Ex parte talks in 'problem solving courts' approved

The Tennessee Supreme Court has approved new commentary for the Code of Judicial Conduct saying "problem solving courts" like the drug courts and mental health courts that have cropped up in recent years may, if local rules authorize it, engage in some ex parte communications regarding those who are under their jurisdiction. The Tennessee Bar Association, joined by the Tennessee Judicial Conference and the Tennessee Trial Judges Association, had recommended a delay in adoption of the proposal pending the comprehensive review being undertaken by the TBA Task Force on Judicial Conduct Rules. The court indicated that the new commentary was being adopted "without prejudice" to any efforts to deal with the issue in the comprehensive rules proposal.

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TODAY'S OPINIONS
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GWEN FAYNE ET AL. v. TERESA VINCENT ET AL.

Court: TSC

Attorneys:

Travis D. Henry and J. Michael Sharp, Cleveland, Tennessee, for the appellants, Teresa Vincent and David Vincent.

Michael A. Anderson, Chattanooga, Tennessee, for the appellees, Gwen Fayne and Alfred Fayne.

Judge: KOCH

This appeal involves the application of the Tennessee Consumer Protection Act to real estate professionals engaged in the sale of their personal residence. When problems with the septic system occurred soon after the sale, the purchasers filed suit in the Chancery Court for Bradley County seeking rescission and damages. The trial court, sitting without a jury, determined that the "[residential property] disclosure statement was violated" but that the sellers had not acted intentionally, maliciously, or fraudulently. The trial court ordered that the sales contract be rescinded and directed the sellers to repurchase the property from the purchasers for the original purchase price of $104,500. The purchasers appealed, and the Court of Appeals remanded the case to award additional damages to return the purchasers to their position prior to the sale and to pay for their legal expenses. Fayne v. Vincent (Fayne I), No. -2003-01966-COA-R3-CV, 2004 WL 1749189 (Tenn. Ct. App. Aug. 5, 2004) (No Tenn. R. App. P. 11 application filed). On remand, the trial court found that the sellers had violated the Tennessee Consumer Protection Act and that the sellers should pay the buyers $120,483.93, as well as $37,483.93 in attorney's fees. The sellers appealed, and the Court of Appeals affirmed the judgment. Fayne v. Vincent (Fayne II), No. E2007-00642-COA-R3-CV, 2008 WL 657849 (Tenn. Ct. App. Mar. 12, 2008). We granted the sellers' application for permission to appeal to address the application of the Tennessee Consumer Protection Act to real estate professionals engaged in the sale of their personal residence. We have determined (1) that the Tennessee Consumer Protection Act applies to the sellers under the facts of this case, and (2) that the sellers violated the Act by failing to provide the purchasers with all the information they possessed regarding the septic system. Accordingly, we affirm the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2009/fayneg_121109.pdf


JOSEPH H. JOHNSTON, WIN MYINT, WILLIAM H. MAY, and EDWARD HALL v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY and PAUL G. SUMMERS, Attorney General for the State of Tennessee

Court: TCA

Attorneys:

Raymond G. Prince, Nashville, Tennessee, for the Petitioners/Appellants Joseph H. Johnston, Win Myint, William H. May, and Edward Hall

Susan B. Cain, Lora Barkenbus Fox, and Jeff Campbell, Nashville, Tennessee, for the Respondent/Appellee Metropolitan Government of Nashville and Davidson County.

Mary Ellen Knack, Nashville, Tennessee, for the Respondent/Appellee Paul G. Summers, Attorney General for the State of Tennessee.

Judge: KIRBY

This zoning appeal involves Tennessee's Open Meetings Act. A municipal legislative body began considering legislation to implement a conservation zoning overlay in a neighborhood within the municipality. The ordinance adopting the zoning change passed on the first and second reading. Prior to the final meeting on the subject, members of the legislative body sent numerous emails to each other discussing the proposed zoning change. In addition, prior to the final meeting, some members viewed information on the zoning issue in a non-public conference room in the legislative body's office. The legislative body then adopted the zoning change at a public meeting. Thereafter, residents of the neighborhood who opposed the zoning change filed the instant lawsuit seeking a writ of certiorari to review the adoption of the ordinance. The petitioner residents argued, inter alia, that the email correspondence and the non-public meeting violated the Open Meetings Act, that the enabling statute violated the separation of powers doctrine, and that the enactment of the ordinance violated due process and was arbitrary and capricious. The trial court determined that the legislative body's actions did not violate the Open Meetings Act, and rejected the other challenges to the zoning overlay ordinance. The neighborhood residents appeal. We reverse in part and affirm in part, finding among other things that while the email correspondence constitutes a violation of the Open Meetings Act, the legislative body engaged in a "new and substantial reconsideration" of the issues in the final meeting so as to cure the violation.

