GOP unites on constitutional officers; 2 are lawyers

House Speaker Kent Williams joined other Republican legislators today to elect a bloc of GOP nominees as the state's new constitutional officers. Justin Wilson, a Nashville lawyer who served as deputy governor to former Gov. Don Sundquist, defeated Democratic incumbent John Morgan in a straight party-line vote for the office of comptroller. Tre Hargett, a former House Republican leader who is now chairman of the Tennessee Regulatory Authority, defeated Democratic incumbent Riley Darnell to take over as secretary of state. And David Lillard, a Memphis attorney who specializes in tax and securities law, defeated Democratic incumbent Dale Sims to become treasurer.

Learn more in the News Sentinel

TODAY'S OPINIONS
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B & B ENTERPRISES OF WILSON COUNTY, LLC ET AL. v. CITY OF LEBANON ET AL.

Court: TCA

Attorneys:

Derrick C. Smith, Nashville, Tennessee, and Melanie Bean, Lebanon, Tennessee, for the appellants, City of Lebanon, City of Lebanon Planning Commission, and the following individuals serving in their capacity as members of the Commission: Patsy Anderson, Ronnie Kelly, David Cook, Don Fox, Claude Wilson, Joe Holbrook, Nick Locke, Jan Mangrum, Joe Hayes and Johnnie Peyton.

G. Frank Lannom, Lebanon, Tennessee, for the appellees, B & B Enterprises of Wilson County, LLC, and Hal Bone d/b/a/ Hal Bone Enterprises.

Judge: CLEMENT

The issue on appeal is whether the plaintiffs' inverse condemnation action against the City of Lebanon Regional Planning Commission and its members is barred by the one-year statute of limitations. This action arises from the February 26, 2002 decision of the Planning Commission denying approval of the plaintiffs' plans for Phases II and III of Chaparral Subdivision. This inverse condemnation action was not filed until December 2, 2005; however, the plaintiffs filed a petition for a common law writ of certiorari on April 12, 2002, challenging the denial of the plans, which remained on appeal until December 16, 2004. In the writ of certiorari action, the chancellor found that the City abused its discretion in denying approval of the plans and this court affirmed that decision in an opinion filed December 16, 2004. This inverse condemnation action was filed eleven months after this court rendered its ruling in the appeal of the certiorari action. When the plaintiffs subsequently filed this action in 2005, the defendants moved for summary judgment on the ground that the action was time barred because the triggering event in a regulatory takings case such as this occurred on February 26, 2002, when the plans were denied by the City's Planning Commission. In response, the plaintiffs contended the action was timely because it was filed within one year of this court's decision in the writ of certiorari action. We have determined the triggering event occurred on the date the plaintiffs knew the City was depriving them of the economic use of their property, which at the very latest was April 12, 2002, when the plaintiffs' filed their petition for a writ of certiorari. We therefore reverse the ruling of the trial court and remand with instructions to grant the defendants' motion for summary judgment.

http://www.tba2.org/tba_files/TCA/2009/b&benterprises_011509.pdf


TONYA GAGER v. RIVER PARK HOSPITAL AND SOUTHEASTERN EMERGENCY SERVICES, P.C.

Court: TCA

Attorneys:

James L. Harris, Nashville, Tennessee, for the appellant, Tonya Gager.

W. Dale Amburn, Margaret G. Klein, and Jennifer Pearson Taylor, Knoxville, Tennessee, for the appellee, Southeastern Emergency Services, P.C.

Judge: DINKINS

Plaintiff, a nurse practitioner formerly employed by a staffing service and supplied to hospital emergency department, sued the service and the hospital for retaliatory discharge, gender discrimination, breach of contract and violation of the Tennessee Public Protection Act. Trial court granted summary judgment to staffing company. Finding no error, we affirm the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCA/2009/gagert_011509.pdf


THOMAS DAVID JORDAN v. BURLINGTON NORTHERN SANTA FE RAILROAD COMPANY, A Corporation, and NORFOLK SOUTHERN RAILWAY COMPANY, A Corporation

Court: TCA

Attorneys:

Everett B. Gibson, S. Camille Reifers, Memphis, TN, for Appellant.

Robert M. Frey, Jackson, MS; Christopher A. Keith, Birmingham, AL; Stephen R. Leffler, Memphis, TN, for Appellee, Thomas David Jordan.

