New ABA president emphasizes public service

Newly installed American Bar Association President William Neukom says he will make public service and promoting the rule of law the hallmarks of his tenure. His signature program, the World Justice Project, is an effort to broaden and strengthen the association's recent focus on the rule of law both at home and abroad. It is a more global vision than he might have imagined 30 years ago, but Neukom sees it as a continuation of his longstanding view that the law and lawyers should serve the poor and the broader community. Or as he says, "the rule of law is not the rule of lawyers." Read a Legal Times profile of Neukom on Law.com:

http://www.law.com/jsp/article.jsp?id=1186996021283

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
04 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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. DANNY STRODE

Court: TSC

Attorneys:

Cynthia A. LeCroy-Schemel, Chattanooga, Tennessee, for the appellant, Danny Strode.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Associate Deputy Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: CLARK

In this capital case, we consider whether the State may pursue an interlocutory appeal from a trial court's determination that a defendant is ineligible for the death penalty due to mental retardation. Upon holding that it may, we also consider whether the trial court erred in finding the Defendant, Danny Strode, mentally retarded as set forth in Tennessee Code Annotated section 39-13-203(a) (2003). We hold that Tennessee Code Annotated section 39-13-203(a) requires that a defendant's mental retardation must have been manifested by eighteen years of age. Because the proof in this case preponderates against the trial court's finding that the Defendant's mental retardation manifested by his eighteenth birthday, we hold that the trial court erred in finding the Defendant to be mentally retarded and therefore ineligible for the death penalty. Accordingly, we affirm the judgment of the Court of Criminal Appeals. This matter is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2007/stroded_081407.pdf


ALEXANDER & SHANKLE, INC. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Richard M. Smith, Nashville, Tennessee, for the appellant, Alexander & Shankle, Inc.

Jeffrey S. Price, Jarrod W. Stone, Nashville, Tennessee, for the appellant, Ohio Farmers Insurance Company.

Thomas G. Cross, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: HARRIS

This is a contract dispute regarding the construction of two schools in Davidson County, Tennessee. The trial court granted the Metropolitan Government of Nashville and Davidson County (Metro) partial summary judgment, holding that the contractor, Alexander & Shankle, Inc., (A&S), was in default for breach of a "time of the essence" provision contained in the contract between the parties. We find that there are genuine issues of material fact relating to this issue, and so we reverse the ruling of the trial court.

http://www.tba2.org/tba_files/TCA/2007/asmetro_081407.pdf


OFFICE OF THE ATTORNEY GENERAL, CONSUMER ADVOCATE AND PROTECTION DIVISION v. TENNESSEE REGULATORY AUTHORITY

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Vance L. Broemel, Senior Counsel; and Joe Shirley, Assistant Attorney General, for the appellants, Consumer Advocate and Protection Division of the Office of the Attorney General.

J. Richard Collier, General Counsel; and Jean A. Stone, Deputy Counsel, for the appellees, Tennessee Regulatory Authority.

R. Dale Grimes, Kristin J. Hazelwood, Guy M. Hicks, and Joelle Phillips, Nashville, Tennessee, for the appellee, BellSouth Telecommunications, Inc.

Judge: KOCH

This appeal is a continuation of a dispute between the Tennessee Regulatory Authority and the Consumer Advocate and Protection Division of the Office of the Attorney General regarding the procedure used by the Authority to approve certain tariffs filed by BellSouth Telecommunications, Inc. without convening a contested case hearing. While an appeal from the Authority's denial of a contested case hearing with regard to BellSouth's first tariff was pending, BellSouth filed a second, substantially similar tariff. The Authority denied the Division's request to convene a contested case hearing regarding the second tariff based on its earlier refusal to convene a contested case hearing regarding the first tariff. The Division appealed. The Authority suggests that the appeal is moot in light of this court's decision vacating the Authority's approval of the first tariff. We have determined that this appeal should not be dismissed for mootness. We have also determined that the Authority erred by basing its decision to deny the Division's request for a contested case hearing regarding the second tariff on its earlier decision to decline a contested case hearing with regard to the first tariff. Our invalidation of the process the Authority used to approve the first tariff prevents the Authority from using the same process in future cases.

http://www.tba2.org/tba_files/TCA/2007/consumeradvocate_081407.pdf


JAMES H. IRWIN v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

James H. Irwin, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Kellena Baker, Assistant Attorney General, for appellee, Tennessee Department of Correction.

