Tuesday, March 22, 2011
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Editorial: Appointment of attorney general works

The Commercial Appeal speaks out against changing the state's Constitution to allow for election of the attorney general, pointing out that "In recent history Tennessee attorneys general have performed without a hint of scandal. None has gone on to higher office. They have made few headlines performing simply as the people's lawyer."

Advocates of direct election argue, the editorial continues, that an attorney general in the political majority would not have declined to join a legal challenge of the new federal health care reform law. That decision, by Attorney General Robert Cooper, however, "demonstrates one of the advantages of an attorney general who is a step or two removed from politics -- the freedom to express an opinion on the constitutionality of a legislative act or legal action without regard to political winds."

Read this editorial
TODAY'S OPINIONS
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DAVID A. LUFKIN, SR. v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Court: TSC

Attorneys:

Thomas F. Mabry, Seymour, Tennessee, for the appellant, David A. Lufkin, Sr.

Sandy Garrett, Nashville, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Judge: LEE

An attorney who was suspended from the practice of law for two years and assessed costs associated with the suspension proceedings appeals to this Court for relief from all or a portion of the assessed costs. While this appeal was pending, the attorney filed a Chapter 7 bankruptcy petition, and his pre-bankruptcy debts were discharged by order entered by the Bankruptcy Court on December 10, 2010. We hold that the assessment of costs of the disciplinary proceeding was a debt that was discharged in the attorney's bankruptcy case and is, therefore, no longer due and owing. Accordingly, the attorney's appeal to this Court is moot.

http://www.tba2.org/tba_files/TSC/2011/lufkind_032211.pdf
DAVID BATES D/B/A DAVID BATES CONSTRUCTION CO. v. CAROLINE BENEDETTI

Court: TCA

Attorneys:

Michael S. Shipwash, Knoxville, Tennessee, for the appellant, Caroline Benedetti.

Bill W. Petty, Knoxville, Tennessee, for the appellee, David Bates d/b/a David Bates Construction Co.

Judge: SWINEY

David Bates d/b/a David Bates Construction Co. ("Plaintiff") sued Caroline Benedetti ("Defendant") for breach of a construction contract involving demolition of an existing residential garage and construction of a new one. Defendant answered the complaint and filed a counterclaim. After a bench trial, the Trial Court entered its order finding and holding, inter alia, (1) that Plaintiff had not proven damages, (2) that Defendant had failed to comply with Tenn. Code Ann. section 66-36-103 with regard to her counterclaim and, therefore, pursuant to the statute her counterclaim should be abated, and (3) that Defendant also had failed to give notice and an opportunity to cure pursuant to the common law and that her counterclaim should be dismissed for that reason as well. Defendant appeals the abatement and dismissal of her counterclaim. We find that Tenn. Code Ann. section 66-36-103 does not apply to the case at hand, but that the Trial Court correctly dismissed Defendant's counterclaim. We, therefore, affirm the Trial Court's order.

http://www.tba2.org/tba_files/TCA/2011/batesd_032211.pdf
STATE OF TENNESSEE v. KENNETH CLAY
CORRECTION: The opinion has been revised to remove highlighted portions that were inadvertently included in the version released on March 15, 2011

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender, and Patrick McGill, Assistant Public Defender, Dyersburg, Tennessee, for the appellant, Kenneth Clay.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Phillip Bivens, District Attorney General; and Rachel Willis and Lance Webb, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A jury convicted the defendant, Kenneth Clay, of two counts of facilitation of the sale of less than .5 gram of cocaine, Class D felonies. The trial court sentenced the defendant, as a career offender, to concurrent twelve-year sentences for each count. On appeal, the defendant argues that (1) the evidence was insufficient to convict him of facilitation of the sale of a Schedule II narcotic less than .5 gram; (2) the court erred by admitting evidence of the defendant's prior convictions for the sale of Schedule II narcotics; and (3) the statutes under which the court sentenced him are unconstitutional as applied to him. After reviewing the record, the parties' briefs, and applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/clayk_COR_032211.pdf
TRAVIS DEAN JACKSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Travis Dean Jackson, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Mike unavant, District Attorney General; and Ray Crouch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Travis Dean Jackson, appeals the Hardeman County Circuit Court's dismissal of his petition for habeas corpus relief from his 2008 conviction for rape of a child. He claims his conviction is void because his guilty plea was not knowing and voluntary and was the result of misrepresentations that he would receive sentence reduction credits that were not applicable to his conviction. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/jacksont_032211.pdf
STATE OF TENNESSEE v. CORNELIUS O'BRIEN LOVE

