Legal leaders encourage attendance at transitional CLE

Leaders in Tennessee's legal community are encouraging younger colleagues to attend transitional legal education courses scheduled in Knoxville, Memphis and Nashville this month. Tennessee Supreme Court Justice Gary Wade has penned a letter to new admittees encouraging them to take advantage of the program. In addition, the Tennessee Association of Criminal Defense Lawyers has joined the Tennessee Bar Association and local bars across the state to support this "bridge the gap" type program for young lawyers just starting out in practice. The course offers practical guidance on how to manage clients' and partners' expectations, how to communicate with opposing counsel, and how to avoid mistakes that can expose lawyers to disciplinary complaints. Learn more or register now for the Nov. 19 Memphis seminar, or the Nov. 20 presentation in Knoxville or Nashville
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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
05 - 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.

IN THE MATTER OF: B. L. C. ET AL.

Court: TCA

Attorneys:

Randy P. Lucas, Gallatin, Tennessee, for the appellant, C. K.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth C. Driver, Senior Counsel, Tennessee Department of Children's Services.

W. Brian Stephens, Gallatin, Tennessee, Guardian ad litem.

Judge: CLEMENT

Mother appeals the termination of her parental rights. She contends the trial court erred in finding that her rights should be terminated on the ground of substantial noncompliance with the requirements of the permanency plan and that termination was in the children's best interests. She also contends the Department of Children's Services did not act in good faith to use reasonable efforts to assist her in reuniting with her children. We have determined that the evidence clearly and convincingly supported the finding of substantial noncompliance with the permanency plan, that termination was in the best interests of the children, and that the Department used reasonable efforts to assist Mother in reuniting with her children. Therefore, we affirm the termination of Mother's parental rights.

http://www.tba2.org/tba_files/TCA/2009/blc_110509.pdf


DEJA VU OF NASHVILLE, INC. ET AL. v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL.
CORRECTION: On page 1, disposition has been changed to "Judgment of the Circuit Court Affirmed" and on page 8, paragraph 4, line five, footnote 11 "Entertainment 119" has been changed to "Entertainer 118"


Court: TCA

Attorneys:

Bob Lynch, Nashville, Tennessee, and Bradley J. Shafer, Lansing, Michigan, for the appellants, Deja Vu of Nashville, Inc., d/b/a Deja Vu, Meroney Entertainment, Inc., d/b/a Ken's Gold Club, D.F. Group, Inc. d/b/a Anthony's Showplace, and Stephanie's Cabaret of Tennessee, LLC d/b/a Stephanie's Cabaret, Jane Doe I and Jane Doe II.

Francis H. Young, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County, et al.

Judge: CLEMENT

Appeal from the dismissal of Plaintiffs' claims on a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss for failure to state a claim upon which relief can be granted. Plaintiffs, several sexually oriented businesses and two exotic dance entertainers, filed suit against the Metropolitan Government of Nashville and Davidson County and the Metropolitan Sexually Oriented Business Licensing Board challenging Chapter 6.54 of the Metropolitan Code of Laws, which governs the licensing and regulation of sexually oriented businesses. Plaintiffs alleged that the Ordinance was unconstitutional, both facially and as applied, under the Tennessee Constitution for, inter alia, violations of their rights to free speech, expression, privacy, association, equal protection, and due process. Two years after their first Motion to Dismiss was denied, Defendants filed a Renewed Motion to Dismiss, which the trial court granted. This appeal followed. We affirm the dismissal of Plaintiffs' claims as Plaintiffs have asserted no factual allegations which support an "as applied" constitutional challenge to the Ordinance, nor have they alleged any basis for a facial challenge to the Ordinance other than vague, conclusory legal statements.

http://www.tba2.org/tba_files/TCA/2009/dejavu_CORR_110509.pdf


JOHN WESLEY GREEN v. EDNA L. GREEN, ET AL.

Court: TCA

Attorneys:

James D. R. Roberts and Janet L. Layman, Nashville, Tennessee, for the appellant, John Wesley Green, individually and as a Shareholder of Champs-Elysees, Inc.

Eugene N. Bulso, Jr. and Emily R. Walsh, Nashville, Tennessee, for the appellees, Edna L. Green, Mark A. Green, Arthur Fourier, individually and as the Board of Directors for the Shareholders of Champs-Elysees, Incorporated.

