More than 230 apply for Judicial Nominating Commission

The Administrative Office of the Courts received 236 applications for the Judicial Nominating Commission by the time of the deadline last Friday. Members of the 17-member, newly created commission will review and recommend applicants for vacancies on the state appellate and trial courts for the governor's consideration.

There are 184 attorneys and 52 non-attorney applicants. 171 of them are male; 65 are female. 207 are Caucasian, 21 are African American and 8 are described as "other." The public will have the opportunity to submit comments about the applicants until Aug. 17. Then the speakers of the House and Senate will have 14 days to appoint members to the commission.

Read the list of applicants, along with their applications here

TODAY'S OPINIONS
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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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2009/certlist_080309.pdf


GEORGE H. BADGETT, ET AL. v. ADVENTIST HEALTH SYSTEMS SUNBELT, INC. d/b/a TENNESSEE CHRISTIAN MEDICAL CENTER

Court: TCA

Attorneys:

William L. Moore, Jr., Joe H. Thompson, Gallatin, Tennessee, for the appellants, George H. Badgett and Wife, Mabel Badgett.

Bryan Essary, Nashville, Tennessee, for the appellee, Adventist Health System/Sunbelt, Inc., d/b/a Tennessee Christian Medical Center.

Judge: COTTRELL

In this action concerning alleged malpractice by hospital staff, the trial court found plaintiff's expert affidavit failed to meet the locality test of Tenn. Code Ann. section 2-26-115 where the only similarities proven between the medical communities were population, existence of feeder hospitals and existence of medical school. Finding the trial court did not abuse its discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2009/badgettg_080309.pdf


JACK ANDERSON BONNER, JR., v. JOHNNIE DOBYNS MILLER BONNER

Court: TCA

Attorneys:

John P. Chiles, Kingsport, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for appellant, Jack Anderson Bonner, Jr.

Douglas R. Beier, Morristown, Tennessee, for appellee, Johnnie Dobyns Miller Bonner.

Judge: FRANKS

In this divorce action, the Trial Court granted the parties a divorce and awarded the wife $1,000.00 per month alimony. The husband appealed the award of alimony. We hold the Trial Court did not abuse its discretion in awarding alimony.

http://www.tba2.org/tba_files/TCA/2009/bonnerj_080309.pdf


CITY OF FRANKLIN, TENNESSEE v. MIDDLE TENNESSEE ELECTRIC MEMBERSHIP CORPORATION

Court: TCA

Attorneys:

Douglas Berry, Marc R. Jenkins, Nashville, Tennessee, for the appellant, City of Franklin, Tennessee.

James C. Cope, Josh A. McCreary, Murfreesboro, Tennessee, for the appellee, Middle Tennessee Electric Membership Corporation.

Judge: COTTRELL

The City of Franklin, a member of the nonprofit Middle Tennessee Electric Membership Corporation, sued the corporation to obtain access to its records in order to determine whether it would be in the City's interest to acquire those assets which lay within the City boundaries. The trial court dismissed the suit agreeing with the corporation that the City's request was not in conformance with the statutory requirement of Tenn. Code Ann. section 48-66-102(c) that it be made "in good faith or for a proper purpose." We reverse the trial court's order and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/cityoffranklin_080309.pdf


SPYDELL DAVIDSON v. NADER BAYDOUN

Court: TCA

Attorneys:

Beau E. Pemberton, Dresden, Tennessee, for the appellant, Spydell Davidson.

Darrell G. Townsend and Hugh C. Gracey, Nashville, Tennessee, for the appellee, Nader Baydoun.

Judge: CLEMENT

The issue on appeal is whether the plaintiff's claim for legal malpractice is barred by the statute of limitations, Tenn. Code Ann. section 28-3-104(a)(2). In the Complaint, the plaintiff alleges that his former attorney committed malpractice by failing to present relevant evidence at trial of damages he had sustained, thereby depriving the plaintiff from recovering those damages. The trial court dismissed the Complaint pursuant to Tenn. R. Civ. P. 12.02(6) on the ground the plaintiff's malpractice claim accrued more than a year before he commenced this action. We have determined the plaintiff had knowledge of the defendant's professional negligence during the previous trial, which was more than a year before he commenced this action. The plaintiff, however, did not sustain an actual injury as a result of the defendant's negligence until weeks after the trial, when the trial court's final order was entered, which was within one year of the commencement of this action. A claim for legal malpractice accrues when the plaintiff knows, or should have known, the attorney was professionally negligent and the plaintiff sustains an actual injury as a result of that negligence. These two essential elements did not exist more than one year prior to the commencement of this action; thus, the plaintiff's claim for legal malpractice did not accrue more than one year prior to the commencement of this action. Accordingly, we reverse the dismissal of the Complaint.

http://www.tba2.org/tba_files/TCA/2009/davidsons_080309.pdf


EAST RIDGE DENTAL CENTER, INC., and DREW SHABO, DDS., v. JOSEPH D. PRINCE, DDS.
CORRECTION Mr. Gautreauxs' name was misspelled again


Court: TCA

Attorneys:

John P. Konvalinka and Thomas M. Gautreaux, Chattanooga, Tennessee, for appellant, Joseph D. Prince, DDS.

