Summer school doesn't have to be boring

Get a taste of the challenges and camaraderie that you miss from law school at one of the upcoming 4L or Skills Enhancement programs from the TBA's Young Lawyers Division. Next week - on July 20 - you can learn the "ins and outs" of establishing a new Tennessee corporation and the operation of that new entity. Participants also will receive instruction in drafting the proper documents to form a corporation. To go along with this two-hour program, the YLD is also hosting an happy hour to follow at a popular local club. Find out more about this and other programs in the series.

http://www.tba.org/tennbaru

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
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - 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

EMMETT CLIFFORD ET AL. v. CRYE-LEIKE COMMERCIAL, INC.

Court: TCA

Attorneys:

Shelley I. Stiles, Brentwood, Tennessee, for the appellants, Emmett Clifford and Judy Clifford.

Tom Corts, Nashville, Tennessee, for the appellee, Crye-Leike Commercial, Inc.

Judge: KOCH

This appeal involves a business patron who tripped over a snow-covered wheelchair ramp during a snowstorm. The patron filed a negligence action in the Circuit Court for Davidson County alleging that the landowner was negligent for failing to keep the ramp clear of snow or to post warnings of the presence of a wheelchair ramp concealed by the fallen snow. The landowner filed a motion for summary judgment asserting that it did not have a duty to remove the snow or provide warnings of the presence of the wheelchair ramp as long as the snow was falling. The trial court granted the summary judgment, and the patron appealed. We have determined that the landowner is entitled to a judgment as a matter of law because it did not owe a duty to the public to keep the wheelchair ramp clear of snow during the snowstorm or to warn persons coming onto the property of the existence of the wheelchair ramp that was concealed under several inches of snow.

http://www.tba2.org/tba_files/TCA/2006/clifforde071206.pdf


GREG DENNEY v. TOM LOVETT, ET AL.

Court: TCA

Attorneys:

Louis W. Oliver, III, Hendersonville, Tennessee, for the appellant, Tom Lovett.

Dennis W. Powers, Gallatin, Tennessee, for the appellee, Greg Denney.

Judge: CLEMENT

This is an employment dispute wherein the trial court found the employer wrongfully terminated the employee six months into a two-year term of employment. The trial court awarded the employee his contractual damages, which included lost wages, insurance benefits, utilities and pre-judgment interest for the balance of the term. The employer appeals contending he is not liable for damages because the employee voluntarily quit following an argument between them. The pivotal issue in this employment dispute is whether the employer fired the employee or whether the employee quit. The employer also presents two evidentiary issues, one regarding the admission of evidence as to the employee's damages. We affirm the trial courtís finding that the employer wrongfully terminated the employment contract and that the employee is entitled to recover his contractual damages for the balance of the term of employment; however, we find the award of damages must be reduced because the trial court erred by admitting evidence of the employee's net earnings which the employee was obligated to disclose but failed to disclose in discovery.

http://www.tba2.org/tba_files/TCA/2006/denneyg071206.pdf


ANTHONY FRANKLIN v. SWIFT TRANSPORTATION CO., INC.
With Dissenting Opinion


Court: TCA

Attorneys:

Jeff Weintraub, J. Gregory Grisham and C. Michael Becker of Memphis, Tennessee for Appellant, Swift Transportation, Inc.

Donald A. Donati and William B. Ryan of Memphis, Tennessee for Appellee, Anthony Franklin.

Judge: KIRBY

This is a retaliatory discharge case. The former employee of a trucking company filed suit against the trucking company for statutory and common law retaliatory discharge, alleging that his employment was terminated due to his refusal to violate a Tennessee Department of Safety regulation that required the truck to carry an original "cab card" showing registration. The employer had directed the employee truck driver to deliver merchandise to a customer, assigning him a particular truck. The original cab card for the truck could not be found, so the employer gave the employee a photocopy of the cab card. The employee refused to drive the truck with only a photocopy, and another truck could not be located. The next day, the employee truck driver was fired. The truck driver sued the employer trucking company for retaliatory discharge, alleging that his employment was discharged for refusing to participate in an illegal activity. The Shelby County Circuit Court entered judgment on a jury verdict in favor of the employee. We reverse, finding that the employee's refusal to perform the assigned work based on the regulation requiring the original cab card, as opposed to a photocopy, did not further important public policy concerns, and therefore would not support a claim of retaliatory discharge.

http://www.tba2.org/tba_files/TCA/2006/franklina071206.pdf

Dissenting Opinion by Crawford
http://www.tba2.org/tba_files/TCA/2006/franklina_diss071206.pdf


LEONARD PLATING COMPANY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Thomas G. Cross, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County.

