Senate approves 11 percent increase for LSC

The Senate Appropriations Committee approved $390 million for the Legal Services Corporation's (LSC) FY 2009 budget last week, a $40 million -- or 11 percent -- increase over current funding levels, and the same amount recommended by a House subcommittee. Read more from the Legal Services Corporation.

http://www.lsc.gov/press/pr_detail_T7_R51.php

TODAY'S OPINIONS
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STATE OF TENNESSEE v. RICHARD ADAM HANNAH ET AL.

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; William H. Cox, III, District Attorney General; and Boyd Patterson, Assistant District Attorney General, for the appellant, the State of Tennessee.

Brandon Raulson, Chattanooga, Tennessee, for the appellee, Richard Adam Hannah.
Myrlene R. Marsa, Chattanooga, Tennessee for the appellee, Larry Darnell Penn.
David R. Barrow, Chattanooga, Tennessee for the appellee, Tracy Lee Ray.

Judge: BARKER

We granted the State's application for permission to appeal in order to construe Tennessee Code Annotated section 55-8-154(a) (2004), the impeding traffic statute. The trial court held that the driver of a slow-moving vehicle does not impede traffic, unless other traffic is made to come to a stop. The Court of Criminal Appeals affirmed. Upon review, we hold that the trial court based its decision on an erroneous interpretation of the statute. Therefore, we reverse the trial court and remand for a new suppression hearing.

http://www.tba2.org/tba_files/TSC/2008/hannahr_062308.pdf


IN RE: THE ADOPTION OF A MALE CHILD WHOSE NAME IS D.B.S.M.

Court: TCA

Attorneys:

Theodore Kern, Knoxville, Tennessee for the Appellants, D.S.M. and S.L.H.M.

Robert M. Cohen, Maryville, Tennessee for the Appellee, J.L.P.

Judge: SWINEY

S.L.H.M. ("Mother") and D.S.M. ("Husband") filed a Petition to Terminate Parental Rights and For Adoption of Minor Child ("Petition") seeking, in part, to terminate J.L.P.'s ("Father") parental rights to the minor child D.B.S.M. ("the Child"). After a trial, the Trial Court entered an order finding and holding, inter alia, that clear and convincing evidence of grounds for termination of Father's parental rights to the Child had not been proven, and that there was no clear and convincing evidence that it was in the best interest of the Child for Father's parental rights to be terminated. Mother and Husband appeal to this Court. We hold that although clear and convincing evidence exists of grounds for the termination of Father's parental rights, the record does not contain clear and convincing evidence that it is in the best interest of the Child for Father's parental rights to be terminated. We, therefore, affirm the dismissal of the Petition.

http://www.tba2.org/tba_files/TCA/2008/dbsm_062308.pdf


GIBBY GILBERT'S DRIVING RANGE, LLC V. L.B. AUSTIN IV, ET AL.

Court: TCA

Attorneys:

H. Wayne Grant and Scott H. Grant, Chattanooga, Tennessee, for the appellant, Gibby Gilbertís Driving Range, LLC.

N. Darrell Bridges, Chattanooga, Tennessee, for the appellee, L.B. Austin IV, individually, and L.B. Austin IV, Trustee.

Judge: LEE

Lessor leased Lessee a portion of a tract of land for the operation of a golf driving range. The parties' agreement provided that if Lessor received a bona fide offer to purchase the tract, Lessee would have a right of first refusal. Later, Lessor received an offer of purchase and notified Lessee of the amount offered, as required by the lease. Lessee declined the offer. Subsequently, the property was sold, but for an amount less than the amount originally offered. Before Lessee discovered that it had not been offered the right of first refusal as to the actual sale amount, Lessee executed an agreement terminating the lease in consideration of monies received from the Lessor. After learning of the actual sale price, Lessee filed suit against Lessor for breach of contract upon the ground, inter alia, that Lessor had failed to offer Lessee the right of first refusal as required under the lease. The trial court granted summary judgment in favor of the Lessor upon determining that the undisputed facts established that the execution of the lease termination agreement and Lessee's acceptance of consideration under such agreement constituted an accord and satisfaction and that Lessee was thereby estopped from enforcing its previous rights under the lease, all such rights having been waived. Upon careful review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2008/gibby_gilberts_062308.pdf


HANGER PROSTHETICS & ORTHOTICS EAST, INC. v. WILLIAM C. KITCHENS, ET AL.

Court: TCA

Attorneys:

Bernard E. Bernstein, W. Tyler Chastain, and Margo J. Maxwell, Knoxville, Tennessee, for the Appellants William C. Kitchens and Choice Medical, Inc.

Paul E. Prather, John W. Simmons, and R. Alex Boals, Memphis, Tennessee, and Richard L. Hollow, Knoxville, Tennessee, for the Appellee Hanger Prosthetics & Orthotics East, Inc.

Judge: SWINEY

This appeal involves the validity of a covenant not to compete. The employee, William C. Kitchens ("Kitchens"), became a certified orthotist after entering into the covenant with his employer Hanger Prosthetics & Orthotics East, Inc. ("Hanger"). After the employee quit his job and began providing orthotic services for a competitor, Hanger filed suit. Following a trial, the Trial Court determined that the covenant not to compete was enforceable and that Kitchens had breached the covenant. The Trial Court also determined that Kitchens' new employer, defendant Choice Medical, Inc. ("Choice Medical"), had induced Kitchens to breach the contract in violation of Tenn. Code Ann. Section 47-50-109, and that an award of treble damages was appropriate. Judgment was entered against Kitchens and Choice Medical jointly for $240,182.00, and against Choice Medical for an additional $480,364.00. Defendants appeal raising numerous issues. We affirm.

http://www.tba2.org/tba_files/TCA/2008/hanger_prosthetics_062308.pdf


STATE OF TENNESSEE v. GERRY LYNN HENSLEY (Corrected)

This is a corrected opinion.


