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| Thursday, October 07, 2010 |
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Bar exam results out Friday
Results from the July bar exam are expected from the Board of Law Examiners on Friday, Oct. 8, and will posted on TBA.org as soon as they are received.
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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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LESTER MITCHELL LAWSON, III v. ANTHONY ADAMS
Court: TCA
Attorneys:
Jerry E. Farmer, Murfreesboro, Tennessee, for the Appellant, Lester Mitchell Lawson, III.
Wm. Kennerly Burger, Murfreesboro, Tennessee, for the Appellee, Anthony Adams.
Judge: SWINEY
Lester Mitchell Lawson, III ("Plaintiff") filed this wrongful discharge lawsuit against his former employer, Anthony Adams ("Defendant"). Plaintiff claims he was illegally discharged for refusing to remain silent about and refusing to participate in illegal activities. Plaintiff brought both common law and statutory claims. The Trial Court granted Defendant's motion for summary judgment on all claims after finding that the undisputed material facts established that Plaintiff failed to report the alleged illegal activity to an entity other than the person engaging in the claimed illegal activity. We affirm the grant of summary judgment to Defendant on Plaintiff's common law and statutory claims that he was discharged for refusing to remain silent about illegal activities. We vacate the Trial Court's grant of summary judgment on Plaintiff's common law and statutory claims that he was discharged for refusing to participate in illegal activities.
http://www.tba2.org/tba_files/TCA/2010/lawsonl_100710.pdf
DAVID LIVINGSTON v. STATE OF TENNESSEE
Court: TCA
Attorneys:
Rob McKinney, Nashville, Tennessee, for the appellant, David Livingston.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Benjamin A. Whitehouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.
Judge: HIGHERS
Appellant was convicted of "sexual misconduct" in New York in 1988, and was compelled to register as a sex offender in Tennessee in 2008. Upon his registration, the TBI classified
Appellant as a violent sexual offender, determining that his New York conviction was analogous to rape, a violent sexual offense. Appellant contacted the TBI seeking removal
from the registry, but his request was denied. He then filed an administrative appeal in the chancery court, but his classification as a violent sexual offender was upheld. We find that the elements of "sexual misconduct" under N.Y. Penal Law section 130.20 are analogous to the elements of rape as codified in Tennessee Code Annotated section 39-13-503, and therefore, that Appellant was properly classified as a violent sexual offender within the meaning of
Tennessee Code Annotated section 40-39-202(28). The judgment of the chancery court is affirmed.
http://www.tba2.org/tba_files/TCA/2010/livingstond_100710.pdf
ROBERT HENRY ROBINSON, JR. v. ANN PREVATT ROBINSON IRONS
Court: TCA
Attorneys:
D. Mitchell Bryant, Athens, Tennessee, for the Appellant, Robert Henry Robinson, Jr.
Shari Tayloe Young, Cleveland, Tennessee, for the Appellee, Ann Prevatt Robinson Irons.
Judge: SWINEY
Robert Henry Robinson, Jr. ("Father") and Ann Prevatt Robinson Irons ("Mother") were divorced in 1998. The parties have two minor children. Although they initially had equal
co-parenting time, in March of 1999 Mother was designated as the primary residential parent with Father having weekend co-parenting time. In October of 2007, Father was designated as the primary residential parent due to a threat posed by Mother's husband, John Irons, a suspected arsonist. The Trial Court held that this threat constituted a material change in circumstances and that it was in the children's best interest for Father to be primary residential parent. In January of 2010, pursuant to a petition to modify filed by Mother, the Trial Court determined that this threat no longer existed and the absence of the threat constituted a material change in circumstances. The Trial Court then designated Mother as the primary residential parent. Father appeals claiming there was no material change in circumstances. We affirm the Trial Court's finding that there was a material change in circumstances. Because the Trial Court never made a finding as to what was in the children's best interest, we remand this case to the Trial Court for such a determination.
http://www.tba2.org/tba_files/TCA/2010/robinsonr_100710.pdf
WILLIAM SEARLE v. HARRAH'S ENTERTAINMENT, INC.
