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.
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Howard H. Vogel
HARLAN B. EMBRY v. UNITED PARCEL SERVICE, INC., LIBERTY MUTUAL FIRE INSURANCE COMPANY, and the ADMINISTRATOR OF THE TENNESSEE SECOND INJURY FUND
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.
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.
MONICA D. PERRY v. GAP, INC.
Richard C. Mangelsdorf, Jr. and Stephen B. Morton, Nashville, Tennessee, attorneys for Appellant,
William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, attorneys for Appellee, Monica
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.
RANDALL BIRCHFIELD dba RANDALL BIRCHFIELD REAL ESTATE AND AUCTION v. MICHAEL L. PHILLIPS, ET AL.
Robert D. Arnold, Johnson City, Tennessee, for the appellants, Jimmy B. Phillips and Judy H.
Kathryn J. Dugger-Edwards, Elizabethton, Tennessee, for the appellee, Randall Birchfield dba
Randall Birchfield Real Estate and Auction.
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.
JERRY DUKE, d/b/a MOSCOW MANOR APARTMENTS v. BROWNING-FERRIS INDUSTRIES OF TENNESSEE, INC., ET AL.
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.
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.
JAMES JACKSON v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.
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.
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.
IN RE THOMAS P.
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.
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.
STATE OF TENNESSEE v. MICHAEL JOSEPH HULETT
Roger E. Nell, District Public Defender, Clarksville, Tennessee, for the Appellant, Michael Joseph
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.
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.
STATE OF TENNESSEE v. EDWARD HUTCHINSON
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.
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.
STATE OF TENNESSEE v. GINGER J. JACKSON
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.
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.
STATE OF TENNESSEE v. CHAD MICHAEL KNIGHT
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.
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.
ANDRE L. MAYFIELD v. STATE OF TENNESSEE
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.
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.
CLIFFORD SIMS v. STATE OF TENNESSEE
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.
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.
STATE OF TENNESSEE v. TAMAINE WORKS
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.
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.
Constitutionality of Provision in Senate Bill 3296 Exempting Agricultural Land from Consideration
TN Attorney General Opinions
Opinion Number: 06-098
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