Friday, August 12, 2011
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IOLTA grant application deadline Sept. 9

The deadline to apply for a 2012 Interest On Lawyers' Trust Accounts (IOLTA) grant is Sept. 9. In a letter to potential applicants today, Executive Director Barri Bernstein explains why the total amount available to grant for 2012 will be roughly $150,000 less than that of 2011. The IOLTA awards program is made possible from the interest earned on the pooled trust checking accounts of participating lawyers. Therefore, the amount available to grant varies annually, she says, because it is based on "many ungovernable factors," including the business cycle and interest rates.

Apply for an IOLTA grant
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
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
01 - 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.
STATE OF TENNESSEE v. TEDDY RAY MITCHELL
CORRECTIONS summarized below

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Asst. Attorney General; C. Berkeley Bell, District Attorney General; Victor Vaughn, Asst. District Attorney General, for the appellant, State of Tennessee

Darren V. Berg, James Charles Wright, and Robert Deno Cole, Knoxville, Tennessee, for the appellee, Teddy Ray Mitchell.

Judge: WADE

SUMMARY OF CORRECTION
--Page 3, last sentence of first paragraph, "flag pole"was changed to "flagpole"
--Page 8, first sentence of second full paragraph, "choosen" was changed to "chosen"
--Page 9, second full paragraph, "Tenn. Code Ann. 39-17-305(a)(1)" was changed to "Tenn. Code Ann. section 39-17-305(a)(1)"
--Page 10, last sentence of second full paragraph, "Defendant, "ranted" and" was changed to "Defendant "ranted" and"
--Page 10, first sentence of third paragraph, "ways", id. at 5" was changed to "ways," id. at *5"
--Page 11, first sentence of Footnote 3, "speech." U.S." was changed to "speech, "U.S."
--Page 12, first line, "defined in landmark" was changed to "defined in the landmark"
--Page 12, fourth line down, "prescribe" was changed to "proscribe"
--Page 12, second paragraph, "359-60 (2002)" was changed to "359-60 (2003)"
--Page 14, last line of first paragraph, "130 S.Ct. 1577" was changed to "130 S. Ct. 1577"

SUMMARY OF OPINION
The defendant was convicted of disorderly conduct and sentenced to thirty days in jail, to be served on probation. On direct appeal, the Court of Criminal Appeals reversed, holding that the evidence was insufficient. This Court granted the State permission to appeal in order to consider the admissibility of a racially derogatory term, to review the sufficiency of the evidence, and to determine whether the conviction violated the constitutional right to free speech. Because the disputed testimony was properly admitted, the evidence was sufficient to support a conviction for disorderly conduct, and there was no violation of the right to free speech, the Court of Criminal Appeals is reversed. The judgment of conviction and sentence is reinstated.

http://www.tba2.org/tba_files/TSC/2011/mitchellt_COR_081211.pdf
BSG, LLC v. CHECK VELOCITY, INC.

Court: TCA

Attorneys:

Alvin Scott Derrick, Nashville, Tennessee, for the appellant, BSG, LLC.

Nick Shelton, Franklin, Tennessee, for the appellee, Check Velocity, Inc.

Judge: BENNETT

BSG, LLC introduced CheckVelocity to Weight Watchers. In 2005, CheckVelocity and Weight Watchers entered into an agreement whereby CheckVelocity provided check collection services. BSG, in accordance with its agreement with CheckVelocity, was to receive compensation for its introduction of CheckVelocity to Weight Watchers in the form of residual fees during the time of the CheckVelocity - Weight Watchers agreement and any renewal agreements. In 2008, CheckVelocity and Weight Watchers entered into a new agreement in which credit card collection services were added and the check collection services were continued unchanged. CheckVelocity stopped paying the residual fees because it considered the Weight Watchers agreement to be a new agreement, not a renewal of the old one. BSG sued. The trial court considered the 2008 agreement to be a new agreement, not a renewal, and ruled for CheckVelocity. BSG appealed. We reverse.

http://www.tba2.org/tba_files/TCA/2011/bsg_081211.pdf
ROGER WILLIAM BYRD, D.C. v. TENNESSEE BOARD OF CHIROPRACTIC EXAMINERS

Court: TCA

Attorneys:

Frank J. Scanlon, Nashville, TN; Robert L.Green, Memphis, TN, for the appellant, Roger William Byrd, D.C.

