Transactional practice CLE focuses on business formation

Business attorneys can gain the information, tools and tips they need to successfully handle the formation of business entities at the upcoming TennBarU Transactional Practice CLE program, Oct. 22 in Nashville. The six-hour seminar -- sponsored by the TBA's Young Lawyers Division -- will offer an overview of different business entities, with an emphasis on what entities are best for various clients and business plans. The course also will feature a tax attorney discussing the implications associated with various business entities, a presentation on mergers and acquisitions -- including the ethical considerations that arise in M&A work -- and a panel discussion about the conflicts of interests business attorneys may face.

Learn more or register at TennBarU

TODAY'S OPINIONS
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MIKE ALLMAND v. JON PAVLETIC, IND. AND AS MAYOR OF THE CITY OF RIPLEY, TENNESSEE ET AL.

Court: TSC

Attorneys:

Tim Edwards and James F. Horner, Jr., Memphis, Tennessee, for the plaintiff, Mike Allmand.

Edward J. McKenney, Jr., Memphis, Tennessee, for the defendants, Jon Pavletic, Billy Chipman, Billie Anne Hendren, Jimmy Harrison, John Gaines, Robert T. Hightower, Ripley Gas, Water and Wastewater Department, and the City of Ripley; and Henry Clay Shelton, III, Memphis, Tennessee, for the defendant, Ripley Power and Light Company.

Judge: WADE

The United States District Court for the Western District of Tennessee has submitted a certified question of law pursuant to our Rule 23 as to the validity of certain provisions within two separate employment contracts: "Whether a municipal utility board has the authority to enter into a contract with an appointed city official who serves at the will and pleasure of the Board of Mayor and Aldermen whereby the utility board contracts to continue to pay the official's salary for a multi- year time period [8 and 14 years] after the official's employment is terminated." Because it is within our discretion to do so, we have elected to answer the question in a manner designed to fit the facts and circumstances in this particular case. Our conclusion is that neither Ripley Power and Light nor Ripley Gas, Water, and Wastewater, utility boards for the City of Ripley, Tennessee, had the authority to enter into multi-year contracts with Mike Allmand, the former superintendent of the two utilities, or to obligate the City for the payment of salary and benefits as provided by the terms.

http://www.tba2.org/tba_files/TSC/2009/allmandm_082609.pdf

KOCH dissenting
http://www.tba2.org/tba_files/TSC/2009/allmandm_DISS_082609.pdf


JOHN WESLEY GREEN v. EDNA L. GREEN ET AL.

Court: TSC

Attorneys:

Eugene N. Bulso, Jr., Steven A. Nieters, and Emily R. Walsh, Nashville, Tennessee, for the appellants, Edna L. Green and Champs-Elysees, Incorporated.

James D. R. Roberts, Jr. and Janet L. Layman, Nashville, Tennessee, for the appellee, John Wesley Green.

Judge: KOCH

This appeal involves an intra-family dispute over the sale of stock in a closely held corporation. After a stockholder declined to honor her contract to convey her stock, the purchaser filed suit in the Chancery Court for Davidson County to compel the seller to complete the sale. The seller counterclaimed for rescission of the contract under Tenn. Code Ann. section 48-2-122(b)(1) (Supp. 2008). The corporation intervened and filed a counterclaim against the purchaser seeking to recover misappropriated corporate funds. Thereafter, the seller filed a motion for summary judgment on her rescission claim, and the corporation sought a summary judgment on its misappropriation of corporate funds claim. The trial court granted these motions, and then denied the purchaser's motion to file an amended complaint against the seller, the corporation, and others. The purchaser appealed to the Court of Appeals. The Court of Appeals (1) reversed the summary judgment granting the seller's rescission claim because the seller had failed to prove that she had relied on the purchaser's representations when she contracted to sell her stock, (2) reversed the summary judgment granting the corporation's misappropriation of corporate funds claim because of the existence of a factual dispute concerning the purchaser's authority to write the disputed checks, and (3) reversed the trial court's denial of the purchaser's motion to amend his complaint. Green v. Green, No. M2006- 02119-COA-R3-CV, 2008 WL 624860 (Tenn. Ct. App. Mar. 5, 2008). We granted the Tenn. R. App. P. 11 application for permission to appeal filed by the seller and the corporation. While we have determined that the Court of Appeals erred by making reliance a necessary element of claims under Tenn. Code Ann. section 48-1-122(b)(1), we have determined that the appellate court correctly reversed the summary judgments for the seller and the corporation because of the existence of genuine disputes regarding the material facts. We have also determined that the appellate court properly reversed the trial court's denial of the purchaser's motion to amend his complaint.

