4 new online ethics courses now available

Just in time to help you meet your 2009 CLE requirements come four new interactive online text courses from Memphis lawyer and ethics expert Brian Faughnan. All are approved for dual CLE credit.
-- Ethics for Tennessee Lawyers: Beyond Black Letter Law
-- Ethics for Tennessee Lawyers: Increasing Your Awareness
-- Ethics for Tennessee Lawyers: Situations, Questions, and Answers
-- Ethics for Tennessee Lawyers: Analysis by Scenario


See the TennBarU CLE catalog for a full listing of available courses

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
07 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
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00 - Formal Ethics Opinions - BPR

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.

ROSE M. DARNELL (CARTER) v. JEREMY W. DARNELL
CORRECTION: On page 1, the trial judge's name has been changed to J. Mark Rogers


Court: TCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Rose M. Darnell (Carter).

R. Wilford Fraley, III, Murfreesboro, Tennessee, for the appellee, Jeremy W. Darnell.

Judge: COTTRELL

The mother appeals the trial court's decision to revise the parenting arrangement to allow the father Wednesday night residential time. Finding that mother petitioned the court alleging a change in circumstances and that the parties amended the parenting plan by agreement, we agree with the trial court that a material change in circumstances had been established under Tenn. Code Ann. section 36-6- 102(a)(2)(C). Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2009/darnellr_CORR_120209.pdf


ELIZABETH FUGATE v. TENNESSEE FARMERS INSURANCE COMPANIES

Court: TCA

Attorneys:

John T, Johnson, Jr., Knoxville, Tennessee, for the Appellant, Tennessee Farmers Insurance Companies.

David H. Stanifer and Lindsey C. Cadle, Tazewell, Tennessee, for the Appellee, Elizabeth Fugate.

Judge: SWINEY

Elizabeth Fugate ("Plaintiff") had a homeowners insurance policy issued by Tennessee Farmers Insurance Company ("Defendant"). In April 2007, a retaining wall on Plaintiff's property collapsed. Defendant denied the claim asserting, among other things, that the collapse was caused by built up water pressure and that the retaining wall had been defectively constructed. Defendant asserted that both of these causes of the collapse were covered by policy exclusions. Following a trial, the Trial Court determined that the retaining wall had been properly built and there was insurance coverage pursuant to the policy. The Trial Court entered a judgment in favor of Plaintiff for $18,680. We conclude that the Trial Court improperly considered personal knowledge which he possessed when deciding this case. Accordingly, we vacate the judgment and remand this case for a new trial before a different trial judge.

http://www.tba2.org/tba_files/TCA/2009/fugatee_120209.pdf


JENNY PENTECOST (DECKARD) v. BRADY PENTECOST, SR.

Court: TCA

Attorneys:

Fletcher W. Long, Springfield, Tennessee, for the appellant, Jenny Pentecost.

Rosemary E. Phillips, Goodlettsville, Tennessee, for the appellee, Brady Pentecost, Sr.

Judge: BENNETT

Mother challenges the trial court's denial of her petition to make her the primary residential parent despite the court's finding that there had been a material change of circumstances. We affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2009/pentecost_120209.pdf


JO TAYLOR, ET AL. v. WENDELL HARRIS, ET AL. AND JO TAYLOR, ET AL. v. LOUIE R. LADD, ET AL.
CORRECTION: On page 5, fourth paragraph, third sentence, footnote 8 has been deleted and subsequent footnotes have been renumbered


Court: TCA

Attorneys:

William G. Womack, Nashville, Tennessee, for the appellants, Jo Taylor, Kay Womack, Robert Womack, Sheila Womack, and William G. Womack.

Jerre M. Hood, Winchester, Tennessee, for the appellee, James Norwood.

Jerry Bible, Jasper, Tennessee, for the appellees, Deborah K. Ladd, Louie R. Ladd and Wendell Harris.

Judge: DINKINS

In this ejectment action, the plaintiffs appeal the trial court's finding that they did not prove title to the property at issue by adverse possession in accordance with Tenn. Code Ann. section 28-2-105 and that they failed to show the boundaries of the property they claimed. Plaintiffs also contend that they were entitled to the presumption of ownership set forth at Tenn. Code Ann. section 28-2-109. Finding no basis to reverse the judgment of the trial court, we affirm same.

http://www.tba2.org/tba_files/TCA/2009/taylorj_CORR_120209.pdf


MICHAEL JOSEPH GRANT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael Joseph Grant, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and A. Wayne Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Michael Joseph Grant, appeals the dismissal of his petition for post-conviction relief from his aggravated burglary and theft convictions for which he received an effective four-year suspended sentence and from the revocation of his probation. He entered pleas of guilty to aggravated burglary and theft and was sentenced to four years, which was suspended. His petition for post-conviction relief asserted that his pleas of guilty were involuntary and unknowing, that his confession was coerced, that the State failed to provide immunity to him, that law enforcement personnel conspired to violate his right to due process, and that the trial court erred in revoking his probation. The post-conviction court dismissed the petition, and the Petitioner filed an untimely appeal. On appeal, the Petitioner contends, and the State agrees, that the post-conviction court erred in dismissing the petition without a hearing. Following our review, we agree and remand for the appointment of counsel and an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2009/grantm_120209.pdf


