Legal groups file comment to modify IOLTA proposal

The Tennessee Bar Foundation, TBA, Tennessee Association for Justice and the Tennessee Alliance for Legal Services today filed a comment offering some minor modifications to the proposal under consideration for administration of the IOLTA program. That proposal was filed in November. The principal purpose of the comment was to remove provisions that would have allowed banks to pay a percentage of the federal funds rate to comply with the new comparability provisions. As noted in the comment, the Federal Reserve has dropped the interest rate on fed funds to banks to a record 0.0 percent. This rate is not meant to reflect anything about the cost of lending money, rather the fed's action is widely seen as an effort to use monetary policy to stimulate the economy. IOLTA programs with such provisions have seen their funding devastated as a result of over reliance on such automatic rate determinations. The comment also recommends some administrative changes to address concerns expressed by the Tennessee Bankers Association.

TBA President Buck Lewis said, "At a time when record numbers of clients are suffering from the severe economic downturn, it is important that the IOLTA program respond to these challenges as effectively and as soon as possible."

Read the joint comment

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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
03 - 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.

DEREK DAVIS v. SHELBY COUNTY SHERIFF'S DEPARTMENT

Court: TSC

Attorneys:

Martin W. Zummach, Assistant Shelby County Attorney, for the appellant, Shelby County Sheriff's Department.

William M. Monroe (at trial), Memphis, Tennessee, and Leslie A. Miller (on appeal), Somerville, Tennessee, for the appellee, Derek Davis.

Judge: CLARK

The issue in this appeal is whether the Shelby County Civil Service Merit Board had cause to terminate Derek Davis' employment for violating the Department's drug-free workplace program. Upon review, we find that: (1) the Court of Appeals applied the incorrect standard of review in reviewing the Board's decision; (2) the positive urine specimen test result was admissible evidence for the Board to consider; and (3) the Board's decision to terminate Mr. Davis' employment was not arbitrary or capricious and was supported by evidence that is both substantial and material. Accordingly, we reverse the decision of the Court of Appeals and reinstate the trial court's judgment.

http://www.tba2.org/tba_files/TSC/2009/davisd_022009.pdf


MICHAEL LEE SHORTS v. BENDELL BARTHOLOMEW, IN HIS OFFICIAL CAPACITY AS THE SHERIFF OF CARROLL COUNTY, TENNESSEE

Court: TSC

Attorneys:

Benjamin S. Dempsey, Huntingdon, Tennessee, for the Plaintiff/Adverse Party, Michael Lee Shorts.

Brandon O. Gibson and Jon A. York, Jackson, Tennessee, for the Defendant/Movant, Bendell Bartholomew.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Kimberly J. Dean, Deputy Attorney General, for the Amicus Curiae, State of Tennessee.

Judge: CLARK

We accepted a question of law certified by the United States District Court for the Western District of Tennessee: whether Tennessee Code Annotated section 8-8-201(a)(3) imposes any duty upon a Tennessee sheriff to calculate the release date and order the release of a Tennessee Department of Correction ("TDOC") prisoner who is serving a period of incarceration in a county jail. We answer that question in the negative. We also conclude that, notwithstanding erroneous information contained in the relevant judgment orders of conviction entered against Plaintiff, the trial court imposed a sentence of split confinement on Plaintiff. See Tenn. Code Ann. section 40-35-306(a) (2006). Sentences of split confinement are required by Tennessee Code Annotated section 40-35-314(a) to be served in a local jail or workhouse. Plaintiff was not, therefore, a TDOC prisoner. We hold that Tennessee Code Annotated section 8-8-201(a)(1) & (3) does impose a duty upon the sheriff to calculate the release date and order the release of prisoners sentenced to a sentence of split confinement.

http://www.tba2.org/tba_files/TSC/2009/shortsm_022009.pdf


INDIANA STATE DISTRICT COUNCIL OF LABORERS and HOD CARRIERS PENSION FUND v. GARY BRUKARDT, et al.

Court: TCA

Attorneys:

James G. Stranch, III, J. Gerard Stranch, IV, and Joe P. Leniski, Jr., Nashville, Tennessee; Darren J. Robbins, Randall J. Baron, A. Rick Atwood, Jr., and David T. Wissbroecker, San Diego, California; and William K. Cavanagh, Jr., Springfield, Illinois, for appellant.

Michael L. Dagley, Matthew M. Curley, Nashville, Tennessee; Lawrence O. Kamin, and Derek M. Schoemann, New York, New York; for appellee Renal Care Group, Inc.

Judge: KURTZ

This is a shareholder class action which was dismissed by the trial court for failure to state a claim. The case alleges breach of fiduciary duty and self-dealing against members of the Board of Directors who procured and approved a merger. For the reasons stated herein, we hold that the complaint alleges sufficient facts to allow the case to go forward, and, therefore, dismissal was in error. The decision below is reversed and the case is remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/brukardtg_022009.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. LOUISE LELA TOLBERT and DANNY TAYLOR

Court: TCA

Attorneys:

Johnna I. Duke, Memphis, Tennessee, for the Respondent/Appellant Danny Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Preston Shipp, Assistant Attorney General, for the Petitioner/Appellee State of Tennessee, Department of Children's Services.

