Ethics in the age of Myspace.com and micro-recorders

Applying Tennessee's Rules of Professional Conduct to today's technology is no small challenge. Join Brentwood attorney Donna Green in this week's TennBarU webcast Wednesday at noon CST as she tackles questions such as:

-- Can the use of personal information available on the internet run afoul of RPC Rule 4.4 when an attorney publicizes that information in litigation or negotiation?
-- Is the same true for personal e-mails sent by a third party to a party to the litigation?
-- How do you balance the duty to zealously represent clients and the duty to respect the rights of third persons when information from hidden recorders, GPS tracking devices, and spyware on computers is involved?

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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. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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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. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

ELIZABETH CALCUTT COWAN v. PETER CALCUTT

Court: TCA

Attorneys:

Connie Reguli, Brentwood, Tennessee, pro se appellant.

Donna L. Green and Demeka K. Church, Brentwood, Tennessee, for the appellee, Elizabeth Calcutt Cowan.

Judge: LEE

Attorney appeals trial court's judgment holding her in civil contempt. No transcript of the contempt hearing was available for appellate review, and the appellant filed a statement of the evidence. However, because the appellee's objection to this statement of the evidence was not ruled upon by the trial court in accordance with Tenn. R. App. P. 24(e), the judgment is vacated ,and the cause is remanded for new trial.

http://www.tba2.org/tba_files/TCA/2008/cowane_120908.pdf


JEREMY SHANE JOHNSON v. STATE OF TENNESSEE

Court: TCA

Attorneys:

John Allen Brooks, Chattanooga, Tennessee, for appellant, Jeremy Shane Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter, and Benjamin A. Ball, Assistant Attorney General, Nashville, Tennessee, for appellee, State of Tennessee.

Judge: FRANKS

Petitioner had entered a plea of delinquent to firing a weapon within the city limits and illegal possession of a firearm in Juvenile Court, and subsequently sought relief in a Post-Conviction Petition in the Trial Court. The Trial Court dismissed the Petition on the grounds that petitioner was not in custody of the Department of Children's Services at the time he filed the Petition for Relief. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2008/johnsonj_120908.pdf

SWINEY Concurring
http://www.tba2.org/tba_files/TCA/2008/johnsonj_CON_120908.pdf


JIMMY KYLE, ET AL. v. J.A. FULMER TRUST

Court: TCA

Attorneys:

John McQuiston, II, Memphis, TN, for Appellant

John S. Golwen, Memphis, TN, for Appellee

William G. Whitman, Memphis, TN, for Appellee

Judge: STAFFORD

This appeal concerns a purchase option in a lease of a tract of land in Shelby County, Tennessee. Executed in 1950, the lease had an initial term of 50 years and six months. In 1953, the Lessee exercised its option to renew, allowing possession for an additional 50 years through 2050. In 2001, the Lessee attempted to exercise its option to purchase the leased property. Lessor then sought a declaratory judgment determining the validity of the purchase option, and if valid, the value to be paid for the Lessor's interest in the property. The trial court found that the Lessee properly exercised the purchase option and that the value of the Lessor's interest should be based upon the property as unencumbered by the remaining 50-year lease term. We affirm the trial court's finding regarding the purchase option, but reverse its determination of the value of the Lessor's interest in the property. Affirmed in part, reversed in part and remanded.

http://www.tba2.org/tba_files/TCA/2008/kylej_120908.pdf


FRED MARSHALL v. JOHN KEITH JACKSON and CHARLES DAVID JONES

Court: TCA

Attorneys:

John H. Baker III, Murfreesboro, Tennessee, for the appellant, Fred Marshall

Christina B. Jackson, Murfreesboro, Tennessee, for the appellees, John Keith Jackson and Charles David Jones