STATE OF TENNESSEE v. ANNETTE HAMBY aka ANNETTE TRAN-MCNABB

Court: TCCA

Attorneys:

Charles Richard Hughes, Jr., District Public Defender (at trial), and John P. Fortuno, Assistant Public Defender (on appeal), for the appellant, Annette Hamby aka Annette Tran-McNabb.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and A. Wayne Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Annette Hamby, appeals as of right from her Bradley County jury conviction for first degree premeditated murder. She contends that the evidence, which included proof of her intoxication, was insufficient for the jury to find beyond a reasonable doubt that she premeditated the crime. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/hambya_120209.pdf


EDD STEPP v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brad L. Davidson, Newport, Tennessee, for the appellant, Edd Stepp.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; James B. Dunn, District Attorney General; and Amanda H. Inman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Edd Stepp, pled guilty to nine counts of aggravated sexual battery, a Class B felony, and was sentenced as a violent offender to twelve years for each count, with four of the sentences to be served consecutively, for an effective sentence of forty-eight years. On appeal, this court modified his sentences to eight years for each count, with two of the sentences to be served consecutively, for an effective sentence of sixteen years. The Petitioner filed a petition for post- conviction relief which, following an evidentiary hearing, was dismissed by the post-conviction court. On appeal, the Petitioner argues, and the State concedes, that the post-conviction court erred in finding that the guilty pleas of the Petitioner were knowing and voluntary and in dismissing the petition. Following our review, we agree, reverse the order of the post-conviction court, and remand for the granting of post- conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/steppe_120209.pdf


JESSE B. TUCKER v. JIM MORROW, WARDEN

Court: TCCA

Attorneys:

Jesse B. Tucker, Pikeville, Tennessee, pro se.

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

Judge: WITT

The petitioner, Jesse B. Tucker, appeals from the dismissal of his petition for habeas corpus relief. On appeal, he asserts entitlement to habeas corpus relief via claims of sentence expiration and sentence illegality. Because the habeas corpus court erroneously concluded that the petitioner could not petition for habeas corpus relief and because the petitioner exhibited sufficient documentation to his petition for writ of habeas corpus to establish his claim of sentence illegality, we reverse the judgment of the habeas corpus court. We remand the case to the habeas corpus court for the entry of an order directing the trial court to amend the judgment form for the petitioner's conviction of aggravated burglary in count two of case number 73953A to reflect the grant of pretrial jail credits equal to those granted on the petitioner's conviction of robbery in count one of case number 73953A.

http://www.tba2.org/tba_files/TCCA/2009/tuckerj_120209.pdf


STATE OF TENNESSEE v. CHARLES EARNEST WARD

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, District Public Defender (at trial), for the appellant, Charles Earnest Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Kathy Aslinger, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Charles Earnest Ward, pleaded guilty to one count of promotion of methamphetamine manufacturing. See T.C.A. section 39-17-433 (2006). A plea agreement with the State provided for a three-year sentence with the manner of service to be decided by the trial court after a sentencing hearing. The trial court ordered the defendant to serve his entire three-year sentence incarcerated, and the defendant appeals and argues that the trial court erred in denying alternative sentencing. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wardc_120209.pdf


STATE OF TENNESSEE v. APRIL JENNIFER WARREN

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Raymond Mack Garner, District Public Defender, and Stacey D. Nordquist, Assistant Public Defender (at trial), for the appellant, April Jennifer Warren.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Michael L. Flynn, District Attorney General; Tammy M. Harrington, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, April Jennifer Warren, was convicted upon her guilty plea in the Blount County Circuit Court of voluntary manslaughter, a Class C felony. Pursuant to a plea agreement, the Defendant received a Range II, ten-year sentence with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court ordered the Defendant to serve the sentence in confinement. The Defendant appeals, contending that the trial court erred in denying alternative sentencing. Based upon conduct by the trial judge, we reverse the judgment of the trial court and remand the case for resentencing.

http://www.tba2.org/tba_files/TCCA/2009/warrena_120209.pdf


STATE OF TENNESSEE v. JESSE DANIEL WRIGHT

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Richard A. Tate, Assistant Public Defender, Blountville, Tennessee, for the appellant, Jesse Daniel Wright.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Brandon Haren, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Jesse Daniel Wright, was convicted of driving under the influence, a Class A misdemeanor, possession of a Schedule III narcotic, a Class A misdemeanor, and running a stop sign, a Class C misdemeanor. Following a sentencing hearing, Defendant was sentenced to concurrent sentences of eleven months, twenty-nine days for each Class A misdemeanor conviction, and thirty days for his Class C misdemeanor conviction, for an effective sentence of eleven months, twenty-nine days, all of which was suspended after serving ten days in confinement. On appeal, Defendant argues that the evidence was insufficient to support his conviction of driving under the influence of an intoxicant. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wrightj_120209.pdf