Judge: DINKINS

Judgment debtor filed motion seeking to enjoin execution sale at which stock owned by debtor in judgment creditor corporation was scheduled to be sold; alternatively, debtor sought to quash the execution, alleging that the stock was exempt property. At execution sale, debtor's stock was purchased by judgment creditor. Debtor subsequently sought to have execution sale set aside, alleging that there were defects in the manner in which the sale was conducted and asserting that the trial court should have held a hearing on his motion to quash the execution prior to the sale. Following a hearing the trial court denied relief holding that debtor had not pursued his request for injunctive relief and that the motion to quash was moot. Debtor appealed. While this case was pending on appeal, the Tennessee Supreme Court reversed the summary judgment against debtor, which led to the monetary judgment the execution sale was held to enforce and remanded for a trial on the merits. Having determined that the resolution of the issues raised in this appeal is subject to factual determinations which are within the scope of the remand, we vacate the decision of the trial court and remand this case for consideration in light of the issues to be determined.

http://www.tba2.org/tba_files/TCA/2009/greenj_110509.pdf


MICHAEL AND CAROLYN REGEN v. EAST FORK FARMS, LP, ET AL.

Court: TCA

Attorneys:

George Arthur Dean and Ben H. Cantrell, Nashville, Tennessee, for the appellants, Michael Regen and Carolyn Regen.

C. Dewees Berry, Nashville, Tennessee, for the appellees, East Fork Farms, LP and Jane Cleveland.

Judge: BENNETT

The trial court granted summary judgment in favor of the easement holder in a declaratory judgment action by the servient estate landowners. The landowners appealed, maintaining that the increase in traffic on the easement resulting from the new use of the easement holder's land will unreasonably burden the easement. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2009/regenm_110509.pdf


STEVE STAMSON, CLERK OF JUVENILE COURT OF SHELBY COUNTY, TENNESSEE v. DAVID LILLARD, ET AL.

Court: TCA

Attorneys:

Brian L. Kuhn and Robert B. Rolwing, Memphis, Tennessee, for the Appellants, David Lillard, Chairman of the Board of Commissioners of Shelby County, Tennessee, and A.C. Wharton, Jr., Mayor of Shelby County, Tennessee.

David F. Kustoff, Memphis, Tennessee, for the Appellee, Steve Stamson, Clerk of Juvenile Court of Shelby County, Tennessee.

Judge: STAFFORD

This appeal involves the application of Tenn. Code Ann. section 8-20-101 et seq. to civil service positions in Shelby County. The Juvenile Court entered a consent judgment on a salary petition filed by the Juvenile Court Clerk pursuant to Tenn. Code Ann. section 8-20-101 et seq. This judgment allowed the Juvenile Court Clerk to fill certain civil service positions. When the positions were not filled, the Juvenile Court Clerk filed a Petition for Contempt. Subsequently, the Juvenile Court entered judgment on the Petition for Contempt. Finding that the Juvenile Court did not have subject matter jurisdiction to award relief pursuant to Tenn. Code Ann. section 8-20-101 et seq., we vacate its judgments and dismiss the case.

http://www.tba2.org/tba_files/TCA/2009/stamsons_110509.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. TINA TEMPLE, ET AL.

Court: TCA

Attorneys:

Ada Johnson, Memphis, TN, for Appellant Junior Davis

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General, Lindsey O. Appiah, Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

This a termination of parental rights case. The children were removed from Father's custody due to his lack of stable housing as well as his allowing Mother to "be with" the children despite her drug use. Numerous permanency plans were entered, which required Father, among other things, to maintain stable housing and income, legitimate the children, complete parenting classes, identify a support system, and attend family and domestic violence counseling. At various times, Father had employment and housing; however, at other times, he did not. In 2008, DCS petitioned to terminate Father's parental rights. Following a trial, Father's parental rights were terminated on the grounds of failure to comply with the requirements of the permanency plans, persistence of conditions, as well as three additional grounds available under Tennessee Code Annotated section 36-1-113(g)(9) for the termination of a non-legal parent's rights. Although this Court finds that Father failed to obtain and maintain stable housing and income or to legitimate the children, we reverse the termination of Father's parental rights, finding that DCS failed to aid Father in such efforts. The judgment of the trial court is reversed, the petition for termination is dismissed, and the cause is remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2009/templet_110509.pdf

