Getting paid a problem? TennBarU ethics course can help

Collecting fees is not directly addressed in the Rules of Professional Conduct, however both the rules and malpractice carriers have something to say on the issue. A new online course from TennBarU explores practice management strategies to help reduce the number of non-paying clients and discusses ethical obligations for collecting fees from such clients.

http://www.tnbaru.com/usercatalogdrb.php?517936U=25&bprnum=888888#

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 http://www.tba.org/getpassword.mgi.

00 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
07 - TN Court of Criminal Appeals
01 - 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

HARLAN B. EMBRY v. UNITED PARCEL SERVICE, INC., LIBERTY MUTUAL FIRE INSURANCE COMPANY, and the ADMINISTRATOR OF THE TENNESSEE SECOND INJURY FUND

Court: TWCA

Attorneys:

Keith Jordan, Nashville, Tennessee (on appeal), and Joseph L. Mercer, III, Nashville, Tennessee (at trial), for the Appellant, Harlan B. Embry.

David T. Hooper, Hooper & Zinn, Brentwood, Tennessee, for the Appellees, United Parcel Service, Inc. and Liberty Mutual Fire Insurance Company.

Judge: CORLEW

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Employee has appealed the findings of the trial court, which determined that the Employee is entitled to recover benefits for a permanent partial disability rating of 12.5% apportioned to the right upper extremity and no disability to the left upper extremity, both cubital tunnel injuries. The trial court also found no compensable injury accorded to the Employee's claim for benefits due to his bilateral carpal tunnel syndrome. Further, the Employee appeals from the failure of the trial court to award discretionary costs to him pursuant to the provisions of Rule 54.04 of the Tennessee Rules of Civil Procedure. Finally, the Employee has asked the Panel to consider post-judgment facts and render a decision with regard to interest. We hold that the judgment should be affirmed in part, reversed in part, and remanded.

http://www.tba2.org/tba_files/TSC_WCP/2006/embryh053106.pdf


MONICA D. PERRY v. GAP, INC.

Court: TWCA

Attorneys:

Richard C. Mangelsdorf, Jr. and Stephen B. Morton, Nashville, Tennessee, attorneys for Appellant, Gap Inc.

William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, attorneys for Appellee, Monica Perry.

Judge: INMAN

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The treating specialist found the Employee not to be impaired due to a pinched nerve in her neck, which was resolving. An independent medical examiner (IME) testified that she retained an 8 percent permanent partial disability impairment. The trial judge accepted the opinion of the IME and awarded the Plaintiff 20 percent permanent partial disability. We do not find that the evidence preponderates against the holding of the trial court. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2006/perrym053106.pdf


RANDALL BIRCHFIELD dba RANDALL BIRCHFIELD REAL ESTATE AND AUCTION v. MICHAEL L. PHILLIPS, ET AL.
Corrected Case


Court: TCA

Attorneys:

Robert D. Arnold, Johnson City, Tennessee, for the appellants, Jimmy B. Phillips and Judy H. Phillips.

Kathryn J. Dugger-Edwards, Elizabethton, Tennessee, for the appellee, Randall Birchfield dba Randall Birchfield Real Estate and Auction.

Judge: SUSANO

Randall Birchfield (the auctioneer) operates a realty and auction business under the trade name of Randall Birchfield Real Estate and Auction. He entered into a written contract (the auction contract) with Jimmy B. Phillips and his wife, Judy H. Phillips (the sellers), by the terms of which he agreed to sell at auction certain tracts of real property owned by the sellers. At the auction, Michael L. Phillips, who is Jimmy's brother, along with Michael's wife, Elizabeth Phillips (the buyers), were the successful bidders. The sellers and the buyers then executed a contract entitled "Offer to Purchase with Acceptance" (the purchase contract), which contract was also signed by the auctioneer. Despite the existence of a facially-valid contract, the buyers failed to carry through with their contractual obligations. As a consequence, the sale did not close. The auctioneer filed suit against the sellers and the buyers. The trial court held that the sellers are liable to the auctioneer for the 10% commission specified in the auction contract and for prejudgment interest at a rate of 2.25%. The auctioneer's claim against the buyers was dismissed. The sellers appeal and both sides raise issues. We affirm the trial court's judgment with respect to the auctioneer's commission, but vacate the trial court's determination that 2.25% is the appropriate rate of prejudgment interest. On the subject of prejudgment interest, we remand this case to the trial court with instructions.

Correction: The name of the attorney for the appellant is corrected.

http://www.tba2.org/tba_files/TCA/2006/birchfieldr_corr053106.pdf


JERRY DUKE, d/b/a MOSCOW MANOR APARTMENTS v. BROWNING-FERRIS INDUSTRIES OF TENNESSEE, INC., ET AL.

Court: TCA

Attorneys:

Gordon Ball of Knoxville, Tennessee and William E. Phillips II of Knoxville, Tennessee for Appellant, Jerry Duke

R. Dale Grimes, David R. Esquivel and J. Brandon Miller of Nashville, Tennessee; Michael F. Rafferty of Memphis, Tennessee; Michael W. Whitaker of Covington, Tennessee for Appellees, Browning-Ferris Industries of Tennessee, Inc. and Browning-Ferris Industries, Inc.

