Law Day art and essay contest results announced

The Tennessee Bar Association Young Lawyers Division today announced the winners of the 2010 Tennessee Law Day Art and Essay Competitions. The theme of this year's contest was "Law in the 21st Century: Enduring Traditions, Emerging Challenges." It was designed to spark students' thinking about how society can honor long-standing traditions in the law while addressing new issues and situations that might challenge "old ways" of doing things. First place in the essay contest went to Matthew Street, a senior at First Assembly Christian School in Cordova, while the first place art award went to Chihye Kim, a fifth grade student at Cedar Bluff Elementary in Knoxville. Students will receive cash prizes for their winning entries. Look for a display of the entries at the TBA Convention in Nashville next month.

See the winning entries online

TODAY'S OPINIONS
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TIMOTHY TODD v. MTD CONSUMER GROUP ET AL.

Court: TWCA

Attorneys:

Ricky L. Boren, Jackson, Tennessee, for the appellant(s), Timothy Todd.

Michael A. Carter, Milan, Tennessee, for the appellee(s), MTD Consumer Group and Liberty Mutual Insurance Company.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Second Injury Fund.

Judge: BUTLER

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee fell from a platform at work. The injury was accepted by his employer as compensable. After a period of medical treatment, the authorized physicians released the employee to return to work with no permanent impairment or restrictions. The employee sought medical treatment on his own. Ultimately, he had surgery on his back and neck. He filed suit against his employer. Employee had two previous workers' compensation awards. Several months later, he amended his complaint to add the Second Injury Fund as a defendant. After a trial on the merits, the trial court found that the employee had sustained a compensable injury which resulted in an 85% permanent partial disability to the body as a whole. The court apportioned the award according to Tennessee Code Annotated section 50-6-208(b). It then dismissed all claims against the Second Injury Fund, based upon the statute of limitations. It awarded some medical expenses claimed by the employee, but denied others. On appeal, the employee asserts that the trial court erred by dismissing the claim against the Fund, by incorrectly determining the percentage of disability represented by his earlier settlements, and by declining to award all requested medical expenses. Finding no error, we affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/toddt_051310.pdf


BRENDA DUNCAN ALBRIGHT, v. RANDOLPH & SHERRY TALLENT
CORRECTION: A concurring and dissenting opinion is added


Court: TCA

Attorneys:

Lance W. Parr, Athens, Tennessee, for the appellant, Brenda Duncan Albright.

A. Scott McCulley, Knoxville, Tennessee, for the appellees, Randolph and Sherry Tallent.

Judge: FRANKS

Plaintiff brought this action, asserting that defendants were constructing a fence which impacted on her driveway right-of-way, and sought an injunction against the construction of the fence. The Trial Court determined the fence was being constructed on defendants' property and denied plaintiff relief. However, the Trial Court also determined that the fence served no useful purpose, and suggested it was a spite fence. Plaintiff has appealed. On appeal, we affirm the Trial Judge as modified, the modification being that the defendant had testified in the Trial Court that he was building a fence of the same style and character as the fence around the rest of his property, which was a split board type, and would not block plaintiff's view. We modify the Judgment to restrict the defendants to constructing a fence as depicted in the exhibits filed in the Trial Court, i.e., the same type of fence he has constructed around the remainder of his property.

http://www.tba2.org/tba_files/TCA/2010/albrightb_051310.pdf

SWINEY Concurring and Dissenting
http://www.tba2.org/tba_files/TCA/2010/albrightb_CON_051310.pdf


In re: Casen J.

Court: TCA

Attorneys:

Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellant, M. L.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua Davis Baker, Assistant Attorney General, Nashville, Tennessee, for the appellee, the Tennessee Department of Children's Services.

Judge: DINKINS

Father appeals the trial court's termination of his parental rights. Finding that Father was in substantial non-compliance with the permanency plan and that termination was in the child's best interest, the court's decision is affirmed.

http://www.tba2.org/tba_files/TCA/2010/casenj_051310.pdf


IN RE ESTATE OF CLEO SNAPP

Court: TCA

Attorneys:

James R. Wheeler, Jonesborough, Tennessee, for the appellants, Anna Dowd and Ferrell Ervin.

