Legal sector shows job growth in August

Although the news was still a bit glum for overall job growth in the August report from the The Bureau of Labor Statistics released Friday, lawyers and legal industry employees fared better. The U.S. economy lost a total of 54,000 jobs, but the legal sector gained 1,000 jobs last month, marking the second straight month of improved numbers for the industry.

Law.com carried this American Lawyer story

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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_090710.pdf


MARY DUFFER, as Executrix of the ESTATE OF ELMER HAMILTON LAWSON v. MARY LAWSON

Court: TCA

Attorneys:

Thomas B. Luck, Nashville, Tennessee, for the appellant, Mary Lawson.

John R. Phillips, Jr., Gallatin, Tennessee, for the appellee, Mary Duffer, as Executrix of the Estate of Elmer Hamilton Lawson.

Judge: KIRBY

This appeal concerns the ownership of real property. The decedent acquired the subject property while he was married to the defendant surviving spouse. Years later, the decedent quitclaimed his interest in the property to his grandson. Subsequently, the decedent and the grandson disputed ownership of the property and an ancillary lawsuit ensued. Before the litigation was resolved, the decedent died and his estate was substituted as a party. The surviving spouse filed a wrongful death lawsuit against the grandson, asserting he caused the decedent's death. The grandson settled both lawsuits; the settlement of each involved a transfer of the subject real property. Thereafter, the executrix of the decedent's estate filed the instant lawsuit against the surviving spouse seeking a determination as to the ownership of the property. The surviving spouse counterclaimed, asserting various theories of ownership. On the estate's motion, the trial court entered an order dismissing the surviving spouse's counterclaim to the extent that it sought fee simple ownership. The surviving spouse now appeals. We dismiss the appeal, finding that we do not have subject matter jurisdiction.

http://www.tba2.org/tba_files/TCA/2010/dufferm_090710.pdf


SOUTHWEST TENNESSEE ELECTRIC MEMBERSHIP CORPORATION, ET AL. v. CITY OF JACKSON, TENNESSEE and THE CITY OF JACKSON, TENNESSEE CITY COUNCIL

Court: TCA

Attorneys:

Richard L. Winchester, Jr., Memphis, Tennessee, for the appellants, Southwest Tennessee Electric Membership Corporation, et al.

Lewis L. Cobb and Teresa A. Luna, Jackson, Tennessee, for the appellees, City of Jackson, Tennessee and The City of Jackson, Tennessee City Council.

Judge: KIRBY

This is an annexation case. The defendant city decided to annex twelve square miles of land to its northwest. The territory to be annexed was divided into forty-nine subareas. Some of the subareas immediately adjoin the city's existing boundary; all are contiguous to one another. The city prepared a plan to provide services for each of the subareas. The plans of service stated that, upon annexation, the city would deliver services immediately with existing resources. The city simultaneously enacted forty-nine ordinances annexing each of the subareas. Afterward, the plaintiff residents filed the instant quo warranto lawsuit challenging the annexation, arguing inter alia that the city could not annex land that did not adjoin its existing boundary and that the plans of service were fatally deficient under the annexation statutes. After a trial, the lower court concluded that the city could annex all of the subareas and had complied with the statutory requirements for annexation. The residents appeal. We reverse the trial court's decision that the city could annex the subareas that did not immediately adjoin the city's existing boundary, affirm the decision that the city complied with the statutory requirements for annexation with respect to the remaining subareas, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/southwesttn_090710.pdf


BILL TRAVIS, ET AL. v. TRUSTEES OF LAKEWOOD PARK v. COFFEE COUNTY, TENNESSEE

Court: TCA

Attorneys:

Mark A. Nobles, Murfreesboro, Tennessee, for the Plaintiff/Appellants, Trustees of Lakewood Park.

Robert L. Huskey, Manchester, Tennessee, for the Defendant/Appellee, Coffee County, Tennessee.

