Cooper named new attorney general

Robert E. Cooper was named Tennessee's new attorney general this afternoon. Chief Justice William M. Barker will administer the oath of office to Cooper at 3:15 p.m. Wednesday in the Old Supreme Court Chambers at the State Capitol. Cooper has served as legal counsel to the governor since 2003 and also is an adjunct faculty member at Vanderbilt Law School. He was in the private practice of law for 19 years.

The other two finalists for the post were Nashville attorney Margaret L. Behm and Memphis attorney Joseph E. (Jef) Feibelman. Read more about the new attorney general here:

http://www.tba2.org/tbatoday/news/2006/cooper_103006.html

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

J. ANTHONY ARENA v. SCHULMAN, LEROY & BENNETT

Court: TCA

Attorneys:

Timothy L. Warnock and Amy E. Neff, Nashville, Tennessee, for the appellant, J. Anthony Arena

Patrick A. Ruth, Nashville, Tennessee, for the appellee, Schulman, LeRoy & Bennett, P.C.

Judge: CLEMENT

An attorney who voluntarily withdrew from a law firm appeals from the trial court’s decision upholding the validity of an agreement that required him to share fifty percent of the contingency fees he earned on files he took from the firm if he maintained a practice in Davidson County after withdrawing from the firm. The attorney challenges the agreement on the grounds that it violates Tennessee’s public policy against restraints on the practice of law. The firm argues that the agreement does not restrict the attorney’s right to practice law. We have concluded the agreement contains a significant economic disincentive to practice law in Davidson County, which is an impermissible restraint on the practice of law. We therefore reverse.

http://www.tba2.org/tba_files/TCA/2006/arenaj_103006.pdf


EDGAR BEATY, ET AL. v. DONNIE WRIGHT, ET AL.

Court: TCA

Attorneys:

James P. Romer of Jamestown, Tennessee for Appellants, Donnie and Jennifer Wright

Onnie L. Winebarger of Byrdstown, Tennessee for Appellee Edgar Beaty

Judge: CRAWFORD

This case arises from a boundary line dispute. The Plaintiff/Appellee filed suit against Defendants/Appellants alleging that Defendants/Appellants encroached upon Plaintiff/Appellee’s land to log. Defendants/Appellants assert that they are the rightful owners of the disputed tract. Based largely upon a finding of credibility, the trial court ruled that the disputed tract was owned by Plaintiff/Appellee. Finding that Plaintiff/Appellee has proved titled by acquiescence, we affirm.

http://www.tba2.org/tba_files/TCA/2006/beatye_103006.pdf


BELLSOUTH TELECOMMUNICATIONS, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE OF STATE OF TENNESSEE

Court: TCA

Attorneys:

Michael D. Sontag and Tara L. Swafford, Nashville, Tennessee, for the appellant, BellSouth Telecommunications, Inc.

Paul G. Summers, Attorney General and Reporter; and Jonathan N. Wike, Assistant Attorney General, for the appellee, Ruth E. Johnson, Commissioner of Revenue of the State of Tennessee

BellSouth Telecommunications seeks a refund of sales and use taxes assessed on some of its voice mail services. Following an audit, the Department of Revenue assessed a tax on all but the most basic of BellSouth’s voice mail services, finding they were subject to the sales and use taxes as “telecommunication” services under Tenn. Code Ann. § 67-6-102(a)(32). When the Department of Revenue denied a refund request, BellSouth filed this action. The trial court ruled in favor of the Department finding the services were taxable as “telecommunication” services. We affirm.

http://www.tba2.org/tba_files/TCA/2006/bellsouth_103006.pdf


IN RE: ESTATE OF SPENCER BROWN

Court: TCA

Attorneys:

David D. Wolfe, Dickson, Tennessee, for the appellant, Alton E. Brown

Ernest W. Williams and John D. Schwalb, Franklin, Tennessee, for the appellee, Allene Dunnagan

Connie Reguli, Brentwood, Tennessee, for the appellee, Don Brown

Judge: CLEMENT

Four years after the contest of his uncle’s will was filed, Alton Brown filed a Tenn. R. Civ. P. 24 Motion to Intervene in the contest of his uncle’s will. The motion, however, was not accompanied by a proposed pleading setting forth the claim for which intervention was sought as required by Rule 24.03. Subsequent to the filing of the motion, an order of dismissal of the will contest was entered. Thereafter, the movant filed his proposed pleading following which the trial court denied the Motion to Intervene based upon a finding the movant had slept on his rights. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2006/browns_103006.pdf

WILLIAM C. KOCH, JR., P.J., M.S., dissenting
http://www.tba2.org/tba_files/TCA/2006/brownsDIS_103006.pdf


COMPOZIT CONSTRUCTION CORPORATION v. J. B. GIBBS & SON CONSTRUCTION CO., INC.

