Court solicits comments on MJP and other proposed rules

The Tennessee Supreme Court today released orders requesting comment on three proposals, two of which were requested by the TBA. The first proposal deals with multijurisdictional practice (MJP), addressing temporary and casual activities that might be considered the practice of law. It also deals with limited practice privileges for in-house counsel. The second proposal would reduce the number of pro bono hours required to qualify for one hour of CLE credit. The CLE Commission joined the TBA in recommending this change. The third proposal, requested by the Board of Law Examiners, the Tennessee Lawyers Assistance Program and the Board of Professional Responsibility, would allow lawyers demonstrating rehabilitation from chemical dependency to be conditionally reinstated to the practice of law. The TBA supports that proposal.

Learn more and download the orders

TODAY'S OPINIONS
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CATHY LAKELAND ALLEN v. JOHN FOX ALLEN, JR.

Court: TCA

Attorneys:

Larry Rice and Rachel Gallant, Memphis, Tennessee, for the appellant, John Fox Allen, Jr.

Mitchell D. Moskovitz, Adam N. Cohen, and Zachary M. Moore, Memphis, Tennessee, for the appellee, Cathy Lakeland Allen.

Judge: KIRBY

This is a petition to modify alimony. In the parties' divorce decree, the husband was ordered to pay the wife alimony in futuro based in part on the wife's chronic, incurable health condition. About six years later, the husband filed this petition to reduce or terminate his alimony obligation, arguing that (1) the wife's health condition had not declined as was originally anticipated, and (2) his income had decreased and the wife's income had increased. The trial court denied the husband's petition, concluding that a material change in circumstances had not occurred. The husband now appeals. We affirm, concluding that the trial court did not err in finding that the husband did not prove a material change in circumstances and in denying his petition to modify his alimony obligation.

http://www.tba2.org/tba_files/TCA/2008/allenc_121008.pdf


ELMER PAUL ALLEN ET AL. v. HISTORIC HOTELS OF NASHVILLE, LLC d/b/a HERMITAGE HOTEL ET AL.

Court: TCA

Attorneys:

Michael D. Dillon, Nashville, Tennessee, for the appellants, Elmer Paul Allen and Robin Allen.

David L. Johnson, Nashville, Tennessee, for the appellee, Historic Hotels of Nashville, LLC d/b/a Hermitage Hotel.

Raymond D. Lackey, Franklin, Tennessee, for the appellee, Tennessee Republican Party.

Judge: CLEMENT

The plaintiffs, husband and wife, filed this premises liability action for personal injuries sustained by the husband when a flag that had been draped over a painting, with large wooden dowel attached, fell and struck husband on the head. The incident occurred during an election night party hosted by the Tennessee Republican Party in the grand ballroom of the Hermitage Hotel in Nashville, Tennessee. The plaintiffs timely filed their action against the hotel. More than a year after the incident, the hotel filed its Answer to the Complaint in which it stated in an affirmative defense that "[t]o the extent that Plaintiffs claim that the offending condition was caused because of flags being placed in portraits, upon information and belief, said condition was created at the request of the organizing party of this election reception (the Republican Party of Tennessee) and if Plaintiffs contend that it was improper to request placement of the flags, Defendant identifies said organizer and host of the reception as a potentially negligent party to the extent supported by the proof." More than ninety days after the hotel's Answer was filed, the plaintiffs amended their complaint to add the Tennessee Republican Party (TRP) as an additional defendant. Thereafter, both defendants filed motions for summary judgment. The trial court summarily dismissed all claims against the defendants, finding no evidence that either defendant caused the flag to be draped over the painting, and that it was not foreseeable that its placement over the painting was dangerous or that it created an unreasonable risk of harm. The TRP also filed a motion for judgment on the pleadings, contending the action against it was time barred. The trial court denied that motion. We have concluded the plaintiffs' claims against the TRP are time barred; therefore, the TRP is entitled to judgment on the pleadings. As for the hotel, we have concluded the hotel failed to negate an essential element of the plaintiffs' claim and failed to establish that the plaintiffs cannot prove an essential element of their claim at trial; therefore, the hotel is not entitled to summary judgment.