Judge: KIRBY

This appeal involves piercing the corporate veil. The plaintiff owned a gasoline service station. He entered into an agreement with a corporation to supply his gasoline. The supplier corporation breached the contract and the plaintiff retailer was awarded damages. Subsequently, both the supplier and its parent company became insolvent. The plaintiff retailer now seeks to pierce the corporate veils of both the supplier corporation and its parent corporation in order to enforce his judgment against the defendant shareholders of the parent corporation. After a bench trial, the trial court found the proof sufficient to allow the retailer to pierce the corporate veil of the subsidiary supplier corporation, but not that of the parent corporation. Accordingly, it held for the defendant shareholders of the parent corporation. The plaintiff retailer now appeals, arguing that the trial court erred in finding that the shareholders of the parent corporation could not be held liable for the supplier corporation's debt to the retailer. We affirm, finding that the evidence does not preponderate against the trial court's decision.

http://www.tba2.org/tba_files/TCA/2008/marshallf_120908.pdf


PETRA SMITH v. JAMES CALVERT SMITH

Court: TCA

Attorneys:

Patricia A. Rust, Clarksville, Tennessee, for the appellant, Petra Smith.

Bradley M. Carter, Clarksville, Tennessee, for the appellee, James Calvert Smith.

Judge: BENNETT

In this divorce action, Wife filed a motion to alter or amend the final judgment arguing that the decree did not accurately reflect the judge's oral ruling declaring the parties divorced but instead stated the divorce was granted to Husband based on Wife's inappropriate marital conduct. Wife appeals from the trial court's order denying her motion to alter or amend the divorce decree. We affirm.

http://www.tba2.org/tba_files/TCA/2008/smithp_120908.pdf


STATE OF TENNESSEE v. JASON GLENN BAGGETT

Court: TCCA

Attorneys:

Joseph P. Atnip, District Public Defender (on appeal), and William K. Randolph, Assistant Distant Public Defender (at trial), Dredsen, Tennessee, for the appellant, Jason Glenn Baggett.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Jason Glenn Baggett (hereinafter "Baggett"), was convicted by an Obion County Circuit Court jury of forgery and criminal simulation and sentenced to concurrent sentences of six years, as a career offender, in the Department of Correction. On appeal, Baggett argues that the evidence was insufficient to support his convictions. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/baggettj_120908.pdf


JAMES CARTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Carter, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Matthew Bryant Haskell, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, James Carter, appeals the summary dismissal of his petition for writ of error coram nobis, arguing that due process requires that the statute of limitations for filing the petition be tolled. The State has filed a motion requesting that we affirm the summary dismissal pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the petitioner filed his petition well outside the one-year statute of limitations and has not shown any reason that the limitations period should be tolled, we affirm the summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2008/carterj_120908.pdf


RONNIE CHARLESTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Ronnie Charleston.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Aggrieved by the denial of his 2007 petition for post-conviction relief from his 2005 Davidson County Criminal Court convictions for felony murder, especially aggravated robbery, and second degree murder, the petitioner, Ronnie Charleston, appeals. In this appeal, he contends that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/charlestonr_120908.pdf


STATE OF TENNESSEE v. NORMAN LONIE FLESCHMAN

Court: TCCA

Attorneys:

Richard Tennent, Nashville, Tennessee, for the appellant, Norman Lonie Fleschman.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Norman Louis Fleschman, pled guilty in the Williamson County Circuit Court to two counts of sexual activity or simulated sexual activity involving a minor, Class E felonies, and one count of solicitation of a minor, a Class C felony. The plea agreement provided that the sentences imposed by the trial court were to be served concurrently but left all other sentencing determinations to the trial court, including a determination of the defendant's eligibility for judicial diversion. Following a sentencing hearing, the trial court sentenced the defendant to one year for each Class E felony conviction and to three years for the Class C felony conviction. The court further found that the defendant was not a proper candidate for judicial diversion or probation and ordered that the sentences be served in confinement in the Tennessee Department of Correction. On appeal, the defendant contends that the trial court erred: (1) by denying judicial diversion; and (2) by denying probation because the crime "should not be probatable." Upon review of the record, we conclude that the trial court incorrectly based its denial of judicial diversion and probation on the belief that an offender convicted of the offenses for which the defendant was convicted should not be eligible for judicial diversion and probation based upon the nature of the crimes themselves. Nonetheless, upon de novo review, we conclude that the defendant, though eligible for diversion, has failed to establish his suitability. However, review of the record reveals that the defendant has established his suitability for a sentence of split confinement. Accordingly, the trial courtís denial of diversion is affirmed; the court's denial of probation is reversed; and the sentence is modified to a sentence of six months confinement followed by probation.