Dan E. Huffstutter, Nashville, Tennessee, for the appellee, Leonard Plating Company.

Judge: KOCH

This appeal involves a dispute between the Metropolitan Government and an electroplating business regarding the responsibility for damage to the city sewer line serving the business. After it was required to replace significant portions of the sewer line, the Metropolitan Government assessed the business a fine for violating its wastewater discharge permit, as well as $306,380 for the cost of replacing the damaged sewer line. After the Metropolitan Wastewater Hearing Authority affirmed the assessment, the business filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Authority's decision affirming the assessment of the costs to replace the sewer line. The trial court overturned the Authority's decision because it concluded that the Authority had mis-allocated the burden of proof, that the record lacked evidence to support the Authority's decision, and that members of the Authority had relied on their own expertise in the absence of competent evidence that the business's wastewater had caused the damage to the sewer line. We have determined that the Authority did not employ an unlawful or arbitrary procedure in hearing and deciding this matter and that the record contained sufficient evidence on which the Authority could conclude that the wastewater from the electroplating business caused the damage to the sewer line.

http://www.tba2.org/tba_files/TCA/2006/leonardplating071206.pdf


SMITH MECHANICAL CONTRACTORS, INC. v. PREMIER HOTEL DEVELOPMENT GROUP, ET AL.

Court: TCA

Attorneys:

William T. Alt, Chattanooga, Tennessee, for the Appellants Barker Building Company, Inc., and Travelers Casualty & Surety Company of America.

P. Edward Pratt, Knoxville, Tennessee, for the Appellees First Tennessee Bank National Association and K. Newton Raff, Trustee.

Judge: SWINEY

This appeal involves the construction of a hotel in Johnson City, Tennessee. During construction, the general contractor, Barker Building Company, Inc., (Barker Building) agreed to subordinate its lien rights to a deed of trust to be filed by First Tennessee Bank (the Bank) related to the Bank's loaning of funds which allegedly were represented to Barker Building as being sufficient to complete construction of the hotel. In reliance on the alleged representation and in order to protect its subcontractors, Barker Building, before entering into the Subordination Agreement, also obtained a Performance Bond to assure that its subcontractors would be paid. Barker Building obtained the Performance Bond from Travelers Casualty & Surety Company of America (Travelers). Several lawsuits were filed and the hotel's owner filed for bankruptcy protection. One of the lawsuits filed was a suit for injunctive relief filed by the Appellants in this appeal, Barker Building and Travelers, against the Appellee in this appeal, the Bank, seeking injunctive relief for various reasons after the Bank filed the Performance Bond with the Register of Deedís Office in order to bond-off subcontractors' claims. The lawsuit seeking injunctive relief was resolved in favor of the Bank by a judgment on the merits which became final several years ago. The lawsuit now on appeal involves various other claims by Barker Building and Travelers against the Bank challenging the validity of the Subordination Agreement and Performance Bond. The Trial Court ruled all claims by Barker Building and Travelers against the Bank at issue in the lawsuit now on appeal were barred by the res judicata effects of their previously completed lawsuit against the Bank seeking injunctive relief. We affirm.

http://www.tba2.org/tba_files/TCA/2006/smithmechanical071206.pdf


MOZELLA NEWSON v. STATE OF TENNESSE

Court: TCCA

Attorneys:

