Mississippi chief justice calls for appointment of judges

Jim Smith, the chief justice of the Mississippi Supreme Court, said yesterday he would like to see the state move to a system in which Supreme Court justices and appeals court judges are appointed by the governor from a slate of candidates nominated by an advisory panel. Currently, Mississippi voters elect trial court and appellate court judges. Smith cited the on-going bribery scandal involving Dickie Scruggs that has ensnarled high-profile attorneys and judges as one example of the need for change. Read more in the Commercial Appeal
TODAY'S OPINIONS
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METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v. PRINTER'S ALLEY THEATER, LLC d/b/a BRASS STABLES and METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v. C & A ENTERTAINMENT, INC. d/b/a CLUB PLATINUM

Court: TCA

Attorneys:

Kenneth Quillen, Nashville, TN, for Appellant.

Sue B. Cain, Deputy Director of Law, Andrew D. McClanahan, Kevin C. Klein, John L. Kennedy, Nashville, TN, for Appellee.

Judge: HIGHERS

These consolidated appeals involve punishment for criminal contempt. The two defendants are businesses that were providing sexually oriented entertainment, as defined by the Nashville Metropolitan Code of Laws, without licenses. The businesses continued to provide sexually oriented entertainment in violation of injunctions forbidding such activity and later injunctions ordering the businesses to be closed. The businesses were held in contempt of court, and an individual who was a corporate officer or part owner of each business was sentenced to five days in jail in each case, to be served concurrently. The individual appeals, arguing that there was insufficient evidence to support a finding that he should be punished for contempt. We affirm.

http://www.tba2.org/tba_files/TCA/2008/metrogovtofnash_012408.pdf


JUANITA MULLINS, individually and as Executor of the Estate of DANIEL V. MULLINS, deceased v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and P. Robin Dixon, Jr., Assistant Attorney General, Nashville, Tennessee, for the Appellant, State of Tennessee.

Travis E. Venable and J.D. Lee, Knoxville, Tennessee, for the Appellee, Juanita Mullins, individually and as executor of the estate of Daniel V. Mullins, deceased.

Judge: SWINEY

Juanita Mullins ("Plaintiff") and her husband, Daniel Mullins, filed a medical malpractice lawsuit in federal court against several doctors, including Dr. Jose Mejia. Dr. Mejia was a fourth-year resident at East Tennessee State University at the relevant time. The lawsuit was brought after Plaintiff's husband had serious complications and injuries following surgery. Plaintiff's husband eventually died. Plaintiff and her husband were residents of Virginia and filed suit in the United States District Court for the Eastern District of Tennessee based upon diversity of citizenship. Plaintiff voluntarily dismissed Dr. Mejia and then filed this lawsuit based upon the alleged medical malpractice of Dr. Mejia against the State of Tennessee (the "State") in the Division of Claims. A jury trial was held in the federal court case, and the jury ruled in favor of all remaining defendants. Although neither Dr. Mejia nor the State were parties to the federal court action, the jury was asked if Dr. Mejia was at fault for comparative fault purposes, and the jury responded "no." After the present case was transferred to the Claims Commission, the State filed a motion to dismiss claiming Plaintiff was collaterally estopped from pursuing the present claim due to the federal court jury's determination that Dr. Mejia was not at fault. The Claims Commissioner denied the motion, and the State appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2008/mullinsj_012408.pdf


TABATHA PAMPERIN v. STREAMLINE MFG., INC., ET AL.

Court: TCA

Attorneys:

Frank M. Fly, Murfreesboro, TN, for Appellant.

G. Kline Preston, IV, Nashville, TN, for Appellee, Robert Moore.

Virgil Holt, Paducah, KY, pro se.

Judge: HIGHERS

This appeal involves an attempt to pierce a corporate veil. The plaintiff purchased a hot tub from a corporation, paying $3,000 by check and agreeing to finance the balance of $1,178. Unbeknownst to the plaintiff, the two sole shareholders of the corporation had been deadlocked and involved in litigation for almost two years. After the corporation accepted the plaintiff's $3,000 check, but before it delivered the hot tub, the litigation ended. A jury determined that one of the shareholders held a perfected security interest in practically all of the corporation's assets, and the judge entered an order recognizing that shareholder's right to foreclose on the collateral if necessary. Both shareholders filed post-trial motions, then submitted a proposed "agreed amended final order" that was approved by the trial judge. The agreed order provided that, "in lieu of foreclosure," the secured party-shareholder would be awarded all the assets of the corporation outright. The corporation was left with no assets and ceased to operate. The plaintiff never received her hot tub or a refund of the $3,000 she paid to the corporation. Plaintiff filed the present lawsuit seeking a judgment against the corporation and against the two shareholders individually. The trial court entered a total judgment against the corporation of $17,663.52, which included treble damages and attorney's fees pursuant to the Tennessee Consumer Protection Act. However, the court refused to pierce the corporate veil to impose liability on the individual shareholders. The plaintiff appeals. We affirm in part, reverse in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/pamperint_012408.pdf


WELLS FARGO FINANCIAL LEASING, INC. v. MOUNTAIN RENTALS OF GATLINBURG, INC.