Judge: KIRBY

This appeal concerns sovereign immunity. A subdivision in the defendant county had restrictive covenants that, inter alia, required the payment of an annual assessment by all lot owners to the subdivision trustees. In the wake of delinquent taxes, pursuant to statutes, the county took title to lots in the subdivision after delinquent tax sales failed to yield sufficient bids. The county held the lots for several years, and declined to pay the trustees the annual assessments on the properties. Residents of the subdivision sued the trustees, and cross-claims against the county were asserted for the past-due assessments. The county contended that it was immune from liability for the lot assessments under the doctrine of sovereign immunity. After a trial, the trial court held that the county was entitled to sovereign immunity insofar as it had complied with the pertinent statutes on delinquent tax sales, and granted a partial judgment against the county on the assessment claims. The trustees appeal, arguing that the county was not entitled to assert sovereign immunity as a defense to the contract claims under the restrictive covenants. We agree, and affirm in part and reverse in part the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2010/travisb_090710.pdf


WALKER'S, INC. d/b/a WALKER'S QUALITY CLEANERS v. REAGAN FARR, Commissioner of the Department of Revenue, State of Tennessee

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and R. Mitchell Porcello, Nashville, Tennessee, for the appellant, Reagan Farr, Commissioner of the Department of Revenue.

Louis F. Allen, Steven H. McCleskey, and Amy Ferguson Dudek, Memphis, Tennessee, and John R. Moss, Jackson, Tennessee, for the appellee, Walker's, Inc.

Judge: KIRBY

This appeal involves the Retailers' Sales Tax Act. The plaintiff taxpayer is a dry-cleaning business. The taxpayer did not pay Tennessee sales tax for the sale of dry-cleaning and laundering services to a formalwear rental business. After an audit, the Tennessee Department of Revenue concluded that the taxpayer's sales of these services did not qualify as "sales for resale" that were exempt from taxation under the Retailers' Sales Tax Act, and assessed unpaid sales taxes. The taxpayer filed this lawsuit challenging the assessment. The parties filed cross-motions for summary judgment. The trial court concluded that the taxpayer's sales of dry-cleaning and laundering services qualified for the "sale for resale" exemption and abated the assessment. The Commissioner of the Department of Revenue appeals. We reverse, finding, inter alia, that the sales do not fall within the "sale for resale" exemption from taxation under the Retailers' Sales Tax Act because dry-cleaning and laundering garments does not amount to "processing" under the Act.

http://www.tba2.org/tba_files/TCA/2010/walkers_090710.pdf


STATE OF TENNESSEE v. JAMES RAY BARTLETT

Court: TCCA

Attorneys:

Melissa L. Thomas, Fayetteville, Tennessee, for the appellant, James Ray Bartlett.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; Ann L. Filer, Assistant District Attorney General; Hollyn Eubanks, Assistant District Attorney General; and Benjamin A. Whitehouse, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, James Ray Bartlett, was convicted of five counts of aggravated burglary, a Class C felony, four counts of theft of property valued between $1,000 and $10,000, a Class D felony, two counts of theft of property valued under $500, a Class A misdemeanor, one count of vandalism of property valued between $500 and $1,000, a Class E felony, and four counts of vandalism of property valued under $500, a Class A misdemeanor. The trial court sentenced Defendant as a Range III, persistent offender, to ten years for each aggravated burglary conviction. The trial court sentenced Defendant as a Range III, career offender to twelve years for each theft of property valued between $1,000 and $10,000 and to six years for his Class E felony conviction. The trial court sentenced Defendant to eleven months, twenty-nine days for each misdemeanor conviction. On appeal, Defendant argues that: (1) the trial court erred in not conducting a hearing on Defendant's motion to suppress; (2) the trial court erred in denying Defendant's motion to disqualify the District Attorney General's office from prosecuting this case; (3) the trial court erred by dismissing an African-American prospective juror from the panel pursuant to a peremptory challenge by the State; (4) the trial court erred in failing to grant Defendant's motion for a mistrial; (5) the evidence is insufficient to support Defendant's convictions of aggravated burglary and vandalism; and (6) the trial court erred in determining that Defendant was a career offender for purposes of sentencing him in counts 6, 8, 10, 14, and 18 of the indictment. After review, we conclude that there is a conflict between the transcript of the sentencing hearing and the judgment forms concerning the trial court's imposition of consecutive sentencing. We accordingly remand to the trial court for correction of the judgments to accurately reflect the effective sentence of thirty years intended by the trial court. In all other aspects, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/bartlettj_090710.pdf


STATE OF TENNESSEE v. JOSHUA SHANE HAYES
CORRECTION: The original electronic opinion was not an exact copy of the opinion filed with the court. This version is the correct copy.


