Rule 31 change adds provision for non-attorney mediators

The Tennessee Supreme Court issued an order today proposing an amendment to Rule 31 that would address the review process for complaints against non-attorney Rule 31 mediators. Public comment will be taken through July 9. For more information about the amendment and how to comment, click here.
TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

BOBBY REINHARDT v. WANDA NEAL, ET AL.

Court: TCA

Attorneys:

Paul Whetstone, Morristown, Tennessee, for the Appellant, Bobby Reinhardt.

Frank P. Cantwell, Jr., Morristown, Tennessee, for the Appellees, Wanda Neal, in her official capacity as Hamblen County Administrator of Elections, and the Hamblen County Election Commission, composed of: C. Dwaine Evans, Chairman, Randall Johnson, Gail Bruce, Lyle Doty, and Judy Blackburn.

Judge: SWINEY

This is an election contest case brought by Bobby Reinhardt (“Reinhardt”) seeking to have the election for Hamblen County Commissioner, District 4, set aside on the basis that there were two illegal votes and those two votes were equal to the margin by which his opponent won the election. Following a hearing and a recount, Reinhardt’s opponent was declared the winner by the Trial Court. Reinhardt appeals, and we affirm.

http://www.tba2.org/tba_files/TCA/2007/reinhardtb_061107.pdf


STATE OF TENNESSEE ex rel., SULLIVAN COUNTY, TENNESSEE v. DELINQUENT TAXPAYERS

Court: TCA

Attorneys:

Alex Vanburen, Johnson City, Tennessee for the Appellant, Michael J. Melkersen.

Paul A. Harr, Blountville, Tennessee for the Appellees, State of Tennessee ex rel., Sullivan County, Tennessee, and Dwayne Hurd.

Judge: SWINEY

This case involves a tax sale in Sullivan County, Tennessee. The Trial Court found and held, inter alia, that the assignment of the right to redeem was for nominal value and to allow the assignment would amount to fraud on the Probate Court and creditors of the deceased owner’s estate. No transcript or statement of the evidence was included in the record on appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2007/sullivanco_061107.pdf


WAYNE'S CONSTRUCTION, INC. v. WILLIAM JONES, ET AL.

Court: TCA

Attorneys:

Dail R. Cantrell, Clinton, Tennessee, for the Appellants, Wayne J. Lanagan, Adam Lanagan, and Danny Breeden.

George W. Morton, Knoxville, Tennessee, for the Appellees, William Jones and Patricia Jones.

Judge: SWINEY

William and Patricia Jones (the “Homeowners”) contracted with Wayne’s Construction, Inc. (“Wayne’s Construction”) to build the Homeowners a new house. During construction, the Homeowners encountered numerous significant problems with the quality of the construction, including problems with the structural integrity of the house. The Homeowners eventually discharged Wayne’s Construction. Wayne’s Construction filed this lawsuit seeking over $23,000 it claimed was earned prior to its being discharged. The Homeowners filed a counterclaim seeking a significant amount of compensatory damages which they claimed resulted from the shoddy construction. Following a trial, the Trial Court dismissed the complaint filed by Wayne’s Construction and entered a judgment for the Homeowners for $139,250 and then trebled this amount pursuant to the Tennessee Consumer Protection Act. The only issue on appeal concerns whether the proof preponderates against the Trial Court’s determination as to the amount of damages incurred by the Homeowners. We conclude that it does not and affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2007/waynesconstruction_061107.pdf


STATE OF TENNESSEE v. JAMES ANTHONY ANDERSON

Court: TCCA

Attorneys:

Joshua L. Rogers, Franklin, Tennessee, for the appellant, James Anthony Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Tammy J. Watson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, James Anthony Anderson, appeals from the sentencing decision of the Williamson County Circuit Court. The Defendant was indicted for two counts of domestic assault and, subsequently, he pled guilty to one count of domestic assault. Pursuant to the terms of the plea agreement, he received an eight-month sentence, and the trial court was to determine the manner of service. Following a sentencing hearing, the trial court ordered that the Defendant’s eight-month sentence be served in the county jail. On appeal, the Defendant argues that the trial court erred by ordering a sentence of confinement rather than a less restrictive alternative. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/andersonj_061107.pdf


STATE OF TENNESSEE V. KAMIKO T. CLARK

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender, Nashville, Tennessee (on appeal), and Amy Harwell and Dawn Deaner, Assistant Public Defenders, Nashville, Tennessee (at trial), for the Appellant, Kamiko T. Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy Eisenbeck, Rachel Sobrero, and Matt Stephens,Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Kamiko T. Clark, of six counts of child abuse, a class A misdemeanor. On appeal, the Defendant alleges that the trial court erred when it: (1) allowed her statement to the police into evidence; (2) refused to merge her three child abuse convictions for each victim into one conviction for each victim; and (3) imposed sentences that were consecutive and involved partial confinement. Following review, the judgments of conviction are affirmed. However, because the trial court failed to make findings of fact with regard to consecutive sentencing, we remand the case to the trial court for a determination of whether consecutive sentencing is warranted in this case.

