New online CLE tackles ethics issues for criminal defense

Knowing what information is confidential and when it loses its confidential protection can be crucial to serving your clients. A new interactive online CLE from Knoxville lawyer and former U.S. Attorney W. Thomas Dillard will teach you when confidential information must be disclosed, when it may be disclosed, and when it must not be disclosed. Sign up now for Dillard's "Ethical Concerns from the Criminal Defense Perspective" to learn about these topics and more.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=54

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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00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
03 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
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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.

BRIGADOON PARTNERS, LLC v. DALE HUGHES, ET AL.

Court: TCA

Attorneys:

P. Edward Pratt, Knoxville, Tennessee, for the appellant, Brigadoon Partners, LLC.

J. Michael Sharp and Travis D. Henry, Cleveland, Tennessee, for the appellees, Dale Hughes and Brenda Hughes.

Judge: LEE

The plaintiff purchaser brought this action for specific performance of an agreement for the sale of a parcel of real estate. The trial court granted the seller summary judgment upon its finding, among other things, that the property description in the agreement was insufficient to satisfy the requirements of the statute of frauds. We affirm the trial court's judgment that the description of the property, which was to be divided from a larger tract owned by the seller, as "[i]n Cleveland, Tennessee, fronting on Paul Huff Pkwy at exit 27, and being further described as 1.5 acres fronting on the PKWY and I-75," was insufficient, and therefore the sale agreement was unenforceable pursuant to the statute of frauds.

http://www.tba2.org/tba_files/TCA/2008/brigadoonpartners_022708.pdf


JOE GAMBRELL, ET AL. v. SONNY NIVENS, ET AL.

Court: TCA

Attorneys:

J. Payson Matthews, Somerville, Tennessee and David M. Sullivan, Memphis, Tennessee, for the appellants, Sonny Nivens and Carrie Nivens.

John Marshall Jones, Memphis, Tennessee, for the appellees, Joe Gambrell and Jeri Gambrell.

Judge: FARMER

This case involves the enforcement of restrictive covenants in equity. After subdividing their property, imposing restrictions on the three lots they sold, and retaining the remaining land, vendors brought suit against remote grantees to enforce the restrictive covenants and to enjoin them from operating a wedding chapel, for commercial use, on the land. The central issue on appeal is whether the restrictions bind the remote grantees when the covenants were listed on an undated and unsigned attachment to a deed that neither identified encumbrances nor incorporated the attached restrictions. Following a trial on the matter, the trial court permanently enjoined the commercial activity because the remote grantees took title with actual notice of the restrictions. Finding ample support for the imposition of an equitable servitude, we concur in the trial court's judgment. Affirmed and remanded.

http://www.tba2.org/tba_files/TCA/2008/gambrellj_022708.pdf


ELGA JEAN HINSON, ET AL. v. CLAIBORNE & HUGHES HEALTH CENTER

Court: TCA

Attorneys:

Christopher Kim Thompson, Murfreesboro, Tennessee, for the appellants, Elga Jean Hinson and Carole Joan Lynch.

David L. Steed, Nashville, Tennessee, for the appellee, Claiborne and Hughes Health Center.

Judge: COTTRELL

A ninety-one year old man died a month after he was admitted to the hospital. Almost a year after his death, two of his daughters filed a complaint against the nursing home where he had resided prior to his hospital admission. They alleged that the nursing home's employees had been guilty of negligence which caused or contributed to their father's death. The trial court granted summary judgment to the nursing home on the wrongful death claim because Plaintiffs were unable to successfully refute the affidavit of the defendant's medical expert, who testified that the medical records showed that Plaintiffs' father had died from causes unrelated to any act or omission on the part of the nursing home or its employees. The court also dismissed all other claims based on general allegations of negligence by the nursing home because Plaintiffs' affidavits failed to allege any injuries with specificity and because of the passing of Tennessee's one-year statute of limitations period. We affirm.

http://www.tba2.org/tba_files/TCA/2008/hinsone_022708.pdf


KEENAN R. KEEN v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.
Corrected Opinion. Original opinion published on 2/25/08.


