Court seeks comments on proposed change to ADR rule

The Tennessee Supreme Court today issued an order soliciting comments regarding amendments for its Rule 31. Rule 31 established the Alternative Dispute Resolution Commission and governs the alternative dispute resolution proceedings specified in the rule. The ADR Commission has asked the Court to amend various sections of the rule, specifically Section 9, Standards of Professional Conduct for Rule 31 Neutrals, and Section 11, Proceedings for Discipline of Rule 31 Mediators.

Send your comments before the Oct. 23 deadline to: Clerk Michael W. Catalano, 100 Supreme Court Building, 401 Seventh Ave., North, Nashville, TN 37219-1407.

Read the details of the proposal

TODAY'S OPINIONS
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JES BEARD v. BOARD OF PROFESSIONAL RESPONSIBILITY
CORRECTION appears on page fourteen (14), within third paragraph and first sentence. The date "July 16, 2007" has been changed to "July 16, 2008".


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_CORR_082509.pdf


DEBORRAH BROWNLEE v. GASTROINTESTINAL SPECIALIST, P.C.

Court: TCA

Attorneys:

Archie Sanders, III, Memphis, Tennessee, for the Appellant, Deborrah Brownlee.

Jerry O. Potter and Jennifer S. Harrison, for the Appellee, Gastrointestinal Specialist, P.C.

Judge: STAFFORD

Plaintiff filed this action against defendant after she slipped and fell in defendant's bathroom. Defendant filed a motion for summary judgment asserting that plaintiff could not establish the elements of her claim. The trial court found that plaintiff could not establish the elements of a premises liability claim and granted summary judgment in favor of defendant. Finding that defendant did not meet its burden at the summary judgment stage, we reverse.

http://www.tba2.org/tba_files/TCA/2009/brownleed_082509.pdf


ENTERTAINER 118 AND MERONEY ENTERTAINMENT, INC. D/B/A KEN'S GOLD CLUB v. METROPOLITAN SEXUALLY ORIENTED BUSINESS LICENSING BOARD
CORRECTION On page one, the name of on one of the attorneys for the Appellee has been corrected to LORA BARKENBUS FOX from J. Brooks Fox.


Court: TCA

Attorneys:

John Edward Herbison, Nashville, Tennessee, for the appellants, Entertainer 118 and Meroney Entertainment, Inc. d/b/a Ken's Gold Club.

Lora Barkenbus Fox and Paul Jefferson Campbell, II, Nashville, Tennessee, for the appellee, Metropolitan Sexually Oriented Business Licensing Board.

Judge: BENNETT

An inspector cited an entertainer and the sexually oriented business in which she worked for violating an ordinance governing certain requirements for entertainers and businesses engaging in sexually oriented entertainment. The Metropolitan Sexually Oriented Business Licensing Board upheld the citations and fined the entertainer and the business $500 each. They appealed and the chancery court affirmed. They now appeal to the Court of Appeals. We find that the board did not have authority to assess the fine. We affirm the board and the chancery court's finding that the ordinance was violated, and since the board has authority to impose other sanctions, we remand the matter to the chancery court with instructions to return the matter to the board.

http://www.tba2.org/tba_files/TCA/2009/entertainer118_Corr_082509.pdf


FEATHERFOOT POINT PROPERTY OWNERS ASSOCIATION, INC. v. JIM ZWEIG, ET AL.

Court: TCA

Attorneys:

Ralph D. Golden and Linda Jew Mathis, Memphis, Tennessee, for the Appellant, Featherfoot Point Property Owners Association, Inc.

Carthel L. Smith, Jr., Lexington, Tennessee, for the Appellees, Jim Zwieg and Pauline Zwieg.

Magan N. White, Jackson, Tennessee, for the Appellee, Fred Reinhardt.

Judge: STAFFORD

This appeal arises from Appellant's action to enforce a restrictive covenant in a residential subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case before Appellant completed its presentation of evidence, we reverse.

http://www.tba2.org/tba_files/TCA/2009/featherfoot_082509.pdf


VINTAGE HEALTH RESOURCES, INC. v.JAMES JOSE R. GUIANGAN

Court: TCA

Attorneys:

Elizabeth E. Chance, Memphis, Tennessee, and E. Patrick Lancaster, Olive Branch, Mississippi, for the Plaintiff/Appellant Vintage Heath Resources, Inc.

