Friday, October 30, 2009
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IOLTA salute fitting end to Celebrate Pro Bono Month

Lawyers gathered in Knoxville and Nashville today to celebrate the 25th anniversary of the Interest On Lawyers' Trust Accounts (IOLTA) program. In Nashville at the Tennessee Bar Center some of the original cast involved in the program's inception and implementation were at the luncheon, including Wilson Sims, Justice Frank Drowota and former TBA Executive Director Gil Campbell. In Knoxville, Tennessee Bar Foundation Executive Director Barri Bernstein joined the luncheon gathering. Bernstein has administered the IOLTA program in Tennessee since its beginning.

The Nashville lunch was followed by a CLE program that was also webcast to Tennessee lawyers across the state, explaining the new rules for IOLTA, and detailing how it will begin mandatory participation Jan. 1, 2010. TBF chair Riney Green, Board of Professional Responsibility Counsel Beverly Sharpe and TBA Executive Director Allan Ramsaur discussed the changes for the webcast. You can still view the webcast, which is available free for TBA members. Connected to the IOLTA events, the day wrapped up with legal clinics in Knoxville and Nashville.

Celebrate Pro Bono Month has one day left in it and several events are happening Saturday. "Wills for Heroes" will be offered in Jackson and Gallatin, and legal clinics are set for Chattanooga and Bristol.

See scenes from today's events and learn more
TODAY'S OPINIONS
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EARL MARION GRINDSTAFF v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Brad Lewis Davidson, Newport, Tennessee, for the appellant, Earl Marion Grindstaff.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; James Bruce Dunn, District Attorney General; and Amanda H. Inman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The petitioner, who entered pleas of guilt to five counts of aggravated sexual battery and received an effective sentence of thirty years, filed a petition for post-conviction relief on grounds of ineffective assistance of counsel. The trial court denied relief. The Court of Criminal Appeals affirmed, finding that the petitioner's trial counsel had performed deficiently but concluding that no prejudice resulted. Because the performance of trial counsel did not meet the objective standard of reasonableness and because the petitioner was prejudiced as a result, we grant post-conviction relief, set aside the guilty pleas, and remand for trial.

http://www.tba2.org/tba_files/TSC/2009/grindstaffe_103009.pdf
IN RE BENJAMIN M.

Court: TCA

Attorneys:

Robert W. Rogers, Knoxville, Tennessee, for the appellant, Jessica M.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Douglas Earl Dimond, Senior Counsel; Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Judge: SUSANO

This proceeding was initiated by the Tennessee Department of Children's Services ("DCS") by petition alleging that Benjamin M. ("the Child") was born dependent and neglected within the meaning of Tenn. Code Ann. Section 37-1-102(b) (2005 and Supp. 2009) because his mother, Jessica M. ("the Mother"), abused drugs during her pregnancy. The same petition alleges that Mother's drug abuse constitutes severe child abuse as defined in Tenn. Code Ann. Section 37-1-102 (21) (now renumbered (23) in 2009 Supp.) because it was done with the knowledge that it was causing great bodily harm to the Child based on the Mother's previous experience in giving birth to another child harmed by her drug abuse during pregnancy. The Mother conceded that the Child was dependent and neglected and the juvenile referee entered an order accordingly. The order reserved the issue of whether the same conduct constituted severe child abuse. In a later hearing, the Mother challenged the allegations of severe child abuse, arguing that what she did during her pregnancy could not constitute abuse of a "child" because, according to her, the unborn baby was not a child. The case was initially tried before a referee who made lengthy specific findings of fact and concluded that the Child was the victim of severe child abuse. The parties stipulated to the referee's specific findings of fact at trials before the juvenile court and the trial court, both of which found that the Mother's conduct constituted severe child abuse. The Mother appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/benjaminm_103009.pdf
THOMAS M. GAUTREAUX v. INTERNAL MEDICINE EDUCATION FOUNDATION, INC.

With Dissent

Court: TCA

Attorneys:

Frederick L. Hitchcock and Douglas S. Griswold, Chattanooga, Tennessee, for the Appellant, Internal Medicine Education Foundation, Inc.

John P. Konvalinka and J. Scott McDearman, Chattanooga, Tennessee, for the Appellee, Thomas M. Gautreaux.