http://www.tba2.org/tba_files/TSC/2009/greenj_082609.pdf


CASEY BARCLAY, as Next of Kin of ODIS DOYLE BARCLAY, JR., deceased, and on Behalf of the Wrongful Death Beneficiaries of ODIS DOYLE BARCLAY, JR. v. KINDRED HEALTHCARE OPERATING, INC., ET AL.

Court: TCA

Attorneys:

Cameron C. Jehl, Deborah Truby Riordan, Carey L. Acerra and Brain D. Reddick, Little Rock, Arkansas, for the Appellant, Casey Barclay.

F. Laurens Brock, David J. Ward and Alix C. Michel, Chattanooga, Tennessee, for the Appellees, Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., Kindred Nursing Centers East, LLC, Kindred Hospitals Limited Partnership d/b/a Cordova Rehabilitation and Nursing Center, James W. Freeman, Renee Tudor, Harland Bicking and John E. Palmer.

Judge: FARMER

The trial court concluded that decedent's nephew had express oral authority to bind decedent to an optional arbitration agreement with a nursing home. It further determined that the arbitration agreement was not unconscionable. Plaintiff, decedent's son, appeals. We reverse.

http://www.tba2.org/tba_files/TCA/2009/barclayc_082609.pdf


JOSEPH BARNA v. PRESTON LAW GROUP, P.C. ET AL.

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Joseph C. Barna.

C. Bennett Harrison, Jr., and J. Cole Dowsley, Jr., for the appellees, Preston Law Group, P.C., and G. Kline Preston, IV.

Judge: CLEMENT

The plaintiff appeals the summary dismissal of his legal malpractice action against his former attorney. In the Complaint, the plaintiff alleges that the defendants, the attorney and his law firm, represented themselves to be "competent in securities law related matters," and that the defendants breached their duty by failing to utilize the requisite skill and competency while representing him in a claim against a brokerage firm in arbitration before a panel of the National Association of Securities Dealers. The defendants moved for summary judgment, which was supported by the affidavit of the attorney who represented the plaintiff in arbitration. The trial court granted the motion, finding that the plaintiff had failed to present evidence sufficient to create a genuine issue of material fact regarding damages and causation. We have determined that the defendants' motion and supporting affidavit failed to either affirmatively negate an essential element of the plaintiff's claim or establish that the plaintiff cannot prove an essential element of his claim at trial. Having failed to shift the burden of production to the plaintiff, the defendants' motion for summary judgment should have been denied without consideration of the sufficiency of the affidavits of the plaintiff's expert witnesses. Accordingly, we reverse the grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2009/barnaj_082609.pdf

COTTRELL concurring
http://www.tba2.org/tba_files/TCA/2009/barnaj_CON_082609.pdf


THURSTON HENSLEY v. CSX TRANSPORTATION, INC.

Court: TCA

Attorneys:

Gareth S. Aden and Christopher W. Cardwell, Nashville, Tennessee; Randall A. Jordan, Grant Buckley, Karen Jenkins Young and Christopher R. Jordan, St. Simons Island, Georgia; H. Dean Clements, Chattanooga, Tennessee; and Evan M. Tager, Dan Himmelfarb, and Theodore J. Weiman, Washington, D.C., for the appellant, CSX Transportation, Inc.

