TBA-backed legislative measures advance

Two bar-initiated bills sponsored by Rep. Kent Coleman, D-Murfreesboro, which address various refinements in the probate law (HB417) and elective share (HB 418) moved out of the House Judiciary Committee today. The committee also approved a bill (HB 395), supported by both the bar and the Tennessee Judicial Council, which addresses judicial vacancies that occur when an elected judge dies before taking office. The measure comes in response to the tragic death of former Sen. Larry Trail, who passed away before taking office last fall.

In addition, the House State and Local Government Committee's Subcommittee on State Government today approved bar-initiated legislation that emphasizes the Open Meetings and Public Records Act responsibilities of the state's new Ethics Commission. Sponsored by Rep. Rob Briley, D-Nashville, the bill (HB 379), is one of several measures meant to address operations of the commission. Keep up to date on these and other bills of interest to the Tennessee legal community with the TBA legislative Watch and Action lists.

http://www.tba.org/tba_legismain.html

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.

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

THE TRAVELERS INDEMNITY COMPANY OF AMERICA ET AL. v. MOORE & ASSOCIATES, INC.

Court: TSC

Attorneys:

Kenneth S. Schrupp, Nashville, Tennessee, and Linda B. Foster and Paul Owens, Atlanta, Georgia, for the appellants, The Travelers Indemnity Company of America, Travelers Property Casualty Company of America f/k/a The Travelers Indemnity Company of Illinois, and The Phoenix Insurance Company

Eugene N. Bulso, Jr., Nashville, Tennessee, for the appellee, Moore & Associates, Inc.

John W. Wagster, Nashville, Tennessee, and Laura A. Foggan and John C. Yang, Washington, D.C., for the amicus curiae, Complex Insurance Claims Litigation Association

Christopher W. Martin and Levon G. Hovnatanian, Houston, Texas, and Daniel Hayes Puryear, Nashville, Tennessee, for the amicus curiae, Hartford Fire Insurance Company

Judge: HOLDER

This case is before us on appeal of the trial court's grant of summary judgment in which the trial court held that the appellants have a duty to defend the appellee under the terms of a commercial general liability policy. We granted the appeal in this case to determine: (1) whether an insured contractor's defective workmanship may constitute an "occurrence" under the terms of the "insuring agreement" of a commercial general liability policy; (2) whether damages resulting from faulty workmanship are "property damage"; and (3) whether damages to the insured contractor's work are excluded from coverage if those damages are caused by the faulty workmanship of a subcontractor. We conclude that defective workmanship may constitute an "occurrence." We also conclude that damages caused by faulty workmanship are "property damage." We further conclude that damages resulting from the faulty workmanship of a subcontractor are not excluded from coverage. Therefore, we hold that under the language of the commercial general liability policy in this case, the appellants have a duty to defend the appellee against a claim that water penetration resulting from the faulty workmanship of a subcontractor caused damages to the appellee's work. Accordingly, we affirm the trial court's grant of summary judgment.

http://www.tba2.org/tba_files/TSC/2007/travelers_030707.pdf


ALAN HALE v. U.S. XPRESS ENTERPRISES, INC.

Court: TWCA

Attorneys:

K. O. Herston, Knoxville, Tennessee, for Appellant, Alan Hale

Donald D. Howell, Knoxville, Tennessee, for Appellee, U.S. XPress Enterprises, Inc.

Judge: FRIERSON

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court dismissed the employee's complaint. On appeal, the employee contends that the employer had actual notice of his injury on a timely basis. The employee also contends that he sustained a gradually occurring injury and that timely notice of injury was given. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2007/halea_030707.pdf


BB&T, a Tennessee banking corporation, as successor in trust to BANKFIRST, v. RODNEY W. MILLIGAN

Court: TCA

Attorneys:

Gene A. (Chip) Stanley, Jr., Knoxville, Tennessee, for appellant

Harvey L. Sproul, Lenoir City, Tennessee, for appellee

Judge: FRANKS

Appellant's Rule 60 Tenn. R. Civ. P. Motion asked that the Judgment be set aside on the ground that appellant was not notified of the trial date. The Trial Court overruled the Motion. We affirm.

http://www.tba2.org/tba_files/TCA/2007/bbt_030707.pdf


IN THE MATTER OF: ADC, DOB 12/1/1997, AZW, DOB 3/10/2000 DANNY L. CARROLL v. GENA R. WILLIAMSON

Court: TCA

Attorneys:

Kristin Godsey, Powell, Tennessee, for appellant

Charles A. Carpenter, Maryville, Tennessee, for appellee

Judge: FRANKS

The Trial Court terminated the petitioner's parental rights to the two children. On appeal, we vacate the Trial Court's Judgment and remand, with instruction for conducting a new trial.

http://www.tba2.org/tba_files/TCA/2007/carrolld_030707.pdf


STATE OF TENNESSEE v. STACEY JOE CARTER

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; Dent Morriss and Jason White, Assistant District Attorneys General, for the appellant, State of Tennessee