Judge: MCCLARTY

This case1 involves the interpretation of a portion of the Tennessee Public Records Act, Tenn. Code Ann. Section 10-7-503. The trial court found that despite the fact the defendant foundation qualified for the statutory exemption set forth in Tenn. Code Ann. Section 10-7-503(d)(1), the entity is subject to the Tennessee Public Records Act because it is the functional equivalent of a public agency. The foundation has appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2009/gautreauxt_103009.pdf

CHARLES D. SUSANO, JR., J., dissenting.
http://www.tba2.org/tba_files/TCA/2009/gautreauxt_DIS_103009.pdf
SHERRILL MARION HEADRICK v. PEGGY IRENE HEADRICK

Court: TCA

Attorneys:

Anne Greer, Knoxville, Tennessee, for the appellant, Peggy Irene Headrick.

Cynthia Richardson Wyrick, Sevierville, Tennessee, for the appellee, Sherrill Marion Headrick.

Judge: SUSANO

In this divorce case, the trial court granted Sherrill Marion Headrick ("Husband") a divorce from Peggy Irene Headrick ("Wife"). As a part of its property division, the court ordered most of the parties' real property sold at auction. After the sale, Wife objected to the sale and moved the court not to confirm it. She sought to reopen the bidding process to allow offers of ten percent above the sales price by new prospective buyers. Following a hearing, the court confirmed the sale. Wife appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/headricks_103009.pdf
ALLISON HOCKER v. STATE OF TENNESSEE

Court: TCA

Attorneys:

J. Randolph Humble and Tracy Jackson Smith, Knoxville, Tennessee, for the appellant, Allison Hocker.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and George H. Coffin, Jr., Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: SUSANO

Allison Hocker ("the Claimant") suffered life-threatening injuries in a violent head-on collision in Loudon County at the intersection of U.S. Highway 70 (referred to herein as "Highway 70" or "70") and U.S. Highway 11 (referred to as "Highway 11" or "11"). She was traveling east on Highway 70 when she missed a sharp right turn in the road at 70's intersection with 11, allegedly because of the poor design of and markings on the roadway, and drove directly into oncoming traffic. In a trial before the Tennessee Claims Commission ("the Commission "), the Claimant proved to the satisfaction of the Claims Commissioner ("the Commissioner") that the intersection was negligently designed, constructed and maintained by the State, but the Claimant was denied recovery because her fault was found to be equal to that of the State. The Claimant's damages, without regard to fault, were found to be $2,877,602.41. The Claimant appeals. We reverse and remand for the entry of a judgment for the Claimant in the amount of $300,000.

http://www.tba2.org/tba_files/TCA/2009/hockera_103009.pdf
RICHARD JOHNSON v. SHAD CARNES

Court: TCA

Attorneys:

Frank Morriss Fly, Murfreesboro, Tennessee, for the appellant, Richard Johnson.

William S. Scott, Colleen Marie Sweeney, Nashville, Tennessee, for the appellee, Shad Carnes.

Judge: COTTRELL

The trial court dismissed plaintiff's allegations of defamation against his former minister based upon the Ecclesiastical Abstention Doctrine. Finding that the letter was inextricably intertwined in discipline and/or expulsion of a church member and determination of the claim will necessitate examination of the grounds of the discipline/expulsion, we affirm.

http://www.tba2.org/tba_files/TCA/2009/johnsonr_103009.pdf
PATRICIA NICHOLSON v. JOHN F. NICHOLSON

Court: TCA

Attorneys:

Aaron Scott Guin, Nashville, Tennessee, for the appellant, John F. Nicholson

Heather R. Knott, Stephen Walker Pate, Murfreesboro, Tennessee, for the appellee, Patricia Nicholson.

Judge: COTTRELL

The parties married after executing a prenuptial agreement. The wife filed for divorce less than a year later. Both parties agreed that the prenuptial agreement should be enforced, but they disagreed as to whether the marital home should be sold and as to their respective ownership rights to a rental check generated by the wife's separate property. After a hearing, the trial court declared the parties divorced pursuant to Tenn. Code Ann. Section 36-4-129, ordered the home sold, and awarded the rental check to the wife. The husband appealed, arguing among other things that the wife violated the prenuptial agreement and that the trial court should have awarded him his attorney fees in accordance with a provision in that agreement. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2009/nicholsonp_103009.pdf
KATHERINE RANGE, ET AL. v. C. M. SOWELL, JR., D.D.S.

Court: TCA

Attorneys:

James L. Weatherly, Nashville, Tennessee, for the appellant, Katherine Range, By Next Friend, Executor/Administrator of the Estate of Katherine Range: Sam Range.

