Countdown: Still time to get CLE credits Dec. 30 and 31

The year-end CLE compliance deadline is little more than 48 hours away. If your busy schedule has not allowed you to complete your educational requirements already, you can still get them this week. The TBA's TennBarU began today with a blitz of showcase CLE programs and will continue Dec. 30 and 31. View videos of this year's best CLEs daily from 7 a.m. to 6:45 p.m. at the Tennessee Bar Center, 221 Fourth Avenue North in Nashville. Moderators will be present, so this will be considered live programming. The TBA also has more than 150 hours of interactive video and interactive text courses available online 24/7.

See a full schedule of programs or register now

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
05 - TN Court of Appeals
04 - TN Court of Criminal Appeals
01 - 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_122908.pdf


EXPRESS DISPOSAL, LLC v. CITY OF MEMPHIS

Court: TCA

Attorneys:

R. Layne Holley, Justin K. Thomas, Germantown, TN, for Appellant

Jonathan C. Hancock, Ross E. Webster, Memphis, TN, for Appellee

Judge: HIGHERS

In this appeal, we are asked to determine whether Express Disposal had a legal, vested right to conduct its garbage collection business for residences in Berryhill prior to its annexation by the city of Memphis, such that Memphis' exercise of its exclusive right to provide municipal services in Berryhill constituted a taking of Express Disposal's property rights without just compensation in violation of Article I, section 21 of the Tennessee Constitution. We find that Memphis' takeover of residential garbage collection in Berryhill did not amount to a constitutional taking, such that Express Disposal was entitled to compensation. Thus, we affirm the circuit court's dismissal of Express Disposal's claim for failure to state a claim upon which relief could be granted.

http://www.tba2.org/tba_files/TCA/2008/expressdisposal_122908.pdf


THE GENE AND FLORENCE MONDAY FOUNDATION, INC. v. THE DIOCESE OF EAST TENNESSEE, ET AL.

Court: TCA

Attorneys:

D. Scott Hurley and Ryan N. Shamblin, Knoxville, Tennessee, for the appellant, The Gene and Florence Monday Foundation, Inc.

Michael S. Kelley, Knoxville, Tennessee, for the appellee, HGC Limited Partnership.

Sarah Y. Sheppeard, Knoxville, Tennessee, for the appellees, The Diocese of East Tennessee and St. James Episcopal Church of Knoxville.

W. Tyler Chastain, Knoxville, Tennessee, for the appellee, Kerry M. Sprouse.

Judge: SUSANO

The sole issue in this case is whether The Gene and Florence Monday Foundation, Inc., ("the Foundation") has standing to challenge a 2006 sale of property by The Diocese of East Tennessee ("the Diocese") and St. James Episcopal Church ("the Church"). The property was conveyed in1 1987 by Mr. Monday and his wife, Florence Monday (collectively "the Mondays"), to the Diocese and the Church through a "Deed of Gift and Assignment of Leases" ("the Deed of Gift"). After the 2006 sale, the Foundation, which was not in existence at the time the gift was made, sued the Diocese, the Church and others, claiming that the price paid for the property was too low and that other conditions of the gift had not been met. We affirm the trial court's judgment. In so doing, we hold, as did the trial court, that the Foundation does not have standing to bring this suit.

http://www.tba2.org/tba_files/TCA/2008/monday_122908.pdf


A.K. REEVES, INC. d/b/a A.K.'s DELI & MARKET v. METROPOLITAN BEER PERMIT BOARD OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Paul Jefferson Campbell, II and Lora Barkenbus Fox, Nashville, Tennessee, for the appellant, Metropolitan Beer Permit Board of the Metropolitan Government of Nashville and Davidson County, Tennessee.

J. Robin McKinney, Jr., Nashville, Tennessee, for the appellee, A.K. Reeves, Inc. d/b/a A.K.'s Deli & Market.

Judge: FARMER

This appeal arises from a beer board's revocation of Petitioner's permit to sell beer. The trial court determined that, under T. C. A. section 57-5-108, it could not consider the board's administrative record where it had not been moved into evidence by the board. The trial court granted Petitioner's motion for directed verdict, reversing the board's decision to revoke the beer permit. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/reevesak_122908.pdf


NANCY C. STYLES v. RON BLACKWOOD, ET AL.

