Friday, May 28, 2010
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Amnesty deadline near for in-house counsel

In-house counsel who are not licensed in Tennessee -- but are employed by a Tennessee organization and working in Tennessee -- have until June 30 to take advantage of new MJP rules that went into effect Jan. 1. When the Tennessee Supreme Court adopted a revised Rule of Professional Conduct 5.5(d)(1) regarding in-house counsel, it also adopted a new Tenn. Sup. Ct. R. 7, Section 10.01 to provide for in-house counsel to be able to register in lieu of obtaining a Tennessee law license. Along with enacting that requirement, the Court also provided a 180-day period, which expires June 30, for in-house counsel to become registered and obtain amnesty for any prior periods when they were practicing law in Tennessee without a Tennessee law license.

Learn more from the Board of Law Examiners
TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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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.
JAMES P. GRIFFITH, ET AL. v. JELLICO COMMUNITY HOSPITAL, INC.

Court: TCA

Attorneys:

Jay E. Kohlbusch, Knoxville, Tennessee, for the appellants, James P. Griffith and Kimberly Griffith.

Daniel T. Swanson, Knoxville, Tennessee, for the appellee, Jellico Community Hospital, Inc.

Robert J. Uhorchuck, Chattanooga, Tennessee, for the appellee, Aramark Clinical Technology Services, Inc.

Judge: MCCLARTY

Employee, whose employer provided services pursuant to a contract with hospital, sustained injuries from a fall while working on hospital’s premises. Employee subsequently filed a negligence action against hospital. The trial court permitted employer to intervene in the suit. Hospital filed a motion for summary judgment, and after an evidentiary hearing, the trial court found that hospital was the principal contractor pursuant to Tenn. Code Ann. section 50-6- 113 and the exclusive remedy rule barred employee's negligence suit. The trial court granted summary judgment in favor of hospital, and employee appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2010/griffithj_052810.pdf
RANDALL D. KISER v. IAN J. WOLFE & CONSUMERS INSURANCE COMPANY

Court: TCA

Attorneys:

N. Mark Kinsman and J. Chad Hogue, Chattanooga, Tennessee, for the appellant, Consumers Insurance Company.

Christopher D. Markel, Chattanooga, Tennessee, for the appellee, Randall D. Kiser.

Judge: MCCLARTY

This interlocutory appeal considers an issue of uninsured motorist coverage following an automobile accident in which Plaintiff Randall D. Kiser was permanently injured. The plaintiff was working within the scope of his employment, driving for a towing company, when his truck was struck by Defendant Ian J. Wolfe's vehicle. The defendant driver tendered his liability policy limits to the plaintiff and is not a party to this appeal. The employer towing company was insured by Defendant Consumers Insurance Company. In anticipation of arbitration for determination of damages and liability, the insurance company moved for partial summary judgment. The trial court denied summary judgment but granted the insurance company permission for an interlocutory appeal to determine two issues, on which we hold: (1) On a policy of vehicle insurance, the statutory requirement of Tenn. Code Ann. section 56-7-1201(a)(2) for a written rejection of uninsured/underinsured motorist benefits or written selection of uninsured/underinsured motorist benefits lower than liability limits is met when the insured signs an application containing a lower selection but neglects to initial a block provided for that purpose; and (2) the insurer bears the burden of proof to show that the insured signed an insurance contract application containing a stated limit of uninsured/underinsured motorist coverage, but once that burden has been met, the insured must raise any issue that the insurer obtained the insured's signature unlawfully under Tenn. Code Ann. section 56-7-1201(a)(2). We vacate the trial court's denial of the insurance company's Motion for Partial Summary Judgment and remand for reconsideration in light of this holding.

http://www.tba2.org/tba_files/TCA/2010/kiserr_052810.pdf
ERIN McLEAN v. JASON ERIC McLEAN

Court: TCA

Attorneys:

Brandy B. Slaybaugh, Knoxville, Tennessee, for the appellant, Erin McLean.

James S. Sharp, Jr., Knoxville, Tennessee, for the appellee, Jason Eric McLean.

Judge: MCCLARTY

This appeal arises from a post-divorce case in which the trial court found the appellant to be in criminal contempt. Procedural deficiencies by the trial court require reversal.

http://www.tba2.org/tba_files/TCA/2010/mcleane_052810.pdf
JAMES E. SCALES v. CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY AND THE METROPOLITAN POLICE DEPARTMENT

Court: TCA

Attorneys:

James E. Scales, Nashville, Tennessee, Pro Se.