Roger Nell, District Public Defender; Charles S. Bloodworth, Sr., Assistant District Public Defender, for the appellee, Stacey Joe Carter

Judge: THOMAS

The defendant, Stacey Joe Carter, was convicted by a Robertson County jury of vehicular homicide, a Class C felony, and driving on a suspended license, a Class B misdemeanor. The trial court imposed an effective sentence of ten years as a Range III, persistent offender to be served on probation. The state now appeals the imposition of sentence, arguing that the trial court abused its discretion in imposing the minimum sentence to be served on probation. Upon a full review of the record, arguments of counsel and applicable law, we agree and reverse the judgment of the trial court and remand the case for entry of judgment consistent with this court's opinion.

http://www.tba2.org/tba_files/TCCA/2007/carters_030707.pdf


STATE OF TENNESSEE v. CLAUDE THOMAS DAVIS
With Concurring Opinion


Court: TCCA

Attorneys:

William A. Cameron, Cookeville, Tennessee, for the appellant, Claude Thomas Davis

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William Edward Gibson, District Attorney General; and Marty S. Savage, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WILLIAMS

The defendant, Claude Thomas Davis, was convicted of driving under the influence, seventh offense (Class E felony); driving on a revoked license, third offense (Class A misdemeanor); and violation of the implied consent law (Class A misdemeanor) on October 26, 2004. He was sentenced to serve two years in the Department of Correction. On appeal, he contends that the trial court erred in denying his motion to suppress all evidence gathered by law enforcement at his home which is also a place of business located on the parking lot where the driving offense occurred. We affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2007/davisc_030707.pdf

TIPTON Concurring
http://www.tba2.org/tba_files/TCCA/2007/davisc_con_030707.pdf


STATE OF TENNESSEE v. TYSON LEE DAY

Court: TCCA

Attorneys:

David Allen Doyle, District Public Defender; Mike Anderson, Assistant District Public Defender, for the appellant, Tyson Lee Day

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth Marney, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; Thomas Dean, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: THOMAS

The defendant, Tyson Lee Day, pleaded guilty to charges of driving under the influence (third offense) and driving on a revoked license and received sentences of 11 months, 29 days on the DUI charge and six months on the driving on a revoked license charge, both suspended to 120 days. Prior to the guilty plea, the defendant moved the court to suppress evidence taken during the traffic stop which led to the defendantís arrest. This motion was denied; the resulting plea was taken subject to a certified question of law regarding the issue raised in the defendant's motion. On April 28, 2006, the defendant filed this appeal. Following our review, we reverse the judgment of the trial court and dismiss the indictments.

http://www.tba2.org/tba_files/TCCA/2007/dayt_030707.pdf


SHANNON MAYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant, Shannon Mayes

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General, T. Michel Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney General, for the appellee, the State of Tennessee

Judge: WOODALL

Following a jury trial, Petitioner, Shannon Mayes, was convicted of first degree murder and sentenced to life in prison. This Court affirmed his conviction on direct appeal. State v. Shannon Mayes, No. M2002-02091-CCA-R3-CD, 2004 WL 49111, at 1-4 (Tenn. Crim. App., at Nashville, Oct. 15, 2003), perm. app denied (Tenn. May 3, 2004). Petitioner then brought a petition for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court subsequently denied the petition. He now appeals that denial, arguing that he is entitled to post-conviction relief because his trial counsel was ineffective in failing to file a motion to suppress his statement to police. After a thorough review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/mayess_030707.pdf


STATE OF TENNESSEE v. CAROLYN J. NOBLES

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Carolyn J. Nobles

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Mike McCown, District Attorney General; Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WEDEMEYER

The Defendant, Carolyn J. Nobles, pled guilty to three counts of check forgeries, and a jury found her guilty of sixty-eight check forgeries. The trial court sentenced the Defendant, a Range I offender, to an effective sentence of seventeen years and six months. On appeal, the Defendant contends that the evidence is insufficient to sustain her convictions and that the trial court erred when sentencing her by denying her alternative sentencing and by ordering that some of her sentences run consecutively. Concluding there exists no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/noblesc_030707.pdf