Court: TCA

Attorneys:

Don L. Smith, S. Joe Welborn, Nashville, Tennessee, for the appellant, Compozit Construction Corporation

Harry W. Miller, III, Madison, Tennessee, for the appellee, J. B. Gibbs & Son Construction Company, Inc.

Judge: COTTRELL

Plaintiff appeals the trial court’s ruling that for purposes of the statute of limitations, plaintiff knew or should have known the identity of the tortfeasor earlier. We affirm the dismissal of the lawsuit as time barred.

http://www.tba2.org/tba_files/TCA/2006/compozit_103006.pdf


ANTONIO M. GRANDA, M.D. v. DANIEL D. WARLICK

Court: TCA

Attorneys:

Larry L. Crain, Brentwood, Tennessee, for the appellant, Antonia M. Granda, M.D.

Gary A. Brewer and Steven J. Meisner, Nashville, Tennessee, for the appellee, Daniel D. Warlick

Judge: CLEMENT

Plaintiff appeals the denial of his Motion for New Trial contending the jury improperly conducted its own experiments with the evidence. The trial court denied Plaintiff’s motion finding that the jury’s examination of a laser pointer, which had been admitted into evidence, amounted to nothing more than the jury closely examining the evidence. We affirm.

http://www.tba2.org/tba_files/TCA/2006/grandaa_103006.pdf


STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. PATRICIA DANIELLE STINSON, ET AL.

Court: TCA

Attorneys:

Stephanie L. Prentis of Savannah, Tennessee for Appellant, Jason Henry

Paul G. Summers, Attorney General and Reporter; Michael B. Leftwich, Assistant Attorney General for Appellee, Tennessee Department of Children's Services

Judge: CRAWFORD

This is a termination of parental rights case involving two minor children. The mother of both children and the father of one of the children appeal separately from the Order of the Juvenile Court of Hardin County terminating their respective parental rights. Both Appellants assert that the grounds for termination of their parental rights are not met by clear and convincing evidence in the record, and that termination of their parental rights is not in the best interest of the minor children. Because we find clear and convincing evidence in the record to support the trial court's findings, we affirm.

http://www.tba2.org/tba_files/TCA/2006/stinsonp_103006.pdf


MARK WOOD v. U-HAUL CO. OF TENNESSEE

Court: TCA

Attorneys:

Joe Bednarz, Jr., Nashville, Tennessee, for the appellant, Mark Wood

William H. Poland, Clarksville, Tennessee, for the intervening appellant, Blue Cross Blue Shield of Tennessee

L. Marshall Albritton, Nashville, Tennessee, for the appellee, U-Haul Co. of Tennessee

Judge: SCOTT

This appeal involves a personal injury claim for a back injury that the Plaintiff claims occurred while he was helping a U-Haul employee install a trailer hitch on his vehicle. A jury found the Plaintiff 90% at fault and the Defendant 10% at fault. On appeal, the Plaintiff claims that the Defendant never presented the affirmative defense of comparative fault, that the trial court erred in limiting the testimony of his expert witness so as to exclude his theory that U-Haul was negligent by not posting signs in the hitch installation area warning customers against entering, and that there was no material evidence to support the jury’s verdict. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2006/woodm_103006.pdf


STATE OF TENNESSEE v. TELLY JONES

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender, and Robert G. Morgan, Assistant Public Defender, Jasper, Tennessee, for the appellant, Telly Jones

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven Strain, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The defendant, Telly Jones, pled guilty to possession of a controlled substance (cocaine) in a penal institution, a Class C felony. See Tenn. Code Ann. § 39-16-201. In exchange for his guilty plea, the defendant was sentenced to three years as a standard offender to be served consecutively to his prior sentences. On appeal, the defendant argues that the circuit court erred by ordering his sentence to be served consecutively to his prior sentences rather than concurrently. Following our review of the parties’ briefs and applicable law, we affirm the circuit court’s judgment.

