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Wednesday, December 14, 2011

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Legal Aid of East Tenn. closes Cleveland office

Legal Aid of East Tennessee (LAET) closed its Cleveland office this week citing federal budget cuts. In making the announcement, LAET Executive Director David R. Yoder explained that the agency attempted to maintain its current level of service by freezing staff salaries, reducing benefits and cutting training programs, but that those efforts proved insufficient -- leading the LAET Board of Directors to lay off six staff members. LAET will continue to assist eligible low-income persons in the area out of its Chattanooga office while it looks for donated space in Bradley County to meet with clients.

Read more from Yoder's statement

TODAY'S OPINIONS
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DANIEL BOYD DAVIDSON v. BUSINESS PERSONNEL SOLUTIONS

Court: TWCA

Attorneys:

Anthony A. Seaton and Amanda Inman Lowe, Johnson City, Tennessee, for the appellant, Daniel Boyd Davidson.

Brad C. Burnette, Knoxville, Tennessee, for the appellee, Business Personnel Solutions.

Judge: WADE

The employee, who sustained injuries while removing tree limbs at a job site, filed a claim for workers' compensation. The employer denied benefits, contending that the injury was the result of the employee's intoxication and misconduct. While concluding that the employee was not guilty of willful misconduct, the trial court ruled that his intoxication was a proximate cause of the injuries and, therefore, denied the claim. The employee appealed, alleging that the trial court erred by finding that he was intoxicated at the time of his injuries and that the intoxication was the proximate cause. This appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the trial court's finding that the employee was intoxicated and his intoxication proximately caused his injuries, the judgment is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2011/davidsond_121411.pdf

DEWEY GIBSON, JR. v. HIDDEN MOUNTAIN RESORT, INC.

Court: TWCA

Attorneys:

George R. Garrison, Sevierville, Tennessee, for the appellant, Dewey Gibson, Jr.

Elaine Michele Youngblood, Nashville, Tennessee, for the appellee, Hidden Mountain Resort, Inc.

Judge: WADE

The employee sought workers' compensation for a back injury which arose out of and in the scope of his employment with the employer. The trial court found that because the employee had a meaningful return to work and was subsequently dismissed for job misconduct, he was limited to benefits of 1.5 times the 20% anatomical impairment rating. The evidence does not preponderate against the trial court's factual findings; the judgment is, therefore, affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2011/gibsond_121411.pdf

MARK PATRICK JONES v. JENNIFER JONES SMTIH, ET AL.
CORRECTION: On the first page, in the "Judges" line "Western Section" has been capitalized and the spelling of David Farmer's name has been corrected

Court: TCA

Attorneys:

K. Michelle Morris, Lexington, Tennessee, for the appellants, Harold and Maryann Jones.

Lanis L. Karnes, Jackson, Tennessee, for the appellee, Jennifer Jones Smith.

Judge: HIGHERS

Paternal Grandparents filed a motion to intervene in a divorce action between Mother and Father, seeking custody of the parties' two minor children. The trial court ultimately awarded custody to Mother and ordered Grandparents to pay a portion of Mother's attorney's fees and costs. Grandparents appeal, arguing that Tennessee Code Annotated section 36-5-103(c) only provides for awards of attorney's fees against spouses in a custody matter, and therefore, the trial court was not authorized to order them to pay Mother's attorney's fees. We affirm.

http://www.tba2.org/tba_files/TCA/2011/jonesm_COR_121411.pdf

CAROL PHILLIPS v. TODD SHRADER

Court: TCA

Attorneys:

J. Stephen Hurst, LaFollette, Tennessee, for the appellant, Carol Phillips.

Philip R. Crye, Jr., Clinton, Tennessee, for the appellee, Todd Shrader.

Judge: MCCLARTY

This is a dispute between two neighbors over the use of land. The plaintiff, Carol Phillips, charged the defendant, Todd Shrader, with trespass. She sought an injunction and damages, along with removal of encroaching structures. The trial court dismissed Ms. Phillips's action, finding it barred by Tenn. Code Ann. section 28-2-103. Ms. Phillips appeals. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2011/phillipsc_121411.pdf

REGIONS BANK v. BRIC CONSTRUCTORS, LLC, F/K/A BRIC CONTRACTORS, LLC, AND PATRICIA MCINTOSH

Court: TCA

Attorneys:

J. Brad Scarbrough, Chris Holleman, and Timothy A. Bishop, Brentwood, Tennessee, for the Defendant/Appellants Bric Constructors, LLC, f/k/a Bric Contractors, LLC, and Patricia McIntosh.

