Internet scam targets attorneys

An internet scam targeting attorneys in Tennessee and across the country is prompting warnings from bar associations and federal officials. The scam works like this: the law firm receives a referral from someone posing as an out-of-state attorney to enforce a simple contract dispute or collect a debt from a local corporation owed to a foreign company. The firm, believing it is exercising due diligence, confirms that the prospective client is a real company, then enters into a fee agreement. It sends a demand letter, and later receives a cashier's check made payable to the law firm. The client is pleased and directs the law firm to wire the money, after deducting its fees and costs. The law firm deposits the money in its client trust account, waits for the check to clear the local bank, and wires the money to the client. Things fall apart when the bank on which the check is drawn notifies everyone that the check is a counterfeit fraud -- by which time it is too late to stop the wire transfer, and the law firm's client trust account is now out the proceeds.

If you suspect you have encountered a similar situation, independently verify the names and contact information provided to you and do not disburse the deposited funds until the bank on which the cashier's check is drawn clears the check. To report a scam, contact the FBI office in your area or in Nashville at 615-232-7500.
TODAY'S OPINIONS
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METRO CONSTRUCTION CO., LLC v. SIM ATTRACTIONS, LLC, ET AL.

Court: TCA

Attorneys:

John Lewis Wardlaw, Memphis, Tennessee, for the Appellant, Fitraco, N.V.

George D. McCrary, Bartlett, Tennessee, for the Appellee, Metro Construction Co., LLC. Craig Morgan Beard, Memphis, Tennessee, for the Appellee, Peabody Place Centre, GP.

Judge: FARMER

This case originated with a mechanic's and materialman's lien asserted by Plaintiff Metro Construction against commercial real property owned by Defendant/Cross Plaintiff Peabody Place Center in Memphis. It arises from improvements made by Metro Construction to a leasehold held by Defendant Sim Attractions. Sim Attractions abandoned the leasehold without compensating Metro Construction for the improvements, which included the installation of a several-ton race car simulator that remained in the abandoned leasehold. Defendant Fitraco claimed the simulator was its property under the terms of a lease agreement between Fitraco and Sim Attractions. It alternatively asserted a superior security interest. The trial court found that the simulator was personal property and determined that that the agreement between Sim Attractions and Fitraco was not a lease but an unperfected, disguised security agreement. The trial court attached the simulator to secure judgment in favor of Metro Construction. It also awarded Metro Construction discovery sanctions against Fitraco. The trial court awarded Peabody Place damages for lost rent. Fitraco appeals, asserting it had leased the simulator to Sim Attractions or, in the alternative, that it had properly perfected its security interest prior to judicial attachment by the trial court. It further asserts the damages claimed by Peabody Place were speculative. We reverse the judgment in favor of Metro Construction and affirm the judgment in favor of Peabody Place.

http://www.tba2.org/tba_files/TCA/2009/construction_060909.pdf


In the Matter of: E.G.B.

Court: TCA

Attorneys:

William S. Rhea, Somerville, Tennessee, for the Respondent/Appellant M.B. and the Intervenor/Appellant J.B.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee for the Petitioner/Appellee J.P.

Judge: KIRBY

This is a child support case. The child's mother is married to a man who is not the child's biological father. The biological father petitioned the trial court to order genetic testing to establish paternity and to set child support. The mother sought the dismissal of the biological father's petition, asking that her husband be designated as the child's legal father. The husband also intervened, seeking dismissal of the petition and asking to be designated as the legal father. The trial court ordered genetic testing, which showed that the petitioner was the child's biological father. The trial court declared the petitioner to be the child's legal father and he began to pay the mother child support. An agreed permanent parenting plan was eventually entered, but the issue of child support was reserved. The mother sought retroactive child support for the five month period between the child's birth and the date on which the biological father began to pay child support. The trial court denied the mother's request, without including written findings to explain the reason for deviating from the presumption under the child support guidelines that retroactive support should be awarded. The mother now appeals. We remand for the trial court to either comply with the child support guidelines or make specific findings to support deviation from the guidelines.

http://www.tba2.org/tba_files/TCA/2009/matterofegb_060909.pdf


IN THE MATTER OF W.A.T.R.

