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| Wednesday, February 23, 2011 |
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Nominations for Corporate Counsel awards due Friday
Nominations for the 2011 Corporate Counsel Pro Bono Initiative Awards are due this Friday, Feb. 25. Don't miss your opportunity to nominate a Tennessee law firm or corporate legal department that exemplifies extraordinary commitment to access to justice ideals, pro bono service and the Corporate Counsel Covenant of Service. Recipients will be chosen by a special selection panel and will be announced during the Corporate Counsel Pro Bono Initiative Gala March 26 in Nashville.
Make an award nomination or learn more about the gala here
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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.
02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
06 - 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
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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.
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist022311.pdf
KRISTEN COX MORRISON v. PAUL ALLEN ET AL.
CORRECTION on page 1 deletes indentation from the introductory paragraph and on page 19, adds the word "of" to "by the Washington Court Appeals" in the first line of the first full paragraph
Court: TSC
Attorneys:
William Ray Hannah, John Gerald Jackson, Richard W. Bethea, David A. Love, and William M. Barker, Chattanooga, Tennessee, and Peter Harwood Curry, Nashville, Tennessee, for the appellants, Paul Allen, Jody Roberts, and Wiley Bros.-Aintree Capital, LLC.
Donald N. Capparella, Amy J. Farrar, and Candi Renee Henry, Nashville, Tennessee, for the appellee, Kristen Cox Morrison.
Judge: WADE
After the death of her husband, the plaintiff filed suit against their agents/financial planners based upon several theories of recovery in regard to the termination of a life insurance policy from one company and the acquisition of a replacement policy from a second company. After initially contesting the award of benefits, the second company, which was also named as a defendant in the suit, settled with the plaintiff. At the conclusion of the bench trial as to the liability of the agents, the plaintiff was awarded substantial damages as to each policy based upon various theories of recovery: the agents' failure to procure a life insurance policy as directed, negligence, negligent misrepresentation, breach of fiduciary duty, and violation of the Tennessee Consumer Protection Act. The Court of Appeals affirmed in part, but held that the damages in contract relating to the failure to procure should be offset by the amount of the plaintiff's pre-trial settlement with the second insurance company. Because of the nature of the issues presented, this Court granted permission to appeal. As to the policy for which benefits were denied by the second company, we hold that (1) a cause of action may arise for the failure of the agents to procure a policy not subject to contest; (2) the claim for failure to procure may be actionable, notwithstanding the policy holders' admission that they did not read the insurance application; and (3) because the settlement by the second life insurance company was not specifically resolved based upon contract, the agents are not entitled to a credit against damages caused by their failure to procure. As to the policy terminated by the plaintiff, we hold that the evidence preponderates against any award of damages based upon negligence, negligent misrepresentation, breach of fiduciary duty, or violations of the Tennessee Consumer Protection Act. Finally, we hold that the ad damnum clause in the complaint provided the agents with sufficient notice to support a damage award in the amount of $1,000,000 plus pre-
judgment interest. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cause is remanded to the trial court for determination of post-
judgment interest.
http://www.tba2.org/tba_files/TSC/2011/morrisonk_COR_022311.pdf
MORGAN DEVELOPMENT, LLC, ET AL. v. RAYMOND W. MORROW, ET AL.
Court: TCA
Attorneys:
Raymond E. Lacy and Anya R. East, Knoxville, Tennessee, for the appellants, Morgan
Development, LLC and Del Morgan.
Bill W. Petty and Anne Greer, Knoxville, Tennessee, for the appellees, Realty Executives Associates, George Dykeman, and Steve Fogarty d/b/a Realty Executives Associates, Northshore Office.
Judge: MCCLARTY
This appeal involves a failed real estate transaction. Real estate brokers and Raymond Morrow ("Seller") entered into an agreement to show an unlisted property. Seller did not
own the property, but he claimed to have the property under contract with the owner. After the brokers showed the property to Morgan Development and Del Morgan ("Buyers"),
Buyers and Seller entered into an agreement for the sale of the property. The transaction was never completed because Seller could not deliver marketable title. Buyers initiated a lawsuit against the brokers along with Seller and the owners of the property, alleging negligent business representation and fraud. The brokers moved for summary judgment. The trial court granted summary judgment and dismissed Buyers' suit against the brokers because the purchase agreement included a disclaimer. Buyers appeal. We affirm.
http://www.tba2.org/tba_files/TCA/2011/morgandev_022311.pdf
DONALD J. ROBERTS IRA, ET AL. v. PHILLIP H. MCNEILL, SR., ET AL.
Court: TCA
Attorneys:
John S. Golwen, Annie T. Christoff, Memphis, Tennessee and Edward J. Fuhr and Trevor S. Cox (pro hac), Richmond Virginia, for the appellants, Phillip H. McNeill, Sr., Howard A.
