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Friday, May 20, 2011

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Van Horn promises a year of 'access' as TBA president

Tennessee Bar Association President-elect Danny Van Horn spoke on a theme of access during opening remarks this afternoon to a TBA committee and section leaders meeting in Nashville to map out their work plans for the coming year. When Van Horn becomes president of the 11,000-member association in June, he told the group, his focus will be on "access -- access to justice, access to opportunity, access to professional development and access to civics education." The group will meet tonight and on Saturday to learn more about the association, available resources and how each section and committee can better serve its members.

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.

01 - TN Supreme Court
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00 - TN Supreme Court - Disciplinary Orders

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.

WENDELL P. BAUGH, III ET AL. v. HERMAN NOVAK ET AL.

Court: TSC

Attorneys:

Stephen C. Knight and Nader Baydoun, Nashville, Tennessee, for the appellants, Wendell P. Baugh, III and Laura W. Baugh.

Paul R. White and Keith Turner, Nashville, Tennessee, for the appellees, Herman Novak and Faith Novak.

Judge: KOCH

This appeal raises the issue of whether a contract for the sale of an interest in a corporation and related indemnity agreements are unenforceable because they are contrary to public policy. The sellers of the corporate interest filed suit against the purchasers in the Chancery Court for Williamson County seeking damages for the purchasers' alleged breach of their indemnity agreement. The purchasers counterclaimed asserting, among other things, that the sellers had fraudulently induced them to purchase the interest in the corporation. Following a bench trial, the trial court awarded a $201,715.50 judgment to the sellers and dismissed the purchasers' counterclaim. On appeal, the Court of Appeals, on its own motion, invalidated the stock purchase agreement and the related indemnity agreements on the ground that they were contrary to the public policy reflected in Tenn. Code Ann. section 48-16-208 (2002). Baugh v. Novak, No. M2008-02438-COA-R3-CV, 2009 WL 2474714 (Tenn. Ct. App. Aug. 13, 2009). We granted the sellers' Tenn. R. App. P. 11 application for permission to appeal and now find that the Court of Appeals erred by finding that the agreements at issue in this case were contrary to public policy. We have also determined that the evidence fully supports the trial court's decision to dismiss the purchasers' counterclaim for fraudulent inducement.

http://www.tba2.org/tba_files/TSC/2011/baughw_052011.pdf

MARK H. RUTH, v. ROBIN M. RUTH

Court: TCA

Attorneys:

Robin M. Ruth, Knoxville, Tennessee, pro se.

Mark H. Ruth, Knoxville, Tennessee, pro se.

Judge: PER CURIAM

This appeal is before the Court due to the failure of appellant to respond to a Show Cause Order in this Court as to why the appeal should not be dismissed as premature.

http://www.tba2.org/tba_files/TCA/2011/ruthm_052011.pdf

DANNY A. STEWART v. GAYLE RAY, COMMISSIONER, TDOC ET AL.

Court: TCA

Attorneys:

Danny A. Stewart, Nashville, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Pamela S. Lorch, Senior Counsel, Nashville, Tennessee, for the appellees, Gayle Ray, Commissioner, Tennessee Department of Correction; Candice Whisman, Director, Sentence Claculation/Sentence Information Department; Tennessee Board of Probation and Parole; William Parsons, Director, Parole Hearings; and Charles Traughber, Chairperson, Tennessee Board of Probation and Parole.

Judge: SUSANO

Danny A. Stewart, a prisoner serving multiple sentences, some concurrently and some consecutively, filed a petition for certiorari naming as respondents the Commissioner of the Department of Correction and heads of various other agencies allegedly responsible for determining his eligibility for parole (collectively referred to as "TDOC"). He alleges TDOC is incorrectly calculating his eligibility for parole in that it is basing its calulation on the aggregate consecutive sentences of 42 years, whereas the correct method is to calculate eligibility on each separate sentence so that he would start serving his next consecutive sentence as an "in custody" parolee of his earliest consecutive sentence. The trial court dismissed the case based on Stewart's failure "to exhaust his administrative remedies," i.e., by seeking a "declaratory order from TDOC before filing the present action." Stewart appeals. We vacate the order of dismissal and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2011/stewartd_052011.pdf

DAVID G. YOUNG, ET AL. v. CITY OF LAFOLLETTE

Court: TCA

Attorneys:

Emily A. Cleveland and Jon G. Roach, Knoxville, Tennessee, for the appellant, the City of LaFollette.

David H. Dunaway, LaFollette, Tennessee, for the appellee, David G. Young, individually and as City Administrator for the City of LaFollette.