Judge: KIRBY

This appeal involves the termination of parental rights. The Department of Children's Services filed a petition seeking to terminate the parental rights of both the mother and father as to their minor daughter. After a trial, the trial court terminated the parental rights of both parents, finding clear and convincing evidence that grounds for termination existed and that termination would be in the child's best interest. The father appeals, arguing that the trial court erred in not ordering that he undergo a psychological evaluation. After review of the record, we find that counsel for father did not ask the trial court to have the father undergo a psychological evaluation, and that the issue is therefore waived on appeal. The father does not dispute that grounds for termination and the best interest of the child were established by clear and convincing evidence. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2009/taylord_022009.pdf


STATE OF TENNESSEE v. WILLIAM DAVID MICHENER

Court: TCCA

Attorneys:

E.J. Mackie, Cookeville, Tennessee, for the appellant, William David Michener.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William E. Gibson, District Attorney General; and Beth Willis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, William David Michener, was charged with first degree murder and abuse of a corpse. He obtained a judgment of acquittal of first degree murder from the trial court following the State's proof. A jury then convicted him of voluntary manslaughter and abuse of a corpse. In this direct appeal, he argues that (1) the evidence at trial was insufficient to convict him of voluntary manslaughter; (2) the trial court improperly denied his motion for a mistrial after a certain statement by a State's witness; and (3) the trial court improperly denied his motion to sever his first degree murder count from his abuse of a corpse count. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/michenerw_022009.pdf


STATE OF TENNESSEE v. MIKEL PRIMM

Court: TCCA

Attorneys:

Geoffrey Coston, Franklin, Tennessee, for the appellant, Mikel Primm.

Robert E. Cooper, Jr., Attorney General and Reporter; Mary W. Francois, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey Thompson, Suzanne Lockert, and Lisa Donegan, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Mikel Primm, was convicted of two counts of failure to appear, Class E felonies, and received consecutive sentences of three years and two years in the Tennessee Department of Correction. In this consolidated appeal, he challenges the sufficiency of convicting evidence. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/primmm_022009.pdf


STATE OF TENNESSEE v. THOMAS LEWIS TURNER, II

Court: TCCA

Attorneys:

Kerry Knox, Murfreesboro, Tennessee, for the appellee, Thomas Lewis Turner, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William C. Whiteshell, Jr., District Attorney General; and J. Paul Newman, Assistant Attorney General, for the appellant, State of Tennessee.

Judge: MCMULLEN

The defendant, Thomas Lewis Turner, II (hereinafter "Turner"), was indicted for murder in the perpetration of a robbery, premeditated murder, especially aggravated robbery, conspiracy to commit robbery, possession of ecstasy, and possession of marijuana. The trial court granted Turner's motion to suppress his statement to police. Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State was granted this interlocutory appeal challenging the trial court's suppression of the statement made by Turner during a custodial interrogation. Because Turner did not make an unequivocal request for an attorney during the interrogation, the order of suppression is reversed, and the case is remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/turnert_022009.pdf


TODAY'S NEWS

Legislative News
Legal News
TennBarU CLE
TBA Member Services

Legislative News
Committee presents death penalty reform bills
A legislative study committee ended roughly 16 months of analyzing how capital crimes are prosecuted in Tennessee on Thursday, presenting four proposed bills related to its findings.
Read about the proposals in the Knoxville News Sentinel
Special committee looks at capping nursing home damages
A special legislative committee studying the effects of litigation on the nursing home industry held its first meeting Wednesday. Senate Speaker Ron Ramsey has made malpractice caps for nursing homes part of his legislative agenda for the year.
WATE Newschannel 6 has more
Legal News
Segregation opponent joins UT staff
In 1968, Rita Sanders Geier sued the state for creating a segregated higher education system. Today, she is in charge of boosting diversity at its flagship school. The 63-year-old educator's campaign against segregation began when the University of Tennessee announced plans to start a Nashville campus.
Read more in The Tennessean about Grier and her new role
Lawmaker claims immunity from libel charges
Does the state's legislative immunity from libel extend to the world of blogs? State Rep. Stacey Campfield, R-Knoxville, says it does and his attorney is using that as a defense against a $750,000 libel lawsuit filed by Roger Byrge, an unsuccessful Democratic candidate for the state House last year.
Read more about the case in the Knoxville News Sentinel
Former TBA president addresses national bar group
Chattanooga attorney and TBA Immediate Past President Marcy Eason addressed the National Council of Bar Presidents during its recent meeting in Boston. Eason, who practices with Miller & Martin PLLC, talked to the group on the topic of "Investing in the Future by Engaging Younger Generations of Lawyers in Bar Associations."
Read more on Chattanoogan.com
TennBarU CLE
Still time to register for TBA Estate Planning Forum
Some of the state's top estate planners share their knowledge on estate planning developments and topics important to Tennessee practitioners during this year's Estate Planning Forum, Feb. 27 in Nashville. This information-packed, full-day program will provide 6 general CLE hours.
Find out more or register today
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

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2009 Tennessee Bar Association