Deadline Nears for Employers to Register for Job Fair

The deadline for employers hoping to take part in the 2nd Annual TBA Diversity Job Fair is June 29. This year's job fair is set for Sept. 7-8 in Nashville. Building on the success of last year's event, the 2012 job fair will provide legal employers the opportunity to interview diverse 2L and 3L law students from law schools in Tennessee and surrounding states. Twenty seven law schools have already signed up. All legal employers in Tennessee are invited to take part, regardless of size or sector. Participants are asked to consider candidates for summer associate positions, clerkships and attorney openings.

The Diversity Job Fair is an initiative of the TBA Committee on Racial & Ethnic Diversity (CRED). All activities for the job fair will be held at the Tennessee Bar Center, 221 Fourth Ave. North, in Nashville. For more information contact TBA staff member Lynn Pointer.

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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.


TN Court of Appeals

IN RE: FOREIGN COURT SUBPOENA JANE DOE v. USA SWIMMING ET AL.

Court: TN Court of Appeals

Attorneys:

Emily Todoran, Nashville, Tennessee for the appellant, Kenneth Stopkotte.

Thomas I. Carlton, Jr., and Ben M. Rose, Nashville, Tennessee, for the appellees, United States Swimming, Inc., and Pacific Swimming. Inc

Judge: CLEMENT

A non-party deponent appeals the imposition of $6,635 in monetary sanctions under Tennessee Rule of Civil Procedure 37.01(4). The non-party deponent, a Tennessee resident, was subpoenaed to give a deposition concerning a civil action pending in a California state court pursuant to a foreign court subpoena, which was issued and served in accordance with the Uniform Depositions and Discovery Act, Tenn. Code Ann. §§ 24-9-201 through -207. During the deposition, the deponent’s attorney objected to almost every question in an argumentative and suggestive manner, often without providing a proper basis for the objection, consulted with the deponent at length several times during questioning, and unilaterally terminated the deposition without seeking a protective order. The California defendants who attempted to take the deposition filed a motion to compel discovery and to recover their expenses pursuant to Tennessee Rule of Civil Procedure 37.01. The trial court granted the motion and held the non-party deponent liable for the defendants’ expenses. The deponent appeals contending that he did not obstruct the deposition, that the sanctions are the result of his attorney’s misconduct, and that his attorney should be solely responsible for the sanctions. Tennessee Rule of Civil Procedure 37.01(4) affords the trial court the discretion to require a deponent whose conduct necessitated a motion to compel, or the attorney advising such conduct, or both of them to pay to the moving party’s reasonable expenses. The manner in which the deponent’s attorney conducted the deposition amounted to clear violations of Tennessee Rules of Civil Procedure 30.03 and 30.04. Except for certain circumstances not at issue here, a lawyer’s misconduct is attributable to and binding on the client; therefore, the deponent should not be excused from liability for his attorney’s misconduct, especially considering the deponent is experienced in giving depositions and knew or should have known his attorney’s conduct was outrageous and in violation of the rules of discovery. Moreover, because trial courts have broad discretion in determining when to impose sanctions and against whom, such decisions are reviewed on appeal pursuant to the very deferential abuse of discretion standard. Finding no abuse of discretion, we affirm.


KNOX COUNTY ELECTION COMMISSION v. SHELLEY BREEDING

Court: TN Court of Appeals

Attorneys:

Billy J. Stokes, Jon M. Cope, and Hudson T. Ellis, Knoxville, Tennessee, for the appellant, Shelley Breeding.

Joseph G. Jarret, Knox County Law Director, Knoxville, Tennessee, for the appellee, Knox County Election Commission.

James G. Stranch, III, J. Gerard Stranch, IV, and Michael J. Wall, Nashville, Tennessee, for the amicus curiae, Tennessee Democratic Party.

Judge: SUSANO

This case addresses the issue of whether an announced, and otherwise qualified, candidate for the District 89 (Knox County) seat in the State House of Representatives satisfies the residency requirement to run in the Democratic primary on August 2, 2012. The trial court held that she was not eligible to run because the court found that she was a resident of Anderson County. She appeals. We affirm the trial court’s judgment.


HUBERT MORRISON, ET AL. v. THE CITY OF BOLIVAR, ET AL.