Douglas K. Shults, Erwin, Tennessee, for the appellee, the Estate of Cleo Snapp.

Judge: MCCLARTY

Anne Dowd and Ferrell Ervin filed a motion to intervene and to stay the distribution of the estate of Cleo M. Snapp, claiming they were heirs of the estate. Ms. Dowd asserted that she was the non-marital child of Thomas Ervin, a brother of Ms. Snapp, and Mr. Ervin asserted that his father, Ben Ervin, was the non-marital child of Thomas Ervin. The executrix of the estate responded by filing a motion to deny their claims. After a hearing, the trial court granted the executrix's motion to deny the claims because they were untimely. We affirm.

http://www.tba2.org/tba_files/TCA/2010/cleosnapp_051310.pdf


JOSEPH M. HASKINS, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE OF DREW E. HASKINS, JR., DECEASED v. DREW E. HASKINS, III

Court: TCA

Attorneys:

John P. Konvalinka, Chattanooga, Tennessee, for the Appellant, Drew E. Haskins, III.

R. Wayne Peters and Robin L. Miller, Chattanooga, Tennessee, for the Appellee, Joseph M. Haskins, Individually and as Executor of the Estate of Drew E. Haskins, Jr.

Judge: MCCLARTY

This case in on appeal for the second time after remand for determination of the defendant's request for attorney's fees, costs, and expenses. The defendant challenges the sufficiency of the trial court's award. After reviewing the record, we reverse in part and affirm in part the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2010/haskinsj_051310.pdf


JON HIGDON v. REGIONS BANK

Court: TCA

Attorneys:

Michael L. Powell, Knoxville, Tennessee, for the appellant, Jon Higdon.

Ben H. Thomas, Nashville, Tennessee, for the appellee, Regions Bank.

Judge: MCCLARTY

This appeal concerns a primary lien holder's security interest in certain real property following a foreclosure sale and the obligation of a third-party purchaser of the foreclosed property to remit to the lien holder rents collected after notice of mortgage acceleration. The plaintiff contended that the defendant bank was not entitled to claim priority for any additional indebtedness above the original principal amount stipulated in the Deed of Trust, plus interest and attorney's fees. The plaintiff further alleged that the bank's payment in full of the first mortgage holder's loan constituted a release of this loan and not an assignment. The defendant bank claimed that the plaintiff was liable to it for rent collected by the plaintiff on the property after notice of the mortgage acceleration. The trial court ordered that the defendant bank was not required to release its lien on the property until all of the funds due were paid and that the plaintiff must pay the defendant bank $6,300 in rent payments. We affirm.

http://www.tba2.org/tba_files/TCA/2010/higdonj_051310.pdf


STATE OF TENNESSEE v. GARY VINCENT ELMORE

Court: TCCA

Attorneys:

Rob McKinney, Nashville, Tennessee, for the appellant, Gary Vincent Elmore.

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

Judge: SMITH

The Davidson County Grand Jury indicted Appellant, Gary Vincent Elmore, for one count of statutory rape. Appellant entered a best interest plea to the offense as charged with the provision that he would serve a sentence of one year on probation and that the trial court would hold a hearing to consider his eligibility for judicial diversion. At the hearing, Appellant testified that he had previously been convicted of driving under the influence ("DUI") in Kentucky. His testimony was the only evidence regarding this conviction. Appellant argued that the DUI conviction would be considered a Class C misdemeanor, while the State argued that it should be considered a Class A misdemeanor. A previous Class A misdemeanor would disqualify Appellant from being eligible for judicial diversion. At the conclusion of the hearing, the trial court determined that he was not eligible for judicial diversion because the prior DUI conviction from Kentucky would be considered a Class A misdemeanor in Tennessee. Appellant now appeals the trial court's denial of judicial diversion. We conclude that Appellant's testimony regarding the prior DUI conviction was sufficient proof and that the trial court correctly based its determination of the classification of the Kentucky offense on the elements of the offense as opposed to the accompanying sentence. Therefore, we affirm the trial court's denial of judicial diversion.

http://www.tba2.org/tba_files/TCCA/2010/elmoreg_051310.pdf


STATE OF TENNESSEE v. MARVIN J. HILL

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender, for the appellant, Marvin J. Hill.