Exemption To Metropolitan Nashville-Davidson County's Graduated Storm Water User Fees

TN Attorney General Opinions

Date: 2009-12-02

Opinion Number: 09-182

http://www.tba2.org/tba_files/AG/2009/ag_09_182.pdf

TODAY'S NEWS

Legal News
Politics
TBA Member Services

Legal News
12 apply for Shelby County circuit court
The deadline to submit applications for the 30th Judicial District Circuit Court vacancy, created by the retirement of Judge D'Army Bailey, has passed. The following 12 attorneys submitted an application for consideration: Mischelle Alexander-Best, Shelby County Public Defender's Office, Eads; Jeff A. Crow Jr., Germantown; Robert M. Fargarson, Fargarson & Brooke, Memphis; Michael G. Floyd, Memphis; Joseph E. Garrett, Memphis; Linda Nettles Harris, Assistant U.S. Attorney, Memphis; R. Layne Holley, Germantown; Rhynette Northcross Hurd, Collierville; JoeDae L. Jenkins, Memphis; Venita Marie Martin, Glankler Brown, Memphis; William M. Monroe, Memphis; and Paul A. Robinson Jr., Memphis. The commission will meet at 8:30 a.m. CST on Dec. 19 at the Embassy Suites Hotel in Memphis to consider the applicants.

State executes Cecil Johnson
At 1:34 a.m. today, Cecil Johnson Jr. became the sixth person executed in Tennessee since the death penalty was reinstated. Last ditch efforts for clemency and motions to stop the execution failed: Tuesday night the Tennessee Supreme Court and the U.S. Supreme Court denied motions for a stay of execution, and the U.S. high court denied a petition for writ of certiorari. Shortly before Johnson's death, however, the federal court for the Middle District of Tennessee granted a temporary restraining order precluding an autopsy of Johnson until the court reviews the issue. A hearing on that matter is set for next Thursday. The Tennessean has the story.
Read the filings and court orders in the case on the AOC web site
Judge declares new Justice Center toxic
Coughing fits, watery eyes and burning noses are becoming a common thing in some courtrooms at the new Washington County Justice Center. The problem is so bad that one judge cancelled an upcoming homicide trial. The move comes as he and other court personnel have been afflicted with allergic reactions to what they believe is formaldehyde in the carpet.
Learn more in the Johnson City Press
Forgotten prisoner could be sign of over-burdened system
In June, U.S. District Judge Harry S. "Sandy" Mattice ordered that a mentally incompetent East Tennessee defendant arrested on drug charges be hospitalized and treated. The man, however, languished at a detention center for six additional months. Prosecutors now say they will likely file a motion to dismiss all charges based on the oversight. At a hearing before Mattice on Monday, the case was part of a larger discussion on the volume of prosecutions in the Eastern District, which has left prosecutors spread thin.
The Times Free Press has the story
Magistrate position available in Maury County
Maury County's chief magistrate is resigning to run for sheriff next year, leaving an opening for a new magistrate to be appointed by the county's general sessions judges. The position will be posted internally first, and then opened to the public if a suitable candidate is not found. Qualifications for the position include supervisory experience in law enforcement or criminal justice, and familiarity with the court system. Once a new magistrate is appointed, the judges will select a new chief magistrate from among the group.
The Columbia Daily Herald reports
Attorney named local Federal Bar Association president
Morristown lawyer F. Braxton "Brack" Terry has been elected president of the Northeast Tennessee Chapter of the Federal Bar Association. Terry, who is with the law firm of Terry, Terry & Stapleton, handles personal injury, product liability and workers' compensation cases. He earned his law degree in 1996 from the Nashville School of Law. The Federal Bar Association is a professional organization for lawyers and judges in federal practice. Terry's firm announced the news.

Politics
Tanner to retire next year, Herron to seek seat
U.S. Rep. John Tanner, a Tennessee Democrat and co-founder of the conservative Blue Dog coalition, announced yesterday he would retire next year after 11 terms in Congress. His decision had immediate ramifications elsewhere in Tennessee. This morning, state Sen. Roy Herron, D-Dresden, announced he is withdrawing from next year's race for governor and entering the race for Tanner's 8th District seat.
Read more about both men in the Commercial Appeal
Kelsey wins Senate seat, field set for House race
Republican Brian Kelsey was elected District 31 state senator in West Tennessee yesterday. The seat, which includes portions of Memphis, became vacant after the resignation of Paul Stanley. Kelsey formerly served in the state House.

In the race to fill Kelsey's District 83 House seat, Mark White edged out two GOP opponents yesterday to win the Republican primary. Voters now will face a three-way general election race on Jan. 12 as White takes on Democrat Guthrie Castle and independent John D. Andreuccetti. Read more about Kelsey's election or the state House race in the Commercial Appeal.

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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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