Applicants for judicial commission top 40

More than 40 people have now applied to serve on the new Judicial Nominating Commission (JNC), which will submit candidates to the governor to fill vacancies on Tennessee's trial and appellate bench. With the July 31 deadline for applications still several weeks away, 43 people have submitted their names. The TBA Board of Governors will hold a special meeting on Aug. 13 to make its recommendations on filling the commission seats designated for lawyers.

Details on how to apply are on the AOC web site

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
01 - TN Court of Appeals
02 - 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.

ROGER BALL ET AL. v. BRUCE McDOWELL ET AL.

Court: TSC

Attorneys:

Robert M. Estep, Tazewell, Tennessee, for appellants Roger Ball and Carrol E. Rose, L.L.C.

Bruce McDowell, Tazewell, Tennessee, appellee, pro se.

Harold G. Jeffers and Jim Terry, Oneida, Tennessee, for appellees Penny Caylor, Brian Keith Brock, and James D. Yonts.

Judge: HOLDER

The plaintiffs filed a lawsuit seeking a declaration that they have "a right-of-way easement" granted by deed and requesting the removal of encroachments by the defendants. The trial court granted the requested relief and held that the defendants failed to prove their claim of adverse possession. The trial court entered two consecutive "final" judgments. The defendants filed a motion to alter or amend the judgment within thirty days of entry of the second judgment. The plaintiffs responded that the defendants' motion was untimely because it was filed more than thirty days after entry of the first judgment. The trial court denied the defendants' motion to alter or amend without expressly ruling that the second judgment was the final judgment. The Court of Appeals concluded that the thirty-day period for filing the motion commenced with the entry of the second judgment and that the motion to alter or amend therefore was timely. The Court of Appeals reversed the judgment of the trial court and held that the defendants' claim of adverse possession was meritorious. We conclude that the first judgment constituted the "final judgment" and commenced the time for filing post-trial motions pursuant to Tennessee Rule of Civil Procedure 59.02. The defendants' motion to alter or amend therefore was untimely, and the Court of Appeals lacked jurisdiction to consider the defendants' appeal. We reverse the judgment of the Court of Appeals and remand to the trial court for dismissal of the case.

http://www.tba2.org/tba_files/TSC/2009/ballr_070909.pdf


JES BEARD v. BOARD OF PROFESSIONAL RESPONSIBILITY

Court: TSC

Attorneys:

Lisa Bowman (on appeal) and Jes Beard (pro se before hearing panel, trial court), Chattanooga, Tennessee, for the appellant, Jes Beard.

Randall J. Spivey, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.

Judge: CLARK

In this direct appeal of a lawyer disciplinary proceeding involving three separate complaints, we are asked to determine whether the trial court correctly affirmed the hearing panel's order suspending attorney Jes Beard from the practice of law for two years. Mr. Beard argues that the hearing panel erred in: (1) denying his motion to sever and continue the scheduled hearing; (2) finding that he violated several disciplinary rules; (3) applying the Rules of Professional Conduct, when those rules took prospective effect after his conduct occurred; (4) denying him the opportunity to present mitigating evidence; and (5) imposing punishment that was not comparable with punishments imposed in similar cases. Mr. Beard also asserts that the trial court erred in granting the Board of Professional Responsibility's motion to quash his subpoena duces tecum and abused its discretion in denying his motion for recusal. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC/2009/beardj_070909.pdf


RAYMOND CLAY MURRAY, JR. v. JES BEARD

Court: TCA

Attorneys:

Alan R. Beard and Jes Beard, Chattanooga, Tennessee, for the Appellant, Jes Beard.

John T. Rice, Chattanooga, Tennessee, for the Appellee, Raymond Clayton Murray, Jr.

Judge: SWINEY

This is the second appeal in a legal malpractice case filed by Raymond Clay Murray, Jr. ("the Client") against Jes Beard ("the Attorney"). In the first appeal, we affirmed the Trial Court's sanction against the Attorney for discovery abuse which prohibited the Attorney from introducing any expert testimony at trial. However, a majority of this Court reversed the Trial Court's issuance of a default judgment as a further sanction against the Attorney. We also affirmed the Trial Court's determination that the amount of the Client's damages totaled $16,697.38. We remanded the case on the sole issue of liability. On remand, both parties filed motions for summary judgment. The Trial Court granted the Client's motion for summary judgment and found the Attorney 100% at fault for the Client's damages. The Trial Court then denied the Attorney's motion for summary judgment, found that motion was filed in violation of Tenn. R. Civ. P. 11, and awarded an additional $1,374.94 in damages. The Attorney appeals raising several issues. We affirm the Trial Court's judgment in all respects.