William C. Spencer, William C. Spencer, Jr., Memphis, TN, for Appellee BNSF Railway Company.

Judge: HIGHERS

This is an appeal from a jury trial involving the Federal Employers' Liability Act. A railroad employee was struck by a passing train belonging to another railroad. The employee sued both railroads, bringing a FELA claim against the employer railroad, and a negligence claim against the other railroad. The jury returned a verdict in the employee's favor against the employer railroad, finding that the employer railroad was 100 percent at fault. The employee was awarded damages in the amount of $4 million. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2009/jordant_011509.pdf


MEMPHIS MANAGED CARE CORPORATION d/b/a TLC FAMILY HEALTH CARE PLAN v. STATE OF TENNESSEE DEPARTMENT OF COMMERCE AND INSURANCE

Court: TCA

Attorneys:

Jef Feibelman, David H. Lillard, Jr., Leah Lloyd Hillis, Memphis, Tennessee, for the appellant, Memphis Managed Care Corporation d/b/a TLC Family Health Care Plan.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Ellen Knack, Senior Counsel, for the appellee, State of Tennessee Department of Commerce and Insurance.

Judge: CLEMENT

Memphis Managed Care Corporation, a health maintenance organization, filed this action in the Tennessee Claims Commission seeking a refund of penalty and interest paid to the Department of Commerce and Insurance, which were imposed due to the late payment of insurance premium taxes. Managed Care remitted payment of the penalty and interest following notice of the assessment; however, Managed Care did not notify the Department prior to or contemporaneously with the payment of penalty and interest that payment was "under protest." Notice that payment was under protest was given eight days after the payment was remitted. When Managed Care filed its claim, the Department filed a motion to dismiss. The Claims Commission granted the Department's motion, finding Managed Care "was required to pay the penalties and interest assessed against it for failing to pay its premium tax payment under protest to pursue this claim," and that "protest must be made prior to or contemporaneously with payment." The issues on appeal are whether Tennessee Code Annotated section 67-1-901 requires that the payment of penalty and interest imposed by the Department of Commerce and Insurance be under protest and, if so, whether notice of protest must be given prior to or contemporaneously with payment. We have determined that Managed Care was required to give notice that payment was under protest prior to or contemporaneously with payment to invoke the jurisdiction of the Claims Commission. Managed Care failed to give timely notice; therefore, we affirm the dismissal of the claim.

http://www.tba2.org/tba_files/TCA/2009/memphismanaged_011509.pdf


JONATHAN C. NESBITT v. KIMBERLY K. NESBITT

Court: TCA

Attorneys:

David Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellant, Kimberly K. Nesbitt.

Gregory D. Smith, James Glasgow Martin and Rebecca Kathryn McKelvey, Nashville, Tennessee, for the appellee, Jonathan C. Nesbitt.

Judge: DINKINS

Wife appeals the lower court's entry of a Parenting Plan and the division of marital assets in the final decree. Finding error in the division of marital assets, we modify the court's order in that regard; in all other respects the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2009/nesbittj_011509.pdf


RURAL DEVELOPMENTS, LLC v. JOHN H. TUCKER, CLARA TUCKER, GENE CARMAN REAL ESTATE AND AUCTIONS FAMILY PARTNERSHIP, LP d/b/a GENE CARMAN REAL ESTATE AND AUCTION, GENE CARMAN AND BARRY WITCHER

Court: TCA

Attorneys:

Christopher J. Oliver and Laura M. Williams, Nashville, Tennessee, for the appellant Rural Developments, LLC.

B. Keith Williams and James R. Stocks, Lebanon, Tennessee, for the appellees John and Clara Tucker.

Robyn Beale Williams and Derrick A. Free, Nashville, Tennessee, for the appellees Gene Carman, Barry Witcher, Gene Carman Real Estate and Auction, and Gene Carman Real Estate and Auction Family Partnership, LP.