Silver, Harry S. Hays, Raymond E. Schultz, Robert P. Bowen and Joseph W. McLeary.
Alan G. Crone, Memphis, Tennessee, and Lee A. Weiss (pro hac vice), New York, NY, for the appellees, Donald J. Roberts IRA, Dr. James M. Byers IRA Rollover, Patrick Svoboda IRA, Svoboda Realty, Inc. Defined Benefit Plan, and Jack Fulton.
Judge: FARMER
This is an interlocutory appeal from a class certification. The named plaintiffs, former owners of preferred stock in Equity Inns, Inc., filed a class action against the company's former directors. Their amended complaint asserted breaches of the fiduciary duties allegedly owed to the preferred shareholders during the negotiation and approval of a merger. The trial court granted the plaintiffs' motion for class certification with respect to "[a]ll holders of Equity Inns preferred stock as of June 21, 2007." We vacate and remand for further consideration.
http://www.tba2.org/tba_files/TCA/2011/robertsd_022311.pdf
STATE OF TENNESSEE v. MICHAEL PIERRE ADAMS
CORRECTION on page 3, 3rd paragraph, last line replaces "e3b" with "(e)(4)"
Court: TCCA
Attorneys:
Hannah C. Stokes, Chattanooga, Tennessee, for the appellant, Michael Pierre Adams.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophie S. Lee, Assistant Attorney General; William H. Cox, III, District Attorney General; Lance Pope, Assistant District
Attorney General; and Cameron Williams, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: THOMAS
The Defendant, Michael Pierre Adams, appeals as of right from the Hamilton County Criminal Court's revocation of his community corrections sentences and order of incarceration. The Defendant contends that (1) the trial court's revocation is erroneous and based upon insufficient proof and (2) the State failed to provide him with adequate discovery before the hearing. Additionally, the judgments of the trial court do not reflect that the Defendant was given credit for time served in community corrections. See Tenn. Code Ann. section 40-36-106(e)(4). Following our review, we affirm the judgments of the trial court but remand the case for correction of the judgments to reflect credit for time served in community corrections.
http://www.tba2.org/tba_files/TCCA/2011/adamsm_COR_022311.pdf
STATE OF TENNESSEE v. DANNY LYNN DAVIS
CORRECTION in the attorneys list deletes Renee Turner and adds Rachel Harmon as Assistant Attorney General
Court: TCCA
Attorneys:
Clifton Corker and Gene Scott (at trial), Johnson City, Tennessee, for the appellant, Danny Lynn Davis; and Danny Lynn Davis (on appeal), pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Danny Lynn Davis, was convicted at a bench trial in the Washington County Criminal Court of theft of property valued at $60,000 or more, a Class B felony; official
misconduct, a Class E felony; and twenty-five counts of forgery, Class E felonies. See T.C.A. sections 39-14-103 (theft); 39-16-402 (official misconduct); 39-14-114 (forgery). He was sentenced to ten years for the theft conviction and to one year for each of the Class E felony convictions, all to be served concurrently with one year of split confinement and the remaining nine years on probation. In this appeal, the Defendant contends that (1) the victim, the city of Johnson City, had no standing to allege the crimes, (2) the prosecution of the forgery and official misconduct offenses was barred by the statute of limitations; (3) the evidence was insufficient to support his convictions; (4) the trial judge should have recused himself because the judge's wife was an employee of the city of Johnson City; and (5) he was deprived of the opportunity to prepare a proper defense because the trial court failed to release his income tax records during discovery. We note that two of the convictions were rendered on counts dismissed by the State during trial. We vacate the convictions for forgery in Counts 23 and 27, but we affirm the remaining judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/davisd_COR_022311.pdf
DARRELL LAMAR FRITTS v. DAVID SEXTON, WARDEN
Court: TCCA
Attorneys:
Darrell Lamar Fritts, Pro Se, Mountain City, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Jerry N. Estes, District Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
A Monroe County jury convicted Petitioner of second degree murder. State v. Darrell Fritts, No. 132, 1992 WL 236152, at *1 (Tenn. Crim. App., at Knoxville, Sept. 25, 1992), perm. app. dismissed, (Tenn. Feb. 1, 1993). Petitioner was unsuccessful on appeal. Id. at *10. Petitioner subsequently filed a petition for post-conviction relief that was denied. Darrell Fritts v. State, No. 03C01-9803-CR-00116, 1999 WL 604430, at *1 (Tenn. Crim. App., at Knoxville, Aug. 12, 1999). On appeal, this Court upheld the post-conviction court's denial of the petition. Petitioner subsequently filed two petitions for writ of habeas corpus relief in the Monroe County Court. The first writ was dismissed because it was filed in Monroe County as opposed to the Johnson County Court which is the closest court in distance. With regard to the second writ, the State filed a motion to dismiss based upon the fact that the
issues had already been determined by this Court on appeal from the denial of the post-conviction petition and that ineffective assistance of counsel at trial is not a cognizable issue for habeas corpus. The habeas corpus court granted the motion. Petitioner appeals the dismissal of both writs. The appeals have been consolidated in this Court. After a thorough
review of the record, we conclude that the dismissal of the writs was correct. Therefore, we affirm the dismissals by the habeas corpus court.
