Civil rights activist Fred Gray guest at Belmont Law

Activist and noted civil rights attorney Fred Gray told a group at Belmont University last night that growing up in Montgomery, Ala., he saw the problems people suffered on the buses, and decided then to be a lawyer. "I made a secret commitment to myself," he told the crowd. "I was going to finish school and apply to some law school and return to Alabama, pass the Alabama bar, and destroy everything segregated I could find." He did just that, then went on to organize the bus boycotts in Montgomery and represent Rosa Parks, Martin Luther King Jr., and the victims of the Tuskegee Syphilis Study.

Gray was speaking last night for the "Champions for Justice" dinner hosted by Belmont's new law school. The dinner was sponsored in part by the Napier-Looby Bar Association and the Tennessee Alliance for Black Lawyers. Today he appeared on a panel with Dr. Henry Foster, John Seigenthaler Sr., and columnist Dwight Lewis, called "Diagnosing Our Future: Lessons Learned from a Civil Rights Pioneer about Health, Social Justice and Christian Service."

See pictures of the events on TBAConnect

TODAY'S OPINIONS
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RAINES BROTHERS, INC., ET AL. v. BARRY WADE JOHNSON

Court: TWCA

Attorneys:

Clancy J. Covert, Chattanooga, Tennessee, for the Appellant, Raines Brothers, Inc. and National Fire Insurance Company.

William J. Brown and David K. Calfee, Cleveland, Tennessee, for the Appellee, Barry Wade Johnson.

Judge: LEE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for a hearing and report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2010/rainesbrothers_012010.pdf


MBNA AMERICA BANK, N.A. v. DEBORAH L. AKERS

Court: TCA

Attorneys:

Deborah L. Akers, Nashville, Tennessee, Pro se.

R. W. Shick, Jr., Nashville, Tennessee, for the appellee, MBNA America Bank, N.A.

Judge: CLEMENT

This is an appeal from a suit filed pursuant to the Uniform Arbitration Act, Tenn. Code Ann. section 29-5-101, et seq., to enforce an arbitration award for credit card debt. MBNA sought enforcement of a $19,057.97 arbitration award in the General Sessions Court for Davidson County. The general sessions court awarded judgment to MBNA; the defendant appealed to the Circuit Court for Davidson County. The circuit court confirmed the award to MBNA. Defendant appeals. We affirm the circuit court finding that the defendant failed to file an application to vacate the arbitration award within the ninety days following receipt of the notice of the award as required under Tenn. Code Ann. section 29-5-313(b).

http://www.tba2.org/tba_files/TCA/2010/akersd_012010.pdf


WANDA BAKER v. GEORGE FOSTER, DAVID FOSTER, CHARLES FOSTER, TERRY FOSTER, CLIFFORD FOSTER, NANCY SHANNON, PATRICK "JEREMY" KIRK, CAROLYN FOSTER, as Guardian of BLAKE FOSTER, BRANDON FOSTER, ASHLEY FOSTER and LYNDALL L. DANIEL

Court: TCA

Attorneys:

James Stephen King, Memphis, Tennessee, for the Defendants/Appellants, George Foster, David Foster, Charles Foster, Terry Foster, Clifford Foster, Nancy Shannon, Patrick "Jeremy" Kirk, Carolyn Foster, as Guardian of Blake Foster, Brandon Foster, Ashley Foster and Lyndall L. Daniel.

Ricky L. Wood, Parsons, Tennessee, for the Plaintiff/Appellee, Wanda Baker.

Judge: KIRBY

This boundary dispute appeal involves an indispensable and necessary party. The plaintiff and the defendants own adjoining tracts of land in a rural area. After questions about their common boundary arose, the defendants hired a surveyor. The defendants' surveyor concluded that the common boundary lay further west than the plaintiff believed. The plaintiff filed a lawsuit seeking a judicial determination of the proper boundary and an award of damages for timber that the defendants had cut. After some delay, a bench trial was held. During the trial, surveyors for both parties testified that the trial court's resolution of the boundary dispute could affect the owner of the parcel to the east of the defendants. After the trial, the trial court issued an order specifying where the boundaries of the defendants' land should be staked out. After the boundaries were marked in accordance with the trial court's order, the defendants filed a motion to reopen proof, arguing that the boundaries established by the trial court encroached on land owned by the defendants' neighbor to the east. The trial court denied the motion and rendered a final judgment. The defendants appeal. We vacate the trial court's order, concluding that the landowner to the east of the defendant was an indispensable and necessary party and that the trial court erred in declining to join him as a party once the proof indicated that the neighboring landowner could be affected by the resolution of the boundary dispute between the plaintiff and the defendants.

http://www.tba2.org/tba_files/TCA/2010/bakerw_012010.pdf


CITICAPITAL COMMERCIAL CORPORATION v. CLIFFORD COLL

Court: TCA

Attorneys:

Mark G. Arnold and JoAnn T. Sandifer, St. Louis, Missouri, and Joseph R. Prochaska, Nashville, Tennessee, for the appellant, Colonial Pacific Leasing Corporation, Successor in Interest by Merger and Acquisition to CitiCapital Commercial Corporation.

