TBA survey coming to members

All Tennessee Bar Association members should soon receive an email asking them to take part in a Membership Survey. Please respond to this short survey to help the TBA identify ways to increase the value of your membership. The survey is being conducted for the TBA by Memphis-based Yacoubian Research. If you do not receive the email from Yacoubian, please check your spam filters to see if it was blocked. If you need to have the survey re-sent, please contact Yacoubian Research. Your participation in this effort is important, and we thank you for your participation.
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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
02 - TN Court of Criminal Appeals
02 - 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.

PATSY FREEMAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JOHN R. FREEMAN, DECEASED v. CSX TRANSPORTATION, INC., A FLORIDA CORPORATION ET AL.
With Dissenting Opinion


Court: TCA

Attorneys:

John W. Chandler, Jr., and Pamela R. O'Dwyer, Chattanooga, Tennessee, for the appellant, Patsy Freeman, Individually and as Administratrix of the Estate of John R. Freeman, Deceased.

John W. Baker, Jr., and Emily L. Herman-Thompson, Knoxville, Tennessee, for the appellees, CSX Transportation, Inc., a Florida corporation, and Mike E. Martin.

Judge: CLEMENT

The issues in this case are whether Tennessee's "common county rule" deprived the Rutherford County Circuit Court of subject matter jurisdiction and whether the court erred in assessing discretionary costs. This wrongful death action arises from a fatal vehicular accident in Normandy, Bedford County, Tennessee, in which the decedent's vehicle was stuck by a train owned by CSX Transportation, Inc. The mother of the decedent, in her individual capacity and as the personal representative of the decedent's estate, timely filed this action in the Circuit Court for Rutherford County against CSX and the conductor of the train. Over the next five years the parties conducted extensive discovery. On the first day of trial, the plaintiff voluntarily dismissed the case without prejudice. On the motion of the defendants, the Rutherford County Circuit Court assessed $34,098.27 in discretionary costs against plaintiff. In this appeal, plaintiff contends the Rutherford County Circuit Court lacked subject matter jurisdiction as a consequence of the common county rule, and that it erred in awarding discretionary costs. We have determined that the common county rule does not apply, the Rutherford County Circuit Court had subject matter jurisdiction, and that the court did not abuse its discretion in assessing discretionary costs of $34,098.27 against plaintiff after she voluntarily dismissed this action. Accordingly, we affirm the award of discretionary costs.

http://www.tba2.org/tba_files/TCA/2010/freemanp_110410.pdf

COTTRELL dissenting in the judgement
http://www.tba2.org/tba_files/TCA/2010/freemanp_DIS_110410.pdf


CATHERINE M. LOVE, as next friend and natural mother of Savannah Love, a minor child and daughter of Rex Bryan Peterson, deceased, ET. AL. v. DORIS LAKINS WOODS

Court: TCA

Attorneys:

Christopher T. Cain, Knoxville, Tennessee, for the appellants, Catherine M. Love, Rex Bryan Peterson and Michael Corey Peterson.

Jon M. Cope, Mary Jo Mann, Knoxville, Tennessee, for the appellee, Doris Lankins Woods.

Judge: STAFFORD

This case arises from the trial court's denial of Plaintiff/Appellants' motion to enforce a settlement agreement. Appellants, the surviving children of decedent, filed a wrongful death claim against the Appellee herein, the driver of a car involved in the accident that killed decedent. During negotiations, Appellee/Defendant's attorney proposed a settlement in the amount of Appellee's insurance policy limit, which Appellee's attorney misstated to be $100,000, when, in fact, the policy limit was $50,000. The trial court denied Appellants' motion to enforce the $100,000 settlement finding that the settlement was not enforceable, as it failed to contain certain material terms of the agreement. We conclude that the trial court failed to determine whether an agency relationship existed between the Appellee's attorney and the insurance company and also whether the insurance company is required to be a party to this litigation. Vacated and remanded.

http://www.tba2.org/tba_files/TCA/2010/lovec_110410.pdf


MICHAEL SZEMBORSKI, ET AL. V. ROGER SAYNER

Court: TCA

Attorneys:

Whitney Durand, Chattanooga, Tennessee, for the appellant, Roger Sayner.

Adam U. Holland, Chattanooga, Tennessee, for the appellees, Michael Szemborski and Julie Szemborski.

