Governor signs spending plan today

Gov. Phil Bredesen signed Tennessee's $27.8 billion annual spending plan into law today, WSMV.com reports. The governor and lawmakers cut nearly $500 million from the spending plan toward the end of the legislative session because of worsening economic conditions. The state's July-through-June budget year begins next Tuesday. The cuts included reducing the number of state employees by 5 percent, eliminating a planned increase in K-12 education funding and no new money to expand the state's public pre-kindergarten program.
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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

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STATE OF TENNESSEE v. ANTHONY ALLEN

Court: TSC

Attorneys:

William D. Massey, Lorna S. McClusky, and Massey McClusky, Memphis, Tennessee, for the appellants, Anthony Allen and Eric Lumpkin; Thomas E. Hansom, Memphis, Tennessee, for the appellant, Eric Lumpkin (at trial).

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and William S. Crossnoe, Assistant District Attorney General, for the appellee, State of Tennessee, in State v. Allen.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee and Stacy McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee, in State v. Lumpkin.

Judge: CLARK

We granted permission to appeal in these consolidated cases to determine whether Tennessee's consecutive sentencing scheme passes constitutional muster under the holdings of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). We also address the "physical facts rule" in Defendant Lumpkin's case. We hold that the trial courts' imposition of consecutive sentences in these cases did not violate the Defendants' federal constitutional rights. We also hold that the physical facts rule does not require the reversal of Defendant Lumpkin's convictions. Accordingly, we affirm the judgments of the Court of Criminal Appeals in both cases.

http://www.tba2.org/tba_files/TSC/2008/allena_062408.pdf


LACAY CREW V. FIRST SOURCE FURNITURE GROUP d/b/a ANDERSON HICKEY COMPANY

Court: TWCA

Attorneys:

S. Newton Anderson and Gayle B. Lakey, Memphis, Tennessee, for the appellant, First Source Furniture Group d/b/a Anderson Hickey Company.

Steven C. Grubb, Memphis, Tennessee, for the appellee, Lacay Crew.

Judge: WADE

In 2004, the plaintiff, Lacay Crew, filed a workers' compensation claim alleging injuries to her left and right hands, wrists, and arms, while in the course and scope of her employment. In response, the defendant, First Source Furniture Group, d/b/a Anderson Hickey Company, denied the claim on issues of causation. The trial court found that Crew sustained a compensable, gradual injury to both upper extremities and awarded a permanent partial vocational disability of 25% vocational disability to each upper extremity equating to a judgment award of $25,479.00. Discretionary costs in the amount of $150.00 were awarded for reimbursement to Crew for a doctor's completion of a Tennessee Department of Labor Form C-32 on Crew's behalf. The Special Workers' Compensation Appeals Panel found that there was insufficient evidence of causation and dismissed the case. We affirm the decision of the Appeals Panel.

http://www.tba2.org/tba_files/TSC_WCP/2008/crewl_062408.pdf


BAIRD TREE COMPANY, INC. v. CITY OF OAK RIDGE, ET AL.

Court: TCA

Attorneys:

David H. Dunaway, LaFollette, Tennessee, for the Appellant, Baird Tree Company, Inc.

Benjamin K. Lauderback and Hanson R. Tipton, Knoxville, Tennessee, for the Appellee City of Oak Ridge.

Judge: SWINEY

Baird Tree Company, Inc. ("Plaintiff") was one of three bidders on a tree trimming and removal project submitted for bid by the City of Oak Ridge ("Oak Ridge"). Plaintiff was notified by letter of several deficiencies in its bid and Oak Ridge requested that the bid be supplemented with additional information. Plaintiff explicitly refused to do so and informed Oak Ridge that its bid was fine just the way it was. After the contract was awarded to a different company, Plaintiff filed suit claiming it should have been awarded the contract because it was the lowest bidder and further claiming that Oak Ridge violated the Tennessee Trade Practices Act, Tenn. Code Ann. section 47-25-101, et seq. Oak Ridge filed a motion for summary judgment claiming, among other things, that it was entitled to summary judgment because Plaintiff's bid was invalid to begin with and the Trade Practices Act did not apply to this case. The Trial Court agreed and granted the motion for summary judgment. Plaintiff appeals raising numerous issues. We affirm.

http://www.tba2.org/tba_files/TCA/2008/bairdtree_062408.pdf


IVAN D. BRADLEY v. GINGER KAYE BRADLEY

Court: TCA

Attorneys:

Milly Worley, Dyersburg, Tennessee for the appellant, Ginger Kaye Bradley.