http://www.tba2.org/tba_files/TCA/2008/allene_121008.pdf


PAUL L. IVY v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Paul L. Ivy, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Bradley W. Flippin, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

Judge: KIRBY

This appeal involves the issue of mootness. The petitioner, while incarcerated in a state prison, was convicted by the prison disciplinary board of possession of security threat group material. He filed this petition for writ of certiorari challenging the legality of his administrative conviction. The trial court dismissed his claim, he appealed, and the dismissal was reversed and the cause remanded. Meanwhile, the prisoner was released from prison. Based on the petitioner's release from prison, the respondent department of correction filed a motion to dismiss his petition based on the doctrine of mootness. The trial court granted the motion to dismiss. The petitioner now files his second appeal, arguing that he sought relief related to matters other than his sentence and, therefore, the case was not rendered moot by his release from prison. Because the record does not include the prisoner's petition, we must vacate the trial court's decision and remand the cause for the trial court to determine whether the petitioner sought relief other than that related to his sentence.

http://www.tba2.org/tba_files/TCA/2008/ivyp_121008.pdf


NEWELL WINDOW FURNISHING, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Frank N. Stockdale Carney and Katharine A. Jungkind, Memphis, Tennessee, and Paul D. Krivacka, Nashville, Tennessee, for the appellant, Newell Window Furnishing, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, and Brad H. Buchanan, Assistant Attorney General, Nashville, Tennessee, for the appellee, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee.

Judge: LEE

The issues presented in this case involve the interplay between the Tennessee excise tax and the provisions of 26 U.S.C. section 338(h)(10). Newell Window Furnishing, Inc. ("Newell") filed suit for refund of state excise tax paid on income recognized from the sale of corporate capital stock it owned in Kirsch, Inc. ("Kirsch"). The trial court denied the refund. After careful review, we affirm the decision of the trial.

http://www.tba2.org/tba_files/TCA/2008/newellwindow_121008.pdf


ALPHONSO BRADFORD V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Alphonso Bradford, Pro Se.

Robert E. Cooper, Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Alphonso Bradford, appeals the trial court's denial of his petition for writ of habeas corpus. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/bradforda_121008.pdf


STATE OF TENNESSEE v. ALEX STEVINO PORTER

Court: TCCA

Attorneys:

Ashley L. Ownby, Cleveland, Tennessee, for the appellant, Alex Stevino Porter.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Richard A. Fisher, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Alex Porter, was found guilty by a McMinn County jury of first degree murder and sentenced to life in prison. After the denial of a motion for new trial, Appellant seeks the resolution of the following issues on appeal: (1) whether the evidence is sufficient to support the conviction; (2) whether the accomplice testimony was sufficiently corroborated; and (3) whether the trial court erred by excluding the testimony of Valerie Ware and Mary White at trial. After a review of the evidence, we determine that the evidence is sufficient to support the conviction, that the accomplice testimony was sufficiently corroborated, and that the trial court did not err by excluding the testimony of Valerie Ware. However, we determine that the trial court erred by excluding the testimony of Mary White but conclude that the error was harmless. Consequently, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/portera_121008.pdf


STATE OF TENNESSEE v. JASON CHRISTOPHER UNDERWOOD

Court: TCCA

Attorneys:

Robert Marlow, Shelbyville, Tennessee, for the appellant, Jason Christopher Underwood.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Jason Christopher Underwood, appeals from his Bedford County Circuit Court jury convictions of two counts of premeditated first degree murder and his two sentences of life imprisonment without the possibility of parole. He claims that the verdicts are not supported by legally sufficient evidence and that the trial court erred in dismissing appointed counsel when the defendant's family hired private counsel to assist, not replace, trial counsel. He further claims that the trial court erred in denying his requests for funds to hire expert witnesses and in denying a continuation of the trial. He claims that the trial court erred in failing to dismiss for cause certain jurors, forcing him to use his preemptive challenges on these jurors. Finally, the defendant challenges the imposition of consecutive sentences of imprisonment for life without the possibility of parole. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/underwoodj_121008.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
Election 2008
Disciplinary Actions
TBA Member Services