Judge: SUSANO

The order from which the appellant Roger Sayner seeks to appeal was entered in the trial court on August 18, 2010. A notice of appeal was filed with and received by the trial court clerk on September 21, 2010. Because the notice of appeal was not timely filed, we lack jurisdiction of this appeal. Accordingly, this appeal is dismissed with costs taxed to the appellant.

http://www.tba2.org/tba_files/TCA/2010/szemborskim_110410.pdf


KATHY MICHELLE FOWLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Doug Thurman, Nashville, Tennessee, for the appellant, Kathy Michelle Fowler.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Kathy Michelle Fowler, was indicted by the Davidson County Grand Jury in one indictment for domestic assault, harassment, and aggravated criminal trespass. Petitioner subsequently pled guilty to domestic assault. The remaining two charges were dismissed. Petitioner was sentenced to eleven months and twenty-nine days, to be served on probation. Petitioner filed a petition to expunge the dismissed charges pursuant to Tennessee Code Annotated section 40-32-101. After a hearing, the trial court denied the petition, concluding that the plain language of the statute excluded expungement of "cases in which the defendant has been convicted of a charge within the case." Petitioner filed a petition for a writ of certiorari in this Court. We granted the petition in order to determine if the trial court has exceeded its jurisdiction or has acted illegally. After a review of the record, we determine that based on this Court's decision in State v. Gerald Gifford, No. E2006-02500- CCA-R3-CD, 2008 WL 1813105 (Tenn. Crim. App., at Knoxville, Apr. 23, 2008), perm. app. denied, (Tenn. Oct. 27, 2008), the trial court herein improperly denied the petition to expunge the dismissed charges where Petitioner was indicted in a multi-count indictment, pled guilty to one count of the indictment, and the remaining charges were dismissed. The judgment of the trial court is, therefore, reversed and the matter is remanded to the trial court for further proceedings, including granting Petitioner's petition to expunge the dismissed charges of harassment and aggravated criminal trespass.

http://www.tba2.org/tba_files/TCCA/2010/fowlerk_110410.pdf


STATE OF TENNESSEE v. JEFFREY THOMAS PARDUE

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Jeffrey Thomas Pardue.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Jennifer McMillen, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Appellant, Jeffrey Thomas Pardue, was indicted by the Davidson County Grand Jury for burglary of a motor vehicle and theft of property valued at more than $1,000. A jury found Appellant guilty of both charges. The trial court sentenced Appellant to two years for burglary and three years for theft, and the sentences were ordered to be served concurrently. The trial court suspended the sentences and placed Appellant on probation. Appellant was also ordered to receive alcohol treatment and pay restitution in the amount of $1,184. After the denial of a motion for new trial, Appellant filed a timely notice of appeal. On appeal, Appellant argues that the evidence was insufficient to sustain the convictions. After a review of the record, we determine that the evidence was sufficient to support the convictions for burglary of a vehicle and theft of property valued at more than $1,000. Consequently, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/parduej_110410.pdf


Fetuses as Victims of Criminal Offenses

TN Attorney General Opinions

Date: 2010-11-04

Opinion Number: 10-110

http://www.tba2.org/tba_files/AG/2010/ag_10_110.pdf

Off-Duty Law Enforcement Officer Carrying Weapon to County School Board Meeting

TN Attorney General Opinions

Date: 2010-11-04

Opinion Number: 10-111

http://www.tba2.org/tba_files/AG/2010/ag_10_111.pdf

TODAY'S NEWS

Legal News
Election 2010
Passages
Upcoming
Career Opportunities
Disciplinary Actions
TBA Member Services

Legal News
Judge allows Fisk to sell part of art collection
Davidson County Chancellor Ellen Hobbs Lyle has ruled that Fisk University can sell a half-share in its Stieglitz collection to an Arkansas museum, but that only $10 million can be used to bolster the school's finances. The rest, an estimated $20 million, must be set aside in a trust to maintain the collection or preserve it if the school is forced to close. The Tennessean reports that neither Fisk nor the state attorney general is happy with the ruling. The attorney general released a statement today saying the sale would run "contrary to the express wishes of the donor."
Read more here
Tennessee joins coalition supporting immigration law
A coalition of 13 states, including Tennessee, is asking the U.S. Supreme Court to uphold an Arizona law penalizing employers of illegal immigrants. The court is scheduled to hear arguments next month on the 2007 law that allows business licenses to be suspended or revoked when employers knowingly hiring illegal immigrants. The Missouri attorney general's office is leading the coalition, which argues that states long have had the authority to license and regulate businesses.
The Tennessean reports
Ethics complaint filed against Judge Haynes
A Nashville woman whose daughter died at Monroe Carell Jr. Children's Hospital has filed an ethics complaint against Circuit Court Judge Barbara Haynes. The complaint alleges that Haynes ruled the hospital was not at fault in the girl's death without disclosing that she sits on the hospital's advisory board. The hospital responded that the board in question advises and advocates for the hospital and does not provide any governance. The Nashville Post business blog reported the news.
Read it here
West Memphis 3 granted rare hearing
The so-called West Memphis Three -- who were convicted in 1994 for the murder of three 8-year-old boys -- have been given a rare chance to argue their innocence before the Arkansas Supreme Court. The three were granted an evidentiary hearing to present new DNA evidence and witness testimony to the court. Lawyers for the men say the evidence proves their innocence and are hoping the court agrees and orders a new trial. In granting the hearing, the court found that the trial judge should have granted defense requests to test fibers and animal hairs found at the crime scene.
The Commercial Appeal reports
Retired justice supports 'ground zero' mosque
Retired Supreme Court Justice John Paul Stevens said today that Americans should be tolerant of plans to build an Islamic center and mosque near the site of the World Trade Center in New York. In remarks before the National Japanese American Memorial Foundation in Washington, Stevens argued that opposing the mosque is just as wrong as the "guilt by association" that led to the internment of thousands of U.S. citizens of Japanese descent during World War II.
Tri-Cities.com has this AP story
New resource for pro bono immigration cases
The American Immigration Lawyers Association (AILA) announced that it has expanded its Immigration Advocates Network (IAN) to allow individual pro bono attorneys representing low-income immigrants to access resources, information and forums previously available only to IAN members. The newly created Pro Bono Resource Center also provides a new venue for AILA experts to share their insights and advice with less experienced practitioners who want to get involved in pro bono immigration work. Download the association's news release or visit the online pro bono center to learn more.