L. Blair Bennington, Chattanooga, Tennessee, and James F. Logan, Jr., Cleveland, Tennessee, for appellees, East Ridge Dental Center, Inc., and Drew Shabo, DDS.

Judge: FRANKS

Plaintiffs sued the defendant, alleging breach by defendant of the contract with defendant to purchase his dental practice. Included in the agreement was a restrictive covenant not to compete. Following an evidentiary hearing, the Trial Court held that the $75,000.00 that was paid for the restrictive covenant should be returned to the plaintiffs under the theory of unjust enrichment, because the covenant was not enforceable. On appeal, we hold that defendant abided by the terms of the restrictive covenant for five of the seven years that the covenant covered and, as a matter of equity, the Judgment of the Trial Court should be reduced proportionately.

http://www.tba2.org/tba_files/TCA/2009/eastridge_CORR_080309.pdf


MAURICE EDWARD HUGHLEY v. STATE OF TENNESSEE, ET AL.

Court: TCA

Attorneys:

Maurice Edward Hughley, Lexington, Kentucky, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Arthur Crownover II, Senior Counsel, for the appellees, State of Tennessee and Candace Whisman.

Judge: COTTRELL

A former inmate filed for a declaratory order challenging the Department of Correction's ("Department") calculation of his expired sentence. The trial court granted the Department summary judgment finding that the petitioner inmate failed to sufficiently rebut the affidavit filed by the Department explaining in detail the calculation of his sentence. We affirm.

http://www.tba2.org/tba_files/TCA/2009/hughleym_080309.pdf


STATE OF TENNESSEE ex rel SAMELBA P. LEWIS (ROBINSON) v. T. J. ROBINSON, III

Court: TCA

Attorneys:

T. J. Robinson, III, West Palm Beach, FL, pro se

Robert E. Cooper, Jr., Attorney General and Reporter; Warren A. Jasper, Senior Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

In this post-divorce proceeding, the father claims that his child support obligation should have been reduced due to his health and financial circumstances. The chancellor confirmed the child support referee's recommendation to deny the father's petition, finding that the father failed to file a timely request for a hearing before the chancellor following the hearing before the referee. We affirm.

http://www.tba2.org/tba_files/TCA/2009/lewiss_080309.pdf


STATE OF TENNESSEE ex rel JANET MORROW v. JERRY N. MORROW, JR.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Warren A. Jasper, Senior Counsel, Nashville, TN, for Appellant

Randy Hillhouse, Lawrenceburg, TN, for Appellee

Judge: HIGHERS

The State of Tennessee ex rel. Mother filed a petition to modify the parties' parenting plan. Finding the petition unfounded, the chancery court ordered Mother to pay Father's attorney fees. However, upon learning that Mother could not be required to pay such fees, the chancery court assessed Father's attorney fees against the State. We reverse.

http://www.tba2.org/tba_files/TCA/2009/morrowj_080309.pdf


DAVID RAMEY, FORMER PERRY COUNTY SHERIFF v. PERRY COUNTY, TENNESSEE

Court: TCA

Attorneys:

Tommy Ethen Doyle, Linden, Tennessee, and Douglas Thompson Bates, Centerville, Tennessee, for the appellant, Perry County, Tennessee.

Ernest Wilson Williams, Franklin, Tennessee, for the appellee, David Ramey.

Judge: BENNETT

The sheriff of Perry County sued the county mayor under Tenn. Code Ann. section 8-20-101 seeking additional employees, equipment, and vehicles to properly perform his duties. The trial court ordered the county to provide the sheriff's office with funding for two additional deputies as well as gasoline, equipment, and uniforms. We have concluded that the trial court erred in ordering the county to fund two new road deputies and in authorizing expenditures to support road deputies. The evidence supports the need for one new detention officer and a part-time detention officer. We remand for a hearing on the reasonableness of the attorney fee award.

http://www.tba2.org/tba_files/TCA/2009/rameyd_080309.pdf


ROB RENNELL v. THROUGH THE GREEN, INC., ET AL.

Court: TCA

Attorneys:

Joseph A. Woodruff, Nashville, Tennessee, and P. Edward Schell, Franklin, Tennessee, for the appellant, Rob Rennell.