Robert E. Cooper, Jr., Attorney General and Reporter, Sue A. Sheldon, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Board of Chiropractic Examiners

Judge: HIGHERS

This appeal arises out of disciplinary proceedings against a chiropractor before the Tennessee Board of Chiropractic Examiners. The allegations originally involved a single incident of solicitation that occurred in 2000, in which Dr. Byrd telephoned a car accident victim just two days after her accident in violation of the Board's rule governing telemarketing or solicitation. The notice of charges was later amended to include additional allegations regarding Dr. Byrd's use of an office in Florida to telemarket Tennessee accident victims in violation of the aforementioned rule. Dr. Byrd admitted that telemarketing was being conducted by the Florida employees. However, he claimed that a corporation was responsible for conducting the telemarketing, rather than himself, and he argued that the corporation was not subject to the Board's telemarketing rules. The Board found Dr. Byrd guilty of several violations and revoked his chiropractic license. The chancery court affirmed. We affirm.

http://www.tba2.org/tba_files/TCA/2011/byrdr_081211.pdf
RICHARD JENNINGS v. CITY OF SMITHVILLE, ET AL.

Court: TCA

Attorneys:

Kerry Knox, Thomas H. Castelli, Murfreesboro, Tennessee, for the appellant, Richard Jennings.

Daniel Hurley Rader, IV, Cookeville, Tennessee, for the appellees, City of Smithville and Smithville Board of Mayor and Aldermen.

Judge: COTTRELL

The Board of Mayor and Aldermen of the City of Smithville suspended and ultimately terminated the chief of police because they were unhappy with his efforts to combat the drug and crime problems in the City. The police chief filed a writ of certiorari and asked the trial court to order the City to reinstate him because he was terminated without cause. The trial court concluded there was sufficient evidence in the record to justify the City's decision and dismissed the complaint with prejudice. The police chief appealed, and we conclude the trial court did not abuse its discretion in dismissing the petition for writ of certiorari.

http://www.tba2.org/tba_files/TCA/2011/jenningsr_081211.pdf
MIKE SETTLE v. MIDDLE TENNESSEE MENTAL HEALTH INSTITUTE, ET AL.

Court: TCA

Attorneys:

Mike Settle, Wartburg, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Assistant Solicitor General; and Dianne Stamey Dycus, Deputy Attorney General, Nashville, Tennessee, for the appellees, Middle Tennessee Mental Health Institute and Lynn McDonald.

Judge: MCCLARTY

The plaintiff, Mike Settle, citing 42 U.S.C. section 1983, filed a complaint on April 22, 2010, in which he sought injunctive relief in the form of a transfer from the Tennessee Department of Correction ("TDOC") to the Middle Tennessee Mental Health Institute ("MTMHI"). The defendants, MTMHI and former Chief Executive Officer, Lynn McDonald, filed a motion to dismiss for failure to state a claim upon which relief can be granted. The trial court granted the defendants' motion to dismiss. The plaintiff appeals, and we affirm the trial court's order of dismissal.

http://www.tba2.org/tba_files/TCA/2011/settlem_081211.pdf
WILLIAM H. THOMAS, JR., d/b/a THOMAS INVESTMENTS, A Tennessee Sole Proprietorship v. SHELBY COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

Robert L. Green and Darryl D. Gresham, Memphis, Tennessee, for the appellant, William H. Thoms, Jr.

Kelly Rayne, Eugene C. Gaerig and Robert B. Rolwing, Memphis, Tennessee, for the appellee, Shelby County, Tennessee.

Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellee, the City of Memphis, Tennessee.

Robert L.J. Spence, Jr., Memphis, Tennessee, for the appellee, Clear Channel Outdoor, Inc.