http://www.tba2.org/tba_files/TCCA/2008/fleschmann_120908.pdf


STATE OF TENNESSEE v. RUSSELL LEE HOUSE

Court: TCCA

Attorneys:

David R. Howard, Gallatin, Tennessee, for the Appellant, Russell Lee House.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; L. Ray Whitley, District Attorney General; Lytle Anthony James and Sallie Wade Brown, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A jury convicted the Defendant, Russell Lee House, of two counts of selling less than .5 grams of a schedule II controlled substance, Class C felonies. The trial court sentenced the Defendant to serve two concurrent six-year sentences in the Tennessee Department of Correction ("TDOC") and ordered him to pay $60,000 in fines. The Defendant appeals, contending: (1) the evidence was insufficient to support his convictions; (2) the trial court improperly imposed the fines; and (3) the trial court erred when it ordered the Defendant to serve two concurrent six-year sentences. After reviewing the record, we affirm in part and reverse in part the judgments of the trial court, and remand for additional proceedings regarding imposition of fines.

http://www.tba2.org/tba_files/TCCA/2008/houser_120908.pdf


STATE OF TENNESSEE v. BENTON LEWIS

Court: TCCA

Attorneys:

Keith H. Grant (at trial and on appeal) and Rob Philyaw (at trial), Dunlap, Tennessee, for the appellant, Benton Lewis.

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

Judge: MCLIN

The defendant, Benton Lewis, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pled guilty to driving under the influence (DUI). As a condition of his guilty plea, the defendant reserved a certified question of law challenging the denial of his motion to suppress based upon his allegation that he was subjected to an unconstitutional investigative stop. Following our review, we affirm the judgment of the trial court denying the defendant's motion to suppress.

http://www.tba2.org/tba_files/TCCA/2008/lewisb_120908.pdf


STATE OF TENNESSEE v. MATTHEW KIRK MCWHORTER

Court: TCCA

Attorneys:

Stephanie D. Ritchie, Clarksville, Tennessee (on appeal); Worth Lovett, Clarksville, Tennessee (at trial) for the Defendant, Matthew Kirk McWhorter.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Clarence E. Lutz, Assistant Attorney General; John W. Carney, District Attorney General; Art Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Montgomery County jury convicted the Defendant of rape of a child, and the trial court sentenced him to serve a twenty-three year sentence. On appeal, the Defendant claims: (1) there was insufficient evidence to support the conviction of rape of a child; (2) the trial court erred by admitting the Defendant's confession and statements; (3) the trial court erred by letting the jury members see the Defendant in shackles; (4) the trial court erred by allowing the jury to deliberate after it reported being deadlocked; and (5) the trial court erred when it enhanced the Defendant's sentence and ordered him to serve it consecutively to the sentences he was already serving. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/mcwhorterm_120908.pdf


STATE OF TENNESSEE v. EDDIE WAYNE PARRISH

Court: TCCA

Attorneys:

Lonnie E. Maze III., at trial and on appeal, and Jeff Walker, at trial, Nashville, Tennessee, for the appellant, Eddie Wayne Parrish.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Eddie Wayne Parrish, was convicted of one count of aggravated robbery, a Class B felony, and one count of possession of a Schedule II controlled substance with the intent to sell, a Class C felony. While released on bond, the defendant committed aggravated robbery in two neighboring counties. He was convicted and sentenced for those offenses before he received his sentences in the instant case. On appeal, the defendant argues that the trial court erred by ordering that his sentences in the instant case run consecutively to his out-of-county aggravated robbery sentences. Specifically, the defendant argues that the trial court erred by imposing consecutive sentences because he was both a dangerous offender and had an extensive history of criminal behavior as defined by Tennessee Code Annotated section 40-35-115(b). 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/parrishe_120908.pdf


STATE OF TENNESSEE v. ANNETTE M. TAYLOR

Court: TCCA

Attorneys:

J. Liddell Kirk (on appeal), Knoxville, Tennessee, and Mack Garner (at trial), Maryville, Tennessee, for the Appellant, Annette M. Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; Michael L. Flynn, District Attorney General; Robert L. Headrick, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant pled guilty in November 2006 to three counts of violating a habitual motor vehicle offender ("HMVO") order, a Class E felony. After a hearing, the trial court revoked the Defendant's community corrections sentence and ordered her to serve the remainder of her sentence in the Tennessee Department of Correction ("TDOC"). On appeal, the Defendant claims the trial court erred when it revoked her community corrections sentence and re-sentenced her. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/taylora_120908.pdf


WILLIE L. WATKINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph R. Taggart, Jackson, Tennessee, for the appellant, Willie L. Watkins.

