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CORRECTION on page 14, last line: "Mrs. Melton" has been substituted for "BNSF"

Court: TCA


William C. Spencer, John G. Wheeler, William C. Spencer, Jr., Memphis, Tennessee and Wayne L. Robbins, Jr., Fort Worth, TX, for the appellant, BNSF Railway Company.

John A. Day, Laura W. Bishop, Brentwood, TN, Don R. Riddle, Houston, TX and Tom R. Letbetter, George R. Payne, Houston TX, for the appellee, Laura Jan Melton.


This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal Employer's Liability Act, 45 U.S.C. section 51 et seq. Appellee filed this case as the widow and personal representative of her husband, who died as a result of injuries he sustained while working for the Appellant. Appellant appeals, arguing that the trial court erred in not granting it a directed verdict, in not granting its motion for new trial, in making several evidentiary rulings during the trial, and in not granting its motions for mistrial. We affirm the trial court's denial of the Appellant's motions for directed verdict, finding that the Appellee presented sufficient proof to create a question for the jury. However, finding that the trial court erred in allowing the Appellant's expert to be questioned on a non-testifying expert's deposition, and that the jury was more likely than not guided by prejudice, passion, and bias, we reverse the trial court's decision denying Appellant's motion for new trial. Further, finding material facts in dispute, we reverse in part and affirm in part the trial court's decision on Appellant's motion for summary judgment. Reversed in part, affirmed in part and remanded.


Court: TCA


Robert S. Stone, Knoxville, Tennessee, for the appellants, Home Health Care of Middle Tennessee, LLC, and B. Fred Allred, III.

C. Crews Townsend and Thomas E. Hayes, Chattanooga, Tennessee, for the appellees, Mitzi Bayne Ruth, executrix of the Estate of Fred W. Bayne; the Estate of Fred W. Bayne; and Home Health Care of East Tennessee, Inc.


Mitzi Bayne Ruth, executrix of the Estate of Fred W. Bayne ("Executrix"), the Estate of Fred W. Bayne ("the Estate"), and Home Health Care of East Tennessee, Inc. ("HHC East") sued Home Health Care of Middle Tennessee, LLC ("the Company") and B. Fred Allred, III ("Allred") seeking, among other things, a declaratory judgment that Fred W. Bayne's death was an event triggering dissolution of the Company. Both plaintiffs and defendants filed motions for partial summary judgment. After a hearing, the Trial Court entered an order granting plaintiffs' motion for partial summary judgment finding and holding, inter alia, that Fred W. Bayne's death was a liquidating event triggering the dissolution of the Company pursuant to the Company's Operating Agreement, and that Allred did not have the right pursuant to the Operating Agreement to purchase Fred W. Bayne's membership interest and continue the Company business. The Company and Allred appeal to this Court. We hold that the Operating Agreement was ambiguous, vacate the award of partial summary judgment, and remand to the Trial Court for further proceedings consistent with this Opinion.


Court: TCA


L. Wearen Hughes, Overton Thompson III and Joshua R. Denton, Nashville, Tennessee, for the appellant, Unarco Material Handling, Inc.

Darrell G. Townsend and Neil M. McIntire, Nashville, Tennessee, for the appellees, William Liberato, Kerry Steel, Inc., Kerry Nagle and Steven Z. Cohen.


The issue on appeal is whether an attorney, while acting in the course of representation of his client when litigation was not pending, has immunity from a claim that he induced the former president of the plaintiff to breach a confidentiality agreement by disclosing confidential information in violation of the agreement. It is undisputed that the attorney negotiated and/or drafted an agreement whereby his client would indemnify the plaintiff's former president if information he provided in a sworn statement taken by the attorney constituted a breach of the confidentiality agreement. The trial court summarily dismissed the claim against the attorney upon the finding that the attorney was immune, even though litigation was not pending when the alleged inducement to breach the contract occurred, because the attorney was acting in his capacity as an attorney for his client. Although litigation was not pending when the attorney negotiated and/or drafted the indemnification agreement and when the attorney took the sworn statement, we find the attorney is immune under the litigation privilege because the attorney was acting in the capacity of counsel for his client, the attorney was acting in good faith for the benefit of his client and not acting for his own self-interest, the conduct was related to the subject matter of the contemplated litigation, and there was a real nexus between the attorney's conduct and the contemplated litigation. We, therefore, affirm the summary dismissal of the claim against the attorney for inducement of breach of contract.