William L. Moore, Jr., Gallatin, Tennessee, and Eddie Taylor, Hartsville, Tennessee, for the appellee, Clifford Coll.

Judge: CLEMENT

A finance company that owned a security interest in a Hyundai excavator appeals the award of a judgment against it in favor of a consumer for violations of the Tennessee Consumer Protection Act. The consumer alleged in his complaint that the creditor and the equipment company that sold the excavator to the consumer had engaged in unfair and deceptive trade practices, because the excavator was defective when it was delivered, it never worked properly, and the defendants failed to make repairs and refused to permit him to trade for another excavator. The financing company denied any wrongdoing and asserted the one-year statute of limitations as an affirmative defense. The equipment company that sold the excavator went out of business and dissolved prior to trial. The only claim tried was the consumer's TCPA claim against the finance company. The trial court denied the finance company's Tenn. R. Civ. P. 50.01 motion for a directed verdict on the statute of limitations defense, finding that the TCPA claim was timely filed within the five-year statute of repose. At the conclusion of the jury trial, the consumer prevailed on his TCPA claim and the trial court awarded treble damages and attorneys' fees based on a finding the finance company "willfully and knowingly" violated the TCPA. We have determined the TCPA claim was barred by the one-year statute of limitations; therefore, the trial court erred in denying the motion for a directed verdict, and the judgment of the trial court is reversed.

http://www.tba2.org/tba_files/TCA/2010/citicapital_012010.pdf


WILLIAM LAURENCE HARDY, M.D. v. STATE OF TENNESSEE, DEPARTMENT OF HEALTH, DIVISION OF HEALTH RELATED BOARDS

Court: TCA

Attorneys:

Stephen Ross Johnson, Wade V. Davies, Knoxville, Tennessee, for the appellant, William Laurence Hardy, M.D.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sue A. Sheldon, Senior Counsel, for appellee, State of Tennessee, Department of Health Division of Health Related Boards.

Judge: STAFFORD

This is an appeal from the decision of the Chancery Court, reversing a decision of an administrative judge. The administrative judge denied Appellant's Motion to Dismiss, but found the parties had entered into two separate agreements and ordered the parties to submit an agreed order to the Medical Board for review. On appeal, the Chancery Court, in reversing the decision of the administrative judge, found that the parties had not entered into any agreements and that the administrative judge could not order the parties to enter into a consent order. Appellant appeals from this decision, contending that the parties have entered into two separate agreements and that due process requires this action be dismissed. Upon review of the record, we find material facts in dispute. Therefore the administrative judge erred in finding that the parties entered into two agreements, and the Chancery Court erred in finding that the parties did not enter into any agreements. Further, we affirm the Chancery Court in finding that the administrative judge erred in ordering the parties to submit an agreed order to the Medical Board after the Appellee withdrew its consent. Affirmed in part, reversed in part and remanded.

http://www.tba2.org/tba_files/TCA/2010/hardyw_012010.pdf


STACY LEE HARRIS v. CHARLEY NICOLE BIRDWELL

Court: TCA

Attorneys:

Fletcher W. Long, Springfield, Tennessee, for the appellant, Charley Nicole Birdwell.

Jennifer Sheppard, Nashville, Tennessee, for the appellee, Stacy Lee Harris.

Judge: DINKINS

Father filed a petition to modify the parties' residential parenting schedule and to hold Mother in contempt of court. Following a hearing the trial court determined that, notwithstanding the fact that Father had not shown a material change of circumstance as alleged in his petition, a material change of circumstance existed and the court accordingly made modifications to the plan. The court declined to hold Mother in contempt. Mother appeals the action of the trial court modifying the residential parenting plan. Father appeals the trial court's finding that he did not show a material change of circumstance and failure to hold Mother in contempt. Finding the record supports the action of the trial court, we affirm.

http://www.tba2.org/tba_files/TCA/2010/harriss_012010.pdf


RYAN HUNTZINGER V. APRIL PARHAM

Court: TCA

Attorneys:

Lawrence D. Sands, Columbia, Tennessee, for the appellant, April Parham.

Stacy S. Neisler, Spring Hill, Tennessee, for the appellee, Ryan Huntzinger.