Judge: KIRBY

This case involves a petition for writ of certiorari filed by a state inmate. A prison disciplinary board found the inmate petitioner guilty of conspiring to violate state law. The inmate then filed a petition for common-law writ of certiorari, seeking judicial review of the disciplinary proceedings on several grounds. The Department did not oppose the granting of the writ and filed the administrative record for the trial court's review. Based upon this record, the trial court dismissed the inmate's claims. The inmate now appeals. We dismiss this appeal for lack of appellate jurisdiction, finding that the order entered by the trial court was not a final and appealable judgment.

http://www.tba2.org/tba_files/TCA/2007/irwinj_081407.pdf


JPMORGAN CHASE BANK v. FRANKLIN NATIONAL BANK ET AL.

Court: TCA

Attorneys:

Frank H. Reeves, Nashville, Tennessee, for the appellant, JPMorgan Chase Bank as Trustee.

J. Timothy Street and E. Covington Johnston, Jr., Franklin, Tennessee, for the appellees, Franklin National Bank and J. Timothy Street, Successor Trustee.

Judge: KOCH

This appeal stems from a dispute between two banks regarding the plaintiff bank's liability for discretionary costs after voluntarily dismissing the complaint it had filed against the defendant bank in the Chancery Court for Williamson County. Following the entry of the voluntary dismissal, the defendant bank, invoking Tenn. R. Civ. P. 41.04 and 54.04, requested the trial court to award its attorney's fees and court reporter expenses as discretionary costs. The trial court awarded the defendant bank $25,972.50 in discretionary costs, including $25,497.50 in attorney's fees and $475.00 in court reporter expenses. On this appeal, the plaintiff bank takes issue with the award of discretionary costs and requests that this court declare that the defendant bank violated Tenn. R. Civ. P. 11 by requesting these costs. We have determined that the trial court erred by awarding the defendant bank its attorney's fees as discretionary costs but did not abuse its discretion in awarding court reporter expenses. We also decline to consider whether the defendant bank's conduct violated Tenn. R. Civ. P. 11.

http://www.tba2.org/tba_files/TCA/2007/morganjp_081407.pdf


DON C. LEE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Don C. Lee, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Randall Eugene Nichols, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Don C. Lee, appeals the trial court's summary dismissal of his second post-conviction relief petition as barred by the statute of limitations. After review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/leedc_081407.pdf


STATE OF TENNESSEE v. MICHAEL R. PAYNE

Court: TCCA

Attorneys:

John D. Parker, Jr., Kingsport, Tennessee, for the appellant, Michael R. Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Michael R. Payne, was convicted of robbery, a Class C felony. The trial court sentenced Defendant as a Range III, persistent offender, to twelve years. In his appeal, Defendant argues that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in not granting Defendant full probation or some form of alternative sentence; (3) the trial court erred in sentencing Defendant above the presumptive minimum sentence; and (4) the trial court erred in not granting Defendant's request for a mistrial. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/paynem_081407.pdf


JOHN J. VILLANUEVA V. HOWARD CARLTON, Warden

Court: TCCA

Attorneys:

John J. Villanueva, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon and Blind Akrawi, Assistant Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, John J. Villanueva, filed a pro se petition for a writ of habeas corpus. The habeas court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that the habeas court erred because: (1) the trial court lacked jurisdiction to impose a life sentence without parole; and (2) his sentence is void because the trial court misclassified the offense on the judgment form. Upon review, we conclude that the trial court had jurisdiction to impose a life sentence without parole and that the trial court's misclassification of the Petitioner's offense on the judgment form does not entitle him to habeas corpus relief. Accordingly, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2007/villanuevaj_081407.pdf


TODAY'S NEWS

Legal News
Legislative News
BPR Actions
TBA Member Services

Legal News
Judge Donald elected ABA secretary
Judge Bernice Donald of the U.S. District Court for the Western District of Tennessee was elected without opposition to the position of ABA Secretary earlier today. Donald has served on the court for the last 12 years. Prior to that, she sat on the U.S. Bankruptcy Court and the Shelby County General Sessions Criminal Court; worked as an assistant public defender; and served with Memphis Area Legal Services. She earned her law degree in 1979 from the University of Memphis.

