Court seeks comments on proposed rules changes

The Tennessee Supreme Court has published for comment proposed 2009 amendments to the Tennessee Rules of Procedure and Evidence. These amendments include rules on voluntary mediation in appellate practice, changes to the rules of civil procedure including provisions advocated by the TBA for distribution of residual class action funds to programs or funds which serve pro bono legal needs, changes in the rules of criminal procedure dealing with preliminary hearings and indictments, changes in the rules of juvenile procedure addressing permanency planning, and changes in the rules of evidence dealing with expert witnesses and prior inconsistent statements. The court's deadline for submission of comments is Nov. 26, the day before Thanksgiving. That is also the deadline for comments on proposed amendments to the Tennessee Rules of Civil Procedure on electronically-stored information. That proposal was published for comment on June 20.

Download both sets of proposed amendments

TODAY'S OPINIONS
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SAMMY L. HALLIBURTON v. TOWN OF HALLS

Court: TCA

Attorneys:

James E. Blount, IV, Collierville, Tennessee, for the appellant, Sammy L. Halliburton.

Edward J. McKenny, Jr., Memphis, Tennessee, for the appellee, Town of Halls.

Judge: FARMER

This case requires us to inquire whether the Town of Halls was immune under the Tennessee Governmental Tort Liability Act ("GTLA") for maintaining a baseball field that the plaintiff alleges is a nuisance because one of many balls that flew over the field's fence into a residential neighborhood injured him. The trial court held that the Town of Halls was immune from liability because it had engaged in a discretionary function and that the baseball field did not constitute a nuisance. On appeal, we find that plaintiff failed to demonstrate that the Town of Halls had notice of any dangerous condition of the baseball field in Kevan Ward Park, and, thus, we affirm the trial court on the basis that the Town of Halls was immune from liability pursuant to the Tennessee Governmental Tort Liability Act.

http://www.tba2.org/tba_files/TCA/2008/halliburtons_100308.pdf


MICHAEL SMITH v. STATE OF TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Michael R. Smith, Sr., Only, Tennessee, pro se Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua D. Baker, Assistant Attorney General, Civil Rights and Claims Division, Nashville, Tennessee, for the appellee, Tennessee Department of Correction.

James I. Pentecost and William B. Mauldin, Jackson, Tennessee, for the appellees, Robert Dixon, Stephen Dotson, Yolanda Dotson, Amy Trotter, and Shontell White.

Judge: LEE

This is an appeal of the trial court's dismissal of a petition for writ of certiorari filed by an inmate challenging the result of a prison disciplinary proceeding against him. The trial court dismissed the petition because it was not verified and failed to state that it was the first application for the writ as required by Tenn. Code Ann. section 27-8-106. After careful review, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2008/smithm_100308.pdf


TETRA TECH, INC. v. PERFORMA ENTERTAINMENT REAL ESTATE, INC.

Court: TCA

Attorneys:

Jeffrey A. Land, Germantown, Tennessee, for the Appellant, Tetra Tech, Inc.

Robert L. J. Spence, Jr. And Bryan Matthew Meredith, Memphis, Tennessee, for the appellee, Performa Entertainment Real Estate, Inc.

Judge: FARMER

This is a contract action wherein the parties dispute which of two versions of a professional services agreement is controlling. The trial court determined that the contract/counter-offer proffered by Defendant buyer was the contract between the parties, and that there had been accord and satisfaction when Plaintiff deposited Defendant's check for the payment amount asserted by Defendant. We reverse the trial court's finding of accord and satisfaction. We further hold that the contract found by the trial court to be the applicable contract is unenforceable where the contract price is indefinite and where there was a lack of mutual assent to essential terms. We hold Plaintiff is entitled to recover in quantum meruit for services rendered and remand for further proceedings to determine that amount.

http://www.tba2.org/tba_files/TCA/2008/tetratech_100308.pdf


STATE OF TENNESSEE v. JULIE ANN TAYLOR BUCHANAN

Court: TCCA

Attorneys:

Peter J. Strianse, Nashville, Tennessee, for the appellant, Julie Ann Taylor Buchanan.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Jim Milam and William Bright, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Julie Ann Taylor Buchanan, entered an open plea to one count of theft of property over $60,000 (Class B felony), one count of theft of property between $1000 and $10,000 (Class D felony), one count of forgery over $60,000 (Class B felony), two counts of forgery between $1000 and $10,000 (Class B felony), and four counts of money laundering (Class B felony), with all the crimes occurring between December 2000 and April 2003. Following a sentencing hearing, she was sentenced to eleven years on each Class B felony and four years on each Class D felony. The sentences were ordered to be served concurrently to each other except for the four-year sentence for the Class D felony theft, which was to be served consecutive to the other eight sentences, for a total effective sentence of fifteen years in the Tennessee Department of Correction. On appeal, the defendant argues that the trial court erred in three areas: (1) enhancing her sentence based on facts neither admitted nor proven to a jury; (2) imposing consecutive sentences; and (3) application of mitigating factors. After careful review, the case is remanded for re-sentencing based upon the erroneous application of application factors in violation of Blakely.

http://www.tba2.org/tba_files/TCCA/2008/buchananj_100308.pdf


JAMES E. FENTON, JR. a.k.a. CHRIS FENTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Chase Gober, Nashville, Tennessee, for the appellant, James E. Fenton, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, James E. Fenton, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief. The petitioner was convicted of especially aggravated robbery, a Class A felony, and sentenced to twenty years in the Department of Correction. On appeal, he argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was deficient in failing to: (1) adequately prepare for trial; (2) thoroughly investigate an alibi witness; (3) adequately investigate the facts of the case; and (4) provide the petitioner with a copy of discovery. Though the petitioner's notice of appeal was not timely filed in this case, in the interest of justice, we elect review. After review, the judgment of the post- conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/fentonj_100308.pdf


STATE OF TENNESSEE v. STEPHANIE LEE

Court: TCCA

Attorneys:

Javier Michael Bailey, Memphis, Tennessee, for the appellant, Stephanie Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Muriel Malone, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Stephanie Lee, pled guilty to theft of property over $10,000, a Class C felony, and was sentenced as a Range I, standard offender to four years in the county workhouse. The defendant was also ordered to pay $25,000 in restitution. On appeal, she argues that the trial court erred in denying judicial diversion and an alternative sentence. Following our review, we affirm the trial court's denial of diversion and full probation but order that the defendant serve a sentence of split confinement, with six months to be served in the county workhouse and the remainder on supervised probation. Additionally, we remand the case for entry of a corrected judgment to reflect the defendant's conviction offense, which was omitted from the judgment form.

http://www.tba2.org/tba_files/TCCA/2008/lees_100308.pdf


JEFFERY MICHAEL MABERY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Harry A. Christensen, Lebanon, Tennessee, for the appellant, Jeffery Michael Mabery.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General and Jason Lawson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jeffery Michael Mabery, pled guilty to one count of attempted especially aggravated robbery in exchange for a ten-year sentence. Subsequently, he filed a petition for post-conviction relief in which he argued that his guilty plea was unlawfully and involuntarily entered into and that he received ineffective assistance of counsel. The post-conviction court dismissed the petition, finding that it had no merit. Petitioner appeals. Although the notice of appeal in this case is untimely, we waive the timely filing of that document and reverse and remand for an evidentiary hearing on the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2008/maberyj_100308.pdf


STATE OF TENNESSEE v. ALVIN MALONE

Court: TCCA

Attorneys:

Randall B. Tolley (on appeal) and Bill Anderson (at trial), Memphis, Tennessee, for the appellant, Alvin Malone.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reggie Henderson and David Pritchard, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Alvin Malone, was convicted by a Shelby County jury of two counts of first degree felony murder, one count of first degree premeditated murder, and two counts of especially aggravated kidnapping. The defendant's first degree premeditated murder conviction merged into one of the felony murder convictions by operation of law, and he was sentenced to two life sentences and two twenty-year sentences, to be served consecutively in the Department of Correction. On appeal, the defendant argues that: (1) the trial court erred in excluding statements of two unavailable witnesses; (2) the trial court erred in not granting a continuance; (3) the trial court erred in allowing the State to amend two counts of the indictment; (4) the trial court erred in allowing the State to impeach its own witness without giving a contemporaneous limiting instruction; (5) the trial court erred in allowing testimony concerning cartels and drug activity; (6) the trial court erred in not giving a jury charge on self-defense; (7) the evidence was insufficient to support his convictions; and (8) the trial court improperly applied an enhancement factor in sentencing. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/malonea_100308.pdf


