October activities will celebrate Pro Bono efforts

Legal organizations across the state have announced legal clinics, CLE programs and other events as part of Celebrate Pro Bono Month activities this October. The TBA-backed celebration is designed to bring attention to the pro bono efforts of Tennessee lawyers, to help Tennessee citizens in need of legal assistance, and to provide training for Tennessee attorneys who take part in pro bono work. "The reality for many in our state is that they cannot afford basic legal services," TBA President Gail Vaughn Ashworth says. "The TBA is committed to providing all lawyers opportunities to provide free legal assistance to these needy Tennesseans."

Learn more about activities planned for Celebrate Pro Bono Month

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.

CLARENCE E. JOHNSON v. TANNER-PECK, LLC, ET AL.

Court: TCA

Attorneys:

William Ernest Norcross, Cordova, Tennessee, for the Appellants, The Estate of William B. Tanner and Tanner-Peck, LLC N/K/A Tanner Investment Co., LLC.

George T. Lewis, III, Kristine L. Roberts, Memphis, Tennessee, for the Appellee, Clarence E. Johnson.

Judge: STAFFORD

This is a summary judgment case. The trial court granted summary judgment in favor of the Appellee against his former employer, the Appellant herein. Finding that the Appellee presented sufficient proof to shift the burden of production to the Appellant pursuant to Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008), and that the Appellant failed to satisfy this burden, we affirm the grant of summary judgment. Because the trial court's order denying the Appellants' motion to revise the grant of partial summary judgment does not include the trial court's reasons, we cannot determine whether analysis under Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000) was necessary, or whether the trial court otherwise abused its discretion. Consequently, we vacate the trial court's denial of Appellants' motion to revise the grant of partial summary judgment, and remand for further proceedings. Affirmed in part, vacated in part, and remanded.

http://www.tba2.org/tba_files/TCA/2009/johnsonc_092509.pdf


JIMMY MACON v. SHELBY COUNTY GOVERNMENT CIVIL SERVICE MERIT BOARD and SHELBY COUNTY SHERIFF'S DEPARTMENT

Court: TCA

Attorneys:

Ronald C. Wilson, West Memphis, Arkansas, for the Petitioner/Appellant Jimmy Macon

Martin W. Zummach, Germantown, Tennessee, for the Respondents/Appellees Shelby County Civil Service Merit Board and Shelby County Sheriff's Department

Judge: KIRBY

This is an appeal from an administrative hearing on a termination. The plaintiff was a deputy jailer with the sheriff's department. He was arrested and charged with, inter alia, driving under the influence. The subsequent internal investigation by the sheriff's department revealed that, prior to his hire, the deputy jailer had pled guilty to a felony drug charge. The conviction was expunged. On the plaintiff's later application for employment with the sheriff's department and on the background check form, the plaintiff was asked whether he had had any arrests or convictions, including any that had been expunged. The plaintiff answered that he had none. After the internal investigation, the deputy jailer was terminated for violating sheriff's department regulations governing personal conduct, adherence to law, and truthfulness. The deputy jailer appealed his termination to the civil service merit review board which upheld the termination based on violation of the truthfulness regulation. This was appealed to the trial court, which ultimately upheld the termination as well. From this order, the deputy jailer now appeals, challenging the sufficiency of the evidence before the board and arguing that the board's failure to include conclusions of law precludes adequate judicial review. We affirm, finding that the evidence is substantial and material; that the sheriff's department and the civil service board properly considered the expunged conviction; and that the board's failure to include conclusions of law in its decision does not preclude adequate judicial review in this case.

http://www.tba2.org/tba_files/TCA/2009/maconj_092509.pdf


MADDEN PHILLIPS CONSTRUCTION, INC. v. GGAT DEVELOPMENT CORPORATION

Court: TCA

Attorneys:

Scott Andrew Frick, Memphis, Tennessee, for the Appellant, GGAT Development Corporation.

John Willet, Memphis, Tennessee, for the Appellee, Madden Phillips Construction, Inc.