Sue B. Cain, Director of Law, Lora Barkenbus Fox and Jeff Campbell, Assistant Metropolitan Attorneys, Nashville, Tennessee, for the appellee, Civil Service Commission of the Metropolitan Government of Nashville and Davidson County, Tennessee.

Judge: DINKINS

Police officer's termination was upheld by the Metropolitan Civil Service Commission which found that he was engaged in prohibited secondary employment, that he had falsified his application for secondary employment, and that he had been dishonest during the Police Department's investigation of his application. Officer sought judicial review of the commission's decision and the trial court affirmed the action of the Civil Service Commission. Finding that the trial court properly entered a final judgment and properly applied the statutory standard for reviewing an agency decision, the court's judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2010/scalesj_052810.pdf
IN RE: SPENCER P. ET AL.

Court: TCA

Attorneys:

Pamela M. Spicer, Nashville, Tennessee, for the appellants, Wendie P. and Ernest P.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Douglas Earl Dimond, Senior Counsel, for the appellees, State of Tennessee.

Judge: DINKINS

Parents in a dependency and neglect proceeding appealed a juvenile court decision finding their six minor children dependent and neglected and awarding custody to DCS. The circuit court dismissed the parents' appeal as untimely; parents appeal the dismissal to this Court. Finding error, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2010/spencerp_052810.pdf
STATE OF TENNESSEE v. JASON A. ALBRIGHT

Court: TCCA

Attorneys:

Charles G. Wright, Jr., (on appeal) and Robin Ruben Flores (at trial), Chattanooga, Tennessee, attorneys for appellant, Jason A. Albright.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; James Michael Taylor, District Attorney General; and David Owen McGovern, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Jason A. Albright, was convicted by a jury of driving under the influence (DUI). Following a sentencing hearing, the trial court sentenced the Defendant for DUI, third offense to eleven months and twenty-nine days incarceration suspended to probation after the service of 120 days in jail. On appeal, the Defendant contends that his prior convictions are invalid and that the trial court erred in denying him the right to attack the validity of the prior convictions at the sentencing hearing. Following our review, we conclude that one of the prior convictions was facially invalid and should not have been used to enhance the Defendant's DUI conviction. Therefore, we direct the trial court to modify the judgment to reflect a conviction for DUI, second offense and to conduct another sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2010/albrightj_052810.pdf
ROBIN BETTS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robin Betts, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Robin Betts, filed a petition for post-conviction relief in the Davidson County Criminal Court alleging that his counsel was ineffective and that his pleas were not knowingly and voluntarily entered. The post-conviction court dismissed the petition without appointing counsel or conducting an evidentiary hearing, finding that the Petitioner did not "present[] a cognizable claim which would entitle him to post-conviction relief." On appeal, the Petitioner challenges the summary dismissal of the petition. The State concedes that the post-conviction court erred in summarily dismissing the petition. Upon review, we reverse the judgment of the trial court and remand for the appointment of counsel and an evidentiary hearing.

http://www.tba2.org/tba_files/TCCA/2010/bettsr_052810.pdf
STATE OF TENNESSEE v. JAMES PAUL KINARD

Court: TCCA

Attorneys:

Dawn Deaner, District Public Defender; and Emma Rae Tennent (on appeal) and J. Michael Engle (at trial), Assistant Public Defenders, for the appellant, James Paul Kinard.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn and Kristen Menke, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James Paul Kinard, was convicted of three counts of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony. He was sentenced to twenty-five years for each Class A felony conviction and twelve years for the Class B felony conviction. The sentences for the Class A felonies were ordered to be served consecutively, and the sentence for the Class B felony was to be served concurrently for an effective seventy-five-year sentence. On appeal, the defendant argues that: the evidence was insufficient to support his convictions; the trial court abused its discretion in finding that the victim's prior allegations of abuse were inadmissible; and the defendant was sentenced improperly. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/kinardj_052810.pdf
Constitutionality of Reducing Compensation of Appointed Counsel for Criminal Defendants

