TBA Today

Thursday, December 18, 2008

Search our Database for Opinions and News Items

Court requests comments on IOLTA petition

The Tennessee Supreme Court today released for comment a proposal to adopt changes to the Interest on Lawyer Trust Accounts (IOLTA) Program filed in late November by the Tennessee Bar Foundation, Tennessee Bar Association, Tennessee Association for Justice and Tennessee Alliance for Legal Services. The court has requested comments on the proposal through Feb. 20. The proposed plan would take effect Jan. 1, 2010, giving lawyers and banks time to make necessary changes to their accounts and programs.

"These changes offer a way for the bar to address the huge and growing need for lawyers for the poor," TBA President Buck Lewis said. "At a time when mortgage foreclosures and job losses are putting more pressure on Tennessee families, we may have an opportunity to step up their access to our justice system."

Programs requiring lawyers to participate in IOLTA have been adopted in 38 states while 23 have taken the step -- like that in the proposal -- of enhancing interest comparability provisions of their programs. When adopted in other states, the amount of money raised for legal aid activities has increased a minimum of 50 to 65 percent. Last year in Tennessee the program generated $1.4 million.

Download the court's order or the group's petition

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
02 - 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.

EXEL TRANSPORTATION SERVICES, INC. v. INTER-EGO SYSTEMS, INC. d/b/a PINNACLE LOUDSPEAKERS a/k/a PINNACLE SPEAKERS

Court: TCA

Attorneys:

Allan B. Thorp, Memphis, Tennessee, for the Plaintiff/Appellant Exel Transportation Services, Inc.

Bruce M. Smith and Charmiane G. Claxton, Memphis, Tennessee, for the Defendant/Appellee Inter-Ego Systems, Inc. d/b/a Pinnacle Loudspeakers a/k/a Pinnacle Speakers.

Judge: KIRBY

This appeal involves a dismissal for lack of personal jurisdiction. The plaintiff transportation company has its principal place of business in Tennessee. It provided transportation services and financing to the defendant foreign corporation. The defendant eventually defaulted on payments due to the plaintiff. After negotiations by telephone, fax, and email, the parties agreed to a payment plan to bring the defendant's account current. They executed a letter agreement confirming the arrangement. Subsequently, the Tennessee plaintiff realized that a substantial amount of the services it had rendered to the defendant foreign corporation were inadvertently not included in the letter agreement. The Tennessee plaintiff filed a lawsuit in Tennessee against the foreign corporation, seeking rescission or reformation of the agreement. The defendant foreign corporation filed a motion to dismiss for lack of personal jurisdiction. The trial court granted the motion to dismiss, finding that the defendant foreign corporation had not purposely availed itself of the privilege of doing business in Tennessee and did not have sufficient contacts with Tennessee to be subjected to jurisdiction in this state. We affirm, finding that the circumstances do not support the exercise of either general or specific jurisdiction.

http://www.tba2.org/tba_files/TCA/2008/exeltrans_121808.pdf

STEVEN HAMRICK, ET AL. v. LISA LEWIS

Court: TCA

Attorneys:

Thomas S. Scott, Jr., and Christopher T. Cain, Knoxville, Tennessee, for the Appellants, Steven Hamrick, Trish Hamrick, and Michael Hamrick, individually and as Administrators of the Estate of Mary Katherine Hamrick, and as Administrators of the Estate of Edward L. Wallace.

Alan M. Sowell and Nathaniel K. Cherry, Nashville, Tennessee, for the Appellee, Allstate Insurance Company.

James Y. 'Bo" Reed, Knoxville, Tennessee, for the Appellee, American National Property and Casualty Company.

Judge: LEE

This appeal involves questions of uninsured motorist ("UM") insurance coverage under three separate policies of insurance. Mary Katherine Hamrick, the administrator of the estate of her late father, Edward Wallace, was killed in a vehicular accident while driving a car owned by Mr. Wallace's estate. Ms. Hamrick's children brought this action against the alleged tortfeasor and served notice of their claims to UM benefits under three policies: (1) Mr. Wallace's personal automobile insurance policy, issued by Allstate Insurance Company; (2) Mr. Wallace's personal umbrella insurance policy, issued by Allstate Insurance Company; and (3) Ms. Hamrick's personal automobile insurance policy, issued by American National Property and Casualty Company ("ANPAC"). Upon review, we affirm in part and reverse in part. We affirm the judgment of the trial court that Ms. Hamrick did not have UM coverage under the express provisions of the Allstate insurance policies at issue because: (1) Ms. Hamrick was not driving the car "with permission" of the named insured under Mr. Wallace's auto insurance policy because he had been dead for nearly four years at the time of the accident, and (2) Ms. Hamrick did not fall under the definition of "insured" under Mr. Wallace's umbrella policy. We also affirm the trial court's judgment that Allstate was not barred by principles of waiver or estoppel to deny coverage under its policies. We reverse the judgment of the trial court that Ms. Hamrick did not have UM coverage under her automobile policy because she is defined by the policy, without qualification, as being an "insured person" and, therefore, entitled to UM coverage under the express terms of her policy.