Robert E. Cooper, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Knox County Criminal Court jury convicted the defendant, Marvin J. Hill, of first degree premeditated murder, see T.C.A. section 39-13-202 (2003), and abuse of a corpse, see id. section 39-17-312. The trial court imposed sentences of life imprisonment and six years, respectively, and ordered the sentences to be served concurrently for an effective sentence of life in prison. In this appeal, the defendant argues that the trial court should have suppressed bodily fluids obtained from the victim's body as fruit of the defendant's unconstitutionally procured statement, contends that the trial court erred by admitting into evidence telephone calls the defendant placed while in jail and a videotape recording of the victim's body being recovered by authorities, asserts that the trial court should not have ruled that he could be impeached by convictions greater than 10 years old, claims that the trial court erred by permitting the State to argue that the victim had been raped prior to her death, and challenges the sufficiency of the convicting evidence. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/hillm_051310.pdf


THOMAS T. NICHOLSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John E. Eldridge, Knoxville, Tennessee, for the appellant, Thomas T. Nicholson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Russell Johnson, District Attorney General; Frank A. Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Thomas T. Nicholson, appeals the denial of post-conviction relief in the Criminal Court for Loudon County from his conviction upon a plea of nolo contendere to sexual battery by an authority figure, a Class C felony, for which he received a six-year sentence in the Department of Correction. On appeal, the Petitioner contends that he received the ineffective assistance of counsel and that as a result, his plea was not voluntarily, knowingly, or intelligently entered. We hold that the Petitioner received the ineffective assistance of counsel because he was given erroneous advice about release eligibility. We reverse the judgment of the trial court denying post-conviction relief, we vacate the Petitioner's conviction, and we remand the case for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/nicholsont_051310.pdf


STATE OF TENNESSEE v. JONATHAN JASPER SMITH

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Andrew J. Gibbons, Assistant Public Defender, attorneys for appellant, Jonathan Jasper Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Janine Mynatt, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Jonathan Jasper Smith, entered guilty pleas in the Sullivan County Circuit Court to one count of attempting to obtain narcotics by fraud, a Class D felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. Pursuant to the plea agreement, the Defendant received concurrent sentences of two years as a Range I, standard offender, and eleven months twenty-nine days, respectively. In a separate case, the Defendant pled guilty to violation of a habitual traffic offender order, a Class E felony; speeding, a Class C misdemeanor; and failure to show proof of financial responsibility, a Class C misdemeanor. He received an effective sentence of two years for these offenses to be served consecutively to the drug-related cases. The manner of service was left to the trial court's determination. Following an alternative sentencing hearing, the trial court denied probation and all other forms of alternative sentencing. In this appeal as of right, the Defendant contends that the trial court erred in denying him alternative sentencing. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/smithj_051310.pdf


STATE OF TENNESSEE v. KET T. VOUN

Court: TCCA

Attorneys:

Jodie A. Bell, Nashville, Tennessee, for the appellant, Ket T. Voun.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Ket T. Voun, a Cambodian native, was convicted, upon his guilty pleas, of aggravated robbery and facilitation of second degree murder. Following a sentencing hearing, the Davidson County Criminal Court ordered him to serve his eight-year sentence for facilitation of second degree murder in total confinement. He now appeals, arguing that, due to his likely deportation for these crimes, a probationary sentence was warranted. After a review of the record, we affirm the sentencing decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/vounk_051310.pdf


Constitutionality of Requiring Proof of Citizenship When Registering to Vote

TN Attorney General Opinions

Date: 2010-05-13

Opinion Number: 10-66

http://www.tba2.org/tba_files/AG/2010/ag_10_66.pdf

TODAY'S NEWS

Legal News
Flood Impact
Legislative News
Disciplinary Actions
TBA Member Services

Legal News
Martin confirmed as U.S. attorney
The U.S. Senate yesterday unanimously approved the nomination of Nashville attorney Jerry Martin to become the next U.S. Attorney for the Middle District of Tennessee. Martin currently serves as a partner in the Nashville law firm of Barrett Johnston & Parsley. The appointment will become official when President Barack Obama signs a formal order in the next few days, reports the Nashville Post.