Court: TCA

Attorneys:

John B. Holt, Springfield, Tennessee, for the appellant, Father.

D. Scott Parsley, Nashville, Tennessee, for the appellee, Mother. Jennifer L. Evans, Springfield, Tennessee, Guardian ad Litem for the child.

Judge: CLEMENT

The mother of the parties' only child filed this action to terminate the father's parental rights so that her husband could adopt the child. The trial court granted the petition, terminating Father's parental rights on the ground that Father's criminal behavior and multiple incarcerations demonstrated a wanton disregard for the welfare of his child, and that termination of Father's parental rights was in the child's best interest. On appeal, Father argues there was not clear and convincing evidence to support the trial court's ruling. We find that there was clear and convincing evidence to terminate Father's parental rights on the ground of abandonment by wanton conduct pursuant to Tenn. Code Ann. section 36-1-102(A)(iv), and that termination was in the best interest of the child.

http://www.tba2.org/tba_files/TCA/2009/matterofwatr_060909.pdf


KEITH RAMSEY and CASSANDRA RAMSEY v. MR. T'S AUTO DETAIL & SALES, INC., and PROFESSIONAL FINANCIAL SERVICES OF TENNESSEE, LLC.

Court: TCA

Attorneys:

Jerry E. Farmer, Murfreesboro, Tennessee, for Appellants, Keith and Cassandra Ramsey.

Terry A. Fann, Murfreesboro, Tennessee, for Appellee, Mr. T's Auto Detail and Sales, Inc.

Judge: FRANKS

Plaintiffs accepted an offer of judgment in this case, which offer provided that the defendant would pay $750.00 to plaintiffs for any expenses or alleged damages. Plaintiffs then moved for attorney's fees, asserting they were the prevailing party and that under the Tennessee Consumer Protection Act and the Magnuson-Moss Warranty Act, they were entitled to attorney's fees. The Trial Court overruled the motion and on appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2009/ramseyk_060909.pdf


GLENDA ANN SMITH v. LADDIE WALTER SMITH

Court: TCA

Attorneys:

John Milton Meadows, III, Livingston, Tennessee, for the Appellant, Laddie Walter Smith.

Brett A. York and Kevin R. Bryant, Crossville, Tennessee, for the Appellee, Glenda Ann Smith.

Judge: SWINEY

In this divorce case, both Glenda Ann Smith ("Wife") and Laddie Walter Smith ("Husband") owned real property prior to their marriage. The parties entered into a prenuptial agreement providing that each party would retain their separate real property if the marriage ended. During the marriage, Wife executed a deed on her separate property and created a tenancy by the entireties between her and Husband. The "sole" purpose for executing this deed was so Wife's property could be used as collateral for a loan on a mobile home that both parties purchased and which was placed on Husband's separate real property. The Trial Court determined that Wife was entitled to the property that was her separate property prior to the marriage, and Husband was entitled to the property that was his separate property prior to the marriage as well as the mobile home. Husband appeals arguing that he should have been awarded an interest in the property that he and Wife held as tenants by the entireties. We affirm.

http://www.tba2.org/tba_files/TCA/2009/smithg_060909.pdf


DANIEL E. BUCK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Daniel E. Buck.

