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

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Court: TSC


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.


Court: TSC


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.


Court: TCA


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.


Court: TCA


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.


Court: TCCA


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.


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.


Court: TCCA


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.


Court: TCCA


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.


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.


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