Court: TCCA


Richard A. Spivey, Kingsport, Tennessee, for the appellant, Bradley W. Chapman.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Bradley Wayne Coleman, contests the Sullivan County Circuit Court's denial of alternative sentencing. The defendant pled guilty to the following: (1) in case S52,237- attempted aggravated child abuse and attempted aggravated child neglect, both Class B felonies; and (2) in case S55,040- three counts of especially aggravated sexual exploitation of a minor, Class B felonies; eight counts of aggravated sexual exploitation of a minor, Class C felonies; seven counts of statutory rape, Class E felonies; and possession of drug paraphernalia, a Class A misdemeanor. Pursuant to the agreement, he received effective sentences of ten years in each case, which were to be served consecutively, with the manner of service to be determined by the trial court. Following a hearing, the court ordered that the sentences be served in the Department of Correction. On appeal, the defendant challenges the trial court's denial of alternative sentencing, both probation and community corrections. He further asserts that the trial court committed reversible error by applying inappropriate enhancement factors, as well as by not properly balancing enhancement and mitigating factors. Following review of the record, we conclude no reversible error exists and affirm the sentences as imposed.


Court: TCCA


Randy G. Rogers, Athens, Tennessee, for the appellant, Rocky Joe Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General Pro Tempore; Kenneth Irvine, District Attorney General Pro Tempore; and Jason Demastus, Assistant District Attorney General Pro Tempore, for the appellee, State of Tennessee.

Judge: WITT

The issue presented in this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure is whether the manner of discharge of the jury prior to the jury's reaching a verdict on all counts and the jury's unorthodox consideration of the charged and lesser included offenses prohibit a retrial of the defendant, Rocky Joe Houston, on the charged offenses under the state and federal constitutional protections against double jeopardy. Because the record establishes that the jury reached a verdict of not guilty on the charge of the first degree premeditated murder of Gerald Michael Brown and several lesser included offenses before it was discharged, the defendant stands acquitted of those charges, and his retrial on those offenses is barred by the state and federal constitutions. Regarding the remainder of the charges, the record establishes that the trial court improperly dismissed the jury without declaring a mistrial, without the defendant's consent, and without finding a manifest necessity to terminate the proceedings. Because the improper discharge of the jury operates as an acquittal, the principles of double jeopardy bar the defendant's retrial for any offense in the indictment. Therefore, the judgment of the trial court permitting retrial of the defendant is reversed, and the charges are dismissed.


Court: TCCA


Hershell D. Koger, Pulaski, Tennessee, for the appellant, Brian Milam.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Mike Bottoms, District Attorney General, and J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Bryan Milam, was indicted by the Wayne County Grand Jury for two counts of first degree premeditated murder resulting from the shooting death of his pregnant wife. After successfully appealing his initial conviction for both counts, Appellant was retried and convicted of one count of first degree murder and one count of second degree murder. Appellant was sentenced to life for first degree murder and twenty-three years for second degree murder to be served consecutively. Appellant appeals both convictions. He argues that: (1) the evidence is insufficient to support his convictions; (2) the trial court erred in allowing a State's witness to testify on redirect examination about another witness's statement; (3) the trial court erred in allowing Juror Billy Hill to continue deliberations with the jury; (4) the trial erred in enhancing Appellant's sentence based upon enhancement factors that violate Blakely v. Washington, 542 U.S. 296 (2004); and (5) the trial court was vindictive in imposing consecutive sentences. After a thorough review of the record, we conclude that the evidence is sufficient to support his convictions for both first degree and second degree murder; the trial court properly allowed the State's witness to testify regarding the statement based upon curative admissibility; the trial court properly allowed Juror Hill to continue to deliberate because there was no violation of Appellant's right to trial by jury; the trial court's application of enhancement factors does not violate Blakely; and the trial court's imposition of consecutive sentences was not judicial vindictiveness and is supported by the record. Therefore, we affirm the judgments of the trial court.