Gregory D. Smith, Elizabeth H. Ferguson, and Lauren Paxton Roberts, Nashville, Tennessee, for the appellee, John Doerr.

Judge: CLEMENT

This is the second appeal arising from the liquidation of a closely held corporation. The matters at issue in this appeal concern a claim, which was not ruled upon in the first trial of this matter, by a minority shareholder for breach of fiduciary duty against the majority, controlling shareholder. After this court resolved all issues on appeal in the first appeal and remanded the case back to the trial court, one claim - for breach of fiduciary duty - remained unresolved. On remand, the parties moved to resolve the breach of fiduciary duty claim based upon the transcript of the evidence in the first bench trial; thus, no additional evidence was introduced on remand. Thereafter, the trial court dismissed the plaintiff's claim for breach of fiduciary duty against the controlling shareholder, John Doerr, upon the finding the "Court of Appeals has already determined the actions of the Doerrs were in furtherance of the interests of Through the Green, Inc, . . . and therefore this court cannot conclude that there was a separate breach of fiduciary duty owed to [the plaintiff] by . . . John Doerr." Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/rennellr_080309.pdf


HARRY SKIPPER, et ux v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert L. Huskey, Manchester, TN, for Appellant

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, Senior Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

Mr. Skipper filed a claim with the Tennessee Claims Commission, alleging that Tennessee Department of Transportation snow plow operator Dennis Burns crossed the center line, striking him. Mr. Burns became ill with cancer, and his deposition was scheduled three times before it was successfully taken. Following Mr. Burns' deposition, Mr. Skipper failed to advance his claim for a period of one year, and the Claims Commission dismissed his claim pursuant to Tennessee Code Annotated section 9-8-402(b). Mr. Skipper sought relief from the dismissal pursuant to Tennessee Rules of Civil Procedure 6.02, 59, and 60.02. Mr. Skipper's counsel claimed that he failed to act in order to allow Mr. Burns time to recover, so that he could testify live at trial. He further stated that it was his understanding that the State would contact him once such recovery was made. The Claims Commission denied Mr. Skipper relief from the order of dismissal, and Mr. Skipper appealed to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/skipperh_080309.pdf


TIMMY SYKES ET AL. v. CHATTANOOGA HOUSING AUTHORITY ET AL.

Court: TCA

Attorneys:

Michael A. Anderson, Chattanooga, Tennessee, for the appellants, Timmy Sykes and Curtis Greene.

Stacie L. Caraway and Larry L. Cash, Chattanooga, Tennessee, for the appellees, Chattanooga Housing Authority and Jeff Hazelwood.

Judge: SUSANO

This opinion replaces one filed on March 31, 2009, which opinion was withdrawn by us "and held for naught" by order of April 21, 2009. The joint complaint filed by the plaintiffs, Timmy Sykes and Curtis Greene, who are African-Americans, actually involves the independent claims of the two plaintiffs against their former employer, the Chattanooga Housing Authority ("the CHA" or "CHA"), and the plaintiffs' supervisor in that employment, Jeff Hazelwood, Chief of the CHA's Public Safety Department, for wrongful termination of their employment and other claims. Sykes, who was a CHA criminal investigator, was terminated by the CHA on September 30, 2004, and Greene, also a criminal investigator, was terminated on January 19, 2005. They each seek damages for wrongful termination, asserting two theories of recovery. Sykes also seeks damages from Chief Hazelwood for alleged defamatory statements made by him and both plaintiffs sue Hazelwood for interfering with their CHA employment. The defendants filed a motion for summary judgment which the trial court granted as to all claims. The plaintiffs appeal. They raise three issues in common and Sykes complains of the trial court's judgment with respect to his defamation claim. We affirm in part and vacate in part.

http://www.tba2.org/tba_files/TCA/2009/sykest_080309.pdf


STATE OF TENNESSEE v. MARQUETTE HOUSTON

Court: TCCA

Attorneys:

Phyllis Aluko (on appeal) and Michael Johnson (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Marquette Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles Bell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Marquette Houston, was convicted of second degree murder and was sentenced as a Range I, violent offender to twenty-five years in the Tennessee Department of Correction. On direct appeal, this court affirmed the defendant's conviction, but remanded the case for resentencing under the 1989 Sentencing Act with consideration of the constitutional restrictions on enhancing the defendant's sentence above the presumptive minimum. On remand, the trial court again sentenced the defendant to twenty-five years in the Tennessee Department of Correction. On appeal, the defendant argues that the trial court erred in imposing an excessive sentence. After a thorough review of the record and the parties' briefs, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/houstonm_080309.pdf


