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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.

CHARLOTTE BRANSON v. JOYCE FITZGERALD, d/b/a REALTY EXECUTIVES OF KINGSTON

Court: TCA

Attorneys:

Heather G. Anderson, Knoxville, Tennessee for the Appellant, Joyce Fitzgerald, d/b/a Realty Executives of Kingston.

Jack H. McPherson, Jr., Kingston, Tennessee for the Appellee, Charlotte Branson.

Judge: SWINEY

Charlotte Branson ("Plaintiff") sued Joyce Fitzgerald, d/b/a Realty Executives of Kingston with regard to real estate commissions for several specific transactions. After a trial, the Trial Court entered an order finding and holding, inter alia, that Plaintiff was entitled to a judgment against Ms. Fitzgerald for the commissions on three of the transactions. Ms. Fitzgerald appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/bransonc_120409.pdf


IN RE: M.M.M. (d/o/b 10/13/2007), A Child Under Eighteen (18) Years of Age

Court: TCA

Attorneys:

Melissa A. Downing, Jackson, Tennessee, for the Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and Lindsey O. Appiah, Assistant Attorney General, for the State of Tennessee, Department of Children's Services.

Angela L. Jenkins Hines, Guardian Ad Litem.

Judge: FARMER

The juvenile court terminated the parental rights of the appellant, L.M. ("Mother"), on April 7, 2009. The court found multiple grounds for termination and concluded that termination was in the best interests of the child. Mother appeals. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2009/mmm_120409.pdf


STATE OF TENNESSEE v. TYCORRIAN CHANDLER

Court: TCCA

Attorneys:

Russell T. Greene, Knoxville, Tennessee, for the appellant, Tycorrian Chandler.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Tycorrian Chandler, was found guilty of first degree premeditated murder and sentenced to life with the possibility of parole. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/chandlert_120409.pdf


THOMAS COTHRAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick D. Frogge, Nashville, Tennessee, for the Petitioner-Appellant, Thomas Cothran.

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

Judge: MCMULLEN

The Petitioner, Thomas Cothran, was convicted by a jury of four counts of aggravated vehicular homicide, three counts of vehicular assault, and one count of driving under the influence. The petitioner now appeals the denial of post-conviction relief, claiming the post-conviction court erred in finding that he received effective assistance of counsel. Upon our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/cothrant_120409.pdf


STATE OF TENNESSEE v. TAMMY R. FLATT

Court: TCCA

Attorneys:

Cynthia S. Parson (at trial and on appeal), Nashville, Tennessee, and William T. Ramsey (on appeal), Nashville, Tennessee, for the Appellant, Tammy R. Flatt.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; Tom P. Thompson, District Attorney General; Brian Fuller, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Tammy R. Flatt, pled guilty to one count of robbery, a Class C felony, and four counts of aggravated robbery, a Class B felony. The trial court imposed a total effective sentence of twenty-three years in the Tennessee Department of Correction ("TDOC"). The Defendant appeals, contending: (1) the trial court erred in setting the length of each of her sentences; and (2) the trial court erred when it imposed consecutive sentencing. After a thorough review of the record and relevant authorities, we conclude that the trial court erred in its application of one enhancement factor and in failing to apply certain mitigating factors. We further conclude that the trial court's imposition of consecutive sentencing was improper. Accordingly, we modify the Defendant's effective sentence to ten years in the TDOC.

http://www.tba2.org/tba_files/TCCA/2009/flattt_120409.pdf


STATE OF TENNESSEE v. JAMES WRIGHT FREELS

Court: TCCA

Attorneys:

Kevin C. Angel and Lauren R. Biloski, Oak Ridge, Tennessee, for the appellant, James Wright Freels.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; David S. Clark, District Attorney General; and Sandra N. Donaghy, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, James Wright Freels, was indicted in count one of the indictment for sexual battery by an authority figure, a Class C felony, and in count two for incest, a Class C felony. Pursuant to the terms of a negotiated plea agreement, Defendant entered a plea of guilty to incest in count two of the indictment with the length and manner of service to be determined by the trial court. The state agreed to enter a nolo prosequi as to count one. Following a sentencing hearing, the trial court denied Defendant's request for judicial diversion. The trial court sentenced Defendant as a Range I, standard offender, to three years, with thirty days to be served in the county jail, and the remainder of Defendant's sentence suspended and Defendant placed on supervised probation. On appeal, Defendant challenges the trial court's denial of his request for judicial diversion. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/freelsj_120409.pdf


STATE OF TENNESSEE v. CODY MATTHEW HEADRICK

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William H. Cox, III, District Attorney General; and Jay Woods, Assistant District Attorney General, for the appellant, State of Tennessee.

Jerry H. Summers and Marya L. Schalk, Chattanooga, Tennessee, for the appellee, Cody Matthew Headrick.

