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Tuesday, July 08, 2008

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TennBarU Webcast: Insider look at new Condo Act

Join two of the attorneys who helped craft the new Tennessee Condominium Act of 2008 in this week's TennBarU live webcast. Changes from the present Act (the Tennessee Horizontal Property Act) will be highlighted, as well as those provisions that the committee considered but decided not to include. The two-hour program begins at noon (CDT) tomorrow (Wednesday). Find out more or register now.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5693

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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2008/certlist_070808.pdf

CHRIS CAGLE V. MARK J. HYBNER, ET AL.

Court: TCA

Attorneys:

Jay S. Bowen, Amy E. Neff, and Sarah J. Glasgow, Nashville, Tennessee, for the appellant, Chris Cagle.

Donald S. Engel and Jeffrey Logan, Pro Hac Vice, Atherton, California, for the appellant, Chris Cagle.

Paige Waldrop Mills, Nashville, Tennessee, for the appellees, Mark J. Hybner, Mark Hybner Management, Inc., and Mark Hybner Publishing, Inc.

Judge: CLEMENT

The plaintiff, a songwriter and recording artist, filed this action against his manager and publisher seeking a declaration that the Exclusive Management Agreement and the Exclusive Songwriter Agreement were invalid and unenforceable due to various alleged breaches of fiduciary duty and breaches of contract. The defendants filed Counterclaims seeking a declaration that the Management Agreement and the Songwriter Agreement were valid, and that they sought to recover damages and attorney's fees. The music publisher additionally sought specific performance of the Songwriter Agreement and an injunction to prevent the songwriter from composing any songs for others until the plaintiff fulfilled his obligation to the publisher. The Chancellor summarily dismissed the plaintiff�s Complaint. The Chancellor also summarily ruled that the Management Agreement and the Songwriter Agreement were valid and enforceable, that the plaintiff was in material breach of both agreements. As for the Songwriter Agreement, the Chancellor found that the plaintiff was obligated to compose and deliver to the publisher an additional 76 songs of marketable commercial quality, for which the publisher was granted equitable relief in the form of specific performance as well as injunctive relief, whereby the plaintiff was enjoined from composing any songs for others until the songwriter fulfilled his obligation to the publisher. The defendants were also awarded $737,201 in damages, which included an award of attorneys fees of $171,704. The plaintiff appealed presenting numerous issues. We affirm the Chancellor's decision to dismiss the plaintiff's Complaint. We also affirm the Chancellor�s determination that the Management Agreement and the Songwriter Agreement were valid and enforceable and that the plaintiff was in material breach of both agreements for which the defendants are entitled to recover damages. We, however, have determined the Chancellor erred by granting the publishing company extraordinary equitable relief in the form of specific performance and injunctive relief under the Songwriter Agreement. Because of our decision concerning specific performance and injunctive relief, each of which are factors to consider when determining the amount of attorney's fees the defendants may be entitled to recover, we find it necessary to vacate the award of attorney's fees in the amount of $171,704 and remand the issue, along with the issue of damages and other relief, if any, to which the defendants may be entitled.

http://www.tba2.org/tba_files/TCA/2008/caglec_070808.pdf

SHARON K. LONG V. JAMES ERDINE LONG

Court: TCA

Attorneys:

Kimberley L. Reed-Bracey, Goodlettsville, Tennessee, for the appellant, James Erdine Long

Laura Y. Goodall, Gallatin, Tennessee, and Robert Todd Jackson, Brentwood, Tennessee for theappellee, Sharon Kay Long

Judge: KIRBY

This is a divorce case. The parties had three minor children at the time of the divorce. The husband held a management position at a publicly-traded company, and the wife was a homemaker. As part of his compensation, the husband received stock in his employer company. After the wife discovered that her husband had engaged in an affair, she filed for divorce. During the parties' separation, the husband relocated to Maryland. While the divorce case was pending, the husbandr eceived a bonus check; he was ordered to deposit the bonus monies with the court clerk. The husband was also ordered to pay spousal support and child support pendente lite. Anticipating that the share price of the parties' stock would fall, the husband asked the wife to agree to sell the stock, but she refused. Subsequently, the stock price decreased substantially. After a trial, the trial court granted the wife a divorce on the grounds of adultery. In its division of the marital assets, the trial court refused to find that the wife's refusal to sell the parties' stock amounted to a dissipation of marital assets. Half of the husband's bonus earnings that had been held by the court clerk were awarded to the wife. The trial court also ordered the husband to pay child support and rehabilitative alimony for ten years, and all of the children's transportation costs for visiting him in Maryland. The wife was awarded the federal income tax exemptions for all three children. The husband appeals the award of half of his bonus check to the wife, arguing that his pendente lite support obligations were based in part on this bonus, in effect "double-counting" the bonus. He also appeals the division of the marital estate, the trial court's refusal to consider the wife's alleged dissipation of assets, the award of spousal support, and various provisions in the permanent parenting plan. We vacate the award of spousal support with regard to its duration and remand for the trial court to consider a shorter duration or a "tapering off" of the award. The remainder of the trial court's decision is affirmed.