Court: TCA

Attorneys:

Douglas E. Taylor, Sevierville, Tennessee, for the appellant, Mountain Rentals of Gatlinburg, Inc.

Kenny L. Saffles, Knoxville, Tennessee, for the appellee, Wells Fargo Financial Leasing, Inc.

Judge: LEE

Wells Fargo Financial Leasing, Inc., brought this action against Mountain Rentals of Gatlinburg, Inc., to collect rent under an equipment lease. The trial court granted summary judgment to Wells Fargo, and Mountain Rentals appealed. After careful review, we hold that the rental agreement is an enforceable finance lease and that Mountain Rentals's obligation to pay rent was irrevocable and independent. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2008/wellsfargo_012408.pdf


STATE OF TENNESSEE v. CHARLES EDWARD GRAHAM

Court: TCCA

Attorneys:

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Charles Edward Graham.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; Ta Kisha M. Fitzgerald, Marsha Mitchell, and Philip Morton, Assistant District Attorneys General, for the appellant, State of Tennessee.

Judge: SMITH

After a jury trial, Appellant, Charles Edward Graham, was convicted of reckless aggravated assault, tampering with evidence, possession of marijuana and failure to provide proof of financial1 responsibility. The trial court sentenced Appellant as a career offender to twelve years for reckless aggravated assault, fifteen years for tampering with evidence, six years for possession of marijuana and to pay a $100 fine for failure to provide proof of financial responsibility. The trial court ordered the sentences for reckless aggravated assault and tampering with evidence to run consecutively to each other and concurrently to the remaining sentences, for a total effective sentence of twenty-seven years. After the denial of a motion for new trial or, in the alternative, a judgment of acquittal, Appellant filed a timely notice of appeal. In this Court, Appellant presents the following issues for our review: (1) whether the trial court erred in charging the jury with reckless aggravated assault as a lesser included offense of vehicular assault; (2) whether the evidence was insufficient to convict Appellant of reckless aggravated assault and tampering with the evidence; (3) whether the trial court erred by enhancing Appellant's conviction for simple possession to a Class E felony; (4) whether the trial court improperly denied the motion for judgment of acquittal; (5) whether the trial court erred by denying the motion to disqualify the Assistant District Attorney; (6) whether the trial court improperly denied a continuance; (7) whether the trial court erred by allowing the State to impeach Appellant with charges that were more than twenty-five years old; and (8) whether the trial court improperly sentenced Appellant as a career criminal. After a review of the record, we conclude that: (1) Appellant failed to establish actual prejudice as a result of the denial of a continuance; (2) the trial court did not abuse its discretion in refusing to disqualify the Assistant District Attorney; (3) Appellant waived the issue regarding impeachment by prior convictions for failure to cite to the record or to authority; (4) Appellant waived the issue regarding jury instructions by failing to object to the inclusion of the instruction at trial; (5) the evidence was sufficient to support the convictions; (6) the trial court properly denied the motion for judgment of acquittal; (7) the trial court properly sentenced Appellant as a career criminal based on his prior convictions; (8) the trial court properly ordered consecutive sentencing based on the conclusion that Appellant was a dangerous offender; (9) we are without jurisdiction to determine whether the trial court improperly enhanced Appellant's conviction for possession of a controlled substance because there is no judgment of conviction in the record for that crime. Finding no error, we affirm the judgments of the trial court but remand for correction of the judgment with respect to failure to provide proof of financial responsibility.

http://www.tba2.org/tba_files/TCCA/2008/grahamc_012408.pdf


PAUL HAYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William Anderson, Jr., Memphis, Tennessee, for the appellant, Paul Hayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Paul Hayes, appeals the denial of his petition for post-conviction relief. On appeal, he contends that the trial court erred in denying his petition for relief but provides no proof of ineffective assistancourt is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/hayesp_012408.pdf


STATE OF TENNESSEE v. JASON ANDREW SINGLETON

Court: TCCA

Attorneys:

Paul Whetstone, Morristown, Tennessee, for the Appellant, Jason Andrew Singleton.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; C. Berkley Bell, District Attorney General; Douglas Godbee, Assistant District Attorney General; and Virgil Everhart, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: SMITH

