April TBJ covers convictions, credit unions and more

When your client faces a criminal conviction be ready to tell her what can happen later as a result of that conviction. Vincent P. Wyatt tells you what you need to know in the April Tennessee Bar Journal. Lawyer Steven J. Eisen gives a personal account of his stint on a jury -- find out what you're missing behind-the-scenes. Andree Sophia Blumstein reviews TBA President-elect Sam Elliott's new book about Isham G. Harris, and columnist David Raybin gives you tips on keeping your client out of jail -- the second time. Columnist Katie Edge explains the feud between banks and credit unions and why it matters, while Don Paine dissects two trials with surprising twists.

Read the Tennessee Bar Journal online

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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REGINA DAY v. ZURICH AMERICAN INSURANCE

Court: TWCA

Attorneys:

William B. Walk, Jr., Memphis, Tennessee, for the appellant, Zurich American Insurance Company.

Ricky L. Boren, Jackson, Tennessee, for the appellee, Regina Day.

Judge: HARRIS

In this workers' compensation action, the employee, Regina Day, sustained compensable injuries to both of her shoulders. She returned to her pre-injury job, but the holding company which owned her employer had been sold to another entity. The employer, which had been a corporation, became a limited liability company (LLC). The trial court, applying existing case law, held that she had not returned to work for her pre-injury employer and awarded permanent partial disability benefits in excess of the statutory cap contained in Tennessee Code Annotated section 50-6-241(d)(1)(A). Her employer has appealed, contending that the trial court erred by failing to apply the cap or, in the alternative, that the award is excessive. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/dayr_033110.pdf


SCOTT CAMPBELL, ET AL. v. WILLIAM H. TEAGUE, ET AL.

Court: TCA

Attorneys:

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellants, William H. Teague and William T. Teague d/b/a Teague Construction.

Lewis L. Cobb and Lowe Finney, Jackson, Tennessee, for the appellees, Scott Campbell and Sandie Campbell.

Judge: STAFFORD

This is a construction case. Appellants/Builders appeal the trial court's award of damages to Appellees/Homeowners pursuant to the Tennessee Consumer Protection Act, and arising from Appellants/Builders' breach of warranty and contract. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2010/campbells_033110.pdf


CHRISTENBERRY TRUCKING & FARM, INC. v. F&M MARKETING SERVICES, INC.

Court: TCA

Attorneys:

Henry E. Seaton and Jere R. Lee, Nashville, Tennessee, for the appellant, F&M Marketing Services, Inc.

David L. Buuck, Knoxville, Tennessee, for the appellee, Christenberry Trucking & Farm, Inc.

Donald K. Vowell, Knoxville, Tennessee, for amicus curiae, The National Association of Small Trucking Companies.

Judge: SUSANO

Christenberry Trucking & Farm, Inc., initiated this litigation against F&M Marketing Services, Inc., with a complaint seeking a declaration that Christenberry had not contracted to pay F&M a commission on loads Christenberry hauled for UPS/Dell Computer ("the UPS/Dell account"). F&M filed an answer and counterclaim asking for a determination that there was a contract with respect to the UPS/Dell account under which Christenberry was obligated to pay F&M a commission of 6%. F&M's counterclaim also asked for an accounting and attorney's fees. The case was tried without a jury, after which Christenberry was allowed to amend its pleadings to allege that if there was a contract it was illegal and unenforceable because F&M is not licensed as a broker by the Interstate Commerce Commission ("the ICC"). The trial court found that there was a contract between Christenberry and F&M, but that the contract was rendered illegal and unenforceable because of F&M's lack of a broker's license. F&M hired new counsel who filed a notice of appeal that did not contain the signature of its trial counsel. Christenberry filed a motion with the trial court to strike the notice of appeal. Six days later, F&M filed an amended notice of appeal which bore, in addition to the signature of its new appellate counsel, the signature of its counsel of record in the trial court. F&M argues on appeal that it was not required to be licensed and, alternatively, that the contract should not be nullified for its lack of a license, even if one was required. Christenberry argues that the notice of appeal is ineffective. We vacate the judgment of the trial court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/christenberry_033110.pdf


THOMAS E. CROWE, JR. v. BRADLEY EQUIPMENT RENTALS & SALES, INC., ET AL.