TODAY'S NEWS

Legal News
Legislative News
BPR Actions
TBA Member Services

Legal News
Congress hears from other prosecutors
Former U.S. Attorney for Eastern Arkansas, H.E. "Bud" Cummins, defended his record at a congressional hearing yesterday and testified about a phone call from the Justice Department warning him not to speak to the press about his dismissal. Like Cummins, former U.S. Attorney Daniel Bogden of Nevada testified that a Justice official said he was being let go to give another nominee a resume-enhancing position. Carol C. Lam of San Diego, David C. Iglesias of New Mexico, Paul K. Charlton of Arizona and John McKay of Washington state also testified yesterday.
The Commercial Appeal has more
New daylight-saving time could affect computers
Beginning this year, daylight-saving time (DST) will start on the second Sunday in March (instead of the first Sunday in April) and change back to standard time on the first Sunday in November (instead of the last Sunday of October). Many software programs will not be equipped to deal with the new dates. Jim Calloway, director of the Oklahoma Bar Association's Management Assistance Program, provides suggestions for dealing with the date change.
Read his recommendations
Judge jails man for threatening lawyer
Criminal Court Judge Don Poole put Charles Nash Jr. in jail yesterday after attorney Mike Little testified that Nash threatened him. Little is representing Nash's son on a murder charge. During a confrontation Nash allegedly told Little, "Check my record and you'll see what I'm capable of" and "I'll find out where you live." Nash denies making the threats.
Read more at Chattanoogan.com
New bar presidents elected
Several county bars have named new presidents for the year, including: Kyle Dodd at the Giles County Bar Association, Robert Russell Mattocks at the Hamblen County Bar Association, John Colley III at the Maury County Bar Association and Jennifer Eldridge Raby at the Roane County Bar Association. For contact information and a complete list of officers elected at local bars
visit the TBA's Resource page
Advocacy group says DCS moves children too often
New York-based child advocacy group, Children's Rights, has monitored Tennessee's foster care system since 2001, when a federal judge ordered improvements in the program. In a report filed with the court, the group cites progress in some areas but says the Department of Children's Services moves kids among foster homes too often and caseworkers do not spend enough time with them.
The News Sentinel reports
Former judges launch mediation firm
Retired Circuit Court Judge Marietta M. Shipley of Nashville has launched a new firm dedicated to providing mediation services. Joining her at the Mediation Group of Tennessee LLC are retired Supreme Court Justice Lyle Reid, retired appellate Judges Lew Conner and Ben Cantrell, retired probate Judge Donn Southern and retired Judge Jane Wheatcraft.
Learn more about the firm
New books on civil rights movement, Martha Stewart and Scooter Libby
Get a jump on summer reading with three books of interest to lawyers. Civil rights-era researcher Mary Stanton recently completed "Journey Toward Justice: Juliette Morgan and the Montgomery Bus Boycott," published by the University of Georgia Press. The book details the life of Morgan, who boycotted the segregated bus system and endured harsh treatment by fellow whites. A second book, "Martha Stewart's Legal Troubles," authored by University of Tennessee law professor Joan Heminway, examines the stock-selling scandal that landed Stewart in prison. A third book, titled "The United States v. I. Lewis Libby," will release in April and include testimony from the case as well as original reporting by Murray Waas of the National Journal.

Memphis law firm expands
The law firm of Kiesewetter Wise Kaplan Prather PLC has opened an office in New Orleans - its first office outside of Memphis, reports the Commercial Appeal. Mark Mallery, a labor and employment law attorney, will be the principal member in the new office.

Microsoft accuses Google of copyright violations
Microsoft is taking aim at Google's rival book-scanning project, saying the search company "systematically violates copyright." The comments came from Microsoft's associate general counsel in a speech to the Association of American Publishers.
Read more from Nashville's News 4
Judges challenge students
Hamilton County General Sessions Judge Bob Moon and former Chattanooga City Court Judge Walter Williams recently encouraged hundreds of middle school students to stay in school and make plans for college. In challenging the kids to take education seriously, Moon stated that "All roads out of poverty and misery pass by the school house and not the jail house."
Read more on Chattanoogan.com
Wills can be as simple as
'all to Ma'
The Tennessean asked readers to submit questions about wills to three Nashville attorneys: Chris Norris with Norris & Norris PLC; Gail Smith Bradford with Harris, Martin, Jones, Shrum, Bradford & Wommack; and Timothy L. Takacs, an elder law attorney.
Read their answers
Legislative News
Bredesen may veto license bill
Gov. Phil Bredesen said today he is disappointed the Senate passed an English language driver's license testing bill and will seriously consider a veto if the House approves it.
The News Sentinel has the story
State considers earlier presidential primary
A bipartisan bill to set Tennessee's presidential primary on Feb. 5 was approved unanimously yesterday by the House elections subcommittee. The state's primaries are currently set for Feb. 12, but election observers say nominees for both parties likely will be chosen by then, the News Sentinel reports.
Learn more about the bill
BPR Actions
Knoxville attorney censured
Raymond A. Shirley Jr. was censured on March 5 for failing to respond to clients' requests for information and neglecting cases.
Read the BPR release
TBA Member Services
Make plans now to attend the 2007 TBA convention
The TBA will celebrate 125 years of service to the Tennessee legal community at this summer's annual convention in Nashville. Events include an opening reception, the annual bench/bar lunch, ethics CLE, dinner at the home of President Andrew Jackson, and the always-popular lawyers lunch. Join us June 13-16 in Nashville.
Sign up today

 
 
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