Judge: FARMER

The trial court entered summary judgment in favor of Defendants, finding that Plaintiff's action was filed beyond the limitations period. Plaintiff appeals. We affirm summary judgment on the basis of standing and ripeness.

http://www.tba2.org/tba_files/TCA/2011/thomasw_081211.pdf
STATE OF TENNESSEE v. MARQUIS DEVEREAUX HALL

Court: TCCA

Attorneys:

B. Nathan Hunt, Clarksville, Tennessee for the appellant, Marquis Devereaux Hall.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; John Carney, District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Marquis Devereaux Hall, pled guilty to aggravated assault, reckless endangerment, possession of cocaine, simple possession and casual exchange of marijuana, and theft under $500. The trial court sentenced him to an effective sentence of ten years on community corrections. After his arrest for possession of a weapon, felon carrying a firearm, and theft, his supervisor filed a violation warrant. The trial court held a hearing and concluded that Appellant had violated the conditions of his community corrections sentence. The trial court imposed Appellant's sentence of ten years. Appellant appeals the trial court's revocation of his community corrections sentence. After a thorough review of the record, we conclude that the trial court did not abuse its discretion. Therefore, we affirm the trial court's revocation of Appellant's community corrections sentence.

http://www.tba2.org/tba_files/TCCA/2011/hallm_081211.pdf
STATE OF TENNESSEE v. PAUL ALEXANDER MONTGOMERY, III

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; Michael Jonothan Collins, Assistant Public Defender (at trial); William Joseph Harold, Assistant Public Defender (at trial); and Gregory D. Smith, Clarksville, Tennessee (on appeal), for the appellant, Paul Alexander Montgomery, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Paul Alexander Montgomery, III, was convicted of nine counts of rape of a child, a Class A felony. See Tenn. Code Ann. section 39-13-522. In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain the convictions of rape of a child and (2) the trial court erred by admitting evidence in violation of Tennessee Rules of Evidence 403 and 404(b). Following our review, we reverse the judgments of the trial court and remand the Defendant's case for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/montgomeryp_081211.pdf
STATE OF TENNESSEE v. LAWRENCE D. RALPH

Court: TCCA

Attorneys:

Gregory D. Smith, Contract Appellate Defender; Dan T. Bryant, District Public Defender; and Scott Grissom, Assistant Public Defender, for the appellant, Lawrence D. Ralph.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Darrell Julian, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Lawrence D. Ralph, was convicted of driving under the influence (DUI), fourth offense; DUI per se, fourth offense; driving on a revoked driver's license, fifth offense; violation of the habitual traffic offender status; and two counts of evading arrest. The trial court merged the DUI per se conviction with the first count and merged the driving on a revoked license conviction with the habitual traffic offender conviction. The trial court sentenced the Defendant to four years each for the DUI, fourth offense conviction; the habitual traffic offender status conviction; and the felony evading arrest conviction, to be served consecutively for an effective 12-year sentence. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to convict him of DUI, fourth offense and (2) that the trial court's sentence was excessive. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/ralphl_081211.pdf
STATE OF TENNESSEE v. DEREK WILLIAMSON

Court: TCCA

Attorneys:

John Pellegrin, Gallatin, Tennessee, and James O. Martin, III, Nashville, Tennessee, for the appellant, Derek Williamson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Lawrence W. Whitley, District Attorney General; and C. Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

A Sumner County jury convicted the Defendant, Derek Williamson, of first-degree premeditated murder, and he was sentenced to life imprisonment. On appeal, the Defendant argues that the trial court erred by commenting on possible sentencing options during voir dire, that the trial court erred by not granting a mistrial based on prejudicial testimony from a witness, that the trial court erred in allowing the testimony of the responding police officer about the appearance of evidence found at the scene, that the trial court abused its discretion by admitting two autopsy photographs, that the trial court improperly instructed the jury on flight, that the evidence was insufficient to sustain his conviction, that the trial court improperly denied his request for a self-defense instruction, and that he is entitled to a new trial because of cumulative error. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/williamsond_081211.pdf
STATE OF TENNESSEE v. JAMES MICHAEL WISE

Court: TCCA

Attorneys:

Kenneth J. Phillips, Gallatin, Tennessee, for the appellant, James Michael Wise.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James Michael Wise, was convicted by a Sumner County jury of three counts of sexual battery by an authority figure, two counts of solicitation to commit rape, thirteen counts of rape, and thirteen counts of incest. Following a sentencing hearing, the trial court sentenced the defendant to an effective forty-eight year sentence in the Department of Correction. On appeal, the defendant challenges the sentences imposed. Specifically, he contends that the trial court erred in failing to impose the minimum sentences within the range and in its application of consecutive sentencing. Following review of the record, we find no error and affirm the sentences as imposed.

