Handbook for Tennessee Seniors Receives National Award

The TBA today received the LexisNexis Community and Educational Outreach Award for production and distribution of the 2014 Legal Handbook for Tennessee Seniors. The award, given each year by the National Association of Bar Executives (NABE), was presented during the NABE Annual Meeting taking place in Boston in advance of the ABA meeting this weekend. Since the handbook was released earlier this year, it has been distributed to thousands of Tennesseans through live presentations and more than 8,000 visitors have been on the TBA’s website to learn about the resource. The award honors outstanding public service and law-related education programs by state and local bar associations.

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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
02 - 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 Workers Comp Appeals

JOHN M. REITZ v. TRINET HR CORPORATION ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Charles E. Pierce, Knoxville, Tennessee, for the appellants, TriNet HR Corporation and Insurance Company of the State of Pennsylvania.

David E. High, Nashville, Tennessee, for the appellee, John M. Reitz.

Judge: HARRIS

In this case, the employee alleged that he sustained a compensable aggravation of preexisting arthritis in his knee as a result of a fall at work. His employer denied that he had a permanent disability as a result of the event. The trial court awarded benefits, and the employer has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.


TN Court of Appeals

ANIL CONSTRUCTION, INC. v. PATRICK D. McCOLLUM, INDIVIDUALLY AND D/B/A/ PAT’S CUSTOM CABINETS

Court: TN Court of Appeals

Attorneys:

Adam M. Nahmias, Memphis, Tennessee, for the Plaintiff/Appellant, Anil Construction, Inc.

Jon A. York, Jackson, Tennessee, for the Defendant/Appellee, Patrick D. McCollum, Individually and d/b/a Pat’s Custom Cabinets.

Judge: KIRBY

This appeal involves an alleged breach of a construction contract. The plaintiff general contractor hired the defendant subcontractor to build cabinetry for a new movie theater. The work was to be completed by the time the movie theater opened. At the time of the opening, some items regarding the cabinets remained undone, and the contractor refused to pay until the work was completed. The general contractor filed this lawsuit for breach of contract for failure to complete the project in a timely manner and for defective work, and the defendant subcontractor filed a counterclaim for breach of contract for failure to pay under the contract. The trial court held in favor of the subcontractor and awarded damages. The general contractor now appeals. We vacate the trial court’s judgment and remand the matter for findings of fact and conclusions of law as required under Tennessee Rule of Civil Procedure 52.01.


TN Court of Criminal Appeals

MARK ALAN DEAKINS v. BRUCE WESTBROOKS, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Mark Alan Deakins, Chattanooga, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Brent C. Cherry, Senior Counsel, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Mark Alan Deakins, filed a petition for a writ of habeas corpus, asserting that he had “flattened” his sentences for his convictions of especially aggravated sexual exploitation of a minor, sexual exploitation of a minor, and statutory rape. He alleged that the Tennessee Department of Correction improperly calculated his pretrial jail credits and sentencing credits. The habeas corpus court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court.


STATE OF TENNESSEE v. CHARLES SHARP
CORRECTION: On page 1 in the next to the last word in the introductory paragraph, the word "nine" has been corrected to "ten"

Court: TN Court of Criminal Appeals

Attorneys:

R. Todd Mosley, Memphis, Tennessee, (on appeal); Kim Sims and Larry Sims, Memphis, Tennessee, (at trial), for the appellant, Charles Sharp.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; Kirby May and Jennifer Nichols, Assistant District Attorneys General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Charles Sharp, was originally indicted for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, one count of statutory rape, and one count of vandalism under $500. Defendant was acquitted of all charges except especially aggravated sexual exploitation of a minor, on which the jury was hung. See State v. Sharp, 327 S.W.3d 704, 708 (Tenn. Crim. App. 2010). Defendant was tried again on the charge of especially aggravated sexual exploitation of a minor and convicted. Id. This court reversed Defendant’s conviction and remanded for a new trial based on the State’s having read a witness’s testimony from a prior trial into evidence without having shown the witness’s unavailability. Id. at 709-712. Defendant was tried twice more on the charge of especially aggravated sexual exploitation of a minor, and the juries were unable to reach a verdict. In the case sub judice, Defendant was tried and convicted again on the same charge and sentenced to 12 years of incarceration. Defendant now appeals his conviction and sentence and asserts the following: 1) the trial court erred by not dismissing the indictment pursuant to our supreme court’s holding in State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978); 2) the trial court erred by allowing into evidence testimony of prior bad acts; and 3) the trial court’s imposition of a 12-year sentence was presumptively vindictive. After a careful review of the record and the briefs of the parties, we affirm Defendant’s conviction; however, we conclude that Defendant’s sentence violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and therefore, we modify Defendant’s sentence from twelve years to ten years.


