Martin appointed to fill Circuit Court seat

Gov. Phil Bredesen has appointed James G. Martin of Franklin to fill the vacancy on the Tennessee Circuit Court, 21st Judicial District, Division II. The 21st Judicial District is composed of Williamson, Hickman, Perry and Lewis counties. The vacancy was created by the resignation of Judge R.E. Lee Davies, which was effective Oct. 1. Martin has been a partner with the law firm of Stites & Harbison, PLLC in Nashville since 2001, and was with Farris, Warfield & Kanaday, which merged with Stites & Harbison, from 1978 to 2000. Martin graduated first in his class from Vanderbilt University Law School in 1974.

Read more from the Administrative Office of the Courts

TODAY'S OPINIONS
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AVONDALE CHURCH OF CHRIST, ET AL. v. MERRILL LYNCH, ET AL.

Court: TCA

Attorneys:

Sandra G. Olive, Knoxville, Tennessee, for the Appellants, Frank T. Bradford, Earl T. Cullins, II, Jarrett Stone, and Gerald Taylor, Sr.

John R. Anderson and Robert S. Grot, Chattanooga, Tennessee, for the Appellees, Samuel L. Cosley, Charles E. Hudson, Robert Labron Smith, Herbert Jones, Jr., John E. Tucker, Edward Houston, James Earl Jones, and Reuben Fifer.

Ron D. Powers, Chattanooga, Tennessee, for the Appellee, SunTrust Bank.

Judge: LEE

This case involves a dispute between two factions of members of the Avondale Church of Christ over who should control the property of the church. The trial court, finding that the church was congregationally governed, that the church had no written bylaws or procedures to resolve the dispute, and that the factions had reached an impasse, ordered that a vote be taken by the members to determine who should be in "control of Avondale Church of Christ property and funds and leadership of the church." We find no error in the trial court's resolution of the issue of who should control the church's property and funds, but that the trial court had no jurisdiction to order the church to vote to determine the broader question of "the leadership of the church." We affirm the trial court's ruling that a group of members known as the Men's Business Committee had the sole authority to make decisions regarding the property of the church, in accordance with the vote of a large majority of the members. We vacate the trial court's order that the "Men's Business Committee is the proper leadership" of the church and its order affirming and enforcing a subsequent decision of the Committee to terminate the minister's employment because these are ecclesiastical issues over which a civil court has no jurisdiction pursuant to the First and Fourteenth Amendments.

http://www.tba2.org/tba_files/TCA/2008/avondalechurch_111008.pdf


HIGH COUNTRY ADVENTURES, INC. v. POLK COUNTY

Court: TCA

Attorneys:

Carl E. Hartley and Justin M. Sveadas, Chattanooga, Tennessee, for the appellant, High Country Adventures, Inc.

Christopher W. Conner, Maryville, Tennessee, for the appellants, Cripple Creek; Southeastern Expeditions; Nantahala Outdoor Center, Inc.; USA Raft, Inc.; Lamar Davis d/b/a Outland Expeditions; Ocoee Adventure Company, LLC; Ocoee Inn Rafting, Inc.; Wildwater Ltd.; Adventures Unlimited, Inc.

Denny E. Mobbs, and Ginger Wilson Buchanan, Cleveland, Tennessee, for Polk County, Tennessee.

Judge: LEE

The issues in this case are whether operators of whitewater rafting ventures responsible for collecting a county privilege tax imposed upon consumers participating in commercial rafting ventures in Polk County have standing to challenge the tax and if so, whether the tax is invalid because it is preempted by federal law. Upon careful review of the record and applicable law, we conclude that the operators have standing to contest the legality of the privilege tax and that the tax is preempted by federal law and is, therefore, invalid.

http://www.tba2.org/tba_files/TCA/2008/highcountry_111008.pdf


METROPOLITAN GOVERNMENT OF DAVIDSON COUNTY v. DYKE TATUM

Court: TCA

Attorneys:

James G. Martin, III, Alexandra T. MacKay, Nashville, Tennessee, for the appellant, Gregory Smith.

