Friday, September 23, 2011
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ABA fights new labor rule

The American Bar Association (ABA) is working to stop a proposed rule from the U.S. Department of Labor that would require many labor lawyers to report confidential client information to the government. The ABA asserts that the rule would undermine court and state bar client confidentiality rules, erode the client-lawyer confidentiality relationship and discourage many labor lawyers from providing legal services to clients.

Learn more about the issue in the ABA Journal
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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TYRONE E. McCLAIN d/b/a T-MAC PRODUCTIONS v. BANK OF AMERICA, N.A. ET AL.

Court: TCA

Attorneys:

Tyrone E. McClain, Nashville, Tennessee, Pro Se.

James R. Kelley, Nashville, Tennessee, for the appellees, Bank of America, N.A., and Banc of America Strategic Solutions, Inc.

Judge: PER CURIAM

The plaintiff has appealed from an order granting the defendants' motion to dismiss some, but not all, of the plaintiff's claims. Because the order appealed does not resolve all the plaintiff's claims or the defendants' counterclaim, we dismiss the appeal for lack of a final judgment.

http://www.tba2.org/tba_files/TCA/2011/mcclaint_092311.pdf
NORTHWEST TENNESSEE MOTORSPORTS PARK, LLC v. TENNESSEE ASPHALT COMPANY

Court: TCA

Attorneys:

Lewis L. Cobb and Teresa Anne Luna, Jackson, Tennessee, for the appellant, Northwest Tennessee Motorsports Park, LLC.

Gregory L. Cashion, Nashville, Tennessee, for the appellee, Tennessee Asphalt Company.

Judge: STAFFORD

This is a breach of contract case. Appellants contracted with Appellees to pave their existing drag strip. Because the soil under the drag strip contained too much moisture, the paving project failed and other parts of the drag strip not included in the contract were damaged. The trial court awarded damages for the Appellant, but later reduced the damages by the amount over and above the original contract. Appellant appeals. Because the Appellant failed to present any evidence that Appellee breached the contract, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2011/northwest_092311.pdf
ERIC AMOS v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Eric Amos, Tiptonville, Tennessee, pro se (on appeal), and Patrick McGill, Dyersburg, Tennessee, (at trial), for the appellant, Eric Amos.

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

Judge: OGLE

The petitioner filed a petition for a writ of habeas corpus, alleging that his sentences were illegal. The habeas corpus court denied the petition. The petitioner now appeals, challenging the habeas corpus court's ruling and the constitutionality of the 2009 amendment to Tennessee Code Annotated section 29-21-101. Upon review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/amose_092311.pdf
STATE OF TENNESSEE v. DEANDRE BLAKE
With Concurring Opinion

Court: TCCA

Attorneys:

Phyllis Aluko, Assistant Public Defender (on appeal); and Diane Thackery and Tim Albers, Assistant Public Defenders (at trial), for the appellant, Deandre Blake.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Bobby Carter and Scot Bearup, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Deandre Blake, appeals his two Shelby County Criminal Court jury convictions of first degree murder, claiming that the convicting evidence was insufficient, that the trial court erred by admitting prejudicial photographs into evidence, and that the court erred by overruling his pretrial motion to suppress his written statement to the police. We affirm both the conviction in count one of felony murder predicated upon aggravated child abuse and the conviction in count two of felony murder predicated upon aggravated child neglect. On remand, the judgment in count one must be amended, and the trial court should effectuate merger, in part, by vacating the judgment in count two.

http://www.tba2.org/tba_files/TCCA/2011/blaked_092311.pdf

TIPTON concurring
http://www.tba2.org/tba_files/TCCA/2011/blaked_CON_092311.pdf
STATE OF TENNESSEE v. JONATHAN SCOTT FLYNN

Court: TCCA

Attorneys:

Wesley Daniel Stone, Knoxville, Tennessee, for the Defendant-Appellant, Jonathan Scott Flynn.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

On August 6, 2009, the defendant pleaded guilty in case number 92306 to theft over $1,000, a Class D felony, in exchange for a sentence of two years in the Tennessee Department of Correction as a Range I, standard offender. The defendant was released on December 20, 2009, and placed on supervised probation. On March 12, 2010, the defendant pleaded guilty in case number 91245 to theft over $10,000, a Class C felony, in exchange for a sentence of six years in the Tennessee Department of Correction as a Range II, multiple offender. The trial court suspended the defendant's sentence in 91245 and placed the defendant on probation. On November 8, 2010, the trial court revoked the defendant's probation and ordered him to serve his sentences in confinement. On appeal, the defendant argues that the court abused its discretion in revoking the defendant's probation, alleging that the record does not demonstrate that the defendant was in violation of his probation. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/flynnj_092311.pdf
STATE OF TENNESSEE v. RICHARD ALEXANDER HERRERA

Court: TCCA

Attorneys:

Joseph P. Atnip (on appeal), District Public Defender, Dresden, Tennessee, and David Hamblen (at trial), Union City, Tennessee for the appellant, Richard Alexander Herrera.