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

Judge: SMITH

A jury convicted Petitioner of aggravated rape and aggravated sexual battery. He was sentenced to an effective sentence of fifteen years. Petitioner's direct appeal from his conviction was unsuccessful. State v. Daniel Buck, No. M2005-02818-CCA-R3-CD, 2006 WL 3831390 (Tenn. Crim. App., at Nashville, Dec. 12, 2006), perm. app. denied, (Tenn. Apr. 23, 2007). He subsequently filed a petition for post-conviction relief based upon ineffective assistance of counsel. At the post-conviction hearing, the post-conviction court determined that the issue was previously determined and waived. Because we conclude that Petitioner's issue has not been heard at a meaningful time in a meaningful manner, we reverse and remand this case to the post-conviction court for further proceedings.

http://www.tba2.org/tba_files/TCCA/2009/buckd_060909.pdf


THOMAS P. COLLIER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Thomas P. Collier.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

On May 4, 2007, Petitioner, Thomas P. Collier, pled guilty in the Davidson County Criminal Court to second degree murder. Pursuant to the guilty plea, he pled out of his range as a Range II multiple offender and was sentenced to thirty-five years. On October 26, 2007, Petitioner filed a petition for post-conviction relief arguing that his plea was not entered voluntarily, intelligently, and knowingly as a result of ineffective assistance of counsel. After holding an evidentiary hearing, the postconviction court denied the petition. On appeal, Petitioner argues that his plea was involuntary and his trial counsel was ineffective because Petitioner did not know he was pleading outside of his sentencing range. We have reviewed the record on appeal and conclude that the evidence does not preponderate against the findings of the post-conviction court. Therefore, we affirm the postconviction court's denial and dismissal of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/colliert_060909.pdf


TONY JAMERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul K. Guibao, Memphis, Tennessee, for the appellant, Tony Jamerson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alexia Fulgham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Tony Jamerson, appeals the judgment of the Shelby County Criminal Court denying post-conviction relief. The petitioner was convicted of first degree premeditated murder and sentenced to life imprisonment without the possibility of parole. On appeal, the petitioner argues that: (1) his trial counsel was ineffective in failing to fully investigate police techniques used in obtaining the petitioner's confession, and (2) the trial court and counsel failed to ensure proper jury instruction. The petitioner also asserts in brief that he is entitled to relief based on cumulative error. After review, the judgment of the court denying post-conviction relief is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/jamersont_060909.pdf


STATE OF TENNESSEE v. JAMES RICHARD LENING

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the appellant, James Richard Lening.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, James Richard Lening, was charged with one count of aggravated criminal trespass, two counts of attempted robbery, one count of aggravated burglary, two counts of aggravated assault, and one count of vandalism over $1,000. Following a jury trial, he was convicted of one count of aggravated criminal trespass, one count of aggravated burglary, two counts of aggravated assault, and one count of vandalism over $1,000. The trial court sentenced him to eleven months and twenty-nine days for aggravated criminal trespass. The trial court sentenced him as a Range III, persistent offender to fifteen years for aggravated burglary and fifteen years for each count of aggravated assault. It also sentenced him as a career offender to twelve years for vandalism over $1,000. The trial court ordered that the Defendant's eleven month and twenty-nine day sentence for aggravated criminal trespass be served concurrently with his other sentences and that his fifteen-year sentences for aggravated assault be served concurrently with one another but consecutively to his other felony sentences. The trial court also ordered the Defendant to serve his fifteen-year sentence for aggravated burglary and his twelve-year sentence for vandalism over $1,000 consecutively to each other and consecutively to his concurrent sentences for aggravated assault, for a total effective sentence of forty-two years in the Department of Correction. In this direct appeal, the Defendant contends that: (1) the State presented evidence insufficient to convict him of aggravated burglary, aggravated assault, or vandalism over $1,000; and (2) the trial court erred in ordering consecutive sentencing. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/leningj_060909.pdf


STATE OF TENNESSEE v. JOSEPH MAY

Court: TCCA

Attorneys:

Garland Erguden (on appeal), and Amy Mayne and William Johnson (at trial) Assistant Public Defenders, Memphis, Tennessee, for the appellant, Joseph May.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman and Lara Fowler, Assistant District Attorneys General, for the appellee State of Tennessee.