J. Brooks Fox, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville.

Thomas V. White, John P. Williams, Nashville, Tennessee, for the appellee, Dyke Tatum.

Judge: COTTRELL

A Nashville homeowner filed a petition in Circuit Court to intervene in a proceeding brought by the Metropolitan Government of Nashville and Davidson County to enjoin further construction on an uncompleted duplex located on property adjoining the homeowner's residence. The homeowner had previously challenged the developer's building permit in the Board of Zoning Appeals and obtained a ruling that the permit was invalid. The Circuit Court denied the motion to intervene and ultimately ruled that the developer could not be enjoined from completing the duplex because he had performed substantial work on it in good faith reliance on his building permit. The only issue on appeal is whether the trial court abused its discretion in denying the homeowner's petition to intervene. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2008/tatumd_111008.pdf


TIG INSURANCE COMPANY AND FAIRMONT SPECIALTY GROUP v. TITAN UNDERWRITING MANAGERS, LLC

Court: TCA

Attorneys:

Tyree B. Harris IV and Katherine A. Brown, Nashville, Tennessee, for the appellant, Titan Underwriting Managers, LLC.

Timothy L. Warnock and Katharine R. Cloud, Nashville, Tennessee, for the appellee, Fairmont Specialty Group.

Judge: BENNETT

Defendant-underwriter appeals the dismissal of its amended counter-complaint against Plaintiff- insurance company for failure to state a claim upon which relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6). The trial court first dismissed the counter-complaint but granted Defendant leave to amend in order to remedy the sufficiency of its pleading. After review of the amended counter-complaint, the court again dismissed the action on Plaintiff's Rule 12.02 motion to dismiss. We affirm.

http://www.tba2.org/tba_files/TCA/2008/tiginsurance_111008.pdf


STATE OF TENNESSEE v. LARRY DARNNELL PINEX
CORRECTION


Court: TCCA

Attorneys:

Jeffrey Devasher, Assistant Public Defender, Nashville, Tennessee, for the appellant, Larry Darnnell Pinex.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Larry Darnnell Pinex, was convicted of attempted aggravated rape, a Class B felony, attempted aggravated sexual battery, and attempted especially aggravated burglary, Class C felonies. He was sentenced as a Range III, persistent offender to twenty-five years for attempted aggravated rape and to twelve years for each of the remaining offenses. The twenty-five-year sentence was ordered to be served concurrently with the sentence for attempted aggravated sexual battery but consecutively to the twelve-year sentence for attempted especially aggravated burglary, for an effective sentence of thirty-seven years in the Department of Correction. He presents five issues for our review: (1) whether the evidence is sufficient to support his convictions for attempted aggravated sexual battery and attempted especially aggravated burglary; (2) whether the rape and battery convictions violate constitutional proscriptions against double jeopardy; (3) whether the State should have been required to make an election of offenses; (4) whether his conviction for attempted especially aggravated burglary should be modified to attempted aggravated burglary based upon Tennessee Code Annotated section 39-14-404(d); and (5) whether he received an excessive sentence. Following our review of the record and the parties' briefs, we conclude that the Double Jeopardy Clause of the Tennessee Constitution precluded convictions for both attempted aggravated rape and attempted aggravated sexual battery because the evidence showed that the Defendant made one continuous attempt to rape the victim. Consequently, we vacate the judgment of the trial court as to the Defendant's conviction for attempted aggravated sexual battery, as that offense should have been merged with the Defendant's conviction for attempted aggravated rape. We also modify the conviction for attempted especially aggravated burglary to attempted aggravated burglary and order a sentence of ten years for that offense.