David M. Smythe, Nashville, Tennessee, for the Plaintiff/Appellee Regions Bank.

Judge: KIRBY

This is an action to collect a debt and to recover collateral. The defendant LLC obtained a line of credit from the plaintiff bank. The LLC borrowed against the line of credit to purchase certain property, and the property was pledged as collateral. Several months later, the line of credit was converted into a fixed amount loan over a longer term, and a new security agreement was executed pledging the same collateral. On the same day, the LLC obtained another line of credit secured by the LLC's accounts receivable. The next day, the LLC took an advance on the new line of credit. The LLC made monthly payments on both obligations for almost a year, and then it defaulted. The plaintiff bank filed this lawsuit against the LLC and its principal to collect on the loans and to recover the collateral. The LLC contended that the principal of the LLC did not sign key documents, did not authorize advances, and did not authorize the pledge of the collateral. After a bench trial, the trial court held in favor of the bank based on, among other things, its finding that the principal of the LLC had ratified any allegedly unauthorized advances made under the lines of credit. The defendants now appeal. We reverse the finding of ratification as to one advance and remand for further findings; in all other respects, the decision of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2011/regionsbank_121411.pdf

STATE OF TENNESSEE v. CHRISTOPHER M. BLACK

Court: TCCA

Attorneys:

Richard L. Tennent, Nashville, Tennessee, for the appellant, Christopher M. Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Christopher Black, was convicted by a Davidson County jury of two counts of aggravated rape, a Class A felony, and two counts of aggravated robbery, a Class B felony, and sentenced to an effective term of fifty years imprisonment. On direct appeal, this court affirmed the convictions but remanded for a resentencing hearing "regarding [the defendant's] sentencing status with respect to the 2005 sentencing act and regarding the issue of consecutive sentencing." State v. Christopher M. Black, No. M2007-00970-CCA-R3-CD (Tenn. Crim. App., at Nashville, Feb. 26, 2010). Following a hearing on remand, the trial court, applying the single enhancement factor for prior criminal history, sentenced the defendant to twenty-five years for each count of aggravated rape and to ten years for each count of aggravated robbery. The court further found the defendant to be a dangerous offender and ordered that the two aggravated rapes be served consecutively, but concurrently to the sentences for robbery, again resulting in an effective sentence of fifty years. On appeal, the defendant contends that the trial court erred in the imposition of consecutive sentences. Following review of the record, we find no error and affirm the sentences as imposed.

http://www.tba2.org/tba_files/TCCA/2011/blackc_121411.pdf

STATE OF TENNESSEE v. LEONARD BRAKEFIELD

Court: TCCA

Attorneys:

Tony N. Brayton, Memphis, Tennessee, for the Appellant, Leonard Brakefield.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; Edith Sellers, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Defendant, Leonard Brakefield, of driving under the influence of an intoxicant ("DUI"), fourth offense, and refusal to submit to a blood alcohol test ("BAC"). On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction for DUI, fourth offense. After a thorough review of the record and relevant authorities, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/brakefieldl_121411.pdf

STATE OF TENNESSEE v. THOMAS G. MCCONNELL

Court: TCCA

Attorneys:

Venus Niner, Franklin, Tennessee, for the appellant, Thomas McConnell.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kelly A. Lawrence, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Thomas G. McConnell, pled guilty in the Circuit Court for Williamson County to driving under the influence, second offense, a Class A misdemeanor. See T.C.A. Section 55-10-401 (2008) (amended 2010). He was sentenced to eleven months and twenty-nine days, with forty-five days of the sentence to be served. On appeal, he presents a certified question of law regarding the legality of the traffic stop that led to his arrest. Because the certified question was not properly reserved, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2011/mcconnellt_121411.pdf

