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Thursday, February 24, 2011

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Senate hearing for Sharp set for next week

The U.S. Senate Judiciary Committee has scheduled a March 2 hearing on the nomination of Nashville attorney Kevin Sharp as a judge on the U.S. District Court for the Middle District of Tennessee. Sharp was nominated by President Barack Obama last November. The hearing will be broadcast on the committee's website.

The Tennessean has more on the 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.

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00 - TN Supreme Court - Rules
02 - TN Court of Appeals
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01 - TN Attorney General Opinions
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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.

DANIEL CAVANAUGH, et al., v. AVALON GOLF PROPERTIES, LLC.

Court: TCA

Attorneys:

Gregory H. Harrison, Knoxville, Tennessee, for the appellants, Daniel Cavanaugh and Sharon Cavanaugh.

W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellee, Avalon Golf Properties, LLC.

Judge: FRANKS

Plaintiffs purchased a residential lot from defendant developer, but the purchase contract required plaintiffs to use defendant construction company to build their home. Before the home was completed, defendant construction company defaulted on paying materialmen and suppliers and abandoned the project. Plaintiffs brought this action alleging that developer knew, or should have know, that the construction company was incapable of performing the required construction services, and that the developer owed plaintiff a fiduciary duty to provide a contractor who could perform the work in a good, workmanlike manner. They further alleged a breach of contract, in violation of the Tennessee Consumer Protection Act. A default judgment was entered against the construction company, and the developer filed a Motion for Summary Judgment which the Trial Court ultimately granted against plaintiffs. Plaintiffs appealed and we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2011/cavanaugh_022411.pdf

CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL.

Court: TCA

Attorneys:

Joseph M. Clark and Edd Peyton, Memphis, Tennessee, for the appellants, Arsalan Shirwany, M.D. and East Memphis Pain Physicians, PLLC.

Marty R. Phillips and Michelle Greenway Sellers, Memphis, Tennessee, for the appellant, EM-I Medical Services, P.C.

W. Timothy Hayes, Jr. And Kimberly Cross Shields, Memphis, Tennessee, for the appellant AMISUB (SFH), Inc.

Bill M. Wade, Memphis, Tennessee, for the appellee, Curtis Myers.

Judge: FARMER

The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.

http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf

STATE OF TENNESSEE V. ASHLEY MAI COOK

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; Andrew Jackson Dearing, III, Assistant Public Defender; Michael J. Collins, Assistant Public Defender; William Harold, Assistant Public Defender; Cathy Hickerson, Assistant Public Defender; and Stephanie Barka, Assistant Public Defender, Shelbyville, Tennessee, for the for the appellant, Ashley Mai Cook.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; Michael D. Randles, Assistant District Attorney General; and Michael J. Collins, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Ashley Mai Cook, was convicted of conspiracy to commit first degree premeditated murder, a Class A felony, and first degree premeditated murder. She received consecutive sentences of twenty years as a Range I offender for conspiracy to commit first degree murder and life imprisonment for first degree murder. On appeal, she contends that the evidence is insufficient to support her convictions; that the trial court erred in denying her motion for expert services; that the trial court erred in not charging the jury that Megan Jones was an accomplice; and that her sentence was excessive. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/cooka_022411.pdf

STATE OF TENNESSEE v. JONATHAN LONDONO

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Jonathan Londono.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jonathan Londono, was convicted by a Davidson County jury of conspiracy to commit aggravated robbery, facilitation of felony murder, facilitation of especially aggravated robbery and facilitation of aggravated robbery. He was sentenced to an effective sentence of forty-nine years. Appellant was resentenced after an unsuccessful appeal to this Court, an unsuccessful appeal to the Tennessee Supreme Court, a remand from the United States Supreme Court to the Tennessee Supreme Court, and a remand from the Tennessee Supreme Court to the trial court for resentencing. As a result, Appellant's sentence was enhanced based upon one enhancing factor, that he had a previous history of criminal convictions and criminal behavior. The trial court sentenced Appellant to an effective sentence of forty-nine years. Appellant appeals his sentence arguing that the trial court erred in basing the application of the enhancing factor on convictions that occurred in the time between the commission of the offenses in question and the imposition of his sentence for the offenses in question. We determine that based upon prior case law in this State the trial court did not err. Therefore, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/londonoj_022411.pdf