Court: TCCA

Attorneys:

Barbara Hobock and Cynthia Chandler-Snell, Humboldt, Tennessee, for the Appellant, Gerry Lynn Hensley.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel, Attorney General's Office; and Garry Brown, District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Gerry Lynn Hensley, appeals the sentencing decision of the Humboldt Law Court of Gibson County. Hensley pled guilty to two counts of Class B vehicular homicide by reason of intoxication and was subsequently sentenced by the trial court to concurrent eight-year sentences as a Range I standard offender. On appeal, Hensley raises the following challenges to the imposed sentences: (1) whether the trial court erred in considering an enhancement factor when no notice was provided by the State of its intent to rely upon such factor as required by local rules; (2) whether the court erred in considering dismissed charges in applying the enhancement factor of a prior criminal history; (3) whether the court erred in failing to specifically identify the mitigating and enhancing factors found and in failing to apply other certain mitigating factors which Hensley argues are applicable; (4) whether the court erred in not sentencing Hensley as an especially mitigated offender; and (5) whether the court erred in denying an alternative sentence. Following review of the record, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/hensleyg_CORR_062308.pdf


TODAY'S NEWS

Legal News
Politics
Supreme Court Report
TennBarU CLE
TBA Member Services

Legal News
Bredesen subpoenaed in Ford trial
Gov. Phil Bredesen said today that he has been subpoenaed as a prosecution witness in the trial of former state Sen. John Ford. Bredesen said the prosecutor indicated that the testimony would be on a meeting that Ford had with him to urge that more TennCare patients be assigned to OmniCare Inc., an HMO that had hired the senator. The trial begins Tuesday in U.S. District Court at Nashville.
The Commercial Appeal has more
Lawyer James Cannon found dead in home
A 44-year-old Nashville attorney was found dead today at his Green Hills home, The Tennessean reports, in what police are characterizing as a suspicious death. Authorities said James Cannon's body was found in the closet of his house at 710 Bowling Avenue by a cleaning worker. Cannon is a partner in Medical Reimbursements of America, based in Franklin.
Watch the Tennessean for updated information
House's attorney says state's plan will cause more appeals
Stephen Kissinger, the attorney representing death row inmate Paul House in a myriad of appeals, says the judge in the case has a conflict of interest and House's rights have been violated. Despite his arguments, the state is continuing its march to a second trial set for Oct. 14. Kissinger says the state's plan for a retrial is already riddled with mistakes, which will ultimately result in more federal appeals.
Read the story in the Tennessean
Eminent domain suit filed on Music Row
Nashville's Metropolitan Development and Housing Agency filed papers in the Circuit Court for Davidson County Friday to start a process that would take the offices of Country International Records at 23 Music Circle East. The action is the city's first test of eminent domain since the state legislature tightened condemnation laws two years ago. A Houston-based firm has proposed building a $100 million development on the property that would feature a hotel, an office building, stores and condominiums. The property in question -- a three-acre wedge of land between Demonbreun and Division streets at the Music Row Roundabout -- has housed the record label and music publishing business since the early 1980s.
The Tennessean has the story
State Supreme Court near bottom of 'influential decisions' ranking
A recent national study compares the influence of state high courts based on how often their decisions are followed by other jurisdictions -- the Tennessee Supreme Court ranks fifth from the bottom, while Kentucky's highest judicial body comes in last. California's Supreme Court -- where the idea to crunch the numbers and come up with the rankings originated -- takes first place. "I don't disagree with their figures," Tennessee Supreme Court Chief Justice William M. Barker said. "But it's sort of comparing apples to oranges. California has a diverse population with all sorts of issues that arise there that don't in Tennessee."
Find out more from the Chattanooga Times Free Press
The state of state executions
The City Paper points out that -- although the sides don't agree on the details -- both those in favor of and against the death penalty agree the system is broken.
Read the story
Supreme Court Report
Right to lawyer is immediate, high court says
The U.S. Supreme Court has ruled that a defendant's right to a lawyer attaches as soon as he is brought before a judicial officer. The defendant in the case before the court, Walter Rothgery, was arrested in Texas for being a felon in possession of a gun based on a mistaken report that he had a felony drug conviction in California. He wasn't assigned a lawyer until six months after an initial hearing before a magistrate judge, and was held in jail for three weeks when he couldn't post increased bail.
ABAJournal.com connects you to the opinion and the AP story
Politics
29th District Chancery Court race unusual for that seat
The Aug. 7 election to fill the vacant seat of the 29th Judicial District Chancery Court is historic because the position has not been contested very often. And only three judges have held the post in the last 74 years. Most recently, the seat was held by Steve Stafford until he was appointed to the Tennessee Court of Appeals on June 12. Four people have qualified to run for the post.
The Dyersburg State Gazette reports
TennBarU CLE
Learn techniques for effective appellate advocacy
Learn the time-honored techniques of effective appellate advocacy in this week's CLE webcast from Mark Fulks, the appellate team leader in the Criminal Justice Division of the Tennessee AG's office. You'll learn how to present an effective oral argument in the appellate courts, the importance of preparation as a general matter, as well as techniques for preparing a particular case. The seminar will also teach how to prepare for questions from an appellate court. Sign up now to watch the webcast live on Wednesday or as an archive program.
Register or learn more
TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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