Monday, September 19, 2011
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Haslam unsure on Court of Judiciary; AOC provides history

Gov. Bill Haslam said Friday he's still unsure whether he supports altering the make-up of the Court of the Judiciary, the appointed panel charged with investigating ethical complaints against Tennessee judges. "A little bit more dialogue might help the process on both sides," he said in an interview with The Tennessee Report.

With lawmakers set to examine the Court of the Judiciary on Tuesday, the Administrative Office of the Courts today released a report that provides a historical look at the oversight of judicial discipline in Tennessee and how it has changed in the past 40 years. The report compiles 20 years worth of information about judicial disciplinary complaints and how they were resolved. In that time-frame, 46 judges have left the bench -- either through resignation, retirement, loss of election or death -- while a disciplinary complaint was pending.

Download the Summary of Oversight of Judicial Conduct in Tennessee 1971-2011
TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist_091911.pdf
IN RE: BRAYDEN L. M.

Court: TCA

Attorneys:

Harold E. Dorsey, Jr., Alamo, Tennessee, for the appellant, Ronnie Glen Hopkins, II.

David Wayne Camp, Jackson, Tennessee, for the appellee, Catherine Nicole Camp.

Judge: PER CURIAM

Appellant filed a notice of appeal for a non-final judgment entered by the trial court. We therefore dismiss this appeal for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2011/braydenlm_091911.pdf
PAUL KOCZERA, et al., v. CHRISTI LENAY FIELDS STEELE, et al

Court: TCA

Attorneys:

Lawrence Revelle Dry, and Wanda McClure, Oak Ridge, Tennessee, for the appellants, Paul Koczera and Jolene Koczera.

Jeffery Scott Griswold and Joshua R. Walker, Knoxville, Tennessee, for the appellees, Christi Lenay Fields Steele, Oak Ridge Urology Associates, Randall E. Pearson, M.D., and Tennessee Urology Associates, PLLC.

Judge: PER CURIAM

Plaintiffs' action was dismissed by the Trial Court by summary judgment. Plaintiffs then appealed to this Court and defendants filed a Motion to Dismiss on the grounds that the Judgment entered by the Trial Court was not a final judgment. Plaintiffs responded to that Motion, acknowledging that the final judgment had not been entered in the case below, but sought a stay of the appeal. We grant the Motion to Dismiss the appeal on the grounds that the Judgment below is not final and this Court lacks jurisdiction to entertain the merits of the appeal.

http://www.tba2.org/tba_files/TCA/2011/koczersp_091911.pdf
MARY SUSAN REHRER, v. MARK ELWYN REHRER

Court: TCA

Attorneys:

John R. Meldorf, III, Hixson, Tennessee, for the appellant, Mark Elwyn Rehrer.

John P. Konvalinka, Chattanooga, Tennessee, for the appellee, Mary Susan Rehrer.

Judge: FRANKS

In this case petitioner wife obtained an order of protection against her husband. The husband, following trial, filed a Motion to reopen the proof, pursuant to Tenn. R. Civ. P. 59, and attached numerous affidavits contradicting some of petitioner's evidence presented at trial. The Trial Court overruled the Motion and the husband has appealed. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2011/rehrerm_091911.pdf
ROSS H. TARVER, et al., v. OCOEE LAND HOLDINGS, LLC., et al.

Court: TCA

Attorneys:

John P. Konvalinka, Chattanooga, Tennessee, for the appellant, Glen Fetzner.

Robert G. Norred, Jr., and James F. Logan, Jr., Cleveland, Tennessee, for the appellees, Tarver and Tarver.

B. Thomas Hickey, Jr., Chattanooga, Tennessee, for the appellee, Crye-Leike of Chattanooga, Inc.

Brian O'Shaughnessy, Chattanooga, Tennessee, for the appellee, Ocoee Land Holdings, LLC.