Court: TCA

Attorneys:

Keenan R. Keen, Petros, Tennessee, Pro Se.

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

Judge: COTTRELL

A Prison Disciplinary Board found a prisoner guilty of two disciplinary infractions, fined him $5.00 for each infraction and sentenced him to two thirty-day terms in punitive segregation. The prisoner filed a petition for writ of certiorari, alleging that there were irregularities in the procedures followed by the disciplinary board and that its actions were arbitrary, capricious, and characterized by an abuse of discretion. The trial court granted the writ, and the department accordingly sent the administrative record to the court for review. The respondents then filed a motion for judgment on the record. The trial court granted the motion and dismissed the prisoner's claim. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2008/keenk_Corr_022708.pdf


THOMAS MORROW, ET AL. v. RONNIE BULL, ET AL.

Court: TCA

Attorneys:

John M. Wolfe, Jr., Chattanooga, Tennessee, for the Appellants, Thomas Morrow and Deborah Morrow, individually and as parents and next friends of minors Charles Morrow and Elizabeth Anne Morrow.

Douglas M. Campbell, Chattanooga, Tennessee, for the Appellees, Ronnie and Michelle Bull, individually and d/b/a Bull Construction.

Judge: LEE

The tenants, who leased a newly-constructed house from the builder/owner, sued the builder/owner alleging, among other things, that the house was negligently constructed in that it was built on a site that unreasonably exposed the house to excessive moisture and with a deficient water runoff and drainage system. The tenants sought compensation for personal injury and property damage allegedly caused by toxic mold in the house due to excessively wet basement walls. The trial court granted the builder/owner summary judgment. Upon review, we vacate the trial court's summary judgment based on our finding that genuine issues of material fact exist.

http://www.tba2.org/tba_files/TCA/2008/morrowt_022708.pdf


DAVID MICHAEL RUST V. SOUTHERN ENVIRONMENTAL CONTRACTORS, INC., ET AL.

Court: TCA

Attorneys:

David Young Parker, and David Zager, Nashville, Tennessee, for the appellant.

H. Buckley Cole, and Darlene T. Marsh, Nashville, Tennessee, for the appellees, Southern Environmental Contractors, Inc. and Byron Taylor, individually.

Judge: HOLLOWAY

An employee/minority shareholder appeals the summary dismissal of his action in which he sought to recover commissions the corporation allegedly owed him for prior work and damages arising out of an alleged breach of fiduciary duty and fraud by the president/majority shareholder. The trial court granted the Motions for Summary Judgment filed by the corporation and by the president/majority shareholder, finding the employee failed to show that there was a genuine issue for trial as to whether employee was owed commissions and whether the president/majority shareholder committed fraud or breached his fiduciary duty. We affirm.

http://www.tba2.org/tba_files/TCA/2008/rustd_022708.pdf


M. R. STOKES COMPANY, INC. v. MICHAEL L. SHULAR, ET AL.

Court: TCA

Attorneys:

Cecil D. Meek, Jr., and Edward L. Summers of Knoxville, Tennessee for Appellants, Michael L. Shular, Trustee and Ohio Casualty Insurance Company.

Mary Beth Hagan and Gareth S. Aden of Nashville, Tennessee for appellee and Cross-Appellant, M. R. Stokes Company, Inc.

Judge: CRAWFORD

This is a construction case. In a contract prepared by the plaintiff, contractor agreed to install sewer lines, water lines, roads and to perform certain site preparation work for a section of a subdivision development owned by the defendant-owner. The total contract price is $925,000, which includes the material and labor to complete the project. The trial court entered judgment for contractor. Owner appeals and contractor cross-appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2008/stokesm_022708.pdf


STATE OF TENNESSEE V. LARRY D. LAFORCE, II

Court: TCCA

Attorneys:

Edward R. Sempkowski, Morristown, Tennessee, attorney for appellant, Larry D. LaForce, II.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Victor Vaughn, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Larry D. LaForce, II, appeals as of right from his jury conviction in the Hamblen County Criminal Court for coercion of a witness, a Class D felony, for which he received a sentence of three years as a Range I, standard offender. On appeal, the defendant contends that the evidence is insufficient to support his conviction. Additionally, he claims that the trial court erred in denying his motion to sever offenses, that the trial court committed plain error in instructing the jury regarding the elements of coercion of a witness, that the trial court erred in instructing the jury regarding the dismissal of the aggravated assault charge, and that the cumulative effect of the errors resulted in a denial of due process which denied the defendant of his right to a fair trial. The state argues that the evidence is sufficient to support the conviction for coercion of a witness, that trial court correctly denied the motion for severance, and that trial court instructed the jury properly. Additionally, the state alleges that the trial court erred in dismissing the aggravated assault charge on variance grounds. Following our review, we conclude that the trial court erred in dismissing the aggravated assault charge and that none of the defendant's allegations of error merit relief. Therefore, the judgment of the criminal court is affirmed in part and reversed in part; the case is remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/laforcel_022708.pdf


STATE OF TENNESSEE v. NAOMI LOVELL PREYER

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and Periann S. Houghton, Assistant District Public Defender, Somerville, Tennessee, for the Appellant, Naomi Lovell Preyer.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Naomi Lovell Preyer, appeals the sentencing decision of the Tipton County Circuit Court. Pursuant to a plea agreement, Preyer pled guilty to identity theft and forgery, both Class D felonies. Following a sentencing hearing, the trial court imposed concurrent sentences of twelve years, as a career offender, for each conviction and ordered that the sentences be served in confinement. On appeal, Preyer asserts that the trial court's denial of a community corrections sentence was error. Following review of the record, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/preyern_022708.pdf


STATE OF TENNESSEE V. THOMAS WHITTENBERG

Court: TCCA

Attorneys:

Russell T. Greene, Knoxville, Tennessee, for the appellant, Thomas Whittenberg.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Thomas Whittenberg, pled guilty in the Knox County Criminal Court to accessory after the fact of first degree murder and arson. The plea agreement provided that the appellant would be sentenced as a Range II multiple offender to concurrent four year sentences on each count. The appellant applied for probation, which application was denied. On appeal, the appellant challenges the denial of probation. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/whittenbergt_022708.pdf


Constitutionality of the Eligibility Criteria for the Tennessee Hope Scholarship under Tenn. Code Ann. Section 49-4-926

TN Attorney General Opinions

Date: 2008-02-27

Opinion Number: 08-36

http://www.tba2.org/tba_files/AG/2008/ag_08_36.pdf

Public Employees First Amendment Rights

TN Attorney General Opinions

Date: 2008-02-27

Opinion Number: 08-37

http://www.tba2.org/tba_files/AG/2008/ag_08_37.pdf

TODAY'S NEWS

Legal News
Your Practice
Passages
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Court decision allows FedEx suit to proceed
The U.S. Supreme Court ruled today that an age discrimination lawsuit against FedEx Corp. may proceed, even though the usual notification form was not filed with the Equal Employment Opportunity Commission and the EEOC failed to notify the company of the complaint. The opinion criticized the EEOC for that failure and suggested the lower court might stay the case to give the company time to negotiate a settlement. Read more from the AP
Download the opinion
Study of Memphis bankruptcies offers surprises
A study by the RISE Foundation, a non-profit group that counsels low-income people, offers surprising conclusions about Memphians who file for bankruptcy. The study found that most filers were gainfully employed and said they'd only filed bankruptcy to stop a foreclosure or because of a catastrophic health condition that broke their budgets.
Learn more in the Memphis Daily News
Juvenile clerk defends record
The embattled juvenile court clerk of Davidson County appeared before a budget hearing yesterday to plead his office's case. Vic Lineweaver has been under fire for poor job performance. Read what he had to say about improvements underway in the office.
WSMV-TV has the story
ACLU challenges voting law
The American Civil Liberties Union filed a lawsuit this week challenging a Tennessee state law that requires convicted felons to pay "all outstanding legal financial obligations" before their voting rights are restored. The group argues that such a financial burden violates the Equal Protection Clause of the Fourteenth Amendment by discriminating on the basis of wealth.
The Tennessean reports
UT law prof funds advocacy competition
When attorney and UT College of Law adjunct professor Mike Galligan had to give up his long commute from McMinnville, he decided to continue giving to students, helping fund the Center for Advocacy and Dispute Resolution's First Annual 1L Advocacy Competition. The event will be held March 12. Following the competition, participants and judges will discuss ways to improve advocacy skills over dinner, according to the law school's e-newsletter, The Informant.