H. Douglas Nichol, Knoxville, Tennessee, and Joseph D. Satterley, Louisville, Kentucky, for the appellee, Thurston Hensley.

Judge: SUSANO

This case is back before us on remand from the United States Supreme Court "for further proceedings not inconsistent with [its] opinion" in CSX Transportation, Inc. v. Thurston Hensley, 129 S.Ct 2139 (U.S. 2009) (Hensley II). The case was first before us in Hensley v. CSX Transportation, Inc., 278 S.W.3d 282 (Tenn. Ct. App. 2008) (Hensley I). Hensley I was an appeal by CSX Transportation, Inc. ("Railroad"), of a judgment entered on a jury verdict in the amount of $5,000,000 in favor of Thurston Hensley ("Employee"). Employee sued pursuant to the Federal Employees Liability Act ("FELA"), 45 USC sections 51-60 (2008), to recover for asbestosis, a lung disease caused by his exposure to asbestos while working for Railroad some 30 plus years, and toxic encephalophathy, a brain illness caused by exposure to a solvent Employee used for many years. We affirmed the judgment in Hensley I. Of particular significance at this point is our holding in Hensley I that the trial court did not err in refusing to instruct the jury, as requested by Railroad, that Employee's fear of cancer must be "genuine and serious" to be compensable. Hensley II reversed our ruling, and held that "[t]he trial court should have given the substance of the requested instructions." 129 S.Ct. at 2142. Because there is a "reasonable robability" under federal law that the error affected the judgment, we reverse the judgment of the trial court and remand for a new trial limited to the issue of damages.

http://www.tba2.org/tba_files/TCA/2009/hensleyt_082609.pdf


STATE OF TENNESSEE v. DEONTE McBEE

Court: TCCA

Attorneys:

David Christensen, Memphis, Tennessee (on appeal); and William Massey and Lorna McClusky, Memphis, Tennessee (at trial), for the appellant, Deonte McBee.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Paul F. Goodman and Tracye N. Jones, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Deonte McBee, appeals from his convictions of first degree felony murder in the perpetration of robbery; especially aggravated robbery, a Class A felony; and four counts of aggravated robbery, a Class B felony. He was sentenced to life for the murder conviction, to twenty- five years as a violent offender for the especially aggravated robbery conviction, and to twelve years as a Range I offender for each of the aggravated robbery convictions. The aggravated robbery convictions were imposed consecutively to each other and to the murder conviction, and the effective sentence is life plus forty-eight years. In this appeal, the Defendant claims (1) that there was insufficient proof to support the felony murder conviction, (2) that the trial court erred in instructing the jury to consider the murder offense and its lesser included offenses in sequential order, and (3) that the trial court erred in giving a criminal responsibility instruction. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/mcbeed_082609.pdf


STATE OF TENNESSEE v. JAMES EARL McGRIGGS

Court: TCCA

Attorneys:

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, James Earl McGriggs.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, James Earl McGriggs, was convicted of aggravated rape, aggravated kidnapping, aggravated burglary, and aggravated robbery and was sentenced, respectively, to twenty-five years, ten years, three years, and eight years. The trial court ordered that the aggravated rape sentence be served consecutively to the aggravated kidnapping sentence, with all other sentences to be served concurrently, for an effective sentence of thirty-five years. On appeal, the defendant argues that the evidence is insufficient to sustain the convictions. Following our review, we affirm the judgments.