James H. Bradberry, Dresden, Tennessee, for the appellee, Ivan D. Bradley.

Judge: FARMER

This appeal arises from a divorce action. The trial court named Father primary residential parent of the parties' minor child, and Mother appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/bradleyi_062408.pdf


FEDERAL NATIONAL MORTGAGE ASSOCIATION v. GLENNA ROBILIO

Court: TCA

Attorneys:

Glenna Robilio, Pro se.

Harris P. Quinn, Memphis, Tennessee, for the appellee, Federal National Mortgage Association.

Judge: FARMER

From a trial de novo of an unlawful detainer action in circuit court, the defendant homeowner appeals, pro se, an award of summary judgment in favor of the purchaser at foreclosure. In a filing entered in general sessions – and considered by the circuit court - the defendant homeowner raised the defense of wrongful foreclosure, alleging the lender had failed to notify her of the default, of her opportunity to cure the default, and of the foreclosure sale itself. The plaintiff purchaser failed to address these points on motion for summary judgment, thus leaving open this factual question. Finding that there was a genuine issue of material fact bearing directly upon the plaintiff purchaser's right to immediate possession of the property, we reverse the award of summary judgment and remand the matter.

http://www.tba2.org/tba_files/TCA/2008/robiliog_062408.pdf


WASHINGTON MUTUAL BANK, F.A. V. ORNL FEDERAL CREDIT UNION, ET AL.

Court: TCA

Attorneys:

Dan D. Rhea, Knoxville, Tennessee, for the appellant, ORNL Federal Credit Union.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Washington Mutual Bank, F.A.

Judge: LEE

In this appeal, we determine the priority between two recorded deeds of trust. Homeowners entered into a line of credit with a credit union secured by a recorded deed of trust on the homeowners' home. The homeowners subsequently refinanced their home with a bank. The bank paid off the homeowners' debt to the credit union, and recorded its own deed of trust securing its loan. At that same time, the loan and deed of trust was assigned to a second bank. Despite the payoff of the homeowners' debt by the assignor bank, the first deed of trust to the credit union was never released, and the homeowners continued to draw on the line of credit. When the homeowners began having financial problems, the assignee bank discovered that the credit union had never released its deed of trust on the homeowners' property because of a provision in the deed of trust stating that its release was conditioned upon the borrower requesting the cancellation of the line of credit. When the homeowners defaulted on both loans, the question arose as to which party's deed of trust had priority. The trial court ruled in favor of the assignee bank on the basis that the credit union was equitably estopped from asserting its deed of trust because, at the time of payoff, the credit union did not follow its self-imposed practice of advising if any action other than payoff was required before release of the deed of trust. After careful review, we reverse because we conclude that the assignor bank had the means of discovering that payoff alone was insufficient to trigger the release of the deed of trust and because, under state statutory law, it had prior notice of all prerequisites to release the deed of trust as a result of the credit union’s registration of such deed.

http://www.tba2.org/tba_files/TCA/2008/washingtonmtual_062408.pdf


STATE OF TENNESSEE v. SEAN THOMAS CORLEW

Court: TCCA

Attorneys:

C. Michael Robbins, Covington, Tennessee, attorney for appellant, Sean Thomas Corlew.

Robert E. Cooper, Jr., Attorney General & Reporter; Lacy Wilber, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Sean Thomas Corlew, pled guilty to driving under the influence, first offense, in the Tipton County Circuit Court. Pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, the defendant reserved a certified question of law challenging the denial of his motion to suppress based upon his allegation that the officer lacked reasonable suspicion to support the stop leading to his eventual arrest. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/corlews_062408.pdf