Judge: STAFFORD

This is a child custody case. Appellant Mother appeals the trial court's grant of primary residential custody to Appellee Father. The parties were never married and custody of the minor child was initially with the mother pursuant to Tenn. Code Ann. section 36-2-303. Father later petitioned the court to establish paternity and to enter a permanent parenting plan, designating Father as the primary residential parent. Because there was no prior custody determination, the trial court correctly applied the comparative fitness and best interest analysis in reaching its decision. Tenn. Code Ann. sections 36-6-101(a)(1), 36-6-101(a)(2), 36-6- 106. Mother appeals. Finding that the evidence does not preponderate against the trial court's decision, we affirm.

http://www.tba2.org/tba_files/TCA/2010/huntzingerr_012010.pdf


DIANNA LYNN TAYLOR v. MICHAEL LYNN TAYLOR
CORRECTION: On the 2nd line of page 1 and the 1st line of paragraph 3 on page 2, "eighteen-year marriage" has been changed to "twenty-four-year marriage"


Court: TCA

Attorneys:

Russell E. Edwards, Hendersonville, Tennessee, for the appellant, Michael Lynn Taylor.

Debrah K. Frizzell, Hendersonville, Tennessee, for the appellee, Dianna Lynn Taylor.

Judge: CLEMENT

Husband appeals the grant of divorce to Wife on the ground of Husband's inappropriate marital conduct following a twenty-four-year marriage, the division of marital property, which favored Wife, and the award of transitional alimony and alimony in solido to Wife. We have determined the judgment should be modified in two ways and affirmed in all other respects.

http://www.tba2.org/tba_files/TCA/2010/taylord_CORR_012010.pdf


GERALD J. TROSPER, SHERRY GARMAN AND MICHAEL GARMAN v. CHEATHAM COUNTY PLANNING COMMISSION AND LEIGH ANN RICHARDS REPRESENTING THOMAS G. DRENON AND JULIANNE B. DRENON

Court: TCA

Attorneys:

William B. Herbert, IV, Nashville, Tennessee, for the appellants, Gerald J. Trosper, Sherry Garman, and Michael Garman.

Benjamin H. Perry, Ashland City, Tennessee, for the appellees, Chatham County Planning Commission and Leigh Ann Richards representing Thomas G. Drenon and Julianne B. Drenon.

Judge: DINKINS

Residents of Cheatham County brought a petition for a common law writ of certiorari seeking review of the County Planning Commission's actions granting a variance from the County's lot ratio regulations and, based on the variance, approving the subdivision of a single parcel into an eight lot subdivision located near their residences. The Chancery Court dismissed the petition finding that the petitioners lacked standing. Finding that petitioners have standing to pursue the writ, we reverse the judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/trosperg_012010.pdf


TODAY'S NEWS

Legal News
Politics
Supreme Court Report
Disciplinary Actions
Career Opportunities
Upcoming
TBA Member Services

Legal News
Johnson's body goes to widow
The widow of executed prisoner Cecil C. Johnson Jr. has been allowed to claim his body, putting an end to more than six weeks of legal wrangling over whether the state had a right to conduct an autopsy on his remains. Before the execution, Johnson filed an objection to an autopsy, citing a religious belief that his body not be cut after death. An appeals court ruled last week that his religious convictions outweighed the state's need to prove a cause of death. The state medical examiner's office decided not to appeal.
Read more in the Tennessean
Anderson County juvenile judge post filled
Brandon K. Fisher was sworn in as interim Anderson County Juvenile Court judge after commissioners approved his appointment on Tuesday morning. Fisher, a 30-year-old Clinton lawyer, was selected from a field of eight candidates that included former Juvenile Judge Patricia Hess. He will serve until Aug. 31 when a special election to fill the remaining four years of former judge April Meldrum's eight-year term is held on Aug. 5. Fisher has announced his intention to run in that election.
Read about Fisher in the News Sentinel
County considers non-lawyer for EEO officer
Hamilton County Commissioner John Brooks believes an attorney should be named as the county's Equal Employment Opportunity officer saying, "...I think this would put us in a terrible position in any lawsuit, and I truly do believe that it is a mistake to hire someone for this position who is not an attorney." The commission was set to consider the appointment of Nicole Gaines today. Gaines, who is not a lawyer, previously worked in human resources at Unum Provident. If approved, she will replace attorney Wade Hinton, who has taken a position on the legal staff of Volkswagen.
Read more on Chattanoogan.com
Circuit clerk's office falls short in state audit
The Carter County Circuit Court Clerk's office received strong criticism in a state audit of the county's accounting records. The clerk's office was one of four to be labeled deficient and was cited for failing to review software audit logs, not posting trust account entries on a timely basis, not recording interest earnings and withdrawals, and not reconciling checking accounts.
The Johnson City Press has more
Judicial nominating panel's head arrested for DUI
Former public defender and current chair of the Tennessee Judicial Nominating Committee, David Bautista, was arrested for driving under the influence last week.
The Elizabethton Star reports
Notary pleads guilty to falsifying documents, bribery
Notary public Angelica Tejeda became the fifth person to plead guilty to federal charges in a scandal that has shaken the Shelby County Clerk's Office. Tejeda confessed to falsifying documents for Hispanic drivers and bribing office workers to process bogus paperwork for car tags and vehicle registration.
The Commercial Appeal reports
Politics
Franklin attorney to challenge Rep. Lincoln Davis
Franklin attorney and former congressional staffer Jack Bailey announced today he would seek the Republican nomination to challenge Democratic U.S. Rep. Lincoln Davis in the 4th Congressional District this year. Bailey, who is a former chief of staff to U.S. Rep. Todd Akin, R-MO, said his campaign would focus on themes of limited government and restoring trust in Congress. He joins Scott DesJarlais, a physician at Grand View Medical Center in Jasper, in seeking the GOP nomination.
The News Sentinel has more
Supreme Court Report
Defendant has right to open voir dire
The U.S. Supreme Court reversed the conviction of a defendant who claimed his Sixth Amendment rights to a public trial were violated when the lower court excluded his uncle from voir dire. The justices found that the trial court did not consider alternatives to closure when it ousted the uncle on grounds that relatives should not be sitting in the same audience as prospective jurors. However, two members of the court dissented from the ruling saying they should have held a full hearing on the issue.
Read more from the ABA Journal
Disciplinary Actions
Three lawyers reinstated
Lawyers Stephen Fitzgerald Jr. of Gainesville, Ga., Danny F. Nicol of Minnetonka, Minn., and Charles E. Reed of Nashville have been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. Fitzgerald was suspended in September 2005. Nicol and Reed were suspended in August 2009.