Court: TN Court of Appeals

Attorneys:

William B. Hubbard and Marc R. Jenkins, Nashville, Tennessee, for the appellants, The City of Bolivar and the Bolivar Utility Department f/k/a Bolivar Gas System and Bolivar Water & Wastewater System.

George E. Barrett, Nashville, Tennessee and Charles H. Farmer, Jackson, Tennessee, for the appellees, Hubert Morrison, Robin Baker, Jackie Cox, Kenneth Kowen, and Whiteville Auto Parts.

Judge: STAFFORD

We granted this Tennessee Rule of Appellate Procedure 9 interlocutory appeal to answer the question of whether the Tennessee Revenue Bond Law, Tennessee Code Annotated Section 7-34-101, et seq., permits a private right of action on behalf of Appellees, utility rate payers, against Appellants, the City of Bolivar and its utility. The trial court denied Appellants’ motion to dismiss for failure to state a claim on the ground that Appellees could maintain a private cause of action because Tennessee Code Annotated Section 7-34-115(f) did not provide the sole remedy for violation of the statutory scheme. We hold that the Revenue Bond Law does not expressly create an individual private right of action, and that Appellees have not carried their burden to establish that the legislature intended to imply such a right. Accordingly, we reverse the judgment of the trial court and remand for entry of judgment in favor of Appellants. Reversed and remanded.


THE TOWN OF PEGRAM v. CORNERSTONE DEVELOPMENT, LLC ET AL.

Court: TN Court of Appeals

Attorneys:

Lawrence B. Hammet II, Trajan H. Carney IV, and Shannon Chaney Smith, Nashville, Tennessee for the appellant, Town of Pegram.

Scott Cameron Williams and Karen P. Stevenson, Nashville, Tennessee, for the appellees, Cornerstone Development LLC, Andrew E. Minge, and Joseph W. Minge.

John M. Gillum and Jarrod W. Stone, Nashville, Tennessee, for the appellee, National Grange Insurance Company.

Judge: CLEMENT

Town of Pegram appeals from the trial court’s decision awarding it no damages in its claims against Cornerstone Development, LLC, the company which constructed the Town’s city hall and surrounding parking lot. Pegram also appeals the trial court’s summary dismissal of National Grange Mutual Insurance Company, which provided the performance bond assuring Cornerstone’s performance. We affirm the trial court’s findings in all respects.


SONG & SONG CORPORATION, and JIN Y. “JIM” SONG, Individually v. FINE ART CONSTRUCTION COMPANY, LLC, ET AL.

Court: TN Court of Appeals

Attorneys:

Kevin A. Snider, Germantown, Tennessee, for the appellants, Song & Song Corporation and Jin Y. “Jim” Song, Individually.

Roscoe A. Feild, Steven R. Walker, Memphis, Tennessee, for the appellees, Fine Art Construction Company, LLC, et al.

Judge: HIGHERS

Property owner hired a general contractor to perform construction work on a commercial building. The parties subsequently discovered that when the building was originally constructed, there were no fire dampers installed in the ductwork. The contractor performed the additional work necessary to install the missing fire dampers, but when the work was completed, the property owner refused to pay the amount invoiced by the contractor for the additional work. Both parties asserted that the other had breached the contract. Following a two-day bench trial, the trial court ruled in favor of the contractor and awarded her a judgment for the unpaid balance and other damages. The property owner appeals. We affirm as modified.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. KEVIN ANTHONY DICKSON, JR.
With Dissenting Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Rolfe A. Straussfogel, Sevierville, Tennessee, for the appellant, Kevin Anthony Dickson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; James Dunn, District Attorney General; and Emilee Abbott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Kevin Anthony Dickson, Jr., was found guilty by the Sevier County Circuit Court of two counts of attempted first degree murder, a Class A felony, especially aggravated burglary, a Class B felony, two counts of aggravated assault, a Class C felony, and attempted aggravated robbery, a Class C felony. See T.C.A. §§ 39-13-202 (2010), 39-14-404 (2010), 39-13-102 (2006) (amended 2009, 2010, 2011), 39-13-402 (2010), 39-12-101 (2010). The trial court merged one count of aggravated assault into an attempted first degree murder conviction. The Defendant was sentenced as a Range I, standard offender to twenty-five years for each attempted first degree murder conviction, twelve years for especially aggravated burglary, and six years each for the aggravated assault and attempted aggravated robbery convictions. The trial court ordered the attempted first degree murder convictions to be served consecutively, for an effective sentence of fifty years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his attempted first degree murder convictions, (2) his conviction for especially aggravated burglary is barred by Tennessee Code Annotated section 39-14-404(d), and (3) the trial court erred by applying improper sentencing enhancement factors and ordering partially consecutive sentences. We affirm the judgments for the attempted first degree murder of Christopher Lyons, aggravated assault, and attempted aggravated robbery. We reverse the judgments for the attempted first degree murder of Rodney Hardin and especially aggravated burglary and remand the case for sentencing and entry of judgments of conviction for attempted second degree murder and aggravated burglary.


