Former AG Summers to lead new TBA section

Former Tennessee Attorney General Paul Summers has agreed to serve as chair of the new TBA Appellate Practice Section during its inaugural year, beginning at the TBA Convention in June. You may join the new section by checking the box by the Appellate Practice Section on your dues renewal form -- print or online. If you've already renewed your TBA membership, you can add the section membership at TBA Membership Central or by calling the TBA at (800) 899-6993 or in Nashville at 383-7421. Section dues are $20. If you are interested in being involved in this new section, contact TBA Sections & Committees Coordinator Lynn Pointer.
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
02 - TN Court of Appeals
03 - TN Court of Criminal Appeals
01 - 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.

BOARD OF PROFESSIONAL RESPONSIBILITY v. WILLIAM DOUGLASS LOVE

Court: TSC

Attorneys:

Gregory Robert Atwood, Nashville, Tennessee, for the appellant, William Douglass Love.

Sandy Garrett (oral argument) and Laura Chastain (brief), Nashville, Tennessee, for the appellee, Board of Professional Responsibility.

Judge: CLARK

This is a direct appeal from a trial court's decision, which modified a hearing panel's judgment granting a suspended lawyer's Petition for Reinstatement of his law license contingent upon compliance with three conditions. In light of the change of the applicable standard of review on July 1, 2006, this case requires us to determine whether the trial court should have employed the standard in effect when the hearing panel rendered its decision or the standard in effect when the trial court heard and decided the case. It also requires us to address the circumstances under which a trial court is permitted to modify a hearing panel's decision. Because the trial court heard this case in August 2006, it should have adhered to the standard of review that became effective on July 1, 2006. This standard of review was not applied, and therefore, the trial court erred by modifying all but one of the hearing panel's reinstatement conditions. Accordingly, we reverse the trial court’s judgment in part, affirm in part, and remand this case to the trial court for issuance of an order consistent with our holdings herein.

http://www.tba2.org/tba_files/TSC/2008/lovew_051208.pdf


JEFF FINCHUM and MICHELLE FINCHUM d/b/a SHOCKWAVE CUSTOMS

Court: TCA

Attorneys:

W. Carl Spining, Charles H. Crocker Jr., and Michael T. Schmitt, Nashville, Tennessee, for the appellant Tina Davenport d/b/a Shelter Insurance Company

John H. Norton and Liberti A. Snider, Shelbyville, Tennessee, for the appellees Jeff Finchum and Michelle Finchum d/b/a Shockwave Customs

Judge: KIRBY

This is an insurance case. The plaintiffs operated a business engaged in the installation of automobile accessories and stereo equipment. The defendant insurance agency sold to the plaintiffs a commercial fire insurance policy that excluded coverage for loss from theft and stated that only the insurance company was authorized to amend the policy. While the policy was in effect, thieves broke into the plaintiffs' store and stole or damaged equipment and merchandise. The insurance company denied coverage The plaintiffs filed a lawsuit in general sessions court against the defendant insurance agency, alleging that the defendant had represented to them that the policy covered loss caused by theft, that they relied on this representation to their detriment, and, therefore, that the defendant insurance agency should be estopped from relying on the exclusion of theft in the policy. After a judgment for the defendant, the plaintiffs appealed to the circuit court. The circuit court held for the plaintiffs, based on estoppel. The defendant insurance agency now appeals. We reverse. We hold first that equitable estoppel is not applicable against the insurance agent because the insurance company, not the agent, denied coverage under the policy. Second, the plaintiffs are charged with knowledge of the terms of the insurance contract they signed, including the provision indicating that only the insurance company could amend the terms of the policy, which clearly excluded losses from theft.

http://www.tba2.org/tba_files/TCA/2008/finchumj_051208.pdf


MIKE J. URQUHART v. STATE OF TENNESSEE,

Court: TCA

Attorneys:

Edward L. Hiland, Nashville, Tennessee, for the appellant, Mike J. Urquhart.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lizabeth A. Hale and William R. Lundy, Jr., Assistants Attorney General, for the appellee, State of Tennessee, Department of Safety.