STATE OF TENNESSEE v. JOHN DAVID MCDANIEL

Court: TCCA

Attorneys:

Joseph P. Atnip, District Public Defender, and William K. Randolph, Assistant District Public Defender, for the appellant, John David McDaniel.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, John David McDaniel, was convicted of three counts of fraudulently obtaining a Schedule II controlled substance, one count of felony evading arrest, one count of misdemeanor evading arrest, and one count of theft of property with a value of less than $500. The defendant was sentenced to four years for his convictions for fraudulently obtaining a Schedule II controlled substance and felony evading arrest. He received a sentence of 11 months and 29 days for his convictions for misdemeanor evading arrest and theft of property with a value of less than $500. The defendant filed a motion for new trial which was denied after a hearing before the trial court. The defendant filed a timely notice of appeal. The defendant argues on appeal that the trial court erred by sentencing the defendant to the maximum sentence within the range for his convictions. In response, the state argues that the appellate court does not have jurisdiction to consider the defendant's appeal. The state further argues that the sentencing determination made by the trial court was not in error. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/mcdanielj_100308.pdf


TODAY'S NEWS

Legal News
Politics
Upcoming
TBA Member Services

Legal News
House retrial postponed until March 2009
With DNA results still unavailable, the retrial of former death row inmate Paul House that was scheduled for this month has been postponed until March 2009, the Tennessean reports. House, 46, was on death row for nearly 23 years. After a series of appeals, including one that reached the U.S. Supreme Court, he was granted a new trial earlier this year.

Ruling may be a 'paradigm shift' in non-compete cases
An arbitration panel has ordered a broker and his new employer to pay damages equal to four percent of the assets of the clients who switched firms, marking a significant shift in the way securities industry arbitrators calculate damages that stem from violations of a non-compete agreement.
Read more from The Legal Intelligencer on Law.com
Legal employment down from 2007 peak
Legal services sector employment has dropped 1.3 percent since its all-time high in May 2007, according to data released by the U.S. Department of Labor on Friday. There were 1,165,100 jobs in the legal sector in September, down 15,600 from May 2007.
Read more in the ABA Journal online
Memphis moot court team invited to national contest
Thanks to its strong performance in moot court competition last year, the University of Memphis Cecil C. Humphreys School of Law is one of 16 schools to be invited to participate in the Moot Court National Championship. The competition will be held in Houston this coming January.

Politics
Bredesen, Baker co-host forum on civility in politics
As the nation turns its political focus to Nashville for next week's presidential debate, a gathering of top political leaders and journalists will gather for a national forum on the question: "Is Uncivil Discourse Sabotaging American Politics and Governance?" Hosted by Gov. Phil Bredesen and First Lady Andrea Conte, former Sen. Howard Baker and others, the discussion will be moderated by former CNN anchor Bernard Shaw.
Find out more
Federal judge to hear Kurita election case
State Sen. Rosalind Kurita's battle against the Tennessee Democratic Party's executive committee will move to federal court next week. U.S. District Judge Robert L. Echols granted a motion by Kurita's legal team to hear her case Oct. 10 at 10 a.m. Kurita claims the party violated her 14th Amendment rights by stripping her of her designation as winner of the Democratic Primary for the 22nd State Senate District.
The Nashville City Paper has more
Upcoming
Event focuses on international information sharing
The TBA is sponsoring a program on the "Impact of International Information Sharing," featuring William F. Baity, Deputy Director of the Financial Crimes Enforcement Network (FinCEN). Set for Oct. 10 in Memphis, the event is being hosted by the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz PC.
Learn more or reserve your place
YLD plans Vanderbilt Law visit
Continuing its fall law school outreach efforts, the TBA YLD will host a membership drive and networking session at Vanderbilt University Law School on Tuesday, Oct. 7. All lawyers are invited to come by for pizza at noon or during the day from 11 a.m. to 4 p.m. to interact with the students. For more information or to RSVP contact the YLD.

TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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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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