Court: TCA

Attorneys:

Arthur C. Grisham, Chattanooga, Tennessee, for the appellant, Thomas E. Crowe, Jr.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees, Bradley Equipment Rentals & Sales, Inc. and Hal Y. Roe.

Stacy Lynn Archer and Ronald D. Wells, Chattanooga, Tennessee, for the appellees, Brian Smith and City of Cleveland.

Judge: MCCLARTY

Plaintiff filed this lawsuit alleging malicious prosecution, abuse of process, false arrest, false imprisonment, outrageous conduct, violation of Article 1, Section 18 of the Tennessee Constitution, and various violations of 11 U.S.C. section 362, and 42 U.S.C. sections 1983 and 1985. After removal of the lawsuit to federal court, the United States District Court for the Eastern District of Tennessee dismissed the federal claims and remanded the state law claims back to the state trial court. The trial court subsequently granted a motion for summary judgment and dismissed the remaining claims. We affirm.

http://www.tba2.org/tba_files/TCA/2010/crowet_033110.pdf


IN RE DEASHON A. C.

Court: TCA

Attorneys:

Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Ashley K.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Lindsey O. Appiah, Assistant Attorney General, Nashville, Tennessee, for the Tennessee Department of Children's Services.

Robert D. Bradshaw, Chattanooga, Tennessee, Guardian Ad Litem.

Judge: MCCLARTY

The mother appeals the termination of her parental rights to her son. Following a bench trial, the trial court terminated the mother's parental rights. The mother has appealed. We affirm the termination of the mother's parental rights.

http://www.tba2.org/tba_files/TCA/2010/deashon_033110.pdf


IN RE Ella H.

Court: TCA

Attorneys:

David H. King, Franklin, Tennessee, for the appellant, Harris F.

Lori Thomas Reid, Franklin, Tennessee, for the appellee, Holly H.

Judge: BENNETT

In an action to establish paternity and provide for child support, Father challenged the trial court's personal and subject matter jurisdiction and alleged the forum was not a convenient one. The trial court found against Father on all three arguments, found that Father was the biological father of the child, and established child support. Father appealed, raising the lack of personal and subject matter jurisdiction and invoking the forum non conveniens doctrine. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2010/ellah_033110.pdf


IN RE: Gabriel S.

Court: TCA

Attorneys:

Brian J. Hunt, Clinton, Tennessee, for the Appellant, Stacy S.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

Stacy S. ("Mother") is the biological mother of Gabriel S. (the "Child"). Following a trial, the Trial Court terminated Mother's parental rights to the Child on three separate grounds and after finding that terminating Mother's parental rights was in the Child's best interest. Mother appeals. Mother maintains that the Trial Court erred when it found that the Department of Children's Services ("DCS") had proven by clear and convincing evidence that grounds to terminate her parental rights existed. We affirm the Trial Court's finding that three grounds to terminate Mother's parental rights had been proven by clear and convincing evidence. Although not expressly raised as a separate issue by Mother, we also affirm the Trial Court's finding that it had been proven by clear and convincing evidence that terminating Mother's parental rights was in the Child's best interest.

http://www.tba2.org/tba_files/TCA/2010/gabriels_033110.pdf


STEPHANIE D. HILL v. CITY OF GERMANTOWN, TENNESSEE; GERMANTOWN POLICE DEPARTMENT; BOARD OF MAYOR AND ALDERMAN OF THE CITY OF GERMANTOWN, TENNESSEE

Court: TCA

Attorneys:

Edward J. McKenney, Jr., Memphis, Tennessee, for the appellants, City of Germantown, Tennessee; Germantown Police Department; Board of Mayor and Aldermen of the City of Germantown, Tennessee.

Wendy S. Dabbous, Jessica May Thomas, and Clyde Keenan, Memphis, Tennessee, for the appellee, Stephanie D. Hill.