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Cornelius O'Brien Love.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Cornelius O'Brien Love, pled guilty to aggravated burglary, a Class C felony, and theft of property worth at least $500 but less than $1,000, a Class E felony. See T.C.A. sections 39-14-403, 39-14-103, 39-14-105(2) (2010). He was sentenced as a Range I, standard offender to four years' incarceration for aggravated burglary and two years' incarceration for theft, with the sentences to be served concurrently. He was ordered to pay $1,906.06 in restitution to the victims. On appeal, the Defendant contends that the trial court erred by imposing confinement. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/lovec_032211.pdf
TODAY'S NEWS
Legal News
General Assembly News
U.S. Supreme Court
Passages
Upcoming
TBA Member Services
Legal News
Shriver Towers dedicated
The observation towers on the Southeast corner of the Nashville Davidson County Courthouse were dedicated yesterday to the memory of former judge and district attorney, Tom Shriver. By ordinance of the Metro Council, the towers overlooking Public Square Park are now called the Thomas H. Shriver Towers. The ordinance was introduced by Councilman Mike Jamison pursuant to a resolution of the board of the Nashville Bar Association. The Nashville Bar Journal reported the news.
Editorial: Court of Judiciary should act in Moon case
In an editorial, the Times Free Press comments on recent allegations against Judge Bob Moon, saying that "if true, they would suggest ... [he] assumed the role of police and prosecutor in his court, laying charges against defendants that were not brought by the police or district attorney general's office, and jailing the defendants without advising them of their rights or providing them an opportunity to legal counsel to defend themselves." Moon told the paper's reporter that the charges reflect "just a difference of legal opinion." The paper writes: "The Court of the Judiciary doesn't act quickly or particularly forcefully, but it should do better when it comes to enforcing the application of basic constitutional standards."
Read this editorial
Volunteers needed for legal services' phone-a-thon
The Spring phone-a-thon to benefit the Legal Aid Society of Middle Tennessee and the Cumberlands and the Nashville Pro Bono Program starts next week. Volunteers are needed for two-hour shifts between March 29 and April 13 to make calls to fellow attorneys from the LAS office, 300 Deaderick St., in Nashville. To volunteer, contact Cindy Durham at cdurham@las.org or 615-780-7125.
Learn more about the Legal Aid Society
Some inmates to be released early to shave budget
Tennessee plans to release about 2,200 prison inmates two months earlier than their full sentences to save $5.7 million over the next year. Because of the state budget crunch, the Department of Correction had to cut at least 1 percent of its budget, or almost $6 million. That's on top of $13.8 million the department saved last year by freezing more than 330 positions and $600,000 saved by giving inmates less milk at meals.
The Tennessean reports
Google Books settlement a no-go
A federal judge has rejected a proposed $125 million class action settlement that would have allowed Google Inc. to avoid potential liability for creating a massive online digital library of out-of-print, copyrighted books by creating a registry to compensate authors.
Read more at ABAJournal.com
General Assembly News
Steakley says election commission at fault
A complaint in a close election has been changed to move blame from the winning candidate to the county's election commission itself. Republican Gary Steakley lost the November election to incumbent Charlotte Burks by less than 200 votes. He protested, claiming Burks had acted improperly. This week Steakley's attorney, Gary Blackburn, changed that complaint to one that alleges the Putnam County Election Commission didn't hold a fair election. He says the election was so bad that it should be re-held. The special Senate committee reviewing the appeal of the election is scheduled to have a full hearing on March 31.
WPLN.org has the story
U.S. Supreme Court
Oral complaints protected in workplace
Workers are protected from retaliation when they voice complaints about labor law violations, even if they don't write them down, the U.S. Supreme Court said today. At issue is statutory language protecting workers from retaliation if they have "filed any complaint." In his majority opinion, Justice Stephen G. Breyer said the purpose and context of the provision support the conclusion that the oral complaint was protected.
ABAJournal.com gives you more
Court won't take on rap artist dispute
The U.S. Supreme Court won't get involved in a royalty dispute between Universal Music Group and rap artist Eminem, leaving intact a lower court ruling that opens the door to bigger payouts for the self-made singer and perhaps far-reaching implications for other record deals.
Read it in the Tennessean
Passages
Father Joseph Tagg, Memphis law grad, dies
Father Joseph Laughlin Tagg III died March 19. He was 66. Following graduation from the Cecil C. Humphreys School of Law and passage of the Tennessee Bar in 1971, he joined the law firm of Gerber, Gerber and Agee. He practiced law until 1974, when he sought his life-long passion of entering the Catholic priesthood. Visitation will be 5 to 7 p.m. March 23, with a Rosary at 6:30 p.m. at The Cathedral of the Immaculate Conception. The Funeral Mass will be 11 a.m. March 24, at The Cathedral of the Immaculate Conception with burial at the Monastery of St. Clare. The family requests that memorials be sent to the Monastery of St. Clare, 1310 Dellwood Ave., Memphis, TN 38127.
Read his obituary in the Commercial Appeal
Upcoming
Chattanooga lawyers to be memorialized
A memorial service will be conducted by the Chattanooga Bar Association on the 4th floor of the Hamilton County Courthouse at 11 a.m. on March 28.
Learn more from the CBA
Save the date! Historical Society dinner is Oct. 4
The Sixth Annual Tennessee Supreme Court Historical Society Dinner will feature Tennessee Bar Association President Sam Elliot, who will discuss Tennessee's Confederate Courts. The event will be Oct. 4 at Nashville's Downtown Hilton.
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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.
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