Judge: MCLIN

The defendant, Joseph May, was convicted by a Shelby County jury of first degree premeditated murder for which he received a sentence of life imprisonment. On appeal, he contends that the evidence was insufficient to prove he committed a premeditated and intentional murder. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mayj_060909.pdf


STATE OF TENNESSEE v. DEXTER MCMILLAN

Court: TCCA

Attorneys:

Donna Robinson Miller, Chattanooga, Tennessee (on appeal); and Aubrey Davis, Knoxville, Tennessee (at hearing), for the appellant, Dexter McMillan.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Takisha Fitzgerald, Assistant District AttorneyGeneral, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Dexter McMillan, challenges the Knox County Criminal Court's order revoking his probation, ordering him to serve 120 days' incarceration in the Knox County jail, and extending his probationary sentence for an additional year. Discerning no error, we affirm the order of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mcmilliand_060909.pdf


STACEY SLAVEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael R. Giaimo and Phillips Smalling, Cookeville, Tennessee, for the appellant, Stacey Slaven.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William P. Phillips, District Attorney General; and John W. Galloway, Huntsville, Tennessee, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Stacey Slaven, appeals from the Fentress County Criminal Court's order denying her petition for post-conviction relief. She argues that the denial of relief was erroneous because, prior to pleading guilty to second degree murder, she did not receive the effective assistance of counsel and, therefore, her pleas were entered involuntarily. Her argument centers around her contention that trial counsel advised her that she was release eligible at 30% rather than 100% and that, but for this advice, she would not have pleaded guilty. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the Petitioner failed to prove her allegations by clear and convincing evidence and denied the petition. Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/slavens_060909.pdf


STATE OF TENNESSEE v. MICHAEL SHANE SMITH

Court: TCCA

Attorneys:

Charles P. Dupree, Chattanooga, Tennessee, for the appellant, Michael Shane Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William H. Cox, III, District Attorney General; and Boyd Patterson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Michael Shane Smith, pled guilty in the Hamilton County Criminal Court to reckless aggravated assault with the length and manner of service of the sentence to be determined by the trial court. After a sentencing hearing, the trial court sentenced the appellant to three years to be served in confinement. On appeal, the appellant contends that the trial court improperly enhanced his sentence and should have granted his request for alternative sentencing. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/smithm_060909.pdf


Providing Fire and Other Services under an Interlocal Agreement

TN Attorney General Opinions

Date: 2009-06-08

Opinion Number: 09-107

http://www.tba2.org/tba_files/AG/2009/ag_09_107.pdf

Effect of SB 2192/HB 2194 on Local Educational Funding in the event of consolidation of the City of Memphis and Shelby County

TN Attorney General Opinions

Date: 2009-06-08

Opinion Number: 09-108

http://www.tba2.org/tba_files/AG/2009/ag_09_108.pdf

Conflict of Interest: Local Government Project Manager

TN Attorney General Opinions

Date: 2009-06-08

Opinion Number: 09-109

http://www.tba2.org/tba_files/AG/2009/ag_09_109.pdf

Establishment of New Specialty Earmarked License Plate Recognizing Religious Charity

TN Attorney General Opinions

Date: 2009-06-08

Opinion Number: 09-110

http://www.tba2.org/tba_files/AG/2009/ag_09_110.pdf

Conflict of Interest: UT-Martin Recruiting Expenses

TN Attorney General Opinions

Date: 2009-06-08

Opinion Number: 09-111

http://www.tba2.org/tba_files/AG/2009/ag_09_111.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Passages
TBA Convention 2009
TBA Member Services

Legal News
Professional Privilege Tax due June 15
The deadline for Tennessee's Professional Privilege Tax is June 15, so get that check in. The $400 payment may be made online or by mail to the Tennessee Department of Revenue, Andrew Jackson Building, 500 Deaderick Street, Nashville, TN 37242. For more information visit http://tn.gov/revenue, e-mail the department or find phone numbers at the department's web site.