Judge: FRANKS

Plaintiffs sued defendants on a sale of real estate contract wherein defendants agreed to purchase certain real estate located in Polk County from plaintiffs for a stated price. Defendants joined issue on the pleadings in the trial before the Trial Judge. The Trial Court held that the purchase and sales agreement was enforceable, and refused to find Ocoee Land Holdings, LLC liable for breach of the purchase and sales agreement, but held Glen Fetzner personally liable. Defendants and plaintiffs have appealed. On appeal, we hold that the purchase and sales agreement was an enforceable contract, but the Court erred when it held Glen Fetzner personally liable for the breach of the purchase and sales agreement, and the Trial Court also erred when it did not find Ocoee Land Holdings, LLC liable for the breach of the contract. We enter Judgment against Ocoee Land Holdings, LLC.

http://www.tba2.org/tba_files/TCA/2011/tarverr_091911.pdf
JAMES EDWARD BOSTIC, JR., a.k.a. JAMES EDWARD DALTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Edward Bostic, Jr., Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, James Edward Bostic, Jr., appeals from the trial court's summary dismissal of his petition for post-conviction relief. The record reflects that on February 7, 2007, Petitioner pled guilty in the Criminal Court of Davidson County to aggravated burglary, a Class C felony, and received a sentence of seven years and six months as a Range II offender pursuant to a negotiated plea agreement, with the manner of service to be determined by the trial court. The trial court ordered the sentence to be served in community corrections, and judgment was entered June 26, 2007. On August 7, 2009, the trial court entered an order which revoked the community corrections sentence and ordered the original sentence of seven years and six months to be served by incarceration. Petitioner filed his pro se petition for post-conviction relief on November 30, 2009. The petition alleged as grounds for relief that the conviction was based on an unlawfully induced guilty plea and that he received ineffective assistance of counsel. The factual allegations of ineffective assistance of counsel pertained to representation at the community corrections revocation proceedings. On January 5, 2010, the trial court dismissed the petition without an evidentiary hearing or appointing counsel, on the basis that the petition was barred by the one year statute of limitations for post- conviction proceedings found in Tennessee Code Annotated section 40-30-102(a). In light of, and based upon the court's holding in Carpenter v. State, 136 S.W.3d 608 (Tenn. 2004) and Anthony L. Grant, Jr. v. State, No. M2007-00052-CCA-R3-PC, 2008 WL 4169985 (Tenn. Crim. App. Sept. 8, 2008), no perm. app. filed, we affirm the trial court's order insofar as it dismissed the post-conviction petition as to the original conviction. However, as to the petitioner's claims of ineffective assistance of counsel in the community corrections revocation proceedings, we reverse the judgment of the trial court and remand for further proceedings.

http://www.tba2.org/tba_files/TCCA/2011/bosticj_091911.pdf
STATE OF TENNESSEE v. KAREN E. CARPENTER

Court: TCCA

Attorneys:

Edward R. Sempkowski, Morristown, Tennessee, for the appellant, Karen E. Carpenter.

Robert E Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; James B. Dunn, District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a jury trial, the Defendant, Karen E. Carpenter, was convicted of facilitation of the manufacture of .5 grams or more of methamphetamine, a Class C felony, and facilitation of felony possession of drug paraphernalia, a Class A misdemeanor. See sections 39-11-403, -17-417, -17-425. In this appeal as of right, the Defendant contends (1) that the trial court erred by failing to, sua sponte, declare a mistrial after a witness mentioned the Defendant's prior criminal charges; (2) that the jury instruction given by the trial court regarding the witness' testimony was not "adequate;" and (3) that prosecutorial misconduct during the opening and closing statements denied her a fair trial. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/carpenterk_091911.pdf
DONALD R. JETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Donald R. Jett, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Frank Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The pro se petitioner, Donald R. Jett, appeals the Bedford County Circuit Court's summary dismissal of his petition for post-conviction relief attacking his 2006 guilty-pleaded conviction of aggravated sexual battery for which he received a sentence of 12 years' incarceration to be served at 100 percent. On appeal, the petitioner argues that due process concerns require the tolling of the statute of limitations and that the post-conviction court denied him a full and fair hearing to address his claims. Discerning no error, we affirm the order of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/jettd_091911.pdf
STATE OF TENNESSEE v. SHAWN DALE OWNBY

Court: TCCA

Attorneys:

Amber D. Haas, Sevierville, Tennessee, for the Appellant, Shawn D. Ownby

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James Dunn, District Attorney General; and Greg Eshbaugh, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Sevier County jury convicted the Defendant, Shawn Dale Ownby, of driving under the influence ("DUI") and violation of the implied consent law, and the trial court sentenced him to eleven months and twenty-nine days in jail and revoked his licence. On appeal, the Defendant contends that the evidence is insufficient to support his DUI conviction. After a thorough review of the record and relevant authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/ownbys_091911.pdf
STATE OF TENNESSEE v. BOB J. SPIVEY AND MISTY BUCKNER

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney General, for the Appellant, State of Tennessee.

