Proposed rule change would affect civil case assignments

A proposal to change the local rule that governs the assignment of civil cases for the U.S. Middle District Court in Tennessee has been issued. Currently the rule, 6(a), provides for the division of case assignments with the Nashville division assigned on a random selection basis, but cases in the Northeastern Division and the Columbia Division assigned to one judge. The proposed rule would have all cases assigned on a random selection basis. Deadline for comments is March 15.

http://www.tnmd.uscourts.gov/proposed_changes.html

TODAY'S OPINIONS
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SUPREME COURT OF TENNESSEE

Court: TSC-Rules

http://www.tba2.org/tba_files/TSC_Rules/2006/certlist020606.pdf

TOM ALBERT, ET AL. v. PAT FRYE, ET AL.

Court: TCA

Attorneys:

Randle W. Hill, Jr., Hermitage, Tennessee, and Joseph V. Ferrelli, Nashville, Tennessee, for the appellants, Pat Frye and Vernon W. Frye.

Joe M. Haynes, Goodlettsville, Tennessee, for the appellees, Tom Albert, Hazel Albert and Alcar Associates, LLC.

Judge: FRANK G. CLEMENT, JR.

Vernon Frye, a defendant, appeals the grant of a post-trial motion to alter or amend the judgment for the defendant, resulting in a judgment against him of $65,000. Plaintiffs, Tom and Hazel Albert, sued Vernon Frye on a check he signed and delivered to them but stopped payment on before it was presented to the bank. Following a bench trial, the trial court dismissed Plaintiffs’ claim against Vernon Frye upon the finding Plaintiffs had not proven fraud. In a post-trial motion to alter or amend, Plaintiffs contended they were entitled to relief pursuant to Tenn. Code Ann. § 47-3-414(b) because Frye, the drawer, was obliged to pay the draft according to its terms without proof of fraud. The trial court agreed and entered a new judgment awarding damages in the amount of the check against Vernon Frye. Finding the trial court did not abuse its discretion by granting the Tenn. R. Civ. P. 59.04 motion to amend the judgment, we affirm.

http://www.tba2.org/tba_files/TCA/2006/albertt020606.pdf


CITY OF NEW JOHNSONVILLE v. KEVIN E. HANDLEY, ET AL.

Court: TCA

Attorneys:

R. Eric Thornton, Dickson, TN, for Appellants

T. Holland McKinnie, City Attorney, Franklin, TN; Michael R. Hill, Milan, TN, for Appellee, City of New Johnsonville, TN

Judge: ALAN E. HIGHERS

This appeal involves protracted litigation over a parcel of land conveyed by the City of New Johnsonville, Tennessee, to a member of the New Johnsonville City Council. The mayor, on behalf of the city, subsequently filed suit against the councilman seeking to nullify the transaction. During the pendency of that litigation, several taxpayers filed their own suit against the councilman alleging the same causes of action set forth in the city’s complaint. The city and the councilman ultimately settled their lawsuit. The taxpayers’ lawsuit continued, ultimately naming the city as a defendant. The trial court partially granted the defendants’ motions for summary judgment by ruling that the taxpayers did not have standing to contest the land transaction between the city and the councilman. The court ruled that the taxpayers did have standing to continue with their other causes of action concerning allegations that the councilman engaged in illegal business transactions with the city. The taxpayers subsequently took a voluntary nonsuit on their remaining claims and filed an appeal to this Court to contest the trial court’s grant of summary judgment on their claim regarding the land transaction. We vacate the trial court’s decision regarding the land transaction, and we remand for further proceedings not inconsistent with this opinion.

http://www.tba2.org/tba_files/TCA/2006/cityofnewjohnsonville020606.pdf


WILLIAM DORNING, Sheriff of Lawrence County, Tennessee v. AMETRA BAILEY, County Mayor of Lawrence County, Tennessee

Court: TCA

Attorneys:

William M. Harris, Lawrenceburg, TN, for Appellant

John S. Coley, III, Columbia, TN, for Appellee

Judge: ALAN E. HIGHERS

The Sheriff of Lawrence County filed an application in the circuit court pursuant to section 8-20-101 et seq. of the Tennessee Code seeking, among other things, funding for new vehicles, an additional administrative assistant for his investigators, two additional corrections officers for his jail, and increased salaries for his employees. The trial court granted the sheriff additional funding for these items. Regarding the salary increases, the trial court ordered that they be retroactive to the beginning of the prior fiscal year. The county appealed the trial court’s decision regarding the aforementioned items to this Court. We reverse in part and affirm in part the decisions of the trial court.

http://www.tba2.org/tba_files/TCA/2006/dorningw020606.pdf


EATHERLY CONSTRUCTION COMPANY v. HTI MEMORIAL HOSPITAL D/B/A MEMORIAL HOSPITAL

Court: TCA

Attorneys:

Todd E. Panther, Nashville, Tennessee, for the appellant, HTI Memorial Hospital Corporation d/b/a Nashville Memorial Hospital.

Angus Gillis, III, Nashville, Tennessee, for the appellee, Eatherly Construction Company.

Judge: FRANK G. CLEMENT, JR

This is a breach of contract action arising from the construction of a water line and pumping station for a new hospital. Eatherly Construction Company filed suit to recover $35,250 for installation of 705 linear feet of twelve-inch ductile iron pipe that was omitted from its bid and $10,000 of retainage funds withheld by the owner, HTI Memorial Hospital Corporation. The hospital denied Eatherly’s claims and filed a counterclaim to recover inter alia liquidated damages of $500 per day for each day the construction was delayed beyond the agreed completion date and attorney fees. The trial court summarily dismissed Eatherly’s bidding error claim of $35,250 and the hospital’s claim for attorney fees. Following a bench trial, Eatherly was awarded the $10,000 retainage while the hospital’s claim for liquidated damages was dismissed. Both parties appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2006/eatherlyc020606.pdf


CHARLIE GARDNER, JR. v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Charlie Gardner, Jr., Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Bradley W. Flippin, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

Judge: WILLIAM C. KOCH, JR.

This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department’s confirmation of the prisoner as a member of a Security Threat Group. The prisoner filed a petition pursuant to Tenn. Code Ann. § 4-5-225 (2005) in the Chancery Court for Davidson County seeking a declaratory judgment that the Department’s Security Threat Group policies and their application to him were invalid. The trial court granted the Department’s Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has appealed. We have determined that the prisoner failed to state a claim upon which relief can be granted because Tenn. Code Ann. § 4-5-225 petitions cannot be used to challenge the Department’s internal management policies.

http://www.tba2.org/tba_files/TCA/2006/gardnerc020606.pdf


PHYLLIS G. MITCHELL v. DIANE T. HUTCHINS

Court: TCA

Attorneys:

Timothy V. Potter, Dickson, Tennessee, for the appellant, Diane T. Hutchins.

Terry Bryan Larkin, Dickson, Tennessee, for the appellee, Phyllis G. Mitchell.

Judge: WILLIAM C. KOCH

This appeal involves a legal malpractice action. When the client discovered that her attorney had failed to file a personal injury complaint before the statute of limitations ran, she filed identical legal malpractice complaints in both the Circuit Court of Dickson County and the Circuit Court for Montgomery County. After the Montgomery County complaint was dismissed for failure to prosecute, the client’s former attorney moved to dismiss the Dickson County complaint on the ground of res judicata. The trial court denied the motion, and the attorney filed an application for an extraordinary appeal in accordance with Tenn. R. App. P. 10. We granted the application and have now determined that the trial court properly denied the attorney’s motion to dismiss.

http://www.tba2.org/tba_files/TCA/2006/mitchellp020606.pdf


JOHN MOORE ET AL. v. METROPOLITAN BOARD OF ZONING APPEALS ET AL.

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the appellants, John Moore, Gloria McKissack, Arvanzena Clardy, and Juanita Drake.