http://www.tba2.org/tba_files/TCCA/2011/frittsd_022311.pdf
CHARLES LAMB v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Donna Miller (on appeal); and Samuel F. Robinson III (at hearing), Chattanooga, Tennessee, for the appellant, Charles Lamb.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; William H. Cox III, District Attorney General; and William Hall, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WITT
Aggrieved of his convictions of first degree murder and conspiracy to commit first degree murder, the petitioner, Charles Lamb, filed a timely petition for post-conviction relief
alleging that he had been deprived of the effective assistance of counsel. In this appeal, he challenges the denial of his bid for post-conviction relief. Discerning no error, we affirm the
judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/lambc_022311.pdf
STATE OF TENNESSEE v. JEREMY STEPHEN PARKS
Court: TCCA
Attorneys:
J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Stacey Nordquist, Assistant Public Defender (at trial), for the appellant, Jeremy Stephen Parks.
Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Mike Flynn, District Attorney General; and Stephen Ogle, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Jeremy Stephen Parks, pled guilty to sexual exploitation of a minor, a Class D felony. See T.C.A. section 39-17-1003 (2010). He was sentenced as a Range I, standard
offender to four years' confinement, with six months to be served in the Blount County Jail and the remainder to be served on supervised probation with multiple special conditions. On appeal, he contends that the trial court erred during sentencing by (1) denying judicial diversion, (2) imposing the maximum sentence in the range and ordering confinement, and (3) imposing unreasonable terms of probation. We affirm the conviction and the length of the Defendant's sentence, but we modify the special conditions of probation.
http://www.tba2.org/tba_files/TCCA/2011/parksj_022311.pdf
STATE OF TENNESSEE v. MICHAEL W. POE
Court: TCCA
Attorneys:
Larry G. Roddy, Dayton, Tennessee, for the appellant, Michael W. Poe.
Robert E. Cooper, Jr., Attorney General and Reporter, Matthew Bryant Haskell, Assistant Attorney General; J. Michael Taylor, District Attorney General; and James Pope, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
Following a jury trial, the Defendant, Michael W. Poe, was convicted of first degree felony murder and aggravated child abuse, a Class A felony. See Tenn. Code Ann. section 39-13-202, -15-402(b). The trial court sentenced the Defendant to consecutive terms of life in prison for his first degree felony murder conviction and twenty-five years as a violent offender for his aggravated child abuse conviction. In this direct appeal, the Defendant contends that: (1) the
trial court erred when it denied his motion for judgment of acquittal; (2) the trial court erred when it failed to declare a mistrial after one juror made a comment to another juror about the trial; (3) the trial court erred in failing to ask the other jurors whether they heard the comment at issue; (4) the trial court erred when it failed to remove or disable the televisions and radios from the jurors' motel rooms; (5) the trial court erred when it applied two inapplicable enhancement factors and failed to consider one mitigating factor; (6) the trial court erred when it imposed consecutive sentences; (7) the trial court did not award the proper amount
of jail credit; and (8) the trial court erred when it failed to dismiss the indictment. After our review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/poem_022311.pdf
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| TODAY'S NEWS |
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Congressional News
Legal News
Upcoming
Career Opportunities
TBA Member Services
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| Congressional News |
| House cuts $70 million from current LSC funding |
| The U.S. House of Representatives voted over the weekend to cut $70 million from the Legal Services Corporation (LSC) funding in the current fiscal year. An effort to eliminate all funding for LSC programs previously was defeated on a bipartisan vote. The agency estimates that the cuts will force layoffs of about 370 staff attorneys, shut down offices in rural areas and deny 160,000 low-income people the civil legal assistance they need. The budget bill now goes to the Senate. |
Read more from the agency
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| Legal News |
| Leadership class takes on policy, politics |
| The Tennessee Bar Association's Leadership Law class was in Nashville today for a program on Issues in Policy and Politics. The group of about 30 emerging leaders in the Tennessee legal community heard from lawyer legislators, executive branch officials and lobbyists, in addition to Attorney General Robert Cooper. The class ended the day by attending the TBA's Annual Big Shrimp Legislative Reception at the Tennessee Bar Center. |
Learn more about the TBA Leadership Law program
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| Kentucky acquires key execution drug |
| The state of Kentucky has acquired a key drug used in lethal injections from a Georgia company. The drug, one of three used in lethal injection, has been in short supply since the sole U.S. manufacturer halted production. Though the state now has access to the drug it cannot schedule any executions. The Kentucky Supreme Court is reviewing a judge's order regarding the state's lethal injection procedures and has halted all executions in the interim.
