New lawyer discipline process adopted

In what observers say was a surprise move, the Tennessee Supreme Court today ordered the first comprehensive rewrite of the bar's rules on disciplinary enforcement in more than 30 years. The Court began the review of Tenn. Sup. Ct. Rule 9 in 2003 after the Rules of Professional Conduct, which set new substantive standards for lawyer conduct, were adopted.

The process included review of the Board of Professional Responsibility by an ABA peer review committee; a separate study by a commission headed by Nashville lawyer Waverly Crenshaw; publication of reports from both of those bodies in 2004; and a period for public comment. The TBA provided extensive comments and recommendations in reaction to those reports. The Court indicates in its order that it postponed changes when the Tennessee Lawyer Assistance Program also proposed some changes in the process for lawyer assistance and amendments to Rule 33 on lawyer assistance. The court's release of the amendments today is the first public release of the language amending the rules. You can download the new rules, which are effective July 1, at the link below. The TBA will provide additional information on the rule changes in coming days.

http://www.tba2.org/tbatoday/news/2006/rule9.sc.bpr.pdf

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. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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06 - TN Court of Appeals
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02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. 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. 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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

CLINTON BOOKS, INC. v. CITY OF MEMPHIS

Court: TSC

Attorneys:

Michael F. Pleasants, Memphis, Tennessee, for the Appellant-Plaintiff, Clinton Books, Inc.

Bradley J. Shafer and Edward M. Bearman, Memphis, Tennessee, for the Appellant-Intervenor, Fantasy Warehouse, Inc.

Steven D. Townsdin, Memphis, Tennessee, for the Appellee-Defendant, City of Memphis.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Steven Ashley Hart, Assistant District Attorney General, for the Appellee-Intervenor, State of Tennessee.

Judge: HOLDER

This appeal relates to the plaintiffs' challenge to the constitutionality of Tennessee Code Annotated Section 7-51-1402 (1998), which regulates the hours during which adult-oriented establishments may remain open and, if violated, results in criminal penalties. We must determine 1) whether the trial court had jurisdiction to issue a temporary injunction barring enforcement of the statute; and 2) whether the trial court erred in consolidating the request for injunctive relief with the declaratory judgment action and addressing the constitutionality of the statute. We conclude that the trial court lacked jurisdiction to grant injunctive relief. Furthermore, the trial court erred in addressing the constitutionality of the statute without providing notice to the parties that the court was consolidating the action for injunctive relief with the declaratory judgment action. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court for a trial on the merits of the declaratory judgment action.

http://www.tba2.org/tba_files/TSC/2006/clintonbooks042506.pdf


AMERICAN INDUSTRIES SERVICES, INC. v. HERMAN S. HOWARD ET AL.

Court: TCA

Attorneys:

Donald Capparella, Nashville, Tennessee; Roane Waring III and Dennis P. Hawkins, Memphis, Tennessee (on the brief), for the appellants, Herman S. Howard, The Media Group, Inc., and American Direct Marketing.

Kenneth M. Bryant, E. Todd Presnell, and David L. Johnson, Nashville, Tennessee, for the appellee, American Industries Services, Inc.

Judge: KOCH

This appeal involves a dispute between a fulfillment company and two former customers regarding the payment of storage charges. In the first lawsuit brought by the customers, the Chancery Court for Davidson County determined that the fulfillment company’s storage fees were reasonable and directed the customers to pay $278,047 to defray part of the storage charges. Thereafter, the fulfillment company filed a second lawsuit in the trial court seeking to recover the balance of its storage charges. When the former customers attempted to re-litigate the reasonableness of its storage charges, the fulfillment company filed a motion for summary judgment asserting collateral estoppel. The trial court granted the fulfillment company's motion and awarded the fulfillment company $106,785 plus prejudgment interest. The former customers have appealed. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2006/americanindustries042506.pdf


IN THE MATTER OF: THE ESTATE OF ROOSEVELT DUKES, DECEASED
Corrected Case


Court: TCA

Attorneys:

Johnny D. Hill, Jr., Fayetteville, Tennessee, for the appellant, Rosemary Sebastian, Executor of the Estate of Roosevelt Dukes.

James S. Hereford, Jr., Fayetteville, Tennessee, for the appellee, Nell M. Shubert.

Judge: CLEMENT

Case Summary
The matters at issue pertain to claims made against a decedent's estate. Nell Shubert timely filed four claims against the Estate of Roosevelt Dukes for: (1) the balance owing on two promissory notes, (2) property taxes paid on behalf of the decedent, (3) rent on real property, and (4) the purchase of a bush hog. The executrix filed exceptions to all claims. After the time passed for filing claims, Ms. Shubert amended her claim on the promissory notes to add a request for attorney fees. The trial court ruled in favor of Ms. Shubert on the promissory notes including the claim for attorney fees but denied all other claims. We affirm with one exception, finding Ms. Shubert is entitled to recover property taxes paid on behalf of Mr. Dukes to preserve the property.

