Supreme Court approves rule to expand IOLTA program

The Supreme Court today granted a petition from the TBA and other legal groups to require lawyer participation in the Tennessee Bar Foundation's Interest on Lawyers' Trust Accounts (IOLTA) program. That program uses interest earned on trust accounts to fund legal services for the poor and other projects designed to improve the administration of justice. The order requires attorneys who hold eligible client funds to participate in the program by Jan. 1, 2010. It also requires attorneys to maintain IOLTA accounts at financial institutions that pay the same dividend or interest rate to those accounts as they do to others. Commending the court for its action, TBA President Gail Vaughn Ashworth said, "Keeping client funds held by lawyers safe is always our first objective, and this program assures that safety while earning funds to meet the growing need for funding for legal services for the poor." The court's action today comes after months of work by the TBA, Tennessee Bar Foundation, Tennessee Association for Justice and Tennessee Alliance for Legal Services. The groups proposed the plan as part of TBA past president Buck Lewis' 4ALL initiative.

Learn more about the new rule and how lawyers can comply

TODAY'S OPINIONS
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HERBERT JONES v. LEMOYNE-OWEN COLLEGE and CHERYL GOLDEN

Court: TCA

Attorneys:

Herbert Jones, Memphis, Tennessee, Plaintiff/Appellant, pro se

Andr_ C. Wharton, Memphis, Tennessee, for the Defendants/Appellees LeMoyne-Owen College and Cheryl Golden

Judge: KIRBY

This is a breach of contract case. The plaintiff college professor was asked by his employer college to teach a summer class. The class was cancelled after the professor had taught only two class sessions. The college said that the class was cancelled due to low enrollment; this reason was disputed by the professor. The professor filed a lawsuit against the college for breach of express contract, breach of contract implied in fact, breach of contract implied in law, breach of the implied covenant of good faith and fair dealing, and intentional interference with contractual relations. The trial court granted summary judgment to the defendant college on all of the professor's claims. The professor appeals, arguing that he was denied discovery and that the grant of summary judgment was erroneous. We affirm the challenged discovery rulings and the grant of summary judgment as to the claims for breach of express contract, breach of contract implied in fact, breach of the implied covenant of good faith and fair dealing, intentional interference with contractual relations, and as to the claim for breach of contract implied in law with respect to the second class taught by the plaintiff. We reverse the grant of summary judgment as to the claim for breach of contract implied in law with respect to the first class taught by the plaintiff.

http://www.tba2.org/tba_files/TCA/2009/jonesh_070809.pdf


DUE HUE NGUYEN v. RASHIDA A. WATSON
CORRECTION page one changes "failed to appeal" to "failed to appear."


Court: TCA

Attorneys:

Andrew J. Evans, Jr., Knoxville, Tennessee, for the appellant, Due Hue Nguyen.

Ursula Bailey, Knoxville, Tennessee, for the appellee, Rashida A. Watson.

Judge: SUSANO

In general sessions court, the plaintiff Due Hue Nguyen was awarded a judgment in 1998 for $6,881.84 against Rashida A. Watson. The defendant appealed to the trial court. The plaintiff moved to dismiss the appeal. The trial court declined to do so. The court ultimately dismissed the plaintiff's civil warrant "for failure to prosecute." The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/nguyend_CORR_070809.pdf


STATE OF TENNESSEE v. MARVIN CRAWFORD

Court: TCCA

Attorneys:

Richard A. Tate, Assistant District Public Defender, for the appellant, Marvin Crawford.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Amber Massengill, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Sullivan County Criminal Court jury convicted the defendant, Marvin Crawford, of eight counts of rape of a child, see T.C.A. section 39-13-522 (2003), and the trial court imposed an effective sentence of 75 years' incarceration. In this appeal, the defendant contends that the evidence was insufficient to support his convictions and that the trial court erred by imposing partially consecutive sentencing. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/crawfordm_070809.pdf


STATE OF TENNESSEE v. DERRANN WILLIAM ESTILL

Court: TCCA

Attorneys:

Jeffery A. DeVasher (on appeal), Tyler Chance Yarbro (at trial), and Jonathan F. Wing (at trial), Nashville, Tennessee, for the appellant, Derrann William Estill.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, Derrann William Estill, of aggravated kidnapping, and the appellant pled guilty to domestic assault. After a sentencing hearing, the trial court sentenced him to concurrent sentences of seventeen years and eleven months, twenty- nine days, respectively. On appeal, the appellant contends that (1) the trial court erred by failing to define "possession" adequately when the jury requested a definition during deliberations, (2) the evidence is insufficient to support the conviction for aggravated kidnapping, and (3) his sentence for aggravated kidnapping is excessive. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/estilld_070809.pdf


STATE OF TENNESSEE v. STEVE GRIFFITH

Court: TCCA

Attorneys:

Larry Dillow, Kingsport, Tennessee, for the appellant, Steve Griffith.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Steve Griffith, appeals from his Sullivan County Criminal Court conviction resulting from merged jury verdicts of guilty of both sale and delivery of .5 grams or more of cocaine, both within 1,000 feet of a school, Class A felonies. See T.C.A. sections 39-17-417(a), (c)(1); - 432(b)(1) (2006). The defendant claims that the convicting evidence is insufficient, that the trial court improperly limited his voir dire of the jury, and that the trial court erred in allowing the prosecutor to read a portion of the jury instructions during his closing argument. We discern no error in the proceedings and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/griffiths_070809.pdf