JOBY LEE TEAL v. THE CRIMINAL COURT OF SHELBY COUNTY, TENNESSEE, ET AL.
Correction: In footnote 1 on page 1, the word "reflects" is changed to "reflect"

Court: TN Court of Criminal Appeals

Attorneys:

Joby Lee Teal, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and David Zak, Assistant District Attorney General, for the appellee, The Criminal Court of Shelby County, Tennessee, et al.

Judge: PAGE

Pro se petitioner, Joby Lee Teal, seeks a declaratory judgment concerning the legality of his five 1988 convictions for drug offenses and the resulting concurrent five-year sentences he received as a result of a negotiated plea agreement. As grounds, petitioner argues that the sentences are void because he committed the offenses while on bail and should have received consecutive sentences. The Criminal Court for Shelby County found that declaratory judgment relief is not available to petitioner because his five concurrent sentences had expired. Upon review of the record, we affirm the denial of relief.


STATE OF TENNESSEE v. JOHN TODD

Court: TN Court of Criminal Appeals

Attorneys:

Linda Parson Khumalo (on appeal) and Glen Wright (at trial), Memphis, Tennessee, for the appellant, John Todd.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Rachel Newton and Theresa McCusker, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, John Todd, was convicted by a Shelby County Criminal Court jury of one count of first degree murder and one count of second degree murder, Class A felonies. See T.C.A. §§ 39-13-202 (2006) (amended 2007), 39-13-210 (2010). He was sentenced to concurrent terms of life imprisonment for first degree murder and twenty years’ confinement for second degree murder. On appeal, he contends that the trial court erred by (1) finding him competent to stand trial; (2) denying his motion to suppress his pretrial statement; (3) denying his motion for a mistrial trial on the ground that an outburst during the trial prejudiced the jury against him and prevented a fair trial; (4) admitting gruesome photographs of the victims at the trial; (5) allowing a medical examiner who did not perform the autopsies to testify at the trial; and (6) denying his request for a mistrial on the ground that the State failed to provide his oral statement reduced to writing before the trial. We affirm the judgments of the trial court.


Court Hears Challenge to 287(g) Program

Tennessee Supreme Court justices heard oral arguments today on a controversial immigration program that allows local law enforcement to question a person's immigration status. The so-called 287(g) program is a partnership between local departments and federal authorities. Three civil rights groups want the court to block Davidson County's participation in the program. A local lawyer argues the sheriff's office can't enter into such an agreement, because the agency gave up law enforcement powers in 1963. News Channel 5 has the latest


Blackwood Threatens Knox DA with Contempt

Special Judge Jon Kerry Blackwood, who is sorting out the fate of cases previously prosecuted in former Knox County Criminal Court Judge Richard Baumgartner's court, threatened Knox County District Attorney General Randy Nichols with contempt of court today and told Special Counsel John Gill he needed to produce proof of ex parte communications by the court or report himself to the Board of Professional Responsibility. Gill had accused the court of such activity in an email made public by the Knoxville News Sentinel. The fiery exchange came as Blackwood refused to step down from one of the cases in play and would not allow the government to argue its motion that he recuse himself. Read about today's developments from the paper.