Lee Gerald, Memphis, Tennessee, for the Appellant, Mozella Newson.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jack Irving, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Mozella Newson, appeals the Shelby County Criminal Court's denial of her petition for post-conviction relief. Following a transfer hearing, Newson, who was fourteen years old at the time of the crimes, was transferred from the juvenile court to the Shelby County Criminal Court to be tried as an adult. She subsequently pled guilty to carjacking, especially aggravated robbery, and two counts of especially aggravated kidnapping, for which she received an effective fifteen-year sentence. On appeal, Newson argues that she was denied her Sixth Amendment right to the effective assistance of counsel, specifically arguing that the attorney representing her during the transfer hearing was ineffective by: (1) failing to advise the juvenile court of Newson's age; (2) failing to challenge the transfer order which stated that Newson was sixteen years old or older; (3) failing to present any favorable evidence at the transfer hearing which might have prevented her transfer; (4) failing to object to the identification procedure employed at the transfer hearing; and (5) failing to advise Newson of her right to appeal the juvenile court's decision to transfer the case. After review, we conclude: (1) Newson's subsequent guilty pleas waived all issues regarding guilt; and (2) Newson's failure to prepare a complete record precludes review of her allegations of deficient performance which resulted in her transfer to the criminal court. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/newsonm071206.pdf


TODAY'S NEWS

Legal News
Election 2006
Passages

Legal News
Chancellor overturns illicit-drugs tax
Davidson County Chancellor Richard Dinkins yesterday ruled that a state law requiring drug dealers to pay taxes on illicit drugs is unconstitutional. Last night, state officials said they would continue to enforce the tax, which has brought in more than $2.7 million since it went into effect January 2005.
Read more about the decision in the Tennessean
Workers' comp due despite death
The Tennessee Supreme Court has ruled that the sons of a day worker gunned down while on the job can collect their father's compensation benefits. The court took the unusual steps of taking the case directly from the chancery court and of hearing the case before the full panel, rather than the more limited review often given to workers' comp claims.
Read more in the Knoxville News Sentinel
Second application for AG filed
Attorney Joseph E. Feibelman of Memphis has filed an application to be considered for appointment to the position of state attorney general. He joins William Charles "Bill" Killian of Jasper, who filed earlier this week. The deadline for applying is July 17.

Jackson-Madison bar elects new president
Ben Boston with the Lawrenceburg law firm of Boston, Holt & Sockwell PLLC has been re-elected president of the Jackson-Madison County Bar Association.

Group studying juvenile justice to present findings
The Clarksville-Montgomery County Disproportionate Minority Contact Task Force plans to make an initial report of its findings in early August. The task force was convened at the request of General Sessions and Juvenile Judge Ray Grimes in January to investigate why minorities comprise the bulk of those sent to juvenile detention centers. The group also is looking at whether a detention-assessment tool to help judges determine when detention is appropriate for a juvenile offender should be used in the county.
The Clarksville Leaf Chronicle has the story
Poole receives State Justice Institute scholarship
Hamilton County Criminal Court Judge Don Poole has been awarded a State Justice Institute (SJI) scholarship to attend a general jurisdiction course at the National Judicial College in Reno, Nev. The SJI is a federally funded program designed to improve the quality of justice in state courts.
Chattanoogan.com has more details
Election 2006
Ford, Bryant tangle over attack on candidate's dad
The 1993 bank fraud trial of former U.S. Rep. Harold Ford Sr. has become an issue in this year's Senate campaign. Republican primary candidate Ed Bryant, who served as the prosecuting attorney in the case, has alleged that the Clinton Justice Department inappropriately intervened when it supported a defense motion to replace the jury. He resigned in protest at the time. Harold Ford Jr., who is running as a Democrat in the race, called Bryant's characterization "an outright lie." Officials at the time also dispute Bryant's claim.
The Memphis Commercial Appeal has the full story
Challengers eager to retire Sen. Henry
State Senator Douglas Henry, a lawyer-legislator who has served for nine terms, is seeking reelection this year but faces competition from both major political parties.
The Tennessean has a profile of the man and the race he faces
Passages
Knox county lawyer dies
John B. Fowler, a long-time member of the TBA and an attorney with the Knoxville law firm of Ambrose, Wilson, Grimm & Durand for over 25 years, passed away on July 5.


 
 
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