David A. Bates, C. Nicholas Fossett, Columbia, Tennessee, for the appellee, C. M. Sowell, Jr., D.D.S.

Judge: COTTRELL

The son of a nursing home patient claimed that the defendant dentist committed battery against his mother by performing dental work on her without obtaining proper consent from either the mother or from the son in his capacity as her attorney-in-fact. The dentist argued that he had operated under a general consent to medical care that the son executed at the time of his mother's admission to the nursing home, that the mother was not injured by the care he provided, and that the statute of limitations barred the son's claims. The trial court granted summary judgment to the dentist. We affirm the summary judgment, but modify that part of the trial court's award of discretionary costs which held the son personally liable for those costs.

http://www.tba2.org/tba_files/TCA/2009/rangek_103009.pdf
MARY BETH VANCLEAVE, v. REELFOOT BANK

Court: TCA

Attorneys:

Ann Buntin Steiner, Nashville, Tennessee, for the Plaintiff/Appellant Mary Beth VanCleave

David W. White, Kansas City, Missouri, and James M. Glasgow, Jr., Union City, Tennessee, for Defendant/Appellee Reelfoot Bank

Judge: KIRBY

This is a retaliatory discharge case. The plaintiff was employed by the defendant bank. The plaintiff was asked by a customer to open an account in a manner that the plaintiff believed was illegal. The plaintiff refused to do so, and shortly afterward was terminated by the bank. The plaintiff employee filed suit against the bank, asserting claims of common law and statutory retaliatory discharge. After discovery, the bank filed a motion for summary judgment. The trial court granted summary judgment in favor of the bank, finding that the plaintiff failed to state a claim under either theory because the purported violation of the various statutes and regulations cited by the plaintiff employee did not implicate an important public policy or an illegal activity affecting the public health, safety or welfare. The trial court also found the plaintiff employee, in refusing to open the requested account, had no intent to further the public good, but sought only to protect the bank. The plaintiff employee appeals. We reverse, finding that some of the statutory provisions at issue implicate important public policy and can constitute the basis for a retaliatory discharge claim, and that intent to further the public good is not a required element.

http://www.tba2.org/tba_files/TCA/2009/vancleavem_103009.pdf
JEFFREY ADAIR YOUNG v. GARY DAVIS, ET AL.

Court: TCA

Attorneys:

Michael M. Raulston, Chattanooga, Tennessee, for the appellant, Jeffrey Adair Young.

Jeffrey M. Atherton, Chattanooga, Tennessee, for the appellees, Gary Davis and Bradley County.

Judge: SUSANO

After being discharged as the director of emergency management for Bradley County, Jeffrey Adair Young ("the Plaintiff"), filed this suit in chancery court against the county mayor and others. The Plaintiff alleges that the defendants conspired to end his employment through actions that (1) amounted to common law retaliatory discharge and (2) were in violation of the Tennessee Public Protection Act ("the Public Protection Act" or "the Act") codified at Tenn. Code Ann. Section 50-1-304 (2009). A series of filings and orders eliminated all claims except those against the county mayor, Gary Davis, in his official capacity. An amended complaint, again filed in chancery court, added Bradley County as a defendant. Davis and Bradley County will be referred to herein as "the Defendants." The Defendants filed a motion to dismiss on the ground that circuit court had exclusive jurisdiction under Tenn. Code Ann. Section 29-20-307 (2000). The Defendants also filed a motion for summary judgment on numerous bases. The Plaintiff filed a response to the motion as well as his own motion to transfer the case to circuit court pursuant to Tenn. Code Ann. Section 16-1-116 (2009). The chancery court granted the Defendants' motion for summary judgment and dismissed the case, stating that the motion to transfer was rendered moot by its judgment of dismissal. The Plaintiff appeals. We vacate the judgment of the chancery court and remand with instructions to transfer the case, in its entirety, including the Plaintiff's claims against original defendants Dewey Woody and Troy Spence, to circuit court.

http://www.tba2.org/tba_files/TCA/2009/youngj_103009.pdf
STATE OF TENNESSEE v. DEMARIO JOHNSON aka LEO SCOTT

Court: TCCA

Attorneys:

Brett Stein, Memphis, Tennessee, for the appellant, Demario Johnson aka Leo Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William L. Gibbons, District Attorney General; and Alanda Dwyer and Colin Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Demario Johnson, a.k.a. Leo Scott, was convicted of first degree (premeditated) murder and sentenced to life imprisonment. On appeal, he argues that: the evidence was insufficient to support his convictions; the trial court improperly responded to a juror's question; and the trial court erred in admitting photographs into evidence. After careful review, we affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/johnsond_103009.pdf
TODAY'S NEWS
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TBA Member Services
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U of M 2L Diana M. Comes receives O'Connor award
Diana M. Comes, a second-year student at the University of Memphis' Cecil C. Humphreys School of Law, has been awarded the Justice Sandra Day O'Connor Scholarship from the National Association of Women Judges (NAWJ). O'Connor herself presented the award earlier this month when she was in Memphis.
Learn more from the University of Memphis
TBA President-elect Elliott hospitalized after collapse
TBA President-elect Sam Elliott was hospitalized yesterday after becoming unconscious as the result of a fibrillation of the heart probably caused by a chemical imbalance, according to doctors. Elliott, who was attending a luncheon at the time, is at Chattanooga's Erlanger Hospital in good spirits and is being kept into the weekend for tests and observation. The entire TBA "family" sends best wishes for a speedy recovery.
Bass, Berry & Sims to move offices
Bass, Berry & Sims PLC will move its offices to the new Pinnacle at Symphony Place in Nashville, 150 Third Ave. South, Suite 2800, Nashville 37201. The announcement says "Think Halloween is scary? Try getting a bunch of lawyers to move by December 15."
TDLA names officers
The Tennessee Defense Lawyers Association recently named the following officers for 2009-10: President Stephen P. Miller, McDonald Kuhn PLLC, Memphis; President-elect Melanie M. Stewart, Stewart Wilkinson PLLC, Germantown; Secretary-Treasurer Robert A. Crawford Kramer Rayson LLP, Knoxville; and Immediate Past President C. Douglas Dooley, Leitner, Williams, Dooley & Napolitan, Chattanooga. Vice presidents are John W. Barringer Jr., Manier & Herod, Nashville; Catherine E. Dugan, Leitner, Williams, Dooley & Napolitan, Nashville; and James H. Tucker Jr., Manier & Herod, Nashville. Directors are David Scott Bennett, Leitner, Williams, Dooley & Napolitan, Chattanooga; Sarah Reisner, Manier & Herod, Nashville; and Bradford D. Box, Rainey, Kizer, Reviere & Bell PLC, Jackson.
Legal Aid announces new staff
The Legal Aid Society of Middle Tennessee and the Cumberlands announced this week that two new staff attorneys have joined the firm -- Rae Anne Seay and Nikylan B. Knapper. Seay is working in the firm's Columbia office and Knapper is based in Tullahoma.
Arizona high court says metadata is public record
The Arizona Supreme Court has ruled that the state's public records law requires disclosure of metadata embedded in the electronic records. The court ruled in the case of a demoted police officer who wanted access to metadata to see whether notes written by his supervisor were backdated to justify the job action.
ABAJournal.com tells you more
GAO: law school debt comparable but is barrier to diversity
According to this week's report from the Government Accountability Office, tuition and fees at law schools, and the debt load taken on by students, compare favorably with the costs of attending medical school, dental school and veterinary school, and the debt loads of students in schools preparing for those professions. The agency also concludes that differences in academic preparation are the primary barrier to attaining a more diverse legal profession. Recognizing this, the American Bar Association, says President Carolyn Lamm, remains committed to addressing law student debt, to broadening the pipeline and assisting diverse law graduates with success to create a more diverse and inclusive legal profession.
Read Lamm's statement
Passages
Judge George McCrary dies
Bartlett Municipal Judge George McCrary died Thursday night after a battle with cancer. McCrary, 66, was in his second term as one of Bartlett's two municipal judges. He served as the city's prosecutor from 1974-2000. He practiced law for almost 40 years and had an office for his private practice in Bartlett since 1979.
Learn more from the Commercial Appeal
Nashville lawyer John Maddin Jr. dies
Nashville lawyer John K. Maddin Jr., died yesterday at his home of a heart attack. He was 82. After serving in the U.S. Army and the U.S. Navy, he completed undergraduate and law degrees at Vanderbilt University. Visitation is Saturday, Oct. 31, from 12-1:30 p.m. at Mt. Olivet Funeral Home, 1101 Lebanon Pike, with a graveside service to follow at 2 p.m.
NashvillePost.com has 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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