Watch TBA Today for Election Results

TBA Today will report results of the judicial retention elections either through a special edition or in the Friday afternoon’s regular edition, depending on when results are available. Judicial election results from contested races across the state will be available in the afternoon edition and posted on the TBA's election results page (still under construction). A full list of all trial court candidates, including those who were uncontested, can be viewed here, while a full list of general sessions and juvenile candidates running is available here.


Why Thursday Primaries? No One Knows

Tennesseans go to the polls to vote in party primaries on Thursday but nobody really knows why, Politico reports. All other states — except Hawaii, which votes this Saturday — hold their primaries on a Tuesday. The federal government began formally regulating elections in 1845, when it chose Tuesday as the date for all federal general elections. That logic made sense to most states, and when party primaries came into popularity in the early 20th century, all but Tennessee and Hawaii adopted Tuesday as the standard day for both general and primary elections. Tennessee holds its presidential primaries on Super Tuesday, but Charles Sherrill, the Tennessee state librarian and archivist, says he has looked as far back as the records of the first state constitutional convention and cannot find a rationale for why officials decided to hold primaries on Thursday.


Registration Open for 2014 TBA Academy

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 31st Annual TBA Academy, Dec. 2-3, in Washington, D.C. A select group of Tennessee attorneys will be able to take part in a private ceremony before the court and enjoy other events in the nation's capital. A reception and celebration dinner kick off the Academy, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, located across from the White House. Interested candidates should complete the required forms by Oct. 27. For information and a step-by-step guide on how to sign up, visit the TBA website.


UT College of Law Launches Trademark Legal Clinic

Students at the University of Tennessee College of Law will soon be able to practice trademark law before the U.S. Department of Commerce’s U.S. Patent and Trademark Office (USPTO), school officials announced today. The college is one of only 47 law schools chosen to participate in the USPTO Law School Clinic Certification Pilot Program. As part of the program, UT’s Business Law Clinic will provide trademark legal services to independent inventors and small businesses on a pro bono basis. Students will represent clients before the USPTO under the guidance of a faculty clinic supervisor. "Branding has become an increasingly important element of promoting a successful product or business," said Brian Krumm, director of the UT Business Law Clinic and supervisor of the pilot program. "Providing our students the opportunity for hands-on experience with the trademark process will make them more effective counselors to businesses when they become practicing attorneys." 


Kingston Judge Rules in Same-Sex Divorce Case

Ninth Judicial District Circuit Court Judge Russell E. Simmons Jr. has found in favor of the state in the case of a same-sex couple seeking a divorce in Roane County, the Roane County News reports. In a seven-page ruling issued this week, Simmons determined that Tennessee laws declaring that a valid marriage in another state, but prohibited and thus unenforceable in Tennessee, are constitutional. “Both the Supreme Court of the United States and the courts of Tennessee have both found that the Full Faith and Credit Clause does not require a state to apply another state’s law in violation of its own legitimate public policy,” Simmons noted in his ruling.