Court: TCA
Attorneys:
Robert L. Moore and Dawn Davis Carson, Memphis, Tennessee, for the appellant, Harrah's Entertainment, Inc.
Allen Barnes, Hermitage, Tennessee, for the appellee, William Searle.
Judge: CLEMENT
This action arises from the alleged harassment of Plaintiff by Defendant, Harrah's Entertainment, Inc., while attempting to collect on a dishonored check. Plaintiff cashed a check for $500 at Harrah's Metropolis Casino in October 2001. The check was dishonored by Plaintiff's bank on the first attempt, but cleared on the second attempt on December 8, 2001. Apparently neither party knew the check had cleared in December, and in January 2002, Plaintiff claims he received threatening phone calls and letters to collect on the check.
After receiving a threat of criminal prosecution, Plaintiff and his wife drove to the casino and paid $525.00 to settle the debt; however, the casino could not produce the original check, only a photocopy. Upon further investigation, Plaintiff discovered the check had cleared in December. Plaintiff then filed this action against Harrah's Entertainment, Inc. in the General Sessions Court for Davidson County. After a default judgment was entered, Harrah's filed a petition for writ of certoriari in the Circuit Court asserting that it was not the proper defendant and insufficient service of process. The circuit court granted the petition and set aside the default judgment. Plaintiff then filed an amended complaint asserting claims for negligence, gross negligence, outrageous conduct, and violation of the Fair Debt Collection Practices Act and the Tennessee Consumer Protection Act (TCPA). Following a bench trial, the court found that Harrah's was the proper defendant and ruled in favor of Plaintiff on his claims for negligence, the TCPA, and intentional infliction of emotional distress, and awarded Plaintiff damages of $5,962.95, which was trebled under the TCPA for a total award of $17,888.85. The court also awarded Plaintiff his attorney's fees. Harrah's appeals claiming it was not the proper defendant and it was not properly served. It also challenges the findings of negligence, violation of the TCPA, intentional infliction of emotional distress, and the damages awarded. We have determined that Harrah's waived the issue of insufficient service of process and it is estopped to assert that it is not the proper defendant. We affirm the trial court's findings regarding negligence, violation of the TCPA, and
intentional infliction of emotional distress. We find that the trial court erred by including the $5,962.95 award for emotional distress within the amount trebled under the TCPA.
Therefore, we remand for the trial court to recalculate the damages awarded under the TCPA and for a determination of the reasonable and necessary attorney's fees Plaintiff incurred on appeal.
http://www.tba2.org/tba_files/TCA/2010/searlew_100710.pdf
PAMELA TURNER v. TENNESSEE BOARD OF PROBATION AND PAROLE
With Concurring Opinion
Court: TCA
Attorneys:
Peter J. Strianse, Nashville, Tennessee, for the appellant, Pamela Rogers Turner.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Brenner, for the appellee, Tennessee Board of Probation and Parole.
Judge: CLEMENT
After being denied parole at her first parole hearing, Petitioner, an inmate incarcerated at the Tennessee Prison for Women, filed this Petition for Common Law Writ of Certiorari to challenge the decision by the Board of Probation and Parole to defer reconsideration of parol for six years. Finding that the deferral of parol eligibility for six years was not arbitrary and did not violate Tennessee law, the trial court dismissed Petitioner's Writ of Certiorari. We affirm.
http://www.tba2.org/tba_files/TCA/2010/turnerp_100710.pdf
BENNETT concurring
http://www.tba2.org/tba_files/TCA/2010/turnerp_CON_100710.pdf
RICHARD A. WILLETTE, JR. v. CARROLL G. HULSE ET AL.
Court: TCA
Attorneys:
Aubrey T. Givens and Brenda G. Benson, Nashville, Tennessee, for the appellant, Richard A. Willette, Jr.
Steven G. Fuller, Nashville, Tennessee, for the appellees, Carroll G. Hulse and Cynthia Hulse.