http://www.tba2.org/tba_files/TCCA/2008/pinexl_CORR_111008.pdf

HAYES dissenting
http://www.tba2.org/tba_files/TCCA/2008/pinexlDIS_111008.pdf


TODAY'S NEWS

Legal News
Passages
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
PDs revolt over caseload;
Fla. court rules in their favor
Public defenders in at least seven states, including Tennessee, claim they are so overworked that they must limit new cases. In Florida, a judge has ruled that the public defenders' office in Miami-Dade County could refuse to represent many of those arrested on lesser felony charges so its lawyers could provide a better defense for other clients.
Read more about this PD revolt in the New York Times
Tennessee full of possible Obama team members
The Commercial Appeal surveys possible contenders for Obama administration positions such as Congressman Harold Ford Jr., Gov. Phil Bredesen, Congressman Jim Cooper, Charles W. Burson, James S. Gilliland and Herman Morris. Others mentioned as possible appointees were U.S. Rep. John Tanner, Memphis lawyer Bill Haltom, Tennessee state comptroller John G. Morgan and Tennessee deputy governor and Fayette County native Stuart Brunson.
Read it here
U.S. trial for Gitmo detainees may be next
President-elect Obama's advisers are quietly crafting a proposal to make good on a promise to close the Guantanamo Bay prison, the Associated Press reports. It would ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, but could require creation of a controversial new system of justice.
Find out from from NewsChannel 5
Nashville gang leader sentenced to life
A gang leader who admitted to participating in a pattern of racketeering activity in the Nashville area that included murder, attempted murder and witness tampering was sentenced today to life in prison for using a firearm in the commission of a violent crime, and to a 20-year term, to be served consecutively, for his participation in a racketeering enterprise.
Read the full Department of Justice release on the sentencing
Obama will shape federal courts
President-elect Obama will enter office with an immediate opportunity to begin shaping the federal courts by filling four dozen openings on trial and appeals courts. Public attention typically is focused on the Supreme Court, where five justices are older than 70. Speculation about a possible opening centers on 88-year-old Justice John Paul Stevens, but any retirement is unlikely before the summer, if then. Fourteen seats are open on appeals courts or will be by the end of January.
TriCities.com carried this AP story
Moss honored by YWCA
Nashville attorney Barbara J. Moss has been awarded a YWCA Academy of Women of Achievement honor. The academy's goal is to honor women who serve as role models for women through excellence and leadership in their profession. Read more about Moss and the other winners in
The Tennessean
Passages
Wade Sr. dies at 101
Tennessee Supreme Court Justice Gary Wade's 101-year-old father, Dwight Robert Wade Sr., died Nov. 8. A memorial service is set for tonight at 7 p.m. at the First Baptist Church in Sevierville. Interment will be held at Shiloh Cemetery at 9:30 a.m. on Nov. 11. In lieu of flowers, memorials may be made to the First Baptist Church of Sevierville, 317 Parkway, Sevierville, TN 37862.
The News Sentinel has more
Disciplinary Actions
Buchanan lawyer censured
Victoria L. DiBonaventura of Buchanan was publicly censured by the Board of Professional Responsibility on Sept. 12. In a parental rights case, she requested and was granted a continuance to take a deposition, but more than a year passed without DiBonaventura either taking the deposition or filing a motion to withdraw from representing complainant -- as she told the client she would -- and to request appointment of a new lawyer.
Read the BPR release
Kingsport attorney suspended
The Tennessee Supreme Court on Nov. 3 entered an order suspending the law license of Kingsport attorney Jason H. Arthur for 30 days, with all time suspended with probation for one year and restitution to the complainant. Arthur had requested and received fees and compensation on cases without remitting them to his former employer. The Board further alleged he had written false letters to physicians regarding liens.
Read the BPR release
Upcoming
Daughtrey to receive NBA Tune award
Judge Martha Craig "Cissy" Daughtrey will be awarded the Nashville Bar Association's highest and most prestigious award, the John C. Tune Award, at its annual meeting and banquet on Dec. 4. The purpose of the award is to recognize members who make outstanding contributions to the Nashville area community while distinguishing themselves as practicing attorneys.
For more information and to register, click here
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