STATE OF TENNESSEE v. BRIAN ROGER NEU

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender; and Colin Morris, Jackson, Tennessee, for the Appellant, Brian Roger Neu.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Brian Roger Neu, appeals the imposition of consecutive sentences by the Madison County Circuit Court. Neu's sentences stem from his guilty pleas to domestic assault, possession of marijuana, and possession of drug paraphernalia, all class A misdemeanors. Following a sentencing hearing, the trial court imposed sentences of eleven months and twenty-nine days for each conviction. The court further ordered that Neu's sentences for possession of marijuana and possession of drug paraphernalia be served concurrently to each other but consecutively to his sentence for domestic assault. Following review, the sentencing decision is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/neub_062408.pdf


TODAY'S NEWS

Supreme Court Report
Legal News
TBA Member Services

Supreme Court Report
High court to take up 2 Tennessee death row cases
The U.S. Supreme Court has agreed to consider two cases of Tennessee men on death row -- Edward Jerome Harbison and Gary B. Cone. At issue for Harbison is whether or not poor defendants have a right to lawyers paid for by federal taxpayers when seeking mercy, such as clemency. Justice Department lawyers have argued against Harbison's request. "There is no constitutional right either to clemency itself or to counsel to pursue it," Justice Department lawyers said in the filing. The Tennessean carried this AP story.

This will be the third time Cone's case has made it to the high court. This time it will consider whether he has forfeited the opportunity to argue that prosecutors withheld evidence important to his defense. In its two earlier decisions, the Supreme Court reversed rulings from the federal appeals court in Cincinnati that had favored Cone. The New York Times reported this story.

Legal News
Judge reluctant to 'disrupt the balance'
"Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance," Federal District Court Judge John Bates told counsel for both sides yesterday, in a hearing about contempt proceedings concerning Harriet Miers and Joshua Bolten. Miers, the former White House counsel and Bolten, the current chief of staff, are at the center of a battle over whether the Congressional committee has the power to subpoena presidential aides to testify.
ABAJournal.com connects you to the story
Cohen says state needs hate crime law
In the wake of last week's video that showed a Memphis police officer beating a transgendered woman at the Criminal Justice Center, Rep. Steve Cohen is talking about the need for a hate crimes law in Tennessee. In the past year, Cohen co-sponsored hate crime legislation in the United States Congress. "People who commit hate crimes, whether based on race, gender, sexual orientation, are attacking a whole group of people," Cohen said.
Read the story from WMC-TV
Jurors may need counseling after tough trials
More states are offering post-trial counseling to jurors who sit through gruesome cases, but in Tennessee the jury is still out on that practice.
The Commercial Appeal reports
Purcell takes job at Harvard
Former Nashville Mayor Bill Purcell has been named to a top post at Harvard University's Kennedy School of Government, the university announced today. The appointment will end -- or at least suspend -- Purcell's longtime association with Nashville and Tennessee and seemingly take him out of the running to be the state's next governor in 2010. He'll start work at Harvard on Sept. 1.
Read more in the Tennessean
Jackson-Madison County elects bar officers
The Jackson-Madison County Bar Association has elected officers for 2008-09. They are William F. Kendall, president, Waldrop & Hall PA; Todd Siroky, vice president, Rainey, Kizer, Reviere & Bell PLC; Alan Rheney, treasurer, Spragins, Barnett, Cobb & Butler; and Kandi Kelley Collins, secretary, 26th District, Public Defender's Office. All the officers are from Jackson.

Ford trial delayed, prosecutors accused of misconduct
Jury selection that was scheduled to start this morning in the Nashville federal court trial of former state senator John Ford of Memphis has been delayed until at least Monday. Last night Ford's attorney filed motions charging misconduct by federal prosecutors, demanding their removal from the case and dismissal of the six charges against Ford.
The Commercial Appeal is on the story
Ford Sr., Lee will not be prosecuted
The U.S. Attorney's Office announced that it is dismissing bribery and extortion charges against former Memphis city councilman Edmund Ford Sr. and Joseph Lee, former head of Memphis Light, Gas and Water Division, The Commercial Appeal reported this afternoon. "The Government has re-evaluated the case and stated to the Court that a dismissal is warranted in the interest of justice," the one-paragraph statement said.

TBA Member Services
Unlimited free online legal research for TBA members
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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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