Hypothetically speaking: New CLE game tests ethics

The Tennessee Bar Association has added a new continuing legal education course to its recently launched catalog of Educational Games CLE programs. This new dual credit game created by Kevin D. Balkwill, a disciplinary counsel for the Board of Professional Responsibility, features hypothetical scenarios on topics such as client-lawyer relationships, advocacy and transactions with persons other than clients. Choose your category, select your level, and be ready to hit the buzzer before your opponent.

Just Play It! Educational Games from the TBA's TennBarU

TODAY'S OPINIONS
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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.

FIELDSTONE FARMS HOMEOWNERS ASSOCIATION, ET AL. v. CAVENDER ENTERPRISES, LLC

Court: TCA

Attorneys:

William L. Harbison, Linda R. Koon, Michael G. Abelow, Lisa K. Helton, Nashville, Tennessee, for the appellant, Leslie P. Davis.

J. Bryan Echols, Nashville, Tennessee, for the appellees, Fieldstone Farms Homeowners Association and Andy Bailey, Harry T. Fisk and John M. Babb.

Judge: COTTRELL

The trial court found that a parcel designated as a recreational facility in a planned unit development was a "lot" under the terms of the governing declarations such that it could not be subdivided or subjected to a revised use. Under the original declaration, the recreational parcel was expressly excluded within the definition of lot but the later supplemented declaration omits the exclusion. Finding that according to its terms the Supplementary Declaration could not conflict with the original declaration, we find the parcel was not included within the definition of lot. Consequently, it is not subject to the restrictions placed on lots. As there is no prohibition to subdivision or conversion to residential use in the documents governing the parcel, then the parcel may be subdivided and converted to residential use. Accordingly, the trial court is reversed.

http://www.tba2.org/tba_files/TCA/2010/fieldstonefarms_113010.pdf


SHEMAIN SHERILLE RILEY, ET AL. v. EDITH SWIFT

Court: TCA

Attorneys:

Edith La Verne Swift, Nashville, Tennessee, Pro Se.

Christopher M. Jones, Nashville, Tennessee, for the appellee, Shemain Riley

Judge: COTTRELL

The General Sessions Court awarded the plaintiffs an $8,500 judgment for damages arising from a motor vehicle accident. The pro se defendant attempted to appeal the judgment to the Circuit Court, but failed to have the case docketed within 45 days after filing the notice of appeal, as is required by Davidson County Local Rule 20(b). The plaintiffs filed a motion to dismiss the appeal on the ground of untimeliness and to enforce the order of the General Sessions Court. The defendant did not respond to the motion, nor did she appear for the motion hearing. The Circuit Court granted the plaintiffs' motion and made the judgment of the General Sessions Court the judgment of the Circuit Court. The defendant then retained counsel, who filed a Rule 59.04 motion to alter or amend the judgment eight months after it was rendered. The Circuit Court denied the motion. We affirm.

http://www.tba2.org/tba_files/TCA/2010/rileys_113010.pdf


IN RE ESTATE OF BILLY JOE WALLS
CORRECTION on pages 1 and 12 reflects that the appeals court affirms the trial court's judgment "as to the defense of lack of subject matter jurisdiction."


Court: TCA

Attorneys:

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Patricia Pemberton.

Robert W. Knolton, Oak Ridge, Tennessee, for the appellee, Barbara Brown.

Judge: SUSANO

This appeal arises out of a challenge to the trial court's subject matter jurisdiction. Upon the death of the testator, Billy Joe Walls, wills executed by him were submitted for probate in different states. Patricia Pemberton was appointed personal representative under a 2009 will admitted to probate in the trial court. Barbara Brown is the appointed personal representative under a 2007 will admitted to probate in the Circuit Court of Morgan County, Alabama. Brown initiated these proceedings by filing a complaint in the trial court to contest the will submitted by Pemberton. Subsequently, Brown sought summary judgment, asserting that the trial court lacked subject matter jurisdiction. Alternatively, Brown moved to transfer the case to Alabama under the doctrine of forum non conveniens. The trial court dismissed Pemberton's petition on both grounds. She appeals. We affirm as to the defense of lack of subject matter jurisdiction.