Judge: SWINEY

This case stems from the suspension and later termination of David G. Young ("Young") from his position as City Administrator for the City of LaFollette ("LaFollette"). Young filed a petition for writ of certiorari in the Chancery Court of Campbell County ("the Trial Court"). The Trial Court ruled in favor of Young and annulled the LaFollette proceedings that resulted in Young's suspension and termination. The Trial Court also awarded Young, as the prevailing party, certain discretionary costs. LaFollette appeals. We hold that LaFollette did not act fraudulently, illegally, or arbitrarily in its termination of Young's employment. We reverse.

http://www.tba2.org/tba_files/TCA/2011/youngd_052011.pdf

STATE OF TENNESSEE v. VIRGIL CAMPBELL

Court: TCCA

Attorneys:

Howard C. Upchurch, Pikeville, Tennessee, for the appellant, Virgil Campbell.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Virgil Campbell, was convicted of two counts of aggravated assault, a Class C felony. See Tenn. Code Ann. section 39-13-102(e)(1). The trial court sentenced the Defendant as a Range I, standard offender to five years for each count and ordered that the terms run consecutively. In this direct appeal, the Defendant raises the following issues: (1) The trial court erred when it denied his motion to sever the two offenses; and (2) The trial court erred when it sentenced him to consecutive sentences. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/campbellv_052011.pdf

STATE OF TENNESSEE v. DEMETRIA NANCE

Court: TCCA

Attorneys:

Bruce Poston, Knoxville, Tennessee, for the appellant, Demetria Nance.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Demetria Nance, was convicted of one count of second degree murder, a Class A felony, and one count of possession of a deadly weapon, a Class E felony. See Tenn. Code Ann. sections 39-13-210(c), -17-1307(d)(3). In this appeal, she raises the following issues for our review: (1) The State presented insufficient evidence to support her conviction for second degree murder; and (2) The trial court erred by not declaring a mistrial after a writing from the Defendant to the victim, which had not been given to the defense during pre-trial discovery, was mentioned in front of the jury. After our review, we affirm the judgments of the trial court but remand for entry of a corrected judgment for the Defendant's conviction of possession of a deadly weapon.

http://www.tba2.org/tba_files/TCCA/2011/nanced_052011.pdf

STATE OF TENNESSEE v. EUGENE TAYLOR

Court: TCCA

Attorneys:

Ardena Garth, District Public Defender and Richard Kenneth Mabee, Assistant Public Defender, Chattanooga, Tennessee, for the appellant, Eugene Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William H. Cox, III, District Attorney General; and Darren Gibson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Eugene Taylor, entered a plea of guilty to possession of cocaine for resale and possession of a firearm during the commission of a felony. Under the terms of the plea agreement, the Defendant received concurrent terms of four years as a Range I, standard offender for these convictions. As part of the plea agreement, the Defendant reserved a certified question of law challenging the trial court's denial of his motion to suppress the evidence resulting from his traffic stop. After our review, we affirm the judgments of the Hamilton County Criminal Court. We remand for the entry of a corrected judgment.

http://www.tba2.org/tba_files/TCCA/2011/taylore_052011.pdf

STATE OF TENNESSEE v. DYRON NORM YOKLEY

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee (on appeal), Assistant District Public Defender; and Mary Ann Green and Karla Gothard (at trial), Assistant District Public Defenders, for the appellant, Dyron Norm Yokley.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William H. Cox, III, District Attorney General; and Boyd Patterson and C. Matthew Rogers, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Dyron Norm Yokley, was convicted of second degree murder, for which he received a thirty-five-year sentence as a Range II, violent offender. The Defendant appeals, contending that (1) the evidence is not sufficient to support the conviction, (2) the trial court erred in denying his motion to suppress his four pretrial statements, (3) the State violated his due process rights by failing to update its discovery responses, (4) the trial court erred in allowing the jury to view the scene, (5) the trial court erred in admitting evidence of the Defendant's affiliation with the Vice Lords gang, and (6) the trial court erred in imposing a lengthy sentence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/yokleyd_052011.pdf

TODAY'S NEWS

Legal News
General Assembly News
Disaster Relief
Passages
Upcoming
TBA Member Services

Legal News

Ashworth, Blakney honored for leadership

Two Tennessee Bar Association leaders were honored by the ABA Torts and Insurance Section today during the group's Leadership in Action Awards Luncheon in Amelia Island, Fla. TBA Immediate Past President Gail Vaughn Ashworth, who was instrumental in launching the TBA's Leadership Law program, was recognized for her work in building the TIPS Leadership Academy, and TBA YLD President Tasha Blakney was recognized for using the skills she was taught in the TIPS Leadership Academy. Featured speaker for the luncheon was Memphis federal Judge Bernice Donald.

See a photo from the event on TBAConnect

Florida firm names Baker Donelson attorney as CEO

Nashville attorney Gary Brown is leaving Baker Donelson Bearman Caldwell and Berkowitz to become CEO for Naples, Fla.-based CMG Life Services. The Nashville Business Journal reports that Brown has worked for several years as CMG's attorney while at the Nashville office of Baker Donelson, where his practice focused on securities law and board governance.