http://www.tba2.org/tba_files/TCA/2009/johnstonj_121109.pdf


STATE OF TENNESSEE v. DAVID ANTHONY AVERY and FREDERICK ALEXANDER AVERY (a/k/a ALEX AVERY)

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the Appellant, David Anthony Avery.

Dumaka Shabazz, Nashville, Tennessee, for the Appellant Frederick Alexander Avery.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Melissa Roberge, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Rob McGuire, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendants, David Anthony Avery and Frederick Alexander ("Alex") Avery , of aggravated robbery, especially aggravated robbery, reckless endangerment, and attempted second degree murder. The trial court sentenced David Avery to a forty-nine year effective sentence and Frederick Avery, a violent offender, to life without the possibility of parole. On appeal, David Avery contends: (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred when it enhanced his sentences; and (3) the trial court erred when it ordered his sentences run consecutively. On appeal, Frederick Avery contends: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it sentenced him as a violent offender. After thoroughly reviewing the record and applicable authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2009/averyd_121109.pdf


STATE OF TENNESSEE v. ZEBEDIAH GEORGE BAGGETT

Court: TCCA

Attorneys:

Travis N. Meeks, Clarksville, Tennessee, for the appellant, Zebediah George Baggett.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; John Carney , District Attorney General, and Steve Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Zebediah George Baggett, was sentenced by the Montgomery County Circuit Court to eleven months and twenty-nine days in incarceration followed by four years of probation following his guilty pleas for theft over $1,000, theft over $10,000, conspiracy to commit aggravated robbery, and aggravated burglary. Subsequently, a violation of probation warrant was issued against Appellant for failure to report new arrests. After a hearing, the trial court dismissed the warrant because the State failed to prove the grounds for the revocation. A second warrant was filed after Appellant was convicted of new offenses. At the second hearing, the trial court revoked Appellant's probation, ordering him to serve his sentence in its entirety. Appellant appeals this revocation of his probation. After a review of the record, we determine that the second probation revocation hearing was not barred by res judicata, as argued by Appellant and that the trial court properly revoked Appellant's probation.

http://www.tba2.org/tba_files/TCCA/2009/baggettz_121109.pdf


STATE OF TENNESSEE v. JEREMY BOYD

Court: TCCA

Attorneys:

Randy G. Rogers, Athens, Tennessee, for the appellant, Jeremy Boyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and Paul Donald Rush, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Jeremy Boyd, appeals the trial court's order revoking his probation for robbery and aggravated burglary, Class C felonies, and his probation revocation for reckless homicide, a Class D felony. The judgments of the trial court are reversed, and the case is remanded for a new revocation hearing.

http://www.tba2.org/tba_files/TCCA/2009/boydj_121109.pdf


STATE OF TENNESSEE v. GARY DURHAM

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Gary Durham.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles Crawford, District Attorney General, and Ann Fliler and Holly Eubanks, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Gary Durham, appeals the Lincoln County trial court's denial of alternative sentencing after his guilty plea to one count of burglary, one count of misdemeanor theft, and one count of vandalism under $500. He received an effective sentence of four years to the Tennessee Department of Correction. In this appeal Appellant contends he should have received an alternative sentence. After a review of the record, we determine that the trial court properly denied alternative sentencing. Consequently, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/durhamg_121109.pdf


LUIZ GOMEZ and FRANKLIN DELACRUZ v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Bud Sharp, McMinnville, Tennessee, for appellant, Luiz Gomez.

Robert Brooks, Memphis, Tennessee, for appellant, Franklin Delacruz.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; and Rodney C. Strong, District Attorney General,, for the appellee, State of Tennessee.