Judge: WITT

The State appeals from the Hamilton County Criminal Court's decision to order the prosecution to grant pretrial diversion to the defendant, Cody Matthew Headrick, who was indicted for vehicular homicide. First, the State maintains that an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure lies from the trial court's overruling the denial of diversion by the assistant district attorney general. In the alternative, the State requests that this court treat its improperly-filed Rule 3 appeal as an extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate Procedure. See Tenn. R. App. P. 3(c), 10(a). Second, the State argues that the trial court erred in reversing the assistant district attorney general's denial of pretrial diversion. Upon our review, we hold that the State's appeal does not present a proper Rule 3 appeal and that, although the case does meet the threshold of Rule 10 review, the order should be affirmed.

http://www.tba2.org/tba_files/TCCA/2009/headrickc_120409.pdf

THOMAS concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCCA/2009/headrickc_DISS_120409.pdf


STATE OF TENNESSEE v. ROBERT N. HELTON

Court: TCCA

Attorneys:

Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Robert Norman Helton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General; Chuck Crawford, District Attorney General; Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Bedford County jury convicted the Defendant, Robert Norman Helton, of vandalism, burglary and theft of property, and the trial court sentenced him to twenty-seven years in the Tennessee Department of Correction. The Defendant appeals, arguing that the evidence is insufficient to support his convictions and that the trial court erred when it set the range and length of his sentence. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2009/heltonr_120409.pdf


STATE OF TENNESSEE v. DEMICO JEROME MCELROY

Court: TCCA

Attorneys:

Richard A. Tate, Blountville, Tennessee, for the appellant, Demico Jerome McElroy.

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

Judge: OGLE

The appellant, Demico Jerome McElroy, was convicted by a jury in the Sullivan County Criminal Court of unauthorized use of a vehicle and felony evading arrest, and he received a total effective sentence of two years, eleven months, and twenty-nine days. On appeal, the appellant challenges the trial court's imposition of consecutive sentences. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mcelroyd_120409.pdf


STATE OF TENNESSEE v. THOMAS ANTHONY PEDIGO

Court: TCCA

Attorneys:

Larry Samuel Patterson, Jr., Columbia, Tennessee, for the Appellant, Thomas A. Pedigo.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General; Mike Bottoms, District Attorney General; Daniel J. Runde, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Thomas A. Pedigo, pled guilty to aggravated burglary, a class C felony, and theft of property valued over $1000, a class D felony. The trial court sentenced the Defendant, a Range III offender, to an effective sentence of fifteen years to be served in the Tennessee Department of Correction. On appeal, the Defendant contends the trial court erred when it sentenced him by not properly applying enhancement and mitigating factors and by not sufficiently articulating its sentencing determinations in the record. Further, he contends that the State did not timely file the mandatory "Notice to Seek Enhancement." After a thorough review of the record and the applicable authorities, we conclude that the trial court did not make adequate findings in the record to facilitate our review. We, therefore, remand this case to the trial court for resentencing.

http://www.tba2.org/tba_files/TCCA/2009/pedigot_120409.pdf


RONALD YATES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Eran Julian (on appeal) and Byron Winsett (at hearing), Memphis, Tennessee, for the appellant, Ronald Yates.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Zak and Anita Spinetta, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Ronald Yates, appeals the post-conviction court's dismissal of his petition for post- conviction relief, arguing that dismissal was improper because the court did not make specific findings or conduct an evidentiary hearing. He additionally argues that if the court's intent was to dismiss on grounds that the issue of ineffective assistance of counsel had been previously determined, such action was in error because he had different trial and appellate counsel. After review, we conclude that the post-conviction court erred in dismissing the petition without conducting an evidentiary hearing as to the petitioner's claim of ineffective assistance of appellate counsel. Therefore, we reverse the dismissal and remand for proceedings consistent with the Post- Conviction Procedure Act.

http://www.tba2.org/tba_files/TCCA/2009/yatesr_120409.pdf


TODAY'S NEWS

Legal News
Court of the Judiciary
Upcoming
TBA Member Services

Legal News
New NBA president launches Modest Means Initiative
Jonathan Cole took office as the new president of the Nashville Bar Association during its annual meeting Thursday night. In taking office, Cole announced a new Modest Means Initiative that will help bring affordable legal services to clients who do not qualify for legal aid or pro bono services, but do not make enough money to afford a private attorney's regular fees. Partly funded with a grant form the Nashville Bar Foundation, the program will recruit a panel of attorneys who have agreed to provide legal services for a reduced fee for potential clients who meet income eligibility requirements. To learn more, call Wendy Cozby at 615-242-9272 or email her at wendy.cozby@nashvillebar.org.

Nashville lawyers recognized
The NBA also honored a number of its members for outstanding service during the past year. The Joseph G. Cummings Sr. Pro Bono Volunteer of the Year Award was presented to Jackie Dixon, who has provided help to more than 30 clients and their children since 1988, including 6 clients in 2009. The NBA's CLE Excellence Award was presented to Gino Bulso for his dedication and commitment to the association's CLE program.