http://www.tba2.org/tba_files/TCA/2008/hamricks_121808.pdf

AUTUMN LAINE McDANIEL v. KEVIN EUGENE McDANIEL

Court: TCA

Attorneys:

C. Timothy Crocker, Daniel E. King, and Michael A. Carter, Milan, Tennessee, for the appellant Kevin Eugene McDaniel.

Ryan B. Feeney, Selmer, Tennessee, for the appellee Autumn Laine McDaniel.

Judge: KIRBY

This is a divorce case. The parties were married in 2004, had one child in early 2005, and separated in late 2005. The wife filed a complaint for divorce soon after, and the husband counterclaimed for divorce. During the separation, the wife was the primary residential parent. The wife took various prescription medicines for several conditions, and had previously been addicted to pain medication. At the time of trial, the husband was cohabiting with a young woman whom he began dating when she was seventeen years old. During a substantial portion of the husband's scheduled parenting time, the parties' minor child was in the care of either the husband's parents or the husband's paramour. At trial, the wife testified as to the amount of her annual income, but proffered no documentary proof or other evidence. The trial court designated the wife as the primary residential parent, reduced the husband's residential parenting time, and used the amount of income to which the wife testified to set the husband's child support obligation. The husband appeals. He argues that the trial court erred in designating the wife as the primary residential parent, in reducing his residential parenting time, and in failing to impute to the wife the income level set forth in the child support guidelines. We affirm.

http://www.tba2.org/tba_files/TCA/2008/mcdaniela_121808.pdf

TERESA ANGELA ROSS v. GREGORY BRUCE ROSS, SR.
CORRECTION appears on page one (1), listing Connie Reguli as Pro Se party

Court: TCA

Attorneys:

Connie Reguli, Brentwood, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: CLEMENT

This appeal arises out of a domestic action wherein attorney Connie Reguli was held in criminal contempt for allegedly instructing her client, the father of the parties' child, to disregard an order that awarded the mother overnight parenting time. Ms. Reguli appeals her conviction on numerous grounds. We have determined the conviction must be reversed on two grounds. The order, which was an oral command proclaimed from the bench, is neither specific or unambiguous concerning when the mother's overnight parenting time would occur; therefore, an essential element of contempt, that of specificity, is missing. Further, the evidence is insufficient to establish that attorney Reguli instructed her client to violate the trial court's order.

http://www.tba2.org/tba_files/TCA/2008/rosst_Corr_121808.pdf

MARGIE J. FARLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rick L. Stacy, McMinnville, Tennessee, for the Petitioner, Margie J. Farley.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Ann Filer, Assistant District Attorney General Pro Tempore, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Warren County jury found the Petitioner, Margie J. Farley, guilty of facilitation of first degree felony murder, facilitation of especially aggravated robbery, and criminally negligent homicide. The trial court sentenced her to an effective thirty-seven year sentence, and this Court affirmed her convictions. The Petitioner filed a petition for post-conviction relief, claiming that she failed to receive the effective assistance of counsel at trial. The post-conviction court denied her relief, and she now appeals. After a thorough review of the record and the applicable law, we affirm the post- conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/farleym_121808.pdf

STATE OF TENNESSEE v. TERRELL E. PAYNE

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal); Roger E. Nell, District Public Defender, and Ann Marie Kroeger, Assistant Public Defender (at trial), for the appellant, Terrell E. Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; John Wesley Camey, Jr., District Attorney General; and Jason Christian White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Terrell E. Payne, appeals from the Robertson County Circuit Court's probation revocation for his ten-year sentence for possession of less than one-half gram of a Schedule II controlled substance with intent to resell, a Class C felony. He claims that the trial court erred in revoking his probation and ordering him to serve his sentence in confinement. We hold that the trial court did not abuse its discretion, and we affirm its judgment.