Court: TCCA

Attorneys:

Richard McGee and Kevin McGee, Nashville, Tennessee (on appeal); Erik R. Herbert, Nashville, Tennessee; Pal Lengyel-Leahu, Santa Monica, California; and Harry Christensen, Lebanon, Tennessee (at trial) for the appellant, Joshua Shane Hayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Frank Borger Gilligan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; John Zimmerman,Assistant District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Joshua Shane Hayes, was convicted of possession with intent to deliver three-hundred grams or more of cocaine (count one), manufacturing twenty or more marijuana plants (count two), and possession with intent to deliver more than ten pounds but less than seventy pounds of marijuana (count three). The trial court conducted a sentencing hearing and imposed a sentence of twenty-four years for count one, five years for count two, and four years for count three. The court ordered counts one and two to run consecutively to each other and concurrently to count three for an effective twenty-nine year sentence in the Department of Correction. On appeal, Defendant argues that (1) the trial court erred in failing to suppress the evidence seized from the residence at Deer Valley Trail; (2) that the trial court erred in allowing the State to introduce evidence of seventeen firearms, ammunition, and photographs of multiple firearms at trial; and (3) that the trial court erred in sentencing Defendant to an effective twenty-nine year sentence. Following our review of the record, we reverse the judgments of the trial court because the warrant does not comply with the requirements of Rule 41 of the Tennessee Rules of Criminal Procedure.

http://www.tba2.org/tba_files/TCCA/2010/hayesj_CORR_090710.pdf


ALTON TAPPAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson, Memphis, Tennessee, for the Petitioner, Alton Tappan.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris West, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

After a jury trial, Petitioner Alton Tappan was convicted of aggravated burglary and theft of property valued at $1,000 or more but less than $10,000. He was given an effective sentence of 14 years incarceration. His conviction was affirmed on appeal. He then filed a petition for post-conviction relief, claiming he received ineffective assistance of trial and appellate counsel. After an evidentiary hearing, the post-conviction court denied relief. We conclude that appellate counsel's failure to raise the issue of the trial court's failure to charge circumstantial evidence was deficient performance and that the failure was prejudicial. We therefore remand the case to the trial court for a new trial on the theft conviction. The judgment of the post-conviction court is affirmed in all other respects.

http://www.tba2.org/tba_files/TCCA/2010/tappana_090710.pdf


STATE OF TENNESSEE v. EDWARD THOMPSON

Court: TCCA

Attorneys:

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, Edward Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Edward Thompson, appeals the Shelby County Criminal Court's denial of his petition to suspend his sentence to probation. The defendant pled guilty to attempted rape of a child, a Class B felony, and received an agreed sentence of ten years. However, as part of the agreement, he reserved the right to request that the trial court sentence him to probation. On appeal, he contends that the trial court erred in its decision by "not appropriately bas[ing] the denial of probation upon the sentencing considerations set forth in Tennessee Code Annotated 40-35-103." Following review of the record, we conclude that the trial court did not err in denying the petition.

http://www.tba2.org/tba_files/TCCA/2010/thompsone_090710.pdf


STATE OF TENNESSEE v. BRYAN WILLIAMS

Court: TCCA

Attorneys:

Ruchee J. Patel (on appeal) and Juni Ganguli (at trial), Memphis, Tennessee, for the appellant, Bryan Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Greg Gilbert and Damon Griffin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Bryan Williams, was convicted of one count of second degree murder, a Class A felony; one count of attempted second degree murder, a Class B felony; and one count of reckless endangerment, a Class E felony. He was sentenced to twenty-three years for the Class A felony, ten years for the Class B felony, and two years for the Class E felony. All sentences were ordered to run consecutively, for a total effective sentence of thirty-five years. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court erred in failing to declare a mistrial following the testimony of one witness. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/williamsb_090710.pdf