http://www.tba2.org/tba_files/TCCA/2009/mcgriggsj_082609.pdf


TODAY'S NEWS

Legal News
Politics
Passages
Upcoming
TBA Member Services

Legal News
O'Connor to sit on 6th Circuit
Retired U.S. Supreme Court Justice Sandra Day O'Connor plans to sit as a visiting judge on the 6th U.S. Circuit Court of Appeals in Cincinnati later this fall. The court, which hears appeals from Ohio, Kentucky, Michigan and Tennessee, confirmed that O'Connor will join panels on Oct. 13 and 14. With her appointment to the U.S. Supreme Court in 1981, O'Connor became the first female justice. She retired in 2006. Today, at age 79, she remains active in education, law and civic causes.
The AP reports
Legal legacy outlives Kennedy
With his death last night at age 77, U.S. Sen. Ted Kennedy leaves a legal legacy that spans not just decades but touches nearly every major area of the law. As a member and past chair of the Senate Judiciary Committee, Kennedy participated in the nomination hearings for every member of the current Supreme Court except of Justice Sonia Sotomayor and had a hand in shaping debate and policy on civil rights, voting rights, workplace discrimination, immigration reform, judicial nominations and access to the courts.
The Blog of Legal Times reviews his work
Rutherford juvenile court unveils web site
The Rutherford County Juvenile Court recently unveiled a new web site to provide court-related information to the public. The site contains information about the court's dress code, a narrative of what to expect during a day in court and a tour of the facility. The site also offers downloadable versions of relevant legal forms. The Murfreesboro Post reported the news.
Check out the new web site
Paper: state needs to step up DUI efforts
In an editorial today, the Tennessean contends that the state has failed to seriously tackle the problem of driving under the influence. The piece cites a recent study by the Tennessee Bureau of Investigation showing that 21 percent of those arrested for DUI are repeat offenders -- a rate that is far higher than recidivism for robbery or rape. The paper concludes that lawmakers and state officials need to redouble their efforts on treatment and prevention.
Learn more
'Rocky Top' puts A&E in court
Television producers filming for a Knoxville-based story, wanted a "UT feel" for their show, so they used a few bars of the iconic song "Rocky Top." The problem? The song is not in the public domain and the song's authors denied its use. The copyright owners are now suing the network for unlicensed use. Read how various lawyers interpret fair use and how other such suits have fared.
The Tennessean has more
Nashville attorney leaves city post to practice law
The Nashville Post reports today that Paul Ney is leaving his post as head of the city's office of economic and community development to return to private practice. Prior to taking the position in Mayor Karl Dean's administration, Ney served as a general counsel at the federal Defense Department during the Bush administration. He is a former law partner of Nashville attorneys Byron Trauger and Bob Tuke.

Politics
Sasser takes post in Washington
Gray Sasser, a former Miller & Martin attorney and former Tennessee Democratic Party chair, has accepted a position in Washington, D.C., as special assistant to the president of the Export-Import Bank. He was appointed to the post by President Barak Obama. Sasser stepped down from the party chair position earlier this year after a two-year term. While at Miller & Martin in Nashville, he focused his practice on corporate and international law, with an emphasis on mergers and acquisitions, securities and venture capital investments.
Humphrey on the Hill has the scoop
Passages
Knoxville attorney dies
Knoxville lawyer Rick Clark died today after a battle with cancer, according to Criminal Court Judge Mary Beth Leibowitz. Leibowitz made the announcement just a day after jurors found Letalvis Cobbins guilty of first-degree murder in a torture slaying that has drawn considerable media attention. Clark had been one of the first defense lawyers appointed to represent Cobbins but had to give up the case due to his deteriorating health. In eulogizing Clark, Leibowitz said he was an outstanding trial lawyer and a man of enormous courage in the face of illness. Funeral details were not yet available.
Read more from WBIR.com
Upcoming
Barristers set charity golf tournament
The Knoxville Barristers -- the Knoxville Bar Association's organization for young lawyers -- will hold its annual charity golf tournament Friday, Oct. 2, at Landmark Golf Club at Avalon. The entry fee of $85 per player includes box lunch, green fees, cart, range balls, commemorative logo golf shirt, great prizes and a cook-out. For more information contact Mark Castleberry at (615) 637-0203 or visit knoxbar.org/golf_tournament2009.htm for registration and sponsorship forms.

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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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