http://www.tba2.org/tba_files/TCCA/2007/clarkk_061107.pdf


STATE OF TENNESSEE v. JOANN CRADDICK

Court: TCCA

Attorneys:

Kenneth K. Crites, Centerville, Tennessee, for the Appellant, Joann Craddick.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Ronald L. Davis, District Attorney General; Michael J. Fahey, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Joann Craddick, pled guilty to two counts of vehicular assault, and the trial court sentenced her to concurrent two year sentences for each conviction, with eight months to be served in jail, followed by supervised probation. On appeal, the Defendant contends that the trial court erred when it denied her full probation. Concluding that there exists no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/craddickj_061107.pdf


STATE OF TENNESSEE v. HERSHEL WAYNE GRIMES

Court: TCCA

Attorneys:

Paul D. Ross, Monteagle, Tennessee, for the appellant, Hershel Wayne Grimes.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; Steve Strain, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Grundy County jury convicted the Defendant, Hershel Wayne Grimes, of first degree murder, and he was sentenced to life in prison. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction; (2) at trial, the State presented testimony it knew to be false; (3) the trial court improperly excluded testimony about the victim’s prior bad acts; (4) the trial court erred when it excluded testimony about the mental stability of two prosecution witnesses; (5) the trial court erred when it allowed the State to question a defense witness about her prior marriages; (6) the trial court erred when it did not admit as substantive evidence the prior statements of a State witness; (7) the trial court erred when it allowed the State to cross-examine the Defendant about a previous statement; (8) the cumulative effect of these errors requires that the conviction be reversed. Finding that there exists no reversible error, we affirm the judgment of the court.

http://www.tba2.org/tba_files/TCCA/2007/grimesh_061107.pdf


STATE OF TENNESSEE V. BRANDON MOBLEY

Court: TCCA

Attorneys:

Brandt W. Davis (at trial), Knoxville, Tennessee, and Julie A. Rice (on appeal), Knoxville, Tennessee, for the Appellant, Brandon Mobley.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; Takisha Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Brandon Mobley, was convicted by a Knox County jury of two counts of first degree murder, especially aggravated robbery, and setting fire to personal property, and the trial court sentenced him to two consecutive life sentences plus twenty-two years. On appeal, he alleges: (1) there is insufficient evidence upon which to convict him on either count of first-degree murder; (2) there is insufficient evidence upon which to convict him of especially aggravated robbery; (3) the trial court erred in initially prohibiting testimony from a defense expert, which caused a violation of his Fifth Amendment rights; and (4) the trial court erred in sentencing him. After reviewing the record and applicable law, we affirm the Defendant’s convictions, but we conclude the Defendant was improperly sentenced. Thus, we modify the Defendant’s sentences for his convictions for especially aggravated robbery and setting fire to personal property from twenty to eighteen years and from two years to one year, respectively.

http://www.tba2.org/tba_files/TCCA/2007/mobleyb_061107.pdf


STATE OF TENNESSEE v. MARCO M. NORTHERN

Court: TCCA

Attorneys:

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant District Public Defender (on appeal); and Jason Gichner and Amy D. Harwell, Assistant District Public Defenders (at trial), for the Appellant, Marco M. Northern.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero and Amy Eisenbeck, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

A Davidson County jury convicted the defendant, Marco M. Northern, of second degree murder, and the trial court imposed an incarcerative sentence of 24 years. On appeal, the defendant asserts (1) that his confession should have been suppressed because the arresting detectives deliberately employed a two-step interrogation technique that undermined and obscured the Miranda warnings that preceded his confession; (2) that the evidence is insufficient to support his conviction; (3) that the trial court committed reversible error in permitting a witness to testify that shortly prior to the homicide, the defendant stated that he needed money and was planning to rob someone; (4) that the trial court’s jury instruction on flight and the permissible inferences flowing therefrom was prejudicially erroneous; and (5) that his sentence is excessive. After thoroughly reviewing the record, the parties’ briefs, and applicable authorities, we find that the interrogation technique did not circumvent the Miranda warnings given; that sufficient evidence supports the conviction; that no error occurred in the admission of evidence at trial; and that a jury instruction on flight was warranted. However, we conclude that the trial court erred in applying the 2005 Sentencing Act in the absence of a valid waiver of ex post facto rights. Accordingly, we affirm the defendant’s second degree murder conviction but reverse and remand the case for a new sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2007/northernm_061107.pdf


STATE OF TENNESSEE v. KEITH D. WILLIAMS

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, attorney for appellant, Keith D. Williams.

