Lawyers protected from new financial rules

In a victory for efforts of the organized bar including the ABA, TBA and more than 12 other state organizations, the final version of the financial regulatory reform bill agreed to last night by the House-Senate Conference Committee exempts most law practice from the reach of the Consumer Financial Protection Bureau. Some versions of the bill could have subjected every lawyer holding funds for a client to the regulatory provisions of the act. The bar argued forcefully that there was no evidence of a problem with trust accounting that state regulatory entities like our own BPR were not capable of addressing. The "Exclusion for Practice of Law" section specifically states that the new Consumer Financial Protection Bureau will have no enforcement or supervisory authority over lawyers engaged in the practice of law who are in an attorney-client relationship with consumer clients.
TODAY'S OPINIONS
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GLEN CRUZEN v. AYMAN AWAD

Court: TCA

Attorneys:

Glen Cruzen, Nashville, Tennessee, pro se.

Laura M. Williams and Samuel T. Bowman, Nashville, Tennessee, for the appellee, Ayman Awad.

Judge: STAFFORD

This case arises out of the alleged breach of a contractual agreement entered by and between Appellant and Appellee for the repair and renovation of a commercial building. Appellant filed suit, asserting that Appellee had failed to fully compensate Appellant for his work on the building. The trial court granted Appellee's motion for summary judgment, finding that Appellant was an unlicensed contractor under Tenn. Code Ann. secton 62-6-102, and that his recovery was, therefore, limited to actual documented expenses under Tenn. Code Ann. section 62-6-103(b). Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2010/cruzeng_062510.pdf


SHAWN HOWELL, Individually and as Administrator for the Estate of JESSE FRANKLIN BROWNING, JR. v. CLAIBORNE AND HUGHES HEALTH CENTER

Court: TCA

Attorneys:

A. Allen Smith, III, Goodlettsville, Tennessee, for the appellant, Shawn Howell.

David L. Steed, Nashville, Tennessee, for the appellees, Claiborne and Hughes Health Center.

Judge: STAFFORD

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff. However, upon the Appellee's motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. section 29-26- 121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/howells_062510.pdf


KAY AND KAY CONTRACTING, LLC v. TENNESSEE DEPARTMENT OF TRANSPORTATION

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Steven B. McCloud, Senior Counsel, Nashville, Tennessee, for the Appellant, Tennessee Department of Transportation.

Spencer D. Noe and Timothy C. Wills, Lexington, Kentucky, and Laurie H. Hallenberg, Knoxville, Tennessee, for the Appellee, Kay and Kay Contracting, LLC.

Judge: COOPER

Kay and Kay Contracting, LLC ("Contractor") entered into a contract with the Tennessee Department of Transportation ("TDOT") to build a bridge in Campbell County, Tennessee. Contractor subsequently entered into a subcontract with Whitley County Stone, LLC ("Subcontractor") to provide the excavation and grading work on the project. Subcontractor does not have a written contract with TDOT. Both Contractor and Subcontractor filed claims with the Claims Commission alleging they were owed money by TDOT. Subcontractor was dismissed as a party because it did not have a written contract with TDOT, as required by Tenn. Code Ann. section 9-8-307(a)(1)(L). The Commissioner, however, determined that Contractor was allowed to prosecute Subcontractor's claim as a "pass-through" claim. The sole issue on this interlocutory appeal is whether Tenn. Code Ann. section 9-8-307(a)(1)(L) removes the State's sovereign immunity such that Contractor can assert a "pass-through" claim against TDOT on Subcontractor's behalf. We conclude that sovereign immunity from such a claim is not removed, and we reverse the judgment of the Claims Commission.

http://www.tba2.org/tba_files/TCA/2010/kayandkay_062510.pdf


CHARLES PARSLEY v. ELMER PRICE

Court: TCA

Attorneys:

Charles Parsley, Mooresburg, Tennessee, appellant, Pro Se.

Elmer Price, Mooresburg, Tennessee, appellee, Pro Se.

Judge: SUSANO

Charles Parsley ("the plaintiff"), proceeding pro se, sued Elmer Price ("the defendant") in the General Sessions Court for Hawkins County. In attempting to allege his cause of action, the plaintiff employed a civil warrant form with the pre-printed designation, "Detainer Summons." The general sessions court transferred the case to the trial court. The trial court correctly concluded that the plaintiff's suit was not a detainer action but rather a suit "in the nature of either quiet title or of ejectment." Following a bench trial on September 22, 2009, the court incorporated its written memorandum opinion into an order and granted "judgment in favor of the defendant." Plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/parsleyc_062510.pdf


IN RE TYLER M.

Court: TCA

Attorneys:

Pamela M., Memphis, Tennessee, appellant, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Warren A. Jasper, Senior Counsel, General Civil Division; Nashville, Tennessee, for the appellee, State ex rel. Gregory L. E.