Lipscomb program influences law career
A year-old program at Nashville's Lipscomb University brings undergraduate students to a women's prison for classes. The program offers inmates the opportunity to take two years of coursework, paid for by donations to the university. For one traditional student, though, the experience may mean a new career field. Read why Emily Nix, a senior majoring in American Studies, is considering changing her plans from pursuing a career in health care law to one in criminal defense.
The Tennessean has the story
Your Practice
New website offers resources, recognition for lawyers
A new web site launched today is intended to help lawyers share filed pleadings, research memoranda and other materials, identify legal experts and provide a forum to market themselves. Developed by a San Francisco litigator and a team of Internet and legal marketing professionals, JD Supra allows lawyers to build on others' work rather than reinvent the wheel. The ABA Journal reported the launch.
Check out the site
Passages
State Rep. Rowe dies
State Representative Gary Rowe, D-Memphis, died early this morning at the age of 56 after a short battle with colon cancer. First elected in 2005, Rowe took the House seat vacated by State Sen. Kathryn Bowers. During his tenure in the legislature, he served as chair of the Shelby County delegation and secretary of the House Government Operations Committee. Funeral arrangements are pending, according to the Nashville Post.

Disciplinary Actions
Two lawyers censured
Brentwood lawyer Charles G. Blackard III was publicly censured by the Board of Professional Responsibility on Feb. 13. In both domestic relations cases, Blackard failed to keep clients informed about their cases, and failed to respond to reasonable requests for information.
Read the BPR release
Gainesboro lawyer William L. Draper was censured Feb. 14. A BPR hearing panel found that Draper's conduct in pursuing an interest against a former client violated the Rules of Professional Conduct since the matter was substantially related to his representation of the former client.
Read the BPR release
Two lawyers suspended
On Feb. 12, the Tennessee Supreme Court temporarily suspended the law license of Glenn Erikson, pursuant to Section 14 of Tennessee Supreme Court Rule 9, in light of Erikson's plea of guilty to one count of "wire fraud affecting a financial institution," in violation of 18 USC Section 1343.
Read the BPR release
On Feb. 1, the Tennessee Supreme Court temporarily suspended the law license of Jackson attorney Linda Sesson Taylor, pursuant to Section 4.3 of Tennessee Supreme Court Rule 9, because of her failure to respond to a complaint of ethical misconduct.
Read the BPR release
Upcoming
Nashville Bar YLD host Saturday race
Over 500 runners are expected to compete in the 5th Annual Race Judicata this Saturday in Nashville's Percy Warner Park. The race, sponsored each year by the Nashville Bar Association Young Lawyers Division, offers both a 5K and 10K option. Funds raised will benefit St. Luke's Community House. Registration and team information must be submitted to Allison LaRue no later than noon tomorrow.

TBA Member Services
UPL enforcement resources available
The TBA Standing Committee on the Protection of the Public from the Unauthorized Practice of Law encourages all lawyers in Tennessee to be alert to the unauthorized practice of law (UPL), which harms Tennessee consumers. Resources now are available to help lawyers report UPL to local bar associations and the state attorney general. Local bars that do not already have a process in place for handling UPL complaints, may want to check out a sample protocol on TBALink.
Visit the UPL webpage for more information

 
 
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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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