Judge: CRAWFORD

Plaintiff/Appellant filed suit against Defendants/Appellees claiming that Defendants/Appellees had violated the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and the common law doctrines of good faith and fair dealing, and unjust enrichment in its contracting for commercial waste hauling services in the Memphis area. The trial court granted summary judgment in favor of Defendants/Appellees on both the statutory violation claims and the common law claims. We affirm.

http://www.tba2.org/tba_files/TCA/2006/dukej053106.pdf


JAMES JACKSON v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TCA

Attorneys:

James Jackson, Tiptonville, TN, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael B. Schwegler, Assistant Attorney General, Nashville, TN, for Appellee.

Judge: HIGHERS

A prisoner in the custody of the Tennessee Department of Correction filed a pro se petition for common law writ of certiorari in the trial court seeking to contest the prison disciplinary board's findings. The department filed a motion to dismiss for lack of subject matter jurisdiction, citing the petition's lack of notarization, its failure to state that it was the first application for the writ, and the prisoner's failure to file it within sixty (60) days of the administrative action. The trial court granted the department's motion to dismiss. The prisoner filed a motion for a new trial asserting that he complied with Tennessee Rule of Civil Procedure 5.06. The trial court denied the motion. The prisoner timely filed an appeal to this court. We affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCA/2006/jacksonj053106.pdf


IN RE THOMAS P.

Court: TCA

Attorneys:

James R. Hickman, Jr., Sevierville, Tennessee, for the appellant, Rene V.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, for the appellee, State of Tennessee Department of Children's Services.

Mary C., Cape Coral, Florida, appellee, Pro Se.

Judge: SUSANO

The trial court terminated the parental rights of Rene V. (Mother) to her child, Thomas P. (DOB: September 27, 2000), upon finding, by clear and convincing evidence, that grounds for terminating her parental rights existed and that termination was in the best interest of the child. Mother appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/thomasp053106.pdf


STATE OF TENNESSEE v. MICHAEL JOSEPH HULETT

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender, Clarksville, Tennessee, for the Appellant, Michael Joseph Hulett.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and John Finklea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

Following a bench trial in the Montgomery County Circuit Court, the Appellant, Michael Joseph Hulett, was convicted of second degree murder and sentenced to twenty-one years in the Department of Correction. On appeal, Hulett contends that the evidence presented was insufficient to support the verdict. Specifically, he challenges the evidence with regard to the mens rea element of "knowingly." After review, we find no error and affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2006/hulettm053106.pdf


STATE OF TENNESSEE v. EDWARD HUTCHINSON

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the Appellant, Edward Hutchinson.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; Ray Crouch and Billy Miller, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Edward Hutchinson, presents for review a certified question of law following his guilty plea to driving under the influence (DUI), first offense. See Tenn. R. Crim. P. 37(b)(2)(i). As a condition of his guilty plea, Hutchinson explicitly reserved a certified question of law challenging the denial of his motion to suppress evidence obtained pursuant to a warrantless stop and seizure. Hutchinson argues that the officer did not have reasonable suspicion when he subjected Hutchinson to an investigatory stop. Finding no error, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/hutchinsone053106.pdf


STATE OF TENNESSEE v. GINGER J. JACKSON

Court: TCCA

Attorneys:

Paul D. Cross, Monteagle, Tennessee, for the Appellant, Ginger J. Jackson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; and Steve Blount, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Ginger J. Jackson, was convicted by a Franklin County jury of soliciting the first degree murder of her ex-husband and was sentenced to a term of eight years and six months confinement in the Department of Correction. On direct appeal, a panel of this court affirmed Jackson's conviction but modified her sentence to eight years based upon violations of Blakely v. Washington. Additionally, the case was remanded to the trial court "for the consideration of [her] suitability for probation." State v. Ginger Jackson, No. M2003-02539-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 4, 2005). On remand, the trial court again imposed a sentence of eight years and six months, relying upon our Supreme Court's decision in State v. Gomez, which was decided after this court's opinion was filed on March 4, 2005, and after the mandate had issued in this case. On appeal, Jackson argues that the trial court erred in failing to proceed with the mandate of this court, i.e., entry of a sentence of eight years and consideration for probation. Because we conclude that the law of the case doctrine is inapplicable to the facts of this case, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/jacksong053106.pdf


STATE OF TENNESSEE v. CHAD MICHAEL KNIGHT

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender; and Russell Church, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Chad Michael Knight.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Daniel Brollier, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Chad Michael Knight, appeals the sentencing decision of the Montgomery County Circuit Court. Following a jury trial, Knight was convicted of reckless endangerment, a Class A misdemeanor, and aggravated child abuse, a Class A felony, and sentenced to an effective term of twenty years, eleven months, and twenty-nine days in confinement. On appeal, Knight argues that the trial court erred in: (1) failing to apply various sentencing considerations which would have served to mitigate his sentence, as authorized by Tennessee Code Annotated Section 40-35-113(13) (2003); and (2) refusing to sentence him as an especially mitigated offender in accordance with Tennessee Code Annotated Section 40-35-109 (2003). After review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/knightc053106.pdf