Thomas V. White, Nashville, Tennessee, for the appellee, Villa Way, LLC.

J. Brooks Fox, Nashville, Tennessee, for the appellee, Metropolitan Board of Zoning Appeals.

Judge: WILLIAM C. KOCH

This appeal involves a dispute between the developers of the site of a former commercial laundry and dry cleaning plant located in a residential neighborhood and a group of neighboring residents and property owners. Following two public hearings, the Metropolitan Board of Zoning Appeals approved a mixed-use development that included renovating two of the existing structures and constructing a new structure containing underground parking and additional retail and residential space. The neighboring property owners filed a petition for a common-law writ of certiorari and a writ of supersedeas in the Chancery Court for Davidson County challenging the Board’s decision. Following a review of the record of the Board’s proceedings, the trial court upheld the Board’s decision, and the property owners appealed. We have determined that the Board followed the proper procedures and did not act arbitrarily, and that its decision is supported by material evidence.

http://www.tba2.org/tba_files/TCA/2006/moorej020606.pdf


NEAL ROBERSON v. WEST NASHVILLE DIESEL, INC.

Court: TCA

Attorneys:

Forest A. Durard, Jr., Shelbyville, Tennessee, for the appellant, West Nashville Diesel, Inc.

Jonathan A. Street, Nashville, Tennessee, for the appellee Neal Roberson.

Judge: PATRICIA J. COTTRELL

A repairer sold equipment at auction to enforce its lien and collect its charges for repairs. It also attempted to collect storage charges that had not been agreed to. The trial court found the repairer was not entitled to storage charges, and we agree under the facts of this case. The trial court also awarded the owner of the equipment damages for the difference in the fair market value of the equipment and the amount received at auction. We modify that award to the measure authorized by statute in the absence of a challenge to the auction procedures. The trial court found the repairer violated the Tennessee Consumer Protection Act, and we reverse that holding.

http://www.tba2.org/tba_files/TCA/2006/robersonn020606.pdf


TENNESSEE FARMERS ASSURANCE COMPANY, et al v. LOREN L. CHUMLEY

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Jimmy G. Creecy, Chief Special Counsel for Appellant, Loren L. Chumley, Commissioner of Revenue, State of Tennessee

Charles A. Trost, Michael G. Stewart, Ramin M. Olson of Nashville; Christopher M. Was of Nashville; Edward K. Lancaster of Columbia, Tennessee for Appellee, Tennessee Farmers Assurance Company and Tennessee Farmers Mutual Insurance Company

Judge: W. FRANK CRAWFORD

Taxpayer insurance companies brought suit in consolidated cases for refund of franchise and excise taxes which taxpayers had paid under protest. The taxes were assessed as a result of an audit conducted by the Tennessee Department of Revenue’s field audit division and covering tax years 1995 through 1998. The taxpayers assert that they are allowed to take credit against the franchise and excise taxes for the amount they actually paid in gross premiums tax plus the credit they were granted against said tax by virtue of Tennessee investments. The Commissioner asserts that they are only entitled to credit on the franchise and excise taxes for the amount of gross premiums tax actually paid. The Chancery Court of Maury County entered judgment granting taxpayers motion for summary judgment holding that the commissioner’s interpretation of the statutes defeated the incentives for investment in Tennessee securities provided under the gross premiums tax statutes. The revenue commissioner appealed. Finding that Commissioner of the Department of Revenue is not estopped from assessing franchise and excise taxes against the Appellee, either by statute or by equity, and that the credit against franchise and excise taxes includes only the amount of gross premiums taxes paid and collected by the Department of Commerce and Insurance, we vacate the summary judgment granted to the Appellees and grant summary judgment for Appellant.

http://www.tba2.org/tba_files/TCA/2006/tennfarmers020606.pdf


STATE OF TENNESSEE v. TERRY L. TABOR

Court: TCCA

Attorneys:

Richard A. Tate, Assistant Public Defender, Blountville, Tennessee, for the Appellant, Terry L. Tabor.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Ricky A. W. Curtis, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: DAVID G. HAYES

The Appellant, Terry L. Tabor, was convicted by a Sullivan County jury of driving under the influence (“DUI”), speeding, and failure to use headlights. As a result of Tabor’s conviction for DUI, he received a sentence of eleven months and twenty-nine days, with six months service in confinement. On appeal, Tabor raises two issues for our review: (1) whether the evidence is sufficient to support the conviction for DUI; and (2) whether the court erred in ordering him to serve six months in jail. After review, the judgment of conviction and resulting sentence are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/tabort020606.pdf


KENNETH B. WHITE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kenneth B. White, pro se.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: J.C. MCLIN

The Petitioner, Kenneth B. White, appeals the trial court's denial of his motion to declare Tennessee Code Annotated section 40-35-114 unconstitutional pursuant to Blakely v. Washington. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals, or, in the alternative, dismiss the appeal as there is no right to appeal the denial of a motion to correct an illegal sentence. The Petitioner has not established that he is entitled to habeas corpus relief. Moreover, this Court is not vested with jurisdiction to entertain a request for an appeal of a denial of a motion to reopen a post-conviction petition. Finally, if treated as a Rule 35(b) motion for reduction of sentence, the claim is time-barred. Accordingly, , we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2006/whitekb020606.pdf


STATE OF TENNESSEE v. TRAVIS RAY WILKINS

Court: TCCA

Attorneys:

Keith E. Haas, Assistant Public Defender, for the Appellant, Travis Ray Wilkins.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: DAVID G. HAYES

The Appellant, Travis Ray Wilkins, was convicted by a Cocke County jury of aggravated burglary and theft of property over $500. As a result of these convictions, Wilkins received an effective sentence of five years. On appeal, Wilkins argues that the evidence is insufficient to support either of his convictions. After review of the record, we conclude that the evidence supports the convictions.

http://www.tba2.org/tba_files/TCCA/2006/wilkinst020606.pdf


TODAY'S NEWS

Legal News
Legislative News

Legal News
Two show interest in Supreme Court openings
Vacancies on the Tennessee Supreme Court created by the coming retirement of Riley Anderson of Knoxville and Adolpho Birch of Nashville are expected to draw a number of candidates among sitting judges and other attorneys. Among those already interested are Gary Wade and Robert Murrian.
Read this column in the Knoxville News Sentinel.
High court retirements give Bredesen firm hand
Columnist Tom Humphrey says that with their recently announced retirements, state Supreme Court Justices Riley Anderson and Adolpho Birch have assured that Democrats will continue to dominate at least one branch of Tennessee government until 2014.
Read his opinion in the Knoxville News Sentinel.
TBA was involved in formation of LLC act
When the Tennessee Revised Limited Liability Company Act went into effect Jan. 1, it was essentially capping more than two years of work by the Tennessee Bar Association and a handful of business law attorneys across the state to rewrite the state's then 90-page LLC Act. Read the story in the
Memphis Business Journal.
Darrow's image preserved
"Closing Arguments: Clarence Darrow on Religion, Law, and Society," a book edited by S.T. Joshi, is reviewed in today's
Tennessean.
Legislative News
McLeary now a Republican
Most people cheered, but about 10 Democrats remained silent after state Sen. Don McLeary made the announcement Friday that he would switch to the Republican Party. A Jackson Sun online poll asking "Did McLeary do the right thing?" was split 47 percent "yes" to 52 percent "no" this afternoon. Read the
Jackson Sun report.
McMillan takes leadership in stride
As majority leader, Kim McMillan is right in the middle of every controversy in the Tennessee House of Representatives. She's part of the Democratic leadership team. She's a lawyer with a Nashville firm that has a registered lobbyist in the legislative hallways, making her words and actions often questioned in ways other professionals don't have to answer to.
Read this News Sentinel account of how she does it.

 
 
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