TODAY'S NEWS

Legal News
Upcoming
Passages
TBA Member Services

Legal News
Zagorski execution set for Jan. 11
An order was filed today by the Tennessee Supreme Court setting the execution date for Edmund Zagorski for Jan. 11, 2011. The order, along with previous court filings, can be found on
the AOC web site.
Firm has new recruiting plan
A Nashville-based firm has a novel plan for recruiting new lawyers: an intensive, practice-specific apprenticeship program called Schola2Juris. Waller Lansden Dortch & Davis PLLC will unveil this "new pathway for hiring entry-level associates" to 2L students at the UT College of Law on Sept. 13. "Rather than anticipating our hiring needs almost two years in advance, this program will enable the firm to assess its actual needs by practice area and focus its energies and resources on students whose skills and interests align with those needs," Kathleen Pearson, director of professional recruiting, explained.
Learn more from The Informant
Juvenile court not working for the most violent offenders
Shelby County Juvenile Court officials say the state's not set up to deal properly with violent young offenders. During the past five years, the county has averaged slightly more than 1,000 violent crimes annually at the hands of minors, records show. Officials say they're worried too many menacing minors are being returned to the community too early. "The state is not adequately protecting the community," said Terre Fratesi, lead prosecutor for the juvenile court.
The Commercial Appeal has more
Joint push to curb recidivism saves money
The Tennessee Board of Probation and Parole and the state Correction Department have joined forces to improve the chances that inmates released on parole won't get into trouble again. The partnership has had the added benefit of saving the state $33 million within the first year, correction officials say.
The Tennessean carried this AP story
Fewer judges confirmed for Obama than Nixon, so far
President Barack Obama has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago. The shortage, even with the Democrats' substantial Senate majority, is attributed to a "determined Republican stall campaign in the Senate," according to the Associated Press.
TriCities.com has this story
2 officials arrested for using inmate labor
The Tennessee Bureau of Investigation arrested the mayor of Vonore and the Monroe County Democratic Party chairman after a two-month long investigation into whether they were directing city employees and county jail inmates to perform landscaping work at the residence of a relative. Charles Kenneth Miller, 69, and Mayor Larry Summey, 64, were indicted on one count of using inmate labor for private purposes.
NewsChannel 9 reports
History of Knox circuit courts now available
Knox County Circuit Court Judge Dale Workman has compiled a history of all Knox County courts of record, one that local archivists believe is the first document of its kind.
Learn more about the project from the News Sentinel
Judges wary of Facebook, survey shows
A survey conducted by the Conference of Court Public Information Officers recently found that although judges might want to use social media such as Facebook, they doubt that that they could use the new media tools in their professional lives without violating judicial ethics codes. Forty percent of the judges who responded to the survey said they use social media sites. Most of those use Facebook and most are judges who stand for election. Fewer than 9 percent of non-elected judges use social media sites, the survey indicated. Some elected judges have used the sites to interact with voters, but most use them the same way other adults do, namely "to connect with their grandkids."
The National Law Journal has details
Upcoming
TV documentary explores O'Keeffe gift
Nashville Public Television premieres a new original production about Georgia O'Keeffe's controversial art collection at beleaguered Fisk University. However, The Gift: The Alfred Stieglitz Collection at Fisk University ignores the recent controversy about the collection. The show airs at 8 p.m., Central time, Sept. 8 on WNPT, Channel 8.
The Tennessean has more
Passages
Civll rights hero, member of 'Little Rock 9' dies
Jefferson Thomas, who as a teenager was among nine black students who integrated a Little Rock high school in the nation's first major battle over school segregation, has died. He was 67. The integration fight also was the first real test of the federal government's resolve to enforce a 1954 Supreme Court order outlawing racial segregation in the nation's public schools. After Gov. Orval Faubus sent National Guard troops to block the students from entering Central High, President Eisenhower ordered in the Army's 101st Airborne Division and guards escorted each of the "Little Rock 9" to their classes.
The Commercial Appeal has this story from the AP
TBA Member Services
New resources available for TBA members
The TBA Law Office Technology & Management Section has purchased a collection of resource materials to be added to the TBA Lending Library for use by all members. Those materials include:

-- Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients and Others
-- Letters for Lawyers: Essential Communications for Clients, Prospects and Others, Second Edition
-- Risk Management: Survival Tools for Law Firms, Second Edition
-- The 2009 Solo & Small Firm Legal Technology Guide: Critical Decisions Made Simple
-- The Lawyer's Guide to Adobe Acrobat, Third Edition (Covers Adobe Acrobat 8.0)
-- The Lawyer's Guide to Collaboration Tools & Technologies: Smart Ways to Work Together + CD-ROM Supplement
-- The Lawyer's Guide to Governing Your Firm
-- The Lawyer's Guide to Marketing on the Internet, Third Edition
-- The Lawyer's Guide to Microsoft Excel 2007
-- The Lawyer's Guide to Microsoft Outlook 2007
-- The Lawyer's Guide to Practice Management Systems Software, Second Edition

Books may be borrowed for up to two weeks. To request a book, please email Sharon Ballinger or call her at (615) 383-7421.


 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2010 Tennessee Bar Association