Petitions for 'MJP' and pro bono rules amendments filed

The Tennessee Bar Association filed two petitions with the state Supreme Court Friday -- one that will clarify Tennessee practice rules by lawyers licensed in other jurisdictions and one that will facilitate and measure pro bono service.

"These ethics proposals, unanimously approved by our Board of Governors, will help create a stronger culture of volunteerism in our profession," TBA President Buck Lewis said. "They will make it easier for lawyers to establish a proud legacy of pro bono service and give us the tools to measure the enormous contribution which lawyers make to their communities." The MJP petition follows closely the American Bar Association model rule that permits casual and occasional practice by lawyers who are in the state. For the first time in-house corporate counsel, working only for their employer, could practice here if they registered and paid the same fees as a Tennessee lawyer.
TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2008/certlist_063008.pdf


SONYA LYNN BUNCH v. STEPHEN SHAWN BUNCH

Court: TCA

Attorneys:

Michael C. Murphy, Morristown, Tennessee for the Appellant, Stephen Shawn Bunch.

Denise Terry Stapleton, Morristown, Tennessee for the Appellee, Sonya Lynn Bunch.

Judge: SUSANO

After six years of marriage, Sonya Lynn Bunch ("Wife") sued Stephen Shawn Bunch ("Husband") for divorce. The Trial Court, inter alia, granted Wife a divorce, awarded Wife transitional alimony, awarded Wife attorney's fees, and divided the parties' marital property and debts. Husband appeals the division of marital property. We affirm.

http://www.tba2.org/tba_files/TCA/2008/bunchs_063008.pdf


MURAD M. ABDELNOUR, by next friend and wife, SANA DABIT-ABDELNOUR, and SANA DABIT-ABDELNOUR, v. THOMAS F. BAKER, IV, trustee and FIRST TENNESSEE NATIONAL BANK ASSOCIATION

Court: TCA

Attorneys:

William H. Horton, Chattanooga, Tennessee, for appellants.

James R. McKoon and John R. Hegeman, Chattanooga, Tennessee, for appellees.

Judge: FRANKS

Plaintiffs in this action asked the Court to declare a deed of trust void because the wife had been misled into signing the document. Upon trial, the Trial Court held the trust deed was valid and enforceable, but denied defendants' request for attorney's fees. Both parties appealed. We affirm the Trial Court's Judgment.

http://www.tba2.org/tba_files/TCA/2008/abdelnourm_063008.pdf


BRUCE WAYNE FERGUSON v. DARRYL SHARP, ET AL.

Court: TCA

Attorneys:

C. Mark Troutman, LaFollette, Tennessee, for the appellants Darryl Sharp and Denise Sharp.

Curtis W. Isabell, Clinton, Tennessee, for the appellee, Bruce Wayne Ferguson.

Judge: SUSANO

Bruce Wayne Ferguson (“the Plaintiff”) filed this lawsuit after Darryl and Denise Sharp (“the Defendants”) installed a gate on a right-of-way over their land that the Plaintiff utilized to reach his property. The Defendants claimed the gate was necessary for their safe use and enjoyment of their land because the right-of-way area was being subjected to trespassing, vandalism, and theft. The trial court agreed with the Plaintiff that the gate was not necessary and permanently enjoined the Defendants from maintaining it on the right-of-way. The Defendants appeal the judgment of the trial court. We affirm.

http://www.tba2.org/tba_files/TCA/2008/fergusonb_063008.pdf


IN RE: J.B.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter, Lauren S. Lamberth, Assistant Attorney General, Office of the Attorney General, General Civil Division, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the appellant, State of Tennessee, Department of Mental Health and Developmental Disabilities. Susan E. Crabtree, Deputy Law Director, Knox County Law Director’s Office, Knoxville, Tennessee, for the appellee, Knox County, Tennessee.

Ronald E. Mills, Senior City Attorney, Knoxville, Tennessee, for the appellee, City of Knoxville.

Judge: SUSANO

This case involves a dispute between Knox County and the State of Tennessee regarding which governmental entity should pay for costs associated with the mental evaluations of eleven juveniles. The trial court ordered the county to pay all costs associated with the evaluations of seven juveniles, all of whom had been charged with misdemeanors, and ordered the state to pay all costs associated with the evaluations of four juveniles, of whom three had been charged with felony-level crimes and one had been charged with a misdemeanor. These costs included the actual cost of examination and treatment. The state argues that it should only be required to pay transportation and “incidental” costs, and only with regard to the three juveniles charged with felony equivalents. According to the state, the county is statutorily responsible for the cost of the actual examination and treatment in all cases, and for transportation and incidental costs in misdemeanor cases. The county disputes this interpretation, and also advances various arguments in support of the proposition that it should not have been ordered to pay any costs. We agree with the state’s interpretation of the statute, and reject the county’s arguments. However, with regard to the three felony cases, we conclude that the state invited the trial court’s error. Accordingly, we affirm the trial court’s judgment, except with respect to the one misdemeanor case in which the state was held responsible for all costs; in that case, we order the county to pay all costs.

http://www.tba2.org/tba_files/TCA/2008/jb_063008.pdf


FRANCIS ROY, M.D. v. THE CITY OF HARRIMAN, ET AL.