Description of Correction
On page six (6), fourth paragragh, the third and fourth sentence reference Tenn. Code Ann. Section 30-2-310(e). This has been corrected to reference Tenn. Code Ann. Section 30-2-307(e).

Corrected Case
http://www.tba2.org/tba_files/TCA/2006/dukesr_corr042506.pdf


IN RE: ESTATE OF MELVIN GANT

Court: TCA

Judge: KOCH

This appeal involves a dispute among siblings over who should serve as administrator of their deceased brother's estate. Following the decedent's death without a will, the decedent's brother filed a pro se petition in the Circuit Court for Davidson County seeking to be named administrator. The decendent's two sisters opposed the petition. Following a hearing, the trial court appointed the public administrator to administer the estate. On this appeal, the decedent's brother takes issue with the trial court's refusal to appoint him as administrator. We affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2006/gantm042506.pdf


PAULA JEANNE GREENE v. PAUL THOMAS GREENE

Court: TCA

Attorneys:

Chadwick W. Stanfill, Nashville, Tennessee, for the appellant, Paul Thomas Greene.

Gregory D. Smith and Aminah M. Collick, Nashville, Tennessee, for the appellee, Paula Jeanne Greene.

Judge: CAIN

The trial court granted Wife a divorce based on Husband's adultery and awarded Wife alimony in futuro in the amount of $1,500.00 per month. Husband appeals the award of permanent alimony as opposed to rehabilitative alimony as well as the amount of monthly alimony, claiming an inability to pay due to other financial obligations, including child support for the parties' four children. The judgment of the trial court is modified with respect to the award of alimony in futuro and the amount of monthly alimony, otherwise, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2006/greenep042506.pdf


IN RE: M.B., S.C., C.C., N.D.C., AND A.C.

Court: TCA

Attorneys:

Bruce N. Oldham, Gallatin, Tennessee, for the appellant, Bonnie Cheatham.

Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: CAIN

Mother appeals the Sumner County Juvenile Court's order terminating her parental rights to five children, M.B., S.C., C.C., N.D.C., and A.C., based on abandonment and persistent unremedied conditions. S.C., C.C., N.D.C., and A.C.'s father voluntarily relinquished his parental rights and thus, was not a party to the petition for termination. M.B.'s father does not challenge the trial court's termination of his parental rights. The judgment of the trial court is reversed in part and affirmed in part.

http://www.tba2.org/tba_files/TCA/2006/mb042506.pdf


WILLIAM B. SHEARRON , ET UX. v. THE TUCKER CORPORATION, ET AL.

Court: TCA

Attorneys:

John L. Mitchell and Christopher J. Pittman, Clarksville, Tennessee, for the Appellants, William B. Shearron and Sandra Shearron.

James D. Kay, Jr. and Jeanette A. White, Nashville, Tennessee, for the appellees, The Tucker Corporation and Richard Tucker, Individually.

Judge: CAIN

This appeal represents the second appeal as of right brought in litigation begun 17 years ago, when the plaintiffs filed suit alleging that the defendant corporation had caused flooding on their land. This Court affirmed the permanent nuisance finding in its opinion in Shearron v. Tucker, M2000- 00624-COA-R3-CV, 2001 WL 1158897 (Oct. 2, 2001); we held that the facts supported an action for temporary nuisance as well. The cause was remanded for a recalculation of the trial court's $30,000 damage award. Upon remand, the trial court found that the plaintiffs had failed to prove damages for temporary or permanent nuisance other than $975.00 in damages representing a damaged garden shed and water heater. From the actions of the trial court the Shearrons bring this second appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2006/shearronw042506.pdf


Constitutionality of Passing On Cost of a Collection Agent

TN Attorney General Opinions

Date: 2006-04-25

Opinion Number: 06-075

http://www.tba2.org/tba_files/AG/2006/ag_06-075.pdf

Funeral Procession Escort's Duty

TN Attorney General Opinions

Date: 2006-04-25

Opinion Number: 06-076

http://www.tba2.org/tba_files/AG/2006/ag_06-076.pdf

TODAY'S NEWS

Legislative News
Legal News
Election 2006
BPR Actions

Legislative News
Action on judicial pay
The Senate and House Finance Ways and Means Committees both cleared the way for passage of the bill setting base judicial pay for the next eight years today. The bill could see final passage as early as next week.