Judge: SMITH

Petitioners, Luiz Gomez and Franklin Delacruz, each pled guilty to second degree murder and two counts of aggravated arson in Warren County in exchange for effective sentences of thirty-six years. Petitioners then each filed timely petitions for post-conviction relief. After a joint hearing on the petitions for relief, the post-conviction court denied relief, finding that Petitioners did not receive ineffective assistance of counsel and that their guilty pleas were entered knowingly, voluntarily, and intelligently. After a review of the record, we determine that Petitioners have failed to show that they received ineffective assistance of counsel or that their guilty pleas were entered involuntarily. Accordingly, the judgments of the post-conviction court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/gomezl_121109.pdf


STATE OF TENNESSEE v. ANTOINE DEVIN GRAY, AKA ANTOINE DEVIN WEST

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Antoine D. Gray aka Antoine Devin West.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; John W. Carney, District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Antoine Gray, aka Antoine Devin West, challenges the sentencing decision of the Montgomery County Circuit Court. Following his guilty pleas to possession of less than .5 grams of cocaine with the intent to sell, aggravated assault, and misdemeanor evading arrest, the trial court imposed an effective five-year sentence to be served in the Department of Correction. On appeal, the Defendant asserts that his sentence is excessive. After a review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/graya_121109.pdf


STATE OF TENNESSEE v. G. MIKE HOLDEN

Court: TCCA

Attorneys:

George M. Googe, District Public Defender, and Gregory D. Gookin, Assistant Public Defender, for the appellant, G. Mike Holden.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, G. Mike Holden, was convicted by a Madison County jury of one count of sale of beer to a minor, a Class A misdemeanor. He was subsequently sentenced to a term of eleven months and twenty-nine days, to be suspended following service of one hundred twenty days in the county jail. On appeal, the defendant raises the single issue of sufficiency of the evidence. However, the defendant has failed to include in the appellate record a transcript of the evidence from his trial. The defendant has submitted a statement of the evidence, pursuant to Tennessee Rule of Appellate Procedure 24(c)-(d). However, it was not timely filed pursuant to the rules. Because the issue submitted is not meritorious as a matter of law, we conclude that it is not in the interest of justice to waive the timeliness requirement. As such, the judgment of conviction is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/holdeng_121109.pdf


STATE OF TENNESSEE v. EVERETT DANIEL MEADOR, III

Court: TCCA

Attorneys:

Dan R. Smith, Johnson City, Tennessee, for the appellant, Everett Daniel Meador, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Robin C. Ray, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

After a jury trial, the Defendant, Everett Daniel Meador, III, was convicted of driving under the influence (DUI), first offense, a Class A misdemeanor. The Defendant appeals, contending that because the arresting officers lacked probable cause to arrest him, the trial court erred in denying his motion to suppress the evidence resulting from his arrest. The Defendant also contends that the trial court improperly denied his motion for a mistrial, which was based upon the results of his breathalyzer test, that were submitted to the jury after the trial court ruled that the results were inadmissible. After determining that a mistrial should have been declared, we reverse the judgment of the trial court, and we remand the case for a new trial.

http://www.tba2.org/tba_files/TCCA/2009/meadore_121109.pdf


JAMIE LYNN MIDDLEBROOK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jamie Lynn Middlebrook.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General; and William Hood, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Jamie Lynn Middlebrook, appeals the Criminal Court for Knox County's dismissal of her petition for habeas corpus relief, in which she contended that her sentences for robbery, a Class C felony, had expired. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/middlebrookj_121109.pdf


STATE OF TENNESSEE v. DAVID MARTIN OLSON

Court: TCCA

Attorneys:

Samuel B. Dreiling, Franklin, Tennessee, for the Appellant, David Martin Olson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Ron Davis, District Attorney General, and Kim Helper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, David Martin Olson, was indicted by the Williamson County Grand Jury for one count of possession of a controlled substance for resale, one count of evading arrest, one count of reckless endangerment, one count of possession of a controlled substance, and one count of drug paraphernalia, following his refusal to pull over for a pursuing officer and subsequent search of both his person and tractor-trailer. After the dismissal of four attorneys, Appellant represented himself at a jury trial. At the conclusion of the trial, the jury convicted Appellant of possession of a controlled substance for sale or delivery, evading arrest, possession of a controlled substance, and possession of drug paraphernalia. The trial court sentenced Appellant to an effective sentence of five years. On appeal, Appellant challenges: the trial court's conclusion that Appellant was waiving his right to counsel and wanted to represent himself at trial; whether the evidence was sufficient to support his conviction of possession of methamphetamine with intent to sell or deliver; whether the trial court properly acted as the thirteenth juror with regard to his conviction of possession of methamphetamine; whether the trial court erred in denying his motion for arrest of judgment with regard to his conviction of evading arrest; and whether the trial court erred in denying his motion for a new trial based on the cumulative effect of errors made by the trial court. We have concluded that: none of Appellant's Constitutional rights were violated relating to his self-representation at trial; the evidence was sufficient to support his conviction of possession of methamphetamine with intent to sell or deliver; the trial court properly acted as the thirteenth juror; Appellant waived his issue with regard to his challenge of the denial of his motion for arrest of judgment for failure to cite to the record or authority to support his argument; and the trial court did not err in denying the motion for new trial. Therefore, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/olsond_121109.pdf