Memphis lawyer censured
On Jan. 19, Memphis lawyer Lenal Anderson received a public censure from the Board of Professional Responsibility for failing to diligently pursue a client's litigation and failing to keep that client informed about the status of the case. The board found his actions violated Rules of Professional Conduct 1.3 and 1.4.
View the BPR notice
Memphis lawyer censured
On Jan. 19, Memphis lawyer Paul Forrest Craig received a public censure from the Board of Professional Responsibility for failing to draft or file documents establishing a conservatorship for a client's son and failing to effectively communicate with that client regarding the status of the case. The board found his actions violated Rules of Professional Conduct 1.3 and 1.4 and 8.4.
Read the BPR press release
Lexington lawyer censured
On Jan. 19, Lexington lawyer Bradley Glenn Kirk received a public censure from the Board of Professional Responsibility for divulging confidential information about his client in an affidavit. The board found his actions violated Rule of Professional Conduct 1.6.
Read the BPR release
Murfreesboro lawyer censured
On Jan. 19, Murfreesboro lawyer Carl Richard Moore received a public censure from the Board of Professional Responsibility for depositing several thousand dollars of personal funds in his IOLTA trust account and for using money from the account to pay personal and business expenses. The board found his actions violated Rule of Professional Conduct 1.15.
Learn more in the BPR's release
Cleveland lawyer censured
On Jan. 19, Cleveland lawyer Carl F. Petty received a public censure from the Board of Professional Responsibility for conducting himself in a manner that was disrespectful to judges and prejudicial to the administration of justice in the courts of the Tenth Judicial District. The board found his actions violated Rule of Professional Conduct 8.4.
Download the BPR notice
Career Opportunities
Nashville practice seeks law student clerk
The Law Office of Ron Nevin in Nashville is seeking a part-time law clerk to assist the office's bankruptcy paralegal. Job duties include assisting in preparing bankruptcy petitions, motions and other legal documents; client intake; managing client relations; and basic administrative functions. The job is ideal for a law student who is considering a bankruptcy practice. An individual who is taking, or who has taken, a bankruptcy law course is preferred. For more information contact the firm at (615) 244-7708 or fax a resume to (615) 244-9685.
Learn more about this and other jobs posted on TBA JobLink
Upcoming
AWA holds banquet tomorrow
The Association for Women Attorneys (AWA) will hold its annual banquet tomorrow, Jan. 21, at the Racquet Club in Memphis. The event, which will begin at 5:30 p.m., will feature a silent auction, cocktail hour and seated dinner with program. The program will mark the organization's 30th anniversary and include induction of new officers -- including new president Michele Howard-Flynn -- and presentation of law student scholarships. The AWA also will present the Marion Griffin-Frances Loring Award to University of Memphis law professor Janet L. Richards. To reserve tickets please contact Leah Hillis of Burch, Porter & Johnson at lhillis@bpjlaw.com or (901) 524-5000.

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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