New process proposed for complaints against BPR attorneys

The Tennessee Supreme Court yesterday proposed a rules amendment that would affect the investigation of complaints against attorney members of the Board of Professional Responsibility. The proposal, which amends Rule 9, Section 9.4, outlines a more detailed process for the investigation of complaints and appeals of decisions. The court is soliciting written comments on the amendment. Comments should be submitted no later than July 2 to Michael W. Catalano, Clerk, 100 Supreme Court Building, 401 Seventh Avenue North, Nashville, TN 37219-1407. The Tennessee Bar Association's Standing Committee on Ethics and Professional Responsibility will review the proposal. Download the amendment or read the current rule:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/TNRulesOfCourt/06supct1_9.htm#9

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

JAMES FRANKLIN BROOKS v. SHEILA BROOKS TRAVIS

Court: TCA

Attorneys:

Darlene Rebowe, Brentwood, Tennessee, for the appellant, Sheila Brooks Travis

Robert D. Massey, Pulaski, Tennessee, for the appellee, James Franklin Brooks

Judge: CLEMENT

Mother appeals the trial court's decision to modify the parties' permanent parenting plan. The trial court modified the parties' parenting plan after Mother remarried and moved out of state. Mother contends the facts do not support a finding of a material change in circumstances. Finding that the facts support the trial court's finding of a material change in circumstances and the determination that the modification was in the best interests of the children, we affirm.

http://www.tba2.org/tba_files/TCA/2007/brooksj_060507.pdf


WATCO, a joint venture comprised of Wayne Todd and Wilson Holdings, LP v. PICKERING ENVIRONMENTAL CONSULTANTS, INC., a Tennessee Corporation

Court: TCA

Attorneys:

Allen T. Malone, R. Porter Feild, Memphis, TN, for Appellant

J. Kevin Walsh, James R. Newsom, III, Memphis, TN, for Appellee

Judge: HIGHERS

The plaintiff, a real estate development company, conditionally agreed to purchase real property from a trustee bank if the bank first obtained a satisfactory "Phase I" environmental site assessment of the property. The trustee bank hired the defendant environmental consulting company to perform a Phase I environmental site assessment. After performing an assessment, the defendant prepared a report in which it represented that it had conformed with the applicable professional standard in its assessment, that it had not detected any hazardous materials or environmental concerns at the subject property due to current or past uses of the property, that it had not identified any significant environmental concerns in the surrounding area of the subject property, and that it did not recommend further environmental review of the subject property. The plaintiff purchased the subject property in 1995. During residential development of the subject property in 2004, the plaintiff discovered the remains of a municipal garbage dump which had previously existed adjacent to the subject property, and which extended under a portion of the subject property. The plaintiff had the garbage removed and the land filled, and development was delayed as a result. The plaintiff development company sued the defendant environmental consulting company, alleging professional negligence and negligent misrepresentation. A bench trial was held, and the trial court entered judgment in favor of the defendant. For the following reasons, we affirm.

http://www.tba2.org/tba_files/TCA/2007/watco_060507.pdf


STATE OF TENNESSEE v. FRANK BRZEZOWSKI

Court: TCCA

Attorneys:

Robert T. Keeton, III, Huntingdon, Tennessee, for the appellant, Frank Brzezowski

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

Judge: MCLIN

The defendant, Frank Brzezowski, was convicted of two counts of aggravated assault and three counts of aggravated rape and was sentenced to an effective term of twenty-two years to be served at 100 percent. On appeal, he argues that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in denying his motion for new trial; and (3) the trial court erred in its sentencing determination. Upon our review of the record and the parties' briefs, we affirm the defendant's convictions, but remand for a new sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2007/brzezowskif_060507.pdf


STATE OF TENNESSEE v. JANICE BURNETTE
With Concurring Opinion


Court: TCCA

Attorneys:

Wayne T. DeWees, Bolivar, Tennessee, for the appellant, Janice Burnette

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The defendant, Janice Burnette, was convicted of theft of property valued between $1,000 and $10,000, and was sentenced to three years, suspended after service of thirty days with the balance on probation. On appeal, she argues that: (1) there was a material and highly prejudicial variance between the indictment and the evidence presented at trial; (2) there was a material variance between the indictment and the jury charge; (3) the trial court erred in denying her request that the jury be instructed she was indicted for theft of pseudoephedrine not general merchandise; (4) the charge given to the jury was insufficient; (5) the indictment was flawed and the trial court cured it by giving the jury the general theft charge; (6) she was denied her 6th Amendment right to face her accusers and be adequately prepared to defend herself against the charge of theft of general merchandise; (7) the state did not meet its burden of proof as to theft of pseudoephedrine products; and (8) the state's closing argument was improper. After our review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/burnettej_060507.pdf

HAYES CONCURRING
http://www.tba2.org/tba_files/TCCA/2007/burnettej_con_060507.pdf


CHARLES EDWARD GREER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the Appellant, Charles Edward Greer

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

Judge: HAYES

The Appellant, Charles Edward Greer, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief. On appeal, Greer raises the single issue of whether he was denied the effective assistance of counsel because trial counsel should have "convinced" or "persuaded" him to testify in his own defense. After review of the record, we find no error and affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2007/greerc_060507.pdf


