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Thursday, April 07, 2011

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Bill Young named state's new solicitor general

Tennessee Attorney General Bob Cooper today named Bill Young as the state's new solicitor general. Young, a former senior counsel in the attorney general's office, will assume his duties in early July. Young worked in the AG's office for over eight years, leaving in 1995 to serve as deputy commissioner of the Tennessee Department of Commerce and Insurance -- a position he held for four years. For the past eight years, he has served as senior vice president and general counsel of Blue Cross Blue Shield of Tennessee. Young earned his law degree from Vanderbilt University Law School in 1981. The position of solicitor general was open due to the death of Mike Moore in November of last year.

Read more from the attorney general's press release

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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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.

AMERICAN GENERAL FINANCIAL SERVICES, INC. v. MARTIN GOSS/UNKNOWN TENANT OF FORECLOSED PROPERTY
With Concurring and Dissenting Opinion

Court: TCA

Attorneys:

Martin Goss, Knoxville, Tennessee, appellant, pro se.

Jason S. Mangrum, Nashville, Tennessee, for the appellee, American General Financial Services, Inc.

Judge: MCCLARTY

The plaintiff foreclosed on real property following the default on a loan secured by a deed of trust. The plaintiff then filed a detainer warrant in General Sessions Court and the defendant appeared claiming rightful possession to the property because of a quit claim deed. After hearing the evidence, the General Sessions Court awarded possession of the property to the plaintiff. The defendant appealed to the Knox County Circuit Court. A jury trial commenced, and at the close of proof, the plaintiff moved for a directed verdict. The trial court granted the directed verdict and awarded possession of the property to the plaintiff. The defendant appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/americangen_040711.pdf

SUSANO concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2011/americangen_CON_040711.pdf

DUFF L. BRUMLEY v. THE CITY OF CLEVELAND

Court: TCA

Attorneys:

W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellant, Duff L. Brumley.

Emily A. Cleveland, Knoxville, Tennessee, for the appellee, the City of Cleveland.

Judge: SWINEY

This lawsuit stems from a grievance process initiated by a detective with the Cleveland Police Department, Duff L. Brumley ("Brumley"). Brumley was instructed to undergo retraining as a result of a citizen complaint letter written in connection with his investigation of a possible burglary. Brumley was dissatisfied with the mandatory retraining and initiated the grievance process under the City of Cleveland's official policy. The grievance reached an appeal hearing before the City Manager. The City Manager affirmed the order to Brumley to undergo retraining. Brumley filed an Application for Writ of Certiorari in the Trial Court. The Trial Court denied Brumley's Writ of Certiorari. Brumley appeals, claiming that the Trial Court improperly excluded additional evidence Brumley wanted to introduce and found a material basis for the City Manager's decision where none existed. We hold that the Trial Court did not err in its decision as to the additional evidence Brumley sought to admit. We further hold that the City Manager did not act arbitrarily or capriciously and had a material basis for her decision. We, therefore, affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2011/brumleyd_040711.pdf

HEALTHMART USA, LLC ET AL. v. DIRECTORY ASSISTANTS, INC.

Court: TCA

Attorneys:

Cynthia Sherwood Parson McKenzie and Lyndsay Claire Smith Hyde, Nashville, Tennessee, for the appellant, Directory Assistants, Inc.

Phillip B. Jones, Nashville, Tennessee, for the appellees, Healthmart USA, LLC and Gregg Lawrence.

Judge: BENNETT

In a dispute over the enforceability of an arbitration provision in a consulting contract, the trial court found the provision ambiguous and denied the appellant's motion to dismiss or to compel arbitration. We find that the provision is not ambiguous. We remand for a ruling on the condition precedent to arbitration: whether the appellant made a good faith effort to come to a mutual agreement before unilaterally selecting an arbitration service, location, and choice of law forum. We have also concluded that should the parties reach arbitration, the issue of fraud in the inducement is arbitrable.

http://www.tba2.org/tba_files/TCA/2011/healthmart_030411.pdf

STATE OF TENNESSEE v. JONATHAN EVERETT

Court: TCCA

Attorneys:

Phyllis Aluko, Assistant Public Defender, for the appellant, Jonathan Everett.