http://www.tba2.org/tba_files/TCCA/2011/wisej_081211.pdf
BOBBY DEAN DAVIS, BPR 009412

Court: TSC-Disciplinary_Order

Judge: CLARK

Disbarment

http://www.tba2.org/tba_files/TSC/2011/davisb_081211.pdf
TODAY'S NEWS
Legal News
Upcoming
Disciplinary Actions
TBA Member Services
Legal News
Chancery embezzlement claim tops $1 million
Losses from an embezzlement scheme at Shelby County Chancery Court exceed $1 million, according to a claim county government has filed against its insurance carrier. And for the first time, the county has officially named former bookkeeper Brandon Gunn as the employee responsible for the thefts. Gunn, the focus of a long-running FBI investigation, has not been charged.
The Commercial Appeal has the story
Details of ethics commission work a mystery
In its five years, the Tennessee Ethics Commission -- with an annual budget of $593,000 -- has considered five complaints and thrown them all out. Records that would shed light on how many total cases it has received are not open to public inspection, officials said. The commission's records only become public if the alleged violator requests the documents be open or if the commission believes the allegation has probable cause, even if the commission ultimately scraps the investigation, the law says.
The TN Report looks into it
Working in garden part of juvenile court program
Growing fruits and vegetables is part of the discipline within the Bradley County Juvenile Court. Implemented in 2008 by Judge Daniel Swafford, the garden is an educational tool and is used by many of the departments, from students in the Day Treatment Center to those held in detention through the Department of Children Services. "The judge's premise originally was ... he understands the elements of farming and the lessons that are learned. And so I thought it was brilliant of him to introduce that to the facility," Deputy Director Mike Ream said.
The Cleveland Daily Banner reports
Plan for Gulf oil spill trial outlined
U.S. District Judge Carl Barbier today outlined his plan for conducting a trial designed to assign percentages of fault to the companies sued over last year's deadly Deepwater Horizon rig explosion and Gulf oil spill. Barbier, who oversees tens of thousands of claims spawned by the disaster, said the trial scheduled to start Feb. 27, 2012, will be held in three phases.
Read the details from Law.com
Bankruptcies up, but not as many as some recent years
A report released yesterday by the Administrative Office of the U.S. Courts showed that new filings in U.S. bankruptcy courts rose by 8 percent from 2009 to 2010, but that number pales in comparison to the more than 30 percent increases seen across the country annually since 2006.
The Blog of Legal Times reports
New HUD rules give exemption for lawyers
A new rule that sets standards in licensing mortgage loan originators includes a broad exemption for lawyers engaged in the practice of law. The American Bar Association had joined with the Tennessee Bar Association and other state and local bar groups in pushing for the exemption from the U.S. Department of Housing and Urban Development (HUD) in its rules to implement the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act). The action is seen as a significant victory for the legal profession, as well as for traditional state court regulation of lawyers, the confidential attorney-client relationship, and the continued ability of consumers to obtain the quality legal representation that they need.
Read the HUD release on the new rule
Upcoming
Memphis 'Pillars of Excellence' dinner is Saturday
The Alumni Board of the University of Memphis Cecil C. Humphreys School of Law will hold its annual Celebration of Excellence in the Law and honor the 2011 Pillars of Excellence on Aug. 13 at 6 p.m.
Get more information here
Disciplinary Actions
Nashville lawyer disbarred
Davidson County lawyer Bobby Dean Davis was disbarred from the practice of law Aug. 9, for misappropriating funds, making false statements and failing to respond to the Board of Professional Responsibility. His actions violated Tennessee Supreme Court Rule 8, Rules of Professional Conduct 1.3 (Diligence), 1.4 (Communication), 1.7 (Conflict), 1.15 (Safekeeping Funds), 4.1 (Truthfulness and Candor in Statements to Others), 8.1(b) (Disciplinary Matters), and 8.4 (Misconduct).
Download the court's order
TBA Member Services
The Bar Plan is TBA-endorsed insurer
The Tennessee Bar Association endorses only The Bar Plan Mutual Insurance Company for lawyers' professional liability insurance. For 26 years, The Bar Plan has specialized in providing malpractice insurance to lawyers and therefore understands the needs and challenges you face as a practicing attorney. Contact Mark Bockius by email or phone at (314) 288-1050 to ask how your practice can be protected by The Bar Plan.

 
 
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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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