STATE OF TENNESSEE v. JOHN ANTHONY PARTIN

Court: TCCA

Attorneys:

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, John Anthony Partin.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; and David Shinn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Sequatchie County Grand Jury indicted Appellant, John Anthony Partin, for one count of driving under the influence ("DUI") and one count of violation of the implied consent law. Appellant filed a motion to suppress the evidence collected as a result of his interaction with the law enforcement officer. The trial court denied the motion to suppress. Subsequently, Appellant pled guilty to one count of DUI, first offense and reserved a certified question of law for appeal to this Court. After a review of the record on appeal, we conclude that Appellant did not properly reserve his certified question. Therefore, this Court has no jurisdiction to hear this appeal, and the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2011/partinj_022411.pdf

FALLON LYNN TALLENT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rebecca Brady, Cookeville, Tennessee, for the appellant, Fallon Lynn Tallent.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Robert Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Fallon Lynn Tallent, was convicted in Wilson County of two counts of premeditated murder and sentenced to two, consecutive life terms. The convictions were affirmed on direct appeal, and the supreme court denied permission to appeal. State v. Fallon L. Tallent, No. M2005-00183-CCA-R3-CD, 2006 WL 47090 (Tenn. Crim. App., at Nashville, Jan. 10, 2006), perm. app. denied, (Tenn. May 1, 2006). Petitioner filed a pro se petition for post-conviction relief. It was denied without a hearing. Petitioner appealed to this Court. On appeal, this Court reversed the judgment of the post-conviction court and remanded the case for appointment of counsel. Fallon Lynn Tallent v. State, No. M2007-01336-CCA-R3-PC, 2008 WL 762486, at *5 (Tenn. Crim. App., at Nashville, Mar. 24, 2008). On remand, counsel was appointed, and an amended petition for post-conviction relief was filed. After a hearing on the petition, the post- conviction court denied relief and dismissed the petition. Petitioner has appealed the denial of post-conviction relief. After a thorough review of the record, we determine that Petitioner has failed to show that she received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/tallentf_022411.pdf

ARLIE RAY THOMAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Bryant C. Dunaway, Cookeville, Tennessee, for the appellant, Arlie Ray Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Randy York, District Attorney General; and Beth Willis, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Arlie Ray Thomas, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of trial counsel because counsel failed to challenge the affidavits supporting the arrest and search warrants, and that counsel failed to properly interview a witness. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/thomasa_022411.pdf

Tenn. Code Ann. Section 36-3-301(c): Legality of Compensation for Performing Marriages

TN Attorney General Opinions

Date: 2011-02-24

Opinion Number: 11-18

http://www.tba2.org/tba_files/AG/2011/ag_11_18.pdf

TODAY'S NEWS

Legal News
Tenn. Government
Passages
Upcoming
Career Opportunities
Disciplinary Actions
TBA Member Services

Legal News

Judge pledges quick resolution of TennCare suit

Senior Judge Thomas Wiseman Jr. -- the third and latest judge assigned to a 13-year-old class-action lawsuit regarding health care for 750,000 children on TennCare -- says he is practical man and impatient with delays. The case affects more than a third of all children in the state but has stalled for years through appeals, battles over documents and allegations of improper behavior by two prior judges. Suggesting that a trial on unresolved issues could start in as little as two weeks, Wiseman said, "This case is 13 years old...From this point, it's going to be expedited."

WBIR.com has this report

Paper thanks Overbey for 'no' vote on AG bill

An editorial in the Mountain Press today commends state Sen. Doug Overbey, R-Maryville, for voting against a bill that would require election of the state the attorney general. He was the only Republican to oppose the measure during committee consideration this week. The editorial board said Overbey "showed a great deal of political courage."