Maureen T. Holland, Memphis, Tennessee, for the Defendant/Appellee James Jose R. Guiangan

Judge: KIRBY

This appeal involves a breach of an employment agreement. The plaintiff company recruits health care workers from the Philippines to come to the United States to work for its clients. The company recruited the defendant nurse by using written recruitment materials. The nurse signed an employment agreement that differed from the recruitment materials in that one of the benefits listed as "free" in the recruitment materials was not free. Approximately one year into the nurse's three- year term of employment, the nurse resigned. When notified of the nurse's intent to resign, the company's management threatened to report the nurse to immigration officials. Despite the threats, the nurse left the employ of the company. The company then filed the instant lawsuit against the nurse, asserting breach of contract. In his answer, the nurse asserted, inter alia, that the employment agreement violated public policy and was unenforceable because the company's threats constituted involuntary servitude. Although unconscionability was not pled, the nurse was permitted to assert the defense at trial. The trial was bifurcated, with the issue of damages reserved. After the trial, the trial court held that the company's threats constituted involuntary servitude, and that the employment agreement was unenforceable because it was unconscionable and contrary to public policy. The trial court also, sua sponte, enjoined the company in the future from using recruitment materials that differed from the employment agreements and from threatening to report employees to immigration officials. The company appeals. We reverse the holding that the employment agreement is unenforceable because unconscionability was never pled, the employment agreement is not unconscionable, and the agreement is not contrary to public policy. We vacate the injunctive relief as to the recruitment materials and affirm as to the remaining injunctive relief. The cause is remanded for consideration of the plaintiff company's damage claim and the defendant nurse's counterclaims.

http://www.tba2.org/tba_files/TCA/2009/guianganj_082509.pdf


THE CITY OF JACKSON, TENNESSEE v. DAVID HERSH, PROFESSIONAL SPORTS AND ENTERTAINMENT OF TENNESSEE, INC., and PSET, L.P. v. RON BARRY, Individually and in his Administrative Capacities, and CHARLES H. FARMER, Individually and in his Official Capacity as Mayor of the City of Jackson, Tennessee

Court: TCA

Attorneys:

Lewis L. Cobb and Catherine B. Clayton, Jackson, Tennessee for the Plaintiff/Appellant City of Jackson

Randall J. Fishman and C. Barry Ward, Memphis, Tennessee, for the Defendants/Appellees David Hersh, Professional Sports and Entertainment of Tennessee, Inc., and PSET, L.P.

Judge: KIRBY

This appeal addresses whether a judgment is final and appealable. The plaintiff municipality sued the defendant owner of the city's minor league baseball team for breach of contract. The city also sought prejudgment interest and attorney's fees. A consent order was entered allowing the defendants to complete a planned sale of the team to a third party; the third party was to forward the sales proceeds to the court clerk to be held in escrow. The defendants then filed a counterclaim against the city, sounding in both contract and tort, as well as third-party claims against the mayor and a city employee. The contract issues were tried, and the trial court held that the city was entitled to damages and dismissed the defendants' contract counterclaim against the city. The trial court did not address the city's request for prejudgment interest and attorney's fees. The defendants non- suited their remaining claims and an order was entered dismissing the claims on June 11, 2007. The city filed a motion to assess attorney's fees and prejudgement interest, and the defendants filed a motion to release the funds held in escrow. On September 15, 2008, the trial court denied the city's motion for prejudgment interest and attorney's fees, finding that the June 11, 2007 order was a final judgment because the request for prejudgment interest and attorney's fees was not a claim but was instead an amount of the city's recovery of damages. The trial court found that it did not have jurisdiction to consider the city's request for prejudgment interest or attorney's fees because the city failed to file a timely motion to alter or amend the judgment. The issue of the funds held in escrow was not addressed by the trial court. The city now appeals the September 15, 2008 order, arguing that the June 11, 2007 order was not final. We find that the trial court erred in holding that the June 11, 2007 order was a final judgment, and conclude that this Court does not have jurisdiction to hear this appeal. Therefore, we dismiss the appeal and remand the case to the trial court.

http://www.tba2.org/tba_files/TCA/2009/hershd_082509.pdf


REMOTE WOODYARDS, LLC. v. THE ESTATE OF ROMIE NEISLER, ET AL.