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

Judge: TIPTON

The petitioner, Willie L. Watkins, appeals from the Madison County Circuit Court's denial of his petition for post-conviction relief from his guilty-plea convictions of three counts of sale of one- half gram or less of cocaine and resulting eight-year sentence. The petitioner contends that he received the ineffective assistance of counsel and that he did not knowingly and voluntarily enter into the guilty pleas. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/watkinsw_120908.pdf


TODAY'S NEWS

Legal News
Your Practice
TBA Member Services

Legal News
First woman in state closer to execution
Gaile K. Owens, the first woman in Tennessee to be sentenced to death for murder, is one step closer to execution after the Sixth Circuit Court of Appeals denied her habeas petition in a 2-1 decision. Owens was convicted in Shelby County in 1986 of accessory before the fact in the 1985 murder of her husband. She had hired Sidney Porterfield, who was also sentenced to death, to do the job. With this latest ruling, Owens's options are to file appeals with the United States Supreme Court and/or Gov. Phil Bredesen.
NashvillePost.com reports
Death penalty study committee votes for 'independent body'
The state legislature's death penalty study committee voted Monday to create an independent body that will help defendants in capital cases find a good lawyer. The appointing authority would make sure only qualified lawyers try capital cases, and that they're paid enough for their services. State Sen. Doug Jackson, who co-chairs the study committee, says creating the independent body would cost two to three million dollars. But if successful, it could save the state money. He says nothing is more expensive than bad defense lawyers in a capital case.
Find out more from WPLN.org
'English Only' amendment clears last legal hurdle
The Tennessee Supreme Court on Monday said it would not grant an expedited hearing to an appeal of Chancellor Claudia Bonnyman's ruling on an English Only ballot initiative in Davidson County. The proposal would make English the official language of Metro government and state that no individual has a right to services in any other language.
NashvillePost.com has more
'Right to be left alone' stressed in Craig case
The Minnesota Court of Appeals ruled today that a trial court did not abuse its discretion by denying Sen. Larry Craig's petition to withdraw a plea. The court upheld the disorderly conduct statute used to charge Craig, saying it is not unconstitutionally overbroad. Craig had pleaded guilty after his arrest in June 2007. He was accused of tapping his foot and waving his hand under the partition of a restroom stall occupied by an undercover cop. The appeals court opinion stressed a "right to be left alone" by those in neighboring bathroom stalls that justifies a ban on unwanted communication.
ABAJournal.com connects you to the story
Clerks influence justices more than you think, study says
U.S. Supreme Court justices are swayed by their law clerks, tending to vote more liberally or conservatively as more clerks of like ilk join their chambers, according to a new study published in the DePaul Law Review. The article acknowledges that justices tend to hire like-minded clerks, but says "clerks' ideological predilections exert an additional, and not insubstantial, influence on the justices' decisions on the merits."
ABAJournal.com connects you to the story
Your Practice
Note to firms: Stay on the good side of general counsel
Business pitches on the golf course, surprise $35,000 bills for legal memos and lawyers who discuss cases with the company's executives without keeping in-house counsel in the loop are just a few of general counsel's least favorite things. If your firm works with GCs you'll want to read their side of the story
in the National Law Journal
TBA Member Services
New benefit provides communications solutions
PAETEC personalizes communications solutions for professional practices in Tennessee, offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE and managed services. The TBA has teamed up with the company to offer special products and pricing for members and their firms. For more information contact Sharon Joyce in Nashville at (615) 324-1845, Mark Priest in Memphis at (901) 312-1802, or Mark Morrell in Knoxville/Chattanooga at (865) 251-1765.


 
 
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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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