) and Gary Tamkin (at hearing), Assistant District Public Defenders, Nashville, Tennessee, for the appellant, Jeremy Antwan Bryant.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Stacy Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Jeremy Antwan Bryant, pled guilty to possession of one-half gram or more of cocaine with intent to sell, a Class B felony. The trial court sentenced appellant to eight years but suspended the sentence and placed appellant on supervised probation. After appellant had been on probation for almost three years, the trial court revoked his probation. On appeal, appellant contends that the trial court erred in revoking his probation because the State did not establish, by a preponderance of the evidence, that appellant committed new criminal offenses while on probation. Finding no error, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. SONNY COULTER

Court: TN Court of Criminal Appeals

Attorneys:

Sonny Coulter, Albion, Pennsylvania, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

On January 10, 2002, the defendant, Sonny Coulter, pled guilty to one count of rape, and the trial court sentenced him to eight years, to be served at 100%. The trial court entered a corrected judgment in 2008 in which it set forth the defendant’s supervision for life requirements. In 2011, the defendant filed a motion to “quash” the modified sentence, alleging that he had not been advised of the supervision for life requirement when he pled guilty. The trial court treated the motion as a petition for post-conviction relief that alleged that the defendant did not knowingly and voluntarily enter his guilty plea. It then summarily dismissed the petition after a hearing. On appeal, the defendant contends that the trial court erred on multiple grounds when it denied his motion, each of which is discussed below. After a thorough review of the record and applicable authorities, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. JAMES MICHAEL ENGLAND

Court: TN Court of Criminal Appeals

Attorneys:

William B.(Jake) Lockert, III, District Public Defender, and Richard D. Taylor, Jr., Assistant Public Defender, for the appellant, James Michael England.

Robert E. Cooper, JR., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Dan M. Alsobrook, District Attorney General; and Carey Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James Michael England, appeals the Dickson County Circuit Court’s revocation of his community corrections sentence. The trial court held a hearing on March 30, 2011, during which the defendant acknowledged his absence from his house during the home visits and his failure to report to the community corrections office. The court found the defendant in violation of his sentence to community corrections and ordered him to serve his remaining sentence in confinement. The defendant contends that the trial court abused its discretion because the defendant was in substantial compliance with the terms of his community corrections program. Because we find that the trial court did not abuse its discretion, the judgment of the trial court is affirmed.


STATE OF TENNESSEE v. DARNELL HORTON

Court: TN Court of Criminal Appeals

Attorneys:

Joy S. Kimbrough, Nashville, Tennessee, for the appellant, Darnell Horton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Travis M. Lampley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant appeals the denial of his application for pretrial diversion, asserting that the prosecutor abused his discretion and that the trial court erred in affirming the prosecutor’s denial. The State concedes that the prosecutor failed to assign weight to the relevant factors in reaching the decision to deny pretrial diversion. We reverse the judgment of the trial court and remand for further proceedings in accordance with this opinion.


STATE OF TENNESSEE v. DANIEL ROSS McCLELLAN

Court: TN Court of Criminal Appeals

Attorneys:

Brian J. Wanamaker, Knoxville, Tennessee (on appeal); Gerald T. Eidson, Rogersville, Tennessee (at trial), for the Defendant-Appellant, Daniel Ross McClellan.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Alex Pearson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Hawkins County jury convicted the Defendant-Appellant, Daniel Ross McClellan, of rape of a child and incest. On remand for resentencing for the rape of a child following his first direct appeal, State v. Daniel Ross McClellan, No. E2009-00698-CCA-R3-CD, 2010 WL 2695657 (Tenn. Crim. App., at Knoxville, July 8, 2010), the trial court imposed a sentence of twenty-five years. McClellan appeals the length of his sentence, arguing that the trial court violated his constitutional right to a jury trial by relying on enhancement factors that were improperly submitted to the jury. The State concedes error but maintains that McClellan’s sentence is appropriate. Although we discern no reversible error, we remand to the trial court for correction of the judgment forms to reflect the date of the offense as shown in the indictment. In all other respects, the judgment of the trial court is affirmed.