KIRBY dissenting
http://www.tba2.org/tba_files/TCA/2009/templet_DISS_110509.pdf


VINCENT ROGER HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Vincent Roger Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Katie Miller, Assistant District Attorney General; and Sarah Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Vincent Roger Harris, appeals the dismissal of his post-conviction petition in which Petitioner alleged that his trial counsel rendered ineffective assistance of counsel in connection with the entry of his pleas of guilty, and that his guilty pleas were not voluntarily or knowingly entered. After a thorough review we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/harrisv_110509.pdf


STATE OF TENNESSEE v. TIMOTHY TYLUS SORRELLS

Court: TCCA

Attorneys:

Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Timothy Tylus Sorrells.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William H. Cox, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Timothy Tylus Sorrells, was convicted of first degree premeditated murder and abuse of a corpse. Defendant was sentenced to life imprisonment with the possibility of parole for his murder conviction and one year as a Range I offender for abuse of a corpse, to be served concurrently. On appeal, Defendant argues that the evidence is insufficient to support his convictions. Following our review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/sorrellst_110509.pdf


STATE OF TENNESSEE v. JOSEPH SCOTT TAYES

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the appellant, Joseph Scott Tayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Joseph Scott Tayes, was indicted for attempted first degree premeditated murder. On February 14, 2008, Defendant entered a plea of guilty to the lesser offense of attempted second degree murder. Pursuant to the terms of the plea agreement, Defendant agreed to a sentence of ten years as a Range I, standard offender, with the manner of service of his sentence to be determined by the trial court. Following a sentencing hearing, the trial court denied Defendant's request for alternative sentencing and ordered Defendant to serve his sentence in confinement. On appeal, Defendant challenges the trial court's denial of his request for alternative sentencing. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/tayesj_110509.pdf


WILLIAM H. VAUGHAN, IV v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert C. Richardson, Jr., Columbia, Tennessee, for the appellant, William H. Vaughan, IV.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B, Marney, Assistant Attorney General; Michel Bottoms, District Attorney General; Patrick Butler, Assistant District Attorney General, and Richard Dunavant, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, William H. Vaughn, IV, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial. Specifically, Petitioner contends that Counsel was not prepared for trial because Counsel did not prepare a script for Petitioner's direct testimony, and Counsel failed to cross-examine a co-worker about whether he smelled gasoline on petitioner's uniform after the victim's death. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/vaughanw_110509.pdf


STATE OF TENNESSEE v. ABDIRIZAK OMAR YUSSUF In re: RADAR BONDING COMPANY, INC.

Court: TCCA

Attorneys:

Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Abdirizak Omar Yussuf.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy Eisenbeck, Assistant District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Appellant, Rader Bonding Company, Inc., appeals the judgment of the Davidson County Criminal Court ordering complete forfeiture of the bail bond in the case of Defendant, Addirizak Omar Yussuf. Appellant argues that the State's refusal to seek extradition of Defendant, who had fled to Sweden, constituted an extreme case under State v. Frankgos, 114 Tenn. 76, 85 S.W. 79, 80-81 (Tenn. 1905) which relieved Appellant of its responsibility under the bond agreement. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/yussufa_110509.pdf


TODAY'S NEWS

Legal News
Legislative News
Politics
Upcoming
TennBarU CLE
TBA Member Services

Legal News
Nominating commission sets date for Memphis hearing
The Judicial Nominating Commission will hold a public hearing at 9 a.m. on Dec. 19 in Memphis to consider applicants for the 30th Judicial District seat vacated by former Judge D'Army Bailey. The meeting will be held at the Embassy Suites located at 1022 Shady Grove Road. The commission voted last week to reopen the application process due to an insufficient number of qualified applicants. Prior to the hearing, the commission will hold an executive committee meeting at 8:30 a.m., which is also open to the public. Applications are due Dec. 1.
Learn more on the AOC website
Web site reports Nashville firm planning to reorganize
The Nashville law firm of Hollins Wagster Weatherly & Raybin is planning to reorganize, according to the Nashville Post. Firm attorney and spokesman David Raybin confirmed that members are talking about a different future for the 33-year-old firm but said they do not have a specific timetable or a clear idea of what the restructuring will look like. Raybin declined to address the reasons behind the move, the Post reported.