Legal News
Coverage of 4 ALL campaign continues
Today's edition of the Memphis Daily News covers the Tennessee Supreme Court's access to justice announcement from last Friday, as well as the TBA's continuing 4ALL campaign. The piece highlights the many components of the campaign, including proposals to amend court rules to encourage pro bono service by attorneys and a statewide service day set for April 4.
Read more here
Court unveils portrait of former justice Cooper
The Tennessee Supreme Court yesterday unveiled a portrait of former chief justice Robert E. Cooper, a Chattanooga native who served on the court from 1974-1990 and as chief justice for two years. He retired in 1990. The painting will hang in the Hamilton County Commission room of the Knoxville Supreme Court building.
The Times Free Press reports
Former state rep. joins lobbying firm
Former Tennessee Rep. Steven W. Buttry of Knoxville has joined The Capitol Strategy Group LLC, a Nashville-based business development and government relations services firm. Buttry represented the 18th District in the state House from 1998 to 2004 and most recently worked for Connected Tennessee, a nonprofit seeking to expand broadband Internet across East Tennessee. The addition of Buttry brings a Republican into the firm founded by two long-time Democratic strategists, Randy Button and Kim Adkins. The Nashville Post reported the hire.

Attorney charged with courthouse vandalism
Greeneville attorney Francis X. Santore Jr. has been charged with vandalism in connection with a Nov. 25 incident at the Greene County Courthouse, in which he allegedly threw a coffee cup across the courtroom and pulled a railing from a stairwell wall. A special judge will be appointed to hear the case while an assistant district attorney from another judicial district will prosecute.
Read more in the Greeneville Sun
Supreme Court Report
Justices hear Tenn. death penalty case
Convicted killer Gary Bradford Cone has been on death row in Tennessee since 1984, but he could be spared execution if the U.S. Supreme Court determines information withheld from trial justifies commuting his sentence to life in prison. The justices showed rare bursts of anger in discussing a prosecutor's failure to turn over key evidence to defense lawyers that would have bolstered Cone's contention that he was in a drug-induced psychotic state when he committed the crime.
The Commercial Appeal has more
Stevens to swear in Biden
While it was pretty much a given that U.S. Supreme Court Chief Justice John G. Roberts would swear in Barack Obama as the nation's 44th president, there was speculation who would do the honors for Vice President Joe Biden. The Blog of Legal Times reports it will be Justice John Paul Stevens.

Arguments made in traffic stop case
In a case argued yesterday justices considered whether, during a traffic stop, a police officer may conduct a pat-down search of a passenger if the officer believes the passenger to be armed and dangerous, but does not have reasonable grounds to believe he or she is engaging in criminal activity. The justices questioned the standard advocated by the government and grappled with the issue of when a seizure ends in the context of a vehicle stop.
Learn more at Law.com
Election 2008
Brown drops judicial election challenge
Bartlett judicial candidate Dan Brown will not challenge Judge George McCrary's November victory thus ending the latest dispute over McCrary's residency. McCrary owns land that straddles the Memphis-Bartlett border. He lists a Memphis address as his home but is registered with the Election Commission at an address in Bartlett. Brown had questioned the residency issue throughout the campaign.
The Commercial Appeal reports
Disciplinary Actions
Kentucky lawyer reinstated
Bruce Dwain Atherton of Louisville, Ky. has been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. He had been suspended in September 2003.

TBA Member Services
Secure, compliant data backup service now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
Learn why lawyers trust i365 for online data backup solutions

 
 
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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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