http://www.tba2.org/tba_files/TCA/2010/wallsb_COR_113010.pdf


THOMAS M. GOSS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

S. Craig Moore, Fayetteville, Tennessee, for the Appellant, Thomas M. Goss.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; Hollynn L. Eubanks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Moore County jury convicted the Petitioner, Thomas M. Goss, of one count of rape and one count of aggravated burglary, and the trial court sentenced him to an effective sentence of twelve years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the postconviction court.

http://www.tba2.org/tba_files/TCCA/2010/gosst_113010.pdf


STATE OF TENNESSEE v. STEVEN CORNELL GRAY

Court: TCCA

Attorneys:

Joseph Taggart, Jackson , Tennessee, for the appellant, Steven Cornell Gray.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The defendant, Steven Cornell Gray, appeals from his Madison County Circuit Court jury conviction of possession with the intent to sell .5 grams or more of cocaine. He claims that the evidence was insufficient to support the conviction, but upon our review of the case, we affirm this conviction.

http://www.tba2.org/tba_files/TCCA/2010/grays_113010.pdf


HENRY JOHNSON v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Henry Johnson, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder and Rachel E. Willis, Assistant Attorneys General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The pro se petitioner, Henry Johnson, appeals from the summary dismissal of his petition for writ of habeas corpus relief. He was convicted of first degree murder and aggravated burglary and was sentenced to life imprisonment on August 19, 2009. On appeal, he argues that: the indictment against him was defective; the habeas corpus court erred in dismissing his petition without a hearing or appointment of counsel; and he was subject to double jeopardy as a result of the indictment. After careful review, we affirm the summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2010/johnsonh_113010.pdf


TERRY B. JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Terry B. Johnson, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William Whitesell, District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Terry B. Johnson, appeals as of right from the Rutherford County Circuit Court's denial of his petition for post-conviction relief challenging his conviction for sale of less than .5 grams of cocaine and resulting 15-year sentence. The Petitioner contends (1) he was denied his Sixth Amendment right to the effective assistance of counsel at trial; (2) he was denied a "full and fair hearing" on his petition due to the ineffective assistance of his post-conviction counsel; and (3) he was denied a "full and fair hearing" on his petition because the judge presiding over his post-conviction proceedings also presided over the original trial proceedings. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/johnsont_113010.pdf


STATE OF TENNESSEE v. MICHELLE LEE RAINES

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the appellant, Michelle Lee Raines.

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

Judge: WITT

The defendant, Michelle Lee Raines, pleaded guilty to two counts of facilitation of rape of a child, a Class B felony. Pursuant to the plea agreement, the trial court imposed an effective sentence of ten years with the manner of service left to the discretion of the trial court. Following a hearing, the trial court denied alternative sentencing and ordered the sentences served in confinement. On appeal, the defendant contends that the trial court erred in denying alternative sentencing. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/rainesm_113010.pdf


STATE OF TENNESSEE v. ANDREW DOUGLAS RUSH

Court: TCCA

Attorneys:

Kevin R. Askren, Assistant Public Defender, Tullahoma, Tennessee, for the appellant, Andrew Douglas Rush.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Mickey Layne, District Attorney General; and Jason Ponder, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Andrew Douglas Rush, was convicted of rape of a child, a Class A felony, and statutory rape, a Class E felony. See Tenn. Code Ann. sections 39-13-506(d)(2), -522(b)(1). In this direct appeal, he contends that: (1) the State presented insufficient evidence to convict him of either count; and (2) the trial court erred by failing to instruct the jury that attempted child rape was a lesser-included offense of rape of a child. After our review, we affirm the Defendant's convictions. We remand solely for the entry of a corrected judgment form, reflecting that a conviction of rape of a child requires that the Defendant serve 100% of the sentence imposed.