Court: TCCA


Dan R. Alexander, Nashville, Tennessee, for the appellant, Jesus Baltazar Diaz Ramos.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jesus Baltazar Diaz Ramos a/k/a Enrique Ruano Diaz, was indicted by the Davidson County Grand Jury for aggravated rape of a child. After a jury trial, Appellant was convicted of the offense as charged in the indictment. As a result, he was sentenced to forty years in incarceration. After the denial of a motion for new trial, Appellant filed a timely notice of appeal. On appeal, Appellant argues: (1) the trial court erred by denying the motion for judgment of acquittal; (2) the trial court erred in "its interpretation and application of the statute and in not charging the jury with only the lesser included offenses;" (3) the trial court erred in admitting statements of the minor victim as excited utterances; (4) the trial court erred by admitting unauthenticated documents into evidence; (5) the trial court erred by admitting hearsay; (6) the trial court erred by failing to charge the jury with rape of a child; and (7) the cumulative effect of the trial court's errors denied Appellant due process of law. After a review of the record, we determine that the evidence was sufficient to support the conviction; that the victim's statements were properly admitted as excited utterances; that the trial court properly admitted a transcript of a recorded telephone call between the father of the victim and Appellant; that the trial court properly charged the jury; and that a defendant can be convicted of committing aggravated rape of a child when the victim is three years and two weeks of age. Consequently, the judgment of the trial court is affirmed.


Court: TCCA


Dawn Deaner, District Public Defender, Emma Rae Tennent (on appeal), Aimee Solway (at trial), Assistant Public Defenders, for the appellant, William Steven Weaver.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jennifer Erin McMillen, Assistant District Attorney General, for the appellee, State of Tennessee.


The Defendant, William Steven Weaver, appeals from the trial court's revocation of his community corrections sentences and resentencing to increased terms for convictions of driving on a suspended license, resisting arrest, and two counts of felony evading arrest. The Defendant argues that the trial court lacked jurisdiction to revoke and resentence him in case 2006-A-38 because his sentence expired before the revocation warrant was issued. The State agrees, as do we. The judgment of the trial court with respect to case number 2006-A-38 is reversed. The judgments with respect to cases 2005-D-3227 and 2006-A-98 are affirmed.


Court: TCCA


Allison M. Rasbury (at trial and on appeal) and E.J. Mackie (at trial), Cookeville, Tennessee, for the Appellant, Mark W. Whittaker.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Randy York, District Attorney General; Beth Willis, Assistant District Attorney General, for the Appellee, State of Tennessee.


A Putnam County jury convicted the Defendant, Mark W. Whittaker, of felony failure to appear, and the trial court sentenced him to two years, with forty-one days to be served in the county jail, and the remainder to be served on probation. On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his conviction; and (2) the trial court erred when it denied his motion to dismiss based on double jeopardy. After thoroughly reviewing the record and applicable authorities, we affirm the trial court's judgment.


Legal News
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Legal News
Court clerk must be elected says judge
Dickson County Chancery Court Judge George Sexton ruled Tuesday that the county's method of appointing general sessions court clerks is not in line with state law, which requires public election every four year. Since 1965, the county has operated under a private law allowing the county commission to appoint the clerk. Sexton found that process to be unconstitutional. At a special meeting Tuesday night, the commission voted 11-1 for the current clerk, Barbara Spann, to serve as interim clerk until the Aug. 5 election.
The Dickson Herald has the story
Memphis legal groups to launch homeless clinic
The Memphis office of Baker, Donelson, Bearman, Caldwell & Berkowitz PC, Memphis Area Legal Services Inc. and the Community Legal Center will launch the Homeless Experience Legal Protection (HELP) program in Memphis next month. The program, first organized by a New Orleans judge, gives legal providers and law firms a platform to offer pro bono clinics specifically for the homeless. It will differ from other pro bono efforts as it will offer assistance with minor criminal issues in additional to civil issues. The clinics will be held monthly at the homeless service center Hospitality Hub, located at 146 Jefferson Ave.
The Memphis Daily News reports
LSC asks for budget increase, issues rule on attorneys' fees
Testifying before a panel of the U.S. House Appropriations Committee, representatives from the Legal Services Corporation thanked Congress for increasing the agency's funding by $30 million in 2010, but said a "crisis in non-federal sources of funding" and substantial increases in requests for services threaten to disrupt its work. The agency received $420 million for 2010. The Obama administration has requested $435 million for 2011.