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

Judge: MCMULLEN

A Wilson County jury convicted the defendant of attempted unlawful photographing, a Class B misdemeanor; sexual battery, a Class E felony; attempted sexual battery, a Class A misdemeanor; and unlawful photographing, a Class A misdemeanor. The trial court sentenced him as a Range I, standard offender to one year in the Tennessee Department of Correction for the felony conviction. The court sentenced him to six months at 75% in the county jail for the Class B misdemeanor conviction and to eleven months, twenty-nine days at 75% for each Class A misdemeanor conviction. The court ordered the sentences to run concurrently. On appeal, the defendant argues that (1) the evidence was insufficient to sustain his convictions for unlawful photographing and attempted unlawful photographing because the victim was in a public place where she had no expectation of privacy and (2) the trial court erred by denying the defendant's motion for a continuance to give his attorney an opportunity to obtain the defendant's medical records. Following our review, we reverse and dismiss the defendant's convictions for unlawful photographing and attempted unlawful photographing. We affirm the defendant's convictions for sexual battery and attempted sexual battery.

http://www.tba2.org/tba_files/TCCA/2011/herrerar_092311.pdf
STATE OF TENNESSEE v. JEREMY MCMILLON

Court: TCCA

Attorneys:

Donna Miller, Chattanooga, Tennessee, for the appellant, Jeremy McMillon.

Robert E. Cooper, Jr., Attorney General and Reporter, Cameron L. Hyder, Assistant Attorney General; William H. Cox, III, District Attorney General, and Boyd Patterson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jeremy McMillon, was indicted by the Hamilton County Grand Jury for first degree murder and felony murder. At the conclusion of a jury trial, Appellant was convicted of first degree murder. As a result, he was sentenced to life in prison. After the denial of a motion for new trial, Appellant appealed, presenting the following issues for our review: (1) whether the testimony of accomplice Cory Haden was sufficiently corroborated; (2) whether the trial court erred in admitting the introduction of testimony about a bullet found during the autopsy into evidence; (3) whether the evidence was sufficient to support the conviction; and (4) whether the trial court erred by refusing to grant a new trial on the basis of newly discovered evidence. After a thorough review of the record, we determine: (1) that the evidence was sufficient to support the conviction; (2) that if the jury determined Mr. Haden was an accomplice, his testimony was sufficiently corroborated; (3) that the trial court did not err in admitting testimony about a bullet found during the autopsy into evidence as an exception to the hearsay rule; and (4) that the trial court properly denied the motion for new trial on the basis of newly discovered evidence. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/mcmillonj_092311.pdf
ANTONIO OLIVER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ruchee J. Patel, Memphis, Tennessee, for the Petitioner-Appellant, Antonio Oliver.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Bryan Davis, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Shelby County jury convicted the petitioner, Antonio Oliver, of first degree murder, and the trial court sentenced him to life imprisonment. On direct appeal, this court affirmed the petitioner's conviction and sentence. The petitioner filed a petition for post-conviction relief and motion to toll limitations period alleging that he was deprived of second-tier review of his conviction by the Tennessee Supreme Court based on various misrepresentations by appellate counsel. Specifically, the petitioner argues that appellate counsel failed to notify him of this court's opinion on direct appeal, which caused him to be "unaware" that a Rule 11 application needed to be filed or that the statute of limitations for post-conviction relief had expired. The post-conviction court denied relief, and the petitioner now appeals. After reviewing the record, the parties' briefs, and applicable law, we conclude that the petitioner was denied second-tier review of his conviction through no fault of his own. In reversing the judgment of the post-conviction court, we grant the petitioner a delayed appeal and stay further proceedings on his remaining claims of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2011/olivera_092311.pdf
STATE OF TENNESSEE v. BRYANT K. PRIDE

Court: TCCA

Attorneys:

R. Buddy Baird, Rogersville, Tennessee (at trial), and Katherine L. Tranum, Kingsport, Tennessee (on appeal) for the Appellant, Bryant K. Pride.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Barry Staubus, District Attorney General, and Joseph E. Perrin, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Bryant K. Pride, pled nolo contendere to one count of felony possession of 26 grams of cocaine for sale or delivery in a Drug-Free School Zone, one count of misdemeanor possession of marijuana, and one count of felony conspiracy to possess more than 26 grams of cocaine for sale or delivery in a Drug-Free School Zone. The Defendant attempted to reserve a certified question of law pursuant to Rule 37(b)(2)(1) of the Tennessee Rules of Criminal Procedure, challenging the trial court's denial of his motion to dismiss the indictments due to a violation of his constitutional right to a speedy trial. After review, we conclude that this Court does not have jurisdiction to address the certified question because it does not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is, therefore, dismissed.

http://www.tba2.org/tba_files/TCCA/2011/prideb_092311.pdf
TODAY'S NEWS
Legal News
Upcoming
Disciplinary Actions
TBA Member Services
Legal News
Observers weigh in on Court of Judiciary changes
Former state attorney general Paul Summers and Senate Judiciary Committee Chair Mae Beavers offer competing views of how the state should handle complaints against sitting judges in today's issue of The Tennessean. Summers, now a partner with Waller Lansden Dortch & Davis, writes that, "judging judges is the Supreme Court's role, and the legislature...cannot pass laws that conflict with the [court's] supervisory role or frustrate the judiciary's exercise of its powers." Beavers disagrees, saying the legislature has abdicated its duties and the current arrangement of "judges appointing judges to judge judges" has led the public to believe that "judges are free to rule and act without fear of repercussions."