http://www.tba2.org/tba_files/TCA/2008/longs_070808.pdf

STATE OF TENNESSEE v. COURTNEY B. MATTHEWS

Court: TCCA

Attorneys:

J. Kevin Cartwright, Clarksville, Tennessee, for the appellant, Courtney B. Mathews.

Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

In 1996, a Montgomery County Circuit Court jury convicted the defendant, Courtney B. Matthews,1 of four counts of first degree felony murder and one count of especially aggravated robbery. The jury sentenced the defendant to a term of life in prison without the possibility of parole for each first degree murder conviction, and the trial court sentenced the defendant to a term of 25 years in prison for the especially aggravated robbery. The court ordered that all sentences be served consecutively. On appeal, the defendant contends: (1) that he was denied due process in the delay of the preparation of his trial transcript and of the hearing on the motion for new trial; (2) that the trial court erred in not reopening the hearing on the motion for new trial; (3) that the trial court erred by permitting cameras in the courtroom during the trial; (4) that the cameras "invaded" the deliberations of the jury; (5) that the trial court should have changed venue due to the influence of pretrial publicity; (6) that the trial court erred by admitting photographs of the victims; (7) that the trial court erred by admitting DNA evidence; (8) that the trial court erred by certifying a state witness as an expert in DNA analysis; (9) that the trial court erred by admitting the testimony of the medical examiner; (10) that the trial court erred by permitting the medical examiner to utilize demonstrative aids during his testimony; (11) that the evidence was insufficient to support his convictions under a theory of criminal responsibility for the conduct of another; (12) that the evidence was insufficient to support his convictions under a theory of direct liability; (13) that the trial court violated his due process rights by "forcing" the state to proceed on inconsistent theories at his trial and the trial of his codefendant; (14) that the trial court erred by interrupting jury deliberations to provide an instruction on criminal responsibility for conduct of another; (15) that the convictions for especially aggravated robbery and felony murder violate double jeopardy principles; (16) that the evidence was insufficient to support the finding that the murders were heinous, atrocious, or cruel; (17) that the trial court erred by failing to instruct the jury on certain non-statutory mitigating factors; and (18) that the trial court erred by imposing consecutive sentencing. Upon hearing oral arguments and reviewing the briefs of the parties, the extensive record, and the applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/matthewsc_070808.pdf

TODAY'S NEWS

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Legal News

Execs testify in Ford trial: $1.2 million paid to MCSG

Former and current officers of Doral Dental Services testified today in former Sen. John Ford's trial in Nashville, saying that Doral paid $1.2 million to a company in which Ford held 40 percent interest. The government's indictment charges that Ford got more than $400,000 of it while he was a state senator. Doral president and then-chief-in-house lawyer Steven J. Pollock testified that he did not become aware of the consulting agreement with MCSG until late 2003 or early 2004 and didn't realize that Ford was a partner in MCSG until later. Later, Pollack says, he learned that Ford was an elected official in Tennessee, and that there "was a problem."

Follow the trial in the Commercial Appeal

Ophelia Ford vows to change license law after hers denied

When State Sen. Ophelia Ford's request to reinstate her expired funeral director's license was denied, she said she decided to seek to change the law, which now provides a 60-day window to renew. He proposal would extend that to one year.

The Tennessean has the story

New officers for Williamson County bar

The Williamson County Bar Association has elected its new officers. They are Karen Beyke, president, solo practitioner; Jackson Welch, vice president, Sidwell & Barrett; Kim Helper, secretary, assistant district attorney; and Charles Morton, treasurer, Puryear Newman & Morton PLLC. They are all of Franklin.

Smoking ban law will not be challenged by suit

U.S. District Judge Curtis L. Collier found that there was no basis for a lawsuit against Gov. Phil Bredesen and the Tennessee General Assembly that challenged Tennessee's indoor smoking ban and an increase in the state cigarette tax. "States are given broad discretion in taking steps that in their judgment protect the health of their citizens," Collier said in his ruling.

The Daily News Journal reported the story

Tighten up that filing!

A U.S. district judge in Washington, exasperated with a lawyer over a wordy, 465-page lawsuit, granted a rarely used motion for a "more definite statement." He gave the message back to the lawyer in just five lines ... with a limerick:

"Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a).
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today."