Judge: CLEMENT
This action arises out of a vehicular accident in which the plaintiff sustained serious personal injury. A complaint was filed on behalf of the pro se plaintiff; however, the
complaint was not signed by the plaintiff or a licensed attorney as required by Tenn. R. Civ. P. 11.01. The plaintiff subsequently retained counsel, but the plaintiff's attorney failed to make a written appearance until months later. Moreover, neither the attorney nor the plaintiff signed the complaint to cure the signature deficiency until after the case was dismissed and the statute of limitations had run. The plaintiff then filed a Rule 60.02 Motion for Relief from
Judgment or Order based on Excusable Neglect. That motion was denied and this appeal followed. We have determined that the trial court did not abuse its discretion in denying the
plaintiff's Rule 60.02 motion; therefore, we affirm.
http://www.tba2.org/tba_files/TCA/2010/willetter_100710.pdf
RONALD A. HENRY v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Ronald A. Henry.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William H. Cox, III, District Attorney General; and Brian S. Finlay, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
Petitioner, Ronald A. Henry, filed a post-conviction petition asking the court to set aside his convictions for burglary, theft, vandalism, and possession of burglary tools or to grant a delayed appeal. Petitioner claims that his trial counsel was constitutionally ineffective because counsel failed to adequately defend against video evidence that depicts Petitioner committing the crime; failed to preserve his right to appeal; and failed to file an Anders brief. After a hearing, the post-conviction court denied relief. Upon review, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2010/henryr_100710.pdf
CLARENCE DAVID SCHREANE v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Jason D. Demastus, Chattanooga, Tennessee (on appeal), and David W. Schmidt, Signal Mountain, Tennessee (at trial), for the appellant, Clarence D. Schreane.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; William H. Cox, III, District Attorney General; and William H. Hall, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Petitioner, Clarence David Schreane, appeals the Hamilton County Criminal Court's
denial of post-conviction relief from his convictions for first degree felony murder and
especially aggravated robbery. On appeal, he contends that trial counsel rendered ineffective
assistance by (1) not seeking dismissal of the Petitioner's indictment on due process grounds,
(2) not seeking dismissal of the Petitioner's indictment under the Interstate Compact on
Detainers, and (3) not seeking suppression of the Petitioner's statement to police on the basis
that he was denied the right to counsel. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2010/schreanec_100710.pdf
STATE OF TENNESSEE v. RONNIE EDWARD SEXTON
Court: TCCA
Attorneys:
Edward Cantrell Miller, District Public Defender; and Russell Veldman, Assistant Public Defender, for the appellant, Ronnie Edward Sexton.
Robert E. Cooper, Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James B. Dunn, District Attorney General; and Jeremy D. Ball, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: THOMAS
The Defendant, Ronnie Edward Sexton, pled guilty to burglary, a Class E felony, two counts of aggravated assault, a Class C felony, and theft of property valued at less than 500 dollars, a Class A misdemeanor, with sentencing left to the discretion of the trial court. Following a sentencing hearing, the trial court sentenced the Defendant as a Range I, standard offender to two years for the burglary conviction, six years for each aggravated assault conviction, and
11 months and 29 days for the misdemeanor theft conviction. The trial court also found the Defendant qualified as a dangerous offender and ordered consecutive service of one of the aggravated assault convictions, for a total effective sentence of 12 years. In this appeal as of right, the Defendant contends that the trial court erred in its imposition of sentence. The Defendant failed to file a timely notice of appeal. Because we discern no reason to waive the timely filing of the notice of appeal, the appeal is dismissed.
http://www.tba2.org/tba_files/TCCA/2010/sextonr_100710.pdf
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| TODAY'S NEWS |
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Celebrate Pro Bono
Election 2010
U.S. Supreme Court
Upcoming
Passages
Disciplinary Actions
TBA Member Services
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| Celebrate Pro Bono |
| Legal clinic set for Saturday in Memphis |
| A Legal Advice Clinic will be held this Saturday at the Ben Hooks Main Library in Memphis, from 9:30 a.m. to 12:30 p.m. Groups supporting the event are the Memphis Young Lawyers Division, Memphis Area Legal Services and the Memphis Bar Association's officers and board of directors. |
Get details about this and other Celebrate Pro Bono events
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| Lawyers to help Habitat owners with wills and more |
| An informational session about wills and powers of attorney will be held Oct. 11 for homeowners of Habitat for Humanity homes. It will be 5:30 to 7 p.m. in Nashville. Groups volunteering in this effort are Adams and Reese LLP, Habitat for Humanity and the Nashville Pro Bono Program. For more information contact Lucinda Smith at
lsmith@las.org.