The Paris Post Intelligencer also weighed in with an editorial, arguing that while some changes may be due, it is judges who are the best qualified "for the highly technical review of judicial procedure." It also warns against a proposal allowing legislative officials to appoint members of the panel, saying that "looks strongly like a takeover that violates the principle of separation of powers."
Read more from the paper
Gun rights for pardoned felons questioned
David Scott Blackwell served five years in prison for selling drugs, completed his probation and was granted a full pardon from the state of Georgia. He could legally possess a gun in that state but he has moved to Tennessee and was denied a gun permit here. He now is suing the state arguing that the Georgia pardon fully restored his rights. Tennessee disagrees, arguing that laws barring felons from possessing firearms apply to even those whose rights have been restored. Blackwell's lawyer David Raybin is relying on the U.S. Supreme Court's recent decision in District of Columbia v. Heller, which guarantees an individual, constitutional right to possess firearms. According to Raybin, this may be the first time the decision is used in the state.
The Tennessean has more
Court asked to rule on changing judgeship
The Marshall County Commission is seeking a court ruling to allow General Sessions Court Judge Steve Bowden to continue serving in a part-time capacity until his term ends in 2014. State law mandates that the part-time position become a full-time job due to population growth, but commissioners say they have not budgeted enough for a full-time salary. Bowden also questions how the state can require a change to his office in the middle of his term: "People voted for me as a part-time judge and I don't think they can change that." The case is pending before the local circuit court.
The Marshall Tribune reports
Hamilton magistrate program under review
Hamilton County Commissioner Mitch McClure is taking a hard look at the magistrates' program as he prepares for expiration of the current contract on Oct. 31. The program has sparked controversy on several occasions. Suggestions for changes include holding an annual public hearing to analyze effectiveness of the system, reconsidering whether the county's General Sessions judges should continue to help oversee the program and establishing procedures for how magistrates interact with the commission and other county officials.
The Chattanooga Times Free Press has more
Immigrant group appeals to Justice Department
Hispanic residents of Shelbyville live in a "climate of fear and intimidation," according to the Nashville-based immigrant advocacy group Tennessee Immigrant and Refugee Rights Coalition (TIRRC). The claim follows a raid conducted by federal agents last Saturday that resulted in the arrest of three area residents. TIRRC has filed a formal letter with the U.S. Justice Department's Civil Rights Division, and is requesting an investigation from the Department of Homeland Security's (DHS) Office of Civil Rights and Civil Liberties. TIRRC also claims it will be meeting in person with DHS and said that other national organizations are "joining the outcry."
The Shelbyville Times Gazette has more
Editorial: Chancellors need to fix clerk's office
While the Commercial Appeal notes there is plenty of blame to go around for the embezzlement of $1 million from the Shelby County Chancery Court clerk's office, it argues that the ultimate responsibility for correcting the problem lies with the chancellors -- Walter L. Evans, Arnold B. Goldin and Kenny W. Armstrong.
Read the opinion piece here
Upcoming
UT Law secures 6th Circuit judges for competition
The University of Tennessee College of Law will hold its annual intramural appellate advocacy competition "Advocates' Prize" Oct. 19-21. Preliminary rounds will take place Oct. 19-20 with the two top-scoring teams facing off Oct. 21 at 3 p.m. The final round will be presided over by six judges from the 6th Circuit Court of Appeals: senior judges Gilbert Merritt Jr. and Ronald Lee Gilman and judges Danny J. Boggs, Julia Smith Gibbons, Eugene Edward Siler Jr. and Jane Branstetter Stranch. For more information contact John Rice at rice.john.t@gmail.com.
Disciplinary Actions
Savannah lawyer suspended
On Sept. 21, the Tennessee Supreme Court suspended the law license of Savannah lawyer James Strong Powell after he pled guilty to the serious crime of aggravated perjury. The court also ordered the Board of Professional Responsibility to institute a formal proceeding to determine final discipline.
Download the BPR notice
Knoxville lawyer suspended
On Sept. 21, Knoxville lawyer Lisa Anne Temple was suspended for four years (retroactive to a temporary suspension on March 19, 2010) and ordered to enter into a monitoring agreement with the Tennessee Lawyers Assistance Program (TLAP). The action was based on complaints that Temple practiced law while suspended, made misrepresentations to a client, failed to advise a client of her suspension, neglected a client's case and forged her former partner's signature on a settlement agreement and agreed order.
Download the BPR release
TBA Member Services
The Bar Plan is TBA's 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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