TN Attorney General Opinions

Date: 2010-05-28

Opinion Number: 10-75

http://www.tba2.org/tba_files/AG/2010/ag_10_75.pdf
TODAY'S NEWS
Legal News
Passages
Legislative News
Flood Impact
Upcoming
TBA Member Services
Legal News
Law groups oppose bill to investigate Gitmo lawyers
Several legal organizations are urging leaders of the U.S. Senate Armed Services Committee to resist a provision in a House defense bill that directs the Department of Defense's inspector general to investigate lawyers representing Guantanamo Bay detainees. National Defense Authorization Act for Fiscal Year 2011 requires the inspector general to investigate "the conduct and practices" of Guantanamo lawyers and report back to the House and Senate Armed Services Committees within 90 days. The bill is pending on the House floor where debate and passage are expected this week.
Read the National Law Journal story
Campaign will educate about First Amendment
A new nationwide campaign to build understanding and public support for the First Amendment will launch July 1. The nonpartisan campaign, called "1 for All," is a collaborative effort of educators, artists, journalists, lawyers, librarians and others who believe the public will benefit from a greater understanding of the First Amendment. 1 for All will encourage news media and other organizations to explain the First Amendment and encourage Americans to celebrate and use the freedoms it guarantees: speech, press, religion, assembly and petition.
The First Amendment Center has more
TBA closed Monday
The Tennessee Bar Association offices will be closed on Monday, May 31, in honor of Memorial Day. The TBA will reopen for business June 1.
How to lose your case with bad briefs
In his column for the New York Bar Association News, Judge Gerald Lebovits gives insider tips on "10 ways a lawyers can lose cases on briefs alone." With his tongue in his cheek, Lebovitz advises what not to do, including "Rule No. 5: Being a Lawyer Means Knowing How to Break the Rules. If the case limits your brief to a certain number of pages, feel free to make it five times longer. The longer and more boring your brief, the faster you'll get the judge to deliberate over your brief."
ABAJournal.com connects you
Passages
Paul Hodges services set for Tuesday
Knoxville attorney Paul E. Hodges died May 27 at the age of 78. He earned his law degree from the University of Tennessee. At the time of his death, he was of counsel with Pitts & Brittian PC. Visitation will be Tuesday, June 1, from 4:30 to 6:30 p.m. at First Baptist Concord (9635 Westland Drive). A "Celebration of Life" service will follow. In lieu of flowers, the family requests donations to Legal Aid of East Tennessee.
Legislative News
Budget plan passes committee
Members of the Senate Finance Ways and Means Committee worked until 11 p.m. Thursday night approving budget items line by line, passing a state spending plan out of a key budget committee. The result was a measure that will offer state employees a buyout instead of a bonus, eliminate so-called "pork barrel" projects such as building a $16.1 million fish hatchery in North East Tennessee or keeping up the National Civil Rights Museum in Memphis with a $5 million allotment, and offering nearly $20 million in tax breaks for flood victims.
Read more about it from the Tennessee Report
Flood Impact
Help for flood victims
A toll-free legal assistance line is available for victims of recent storms and flooding in the counties that have been designated as federal disaster areas. Victims facing legal issues may call (888) 395-9297. Victims who qualify for assistance will be matched with Tennessee lawyers who have volunteered to provide free legal help.
Volunteer to help or learn more about recovery efforts
Upcoming
Ode to Otha Celebration set for June 5
Nashville attorney Bill Ramsey's annual Ode to Otha Birthday Celebration will be June 5, from 2 p.m. to 9 p.m. on Sweetbriar Avenue. The annual charity fundraiser celebrates the traditional music of Mississippi sharecropper Otha Turner and raises money to benefit the Second Harvest Food Bank.
Learn more about the event
TBA Member Services
June 'Journal' covers copyright, dementia and more
The June issue of the Tennessee Bar Journal is on its way to you with stories by Timothy Warnock on copyright updates and Leigh Griffith on exempt organizations. President Gail Vaughn Ashworth praises the legal community and TBA staff for quick efforts in the wake of recent flooding, and Monica Franklin begins a series of columns on how to deal with dementia in clients. Edward G. Phillips cautions what not to do when employees and employers part ways.
Read the Journal online
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Now you can ship your FedEx packages directly from the Microsoft Office Outlook application -- and save money doing it. It's a fast and convenient way to easily access some of the most popular features on fedex.com using Microsoft technology. That's why you should Think FedEx First.
Take advantage of your member discounts on select FedEx shipping services and FedEx OfficeSM business services

 
 
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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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