Robert E. Cooper, Jr., Attorney General and Reporter, Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General, and Ray Lapone and David Pritchard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jonathan Everett, was indicted by the Shelby County Grand Jury for one count of first degree murder and two counts of attempted first degree murder. After a lengthy jury trial, Appellant was convicted of one count of second degree murder, one count of attempted voluntary manslaughter, and one count of reckless endangerment. As a result, Appellant was sentenced to an effective sentence of twenty-nine years, eleven months, and twenty-nine days. Appellant presents the following issues for our review on direct appeal: (1) whether the trial court properly denied the motion to dismiss and remand for a preliminary hearing; (2) whether the trial court properly denied the motion to suppress Appellant's statement; (3) whether the trial court erred by denying Appellant's request to cross-examine Jamarcus Palmer about specific instances of conduct; (4) whether the evidence was sufficient to support the convictions; and (5) whether the trial court properly sentenced Appellant. After a thorough review of the record, we conclude that the trial court properly denied the motion to dismiss; the trial court properly denied the motion to suppress when Appellant's statement was made knowingly and voluntarily; the trial court properly denied Appellant's request to cross-examine Jamarcus Palmer; the evidence was sufficient to support the convictions; and the trial court properly sentenced Appellant. Therefore, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2011/everettj_040711.pdf

TODAY'S NEWS

Legal News
Convention 2011
Congressional News
Career Opportunities
Upcoming
TBA Member Services

Legal News

YLD elects new vice president, officers

Chattanooga lawyer David McDowell will serve as president of the TBA Young Lawyers Division in 2013-2014. He will take office this June as vice president, and then assume the office of president-elect in 2012 and president in 2013. McDowell, who practices with Gearhiser, Peters, Cavett, Elliott & Cannon PLLC, was deemed elected after the filing deadline passed because he was unopposed.

Other YLD officers elected without opposition for the 2011-2012 bar year are Secretary Stacie Winkler, Memphis; Treasurer Marisa Combs, Nashville; and West Tennessee Governor Steven King, Memphis. District Representatives elected without opposition are District 5 Rep. Jason Demastus, Chattanooga; District 9 Rep. Jenney Keaty, Nashville; and District 11 Rep. Shauna Billingsley, Franklin. Members of the YLD will decide the outcome of six contested races at the division's annual meeting June 17 in Chattanooga.

TBA files comments on 2 proposed rules

The TBA today filed a comment supporting amendments to Tennessee Supreme Court Rules 7 and 9 to address requirements for perfecting an appeal from the Board of Law Examiners and Board of Professional Responsibility hearing panels.

Download the comments

Critics say tort bill dilutes consumer protections

Critics of Gov. Bill Haslam's proposed overhaul of tort law say it would weaken the Consumer Protection Act, which safeguards Tennesseans from unfair and deceptive business practices. Among its provisions, the proposal would curtail claims involving financial crimes such as Ponzi schemes and would prohibit individuals from bringing class action lawsuits for practices not spelled out in the act -- giving that authority to only the attorney general.

Learn more in the Tennessean

DA wins abuse prevention award named in his honor

District Attorney General William C. Whitesell Jr. recently was honored by the Rutherford County Coalition Against Child Abuse for dedicating his career to prosecuting child abuse perpetrators to the fullest extent of the law. He is the first recipient of the award, which is named the "General William C. Whitesell Jr. Award for Outstanding Dedication to Justice for Child Abuse Victims," which the group will present each spring. The coalition praised Whitsell for working on more than 6,000 child abuse cases over the last 10 years.

The Daily News Journal has more

UT Law holds first 'alternative' spring break

In response to a call from the Tennessee Supreme Court to promote access to justice, the University of Tennessee College of Law held its first Alternative Spring Break during the week of March 14. Students and local attorneys provided more than 100 hours in both legal and non-legal services to underserved populations in East Tennessee.

The UT Informant has the story

Wilson court clerk testifies on uncollected fees

Wilson County Court Clerk Linda Neal appeared before county commissioners this week to explain that a previous report indicating the court system had uncollected fees totaling $59 million was a mistake. Neal said the previous amount included millions of dollars worth of judgments and restitution owed to victims, and that the real amount is closer to $9 million. Commissioners asked Neal to return next month with ideas for how to collect the missing funds.

WSMV-TV reports

Convention 2011

Scopes trial program not just about history

Lawyers and judges attending the annual Bench Bar program this June -- which will feature an examination of the historic "Scopes Monkey Trial" -- also may be talking about contemporary legislation. As reported in The City Paper, the Tennessee House today passed legislation "promoting critical thinking about the origins of life" (HB368 by Dunn/SB893 by Watson). The June program is part of the annual TBA Convention. Among other programs, it will feature a trip to the Rhea County Courthouse in Dayton, the actual site of the Scopes trial.

Learn more about the 2011 Convention

Congressional News

LSC requests funding increase

With Congress still struggling to finish work on funding for the current fiscal year, the Legal Services Corporation laid down its marker for FY 2012 funding this week, asking legislators to approve $516.5 million for the agency. The amount is $66.5 million more than President Barack Obama included in the administration's budget and $122.1 million more than the agency received last year.

Career Opportunities

IP lawyer needed in Nashville

Legal recruiter Special Counsel Inc. is seeking an experienced intellectual property attorney to work full-time on a short-term assignment at a Nashville law firm. Candidates must have five years of experience, preferably in the technology or healthcare industries. Send resumes to nashville@specialcounsel.com for consideration.