Joint custody bill withdrawn
A bill establishing the presumption of joint custody in divorce cases, which was revived briefly late last week, was withdrawn from House consideration today. The Senate had acted on the bill last year. The TBA has been concerned about the effect such legislation would have on sound judicial discretion.

Eminent domain bill clears Senate committee
The Senate Judiciary Committee got down to work on eminent domain legislation today, adopting seven amendments addressing appraisal, deposit of offered amounts and attorney's fees before recommending the Farm Bureau-backed bill as amended.

Sunshine law to be studied
A 19-member joint-study committee charged with reviewing The Sunshine in Government Law was announced today. The study comes as a result of efforts by the Tennessee Committee on Openness in Government to enhance enforcement of the act through a sweeping rewrite.

After flurry of election reform bills, 2 ideas moving forward
Several bills to reform Tennessee's election laws were filed after Ophelia Ford narrowly won a Memphis state Senate race but only two seem to be making any progress. One of the bills would require more frequent purging of voter registration records. The other would set up an automatic recount of close elections. See more from
WATE Channel 6
Legal News
UT College of Law Career Center named for Lewis
The University of Tennessee College of Law announced recently the naming of the Bettye B. Lewis Career Center. The center is named in honor of the late Bettye B. Lewis of Memphis, who was the first president of the Tennessee Bar Auxiliary and the wife and mother of two distinguished UT Law graduates. The center was dedicated at a ceremony April 18 at the Shelby County Courthouse in Memphis. Mrs. Lewis was the wife of the late Hon. George T. Lewis Jr., a 1936 graduate of the UT College of Law, and the mother of George "Buck" Lewis III, a 1980 UT Law alumnus. Read more about it
here
Archer tapped to help Wal-Mart with diversity issues
Dennis Archer, who was the first African-American president of the American Bar Association, has been named to Wal-Mart's first diversity panel as it faces mounting pressure to change its business practices. Read the AP story at
WMCTV.com
Retired judge refuses to dismiss special prosecutors
Retired Circuit Judge Nicholas Person on Monday denied a bid by David K. Stanley to dismiss special prosecutors Gerald Gray of Clintwood and Greg Kallen of Wise who are assigned to Stanley's criminal case. Stanley was convicted in the late 1980s of swindling investors in Virginia and subsequently in Tennessee. In Wise County, he was allowed by now-retired Circuit Judge Robert Stump to be on work release to pay restitution to victims. Read the details in the
Kingsport Times-News
Estes winds down district attorney general career
District Attorney General Jerry Estes will not seek reelection after 24 years on the job. Read this tribute to his long public service career in the
Cleveland Daily Banner
Nominate a judge, court employee or lawyer
The American Bar Association is accepting nominations for three awards until April 28. The Franklin N. Flaschner Award is given to a judge of limited jurisdiction committed to high ideals and exhibiting exemplary character, leadership and competence. The second award, the William R. McMahon Award, recognizes a judge, court employee or attorney who makes a significant contribution to technology advances in a court of limited or special jurisdiction. The final award is the Judicial Education Award, which recognizes individuals or institutions that provide judicial education and training to judges. For nomination information visit the
ABA's web site
Nashville lawyers put Lady Macbeth on trial
Nashville's finest legal minds will face off against Shakespeare's most notorious leading lady during The Trial of Lady Macbeth May 4, at 6:30 p.m. at the University Club of Nashville. The event, which also will feature a silent auction and dinner, will benefit the Nashville Shakespeare Festival. Nashville attorneys Joseph A. Woodruff and Elizabeth A. Sanders of Waller, Lansden, Dortch & Davis will act as the prosecution. Donald Capparella and Kristen B. Amonette of Dodson, Parker & Behm will provide the defense. Audience members will play the role of jurors. For more information or for tickets call (615) 255-2273.

Election 2006
Latest Knox Co. appeals denied by court; issue to remove name from ballot back to chancellor
The state Supreme Court yesterday denied separate appeals, all involving the elections in Knox County. Read the orders here. Also, lawyer Herbert S. Moncier is due back before Knox County Chancellor John Weaver Wednesday for another attempt at the removal of Sheriff Tim Hutchison's name from the ballot of the May 2 countywide primary. Read that story in the
Knoxville News Sentinel
Commissioners delay vote to fill Ford's seat
In a heavily debated and potentially controversial move, Commissioners voted to wait a month to fill the vacancy in the Senate District 29 seat, which was created when Ophelia Ford's election was deemed void.
WMCTV.com has the story
BPR Actions
Columbia attorney suspended
On April 21, the Supreme Court of Tennessee suspended Michael E. Gilmer for five years because he abandoned his law practice, made misrepresentations to clients, failed to return client files and failed to respond to the Board of Professional Responsibility. For more information, read the
BPR's press release

 
 
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