Following a jury trial, Defendant, Jason Andrew Singleton, was convicted of one count of simple possession of methamphetamine and one count of unlawful possession of drug paraphernalia. Defendant was sentenced to eleven months, twenty-nine days on each count to be served concurrently. The jury fixed the maximum fine of $2,500.00 in each case. Defendant on appeal argues (1) the evidence was insufficient to convict him of simple possession; (2) the trial court erred in denying Defendant the right to waive jury imposition of fines and the fines imposed by the jury were excessive and should be imposed "concurrently;" and (3) the imposition of the eleven month, twenty-nine day sentences was excessive and the presentence report was completed in violation of Defendant's Sixth Amendment right to counsel. After a thorough review of the record, we affirm the convictions and the length of sentences, but reverse and remand the sentences for a sentencing hearing to determine the percentage of the sentence to be served in confinement prior to Defendant being released on probation, and for a non-jury determination of the fines, if any, to be imposed.

http://www.tba2.org/tba_files/TCCA/2008/singletonj_012408.pdf


TODAY'S NEWS

Legal News
Legislative News
Your Practice
Passages
Disciplinary Actions
TBA Member Services

Legal News
Commission sets date for two vacancy hearings
The Judicial Selection Commission will meet March 11 to begin the process of filling the Davidson County Chancery Court vacancy created by the appointment of Richard Dinkins to the Court of Appeals. The following day, the commission will convene to consider a replacement for 20th Judicial District Circuit Court Judge Walter C. Kurtz, who has retired. Both sessions will be held at the Nashville Airport Marriott.
For more information visit the AOC's web site
Jackson Supreme Court building burglarized
The Tennessee Supreme Court building in Jackson was burglarized around 3:45 a.m. today according to court spokeswoman Sue Allison. Allison said someone broke into the basement of the building and ransacked a number of offices, but it appeared that the burglar was looking for cash or small valuables and not anything specifically related to the court or its computer equipment. The Knoxville News Sentinel reported the news.

Betts named to national post
Virginia Trotter Betts, commissioner of the Tennessee Department of Mental Health & Developmental Disabilities, was recently named president of the National Association of State Mental Health Program Directors. Betts was elected vice president of the organization in July 2007, having represented the southern region on the Board of Directors since 2005.
Download the department's press release
Memphis legal history being updated
The Memphis Bar Association is sponsoring publication of an updated history of the city's legal profession with hundreds of photos, a 70,000-word story and in-depth profiles of local firms. The author, retired attorney John Thomason, is using his own experiences and hundreds of historical documents and interviews to add new material to the existing record as well as cover the years 1981 to the present.
The Memphis Daily News has excerpts
Legislative News
Briley addresses House
State Rep. Rob Briley, D-Nashville, addressed his colleagues from the well of the House chamber today and asked their forgiveness for his arrest and subsequent guilty plea for drunken driving. Briley admitted to being an alcoholic but said he takes responsibility for his actions. His remarks were followed by a standing ovation, embraces and supportive remarks from lawmakers of both parties, reports the Knoxville News Sentinel.

Sen. Kyle withdraws replacement bill
State Sen. Jim Kyle, D-Memphis, has withdrawn a proposal that would have allowed lawmakers to appoint a replacement for an absent colleague, following a ruling by the state attorney general that the proposal is unconstitutional. The legislation would have allowed the Senate leadership to appoint a temporary substitute for Ophelia Ford, D-Memphis, who has been absent from the legislative session for medical reasons.
The Tennessean reports
Your Practice
Law firms rethink retention strategies
As other professions embraced the mantra of work-life balance (at least on paper), the law remained an unbending, tradition-bound profession, according to New York Times columnist Lisa Belkin. But, she says, it is now racing to catch up, primarily to remain an attractive and competitive field. Less obvious, but potentially more dramatic, she suggests, is the fact that firms are rethinking the billable hour.
Learn more in her article
Law firm mentor: friend or foe?
To a starry-eyed new associate or young partner, a law firm mentor can be one of the big benefits of working in a practice with seasoned colleagues. But both mentor and protege should enter the process with their eyes open, according to professional coach James Dolan.
Read the article in Texas Lawyer
Passages
Former state senator Peeler dies today
Former Tennessee state senator and Waverly attorney William J. Peeler died this afternoon. He was 80. Funeral arrangements are pending. Mr. Peeler was a graduate of the Cumberland School of Law and practiced in the firm of Porch, Peeler, Williams & Thomason in Waverly.

Disciplinary Actions
Knoxville attorney reinstated after pay fees
Aubrey Lewis Davis was reinstated to the practice of law on Jan. 15 after responding to a complaint of misconduct. He had been temporarily suspended on Sept. 19, 2007, for failing to respond to the Board of Professional Responsibility.
Read the BPR release
TBA Member Services
Free online legal research
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.

Online training sessions are also available. The TBA and Fastcase offer free one-hour CLE webinars to help you use Fastcase online research more effectively in your practice. Register for the next seminar or
Access Fastcase now

 
 
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