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Learn more about Celebrate Pro Bono
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| Election 2010 |
| Results stand: Shelby Democrats did not prove intentional fraud |
| Chancery Court Judge Arnold Goldin this morning dismissed a lawsuit by Shelby County Democratic candidates that asked that results from the Aug. 5 county general election be voided.
Goldin said while "the plaintiffs proofs certainly pointed out imperfections in this election" that the public should perceive as "negatives," the candidates were unable to prove that the problems "rise to the level of fraud or illegality" enough to throw out results. |
The Commercial Appeal reported
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| Haslam, McWherter to debate at UT Knoxville tonight |
| Gubernatorial candidates Bill Haslam and Mike McWherter will debate tonight (Oct. 7), at the University of Tennessee at Knoxville. Sponsored by WBIR, the News Sentinel and UT and its Howard H. Baker Jr. Center for Public Policy, the debate begins at 8 p.m. Eastern Time in the Cox Auditorium in the Alumni Memorial Building on the UT Knoxville campus. |
Learn more from UT
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| U.S. Supreme Court |
| Test your Supreme Court knowledge |
| The Washington Post challenges you to "drag a justice to a seat," with an interactive page to line up the U.S. Supreme Court justices by seniority, like they sit on the bench. You can also explore how the justices voted last term, including who they tended to agree with, and how often they were in the majority, as well as highlights of cases. |
Learn more about the justices from Post Politics
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| Upcoming |
| Baker and Seigenthaler speak on civility at book festival |
A series of sessions on "Building Community in the 21st Century: Perspectives on Civility and Democracy" begins this weekend.
The first installment kicks off Friday, Oct. 8, at the
Southern Festival of Books
in Nashville with "A Conversation on Civility and Democracy" among Howard Baker, John Seigenthaler and Jim Leach. It will be from noon to 1 p.m. in the House Chambers in the Capital.
Also of interest at the Southern Festival of Books, on
Friday at 2 p.m., in the Senate Chambers, will be the session
"Democracy's Lawyer: Felix Grundy of the Old Southwest (Southern Biography Series)" by
J. Roderick Heller; and on Saturday, documentary filmmaker Mary Murphy will preview her film, "Hey, Boo: Harper Lee and To Kill a Mockingbird" as well as discuss her companion book Scout, Atticus & Boo: A Celebration of 50 Years of To Kill a Mockingbird. The viewing will be 2:30 to 4:30 p.m. at the Nashville Public Library. |
Check out the festival schedule
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| Reception marks Mediation Day in Nashville |
| A reception sponsored by the American Bar Association Section of Dispute
Resolution, the Tennessee Bar Association Dispute Resolution Section, and
the Coalition for Mediation Awareness in Tennessee will celebrate Mediation
Day in Nashville on Oct. 19 from 5 to 7 p.m.
The event will be held at the Tennessee Bar Center, 221 Fourth Ave., North,
Nashville 37219. Attendees will enjoy complimentary wine, beer and hors
d'oeuvres. For more information or to RSVP contact Marnie Huff at
marniehuff@bellsouth.net.
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Download more information
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| Passages |
| Sylvia Holder dies at 90 |
| Sylvia Abraham Holder, 90, of Memphis, died Sept. 28. She was the mother of Tennessee Supreme Court Justice Janice M. Holder.
In lieu of flowers, the family requests that donations be sent to St. Jude Children's Research Hospital. A memorial service will be scheduled at a later time. |
Learn more from the Commercial Appeal
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| Disciplinary Actions |
| Lockett suspended for 4 years |
| The law license of former Knox County Law Director Bill Lockett has been suspended for four years by the Board of Professional Responsibility.
Lockett resigned from office in April and pleaded guilty to felony theft for embezzling from his former law firm, Kennerly, Montgomery and Finley PC. |
Download the judgment
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| TBA Member Services |
| 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. |
Learn why lawyers trust i365 for online data backup solutions
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Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
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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
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