Court: TCA

Attorneys:

Scott D. Hall, Sevierville, Tennessee, for the Appellants, Ron Blackwood, individually and d/b/a Blackwood Management, Inc. and Universal Management, and Shelley Layne Blackwood, individually and d/b/a Blackwood Management, Inc. and Universal Management.

J. Terry Holland, Knoxville, Tennessee, for the Appellee, Nancy C. Styles.

Judge: LEE

This is a fraud case in which plaintiff Nancy Styles alleged that Ron and Shelley Blackwood fraudulently induced her elderly mother to invest $75,000 in the singing group the Blackwood Quartet with no intention of making any payments on the "investment" or using the money for the asserted purpose of the investment. Following a bench trial, the trial court ruled for the plaintiff, finding that "this is as close to a flim-flam as I've ever seen" and that Mr. Blackwood's testimony was "absolutely unequivocally unbelievable." The trial court rescinded the written agreement memorializing the investment and awarded Ms. Styles $75,000 plus prejudgment interest. Upon review, we affirm the judgment of the trial court, finding that in this case the pivotal question of whether the Blackwoods acted with the fraudulent intent not to perform under the agreement was determined in significant part by the trial court's assessment of credibility based on its observation of the demeanor of the witnesses.

http://www.tba2.org/tba_files/TCA/2008/stylesn_122908.pdf


TENNESSEE REALTY DEVELOPMENT, INC. v. STATE OF TENNESSEE (DEPARTMENT OF TRANSPORTATION) and AMERICAN TELEPHONE AND TELEGRAPH (AT&T)

Court: TCA

Attorneys:

W. Brown Hawley, II, Paris, TN, for Appellant

T. Leigh Jones, Senior Counsel, Office of the Attorney General, Jackson, TN, for Appellee State of Tennessee.

Louis F. Allen, Amy Ferguson Dudek, Memphis,TN, for Appellee BellSouth Telecommunications, Inc., incorrectly sued as American Telephone and Telegraph (AT&T).

Judge: HIGHERS

In this appeal, we are asked to determine whether the chancery court erred in failing to allow Appellant to proceed with discovery after the State of Tennessee filed its Motion to Dismiss, in dismissing Appellant's Complaint and Amended Complaint based solely on argument, without any proof by testimony or documentation, and in dismissing Appellant's Complaint and Amended Complaint in regards to BellSouth which did not file a motion to dismiss or present evidence or documentation prior to the court's dismissal. On appeal, Appellant contends that it was entitled to proceed with discovery before the court ruled on the State's motions. Likewise, Appellant argues that the State should have been required to prove ownership of an easement right of way over Appellant's property. Finally, Appellant contends that because BellSouth filed only a Notice of Appearance, Appellant's claim against BellSouth should not have been dismissed. We affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCA/2008/tennesseerealtydevelopment_122908.pdf


STATE OF TENNESSEE v. MARCUS GREER

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Marcus Greer.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Marcus Greer (hereinafter "Greer"), was convicted by a Marshall County Circuit Court jury of possession of .5 grams or more of cocaine with the intent to sell and possession of .5 grams or more of cocaine with the intent to deliver. The trial court merged the convictions and sentenced Greer to twelve years in confinement. On appeal, Greer argues the following: (1) the trial court erred in denying his motions to redact or suppress his statements; and (2) the evidence was insufficient to support his convictions. After our review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/greerm_122908.pdf


DAVID LEE KESTNER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, David Lee Kestner.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Hunter Eisenbeck and Rachel Marie Sobrero, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, David Lee Kestner, appeals from the Davidson County Criminal Court's denial of post-conviction relief from his guilty-plea convictions of first degree felony murder, aggravated burglary, and especially aggravated robbery, for which he is serving concurrent sentences of life, three years, and fifteen years, respectively. The petitioner contends that he received the ineffective assistance of counsel and that he did not knowingly and voluntarily enter into the guilty pleas. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/kestnerd_122908.pdf


STATEOF TENNESSEE v. VONARLEN MCKINNEY

Court: TCCA

Attorneys:

Greg W. Eichelman, District Public Defender, and D. Clifton Barnes, Assistant Public Defender (on appeal), and Jefferson Fairchild, Rogersville, Tennessee (at trial), for the appellant, Von Arlen McKinney.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Kimberly Morrison, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Von Arlen McKinney, was convicted of driving under the influence (DUI), third offense; driving on a revoked license, fourth offense; possession of drug paraphernalia; and violation of the implied consent law. He was sentenced to eleven months and twenty-nine days at seventy-five percent for his DUI offense; eleven months and twenty-nine days for driving on a revoked license, to run concurrent to the DUI; eleven months and twenty-nine days for possession of drug paraphernalia, to run concurrent to the other sentences; and eleven months and twenty-nine days for violation of the implied consent law, with five days to run consecutive to his other sentences, for a total effective sentence of eleven months and thirty-four days. On appeal, the defendant argues that the evidence was insufficient and that the sentence imposed was excessive. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2008/mckinneyv_122908.pdf