Court: TCA

Attorneys:

Stephen L. Hughes, Milan, Tennessee, for the Appellant, Remote Woodyards, LLC.

W. Stanworth Harris, Jackson, Tennessee, for the Appellee, Estate of Romie Neisler.

Ricky L. Wood, Parsons, Tennessee, for the Appellee, James H. Lindsey.

Judge: STAFFORD

This case arises from a dispute over a timber contract. Appellees, through their attorney-in-fact, executed a timber deed in favor of John Jones, which deed was recorded. Mr. Jones then assigned the deed to the Appellant herein, and this assignment was not recorded. When the Appellees discovered that Mr. Jones' checks were insufficient, they re-sold the timber to the third-party defendant. The third party paid value for the timber, and proceeded to cut and remove it. Appellant then filed suit against the Appellees and the third party defendant. The trial court found that Appellant was a bona fide purchaser for value, but declined to award double or treble damages pursuant to Tenn. Code Ann. section 43-28-312. The trial court also relieved the Appellees' attorney-in-fact from liability, and determined that the third party defendant was also a bona fide purchaser and, therefore, not liable. Appellant appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/remotewoodyards_082509.pdf


STATE OF TENNESSEE v. ENRIQUE ALEJANDRO PEREZ

Court: TCCA

Attorneys:

Greg Eichelman, District Public Defender; and Ethel P. Rhodes, Assistant District Public Defender, attorneys for appellant, Enrique Alejandro Perez.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Enrique Alejandro Perez, appeals as of right from his jury conviction in the Hamblen County Criminal Court for aggravated kidnapping, a Class B felony, for which he received a sentence of ten years as a violent offender. On appeal, he argues that (1) the trial court erred in denying his motion to suppress his statement, (2) the trial court erred in denying his motion to strike the jury panel based upon his allegation of an under-representation of Latino persons, (3) the aggravated kidnapping statute, as applied in this case, is unconstitutional because he was not separately indicted for the underlying offense of rape, (4) there is insufficient evidence to support his conviction for aggravated kidnapping, and (5) the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/pereze_082509.pdf


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Editorial: Truth must come out on torture
An editorial in today's Tennessean encourages the U.S. Justice Department investigations into he anti-terrorism programs of the Bush administration detailed in a 2004 inspector general's report. "Past crimes should not go unpunished," the paper says. "It is only through inaction that we would empower our enemies. The time to investigate is now." Nashville lawyer Klint Alexander offers a related opinion, saying "The president, as commander-in-chief and a lawyer, has a duty to order the investigation of these heinous crimes in the interest of national security."

Nashville Arcade P.O. still on study list for closure
Despite strong efforts by those in the legal community and others to illustrate the need for it, Nashville's Arcade Post Office remains on the list for possible closure or consolidation with the Broadway location. Contacts have indicated that a stronger response from the Nashville legal and business community could still save the historic facility used by most Nashville lawyers.
Find out more about the community effort in this letter
TBA's 4ALL public service campaign honored
The Commercial Appeal reported today on awards given the Tennessee Bar Association for expanding access to justice for Tennesseans who cannot afford legal representation. The Tennessee Society of Association Executives named the bar association's 4ALL campaign the best statewide program by an association during the past year. The 4ALL program also won first place for service to the public from the American Bar Association Young Lawyers Division.
The Commercial Appeal has the story [scroll down]
Gonzales to teach class, says all topics fair game
Former U.S. Attorney General Alberto Gonzales is settling into a new career as a visiting professor at Texas Tech University in Lubbock. He will teach his first class -- "Contemporary Issues in the Executive Branch" -- later this week. When it comes to his students, all topics are open for discussion, he says, including his time as former President George W. Bush's White House counsel and as AG, as well as the controversies that arose as a result of his eight years in those jobs.
Law.com carried this story from Texas Lawyer
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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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