http://www.tba2.org/tba_files/TCCA/2008/paynet_121808.pdf

TODAY'S NEWS

Legal News
Passages
TBA Member Services

Legal News

American Bar Foundation names Tenn. fellows

The American Bar Foundation has named new fellows, among which are 10 Tennessee lawyers. They are: Amy Amundsen of Rice, Amundsen Caperton PLLC in Memphis; Gail Vaughan Ashworth of Gideon Wiseman PLC in Nashville; Tasha Blakney of Eldridge Blakney PC in Knoxville; 30th Judicial District Judge Robert Childers of Memphis; Keith Frazier of Ogletree, Deakins, Nash, Smoak & Stewart PC in Nashville; Buck Lewis of Baker, Donelson, Bearman, Caldwell & Berkowitz PC in Memphis; Harrison McIver III of Memphis Area Legal Services; Allan Ramsaur of the Tennessee Bar Association in Nashville; John Tarpley of Lewis, King, Krieg & Waldrop PC in Nashville; and Daniel Van Horn of Butler, Snow, O'Mara, Stevens and Cannada PLLC in Memphis.

Learn more about the program

Scruggs informant gets 36 months

Mississippi attorney Joey Langston was sentenced this week to 36 months in federal prison and fined $250,000 for conspiring to influence a circuit judge. Langston pleaded guilty in January to attempting to influence the judge in order to resolve a legal fees lawsuit against lawyer Richard "Dickie" Scruggs. The sentence was the maximum recommended by prosecutors after Langston helped them put Scruggs in prison.

WMC-TV has this AP story

Grand jury: more focus needed on victims

The Hamilton County Grand Jury, which has been seated since September, issued a final report yesterday calling for more resources for victims of crime, a new county jail and a new juvenile detention facility. The group also requested that local officials be required to serve on a grand jury, that magistrates provide daytime services at the jail, and that the state reinstate and increase funding for probation programs and victim compensation programs.

Read the full report on Chattanoogan.com

Meanwhile, the Concurrent Hamilton County Grand Jury also wrapped up its work and recommended that the county utilize videoconferencing for initial court appearances -- both to save money on the transportation of prisoners and to offer a safer alternative to moving them around town. The report also recommended more work opportunities for inmates, tougher penalties for repeat DUIs and upgrades to the community corrections facility.

Read the full report on Chattanoogan.com

Obama's three latest appointees are lawyers

President-elect Barack Obama's three latest appointees to top jobs have all been lawyers. The latest is Mary Schapiro, chosen to head the Securities and Exchange Commission. She joins former Iowa Gov. Tom Vilsack, who was named agriculture secretary and Colorado Sen. Ken Salazar, who was named interior secretary yesterday. Schapiro currently heads the Financial Industry Regulatory Authority, a self-regulatory body for the securities industry. Vilsack is currently of counsel in Dorsey & Whitney's trial group while Salazar is former attorney general of Colorado and a water rights lawyer.

Read about these appointees in the ABA Journal

Miller & Martin receives leadership award

Miller & Martin this week received the Urban League of Greater Chattanooga's corporate leadership award, which is presented each year to a company that demonstrates commitment to strengthening diversity practices. The firm was recognized for development and implementation of a comprehensive diversity policy, its overall employment practices and the fact that diversity among employees is reflected at the governance level. Firm Chairman Howard Levine accepted the award on behalf of the firm, reports the Chattanoogan.com.

Open records policy finalized

The Office of Open Records Counsel Wednesday finalized a statutorily required policy dealing with people who make frequent and multiple requests for public records. Under the rule, records custodians may assess a fee for labor that is reasonably necessary to fulfill a request but exceeds one hour. Requests for routinely released and readily accessible items will be exempt.

The Memphis Daily News has more

State departments plan for cuts

State Finance Commissioner Dave Goetz has asked state departments to submit plans for 14.6 percent cuts by Dec. 30. The departments also have been asked to find an additional five percent savings in case economic conditions continue to deteriorate. Gov. Phil Bredesen has said all areas of state government will face cuts except for pre-kindergarten through high school education. The Memphis Daily News reported the news yesterday.

Passages

Clarksville judge dies from stroke

Montgomery County General Sessions and Juvenile Court Judge Jack Hestle, 66, died this morning of a stroke at Vanderbilt University Medical Center in Nashville. Hestle had been treated at Vanderbilt following a fall at his home on Dec. 8.