STATE OF TENNESSEE v. KELLY RAY JONES

Court: TCCA

Attorneys:

Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the Appellant, Kelly Ray Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Charles Crawford, District Attorney General, and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant pled guilty to a charge of incest involving the sexual molestation of his fourteen-year-old niece on June 5, 2005. Under the plea bargain the length and manner of service of the sentence was left up to the trial judge. Following a sentencing hearing, Appellant was sentenced to four years and six months incarceration with a release eligibility after service of thirty percent of the sentence. In this appeal, Appellant maintains his sentence is too lengthy for the crime he committed and that he should have received some form of alternative sentence. We hold that because the trial court found the presence of enhancement factors in violation of Blakely v. Washington, 542 U.S. 296 (2004) and State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). Appellant's sentence must be modified to three years. As to the denial of alternative sentencing, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/jonesk_070809.pdf


JAKI AKAI XAVIER MAHAMMAD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jaki Akai Xavier Mahammad, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

This matter is before the Court upon the State's motion to affirm the judgment of the habeas court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Upon a review of the record in this case, we are persuaded that the habeas court properly denied the petition for habeas corpus relief, and we conclude this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/mahammadj_070809.pdf


TODAY'S NEWS

Legal News
Disciplinary Actions
TBA Member Services

Legal News
Moncier: suspension upheld, new trial ordered
The 6th Circuit of Appeals today issued two opinions relative to Knoxville lawyer Herbert Moncier. The first upholds a suspension imposed on Moncier by the U.S. District Court for the Eastern District of Tennessee. The second rejects all but one of Moncier's arguments with respect to a criminal contempt conviction for conduct before District Judge Ronnie Greer. Moncier argued that federal rules of criminal procedure disqualify a judge from presiding over a contempt trial if the contempt charge involved disrespect or criticism of that judge. In this case, the contempt charge was based on disrespectful conduct shown to Greer, who then presided over the contempt trial. The court agreed with Moncier, vacated his conviction and remanded the case for a new trial before a different judge.

Court denies Davidson GAL petition
The Tennessee Supreme Court today denied the Davidson County Juvenile Court's petition for exemption from Rule 40A, which governs when a guardian ad litem (GAL) should be appointed in child custody proceedings and defines the GAL's role during the proceeding. The provisional rule remains in effect until April 30, 2010, at which time the court will evaluate whether to permanently adopt the rule. The court encouraged interested parties to continue submitting comments about Rule 40A.
Download the order
Download the court's release
Guns in bars suit delayed
A hearing scheduled for yesterday on the state's new law allowing handguns to be carried in bars and restaurants was delayed until next Monday as the state attorney general's office requested more time to review the case.
The Memphis Daily News has more
Rove testifies on prosecutor firings
Karl Rove was questioned by U.S. House Judiciary Committee lawyers in a closed-door session yesterday on the role he may have played in the firings of nine U.S. attorneys. The committee has been trying to determine who created the list of federal prosecutors who would lose their jobs. Committee chair John Conyers, D-MI, said he suspects the trail led to the White House but has been unable to prove it. Rove testified under penalty of perjury as part of an agreement the committee reached with his lawyer.
Fox News has more
Franken appointed to Senate Judiciary Committee
Al Franken, who was sworn in this morning as the newest U.S. senator, will become the sixth non-lawyer on the Senate Judiciary Committee as he replaces Sen. Ron Wyden, D-OR, who is a lawyer. Wyden had held the seat pending the outcome of the Minnesota Senate election. According to Politico, Senate Majority Leader Harry Reid defended his decision to allow Franken to take the committee calling him "extremely smart."
The ABA Journal reports
Woman given another chance for protection order
A woman allegedly denied due process based on her status as an immigrant will be given another day in Blount County court. The Tennessee Court of Appeals reached a unanimous decision that Ana Matilde Calixto was improperly denied an order of protection by Blount County Circuit Judge W. Dale Young. Calixto alleged that Young denied her request because he believed she was an illegal immigrant.
The Daily Times has the story
TAJ elects officers
The Tennessee Association for Justice has elected new leaders for the year. They are: President Wayne A. Ritche with Ritchie, Dillard & Davies PC in Knoxville; President-elect Phillip Miller of Nashville; East Tennessee Vice President Leslie Muse with Butler, Vines & Babb in Knoxville; Middle Tennessee Vice President B. Keith Williams with Cornelius & Collins in Nashville; West Tennessee Vice President S. Drake Martin with Nix, Patterson & Roach LLP in Jackson; Secretary Kathryn Barnett with Day & Blair in Brentwood; Treasurer Bryan Capps with Gilreath & Associates in Knoxville; and Parliamentarian Rebecca Blair with Day & Blair in Brentwood. Daniel L. Clayton with Kinnard Clayton & Beveridge in Nashville assumes the role of past president.

The group also named three at-large appointees to serve on its Executive Committee: Eric Buchanan with Eric Buchanan & Associates in Chattanooga, Bruce Fox with Gilreath & Associates in Knoxville and Bryan Smith with Pietrangelo Cook in Memphis.

Disciplinary Actions
Lawyers suspended for nonpayment of BPR fee
In orders filed on May 11 and 22, and June 10 and 25, the Tennessee Supreme Court suspended Tennessee-licensed attorneys who have not paid the 2009 annual Board of Professional Responsibility fee and any required fines. Lawyers who have paid the fee since being suspended are noted as reinstated.
View the list of attorneys suspended and reinstated for 2009 fee violations
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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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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