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.


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


Court: TSC


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


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.



Court: TWCA


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

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


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.


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

Court: TCA


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

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


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.



Court: TCA


Kristin Godsey, Powell, Tennessee, for appellant

Charles A. Carpenter, Maryville, Tennessee, for appellee


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.



Court: TCCA


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


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.


With Concurring Opinion

Court: TCCA


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


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.


TIPTON Concurring


Court: TCCA


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


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.



Court: TCCA


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


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.



Court: TCCA


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


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.



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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
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The News Sentinel reports
Former judges launch mediation firm
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New books on civil rights movement, Martha Stewart and Scooter Libby
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Memphis law firm expands
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Microsoft accuses Google of copyright violations
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Wills can be as simple as
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Legislative News
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The News Sentinel has the story
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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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