With Concurring Opinion


Court: TCA

Attorneys:

Arthur F. Knight, III, Knoxville, Tennessee, for the appellant, Francis Roy, M.D.

Harold D. Balcom, Jr., Kingston, Tennessee, for the appellee, William E. Bennett, M.D.

Judge: SUSANO

This cause of action arises out of statements made by Dr. William E. Bennett to PHP Companies, Inc. ("PHP"), a health insurance company, regarding Dr. Francis Roy. Dr. Roy alleges that, in connection with PHP's review of Dr. Roy's application to become an approved PHP provider, Dr. Bennett made written statements that reflected poorly on Dr. Roy's work history and qualifications. Dr. Roy claims that these statements were false and defamatory. In response to Dr. Roy's complaint, Dr. Bennett filed a motion for summary judgment, contending, among other things, that the document containing the allegedly defamatory statements is privileged and inadmissible under the Tennessee Peer Review Law, Tenn. Code Ann. Section 63-6-219 (2004). The court granted Dr. Bennett’s motion. We affirm.

http://www.tba2.org/tba_files/TCA/2008/royf_063008.pdf

D. MICHAEL SWINEY, J., filed a separate concurring opinion.
http://www.tba2.org/tba_files/TCA/2008/royf_con_063008.pdf


LARRY GLENN CAULEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Kevin Cartwright, Clarksville, Tennessee, for the appellant, Larry Glenn Cauley.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; John W. Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

http://www.tba2.org/tba_files/TCCA/2008/cauleyl_063008.pdf


STATE OF TENNESSEE v. SHERRIE ANN COLLINS

Court: TCCA

Attorneys:

William B. "Jake" Lockert, III, District Public Defender; and Christopher L. Young, Assistant District Public Defender, Ashland City, Tennessee, for the Appellant, Sherrie Ann Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Sherrie Ann Collins, after being granted judicial diversion, appeals, as of right, the judgment of the Dickson County Circuit Court ordering her to pay restitution of $62,000 as a condition of her probation. The plea agreement provided that Collins would enter a "no contest conditional plea under 40-35-313 [judicial diversion]" and would receive a sentence of "three years suspended to probation." The agreement further provided that the amount of restitution would be determined by the trial court. Following a hearing, the court found the victim's pecuniary loss was $62,000; however, based upon Collins' financial status and lack of ability to repay, she was ordered to pay $100 per month for the 36-month duration of the probationary period. Rather than being deferred, as required by the judicial diversion statute, a judgment of conviction was entered reflecting Collins' conviction for Class C felony theft and a three-year Department of Correction sentence, which was noted as being suspended. Contrary to the restitution order previously entered, ordering restitution of $3,600, the judgment form ordered restitution of $62,000. Collins appeals the restitution award of $62,000 as recited in the judgment form. The State agrees that Collins was ordered to pay restitution of $3,600, not $62,000. Notwithstanding, the fact that a "non-issue" is presented, we are also confronted with the jurisdictional issue that no appeal of right, as provided by Rule 3, Tennessee Rules of Appellate Procedure, exists because Collins was granted judicial diversion, and, thus, no judgment of conviction has, or should have been, entered. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2008/collinss_063008.pdf


STATE OF TENNESSEE v. JACKIE LYNN GRAY

Court: TCCA

Attorneys:

William C. Killian, Jasper, Tennessee, for the appellant, Jackie Lynn Gray.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew Hamilton Smith, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Marion County Circuit Court jury convicted the defendant, Jackie Lynn Gray, of two counts of driving under the influence (DUI) and speeding. The trial court merged the DUI convictions and imposed an effective sentence of 11 months and 29 days to be suspended upon the service of 20 days' incarceration. In this appeal, the defendant contends that the trial court erred by denying his motion to suppress the results of the breathalyser test and that the sentence of 20 days' incarceration is excessive. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/grayj_063008.pdf


STATE OF TENNESSEE V. DONNA MARIE IKNER

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Donna Marie Ikner.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and William Jeff Blevins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Donna Marie Ikner, pled guilty in the Knox County Criminal Court to one count of aggravated burglary, three counts of burglary, one count of felony theft, one count of reckless aggravated assault, eleven counts of burglary of a vehicle, and one count of credit card fraud and, pursuant to the plea agreement, received an effective sixteen-year sentence. On appeal, the appellant contends that the trial court committed reversible error by (1) refusing to allow her to serve her effective sentence in an alternative to confinement without offering her the opportunity to withdraw her guilty pleas and (2) refusing to allow her to make a statement in her own behalf at her sentencing hearing. Based upon the record and the parties' briefs, we conclude that the trial court was not bound by the plea agreement to order alternative sentencing but that the trial court committed reversible error by failing to warn the appellant that she would not be allowed to withdraw her pleas if the trial court did not follow the State's recommendation that she receive alternative sentencing. We also conclude that the trial court committed reversible error by not allowing the appellant to make a statement in her own behalf. The judgments of the trial court are vacated without prejudice to further proceedings on the underlying charges, and the case is remanded.