Noel H. Riley, II, Dyersburg, Tennessee, for the Defendant-Appellee, Bob J. Spivey.

James E. Lanier, District Public Defender; H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee, for the Defendant-Appellee, Misty Buckner.

Judge: MCMULLEN

The State appeals from the Dyer County Circuit Court's dismissal of two indictments charging the Defendant-Appellees, Bob J. Spivey and Misty Buckner, with possession with intent to sell or deliver more than 0.5 grams of a Schedule II controlled substance, a Class B felony. Both defendants moved to suppress evidence obtained during a police search of the Buckner home. The trial court granted these motions upon finding that the search warrant inadequately described the property to be searched, and the charges against Spivey and Buckner were dismissed. In this appeal, the State claims that the trial court erred by granting the motions to suppress. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/spiveyb_091911.pdf
STATE OF TENNESSEE v. ANNA M. STEWARD
With Concurring Opinion

Court: TCCA

Attorneys:

Edward C. Miller, District Public Defender, and Keith E. Haas, Assistant District Public Defender, for the appellant, Anna M. Steward.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James Dunn, District Attorney General; and Tonya D. Thornton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Anna M. Steward, pleaded guilty as a Range II, multiple offender to robbery, a Class C felony. See T.C.A. section 39-13-401 (2006). The plea agreement called for a six-year sentence, with the manner of service to be determined by the trial court. The trial court ordered the defendant to serve her sentence in the Department of Correction. On appeal, the defendant contends that the trial court erred by imposing a sentence of full confinement. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/stewarda_091911.pdf