New rules for county courts
Officials in the 11th Judicial District, which includes Hamilton County, are working to clarify local court procedures and provide uniformity among the district's three courts. Criminal defense lawyers, however, have expressed concerns that the proposed revisions make it more difficult for them to access case files and decide what exhibits to use at trial.
Read more in the Chattanooga Times Free Press
Chancellor rejects request to toss Knox County suit
Chancellor Daryl Fansler today rejected Knox County's request to toss out the News Sentinel's lawsuit against the county commission and set a trial date of Aug. 28. The paper alleges that the commission violated the Tennessee Open Meetings Act when it chose replacements for 12 term-limited members. Fansler is expected to rule at the end of the week on whether Knoxville lawyer Herbert Moncier will be allowed to intervene in the suit.
Read about it in the News Sentinel
DA asked to investigate mayor's staff
The Knox County Ethics Committee today voted 6-2 to ask the district attorney general to investigate three employees of Mayor Mike Ragsdale's office who recently resigned over use of their county purchasing cards. DA Randy Nichols has said he would not investigate such claims himself but instead would ask another district attorney general to handle the task.
The News Sentinel has the story
Nashville attorneys recognized as leadership finalists
The Nashville Area Chamber of Commerce and the 20/20 Leadership Alliance will announce the winners of the inaugural Nashville Emerging Leaders Awards on Sept. 6. Awards will be given in 12 industry fields. Finalists in the law category are: Jonathan Cole and Tonya Grindon with Baker Donelson Bearman Caldwell & Berkowitz PC and James Crumlin with Bone McAllester Norton PLLC.
For information about the award visit the chamber's web site
Winkler released today
Mary Winkler, who was convicted in April of voluntary manslaughter for killing her preacher husband, was released from custody this morning. She said she plans to fight for custody of her children, who have been in the care of her in-laws since the shooting occurred. The Memphis Commercial Appeal reported the news.

Beasley and Craft honored by Memphis criminal section
The Memphis Bar Association Criminal Law Section honored two members yesterday at its monthly lunch meeting. The 2007 Distinquished Service Award was presented to Judge Jim Beasley Jr., and the 2007 Judge of the Year Award went to Judge Chris Craft. The two are credited with helping revitalize the section, as well as supporting it "by teaching countless seminars," according to Garland Erguden, the section's immediate past chair.

ABA launches e-commerce site
The ABA unveiled a new e-commerce site this weekend at its annual meeting. SafeSelling.org is a free online legal resource for individuals and small businesses interested in starting e-commerce enterprises or venturing into online sales. Developed by the Cyberspace Law Committee of the Business Law Section, the site is organized around frequently asked questions that arise during the creation, launch and operation of an online store or other e-commerce venture.
Visit the site at www.safeselling.org
Attorneys get creative to stem foreclosure
A bankruptcy filing alone may not be enough to help homeowners stave off foreclosure, but it buys attorneys time to come up with creative ways to save the home. Several lawyers discuss their strategies in this Memphis Daily News article.
Read more
Legislative News
Killian says no to Senate race
Chattanoogan.com reported today that South Pittsburg Mayor Mike Killian will not enter the District 10 state Senate race. That leaves Chattanooga attorney Andy Berke as the only announced candidate in the campaign to replace Senator Ward Crutchfield. The qualifying deadline is Aug. 23.

BPR Actions
Mississippi lawyer suspended
John Julian Morse has been suspended from the practice of law in Tennessee for one year based on a similar suspension by the Supreme Court of Mississippi. That court imposed the discipline on Morse for his neglect of and failure to communicate with clients.
Read the BPR release
Chattanooga attorney tries to block suspension
Chattanooga attorney Jes Beard has filed suit in Hamilton County Chancery Court to block a proposed two-year suspension of his law license. The state Board of Professional Responsibility held a hearing on May 30 to determine appropriate discipline for Beard following complaints about his handling of three cases. Beard argues, however, that the proof against him fails to show that he violated the Rules of Professional Responsibility, and that even if there were a violation, it would not warrant a two-year suspension.
Chattanoogan.com reports
TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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