Judge: KIRBY

This appeal involves the termination of a municipal police officer. The housemate of the petitioner police officer accidentally damaged the police officer's take-home police vehicle. Although the police officer suspected that her housemate caused the damage, the police officer nevertheless filed accident and insurance loss reports indicating that the damage was caused by an unknown driver. About two months later, the police officer and her housemate had a tumultuous break up. After that, the police officer's supervisor discovered that the damage to the police vehicle may have been caused by the housemate. After an internal affairs investigation, the police officer was charged with violating police department rules regarding neglect of duty and lack of truthfulness. After a hearing before the municipal board, the police officer was found to have violated these rules and her employment was terminated. The city administrator upheld the termination. The police officer then filed the instant petition for writ of certiorari, challenging the administrative decision. The trial court granted the petition, holding that the termination of the police officer's employment was not supported by material evidence and, therefore, was arbitrary and capricious. The city now appeals. We reverse, finding that material evidence supported the administrative decision to terminate the police officer's employment.

http://www.tba2.org/tba_files/TCA/2010/hills_033110.pdf


JOHN ALLEN CONSTRUCTION, LLC v. JEROME HANCOCK, SANDRA HANCOCK, and CARROLL BANK AND TRUST

Court: TCA

Attorneys:

J. Brad Scarbrough, Brentwood, Tennessee, for the Defendant/Appellants, Jerome Hancock and Sandra Hancock.

John W. Whitworth, Camden, Tennessee, for the Plaintiff/Appellee, John Allen Construction, LLC.

Judge: KIRBY

This is a construction case. The defendant landowners entered into an oral contract with the plaintiff contractor to construct a house. When the house was substantially completed, the homeowners terminated the builder, citing defective work. At the time of termination, there were two unpaid invoices. After filing a notice of lien on the landowners' property, the contractor filed suit for breach of contract and to enforce the lien. The landowners counterclaimed for breach of contract and sought damages stemming from the defective work. After a trial, the trial court entered judgment for the contractor and awarded a portion of the amount sought. The trial court's order did not address enforcement of the contractor's lien. The landowners appeal. Because the trial court's order does not address, among other things, enforcement of the lien, it is not a final judgment, and this Court does not have jurisdiction over the appeal. Therefore, we dismiss the appeal and remand the case to the trial court for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/johnallen_033110.pdf


WILLIAM MITCHELL v. MADISON COUNTY SHERIFF'S DEPARTMENT and THE MADISON COUNTY CIVIL SERVICE COMMISSION FOR MADISON COUNTY SHERIFF'S DEPARTMENT

Court: TCA

Attorneys:

Barclay M. Roberts, Memphis, Tennessee, for the appellant, William Mitchell.

Brandon O. Gibson, Jackson, Tennessee, for the appellees, Madison County Sheriff's Department and The Madison County Civil Service Commission for Madison County Sheriff's Department.

Judge: KIRBY

This appeal involves the termination of a sheriff's department employee. The employee was terminated and appealed the termination to the county civil service commission. The termination was upheld by the commission, based solely on expert testimony. The employee then sought judicial review. The motion for summary judgment filed by the employer sheriff's department was granted, and the employee's petition was dismissed. The employee now appeals. We find that the expert testimony on which the commission relied is incongruent with the undisputed facts in the record. Therefore, we conclude that the commission's decision is not supported by substantial and material evidence and is arbitrary and capricious. We reverse the grant of summary judgment in favor of the employer and remand for entry of judgment in favor of the employee.

http://www.tba2.org/tba_files/TCA/2010/mitchellw_033110.pdf


BETH PROFFITT v. SMOKY MOUNTAIN WOODCARVERS SUPPLY, INC.

Court: TCA

Attorneys:

L. Lee Kull, Alcoa, Tennessee, for the appellant, Smoky Mountain Woodcarvers Supply, Inc.

Melanie E. Davis, Maryville, Tennessee, for the appellee, Beth Proffitt.

Robert E. Cooper, Jr., Attorney General & Reporter, Michael E. Moore, Solicitor General, and Steven A. Hart, Special Counsel, Nashville, Tennessee, for the State of Tennessee.

Judge: MCCLARTY

The plaintiff filed this action seeking to review the business records of the defendant, asserting under oath that she is a 25 percent shareholder of the defendant corporation. The defendant moved to dismiss. The trial court found that the plaintiff had complied with the requirements of Tenn. Code Ann. section 48-26-104(a) - the corporate records statute - and ordered the defendant to comply with the request to inspect and/or copy corporate records. The trial court also ordered the defendant to pay the plaintiff's attorney fees. We reverse.

http://www.tba2.org/tba_files/TCA/2010/proffittb_033110.pdf


STATE OF TENNESSEE ex rel., CARLA S. (NELSON) RICKARD v. DOUGLAS TAYLOR HOLT

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; and Michael E. Moore, Solicitor General; Warren A. Jasper, Senior Counsel, Nashville, Tennessee, for the appellant, State of Tennessee ex rel., Carla S. (Nelson) Rickard.