EFRAIN HUERATA ORDUNA v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Efrain Huerata Orduna, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Pro se petitioner, Efrain Huerata Orduna, appeals the Circuit Court for Franklin County’s summary dismissal of his petition for post-conviction relief. On May 31, 2007, petitioner pled guilty to first degree murder, aggravated rape, and aggravated kidnapping. He was sentenced to an effective sentence of life without the possibility of parole. On April 4, 2011, almost four years after the judgments were entered, petitioner filed his petition for postconviction relief, contending that he did not understand the guilty plea proceedings and that other constitutional rights were violated. He failed to state any factual basis in the petition to explain its untimely filing. Discerning no error, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. LONNIE PAYNE

Court: TN Court of Criminal Appeals

Attorneys:

James P. DeRossitt, IV, (on appeal) and Jake Erwin (at hearing), Memphis, Tennessee, for the appellant, Lonnie Payne.

Robert E. Cooper, Jr., Attorney General & Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; Marianne Bell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Lonnie Payne (“the Defendant”) was convicted of violating a protective order, aggravated assault, and aggravated criminal trespass. He received an effective sentence of five years plus eleven months and twenty-nine days in the county workhouse. The Defendant filed a petition seeking to suspend the remainder of his sentence. Following an evidentiary hearing, the trial court denied the petition. The Defendant appeals, arguing that the trial court erred when it denied his request for a suspended sentence. Upon review, we affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.


ROBERT SCRIBNER, II v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James O. Martin, III (on appeal) and Caesar Cirigliano (at hearing), Nashville, Tennessee, for the appellant, Robert Scribner.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Victor S. Johnson, III, District Attorney General; and J.W. Hupp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Robert Scribner, II, appeals the denial of his petition for post-conviction relief from his rape of a child conviction, arguing that his trial counsel was ineffective for not hiring an independent expert to challenge DNA evidence that linked him to the crime. Following our review, we affirm the denial of the petition.


STATE OF TENNESSEE v. EDDIE WAYNE SHELTON

Court: TN Court of Criminal Appeals

Attorneys:

James E. Lanier, District Public Defender, and Christy C. Cooper, Assistant District Public Defender, Dyersburg, Tennessee, for the appellant, Eddie Wayne Shelton.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney General; Phillip Bivens, District Attorney General; Karen Burns, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Eddie Wayne Shelton (“the Defendant”) pleaded guilty to two counts of sale of less than 0.5 grams of cocaine, one count of possession with the intent to sell 0.5 grams or more of cocaine, and two counts of sale of 0.5 grams or more of cocaine. Pursuant to the plea agreement, the Defendant was sentenced to an effective sentence of ten years to be served in community corrections. Upon the filing of a revocation warrant, the Defendant was taken into custody, and a probation revocation hearing was held. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve the remainder of his sentence in confinement. The Defendant appeals the trial court’s ruling. We affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.


Texas Man Indicted for Mosque Bomb Threat

U.S. Attorney Jerry Martin announced today that a Texas man has been charged with violating the civil rights of members of the Islamic Center of Murfreesboro when he allegedly left a threatening, expletive-ridden voice message at the mosque saying there would be a bomb there on Sept. 11, 2011. Javier Alan Correa, 24, of Corpus Christi, is charged with one count of intentionally obstructing by threat of force the free exercise of religious beliefs, and one count of using an instrument of interstate commerce to communicate a threat to destroy a building by means of an explosive device. Martin made the announcement in Murfreesboro from the construction site of the new of the mosque. The Tennessean has video of Martin's remarks and more.


Waller Explains Texas Expansion

In an interview with the Nashville Post, Waller chairman John Tishler talks about why his firm continues to turn to Austin, Texas, for new talent and new opportunities, saying that while the new office is physically in Austin, the move is about entering the Texas market. "We have targeted a wealth of opportunities in Austin for health care regulatory work" but clients will be located across the state, he said. In picking Austin for the firm’s latest venture, Tishler said the city presents "a broader range of health care opportunities" than other Texas cities, offers access to policy makers and resources at the University of Texas School of Law, and provides close proximity to Houston and San Antonio.