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Keith D. Williams, entered guilty pleas in the Criminal Court of Davidson County to sale of cocaine in an amount less that .5 grams in case number 2005-C-1660 and to sale of cocaine in an amount less than .5 grams in case number 2005-C-2147. He was sentenced to six years as a Range II, multiple offender for each count, to be served consecutively, for a total effective sentence of twelve years. The trial court ordered split confinement with the bulk of the defendant’s sentences to be served in the community corrections program. The defendant served a mere eleven days of his community corrections sentence when he was charged with violating the terms of his community corrections sentence. After a full hearing, the trial court found that the defendant had violated the terms of his community corrections sentence, revoked the sentence and resentenced the defendant to a term of eighteen years as a Range II, multiple offender to be served in the custody of the Department of Corrections. The defendant now appeals the revocation and resentencing. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/williamsk_061107.pdf


Applicability of the Blind Vendors Program, Tenn. Code Ann. §§71-4-501, et seq., to County

TN Attorney General Opinions

Date: 2007-06-08

Opinion Number: 07-91

http://www.tba2.org/tba_files/AG/2007/ag_07-91.pdf

TODAY'S NEWS

Legal News
Supreme Court Watch
TBA Member Services

Legal News
Report agrees with Shelby commissioners
The National Center for State Courts issued a report this weekend that seems to bolster what the Shelby County Commission has said about Juvenile Court. The $50,000 study made 25 recommendations -- including changing the way cases are judged, improving the juvenile defender's office, and taking steps to make the court more customer-friendly -- but did not comment on whether or not a second judge is needed.
The Commercial Appeal has the story
Don't elect appellate judges, Summers says
Former Tennessee Attorney General Paul Summers, who also served on the Court of Criminal Appeals for eight years, speaks out for merit selection in this editorial. In it, he explains the difference between what a trial court judge does and what an appeals court judge does and why an appellate judge should not run for office: "Appellate judges should not wear black robes. They ought to wear black and white striped robes. That is because they are referees. They should not make promises about what they are going to do when they get to become a judge."
Read the editorial in the Tennessean
'No confidence' vote
blocked in Senate
Republicans blocked the "no confidence" vote on Attorney General Alberto Gonzales in the Senate today, the Associated Press reports. The 53-38 vote to move the resolution to full debate fell seven short of the 60 required. Republicans did not defend him, but most voted against moving the resolution ahead.
Read this AP story in the News Sentinel
YouTube sued by Nashville music publisher
Nashville music publisher Cal IV Entertainment LLC has sued owners of YouTube in federal court, claiming that the popular Web site isn't doing enough to protect copyrighted songs,
the Tennessean reports
Judge sued for releasing inmates
The state has sued General Sessions Judge Mike Whitaker in a dispute over the early release of inmates from the county's aging jail, which the judge has described as a "fire trap," the AP reports.
WMC-TV has the story
Nudists' suit left them uncovered for attorney's fees
The U.S. Supreme Court ruled last week that a nudist group should not receive attorney's fees as a prevailing party for merely seeking, and getting, a preliminary injunction prohibiting Florida authorities from enforcing laws against public nudity at a 2003 peace demonstration. As a recent ABA Journal e-Report points out, the case was "well-clad with First Amendment issues," but was narrow. "The fear was that the court would attempt to fashion a hard new rule from what we argued was an atypical case," one attorney said.
Read more about it in the ABAJ e-Report
Constitutional issues
raised in Libby trial
Constitutional issues have been raised by many prominent law professors who wonder if Special Counsel Patrick Fitzgerald had constitutional authority in the CIA leak trial that this week sentenced former White House aide I. Lewis "Scooter" Libby to prison. Libby's lawyers, who are making the same argument, prepare to appeal his 2 1/2-year sentence.
The Knoxville News Sentinel carried this AP story
White House legal staff increased to 22
Since becoming President Bush's new lawyer in February, Fred Fielding has created five new positions in the White House counsel's office, expanding the staff to 22 lawyers, the White House said. The Associated Press reports that Fielding is strengthening the staff to deal with an avalanche of requests the White House is getting from lawmakers investigating the flap over the firings of U.S. attorneys, missing e-mails, prewar intelligence and other matters.
The Knoxville News Sentinel carried this AP story
Swann libel suit set
for next year
A trial date in a libel lawsuit against Fourth Circuit Court Judge William Swann that arose out of his re-election campaign has been set for July 21, 2008. Wendy Whitman Rose alleges that Swann libeled her by comments made in the news media during his re-election campaign. The lawsuit seeks compensatory and punitive damages totaling $1 million. A hearing on pending motions will be June 29.
Find out more from the News Sentinel
Opinion: Fund the open records advocate now
In this editorial, The Citizen Tribune calls for approval in the current budget for an open records ombudsman. Bredesen proposed the position more than a year ago in the wake of the Tennessee Waltz corruption scandal, but the paper says there is serious opposition from local government operations.
Read the editorial
Supreme Court Watch
'Grumpy' governor needs to fill seat now
Columnist Otis Sanford calls for the governor to hurry up with his selection for the state Supreme Court, a process that he says has shown Bredesen to be "uncharacteristically grumpy ... and intentionally slow." Sanford says a decision is expected this week.
Read the editorial in the Commercial Appeal
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