Sumner Teen Court members receive scholarships, awards

Several members of the Sumner County Teen Court were awarded $10,000 in scholarships in memory of Teen Court founder Mary Ann Williams recently. The teen court program provides first-time juvenile offenders an opportunity to face a jury of their peers, who have undergone intense training by attorneys and other volunteers.

See the story and picture from the Gallatin News Examiner

General Assembly News

Senate OKs 'don't say gay'

The state Senate adopted the controversial "don't say gay" bill today but amended it first to allow only the teaching of "natural human reproduction science" in public schools. It would now be a misdemeanor to teach any kind of sex education before the ninth grade. The Senate voted 19-11 for the bill with Sen. Douglas Henry, D-Nashville, joining Republicans in support. The companion bill in the House is dead for this session.

The City Paper reports

Brand honored by Senate; Hawkins Co. Commission will chose successor

The Tennessee State Senate approved a resolution sponsored by Sen. Mike Faulk, R-Church Hill, Rep. Mike Harrison, R-Rogersville and Rep. Dale Ford, R-Jonesborough, honoring the memory of the Hon. David L. Brand of Rogersville. Brand, 73, died Wednesday. Services were today in Rogersville. In lieu of flowers, donations may be made to First Baptist Church of Church Hill building fund or to New Fellowship Baptist Church building fund, 614 Old Stage Rd., Church Hill 37642.

The Hawkins County Commission will appoint a successor to serve until the August 2012 election when voters will select an individual to fill out the remainder of the term. The office will be on the general election ballot in August 2014 for an eight year term.

Learn more from the Rogersville Review

Governor thanks legislature for Civil Justice Act

The state House gave final legislative approval today to the bill capping personal-injury damage awards, imposing other restrictions on civil liability lawsuits and curtailing the Tennessee Consumer Protection Act. Both houses of the legislature had approved the bill last week but the House had to concur today with two Senate amendments before it became final Gov. Bill Haslam commended the legislature for sending him the Tennessee Civil Justice Act he proposed in February to sign into law. "This legislation removes one of the few advantages surrounding states had and makes our state even more desirable to businesses as we go out and sell Tennessee as the best place in the Southeast to do business," Haslam said.

The Commercial Appeal has more

Disaster Relief

LSC programs can help flood, tornado victims

With the surging Mississippi River devastating numerous communities, civil legal assistance programs funded by the Legal Services Corporation (LSC) are participating in disaster response meetings and making preparations to help low-income individuals and families affected by flooding. "LSC programs stand ready to help those affected by the flooding and the recent deadly tornadoes that devastated communities in the South and Southeast," LSC President James J. Sandman said. "We know that the legal problems faced by people can sometimes continue for months after a disaster, and LSC programs provide a framework for pro bono attorneys and other volunteers to undertake coordinated efforts to meet the legal needs of low-income clients."

Go to disasterlegalaid.org

Passages

Services this weekend for Chattanooga lawyer Phillips

Services have been set for long-time Chattanooga defense attorney Leroy Phillips, who died Thursday. The family will receive friends from 4 to 8 p.m. on Saturday, May 21, and 2 to 4 p.m. on Sunday, May 22, followed by a funeral service at 4 p.m., at the North Chapel of the Chattanooga Funeral Home on Highway 153 in Hixson. Phillips, who retired in 2005 from practicing law at the firm of Phillips & Caputo, was a fixture in Hamilton County courtrooms for more than 40 years. He achieved national prominence when he coauthored the book Contempt of Court with former Chattanooga Times writer Mark Curriden. The book recounts the 1906 lynching of Ed Johnson in Chattanooga.

Upcoming

Nashville School of Law to present awards

Nashville School of Law (NSL) will honor the achievements of two distinguished attorneys at its 18th annual Recognition Dinner on June 3. Robert Ballow, Nashville law pioneer and NSL class of 1963, is the 2011 Recognition Dinner honoree, and Trevor Howell, employment and labor law attorney with Gullett Sanford Robinson & Martin PLLC, will receive the 2011 Distinguished Faculty Award. To purchase tickets for the event, contact the Nashville School of Law at (615) 256-3684. Tickets are $125 per person, or $1,250 for a table of 10.

The Ledger carried the story

Hotels filling up; register now for convention

Don't delay any longer in making your plans to attend the Annual TBA Convention this summer in Chattanooga, June 15-18. Strong programming and entertainment are pushing attendance numbers, and hotel rooms in the host Chattanoogean Hotel are all now sold out. Additional rooms have been secured at the nearby Chattanooga Marriott at the Convention Center and the Chattanooga downtown Holiday Inn Express, however they are also starting to fill up.

Find out more or register online now

TBA Member Services

Secure, compliant data backup now available

The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.

Learn why lawyers trust i365 for online data backup solutions

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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.