http://www.tba2.org/tba_files/TCA/2009/murrayr_070909.pdf


STATE OF TENNESSEE V. DEMETRY FITZGERALD CONLEY
With Dissenting Opinion


Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender, and Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, Demetry Fitzgerald Conley.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard and Brooke Grubb, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Demetry Fitzgerald Conley, pled guilty in four separate cases to multiple counts of forgery and theft. In Lincoln County case number S0700004, the defendant pled guilty to two counts of forgery between $500 and $1000 (Class E felony). In Lincoln County case number S0700062, the defendant pled guilty to one count of forgery between $500 and $1000. For these three convictions, the defendant was sentenced to concurrent two-year sentences, with 365 days to serve in the county jail. In Marshall County case number 17437, the defendant pled guilty to thirty-two counts of forgery up to $1000 (Class E felony). In Marshall County case number 17438, the defendant pled guilty to thirty-four counts of forgery up to $1000 (Class E felony), fifteen counts of theft under $500 (Class A misdemeanor), and two counts of theft of property between $500 and $1000 (Class E felony). The court subsequently imposed a sentence of one-year and six-months for each forgery conviction and eleven months and twenty-nine-day sentences for each theft. Based upon the imposition of partial consecutive sentencing, the effective sentence in the two Marshall County cases was six years, with 365 days to serve. The court further ordered that the Marshall and Lincoln County cases be served consecutively to each other for a total effective sentence of eight years, with two terms of 365 days to be served in the local county jail. The balance of the sentence was to be served on community corrections. On appeal, the defendant raises two issues for our review: (1) whether the trial court erred by ordering a sentence of split confinement rather than a full community corrections sentence and whether the sentence of confinement, as imposed, violates Tennessee Code Annotated section 40-35-501(a)(3); and (2) whether the trial court erred in sentencing the defendant to the maximum sentence within the range in the Lincoln County cases based upon the application of enhancement factors in violation of the defendant's Sixth Amendment rights. Following review, we affirm the judgments of the trial court with the following exceptions: 1) remand for entry of corrected judgments as identified supra; and 2) remand for resentencing with regard to the two Class E felony thefts in Marshall County case number 17438 as discussed infra.

http://www.tba2.org/tba_files/TCCA/2009/conleyd_070909.pdf

WITT dissenting
http://www.tba2.org/tba_files/TCCA/2009/conleyd_DIS_070909.pdf


MACK TRANSOU v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mack Transou, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa S. Roberge, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Mack Transou, appeals the Madison County Circuit Court's dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/transoum_070909.pdf


TODAY'S NEWS

Legal News
Politics
Upcoming
Correction
TBA Member Services

Legal News
Knox charter proposal would allow firing of law director
At a meeting yesterday, Knox County Commissioners proposed changing the county charter to make the law director an appointed rather than elected official, and subject him to dismissal by the mayor at any time with or without cause, or by the commission for fraud, malfeasance or other ethical violation. Supporters of the proposal say recent events involving the current law director have shown the need for this authority. If at least two thirds of the commission approves the proposal, an amendment could be placed on the next county or state election ballot.
WBIR-TV has the story
Gibson Co. ordered to up juvenile court clerk pay
The Tennessee Supreme Court has ruled that Gibson County will have to increase its juvenile court clerk's salary and give back pay dating to 2002. The clerk, Lee Hayes, had filed suit in 2007 seeking the back pay and salary increase based on a new state law at the time that mandated pay for county officers be based on the size of the county they serve.
Read more in the Jackson Sun
Eason to chair senior lawyer panel for bar presidents
Former TBA President Marcy Eason will moderate a panel at the National Conference of Bar Presidents annual meeting July 31. The NCBP meets during the American Bar Association's annual meeting July 30- Aug. 4. The session will cover how bar associations can tap into the talent pool of senior lawyers, as well as the challenges that aging professionals can present to the practice of law.
Find out more about the ABA 2009 Annual Meeting
Jackson Madison bar elects new officers
The Jackson-Madison County Bar Association has elected new officers for the 2009-2010 bar year. Todd D. Siroky with Rainey, Kizer, Reviere & Bell PLC takes over as president from William F. Kendall with Waldrop & Hall PA, who now assumes the role of past president. Jody S. Pickens, an assistant district attorney general for the 26th Judicial District, is vice president. Betsy Hesselrode with Freed-Hardeman University begins duties as secretary and Kandi Kelley Collins, an assistant public defender for the 26th Judicial District, takes over as treasurer. All are from Jackson.

Chattanooga lawyer sued for harassment
A shareholder at the Chattanooga firm of Chambliss, Bahner and Stophel PC who focuses his practice on sexual harassment investigations and prevention has been sued by a local waitress who claims he fondled and belittled her. The suit asks for $500,000 for physical, mental and emotional damages. The lawyer was prosecuted criminally for the incident and received six months of probation.
The Times Free Press reports
Cumberland Co. bar has new president
Crossville lawyer Caroline Knight is the new president of the Cumberland County Bar Association. Knight, a solo practioner, earned her law degree from New York's Pace University in 2006.

Politics
Election for Memphis mayor in limbo
Memphis Mayor Willie Herenton is packing his belongings, but the process to replace him is at a standstill. Shelby County Election Commission members say they can't plan a special election because a City Council resolution recognizing a vacancy in the mayor's office is not final. Even if it were, the status of Herenton's resignation is in doubt. On Monday, he rescinded in writing all formal communications regarding his retirement date, which was set for July 11. On Tuesday, he said he would leave office July 30, but did not put the date in writing.
The Commercial Appeal has more
In related news, Jerry "The King" Lawler -- of local and national wrestling fame -- announced yesterday he is going to run for Memphis mayor. In interviews this week, Lawler said Memphis politicians have made the city "a laughingstock" and stressed his experience as a marketer and businessman as proof he would bring valuable skills to the job.
Read more here
Upcoming
Revenue Dept. to host series on tax law changes
The Tennessee Department of Revenue is kicking off its annual seminar series to update tax practitioners and business owners on legislative developments, changes in tax code and pointers to make filing easier. The first event will be held July 28 in Clarksville. Seminars also are being planned in Cookeville on Aug. 17, Johnson City on Sept. 3, Knoxville on Sept. 17 and Murfreesboro on Oct. 20.
Learn more about the events
Correction
An item in Wednesday's TBA Today gave incorrect firm names for some of the new officers in the Tennessee Association for Justice. Middle Tennessee Vice President B. Keith Williams is with the firm of Lannom & Williams; Secretary Kathryn Barnett is with Lieff Cabraser Heimann & Bernstein LLP; at-large board member Bryan Smith is with the Cochran Firm; and at-large board member Bruce Fox is with Fox & Farley.

TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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