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WKRN News 2 in Nashville reports
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| Two new judges take office |
Two new judges took office this week. In the 2nd Judicial District, former Sullivan County Commissioner Ray Conkin edged out county attorney Dan Street on Tuesday to become the next general sessions judge. The county commission appointed Conkin to fill the post until the next general election in August 2012. The seat is open due to the retirement of longtime judge Duane Snodgrass.
Read more in the Times News
In the city of Graysville, Signal Mountain lawyer Robert D. Philyaw was recently appointed city court judge. Philyaw has practiced in Chattanooga and surrounding counties for nearly 10 years. He graduated from the University of Memphis School of Law and began his practice with the former firm of Shumacker & Thompson.
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The Rhea County Herald-News has that story
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| UT Law fields first dispute resolution team |
| The University of Tennessee College of Law's first-ever International Mediation Team competed in the International Academy of Dispute Resolution's (INADR) 10th Annual Law School Invitational this past weekend. Team member Aaron Gentry, a third year student, was named Best Mediator of the competition, achieving a score of 59 out of 60. Gentry, along with TJ Hatter and Yusuf Malik, formed the team after learning about the competition. College of Law professor Becky Jacobs advised the team. |
Learn more about the INADR
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| New Hamblen bar president named |
| Mark Cowan is the new president of the Hamblen County Bar Association. He works with the firm of Swanson & Cowan in Morristown.
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| Prof. raises concerns about discrimination proposal |
| James Blumstein, a constitutional law scholar at Vanderbilt University Law School, is raising legal concerns about Nashville Metro Council's contractor non-discrimination proposal. The legislation would require city contractors to pledge not to discriminate based on sexual orientation or gender identity. Blumstein has approached the city about provisions in the measure that could run afoul of the U.S. Constitution's Commerce Clause and the Employee Retirement Income Security Act (ERISA).
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Read more about the issue in the Tennessean's political blog
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| Harold Ford Jr. joins Morgan Stanley |
| Morgan Stanley yesterday announced that former U.S. Rep. Harold Ford Jr. has joined the firm as a managing director and senior client relationship manager. Ford will be responsible for building business opportunities for clients and helping client teams deliver financial advice and products most effectively. He also will manage relationships with corporate directors and senior executives, institutional investors and private clients. Ford served in Congress from 1996 to 2007 from the 9th district of Tennessee.
Most recently he was vice chairman and senior policy advisor at the Bank of America.
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Learn more about the move from Business Wire
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| Upcoming |
| Mediation coalition to honor 2 legal leaders |
| The Coalition for Mediation Awareness will honor Chattanooga lawyer Shelby Grubbs and Knoxville lawyer Robert Murrian at its fourth annual luncheon on Feb. 24. The two will receive the group's annual award for contributions to the field of mediation in Tennessee. As chair of the Tennessee Supreme Court Commission, Grubbs moved alternative dispute resolution into the mainstream of the state's legal system and served as the first chair of the Tennessee Alternative Dispute Resolution Commission. As a magistrate judge, Murrian was an early adopter of ADR and chaired the committee that established Tennessee's first court-annexed federal mediation program. Tickets to the luncheon are $30 and may be purchased online. |
Learn more about the award in this coalition press release
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| Memphis to host collegiate mock trial tournament |
| Memphis has been selected to host the opening rounds of the American Mock Trial Association's National Championship Tournament for undergraduate students. The tournament will be held March 25-27 at the Shelby County Courthouse. The Rhodes College Mock Trial Team is seeking volunteers to judge one or more of the four rounds of competition. |
Download a response form
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| Career Opportunities |
| Lawyers needed for e-discovery work |
| Counsel On Call is seeking experienced litigation attorneys to assist with electronic discovery review and analysis for a number of Fortune 50 companies. Successful candidates would be able to work full-time or reduced-hour schedules. Applicants should have three years of litigation experience, preferably in a law firm or corporate environment. Prior electronic document review experience is strongly preferred.
Send resumes to Claudia Levy at claudia.levy@counseloncall.com
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Learn more on JobLink
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| TBA Member Services |
| First Tennessee is TBA's preferred provider |
| First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. |
Find savings on merchant credit services, checking and savings, financial planning and more
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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 2011 Tennessee Bar Association
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