Effective Date of 2009 Tennessee Public Acts, Chapter 585

TN Attorney General Opinions

Date: 2009-08-03

Opinion Number: 09-139

http://www.tba2.org/tba_files/AG/2009/ag_09_139.pdf

County Emergency Agency Establishing Secondary Emergency Operating Center

TN Attorney General Opinions

Date: 2009-08-03

Opinion Number: 09-140

http://www.tba2.org/tba_files/AG/2009/ag_09_140.pdf

Constitutionality of 2009 Tenn. Pub. Acts, ch. 442 relating to transfer of visitation rights

TN Attorney General Opinions

Date: 2009-08-03

Opinion Number: 09-141

http://www.tba2.org/tba_files/AG/2009/ag_09_141.pdf

A Registered Sex Offender's Attendance at School Events Open to the Public

TN Attorney General Opinions

Date: 2009-08-03

Opinion Number: 09-142

http://www.tba2.org/tba_files/AG/2009/ag_09_142.pdf

Preemption of Tenn. Code. Ann. section 66-34-103(a) by the National Housing Act

TN Attorney General Opinions

Date: 2009-08-03

Opinion Number: 09-143

http://www.tba2.org/tba_files/AG/2009/ag_09_143.pdf

Teacher Tenure Requirements Under Tenn. Code Ann. section 49-5-504 (Supp. 2008)

TN Attorney General Opinions

Date: 2009-08-03

Opinion Number: 09-144

http://www.tba2.org/tba_files/AG/2009/ag_09_144.pdf

The Millington Star as a Newspaper of General Circulation

TN Attorney General Opinions

Date: 2009-08-03

Opinion Number: 09-145

http://www.tba2.org/tba_files/AG/2009/ag_09_145.pdf

TODAY'S NEWS

Legal News
Politics
TBA Member Services

Legal News
TBA YLD wins national awards
At the Assembly of the Young Lawyers Division of the American Bar Association in Chicago on Saturday, the Tennessee Bar Association YLD received three Awards of Achievement for Outstanding Activities and Accomplishments during the 2008-2009 Bar Year. The YLD won first place in the "Service to the Bar" category for its mentoring program, first place in the "Service to the Public" for its participation in the 4ALL Public Service Day, and first place in the Comprehensive category.

High court agrees with appeals court: drug search was wrong
At issue in a case decided in July by the Tennessee Supreme Court is whether police had probable cause to search a man who, along with three other men, was observed sitting at a picnic table where cocaine residue was found. The high court agreed with the Court of Criminal Appeals when it reversed a lower court ruling saying officers lacked probable cause to conduct the search. Download the Supreme Court ruling in State of Tennessee v. Marcus Richardson and Justice Koch's dissent.
The Tennessean has more
Law school tuition increases on tap for fall
Tuition increases for students at some of the country's top public law schools could be as high as 20 percent. School administrators say that the unusually large tuition hikes for the coming academic year are largely spurred by cuts in public funding -- with endowment losses, initiatives to improve their schools and pressure to keep up with competing institutions also playing a part.
The National Law Journal reports
Strategy for trying Guantanamo cases may change
Dozens of Guantanamo Bay detainee cases have been referred to federal prosecutors for possible criminal trials in the nation's capital, Virginia and New York City, officials said Monday. The Justice Department's strategy of holding trials in East Coast cities could be a sharp departure from a Pentagon plan to hold all Guantanamo-related civilian and military trials in the Midwest.
National Public Radio carried this AP story
Ford settlement gives lawyers big win, consumers not much
The lawsuit connected to the Ford Explorer rollover scandal of the 1990s turned out to benefit the lawyers and Ford more than the 1 million consumers covered by the class action lawsuit filed in their name. None of the consumers got money, only discount coupons toward new Ford purchases. A report filed with the court in June showed just 75 coupons have been redeemed for a combined $37,500. Sacramento County Superior Court Judge David De Alba awarded lawyers $25 million in fees and expenses after presiding over a 50-day trial without a jury in 2007. The case settled before the judge reached a verdict.
The AP has this story on Law.com
D.C. lawyer Lamm assumes ABA presidency
Carolyn Lamm, an international trade and litigation lawyer at the Washington, D.C. office of White & Case, assumed the presidency of the American Bar Association today during the association's annual meeting in Chicago.
Find out her five initiatives for the year
Politics
City attorney fired, reinstated with chancellor's injunction
Memphis's Mayor Pro Tem Myron Lowery fired City Attorney Elbert Jefferson Friday, but the attorney balked and then refused to leave City Hall. Jefferson, appointed by former mayor Willie Herenton, was eventually escorted out by Lowery's security detail. But Shelby County Chancellor Walter Evans issued an injunction Saturday evening, allowing Jefferson to remain at his post. A hearing on the matter is scheduled for 2 p.m. Wednesday.
The Commercial Appeal tells you more
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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