ROBERT PAGE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellant, Robert Page.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Amy P. Weirich, District Attorney General; Nicole Germain, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Petitioner, Robert Page, of second degree murder, and the trial court sentenced him to serve thirty-eight years in the Tennessee Department of Correction. The Petitioner appealed, and this Court reversed the conviction and remanded the case for a new trial, concluding that the trial court's failure to instruct the jury on facilitation was reversible error. State v. Robert Page, No. W2003-01342-CCA-R3-CD, 2004 WL 3352994, at *16 (Tenn. Crim. App., at Jackson, Aug. 26, 2004). Upon further review, our Supreme Court reversed the Court of Criminal Appeals judgment concluding that the failure to instruct on lesser-included offenses in the Petitioner's case did not constitute plain error. State v. Page, 184 S.W.3d 223, 226 (Tenn. 2006). The Petitioner filed a petition for post-conviction relief, which the post- conviction court denied after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because he received the ineffective assistance of counsel. After a thorough review of the record and applicable law, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/pager_121411.pdf

STATE OF TENNESSEE v. TIMOTHY CHRISTOPHER PILLOW

Court: TCCA

Attorneys:

James O. Martin, III, Nashville, Tennessee for the appellant, Timothy Pillow.

Robert E. Cooper, Jr., Attorney General and Reporter; Sofia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Jennifer McMillen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Timothy Christopher Pillow, of aggravated robbery, and the trial court sentenced him to ten years to be served at 100 percent. On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred when it failed to declare a mistrial based upon a detective's testimony that the Defendant had previously been incarcerated; and (3) the trial court erred when it enhanced his sentence. After a thorough review of the record and applicable authorities, we conclude no error exists in the trial court's judgment. The trial court's judgment is, therefore, affirmed.

http://www.tba2.org/tba_files/TCCA/2011/pillowt_121411.pdf

STATE OF TENNESSEE v. JIMMIE ROYSTON

Court: TCCA

Attorneys:

Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Timothy Albers (at trial), Assistant Public Defenders, Memphis, Tennessee, for the Defendant-Appellant, Jimmie Royston.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Kate Edmands, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Shelby County jury convicted Defendant-Appellant, Jimmie Royston, of two counts of prostitution near a school, a Class A misdemeanor. The two counts were merged into one judgment, and he received a sentence of nine months and a $1,000 fine. On appeal, Royston asserts that (1) the evidence was insufficient to support the convictions for prostitution, and (2) the trial court erred in allowing the State to impeach Royston at trial with prior misdemeanor theft convictions. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/roystonj_121411.pdf

STATE OF TENNESSEE v. DONALD SMITH

Court: TCCA

Attorneys:

N. Craig Brigtsen, III, and Terry D. Smart (at trial and on appeal), and Jerry Smart (at trial), Memphis, Tennessee, for the appellant, Donald Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Tom Hoover and Susanna Shea, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Donald Smith, pled guilty in the Shelby County Criminal Court to driving under the influence of an intoxicant (DUI), reserving the following certified question of law: "Whether the [appellant's] detention at [the] scene of a traffic stop was unreasonably prolonged such that it violated...Article I, Section 7 of the Tennessee Constitution and/or the Fourth Amendment to the United States Constitution." Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/smithd_121411.pdf

MICHELLE TIPTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michelle Tipton, Nashville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Steven Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Michelle Tipton, appeals the Davidson County Criminal Court's denial of her petition for habeas corpus relief from her 2000 conviction for first degree felony murder and resulting life sentence. She claims her conviction is void because (1) the judgment fails to identify the date of her indictment, (2) the judgment lists a non-existent offense, (3) the judgment fails to list her release eligibility percentage, (4) the same aggravating circumstance was used during the guilt and sentencing phases of the trial, (5) the State violated statutory sentencing guidelines, and (6) the judgment rendered a non-existent sentence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/tiptonm_121411.pdf

TODAY'S NEWS

Legal News
Passages
Career Opportunities
TennBarU CLE
TBA Member Services

Legal News

Haslam appoints Smith to circuit court

Tennessee Gov. Bill Haslam today appointed Deputy District Attorney Derek K. Smith to the 21st Judicial District Circuit Court. Smith fills a vacancy created by the appointment of Judge Jeff Bivins to the Tennessee Court of Appeals. For the past 19 years, Smith has served in the office of the District Attorney General, beginning as an assistant district attorney before being promoted to deputy district attorney in 1999.