The NBA also recognized Steven J. Eisen for writing the Article of the Year for the the Nashville Bar Journal, and Kelly L. Frey for being the magazine's Contributor of the Year. The YLD Leadership Award went to Phil Walker and the YLD Enterprise Award went to Tyler Middleton. President's Awards were presented to Jay Long, the Hon. Patsy Cottrell, Rich Littlehale, Laura Smith Tidwell, Allison LaRue, Suzanne Kessler and the NBA staff.

Also recognized was the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz PC, which received the Pro Bono Leadership Award for the implementation of the H.E.L.P. project, organizing lawyers in law firms, solo practice and corporate counsel to provide legal help at monthly clinics to 175 homeless men and women at the Campus for Human Development.

Legal jobs down nearly 42,000 in the last year
The legal services sector lost 2,900 jobs in November, the Bureau of Labor Statistics says in this month's report. The report also says that legal services has lost 41,800 jobs in the past 12 months.
ABAJournal.com connects you to the report and more
Judge says 'compromise' on autopsy on executed man
Attorneys for the late Cecil C. Johnson Jr., say there's no doubt how the executed prisoner died, and there's no reason to violate his religious beliefs to conduct an autopsy. But the state medical examiner's office says it's required by a new state statute to do a complete investigation on executed prisoners to be sure protocol was followed. Johnson was executed by lethal injection early Wednesday. U.S. District Judge Robert Echols asked both sides to try to come to a compromise. If they cannot, he plans to issue a decision early next week.
The Tennessean has the story
Judge Asbury honored with courtroom dedication
Last week a courtroom of the Campbell County Courthouse was dedicated to the Hon. Lee Asbury, who died in 2006. The Campbell County Bar Association planned the ceremony to honor the "well-respected judge, an avid outdoorsman, a farmer and devoted family man."
Read more about him in The Lafollette Press
Court issues for comment change in student loan programs
The Tennessee Supreme Court has published a proposed amendment to Tenn. Sup. Ct. R. 9, for public comment regarding establishing procedures to promote attorneys' compliance with repayment or service obligations under any of the student loan programs covered by 1999 Tenn. Pub. Ch. 476. The deadline for submitting written comments is Dec. 30.
Download the proposed amendment
Cumberland County court offices move into new space
Cumberland County General Sessions Court held its first docket call in the new Justice Center addition Thursday, and courtroom-related offices are scheduled to move into their new spaces on the third floor late next week.
The Crossville Chronicle tells you more
Carpet stink that postponed trial eradicated
After a lingering smell that caused symptoms such as coughing, burning noses and watering eyes, Criminal Court Judge Lynn Brown called Jonesborough's new justice center "toxic" earlier this week. But after a good carpet shampooing it smells like it's back to business as usual.
The Johnson City Press reports
Madison County clerk to retire
Madison County Court Clerk Judy Barnhill said Thursday that she will retire when her term ends next summer. She began working for the county in 1965 and was first elected as clerk in 1998. Her last term has had her in court a couple of times for reasons other than clerking: Barnhill filed a lawsuit against the county in 2007 for more and better-paid staff. The County Commission agreed to settle the case late last year.
The Jackson Sun has more
Court of the Judiciary
Judge Bell answers again
The Court of the Judiciary has received Judge John Bell's amended answer to the formal charges that were brought against him. In November, Bell's response to the court largely invoked his privilege against self-incrimination guaranteed by the Fifth Amendment of the U.S. Constitution. However, the court then ordered him to provide an amended, more detailed answer.
See the document on the AOC web site
Upcoming
Legal Services' 'champions' to be honored Dec. 15
The Legal Aid Society of Middle Tennessee and the Cumberlands will celebrate three "champions" -- Harris A. Gilbert, Charles H. Warfield and Ashley T. Wiltshire Jr. -- during a brief dedication ceremony on Dec. 15, at 1 p.m., at its Nashville office, 300 Deaderick St. For 40 years, the Legal Aid Society has been providing free legal services; these three men have been champions for that work, which has reached so many individuals, LAS says. To honor them, the main conference room will be named the Gilbert-Warfield Conference Room. The small conference room will be called the Ashley T. Wiltshire Jr. Conference Room to honor Wiltshire, who was executive director for 31 years. For more information, please contact Cindy Durham at 780-7125 or at cdurham@las.org.

Volunteers needed for Commodore Classic mock trial
Vanderbilt University Law School seeks volunteers to judge its second annual Commodore Classic invitational mock trial tournament, an intercollegiate competition in which 24 teams from across the nation perform trial simulations. The event is Jan. 30-31, 2010, in Nashville. The school needs to fill nearly 100 judging slots over the two days. Volunteers may judge one or all four rounds; previous judging experience is not required. Call (615) 653-8467 or email vumocktrial@gmail.com for more information.

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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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