TODAY'S NEWS

Legal News
Politics
Disciplinary Actions
TBA Member Services

Legal News
Associate pay won't bounce back as high as before
Even when the market rebounds, consultants and law firm partners aren't expecting associate pay to rebound with it. "We do not see any movement to reinstate the pre-recession pay levels" in the medium term, James Cotterman, an Altman Weil consultant told the Am Law Daily.
ABAJournal.com connects you to the story
Adams & Reese adds 60 lawyers in Florida
Louisiana-based Adams and Reese has expanded its reach in the Southeast, taking over offices in St. Petersburg and Sarasota, Fla., from Ruden McClosky. The move adds 60 lawyers and staff to the firm, which also has offices in Memphis and Nashville.
ABAJournal.com has the story
Hawkins County Justice Center nearing completion
Hawkins County's new Justice Center is ready to open except for a few "little things," according to its architect. Plans were developed to convert a former KMart into a facility housing the circuit, sessions and juvenile court offices and courtrooms, the sheriff's office and a 232-bed jail. They hope to have it ready for use by Jan. 1.
The Rogersville Review has the story and a picture
Personal emails on government computers may be private after all
A federal prosecutor has won his fight to conceal e-mails he sent to his attorney over the government's computers, contradicting a popular belief that employees have no expectation of privacy on work computers. The U.S. District Court for the District of Columbia ruled yesterday.
The Blog of Legal Times explains
Missouri Supreme Court tells PDs not to take more cases
This week the Missouri Supreme Court said that once the overburdened State Public Defenders Office hit its limit they have to say no to every case, not just pick some to represent and others to not represent. The office says it needs 175 more lawyers and about 75 more support staff to keep up.
Find out how they are dealing with it from KSPR News
Politics
Benedict out: No more democrats in 3rd district race
Democrats no longer have a candidate in the race for Tennessee's 3rd District congressional seat with the exit of Brent Benedict of Chattanooga. Benedict said he has dropped out because of his mother's illness and reluctance to continue taking time away from his business. Republican candidates include businessman Tommy Crangle, lawyer Chuck Fleischmann, Bradley County Sheriff Tim Gobble, businessman Greg Goodwin, pension executive Art Rhodes and former state GOP chairwoman Robin Smith.
The Daily News Journal reported the news
Disciplinary Actions
Nashville lawyer reinstated
Nashville lawyer Andre Philip Johnson has been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. He was suspended on Aug. 31, 2009, for failing to meet CLE requirements in 2008.
View all attorneys suspended and reinstated for 2008 CLE violations
Three lawyers reinstated after paying BPR fee
Varonica Cooper of Cordova, Helen Donnelly of Jamesville, N.Y., (formerly of Louisiana) and Teresa Scott of Bowie, Md., have been reinstated to the practice of law in Tennessee after paying the 2009 BPR fee and required fines.
View all attorneys suspended and reinstated for 2009 fee violations
North Carolina lawyer reinstated
Charles Everett Robinson of Rocky Mount, N.C., was reinstated to the practice of law in Tennessee after paying past BPR fees and required fines. He was suspended in 2006 for failure to pay his annual fee.

TBA Member Services
TBA expands insurance services for members
The TBA Member Insurance Solutions Program has been expanded to offer assistance to members in meeting their health, life, disability and other insurance needs. Working with Graham Swafford III of Capital Financial Group, the TBA is now able to provide members with exclusive benefits, personalized service, and pricing discounts. Services and products offered include: disability income insurance, business overhead expense insurance, group life, long-term and short-term disability income insurance, long-term care insurance, and group health, dental and vision insurance along with other employee related benefits.
Learn more about TBA Insurance Solutions now

 
 
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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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