Baumgartner Gets Delay in Federal Trial

U.S. Magistrate Judge Clifford Shirley today approved a three-month delay in the federal trial of former Knox County Criminal Court Judge Richard Baumgartner. Lawyers for Baumgartner had asked for the delay saying they had “only scratched the surface of the complex and voluminous government discovery” and would not be ready to file meaningful motions by this week's deadline. The trial was to have started on June 18. It now will start on Oct. 23. Read more in the News Sentinel

In related news, U.S. District Judge Thomas Phillips, who was set to preside over the trial, recused himself yesterday. It will be up to Chief U.S. District Judge Curtis Collier to name a replacement. Learn more about that development


NPR Investigates Indigent Defense 'Crisis'

In the first of a two-part series, National Public Radio today looked at what the U.S. Justice Department is calling a “crisis” in the provision of legal assistance for the indigent. Today’s program focused on the situation in Michigan, where a patchwork of rules that vary among counties are confusing for defendants and appointed counsel, who often are young and inexperienced. Now, a lawsuit against the state and recent exonerations due to poor legal counsel are adding pressure to do something about the situation. Tomorrow, the station looks at a legal aid program in Baltimore that faces an uncertain future. Listen to today's story or read it here


Holloway Takes Judicial Conference Helm

Columbia Judge Bobby Holloway took the helm of the Tennessee Judicial Conference (TJC) at the group’s meeting last week in Memphis. By virtue of his office, Holloway also becomes a member of the TBA Board of Governors. The relationship between the TBA and the judges organization is further strengthened by participation of the TBA president in the TJC Executive Committee. Holloway succeeds Judge James C. Beasley from Memphis. Read more from the AOC


Law Director to Remain Elected Position

The law director's office will remain an elected position in Knox County, the county's Charter Review Committee decided Wednesday when it voted against putting language that would change how the office is selected before voters. The News Sentinel reports that the issue died when the committee rejected proposed language that was different than what members had expected to debate.


Appellate Court Keeps Breeding off Ballot

Shelley Breeding cannot be a Knox County candidate for the General Assembly, a three-judge panel of the Tennessee Court of Appeals ruled this morning. The panel upheld a chancery court decision that Breeding is legally a resident of Anderson County saying she "has not produced any credible evidence" that maps showing the location of her home are inaccurate. Breeding had wanted to run in the Democratic primary in the newly created 89th District, which lies entirely in Knox County. The News Sentinel reports


Study Suggests Voting History Missing for 11,000 Tennesseans

Tennessee Democrats say their analysis of Secretary of State records shows more than 11,000 voters across the state have had part or all of their voting histories “disappear” between December and last month. Calling the entire issue “troubling,” they are warning it could lead to some voters getting unfairly purged from voting lists. Earlier this week, state Democratic Party Chairman Chip Forrester called on State Election Coordinator Mark Goins for a “full and detailed explanation” as well as an “independent review...” of the state’s voter files. The situation, which first came to light in Shelby County, now involves 69 counties, according to party officials. The Chattanooga Times Free Press has more.


Additional Lawyers Suspended for Fee, IOLTA Violations

The Tennessee Supreme Court issued an order June 6 suspending Tennessee-licensed attorneys who had not paid their 2012 registration fee to the Board of Professional Responsibility and had not filed a mandatory compliance statement that eligible client funds are being held in accounts participating in the Interest on Lawyers' Trust Accounts (IOLTA) program. The list reflects lawyers not in compliance as of their April birthdates. See the updated list or download the order


Lawyers Reinstated After Administrative Suspension

Two Tennessee-licensed lawyers have been reinstated after being administratively suspended for failure to file the 2012 registration fee and IOLTA report; one lawyer has been reinstated after being suspended for failure to file the 2011 registration fee and IOLTA report; one lawyer has been reinstated after completing 2011 CLE requirements; and three lawyers were reinstated after paying past due fees – one from 2007 and two from 2008. See updated lists at the links above.


Free Immigration Clinic Happens Saturday

A free legal clinic for Nashville area residents who need advice on immigration issues will be held Saturday from 9 a.m. to 12:30 p.m. at Hillcrest United Methodist Church, 5112 Raywood Lane, The Tennessean reports. The American Immigration Lawyers Association (AILA), Justice for Our Neighbors of Tennessee (JFON) and the MidSouth Chapter of AILA will host the event. Volunteer attorneys will be available for one-on-one meetings, to answer questions, make assessments and give recommendations. Languages spoken will include Chinese, Finnish, French, Hindi, Polish, Spanish, Telegu Urdu, and others. Cases will be handled on a first-come, first-served basis.


 
 

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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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