http://www.tba2.org/tba_files/TCCA/2010/rusha_113010.pdf


JAMES R. SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert Luke Chaffin, Cookeville, Tennessee, for the appellant, James R. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William E. Gibson, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Petitioner, James R. Smith, was convicted of one count of rape, a Class B felony, one count of sexual battery, a Class E felony, and one count of attempted false imprisonment, a Class B misdemeanor. See Tenn. Code Ann. sections 39-12-107(a), -13-302(b), -13-503(b),-13-505(c). This Court affirmed his convictions on direct appeal. See State v. James R. Smith, No. M2005-00615-CCA-R3-CD, 2006 WL 264468 (Tenn. Crim. App., Nashville, Jan. 31, 2006), perm. to appeal denied, (Tenn. May 1, 2006). The Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner contends that the post-conviction court erred in denying him relief because his rights to due process and a fair and impartial jury were violated when five jurors ate lunch at the same table as the court clerk and two potential State witnesses. He also asserts that his trial counsel was ineffective because he (1) did not file any pretrial motions besides a request for discovery; (2) should have asked the trial court to declare a mistrial when he learned about the lunch incident; (3) failed to ask the jurors what they talked about at lunch; and (4) failed to raise the lunch incident in his direct appeal. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2010/smithj_113010.pdf


TODAY'S NEWS

Legal News
U.S. Supreme Court
TBA Member Services

Legal News
Coppock honored for adoption work during national celebration
East Tennessee attorney Dawn Coppock received the Bill Williams Service Award for outstanding achievement in adoption during a recent National Adoption Day event. Rosa Webb of the Department of Children's Services made the presentation at the Hamblen County Chancery Court, where Chancellor Thomas "Skip" Frierson has celebrated Adoption Day for years. "What's nice is that everyone in the courtroom has a smile on their face. They're excited, there is lots of hope and just a tremendous amount of rewards for these families," Frierson said. Look at other celebrations across the state in Knox and Shelby counties.

Victims' family not pleased with stay
The family of the victims of convicted killer Stephen West expected him to die tonight from lethal injection, and they are not happy that the Tennessee Supreme Court has stayed the executions of West and three other men on death row. "For Tennessee to continue to spend money to keep this man alive, this is one of the biggest crimes I've seen in the state," David Rucker, the son and brother of the two victims, said.
WATE News 6 reports
Outside work? Many cities, counties OK contract work for their lawyers
In many parts in Tennessee, attorneys who work for the county or city are allowed to take on outside cases. That's not the case in the state's three largest counties and also now in Chattanooga, where full-time attorneys are now required to work exclusively for the government, according to spokesman Richard Beeland and City Attorney Mike McMahan. In Hamilton County, though, Mayor Claude Ramsey said they still allow attorneys to do outside work. "I haven't seen one instance of conflict where it was a problem, and you know everybody has a choice of doing it the way they want to," he said. Allan Ramsaur, executive director of the Tennessee Bar Association, said that many county and city attorneys in Tennessee are not full-time employees and also operate private practices. They are obligated to inform their clients of any potential conflict.
The Times Free Press has this story
Judicial building leaking, moldy, records destroyed
Mold and a collapsing ceiling in the records room of the Rutherford County Judicial Court Building are just some of the problems found by newly elected Circuit Court Clerk Laura Bohling. The main computer that controls all the court records is in a room cooled by only a box fan and rain is leaking inside the building. Many court documents have already been destroyed. "Here we have this beautiful, historic building that has been left to fall in such an incredible state of disrepair," Bohling said.
WSMV-TV reports
U.S. Supreme Court
Court looks into campaign funding again
The U.S. Supreme Court has decided to re-enter the campaign finance fray, agreeing to hear arguments over an Arizona law that provides matching funds to publicly financed candidates. Justices will hear arguments in two cases, Arizona Free Enterprise Club's Freedom PAC v. Bennett and McComish v. Bennett, both of which contend that Citizens United v. FEC violates the First Amendment.
Read it in the National Law Journal
TBA Member Services
December TBJ: Dealing with new restaurant license rules and more
Lawyer Matthew Scanlan writes about Tennessee's new Limited Service Restaurant License and professor Larry Pivnick wonders if an adversary's failure to object makes it right when offering objectionable evidence. Find both those articles in the December Tennessee Bar Journal. In addition, columnist Kathryn Reed Edge explains the complicated Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, while columnist Dan Holbrook delves into community property trusts and Bill Haltom gloats about his courtside seats at the Final Four -- and not the one you're thinking about. Look in your mailbox or
read it online 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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