Judge: KURTZ

This case involves allegations of intentional misrepresentation and associated causes of action all related to the sale of a spring for commercial development. Appellant contends that the output of the spring was misrepresented. The trial court granted summary judgment as to a number of causes of action, and the appellant then non-suited his remaining claims and appealed. For the reasons stated herein we affirm the trial court.

http://www.tba2.org/tba_files/TCA/2009/ruraldevelopment_011509.pdf


UNIVERSITY PARTNERS DEVELOPMENT v. KENT BLISS, Individually and d/b/a K & T ENTERPRISES

Court: TCA

Attorneys:

G. Kline Preston, IV, Nashville, TN, for Appellants.

Raymond F. Runyon, Clarksville, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the trial court erred in dismissing Appellant's appeal from general sessions court for failing to post an appeal bond when Appellant allegedly paid the costs in advance in lieu of posting a bond. Because Appellant failed to post a bond covering the costs of appeal, pursuant to Tennessee Code Annotated section 27-5-103, or a bond of one year's rent, pursuant to Tennessee Code Annotated 29-18-130(b)(2), we affirm.

http://www.tba2.org/tba_files/TCA/2009/universitypartners_011509.pdf


BEN BLEVINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Herb Holcomb, Rogersville, Tennessee, at trial, and Ben Blevins, Pro Se, on appeal, Rogersville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; C. Berkeley Bell, District Attorney General and Alex Pearson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Ben Blevins, pled guilty to eight counts of passing worthless checks, four counts of forgery, and five counts of attempted money laundering. According to the plea agreement, Appellant's effective sentence was three years, the manner of service to be determined by the trial court after a sentencing hearing. The trial court denied alternative sentencing based on Appellant's prior criminal history, inability to pay existing restitution, failure to abide by terms of prior probation, behavior of continually reoffending and in order to deter similar behavior. The trial court ordered the sentence served in incarceration. Appellant appeals, pro se, arguing that he should have been granted some form of alternative sentencing. We determine that the trial court properly denied alternative sentencing. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/blevinsb_011509.pdf


STATE OF TENNESSEE v. FRANK EDWARD DAVIDSON

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Bill Gibson, District Attorney General; and Amanda Hunter, Assistant District Attorney General, for the appellant, State of Tennessee.

David N. Brady, District Public Defender and Cynthia S. Lyons, Assistant Public Defender, for appellee, Frank Edward Davidson.

Judge: SMITH

The State appeals after the trial court granted a motion to suppress evidence obtained following a traffic stop of Appellee, Frank Edward Davidson, that ultimately led to his indictment for driving under the influence ("DUI"), driving on a revoked license, driving with a restriction in effect, DUI tenth offense, and driving on a revoked license second offense. After a review of the record and the DVD of the traffic stop, we determine that the evidence preponderates against the judgment of the trial court. Consequently, the judgment of the trial court is reversed and the case is remanded for trial.

http://www.tba2.org/tba_files/TCCA/2009/davidsonf_011509.pdf


STATE OF TENNESSEE v. TYRONE GARNER

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Shelbyville, Tennessee, and N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant, Tyrone Garner.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Ann L. Filer and Melissa Thomas, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Tyrone Garner, pled guilty in the Lincoln County Circuit Court to possession of a Schedule II controlled substance with intent to deliver, a Class B felony, and the trial court sentenced him to ten years, six months to be served in confinement. On appeal, he contends that the trial court erred by denying his request for alternative sentencing. Based upon the record and the parties' briefs, we conclude that the trial court did not err by denying the appellant's request for probation or community corrections. However, because the trial court entered two separate judgments of conviction showing that the appellant pled guilty to possession of a Schedule II controlled substance with intent to deliver and possession of a Schedule II controlled substance with intent to sell, we remand the case to the trial court for entry of corrected judgments.

http://www.tba2.org/tba_files/TCCA/2009/garnert_011509.pdf


RONNELL LEBERRY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Phillips, Clarksville, Tennessee, for the appellant, Ronnell Leberry.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John W. Carney, District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In November 2005 the petitioner, Ronnell Leberry, filed a pro se petition for post-conviction relief. In November 2007, following the appointment of counsel and an evidentiary hearing, the trial court dismissed the petition. On appeal, the petitioner argues that he received the ineffective assistance of counsel at trial. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/leberryr_011509.pdf


STATE OF TENNESSEE v. RANDY LEE OWNBY

Court: TCCA

Attorneys:

Larry Samuel Patterson, Jr., Columbia, Tennessee, and for the appellant, Randy Lee Ownby.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Brooke Grubb and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Randy Lee Ownby, was convicted of two counts of aggravated child abuse, Class A felonies, and two counts of child abuse, Class D felonies. The defendant's child abuse convictions were merged into the aggravated child abuse convictions, and on the latter he received concurrent sentences of twenty and twenty-two years. On appeal, the defendant argues that the trial court erred by (1) overruling his motion to suppress his statement to police, (2) overruling his motion to disqualify the District Attorney General from prosecuting the case, (3) failing to order the prosecution to answer the defendant's request for a Bill of Particulars, (4) failing to grant his motion for new trial based on the state's refusal to provide Jencks and Brady material, and (5) submitting the same offenses to the jury for consideration as aggravated child abuse and aggravated child neglect without a jury instruction on election of offenses. Following our review of the parties' briefs, the record, and the applicable law, we reverse the judgments of the trial court and remand this case for a new trial.

http://www.tba2.org/tba_files/TCCA/2009/ownbyr_011509.pdf


ALFRED WILLIAM SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Richard Hughes and Jeanne L. Wiggins, Madisonville, Tennessee, for the Appellant, Alfred William Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany, Assistant Attorney General; Steven Bebb, District Attorney General; Phillip H. Morton, Assistant District Attorney General pro tem, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A McMinn County jury convicted the Petitioner, Alfred William Smith, of first degree premeditated murder, for which the trial court imposed a life sentence. We affirmed the Petitioner's conviction on direct appeal. The Petitioner then filed a post-conviction petition claiming he received the ineffective assistance of counsel at his trial. The post-conviction court denied relief, and the Petitioner now appeals, claiming that his trial counsel was ineffective because he: (1) failed to object to expert medical testimony that the victim's injury was an "overkill type injury"; (2) failed to ensure that the Petitioner properly waived his right to testify; and (3) opened the door to the introduction of the Petitioner's prior bad acts. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/smitha_011509.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
Legislative News
TBA Member Services

Legal News
Holder testifies at Senate nomination hearing
Attorney General-nominee Eric Holder Jr. testified Thursday at his confirmation hearing in hopes of becoming the nation's first African-American AG. In addition to admitting mistakes were made on his watch as deputy AG for the Clinton Administration, Holder made news by labeling waterboarding as torture and pledging to prosecute some Guantanamo Bay detainees in U.S. court.
Read more from WSMV-TV News Channel 4
Judge orders Gitmo release
A federal judge on Wednesday ordered the military to release one of its first Guantanamo Bay prisoners, a 21-year-old man accused of being a terrorist who has been detained since he was 14. The military accused Mohammed el Gharani of being part of al-Qaida, working for the Taliban and fighting American forces in Afghanistan. The judge said the accusations were based on unreliable testimony from other detainees.
Read the AP story on WTVC News
Mid-Tennessee bankruptcies double
According to the latest federal court records, 400 business bankruptcies were recorded for 2008 in Middle Tennessee -- more than double the total from the previous year. Local bankruptcy lawyers and industry officials say construction firms continue to account for the biggest portion of the bankruptcy spike, even though other sectors also are represented. Analysts predict that bankruptcy filings will continue at a rapid pace through the first half of 2009.
The Tennessean has the story
ACLU challenges whistleblower law
The American Civil Liberties Union is challenging the constitutionality of a federal law that requires whistleblowers to file their lawsuits in secret, arguing that the requirement violates freedom-of-speech protections. Under the False Claims Act, whistleblowers with allegations of war profiteering or contract fraud must file their lawsuits in secret until the Justice Department evaluates the allegations.
Tri-Cities.com has this AP story
Supreme Court Report
Evidence OK despite bad warrant
The U.S. Supreme Court issued an opinion yesterday finding an exception to the exclusionary rule for negligent police errors. In the case of Herring v. United States, police arrested a suspect based on what the department thought was a valid warrant from another jurisdiction. It was later revealed the warrant had been recalled five months earlier. The court majority found the evidence was admissible despite the police blunder.
Law.com has this AP story
Legislative News
Senate chairs named
Lt. Gov. Ron Ramsey today announced Senate leadership and committee assignments for the 106th General Assembly. Sen. Jamie Woodson was named Speaker Pro Tempore while Sen. Bill Ketron was named deputy speaker. The Judiciary Committee's roster includes Sen. Mae Bevers, chair; Sen. Doug Jackson, vice chair; Sen. Doug Overbey, secretary; and committee members Diane Black, Dewayne Bunch, Mike Faulk, Jim Kyle, Beverly Marrero and Paul Stanley.
See a list of all committee assignments from the Nashville Post
TBA Member Services
First Tennessee is TBA's preferred provider
First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more
on the TBA 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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