The LSC also recently published an interim final rule and requested comments on a proposal allowing grantees of the agency to claim, collect and retain attorneys' fees. The rule, which becomes effective on March 15, was promulgated after Congress repealed the prohibition on attorneys' fees last year.
Review the rule or read an explanatory letter to grantees.

ETLAW elects officers
The East Tennessee Lawyers Association for Women has elected new officers and committee chairs. They are: President Wynne du M. Caffey Hall with Paine, Tarwater & Bickers; President-elect Karen G. Crutchfield of Leitner, Williams, Dooley & Napolitan; Recording Secretary Rebecca Franklin with Norton, Spangler & Cramer; Treasurer Betty James; TLAW Member at Large Donna Holt; Membership Chair Sharon G. Lee, Tennessee Supreme Court Justice; CLE Chair Leslie A. Muse with Butler, Vines and Babb; CLE Co-Chair Tasha C. Blakney with Eldridge & Blakney; and Community Outreach Chair Sharon D. Frankenberg. All are from Knoxville. In addition, Dawn Coppock of Strawberry Plains was named IOLTA chair.

Summer associate offers hit 17-year low
Law students concerned about entering the job market now have hard numbers to back up their suspicions. According to statistics released yesterday by the National Association for Law Placement, the median number of offers for summer 2010 associate positions hit a 17-year low. Not surprisingly, acceptance rates hit a historic high of 43 percent. A spokesperson for the association said the numbers represent "an enormous interruption" in "usual recruiting and employment patterns." has the story from The National Law Journal
Field set for Anderson County juvenile judge race
Anderson County Democrats took less than 10 minutes last night to elect by acclamation their candidate for juvenile judge: Brandon Fisher, who is currently serving as interim juvenile judge. He will face Republican nominee Zach Farrar and Independent Phil Harber in the Aug. 5 election.
Read about the candidates in the News Sentinel
Cheatham schools settle case with ACLU
The Cheatham County schools agreed to stop teachers and officials from promoting religion during school hours in a settlement reached with the American Civil Liberties Union of Tennessee and approved by the school board this week. The issue arose after school officials organized religious displays and activities during class time or at other required events.
The Daily News Journal has this story from the Associated Press
Judge reverses order on prisoner co-payments
Circuit Judge Ben W. Hooper II has reversed an earlier order forbidding Cocke County from deducting a medical co-payment from inmates' personal accounts. After Hooper found the practice unconstitutional in January, the county presented evidence of a state law that allows such deductions. In light of the law, and despite his reservations, Hooper said he had no choice but to vacate the earlier order.
The Newport Plain Talk reports
Bradley named Glankler Brown manager
Memphis lawyer William R. Bradley Jr. has been named chief manager of Glankler Brown PLLC. In this role, he will oversee the firm's Management Committee, which addresses firm matters and advises members and staff on administrative issues. Bradley practices in the areas of intellectual property, antitrust, business and construction law. His work in the past has included representing the Elvis Presley and Frank Sinatra estates in intellectual property cases, policing trademark and domain name portfolios, and prosecuting trade secret claims. He earned his law degree from the University of Mississippi in 1983 and was licensed in Tennessee in 1984.

Workers' rights lawyer started career in Memphis
Former Memphis civil rights lawyer, author and union leader Beth Shulman died recently in Washington D.C. of complications from brain cancer. She was 60. Shulman, a former vice president of the United Food and Commercial Workers Union, was a leading advocate for addressing low-wage workers' issues, including minimum wage, paid sick days and paid family leave. She appeared on "The Oprah Winfrey Show," "PBS NewsHour," CNN, ABC's "World News Tonight" and National Public Radio, as well as in scores of articles.
The Washington Post has more
Free gangs symposium offered
Middle Tennessee State University's Forensic Institute for Research and Education will host a free program March 11-13 on the issue of combating youth gangs. The seminar will include presentations on ethnic gangs, the impact of gangs on local communities, and lessons for law enforcement. Those who are interested should register by March 4. The Tullahoma News announced the event.
Visit the conference website
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
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Secure, compliant data backup service now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
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