TIPTON concurring
http://www.tba2.org/tba_files/TCCA/2011/stewarda_CON_091911.pdf
TODAY'S NEWS
Legal News
Passages
U.S. Supreme Court
Upcoming
Politics
Disciplinary Actions
TBA Member Services
Legal News
Haynes' reason for retiring: 'It's just time'
Columnist Gail Kerr talks with Judge Barbara Haynes, who announced her retirement from Davidson County Circuit Court last week. "It's just time," said Haynes, 74. "I am anxious to see what the new Barbara wants to do." She plans to restore her Gallatin farm, putter around her Goodlettsville home, and write a book. And that's all she will say, Kerr reports.
Read the column in the Tennessean
New downtown campus a boon for Memphis law school
When the University of Memphis moved its Cecil C. Humphreys School of Law into downtown in January 2010, it was widely appreciated for all involved. The benefits of being neighbors with the area's broad legal community are obvious -- from courtrooms and the district attorney's office to prominent firms nearby. But there is a downside for law students, warns Estelle Winsett, a 1997 alumna from the school who is now its assistant dean for law career services. "You need to be aware that the person next to you on Beale Street may be your future boss."
The Commercial Appeal has more
Waller to stay downtown; signs 15-year lease
Nashville law firm Waller Lansden Dortch & Davis will stay in the Nashville City Center for another 15 years, squelching rumors that the firm would be an anchor tenant in a new office project. As part of the deal, a new multi-level parking garage will be constructed at the office building.
NashvillePost.com has more
Alexander's bill would change No Child Left Behind
Tennessee Sen. Lamar Alexander is part of a group of Republican U.S. senators who are sponsoring legislation to change the No Child Left Behind law. "The principle effect of the bill will be for the nation's 100,000 public schools to end federal mandates with the federal government deciding which schools are succeeding or failing," Alexander said.
The Tennessean has the story
Celebrate Constitution Week
Was that an earthquake or was it our country's founding fathers rolling over in their graves? In celebration of Constitution Day and Constitution Week, a columnist in the Johnson City Press looks at how the Constitution is holding up.
Read the column
FBI report: Crime down for 4th year
Violent crime dropped 6 percent in 2010, marking the fourth straight year-to-year decline, while property crime was down for the eighth straight year, falling 2.7 percent, the FBI reported today.
Read this AP story in the News Sentinel
Georgia parole board hears Troy Davis case today
Death penalty advocates and opponents watch today as the Georgia Board of Pardons and Paroles considers whether the state will proceed with the execution of Troy Davis on Wednesday. A host of dignitaries have asked the parole board to grant Davis clemency, including former President Jimmy Carter, former FBI Director William Sessions, former Georgia congressman Bob Barr and former Georgia Supreme Court Chief Justice Norman Fletcher.
The Atlanta Journal-Constitution follows the story
11th Circuit throws out Padilla sentence
A divided three-judge panel of the 11th U.S. Circuit Court of Appeals ordered a new sentencing hearing for Jose Padilla, a U.S. citizen and Muslim convert convicted in 2007 along with two co-conspirators of several terrorism-related charges. Padilla, 40, was held for more than three years without charge as an enemy combatant before he was added to the Miami terror support case.
WKRN.com carried this from the AP legal affairs writer
Passages
Hugh Howser dies at 92
Nashville lawyer Hugh C. Howser died Sept. 15 at the age of 92. He attended Vanderbilt University law school for two years, playing second baseman on the varsity baseball team in 1940 and 1941. Following the closing of the law school for World War II, he moved to New York City and graduated from New York University law school. He practiced law for more than 50 years in Nashville; he ended his legal career as a partner of Trabue, Sturdivant & DeWitt. He was a member of the Tennessee Bar Association Board of Governors. Funeral services were today (Monday) at 1 p.m. at Hillsboro Church of Christ. In lieu of flowers, the family asks that expressions of sympathy be made in the form of a donation to Vanderbilt University Athletic Department (Baseball), 2601 Jess Neely Dr., Nashville 37212.
Read his obituary in the Tennessean
U.S. Supreme Court
State will ask Supreme Court to hear water rights case
Alabama Gov. Robert Bentley says his state will ask the U.S. Supreme Court to decide a water feud with Georgia. His decision Monday came after the 11th U.S. Circuit Court of Appeals refused a request from Alabama and Florida to reconsider a ruling favorable to Georgia in a fight over water rights.
WKRN.com carried this AP story
Upcoming
Expert on women's rights and Islam to speak at UT
Azizah al-Hibri, a professor at the T.C. Williams School of Law at the University of Richmond, will speak at the University of Tennessee College of Law on Sept. 21 and 22. An expert on women's rights and Islam, she became the first Muslim woman law professor in the United States in 1992. On Sept. 21, she will talk in support of a federally funded initiative to introduce Arabic language and Arab culture across the curriculum at UT. At noon on Sept. 22, the College of Law's Committee on Community will host al-Hibri for a talk, "Islam, Liberty, and the Rule of Law." Both events are free and open to faculty, staff and students.
Learn more from UT
Politics
Alabama judge drops out of Supreme Court race, citing expense
An Alabama Circuit judge has dropped out of the race for state Supreme Court justice, saying it is not economically feasible for him to run a statewide race. Because another Republican is also on the ballot he says they would be competing for campaign donations from the same people and it would be too difficult for them both to lean on the same donors to fund their campaigns.
TuscaloosaNews.com has more
Disciplinary Actions
Lawyers reinstated after administrative suspension
A number of Tennessee lawyers have been reinstated after being administratively suspended for CLE noncompliance in 2010, failure to file the 2011 BPR fee and IOLTA report, failure to file the 2010 IOLTA report, failure to pay the 2010 BPR fee, failure to pay the state privilege tax in 2009 and 2010, and failure to pay the 2007 BPR fee.
Chattanooga lawyer suspended
On Sept. 13, Chattanooga lawyer Barbara Sims Arthur was suspended from the practice of law for 18 months by the Tennessee Supreme Court. She will be required to serve six months as an active suspension with the remainder to be served on probation subject to several conditions. She was suspended for engaging in the unauthorized practice of law; she continued to practice law while suspended in Tennessee and Georgia for failing to pay registration fees.
Download the BPR's release
Franklin lawyer on probation
Franklin lawyer Thomas Holland McKinnie was suspended for two years on Sept. 13 for improperly depositing checks between his attorney trust account and a personal account. The suspension has been probated, however, subject to his performing three hours of pro bono service each month during the probationary period and to attend an additional three hours of continuing legal education each year of the probationary period.
Download the BPR's release
TBA Member Services
Office Depot Discounts
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from the store.
Find out more

 
 
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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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