Judge: SUSANO

At an earlier time, i.e., November 1, 2004, the trial court, inter alia, ordered Pamela M. ("Mother") to pay Gregory L. E. ('Father"), the then-custodian of their child, Tyler M. ("the Child"), a child support arrearage of $7,920 (through October 31, 2004) and prospective monthly child support of $165 plus $35 to be applied on the arrearage. Over the years that followed, several petitions were filed, the disposition of which are not germane to the issues on this appeal. On November 23, 2005, Mother filed a petition for modification based upon the fact that the Child was then in her custody under an order of the trial court. The trial court entered an order on February 15, 2006, providing that "current support is terminated because [Mother] now has custody of the [C]hild." The record contains a number of subsequent pleadings and orders that also are not relevant to this appeal. Finally, on January 16, 2009, Mother filed a petition for modification seeking "to terminate all arrearage and liquidate arrearage to [F]ather." The trial court entered an order on July 17, 2009, determining that "the arrearage balance was proper based on the fact that child support cannot be modified retroactively." The court did reduce Mother's monthly arrearage payment from $50 to $35. Mother appeals and both sides raise issues. We affirm.

http://www.tba2.org/tba_files/TCA/2010/tylerm_062510.pdf


REGINA D. WISER v. CYRUS W. WISER, JR.

Court: TCA

Attorneys:

D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the Plaintiff/Appellant, Regina D. Wiser.

Brad W. Hornsby and Chris L. Richardson, Murfreesboro, Tennessee, for the Defendant/Appellee, Cyrus W. Wiser, Jr.

Judge: KIRBY

This appeal concerns post-divorce modification of alimony and child support. The parties had two children; during the marriage, the wife remained at home and cared for the parties' children. The husband was self-employed through his solely owned company. Ultimately, the parties divorced on stipulated grounds, and the husband was ordered to pay child support. The husband was awarded his business. The trial court awarded two commercial buildings to the wife and ordered the husband to pay the associated mortgage. The husband was ordered to pay alimony until the buildings were paid off, after which the wife's income was to be derived from the buildings. After the divorce, the income of the husband's company increased substantially and the husband refinanced the buildings. Two years after the divorce, the wife filed a petition for modification of alimony and child support. After a trial, the trial court declined to increase the alimony. It granted an increase in the husband's child support obligation to the maximum under the guidelines, but declined to award more than the guideline amount. The trial court also declined to award the wife attorney fees. The wife now appeals. We find that the increase in the income of the husband's company was a substantial and material change in circumstances, and that the decision not to increase alimony was an abuse of discretion, and therefore modify the alimony award. We affirm the trial court's refusal to grant an upward deviation from the guideline amount of child support. We reverse the trial court's denial of the wife's request for attorney fees with respect to child support and alimony, but affirm the denial of attorney fees for the refinancing of the two buildings awarded to the wife.

http://www.tba2.org/tba_files/TCA/2010/wiserr_062510.pdf


STATE OF TENNESSEE v. THOMAS JOSEPH CORDLE

Court: TCCA

Attorneys:

Richard A. Tate, Assistant District Public Defender, for the appellant, Thomas Joseph Cordle.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kaylin Render, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Thomas Joseph Cordle, appeals from the revocation of his probation, claiming that the trial court erred by ordering that he serve his sentences in confinement. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2010/cordlet_062510.pdf


STATE OF TENNESSEE v. KAREN MARABLE

Court: TCCA

Attorneys:

Paul Springer, Memphis, Tennessee, for the Defendant-Appellant, Karen Marable.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Karen Marable, was convicted by a jury in the Criminal Court of Shelby County of aggravated robbery, a Class B felony. She was sentenced as a standard offender to nine years in the Tennessee Department of Correction. On appeal, Marable claims: (1) the insufficiency of the evidence; (2) the trial court erred in responding to a jury question; and (3) her sentence was excessive. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/marablek_062510.pdf


TERRY LYNN RANEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Richard A. Tate, Assistant District Public Defender, for the appellant, Terry Lynn Raney.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Terry Lynn Raney, appeals from the denial of his petition for post-conviction relief wherein he challenged his guilty-pleaded convictions of possession with intent to sell or deliver 26 grams or more of cocaine, keeping or maintaining a dwelling place where controlled substances are used or sold, possession of drug paraphernalia, and possession of marijuana on grounds that he was denied the effective assistance of counsel. Discerning no error, we affirm the judgment of the post-conviction court. Because there is a clerical error in the judgment form for the petitioner's conviction of possession of cocaine, the case is remanded to the Criminal Court for Sullivan County for the entry of a corrected judgment form.

http://www.tba2.org/tba_files/TCCA/2010/raneyt_062510.pdf


Mandatory Retirement Provisions for Revenue Regulatory Agents

TN Attorney General Opinions

Date: 2010-06-25

Opinion Number: 10-84

http://www.tba2.org/tba_files/AG/2010/ag_10_84.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Court of the Judiciary
Passages
Flood Impact
TBA Member Services