Judges complete National Judicial College course
Three Tennessee judges completed a general jurisdiction course at the National Judicial College last month. Judge Joe Binkley of the 20th Judicial District Circuit Court in Nashville, Judge David Earl Durham of the 15th Judicial District Circuit Court, and Judge Bobby Ray McGee of the 6th Judicial District Criminal Court in Knoxville attended the course, learning how to manage cases involving self-represented litigants, effectively conduct jury and non-jury trials, confidently rule on evidence, make fair and unbiased decisions, and work with the media.
The AOC has the story
AWA celebrates anniversary with Memphis event
The Association for Women Attorneys, which is commemorating its 30th anniversary this year, celebrated its history with an event featuring the three female members of the Tennessee Supreme Court. Gathering at the Memphis Botanic Garden on Tuesday, the justices talked about their journeys to the highest bench in the state and the women who inspired them.
Memphis Daily News reviews the rise of female judges in the state
Clock winding down on Herenton indictment
The grand jury investigating former Memphis mayor Willie Herenton -- which has been meeting for 17 months -- has eight more weeks to decide whether to indict. Over the past year, Herenton has maintained that he's a victim of a smear campaign fueled by politics and racism, and has declined to discuss issues involved in the government's investigation.
Read about the allegations in the Commercial Appeal
Kingsport attorney jailed on contempt charges
Kingsport lawyer Jim Beeler was jailed yesterday on contempt charges by Criminal Court Judge Lynn Brown. Beeler, who was in court representing a client, allegedly engaged in a conversation with an opposing party, while that party's attorney was questioning a witness. Judge Brown said he was "astounded" by what he saw.
The Johnson City press has more
High school mock trial coach needed in Nashville
McGavock High School in Nashville is starting a mock trial program and is looking for an attorney coach for the 2010 mock trial competition. The case, which is a civil one this year, will be released on Nov. 17. District competitions will take place in February with finalists progressing to the state competition March 19-20 in Nashville. If you are interested in volunteering to help this new team, contact TBA staff member Stacey Shrader at (615) 383-7421 or sshrader@tnbar.org

Minority owned firm opens Nashville office
Gonzalez Saggio & Harlan LLP, one of the nation's largest minority-owned law firms, announced today it is opening an office in Nashville, with attorneys Natasha L. Blackshear and Dennis Nunez staffing the firm's 13th office.
Reuters carries the news release on the expansion
Legislative News
Tennessee lawmakers get per diem increase
While faced with a continuing state budget crunch that likely means the lay off of more state employees, Tennessee legislators have received a $14 increase in their daily expense allowance. The automatic 8.1 percent increase took effect at the beginning of the fiscal year. The Memphis Daily News carried the news from the Associated Press.

Politics
Brooks won't run for Senate
State Rep. Kevin Brooks, R-Cleveland, says he won't run for the Senate seat being vacated by Sen. Dewayne Bunch next year and will instead seek another term in the House, reports the Chattanooga Times-Free Press. That leaves Rep. Mike Bell, R-Riceville, as the only declared candidate for Senate District 9. Former state Sen. Lou Patten, R-Cleveland, says he's still thinking about running. The News Sentinel reported the news.

Upcoming
Memphis YLD hosts fundraiser for MALS
The Memphis Bar Association Young Lawyers Division will host a benefit concert for Memphis Area Legal Services Inc. tomorrow evening at Newby's, located at 539 S. Highland St. The concert is open to the public and will feature the local band Walrus, which is donating its performance. The event begins at 6 p.m. The concert will start at 8 p.m. Tickets are $10 per person.

Vanderbilt to host death penalty debate
The Vanderbilt University Law School will sponsor a debate between two leading capital punishment scholars at noon on Nov. 9 in the law school's Flynn Auditorium. Debating are Ken Haas, professor of sociology and criminal justice at the University of Delaware (who will argue for abolishment of the death penalty), and District Attorney Joshua Marquis of Clatsop County, Ore. (who will argue the other side). Vanderbilt law professor Christopher Slobogin will moderate. The debate will be conducted Oxford style, in which audience members indicate a winner by exiting through the door that bears the name of the debater who presented the best argument. The event is free and open to the public.
Learn more here
TennBarU CLE
Ethical Pitfalls for Intellectual Property lawyers
Attorneys practicing before the U.S. Patent and Trademark office must balance the needs of their clients with ethical obligations, including obligations under the Patent and Trademark Office Code of Professional Responsibility. Join Baker Donelson's Sam Miller for a TennBarU webcast at noon Friday that will focus on avoiding common ethical issues during the trademark prosecution process and avoiding subsequent invalidity challenges.
Find out more or register now
TBA Member Services
First Tennessee is TBA's preferred provider
First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more
on the TBA Web site

 
 
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 2009 Tennessee Bar Association