Memphis Law ranked 8th for 'Quality of Life'
The Princeton Review has ranked the University of Memphis Cecil C. Humphreys School of Law as the eighth best school for quality of life in its 2011 survey of 172 law schools. The rankings are based on whether a school enjoys a strong sense of community, is aesthetically pleasing, has a healthy social life and has high quality classroom facilities and staff.
See the full list of rankings
Election 2010
Voters oust 3 judges in Iowa retention vote
On Tuesday, for the first time in Iowa's history, voters in the state ousted three Supreme Court justices in a retention election. The move, widely seen as a repudiation of a ruling last year that struck down a law prohibiting same-sex marriage, was particularly noteworthy because the justices were running unopposed. The Wall Street Journal reports that well-funded interests from outside the state helped topple the justices. Its Law Blog carries an interview with Todd Pettys, a law professor at the University of Iowa.
Read it here
Passages
Service for Sylvia Abraham Holder tomorrow
Services for Sylvia Abraham Holder will take place tomorrow, Nov. 5, at Calvary Episcopal Church in Memphis. The service will begin at 3 p.m. and be followed by a reception. Mrs. Holder, the mother of Tennessee Supreme Court Justice Janice M. Holder, died Sept. 28 at the age of 90. The family requests that in lieu of flowers, donations be made to St. Jude Children's Research Hospital.

Upcoming
Justice Breyer to speak at Vanderbilt Law
U.S. Supreme Court Justice Stephen Breyer will speak at the Vanderbilt Law School at noon on Nov. 16. His remarks will focus on themes in his newly released book, Making Our Democracy Work, A Judge's View. Signed copies of the book will be available for purchase in the Burch Room before and after the event. While the main auditorium will be reserved for current law students, members of the public are invited to watch the speech via video in the Renaissance Room. No tickets or reservations are needed. Those unable to attend may listen to the speech after the event on the school's website or watch it online at the school's YouTube page.
Learn more about the event
Career Opportunities
Employment law attorney sought in Chattanooga
Attorney placement firm Counsel On Call is seeking a labor and employment attorney for an in-house position in the legal department of a Chattanooga-based corporation. Qualified applicants will have at least three to five years of employment law experience, written and verbal communication skills and strong academic credentials. "Big firm" experience is strongly preferred. Candidates should send resumes to patty.wise@counseloncall.com.
Read more about the opening on JobLink
TACDL seeks executive director
Tennessee Association of Criminal Defense Lawyers (TACDL) is accepting applications for a new executive director. The association of 800 members provides support, and advocates in the courts and the legislature for the criminal defense bar. The executive director maintains the office and financial records, coordinates training, responds to membership inquiries and assists the board of directors. Candidates should have strong organizational skills, an outgoing personality and proficiency with modern technology. Interested individuals should submit a cover letter, resume and three references by Nov. 30 to the TACDL Personnel Committee at caryll_alpert@fd.org.
Download the job description
Disciplinary Actions
Nashville lawyer reinstated
Nashville lawyer Lynne Todd Edgerton was reinstated to the practice of law on Nov. 2 after complying with requirements for continuing legal education. She was suspended on Sept. 7 for failing to meet 2009 CLE requirements.
View all attorneys suspended and reinstated for 2009 CLE violations
TBA Member Services
Your customers expect you to deliver -- the new FedEx Tracking makes it easy
Lets face it. Information about your in-transit shipments is critical to your business. Now when you track a package on fedex.com, you have even greater visibility into the status of your shipments. You can customize your tracking results page, organize your shipments by status, easily send and receive proactive e-mail notifications on shipments, and save time with the updated and streamlined Signature Proof of Delivery request process.
Take advantage of your member discounts on select FedEx shipping services and FedEx Office business services

 
 
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