Read more in the News Sentinel

Pro bono effort yields results for elderly tenants

Federal public housing officials and the Johnson City Housing Authority have agreed to delay for six months a 400 percent flat rate rent increase that was to take effect Jan. 1. That is thanks to the efforts of Johnson City attorneys Tony Seaton and McKeena Cox. The pair began helping a group of tenants who came to a free legal clinic held by the Washington County Bar Association. A number of the residents, according to Seaton, are low-income seniors who were scared such an increase would leave them unable to purchase food or medicine.

The Johnson City Press reports

MTSU team wins Rhodes mock trial competition

The Middle Tennessee State University (MTSU) undergraduate mock trial team placed first among 14 teams from five states in the Rhodes College mock trial competition last week. The team won eight of eight ballots in four rounds, and was the only team to post an undefeated record. MTSU students also won a number of awards including first place for best fact witness, second place for best closing argument and the "People's Choice" attorney award.

The Daily News Journal has more

Atlanta law school expands to Savannah

Atlanta's John Marshall Law School plans to open a branch campus next fall in Savannah and enroll 60 full-time and 35 part-time students. The new location will be called the Savannah Law School. In announcing the move, the associate dean for recruitment and marketing said, "There is no other law school serving that part of the southern Atlantic region" -- an area that is expected to experience significant population growth during the next 10 to 15 years. John Marshall previously maintained a campus in Savannah during the 1970s and early 1980s.

The ABA Journal reports

Ingram Group to focus on government, consulting

Tom Ingram -- a top adviser to Gov. Bill Haslam during his transition and a long-time adviser to U.S. Sen. Lamar Alexander -- has announced that his company, The Ingram Group, will begin to focus more on state government and strategic consulting. So far the shift includes the addition of two new staff members. Kevin Botts, who has over 15 years of experience in healthcare administration and finance, joins the group as a government relations consultant and corporate strategist. Rachel Albright joined the team earlier this year as a client consultant after serving as deputy press secretary for U.S. Senate Republican Leader Mitch McConnell. She handles political and strategic relationship building, project and campaign management and media relations.

Passages

Services set for Judge Lockard

Services for former Memphis criminal court judge and civil rights leader H.T. "Tony" Lockard will be held this week at the Metropolitan Baptist Church, 767 Walker Ave., Memphis 38126. Visitation will held tomorrow (Thursday) from 2 to 7 p.m. The funeral will take place Friday at 11 a.m. Burial will be on Friday at 2 p.m. at the West Tennessee Veteran Cemetery, 4000 Forest Hill-Irene Rd., Memphis 38125. In lieu of flowers, donations may be made to Metropolitan Baptist Church, Boys and Girls Clubs of Memphis or LeMoyne Owen College.

Stories yesterday about Lockard lauded his civil rights work in Memphis. But it may be not as widely known that he was one of the lawyers who represented students arrested in Nashville during the 1960 sit-ins. When asked in a Tennessee Bar Journal interview whether or not that work was scary, Lockard said, "yes," but that his "courage superseded [his] fear."

Career Opportunities

Firm looking to expand in Memphis and Nashville

The law firm of Farris Bobango PLC is looking to expand its offices in Memphis and Nashville by hiring lawyers with experience in litigation, commercial transactions and administrative law. A combination of business and complex litigation experience would be viewed as a plus by the firm. In Memphis, the firm focuses on state and federal litigation, local government issues, zoning, bankruptcy, environmental law, commercial transactions and mergers and acquisitions. The focus of the firm's Nashville office is on government relations, administrative law and litigation services.

The Memphis Daily News looks at the opportunities

TennBarU CLE

Ethics Roadshow wraps up this week

The Tennessee Bar Association's popular Ethics Roadshow CLE program wraps up its 2011 tour this week with sessions on Thursday, Dec. 15, in Cookeville and Memphis, and on Friday, Dec. 16 in Nashville. All of the seminars feature Memphis attorney Brian Faughnan, who chairs the TBA's Ethics and Professionalism Committee, speaking on legal ethics rules involving money.

Find links to all cities

TBA Member Services

Office Depot Discounts

Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from the store.

Find out more

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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.