ANDRE L. MAYFIELD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Andre L. Mayfield, Pro Se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Andre L. Mayfield, proceeding pro se, appeals the Davidson County Criminal Court's summary dismissal of his petition for post-conviction relief upon grounds that the petition is time-barred. On April 18, 2005, Mayfield filed the instant petition collaterally attacking his 1989 convictions for robbery and receiving stolen property. He alleges that the convictions are facially invalid and void due to the trial court's imposition of concurrent sentences despite the fact that he was on bail when the offenses were committed. The post-conviction court summarily dismissed the petition as time-barred. After review, we affirm summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2006/mayfielda053106.pdf


CLIFFORD SIMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lowe Finney, Jackson, Tennessee (on appeal) and Paul Springer, Memphis, Tennessee (at hearing), for the appellant, Clifford Sims.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Andre Thomas, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Clifford Sims, appeals from the denial of his petition for post-conviction relief, arguing that his guilty pleas were unknowing and involuntary and that he was denied the effective assistance of counsel. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2006/simsc053106.pdf


STATE OF TENNESSEE v. TAMAINE WORKS

Court: TCCA

Attorneys:

Mark Mesler, Memphis, Tennessee, for the appellant, Tamaine Works.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; Paul Hagerman and Dean Decandia, Assistant District Attorney Generals, for the appellee, State of Tennessee.

Judge: WELLES

This is a direct appeal from a conviction on a jury verdict of first degree premeditated murder. See Tenn. Code Ann. Section 39-13-202. The Defendant was sentenced to life in prison. On appeal, the Defendant raises five issues: (1) the trial court erred in allowing the State to define premeditation for prospective jurors through the uses of examples during voir dire; (2) the trial court erred in excluding from evidence the victim's alleged involvement in a prior homicide; (3) the trial court erred in allowing as evidence at trial the prior testimony from an unavailable witness; (4) the trial court erred by allowing the testimony of three of the State's rebuttal witnesses; and (5) the evidence was insufficient to find him guilty beyond a reasonable doubt of the crime of first degree, premeditated murder. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/workst053106.pdf


Constitutionality of Provision in Senate Bill 3296 Exempting Agricultural Land from Consideration

TN Attorney General Opinions

Date: 2006-05-26

Opinion Number: 06-098

http://www.tba2.org/tba_files/AG/2006/ag_06-098.pdf

TODAY'S NEWS

Legal News
Election 2006
BPR Actions

Legal News
Alley's DNA request denied
Shelby County Criminal Court Judge W. Otis Higgs rejected arguments presented by attorneys for Sedley Alley that DNA testing of crime scene evidence may prove his innocence. Alley was scheduled to be executed May 17 but received a 15-day reprieve to seek the testing. Defense attorneys indicate that they will appeal the decision, the Associated Press reports.
Download the judge's order
Suit filed on behalf of hurricane victims
Pro bono attorneys in Texas have filed a class action lawsuit against the Federal Emergency Management Agency (FEMA) on behalf of Hurricane Katrina victims, alleging that FEMA failed to fulfill its statutory obligation to provide temporary housing assistance. Tennessee legal aid organizations are monitoring the case and its possible impact on housing assistance in this state.

Election 2006
Term-limits court debate begins
A Knox County Chancery courtroom was packed with lawyers and clients today in a race against the clock to decide whether the county's charter is valid and if any of its elected offices are term-limited.
Read about new developments in the News Sentinel
New law affects write-in votes
House Republican Leader Bill Dunn has asked Gov. Phil Bredesen to veto legislation, passed on the last day of the session, which he argues makes it more difficult for write-in candidates to win primary elections. Bredesen said he would withhold judgment until he reviews the final version of the bill.
Read more in the Knoxville News Sentinel
BPR Actions
Cordova lawyer disbarred
Mark Lee Pittman of Cordova was disbarred on May 24 based on the complaints of more than 20 clients. The court found that Pittman had engaged in a troubling pattern of neglect; knowingly failed to return fees and files to clients; knowingly deceived clients as to the status of their cases; and made false statements of fact.
Read the BPR's notice
Linden attorney suspended
On May 25, the Supreme Court suspended the law license of Bobby A. McGee for a period of three years with all but 90 days suspended, contingent upon completion of remedial education courses; continuing under a mentor; and compliance with the Tennessee Lawyers Assistance Program and the Rules of Professional Conduct. The court found that McGee reflected a lack of concern for the well being of his client and failed to properly understand steps required to protect the client in a criminal proceeding.
Read the BPR's press release

 
 
UNSUBSCRIBE TO TBAToday? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba2.org/tbatoday/unsub_tbatoday.php

TBALink HomeContact UsPageFinderWhat's NewHelp
 
 
© Copyright 2006 Tennessee Bar Association