Judge: FARMER

This appeal arises out of a dispute between a contractor and landowner over the parties' duties under a construction contract. Plaintiff/Appellee Madden Phillips Construction, Inc. ("Madden Phillips") filed suit to enforce a mechanics' and materialmen's lien and to recover damages in breach of contract against Defendant/Appellant GGAT Development Corporation ("GGAT"). Madden Phillips' complaint included a claim for damages and attorney's fees pursuant to Tennessee Code Annotated sections 66-34-101 to -703, also known as the Prompt Pay Act of 1991 ("Prompt Pay Act"). GGAT counterclaimed and asserted, inter alia, that Madden Phillips failed to perform its contractual obligations in a "workmanlike and expeditious fashion to coincide with the completion schedule of [GGAT]." The trial court ruled in favor of Madden Phillips. The trial court determined that GGAT wrongfully terminated Madden Phillips from the construction project and refused to compensate Madden Phillips in bad faith. The court further concluded that GGAT's actions constituted a material breach and prevented GGAT from recovering on its counterclaim. The trial court entered judgment in favor of Madden Phillips for damages and attorney's fees in the amount of $88,739.51, plus interest and court costs. We affirm.

http://www.tba2.org/tba_files/TCA/2009/maddenphillips_092509.pdf


STATE OF TENNESSEE EX REL P.A.S. v. L.B., ET AL.

Court: TCA

Attorneys:

Clifford K. McGown, Waverly, Tennessee, for the appellant, L.B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Warren A. Jasper, Senior Counsel, Nashville, for the appellee, the State of Tennessee.

Dan. R. Bradley and Lindsay C. Barrett, Dickson, Tennessee, for the appellee, P.A.S.

Judge: DINKINS

The State, representing the interests of the non-parent custodian of a minor child, filed suit against the Father of the child, seeking child support and medical insurance for the child. Father appeals the grant of custody to the child's step-grandmother, as well as the child support obligation set by the trial court. The State appeals the award of attorney's fees imposed as a sanction, as well as the calculation of retroactive child support. We affirm in part, reverse in part, and remand to the lower court for proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2009/pas_092509.pdf


JOHNNY R. PHILLIPS v. KY-TENN OIL, INC.

Court: TCA

Attorneys:

Johnny V. Dunaway, LaFollette, Tennessee, for Appellant, Johnny R. Phillips.

Stephen A. Marcum, Huntsville, Tennessee, for Appellee, KY-TENN Oil, Inc.

Judge: MCCLARTY

In this action to terminate an oil and gas lease, the plaintiff sought a declaration that the lease had expired and a judgment in the amount of $500,000.00 for slander of title, along with an award of attorney's fees. Following a bench trial, the court dismissed all of the plaintiff's claims with prejudice, declaring the oil and gas lease to remain in full force and effect as to all real property covered by the lease. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/phillipsj_092509.pdf


WIRELESS PROPERTIES, LLC, v. THE BOARD OF APPEALS FOR THE CITY OF CHATTANOOGA, ET AL.

Court: TCA

Attorneys:

John R. Anderson, Robert S. Grot, and Katherine Higgason Lentz, Chattanooga, Tennessee, for the Appellant, Wireless Properties, LLC.

Kenneth O. Fritz, Chattanooga, Tennessee, for the Appellee, City of Chattanooga.

Tracy C. Wooden, Chattanooga, Tennessee, for the Appellee, Verizon Wireless Tennessee Partnership.

Judge: MCCLARTY

The plaintiff filed a petition challenging the grant of a building permit to Verizon Wireless. The decision of the City was affirmed by the Board. After the trial court conducted a hearing, it affirmed and dismissed the petition. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/wireless_092509.pdf


STATE OF TENNESSEE V. ROBERT TAYLOR DOWNEY

Court: TCCA

Attorneys:

Robert T. Bateman, Clarksville, Tennessee, for the Appellant, Robert Taylor Downey.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; John W. Carney, District Attorney General; C. Daniel Brollier Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Montgomery County jury convicted the Defendant, Robert T. Downey, of especially aggravated robbery, conspiracy to commit especially aggravated robbery, aggravated burglary, and reckless endangerment. The Defendant received an effective sentence of twenty-four years in the Tennessee Department of Correction. On appeal, our Supreme Court affirmed the Defendant's convictions, but remanded the case for a new sentencing hearing regarding the propriety of consecutive sentencing. At the resentencing hearing, the trial court again ordered consecutive sentences, imposing an effective sentence of twenty-four years. The Defendant appeals, arguing that the trial court again erred when it ordered consecutive sentencing. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/downeyr_092509.pdf


STATE OF TENNESSEE v. TONY CURTIS HOLMES

Court: TCCA

Attorneys:

James E. Thomas, Memphis, Tennessee, for the appellant, Tony Curtis Holmes.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; William L. Gibbons, District Attorney General; and Amy Weirich and David Pritchard, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Tony Curtis Holmes, was convicted of one count of first degree premeditated murder and one count of attempted first degree premeditated murder, a Class A felony. He was sentenced to consecutive life sentences. On appeal, he contends that the trial court abused its discretion in three areas: failing to grant a mistrial; allowing irrelevant testimony; and allowing hearsay testimony. After careful review, we conclude no error exists and affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/holmest_092509.pdf