Legal News
Vacancy announced on court reporting board
The TBA is seeking expressions of interest from members who want to fill the vacancy on the Tennessee Board of Court Reporting. The vacancy was created by the resignation of Bill Killian, who has been nominated by President Obama to be U.S. Attorney for the Eastern District of Tennessee. As a member service, the TBA will forward on to the Governor the names of any TBA members who notify the TBA of their interest by close of business June 29. Expressions of interest along with a resume and any other materials may be sent to TBA Executive Director Allan Ramsaur at aramsaur@tnbar.org.
Learn more about the court reporting licensing program
Defendant claims East Tenn. juries too white
Sunnah Maddox, alleged leader of a multi-state and multi-million dollar drug network, is mounting a defense in Greeneville federal court that blacks are severely "under-represented" and rarely tapped as foremen on grand juries in East Tennessee. His attorney even suggests there is a racial component to how grand jurors are selected in the division. The court counters that jurors are selected randomly and that it is the low percentage of minorities in the area that accounts for the disparity.
The News Sentinel reports
Assistant PD alleges 'justice for sale' in Williamson Co.
Four men charged with aggravated robbery and assault in Williamson County recently approved a plea agreement that required one year of jail time, an eight-year probation and a hefty contribution to local judicial agencies. The deal -- worked out by the district attorney, sheriff's department and victims -- did not sit well with one assistant public defender, who wrote on Facebook that "Justice is for sale in Williamson County...for the small price of $60,000 you too can settle your case for probation instead of 8 years in prison." She also argued that indigent clients would never get such a break.
The Williamson Herald reports
Goodlettsville firm seeks bankruptcy protection
Ridings Law Group PC in Goodlettsville and its related anti-fraud venture, Namesafe Inc., filed Chapter 7 petitions in Nashville's U.S. Bankruptcy Court this week. David G. Ridings, president of both companies, filed for Chapter 11 reorganization in June 2009 but later converted the case to a Chapter 7 liquidation.
Read more from the Nashville Post (subscription required)
Newspaper praises efforts to make legal system accessible
The Tennessee Supreme Court and the state's legal community today earned praise from a Memphis Commercial Appeal editorial for recognizing the need for better access to the justice system and for developing plans to provide that access. The editorial cites this week's announcements from the court in Nashville and comments from American Bar Association President Carolyn Lamm, who spoke to attorneys and other business and civic leaders in Memphis.
Read more from the Commercial Appeal
View scenes from NSL dinner
The Tennessean now has a series of photos from the recent Nashville School of Law annual dinner.
See the photos now
Supreme Court Report
Court limits use of fraud law
Use of the "honest services" anti-fraud law by prosecutors will be dramatically reduced following Thursday's U.S. Supreme Court ruling. The decision keeps the law in force, but limits its usage to cases where prosecutors can show defendants accepted bribes or kickbacks. The decision came in the case of former Enron CEO Jeffrey Skilling. The lower court now must decide whether his conviction under the law should be overturned.
Read more from the Knoxville News Sentinel
Court of the Judiciary
Deposition notice filed in Dumas case
The Court of the Judiciary has filed an amended notice that it will conduct a deposition of Judge Gloria Dumas on July 8 at 10 a.m. in the Nashville office of her attorneys, Jones, Hawkins & Farmer PLC.
Read the notice, and all documents from the case, on the AOC web site
Passages
Murfreesboro lawyer dies
Murfreesboro lawyer William Theodore "Ted" Sellers Jr. died June 21 at the age of 57. Sellers practiced criminal, bankruptcy and collection law at his family's Murfreesboro law firm of Smith & Sellers. He was an active member of the Rutherford and Cannon County bar associations and a 1979 graduate of the Memphis State University School of Law. A memorial service and visitation will be held July 12 at the First Baptist Church of Murfreesboro. Visitation will begin at 5 p.m. followed by the service at 7 p.m. The family requests that in lieu of flowers or gifts, donations be made to the donor's charity of choice.
Read more about Sellers' life in the Murfreesboro Post
Former Scott Co. PD dies
Joe Richard "Rick" Sexton, a former Scott County public defender, died March 11 at the age of 63. Sexton earned his law degree from the Nashville School of Law in 1992. As a private attorney, he maintained a general practice with an interest in the areas of dispute resolution, criminal defense and family law. Prior to becoming an attorney, Sexton managed several local cable companies and Halls Telephone.
The Mountain Press carried the notice
Flood Impact
FEMA extends deadline for flood benefits
Governor Phil Bredesen announced today that the state requested and received a 30-day extension of deadlines for FEMA assistance, including funds from the individual assistance program, loans from the Small Business Administration and benefits from the National Flood Insurance Program. Tennesseans now have until Aug. 5 to file for these programs. Disaster survivors may apply online anytime at www.DisasterAssistance.gov or call the FEMA HelpLine at 800-621-3362.
Read the governor's announcement
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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