Sit-in lawyers honored by Nashville Bar Association
Nashville Bar Association President Jonathan Cole writes in the Tennessean that this year's local Law Day activities will honor those attorneys who defended the rights of lunch counter sit-in demonstrators in Nashville in 1960. Despite public criticism and opposition, Nashville lawyers ensured that protesters had access to the justice system. This year marks the 50th anniversary of the date on which Nashville's lunch counters were officially desegregated.
Read his guest column here
Memphis paralegal accused of unauthorized law practice
Memphis paralegal Myron Bass was in court Wednesday on two charges of impersonating a licensed professional and two counts of unlawful practice of law. Bass listed himself as having done work for several Memphis law firms and the state of Tennessee, as well as being a member of The Paralegal Firm. He is being represented by the Bailey Law Firm.
WMC-TV News 5 has the story
LSC issues final rule on attorneys' fees
The Legal Services Corporation has published a final rule repealing its regulatory prohibition on the claiming, collection and retention of attorneys' fees. The action was taken in accordance with the agency's FY 2010 appropriation legislation, which eliminated the statutory prohibition on fees.
Download the final rule
ABA YLD plans Nashville meeting in 2012
The American Bar Association Young Lawyers Division announced this week that it would hold its Spring 2012 meeting in Nashville. Bar leaders met with officials from the ABA in March and touted the benefits of Nashville as a prospective site. Special thanks goes to ABA YLD District 16 Representative Matt Potempa, who practices law in Nashville, for showcasing the city. Mid-state young lawyers who would like to join the host committee may reach Potempa at matt@potempafirm.com

Attorneys recognized by Tennessee associations
Two attorneys recently were recognized by local associations. The Tennessee Development District Association named Sen. Joe Haynes as its legislator of the year. The honor recognizes Haynes' work promoting the needs of local government. In addition, the Tennessee Chapter of the National Association of Social Workers recognized Linda O'Neal, executive director of the Tennessee Commission on Children and Youth, with its Public Official of the Year Award. The award recognizes her work on behalf of Tennessee's families, children and youth.
The Tennessean reports
Government files first health care legal defense
The Obama administration has filed its first defense of the landmark health care law, saying that Congress acted well within its power to regulate interstate commerce and provide for the general welfare, and that judicial alteration would amount to unwarranted interference with the policymaking authority of Congress.
Nashville NewsChannel 5 has this story from the Associated Press
Flood Impact
FEMA CLE set for next week
The TBA will offer a free one-hour webcast CLE next Thursday featuring disaster recovery legal expert Juli Gallup, who will explain the FEMA application process, the forms Tennesseans must fill out to be eligible for assistance and the appeals process for those dissatisfied with their benefits. This program is accredited for one hour of dual credit and is being offered by the Tennessee Bar Association as a public service for attorneys who are providing pro bono assistance to disaster victims.
Register here
Legislative News
House speaker collapses, reportedly OK
Tennessee House Speaker Kent Williams collapsed during today's floor session but said it was the result of low blood sugar. Williams, who is diabetic, was presiding over the House when he slumped against the lectern and fell to the floor. House members with emergency training tended him and he was able to get up and walk out of the chamber within minutes. He returned about an hour later.
The Memphis Daily News reports

In the moments following Williams' collapse AP reporter Erik Schelzig was escorted out of the chamber by security for trying to take photos of the incident. The Nashville Post has a summary of that dust-up.

Disciplinary Actions
Johnson City lawyer suspended
On May 6, the Tennessee Supreme Court suspended the law license of Johnson City lawyer Alex Vanburen for one year and one day retroactive to the date of a temporary suspension imposed on Sept. 21, 2009. The court found that Vanburen violated disciplinary rules by failing to (1) communicate with clients, (2) diligently represent clients, (3) properly withdraw from representation of clients and (4) respond to the requests for information from the Board of Professional Responsibility.
See the BPR's press release
Colorado lawyer reinstated
Heather M. Gwinn of Boulder, Colo., was reinstated to the practice of law in Tennessee on May 12. She had been suspended in August 2009 for failure to pay annual BPR fees.

TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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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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