Richard A. Tompkins, Child Support Divison of Sumner County, Office of the District Attorney General, Gallatin, Tennessee, for the appellant, State of Tennessee ex rel., Carla S. (Nelson) Rickard.

Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellee, Douglas Taylor Holt.

Judge: STAFFORD

This is an appeal from the trial court's finding that good cause existed to exempt Father/Appellee from a wage assignment to collect child support as required by Tenn. Code. Ann. 36-5-501(a). Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2010/rickardc_033110.pdf


HARRISON KERR TIGRETT v. JOHN E. LINN, M. D, ET AL.

Court: TCA

Attorneys:

Jerry E. Mitchell and Justin N. Joy, Memphis, Tennessee, for the appellants, John E. Linn, M.D. and Vitreoretinal Foundation, PLLC.

Jerry O'Neal Potter and Jennifer S. Harrison, Memphis, Tennessee, for the appellant, Larry M. Jones. O.D., Individually and d/b/a Center for Visual Independence and/or Monroeville Optometric Center.

J. Houston Gordon, Covington, Tennessee, for the appellee, Harrison Kerr Tigrett.

Judge: STAFFORD

This is a Tenn. R. App. P. 9 appeal of the denial of a motion for summary judgment in a medical malpractice case. The trial court denied Appellants/Defendants' motions for summary judgment, finding that the statute of repose, Tenn. Code Ann.section 29-26-116(a)(3), was tolled as a result of fraudulent concealment on the part of Appellants/Defendants. Finding that there are material issues of fact in dispute, we affirm the trial court's denial of Appellants' motions for summary judgment. We, however, vacate any decision that the statute of limitations was tolled as a result of fraudulent concealment.

http://www.tba2.org/tba_files/TCA/2010/tigretth_033110.pdf


STATE OF TENNESSEE v. AREALIE BOYD

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; and Phyllis Aluko (on appeal) and J. Mark Alston (at trial), Assistant Public Defenders, for the appellant, Arealie Boyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stacey McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Arealie Boyd, pled guilty to forgery over $1,000, a Class D felony, on March 30, 2009. After a hearing, the trial court sentenced her to a two-year sentence in the Shelby County Correctional Center, suspended all but thirty days of the sentence, and placed her on probation for six years. On appeal, the defendant challenges the length and manner of her sentence. Specifically, she contends that the trial court should have sentenced her as an especially mitigated offender to either full probation or judicial diversion. Additionally, the defendant contends that the trial court erred in allowing hearsay testimony at the sentencing hearing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/boyda_033110.pdf


STANLEY HARVILL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stanley Harvill, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Stanley Harvill, appeals the circuit court's order summarily dismissing his petition for writ of habeas corpus. Following our review of the record and the applicable law, we affirm the court's order.

http://www.tba2.org/tba_files/TCCA/2010/harvills_033110.pdf


Filing of Disclosure Statements By Corporations For Independent Expenditures

TN Attorney General Opinions

Date: 2010-03-31

Opinion Number: 10-39

http://www.tba2.org/tba_files/AG/2010/ag_10_39.pdf

Constitutionality of Proposed Amendment to H.B. 2726 Under Article II, Section 17

TN Attorney General Opinions

Date: 2010-03-31

Opinion Number: 10-40

http://www.tba2.org/tba_files/AG/2010/ag_10_40.pdf

TODAY'S NEWS

Politics
Legal News
Supreme Court Report
Legislative News
Career Opportunities
Upcoming
TBA Member Services