Judge: COTTRELL

A man who contracted with a storage facility to clean out abandoned storage units in exchange for permission to keep the contents discovered $40,000 in cash in one of the units. He turned it over to an attorney, who deposited it in an interest-bearing account and reported the find to the police. Shortly thereafter, it was learned that he had cleaned out the wrong unit because of an error by the storage company. The State subsequently seized the money, believing it to be traceable to illegal drug transactions. The finder filed an administrative claim for the money’s return, contending that he was a bonafide purchaser for value and that the State had no right to seize property he had legitimately acquired. The administrative law judge ruled that the money was properly seized and forfeited it to the State. The administrative ruling was appealed to the chancery court, which ruled in favor of the State. We affirm.

http://www.tba2.org/tba_files/TCA/2008/urquhartm_051208.pdf


STATE OF TENNESSEE v. LONNIE JONES

Court: TCCA

Attorneys:

Garland Ergüden (on appeal) and Trent Hall (at trial), Memphis, Tennessee, for the appellant, Lonnie Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris West, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Lonnie Jones, was convicted by a jury in the Shelby County Criminal Court of aggravated robbery. The trial court sentenced the appellant as a standard Range I offender to eleven years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/jonesl_051208.pdf


STATE OF TENNESSEE v. HEATHER MASSENGILL

Court: TCCA

Attorneys:

Sally Love, Cleveland, Tennessee, attorney for appellant, Heather Massengill.

Robert E. Cooper, Jr., Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Kristie Luffman, Sandra Danaghy, Stephen Crump, and John Williams, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Heather Massengill, appeals as of right her jury convictions for conspiracy to commit aggravated robbery, two counts of facilitation of attempted aggravated robbery, and facilitation of felony murder. The trial court sentenced the defendant as a Range I, standard offender to concurrent sentences of four years for the conspiracy count, three years for one facilitation of attempted aggravated robbery, five years for the other facilitation of attempted aggravated robbery, and seventeen years for the facilitation of felony murder, for a total effective sentence of seventeen years. On appeal, she raises three issues for this court’s review: (1) whether the trial court erred in denying a motion to suppress the statement of her codefendant, (2) whether the trial court erred in admitting a copy of a compact disc recorded statement of another codefendant after the original recording had been destroyed, and (3) whether the trial court erred in excluding evidence of an outstanding warrant for the purpose of impeaching a codefendant. The state contends that the defendant’s appeal should be dismissed for failure to file a timely motion for new trial and notice of appeal. We conclude that the issues alleged on appeal are waived because the defendant failed to file a timely motion for a new trial. We further conclude that the defendant has failed to seek a waiver of the timely filing of the notice of appeal in this case. Therefore, the appeal shall be dismissed.1

http://www.tba2.org/tba_files/TCCA/2008/massengillh_051208.pdf


STATE OF TENNESSEE v. JEFFREY LEE TURNER

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the Appellant, Jeffrey Lee Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Garry G. Brown, District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Jeffrey Lee Turner, appeals the sentencing decision of the Humboldt Law Court for Gibson County. Turner pled guilty to one count of aggravated statutory rape, fifteen counts of statutory rape, and two counts of contributing to the delinquency of a minor. After a sentencing hearing, the trial court sentenced Turner to an effective term of eleven years, eleven months, and twenty-eight days. On appeal, Turner challenges the length of his sentences, specifically alleging (1) that the trial court misapplied enhancement and mitigating factors and (2) that the trial court erred in imposing partial consecutive sentences. After a thorough review of the record and the briefs of the parties, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/turnerj_051208.pdf


County Board of Education Member also serving as City Council Member and City Board of Education Member