STATE OF TENNESSEE v. ROD MILLS

Court: TCCA

Attorneys:

P. Richard Talley, Dandridge, Tennessee, for the appellant, Rod Mills

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Al Schmutzer, Jr. (at trial) and James Dunn (on appeal), District Attorneys General; Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: THOMAS

In January 2004, a Sevier County grand jury indicted the defendant, Rod Mills, on one count of theft over $10,000, a Class C felony. The defendant waived his right to a jury trial. In May 2006, a bench trial was held and the defendant was found guilty on the sole count of the indictment. The trial court sentenced the defendant to five years in prison as a Range I, standard offender. The defendant appeals, alleging that the evidence was insufficient to support his conviction. We conclude that the evidence was insufficient to prove that the defendant possessed the requisite mental state and therefore reverse the judgment of the trial court and dismiss the case.

http://www.tba2.org/tba_files/TCCA/2007/millsr_060507.pdf


HOMER T. RIVERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Homer T. Rivers, Whiteville, Tennessee, Pro Se

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: TIPTON

The petitioner, Homer T. Rivers, appeals from the Hardeman County Circuit Court's dismissal of his post-conviction petition. He claims that the trial court erred in dismissing his petition for failure to state a colorable claim and seeks appointment of counsel and an evidentiary hearing. The state agrees that the trial court should not have dismissed the petition. We agree and reverse the dismissal and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCCA/2007/riversh_060507.pdf


CARLOS SOMMERVILLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Carlos Sommerville, Whiteville, Tennessee, Pro Se

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul F. Goodman, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WILLIAMS

The petitioner, Carlos Sommerville, was convicted of first degree felony murder, second degree murder, and attempted first degree murder. The murders were merged, and the petitioner is serving an effective life sentence. The petitioner appeals from the trial court's summary dismissal of his post-conviction petition. He contends his petition contained an allegation of ineffective assistance of trial counsel, which should have protected the petition from summary dismissal. After review, we conclude the post-conviction court improperly summarily dismissed the petition because it did state a basis to support the petitioner's claim of ineffective assistance of counsel.

http://www.tba2.org/tba_files/TCCA/2007/sommervillec_060507.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Baxter named co-conspirator in fraud case
Federal prosecutors identified former state Economic Development Commissioner Bill Baxter as an unindicted co-conspirator in Sen. Jerry Cooper's land fraud case yesterday as part of opening statements. In a ruling issued earlier today, U.S. District Judge Curtis L. Collier agreed with the assessment. Baxter was the state's top business recruiter in the administration of former Governor Don Sundquist.
The News Sentinel reports
U.S. attorney at center of firings scandal resigns
U.S. Attorney Tim Griffin of Arkansas has resigned his position, denying he was forced out. Griffin was one of eight interim U.S. attorneys appointed by the Justice Department in the wake of prosecutor firings. First Assistant U.S. Attorney Jane Duke has been named acting U.S. attorney.
The Commercial Appeal has more
Break in closes Fayette courthouse
Someone ransacked the Fayette County courthouse Sunday night, 24 hours before General Sessions Court Judge Mike Whitaker was to release 18 prisoners from the county jail on grounds that the facility is a fire hazard. Whitaker said the thieves stole the entire criminal docket for Monday's court session, including each defendant's arrest jacket.
WREG-TV has the story
Defense: sleepy court to blame for ineffective trial
Attorney Charles R. Curbo has a novel argument for why his convicted client should be given a new murder trial: he, Curbo, was too sleepy to be effective. Curbo also maintains that there were missteps throughout the trial because jurors were tired, the judge was tired and courtroom personnel were tired. Due to unusual circumstances, the trial went late each night, often until 10 or 11 p.m.
The Commercial Appeal has more
Gaffe costs lawyer his client, possibly right to practice
Saying a Florida bankruptcy judge was "a few french fries short of a Happy Meal" has cost Chicago-based McDermott Will & Emery partner William P. Smith his client and may mean loss of his pro hac vice status in Florida. Smith has secured local counsel to represent him in the proceedings.
Law.com has the story
Mediation group adds staff
The Mediation Group of Tennessee LLC, founded by retired Judge Marietta Shipley, has expanded its Nashville office with the addition of former Tennessee Attorney General Paul Summers, former State Commissioner of Commerce and Insurance Paula Flowers, mediator Barbara Moss, former assistant U.S. Attorney Rachel Waterhouse and retired Judge Dewey Whitenton. The practice focuses on mediating civil and family court cases as well as business-to-business and business-to-government interactions. The Nashville Business Journal reported the news.

Northeast Tenn. attorneys eulogized
Northeast Tennessee attorneys who died in the past year were remembered recently in a U.S. district court memorial service. Judge Ronnie Greer presided over the two-hour service, which was attended by U.S. Magistrate Judge Dennis Inman, 3rd Judicial District Chancellor Thomas R. "Skip" Frierson and several members of the judiciary in Sullivan County.
Read tributes in the Greeneville Sun
TBA Member Services
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