THOMAS DAVID WILLIAMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Bud Sharp, McMinnville, Tennessee, (on appeal); Lisa Zavogiannis, McMinnville, Tennessee, (at trial) for the appellant, Thomas David Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Felicia Walkup, Pro Tem District Attorney General; Thomas Miner, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Thomas David Williams, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that trial counsel failed to provide him with discovery until after the guilty plea was entered. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post- conviction court.

http://www.tba2.org/tba_files/TCCA/2009/williamst_092509.pdf


JAMES YOUNG v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David L. Christensen, Memphis, Tennessee, for the petitioner-appellant, James Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, James Young, filed a timely petition for post-conviction relief and two amended petitions for post-conviction relief. He appeals the denial of post-conviction relief, contending that he received ineffective assistance of counsel based on trial counsel's failure to: (1) impeach a State's witness, (2) subpoena an eyewitness to testify, and (3) request a jury instruction on self- defense. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/youngj_092509.pdf


Charter Schools

TN Attorney General Opinions

Date: 2009-09-25

Opinion Number: 09-159

http://www.tba2.org/tba_files/AG/2009/ag_09_159.pdf

TODAY'S NEWS

Legal News
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Harwell Howard bookkeeper indicted for embezzling
The bookkeeper at the Nashville law firm of Harwell Howard Hyne Gabbert & Manner who was accused of taking firm money in August, has been indicted by a Davidson County Grand Jury for embezzling $1,722,064.37. According to the indictment, Claire K. Thurman issued herself checks from February 2006 until June of this year in amounts ranging from about $15,000 to more than $60,000.
NashvillePost.com has the story [subscription required]
Sumner County bar elects new leaders
The Sumner County Bar Association elected new officers this month. They are: President Lance A. Wray, Vice President Beth Garrison, Secretary Chad Long and Treasurer Jay Ingrum with Phillips & Ingrum. All are from Hendersonville except for Ingrum, who is from Gallatin.

Ginsburg out of hospital after precautionary visit
The U.S. Supreme Court's public information office released a positive update on Justice Ruth Bader Ginsburg's condition today, saying she was "released from Washington Hospital Center this morning and plans to be at work at the Court this afternoon." Ginsburg was hospitalized late Thursday afternoon after feeling faint in her chambers, the Court announced. The 76-year-old justice had received an iron sucrose infusion an hour earlier.
Read more from the National Law Journal on Law.com
Land where pink house stood remains undeveloped
The land in New London, Conn. -- where Susette Kelo's pink house stood before it was overtaken by eminent domain -- is a bare field, still undeveloped. Proponents blame the economy for the lack of the promised 3,169 new jobs and $1.2 million a year in tax revenues. "They are getting what they deserve. They are going to get nothing," said Kelo, the lead plaintiff in the landmark property rights case. "I don't think this is what the United States Supreme Court justices had in mind when they made this decision."
WATE.com carried this AP story
Upcoming
Nominate a lawyer for the Margaret Brent Award
The ABA Commission on Women in the Profession is calling for nominations for its 20th annual Margaret Brent Women Lawyers of Achievement Awards, to be presented on Aug. 8, 2010 in San Francisco. The award, established in 1991, recognizes and celebrates the accomplishments of women lawyers who have excelled in their field and have paved the way to success for other women lawyers. Previous winners from Tennessee are Marilyn V. Yarbrough (1991), Margaret L. Behm (1992) and Hon. Martha Craig Daughtrey (2003). The deadline to nominate is Nov. 24.
Learn more about the award and nominate someone here
Seigenthaler to speak on Souter and religious liberty
John Seigenthaler, Tennessean chairman emeritus, will speak on "Justice David Souter, Champion of Religious Liberty" at 7 p.m. Sept. 29, at St. Ann's Episcopal Church, 419 Woodland St., in Nashville. Seigenthaler will reflect on Souter's retirement and the United States Supreme Court. The Nashville chapter of the Americans United for Separation of Church & State is sponsoring the event. For more information, call 615-646-9946.

St. Crispin's Day roast set for Oct. 22
Register now for the St. Crispin's Day celebration, an annual event that roasts Nashville's political leaders. This year's celebration will be held Oct. 22 at Flyte World Dining, 718 Division St. in Nashville.
Register at NashvillePost.com
Disciplinary Actions
Johnson City attorney suspended
On Sept. 21, the Tennessee Supreme Court temporarily suspended the law license of Johnson City attorney Alex Vanburen, pursuant to Section 4.3 of Tennessee Supreme Court Rule 9 for his failure to respond to a complaint of ethical misconduct.
Read the full BPR release
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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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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