http://www.tba2.org/tba_files/TCCA/2008/Iknerd_063008.pdf


Circuit Court Authority to Appoint CASA Volunteer

TN Attorney General Opinions

Date: 2008-06-25

Opinion Number: 08-121

http://www.tba2.org/tba_files/AG/2008/ag_08-121.pdf

TODAY'S NEWS

Legal News
Your Practice
Passages
TBA Member Services

Legal News
Judges asked to sign 'code of conduct'
The Tennessee Bar Association today announced its program asking judges and judicial candidates in the August elections to agree to a campaign code aimed at preserving public faith in the integrity of the justice system. This year's effort is modeled after the highly successful 2006 program under which the vast majority of judicial candidates pledged to conduct their campaigns under the Tennessee Fair Judicial Campaign Code of Conduct. Those candidates who subscribe to the code of conduct will be listed, along with other information, on the TBA's
Tennessee judicial election information center
Barker retirement pushed back 2 weeks
Chief Justice William M. Barker will remain on the state Supreme Court until Sept. 15, two weeks later than his original retirement date, so the court will have its full five members for a Knoxville docket on Sept. 3, he said. "When I notified the governor in early May of my intended retirement on Sept. 1, I had hoped that would allow enough time for the selection process to be completed before the court heard cases in Knoxville," he said. "However, the Judicial Selection Commission will not be able to meet until Aug. 18 to evaluate applicants for the Supreme Court and recommend three names to the governor. That close time frame, coupled with the Labor Day holiday, convinced me that I need to be available to sit with the court."

Sentencing delay requested for former sheriff Long
Attorney Jerry Summers is asking that the scheduled Aug. 18 sentencing of former Sheriff Billy Long be delayed so Summers can go to Nashville to testify on behalf of Chattanooga attorney John McClarty in his application to the Tennessee Supreme Court. On May 5 Long entered guilty pleas to 27 counts, including extortion, money laundering, providing a gun to a felon and drug trafficking. He faces 10 years to life at his sentencing.
The Chattanoogan.com has details
Former lawman vindicated; sets standard for others
Chancery Court Judge Carol L. McCoy ruled last week that the Tennessee Peace Officer Standards and Training Commission (POST) erred in its decertification of Piperton police chief Carl Hendricks last year. Nashville attorney David L. Raybin, who represented Hendricks, said the ruling was not just good news for Hendricks, but for others in his situation. "There are at least 20 or 30 statutes like this concerning certification for many professions in the state, and now all those folks who lost their jobs because of expungement will be eligible to get their jobs back," Raybin said.
The Commercial Appeal has the story
Lawyer surgery delays Ford trial
Jury selection in former state senator John Ford's federal court trial in Nashville was delayed again today -- for at least a day -- as Ford's defense attorney was hospitalized over the weekend with an inflamed finger. Asst. Federal Public Defender Isaiah Gant underwent surgery on Sunday after his finger ailment did not respond to antibiotics, attorneys assembled this morning for the start of jury selection said.
The Commercial Appeal reports
State schools must notify parents for drug infractions
A new measure, signed by Gov. Phil Bredesen on June 19, means higher-education institutions governed by the state must notify the parents of any student younger than 21 who violates drug and alcohol laws or policies.
Read the full story from the News Sentinel
Your Practice
IRS increases mileage rate
The Internal Revenue Service announced an increase in the optional standard mileage rates for the final six months of 2008. The rate will increase to 58.5 cents a mile for all business miles driven from July 1 through Dec. 31.
Find out more from the IRS
Officials can look in your laptop if you take it abroad
While law-enforcement authorities must have a search warrant to peer inside a computer in your home or office, they don't need one to look in your luggage or other possessions if you've left the country and are reentering it. Customs and Border Protection agents can seize and keep your laptop, cell phone, digital camera or other electronic device until they determine that you aren't a security threat.
The Philadelphia Inquirer warns you
Passages
Knox court clerk Phillips dies
Knox County Criminal Court Clerk Martha Phillips died this afternoon, according to her office. Phillips was appointed by the county commission in 1984 and was elected to the post in 1986. She was not challenged again in either a primary or general election until she defeated former Sessions Court Judge Gail Jarvis in the 2006 GOP primary. Funeral arrangements were not complete at press time.
Find out more as it develops from the News Sentinel
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
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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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