STATE OF TENNESSEE v. KENNETH PAUL VANDERPOOL

Court: TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender; and Michael J. Collins, Assistant District Public Defender, for the appellant, Kenneth Paul Vanderpool.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General, William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant pled guilty to three counts of forgery, one count of theft of less than $500, and two counts of failure to appear. Following a sentencing hearing, the trial court sentenced Defendant as a career offender to six years on each count of forgery to be served concurrently with each other and six years on each count of failure to appear to be served concurrently with each other, but consecutively to the sentence for the forgery convictions. Defendant was sentenced to eleven months, twenty-nine days for the theft under $500 to be served concurrently to the other sentences. These sentences were then run consecutively to the nine year sentence Defendant was already serving. On appeal, Defendant argues that the sentence is excessive and contrary to law. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/vanderpoolk_122908.pdf


Juvenile Court Jurisdiction to Hear Petitions to Set Child Support Involving Married Persons

TN Attorney General Opinions

Date: 2008-12-29

Opinion Number: 08-189

http://www.tba2.org/tba_files/AG/2008/ag_08_189.pdf

TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Edge on banking crisis: 'This too shall pass'
Nashville attorney and former TBA President Katie Edge spoke with National Public Radio's Linda Wertheimer recently about getting banks started, even in these tough economic times.
Listen to 'The Bank Lady' on NPR
Civil legal services campaign gets national attention
The American Bar Association's Standing Committee on Legal Aid and Indigent Defendants highlighted Tennessee's civil legal services campaign in its newsletter last week. The report details the campaign, which will include programs to educate community leaders about the problem, promotion of innovative involvement by judges such as preferential docketing of cases where clients are receiving pro bono representation, recognition of law firms that adopt pro bono policies, and support for the Tennessee Bar Association's Public Service Day on April 4, 2009.
Link to the ABA's newsletter
Juvenile justice programs face cuts, too
With budget cuts abounding, juvenile justice programs have not escaped. The Associated Press takes a state-by-state look at juvenile justice program cuts. For Tennessee, the report says grants will be cut "by $1.7 million, or 26 percent, which affects after-school programs, truancy prevention and child and family interventions. More cuts expected."
The Jackson Sun carried this AP story
Lawyer finds calling with IJM prosecuting Indian slave trade
Former Chattanooga attorney Philip Langford doesn't regret his decision to take his family to India and work for the International Justice Mission. Since his move in 2006, he has led a team of Indian lawyers, investigators and case workers as they seek out and prosecute instances of forced labor. While there are strong Indian laws against sex trafficking and forced labor, Langford says, the political will to enforce them is weak because of an inefficient legal system already burdened with countless cases. "We all want to do something that matters," he tells
the Chattanooga Times Free Press in this interview
Need for pay increase for judges debated
For 2009, judges are alone among federal workers -- members of Congress included -- in not getting a cost-of-living allowance (COLA). Lawmakers get their COLA automatically -- $4,700 for 2009 -- but they refused to authorize the same 2.8 percent bump for judges. "Federal judges are currently under-compensated because Congress has repeatedly failed to adjust judicial salaries in response to inflation," said James C. Duff, director of the Administrative Office of the U.S Courts.
NewsChannel 9 has this AP story
Civil rights activist Hooks retires
Famous civil rights leader Rev. Dr. Benjamin Hooks has announced his retirement from preaching at 83. Hooks spent his entire career campaigning for civil rights, and as he prepares to retire from preaching, he says he'll never retire from the fight for social justice and the desire to inspire young people.
WMC-TV has more
Bradley County asks for money to fix 5-year-old jail
The chief deputy for the Bradley County Sheriff's Office asked members of the county finance committee recently to amend the budget to move money into a fund for maintenance and custodial care of its five-year-old justice center. "We are not like most office buildings," Capt. Jim Hodgson said. "We are open 24/7 and 365 and the people we have in jail are not the most careful clientele."
The Chattanooga Times Free Press has this story
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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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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