Politics
McMillan drops out of governor's race
Kim McMillan announced today she will drop out of the race for governor so she can run for mayor of Clarksville. The decision comes a day after Clarksville Mayor Johnny Piper said he will not seek re-election. Her decision leaves Mike McWherter as the only remaining Democratic candidate in the race.
Read more from The Leaf-Chronicle, which broke the news
Legal News
More states consider changes to judicial elections
A growing number of states are rewriting their rules on selecting high court justices in an effort to curb the influence of special interests in judicial contests, reports USA Today. Of the 39 states that elect judges, four now have a public financing system. In addition, two other states currently are considering moving toward a gubernatorial appointment process.
Read more and view an interactive map on usatoday.com
Obstruction charge in Palin hacking case upheld
U.S. Magistrate Clifford Shirley Jr. yesterday refused to dismiss a charge of anticipatory obstruction of justice against David C. Kernell -- the man accused of hacking into Sarah Palin's e-mail account in 2008 -- saying the law may be violated "even if no investigation is open at the time of the conduct." Kernell is charged with removing, altering, concealing and covering up records and files relating to the alleged hacking. He also faces charges of computer fraud, unlawful electronic transmission of material outside Tennessee, and intentionally accessing Palin's e-mail account without authorization.
The Kingsport Times News reports
Opinion: assistant prosecutors deserve fair pay
The Bristol Herald Courier editorial board writes in today's paper that "Tennessee must find the cash to pay promised wage increases to assistant district attorneys or risk losing them to higher paying jobs in neighboring states or on the opposing side, as defense attorneys." The paper notes that assitant DAs have not received promised annual wage increases for nearly four years and that a greater loss of experienced prosecutors would put a huge strain on Tennessee's legal system, which has a growing caseload.
Read the editorial
Ogletree Deakins expands
Ogletree, Deakins, Nash, Smoak & Stewart PC , which has 39 offices, including operations in Nashville, announced it will open a Minneapolis office. It is the fourth new office for the firm this year. In the last few months it has established offices in Denver, Las Vegas and Orange County, Calif. The ABA Journal reported the news.
Learn more about the firm
Memphis lawyer named co-chair of former AG group
Memphis attorney Michael Cody of Burch, Porter & Johnson PLLC was recently named co-chair of the Society of Attorneys General Emeritus (SAGE), a group of former state attorneys general that serves as a resource to the 50 active AGs. Cody was attorney general of Tennessee from 1984 to 1988. He served as U.S. Attorney for the Western District of Tennessee from 1977 to 1981 and on the Memphis City Council from 1975 to 1977. The rest of his career has been spent at Burch, Porter.
The Memphis Daily News has more
Supreme Court Report
Court supports right to deportation warning
The U.S. Supreme Court ruled today that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation. The ruling extends the Constitution's guarantee of "effective assistance of counsel" in criminal cases to immigration advice. The decision came in the case of Jose Padilla, who asked the court to throw out his guilty plea on drug charges after his attorney mistakenly advised him the plea would not lead to deportation.
The NY Times has the story
Court rejects claim of un-representative jury
The U.S. Supreme Court has ruled against a Michigan man who contended that his constitutional rights were violated because African-Americans were underrepresented in the jury pool from which the all-white jurors in his case were selected. He argued the underrepresentation was due to structural issues with the jury selection process. The court disagreed, saying that a host of factors may have contributed.
Read more in the ABA Journal
Legislative News
Three health 'freedom' bills approved
The Tennessee House Industrial Impact Subcommittee today approved two bills declaring that Tennesseans can ignore federal health care mandates, and directing the state attorney general to defend residents who choose to do so. Lawmakers also approved a proposed constitutional amendment that seeks to nullify the new federal health care law.
The Chattanooga Times Free Press has more
Career Opportunities
Memphis Law seeks clinical professor
The University of Memphis School of Law is seeking a visiting assistant clinical professor to teach its civil litigation clinic during the 2010-2011 academic year. The position will be responsible for designing and instructing the classroom component of the clinic and supervising all case-related work of enrolled student attorneys. A successful candidate will have at least five years of relevant experience. Two or more years of experience as a clinical teacher is preferred.
Learn more about the position and how to apply on TBA JobLink
Upcoming
Bush lawyer from 2000 election dispute to speak
Lawyer Fred Bartlit Jr., who represented presidential candidate George W. Bush in the Florida election dispute against opponent Al Gore, will speak at noon on April 5 at the University of Tennessee College of Law, Room 132. His lecture is free and open to the public. Bartlit, 77, is a founding partner of Bartlit, Beck, Herman, Palenchar & Scott, with offices in Chicago and Denver. He has been involved in more than 50 major trials since 1970 and has handled a wide variety of cases, dealing with fraud, antitrust, products liability and intellectual property. For more information contact Kristi Hintz at khintz@utk.edu or (865) 974-3993.
Read more about Bartlit's career
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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