TN Attorney General Opinions

Date: 2005-09-08

Opinion Number: 08-107

http://www.tba2.org/tba_files/AG/2008/ag_08-107.pdf

TODAY'S NEWS

Legal News
Legislative News
Disciplinary Actions
TBA Member Services

Legal News
Changes to Shelby charter to be decided this week
As part of sweeping changes to Shelby County's charter, commissioners will vote for a final time this week whether to let voters decide if the offices of sheriff, trustee, assessor, register and county clerk should be limited to two four-year terms.
The Commercial Appeal has the details
White House cites George Washington to stop testimony
In an effort to bolster the idea of executive privilege and keep President Bush's closest advisers from testifying about the firing of federal prosecutors, administration officials have responded by going pretty far back into history. Citing George Washington, Grover Cleveland, Richard Nixon and Bill Clinton, they said these types of clashes get resolved without going to court. "Never in American history has a federal court ordered an executive branch official to testify before Congress," lawyers for the White House wrote.
Read about it in the Commercial Appeal
Hoffa trial reverberated across country 44 years ago
The Chattanooga trial of Teamsters leader Jimmy Hoffa 44 years ago became a trial of national proportions. "It's importance stretches far beyond Chattanooga because it involves what I think is the most massive attempt to corrupt the administration of justice in my lifetime anywhere in the country," said John Seigenthaler, former editor of The Tennessean and former administrative assistant to Attorney General Robert F. Kennedy.
Find out more about the trial from the Chattanooga Times Free Press
Filly's death more humane than prisoners', Stevens says
After filly 8 Belles was put down after the Kentucky Derby, U.S. Supreme Court Justice John Paul Stevens learned that it is against the law in Kentucky to kill animals with one of the drugs used to execute prisoners. He says the euthanized filly probably died more humanely than death row prisoners do. Stevens voted with the majority on the question of lethal injections but said for the first time that he now believes the death penalty is unconstitutional. His comments were made Friday in Chattanooga at the 68th conference of the 6th U.S. Circuit Court of Appeals.
WATE-TV carried the AP story
New juvenile facility in Rutherford almost ready
Take a look at Rutherford County's new Juvenile Justice Services building, set to open later this month. The facility will house two courtrooms, the clerk's office, youth services offices and a three-pod detention center.
The Murfreesboro Post gives you the story
Access to Justice reps learn at national meeting
Almost a dozen members of Tennessee's Access to Justice community gathered in Minneapolis last week for the American Bar Association's Equal Justice Conference, joining more than 1,000 other lawyers, law students and access to justice supporters from across the country. TBA Access to Justice Coordinator Becky Rhodes and the Deb House, chair of the Access to Justice Committee, were among those attending. The theme for the 2008 ABA Equal Justice Conference was "Pursuing Justice: Balancing Challenges and Opportunities." Among the featured speakers were ABA President William Neukom and Georgetown Law Professor Peter Edelman.

Legislative News
Governor giving budget update today
Gov. Phil Bredesen was to deliver his 2008-2009 Budget Update Address to the 105th General Assembly in the State House Chambers at 5 p.m. CDT today. Details of state employee buyouts will not be part of the speech, as the governor will ask for more time to develop that. Archive video of the address will be available shortly after the live event.
Hear the governor's address
Senate Finance Committee doesn't change exemption
The Senate Finance Committee today stripped a provision that would have changed the rule of construction for charitable property tax exemptions from a bill (SB3944 by McNally, HB3727 by Fitzhugh) brought by the staff of the State Board of Equalization. The provision was opposed by the nonprofit community and the Tennessee Bar Association.

Disciplinary Actions
Knoxville attorney censured
Knoxville attorney Aubrey L. Davis was publicly censured by the Board of Professional Responsibility on April 22. The censure was issued by the Board pursuant to Rule 9, Section 8 of the Rules of the Tennessee Supreme Court. The court found Davis to have been "grossly negligent in the performance of his duties to his client and to this court," and "in willful contempt of this court" for missing deadlines in a criminal case and not communicating with the court.
Read the BPR release
TBA Member Services
Free Fastcase CLE helps build research skills
Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.

Online training sessions are also available. The TBA and Fastcase offer free one-hour CLE webinars to help you use Fastcase online research more effectively in your practice.
Access Fastcase now

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2008 Tennessee Bar Association