http://www.tba2.org/tba_files/TCCA/2006/jonest_103006.pdf


STATE OF TENNESSEE v. CLIFFORD WAYNE MORRIS

Court: TCCA

Attorneys:

Olen G. Haynes, Jr., Johnson City, Tennessee, for the appellant Clifford Wayne Morris

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; Melanie Gwinn, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WEDEMEYER

The Petitioner, Clifford Wayne Morris, pled guilty to attempted dissemination of a cordless telephone transmission, a Class A misdemeanor. The trial court sentenced the Defendant to eleven months and twenty-nine days with a thirty day period of incarceration to be served prior to release on probation. On appeal, the Defendant contends that the trial court erred when it sentenced him. After thoroughly reviewing the record and the applicable authorities, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/morrisc_103006.pdf


TODAY'S NEWS

Legal News
Election 2006
BPR Actions
TBA Member Services

Legal News
Judge recuses himself from school shooting case
Eighth Judicial District Criminal Court Judge Shayne Sexton has recused himself from presiding over the case of 14-year-old Kenneth S. Bartley, accused in a November 2005 fatal shooting at Campbell County Comprehensive High School. Sexton did not give a reason for bowing out. Retired Judge Jon Kerry Blackwood has agreed to take the helm of the case.
The News Sentinel has the story
Ruling means new sentence for murderer
On Friday, the state Court of Criminal Appeals set aside a punishment of life without parole for Pigeon Forge killer Janet Dych and imposed a life term instead. The change means Dych will have a shot at freedom, albeit after she has served a mandatory 51 years behind bars. The reason involves a prosecutor's failure to put her potential fate on paper.
Read the story in the News Sentinel
Read the TCCA opinion
Honors for anti-domestic violence work given
During National Domestic Violence Awareness Month, the Fayette County justice community was recognized for its efforts to break the cycle of domestic violence. Awards were given to the Fayette County Sheriff's Office, the Oakland Police Department the Fayette County General Sessions Court Clerk's Office, and former General Sessions Court Clerk Jimmy German.
Read details about the honors in the Fayette County Review
Kiss & sue?
The Mississippi Supreme Court ruled last week that a judge didn't err in allowing a jury to hear testimony that a motorist and a female passenger were kissing when the man's truck ran off a local road, the Associated Press reports. Read this "tell-all truck tale" in the
Commercial Appeal
Election 2006
Charter revisions on ballot
While the state Supreme Court continues to mull the validity of the Knox County Charter, voters will have a chance to amend it Nov. 7 to address the primary shortfall that led to its nullification,
the News Sentinel reports.
BPR Actions
Chattanooga attorney censured
Chattanooga attorney Mary Sullivan Moore received a public censure from the Board of Professional Responsibility on Oct. 27. Moore is a former assistant district attorney general who ran for election as general sessions judge in Hamilton County. During the campaign, Moore sent an e-mail to the opponent attorney and her campaign treasurer that proved to "contain threats or implied threats against the campaign manager and his firm and a false accusation of wire tapping against a sitting judge."
Read the BPR release
Covington attorney censured
The Board of Professional Responsibility issued a public censure to Richard D. Cartwright of Covington on Oct. 24. He neglected his client's legal matter, failed to adequately communicate with his client and was dilatory in communicating with Disciplinary Counsel. The board determined that Cartwright's conduct was in violation of Rules 1.3, 1.4 and 8.4(a)(d) of the Tennessee Rules of Professional Conduct.
Read the BPR release
Memphis lawyer censured
The Board of Professional Responsibility issued a public censure to Steven T. Stanton of Memphis on Oct. 24. A Michigan probate court issued a a bench warrant on Stanton for failure to comply with a court order regarding a conservatorship. He is in violation of Rule 8.4(a)(d)(g) of the Tennessee Rules of Professional Conduct.
Read the BPR release
TBA Member Services
Student loans at low rates through SunTrust
The TBA and SunTrust Bank now have a Partnership Program to help alleviate the burden of student loans. Members and their families can consolidate their federal student loans at a special low fixed rate - right now as low as 5.375%. In addition, those with consolidation loans greater than $10,000 are eligible to reduce their interest rate by another 1.5% for on-time payments and automatic debit payments.
Learn more

 
 
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