DCS Reports 2 Apparent Suicides at Detention Facility

The Tennessee Bureau of Investigation is reviewing the deaths of two teens in separate apparent suicides within a three-week span at a Department of Children's Services facility that houses delinquent youth. Last week, staff at Mountain View Youth Development Center in East Tennessee discovered an unconscious 18-year-old who is believed to have hanged himself. He died the next day at a local hospital. On July 13, a 16-year-old boy fatally hanged himself in his room as other teens left to shower, according to DCS officials. The deaths come a year after the department underwent a reorganization and change in leadership after multiple problems emerged, including a failure to keep track of deaths of children on its watch and a spike in violence at its youth detention facilities. The Tennessean has the story.


Sen. Finney Announces Mayoral Run

Lawyer and state Sen. Lowe Finney told the Jackson Sun yesterday that he will run for mayor of Jackson in next May's election. Finney has served as state senator for eight years. He is not seeking re-election. Finney said that he and his wife, Tiffany, have been contemplating a run for mayor for several months.


Oklahoma Gay Marriage Case Appealed to High Court

Voters, not federal judges, should decide how to define marriage said attorneys who filed an appeal yesterday asking the U.S. Supreme Court to decide whether Oklahoma's ban on gay marriage is constitutional. The 47-page appeal was filed by Alliance Defending Freedom, an organization representing Tulsa County Clerk Sally Howe Smith, who was sued after refusing to grant a marriage license to a same-sex couple. The 10th U.S. Circuit Court of Appeals sided with the couple last month, upholding a federal judge's ruling that found the ban unconstitutional. However, those rulings were put on hold as the case makes its way through the courts, the Chattanooga Times Free Press reports.


ABA Meeting Kicks Off Friday in Boston

The ABA Annual Meeting kicks off tomorrow in Boston. Among the programs planned are a keynote address by U.S. Homeland Security Secretary Jeh Johnson, screening of “The Case Against 8” and a presentation by David Boies and Theodore B. Olson on marriage equality, and a keynote speech by U.S. Supreme Court Chief Justice John G. Roberts. The House of Delegates will meet Monday and Tuesday and consider a number of policy resolutions. At the conclusion of the meeting outgoing president James R. Silkenat of New York will hand the gavel to his successor William C. Hubbard of South Carolina. The ABA Journal provides an overview of the meeting.


TBA Reception Honors Harrison McIver

The TBA will host a reception in honor of Memphis lawyer Harrison D. McIver on Saturday from 6:30 to 7:30 p.m. at the Fairmont Copley Plaza in Boston. The Tennessee Reception is made possible through the generous support of the University of Tennessee College of Law, University of Memphis School of Law, Belmont University College of Law and Vanderbilt University Law School. McIver is executive director and CEO of Memphis Area Legal Services.


Services Friday for Chattanooga Lawyer Killed in Accident

Chattanooga attorney James Anthony "Jamey" Hewitt died from injuries received in a single-vehicle accident early Sunday morning. He was 44. A longtime resident of Chattanooga, Hewitt was a graduate of McCallie School and the University of Tennessee at Chattanooga. He received his law degree from the University of Memphis School of Law. The family will receive friends on Friday from 11 a.m. to 2 p.m. at Heritage Funeral Home, 7454 E. Brainerd Rd. Funeral services will follow at 2 p.m. with Dr. Thomas Quisenberry officiating. Burial will be at Hamilton Memorial Gardens in Hixson. Memorial contributions may be made to the American Cancer Society. The Chattanoogan has more.


Seminar to Help Ministers Identify Legal Needs

The Knoxville Bar Association, Legal Aid of East Tennessee and the Tennessee Faith and Justice Alliance are teaming up to host a seminar on Sept. 16 for ministers of all faiths to learn about the resources available to help members of their congregations with legal problems. “The idea is to make them aware of how to spot legal problems that are impacting the lives of people in their congregations, and to inform [the ministers] of the various legal and social resources in East Tennessee that are available,” said Knoxville lawyer Ian Hennessey. The seminar will be held in Trentham Hall of First Baptist Church of Knoxville, 510 W. Main St. Cost is $6, which includes a sandwich lunch buffet. Those interested in attending should contact Vanessa Moore. Download a handout about the event or read more in Knoxnews.


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Questions, comments: Email us at TBAToday@tnbar.org

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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