Read the editorial

Special Counsel names Tennessee director

Anna Cates Williams has been named placement director for the Tennessee office of Special Counsel Inc., a search and placement firm that recruits attorneys for healthcare ventures. Previously, Williams was an attorney at Medical Reimbursements of America in Franklin. She earned her law degree from Cumberland School of Law and her MBA from the Brock School of Business, both at Samford University. In her new role, she will focus on lateral attorney placement and business development.

The Nashville Post has more

Tenn. Government

Haslam names communications director

Gov. Bill Haslam announced today that Alexia Poe -- current director of economic and community development for the city of Nashville -- will join his office as communications director. Poe has spent most of her career in public service. She worked in the Sundquist administration, where she became the youngest person in state history to serve as press secretary for a governor. She then moved to Washington, D.C., where she worked in the White House as deputy press secretary to First Lady Laura Bush and then as press secretary for U.S. Senator Lamar Alexander.

The Nashville Business Journal reports

Passages

Services Saturday for Memphis lawyer

Memphis lawyer James E. "Jeb" Blount III died Tuesday at the age of 68. Blount was a lifelong resident of Shelby County and a graduate of the University of Memphis School of Law. His family will receive friends on Saturday, from 11:30 a.m. to 1 p.m. at the Emmanuel United Methodist Church, 2404 Kirby Rd., Memphis. The funeral service will follow at 1 p.m. Memorial contributions may be made to the American Heart Association or the church.

Upcoming

Entertainment lawyer to speak in Memphis

The Memphis & Shelby County Music Commission and the Sports & Entertainment Law Society of the University of Memphis School of Law will host a forum with entertainment attorney Lita T. Rosario on Feb. 28 from 6 to 9 p.m. at the law school. The seminar's focus will be "Turning Melodies into Royalties." Rosario, who is president and CEO of WYZ Girl Entertainment Consulting, has worked with Grammy award winner Missy Elliot, major record labels and music video television stations MTV, VH1 and BET. The event is free and open to the public. For more information contact Pamela Williams Kelly.

RSVP online

Career Opportunities

Healthcare lawyers sought in Nashville

Counsel On Call is seeking an attorney who has experience drafting corporate document retention policies for a healthcare company in Nashville. The position will involve research, meeting with corporate employees, reviewing former policies and drafting proposed new policies. Candidates should have experience in the healthcare industry and knowledge of industry standards for document retention. The assignment is expected to last several months. Send resumes to Claudia Levy.

Counsel On Call also is interviewing attorneys who have healthcare billing experience. This is a long-term, reduced hour position with a company in the Nashville area. Candidates should have significant healthcare operations and Medicare billing experience. Interested individuals should send resumes to Patty Wise.

Learn more about both positions on JobLink

Disciplinary Actions

Elizabethton lawyer suspended

On Feb. 17, Thomas Ewing Cowan of Elizabethton was suspended from the practice of law for three years. He was directed to pay $1,500 in restitution to a former client and pay the costs of his disciplinary proceeding. Cowan was suspended for (1) failing to notify a court that he was suspended; (2) failing to appear in court as ordered; (3) being extremely negligent in the management of his office; (4) failing to avoid a conflict of interest; (5) failing to comply with deadlines, respond to motions, draft and file orders, and communicate the status of cases to clients; and (6) failing to respond in a timely manner to disciplinary complaints.

Download the BPR release

2nd suspension imposed on Tullahoma lawyer

On Feb. 17, the Tennessee Supreme Court suspended Robert Thomas Carter Jr. after he pleaded guilty to felony theft of property in the amount of $10,000 to $60,000. The court previously had suspended Carter on July 21, 2010, for failure to comply with a Tennessee Lawyers Assistance Program monitoring agreement.

Read the BPR notice

Memphis lawyer censured

On Feb. 16, Memphis lawyer Peggy J. Lee was publicly censured by the Tennessee Supreme Court. The court determined that Lee violated the Rules of Professional Conduct by failing to keep adequate trust account records.