Disciplinary filing outlines case against Knox law director
A petition for discipline was filed today against Knox County Law Director Bill Lockett with the Board of Professional Responsibility of the Supreme Court of Tennessee, the Knoxville News Sentinel reports. Filed by the board's disciplinary counsel, the petition states that more than $30,000 was "paid to (Lockett) and not given to the firm."
Read more in the Knoxville News Sentinel
Sotomayor hearings to begin July 13
Senate Judiciary Committee Chairman Patrick Leahy says confirmation hearings for Supreme Court nominee Sonia Sotomayor will convene on July 13.
WRCB-TV carried this AP story
Coffee drinker stumbles onto 'false markings' patent suit
A ruling in federal court in Alexandria, Va., appears to be the first of its kind upholding the constitutionality of a law allowing anyone to sue in the name of the government if they have evidence that a company is guilty of "false markings" -- namely, claiming patent protections that have expired or never existed. The person who sues gets to keep half of any money awarded, with the rest going to the government. And that's what a Washington patent lawyer is hoping for after noticing the patent marks on the lid to his daily cup of coffee. It turns out that Solo Cup Co. was continuing to claim patent protections for disposable lids that had expired nearly 20 years ago.
Tri-Cities.com carried this AP story
Bradley County bar elects new officers
The Bradley County Bar Association has elected new officers. They are: Michael Jenne, president, Jenne, Scott & Jenne; Robert Thompson, president-elect, Logan-Thompson; and Josh Jenne, treasurer, Jenne, Scott & Jenne; and Philip Jacobs, secretary, Logan-Thompson. All are from Cleveland.

Napier-Looby Bar elects officers
The Napier-Looby Bar Association has elected new officers. They are: Isaac T. Conner, president, Lewis, King, Krieg & Waldrop PC; William Stover, vice president, solo practitioner; David Green, treasurer, Waller, Lansden, Dortch & Davis LLP; and Kinika Young, secretary, Bass, Berry & Sims PLC. All are from Nashville.

Supreme Court Report
Does new law violate lawyers' free speech?
The Supreme Court will decide whether a new bankruptcy law applies to lawyers and whether their free speech rights are violated by a ban on telling clients to incur more debt.
Find out more from this AP story
Passages
Elizabethton lawyer Bob Oaks dies
Robert Y. "Bob" Oaks of Elizabethton died June 7. He was 54.He was public defender for the 1st District, representing Washington, Carter, Johnson and Unicoi counties. A service will be at 7 p.m. June 10 in the Tetrick Funeral Home Chapel of Peace. The family will receive friends from 5 until 7 p.m. prior to the service. In lieu of flowers donations may be made to the ETSU Foundation for Jacob Francisco Leadership, P.O. Box 70721, Johnson City, TN 37604. Gov. Phil Bredesen will appoint an interim 1st District public defender to fill the seat until the next general election in 2010, said a Bredesen spokeswoman.
Learn more about him from the Johnson City Press
TBA Convention 2009
Appellate practice program featured at Bench/Bar event
The Bench/Bar program at the upcoming TBA Annual Convention in Memphis will feature an Appellate Practice CLE program produced by the TBA's Appellate Practice Section. The session, which gets underway Thursday, June 18, at 8:30 a.m. in the Memphis Marriot Hotel, will feature Mark Fulks, Senior Counsel and Appellate Team Leader in the Criminal Justice Division of the Tennessee Attorney General's office in Nashville; Ross Dyer from the Tennessee Attorney General's Office in Memphis; Nashville attorney David Raybin; and Memphis Criminal Court Judge Mark Ward. If you have not yet registered for TBA Convention, you may sign up online or by calling the TBA at 615-383-7421.

TBA Member Services
Unlimited free online legal research for TBA members
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
Access Fastcase now

 
 
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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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