Blackwood Tosses Retrials, Sets Date for Recusal Hearing

Senior Judge Jon Kerry Blackwood yesterday reversed his previous order granting new trials to two defendants caught up in the fall-out from misconduct by former Knox County Criminal Court Judge Richard Baumgartner. The issue of retrials now will be subject to further review of the cases and a hearing set for August 17. In addition, Blackwood set a hearing for Oct. 8 to give the state a second chance to argue that he should step down from the cases. WBIR has the story

In related news, the DA’s office has asked for audio recordings and a transcript of last week’s hearing in which Blackwood and DA Randy Nichols wound up in a "yelling match," according to WATE News 6. That hearing turned volatile when Blackwood refused to recuse himself and prohibited the state from making any arguments about that issue. The DA's office says the outburst shows that Blackwood cannot rule impartially because of his emotional connection to the trial.


Authorities Reveal Identity of Bomb Threat Caller

Rutherford County sheriff's detectives are seeking the public’s help locating William Moon, 51, of Tracy City, who is accused of calling in a bomb threat last month to the county judicial building, saying three bombs were set with the intention of killing Judge Don Ash. According to detectives, Moon was supposed to have been in Ash's courtroom that day for a plea on charges of theft, vandalism, trespassing and possession of burglary tools, but did not show up. Anyone with information about Moon should call Rutherford County Crime Stoppers at (615) 893-STOP or (615) 893-7867.  Learn more from WKRN News 2


Holder: Document Compromise Still Possible

U.S. Attorney General Eric Holder today indicated he still is willing to engage in negotiations to avoid a constitutional showdown over Justice Department documents in the "Fast and Furious" gun-smuggling investigation. Congressional Republicans say they are willing to negotiate, too, but only if the administration turns over more emails and memos. Barring that, House Speaker John Boehner, R-Ohio, pledged the House would "vote next week on a contempt measure…" WCYB News 5 has this story from CNN


Plaintiffs to Appeal Dismissal of Discrimination Suit

A group challenging state law that overruled local protections for gay and lesbian workers plans to appeal a judge's decision to dismiss the suit. Davidson County Chancellor Carol McCoy ruled the plaintiffs do not have standing in the case, but their attorney, Abby Rubenfeld, says she believes the judge ignored certain arguments raised in the lawsuit and that an appeal is warranted. Learn more in the Kingsport Times News


Court Throws out FCC Fines for Cursing, Nudity

Broadcasters anticipating a major constitutional ruling on the government's authority to regulate the airwaves instead won "the smallest of Supreme Court victories" today, reports the Associated Press. The justices unanimously threw out fines imposed on Fox and ABC saying they could not have known in advance that isolated incidents of profanity and nudity would give rise to penalties of nearly $1.24 million. The case against the broadcasters was based on a new FCC policy, but the justices agreed that the agency had not adequately explained the new policy before beginning to enforce it. WSMV has the story


Court Applies New Crack Rules to Pre-Enactment Offenders

The Supreme Court ruled today that people who committed crack cocaine crimes before more lenient penalties took effect -- but received their prison sentence afterward -- should benefit from the new rules. The decision resolved the cases of two men who were arrested for selling crack cocaine under the old mandatory minimum sentencing scheme, but were not sentenced until after the Fair Sentencing Act went into effect in August 2010. That law reduced the difference between sentences for crack and powder cocaine. In the 5-4 decision, the court said the new rules should apply because it could "find no convincing reason why Congress would have wanted…unfair consequences." The dissenting justices argued that an 1871 law dictates that new, more lenient sentencing not apply to pre-enactment offenders. WRCB TV3 has this AP story


Drug Court Hosts Fundraiser Tonight

Supporters of the Shelby County Drug Court are hosting "Rockin' on the River" this evening at River Terrace Restaurant in Memphis’ Mud Island River Park. The annual fundraiser will feature a live band and food from some of the city’s most recognized local eateries. Cocktails begin at 6 p.m. with dinner at 7 p.m. and entertainment at 8 p.m. Contact Amy Singleton at (901) 734-4114 or msngltn2@memphis.edu for more information.


Teachers Gather Next Week for Primer on Judicial System

The 7th Annual Summer Teacher’s Institute will take place next week in Washington, D.C., with a focus on “Federal Trials and Great Debates in United States History.” The week of professional development is designed to deepen teachers’ knowledge of the federal judiciary and the role the courts play in key public debates that define constitutional and other legal rights. The seminar will feature historians, federal judges and curriculum consultants who will focus on three landmark federal trials: Ex Parte Merryman, Chew Heong v. United States, and the Chicago Seven Conspiracy Trial. Learn more from the ABA


 
 

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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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