October TBJ features Ponzi scheme 'claw backs'

When the money from a Ponzi scheme disappears, what are the options for the bankruptcy trustee for recovery? Sandy Benson answers the question in the new issue of the Tennessee Bar Journal, explaining how the "claw back" works. In addition, learn how small businesses in Tennessee can get federal and state exemptions, as detailed by Joey Dudek and Lane Bellisomo, and read about several TBA wins for programming from statewide and national organizations. TBA President Sam Elliott shows us that divisiveness over settling the state's debt is not new -- it was going on in 1870, too. Also in this issue, family law columnists Marlene Eskind Moses and Jessica Uitto explain collaborative law, and Don Paine advises you on how to keep your lawsuits alive. Finally, humor columnist Bill Haltom gives his good ideas for boosting law school transcript grades -- especially his own.

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TODAY'S OPINIONS
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B & B ENTERPRISES OF WILSON COUNTY, LLC ET AL. v. CITY OF LEBANON ET AL.

Court: TSC

Attorneys:

G. Frank Lannom and Melanie R. Bean, Lebanon, Tennessee, for the appellants, B & B Enterprises of Wilson County, LLC and Hal Bone d/b/a Hal Bone Enterprises.

Derrick C. Smith, Nashville, Tennessee, for the appellees, City of Lebanon, City of Lebanon Planning Commission, Patsy Anderson, Ronnie Kelley, David Cook, Don Fox, Claude Wilson, Joe Holbrook, Nick Locke, Jan Mangrum, Joe Hayes, and Johnnie Peyton.

Judge: KOCH

This appeal involves the application of the one-year statute of limitations in Tenn. Code Ann. section 29-16-124 (2000) to a temporary regulatory taking claim. The developer of a residential subdivision in Wilson County filed suit in the Circuit Court for Wilson County against the City of Lebanon and others alleging that the city's planning commission had denied it all economically beneficial use of its property by wrongfully refusing to approve the final plans for two phases of its subdivision. The City moved for a summary judgment on the ground that the statute of limitations in Tenn. Code Ann. section 29-16-124 had expired before the developer filed suit. The developer responded that the limitations period was tolled while it sought judicial review of the planning commission's decision. The trial court held that the developer's lawsuit was timely because the statute of limitations did not begin to run until the entry of the Court of Appeals' opinion invalidating the planning commission's action. Both the trial court and the Court of Appeals granted the City's application for an interlocutory appeal in accordance with Tenn. R. App. P. 9. The Court of Appeals thereafter reversed the trial court and determined that the developer's lawsuit was not timely because the statute of limitations began to run when the planning commission declined to approve the final subdivision plans. B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, No. M2008- 00572-COA-R9-CV, 2009 WL 130188 (Tenn. Ct. App. Jan. 14, 2009). We granted the developer's application for permission to appeal and now affirm the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2010/b&benterprises_083110.pdf


ESTATE OF JOYCE BELL ET AL. v. SHELBY COUNTY HEALTH CARE CORPORATION D/B/A THE REGIONAL MEDICAL CENTER
OPINION ON THE PETITION FOR REHEARING


Court: TSC

Judge: KOCH

The Shelby County Healthcare Corporation ("The Med") has filed a Tenn. R. App. P. 39 petition for rehearing requesting this Court to reconsider our opinion in Estate of Bell v. Shelby County Health Care Corp., ___ S.W.3d ___, 2010 WL 2539644 (Tenn. 2010). In that opinion, we found that the application of the Act of May 21, 2003, ch. 321, 2003 Tenn. Pub. Acts 650 ("2003 Act") to the claims of the estate of Joyce Bell and her infant son, Jonathan Bell, violated Article I, Section 20 of the Tennessee Constitution. We have determined that the arguments advanced by The Med in its petition do not merit a reconsideration of our earlier opinion.

http://www.tba2.org/tba_files/TSC/2010/bellj_083110.pdf


GRAY'S DISPOSAL COMPANY, INC. ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY ET AL.

Court: TSC

Attorneys:

Sue B. Cain, Director of Law, J. Brooks Fox, Christopher M. Lackey, Melissa S. Roberge, and Elizabeth A. Sanders, Assistant Metropolitan Attorneys, Nashville, Tennessee, for the appellants, Metropolitan Government of Nashville, Davidson County, Tennessee and Metropolitan Thermal Transfer Corporation.

Thurman T. McLean, Jr., Nashville, Tennessee, for the appellees, Gray's Disposal Company, Inc. and Ray Webster d/b/a Hermitage Hills Sanitary Company.

Judge: KOCH

This appeal involves the application of a decision by the United States Supreme Court to legal issues in a matter pending before a state trial court after being remanded by a state appellate court. In 1998, a group of commercial waste haulers filed suit in the Chancery Court for Davidson County challenging the validity of a flow control ordinance enacted by the Metropolitan Government of Nashville and Davidson County. The trial court granted the Metropolitan Government's motion for summary judgment. However, in 2002, the Court of Appeals, relying on a decision of the United States Court of Appeals for the Sixth Circuit, reversed the trial court with regard to part of the application of the ordinance and remanded the case to the trial court for further proceedings. Gray's Disposal Co. v. Metro. Gov't of Nashville, Davidson Cnty., 122 S.W.3d 148 (Tenn. Ct. App. 2002). While the case was pending in the trial court, the United States Supreme Court handed down a decision contrary to the Sixth Circuit's decision relied upon by the Tennessee Court of Appeals. The trial court declined to follow the United States Supreme Court's intervening decision. The Court of Appeals, relying on the law of the case doctrine and equitable principles, affirmed. Gray's Disposal Co. v. Metro. Gov't of Nashville, Davidson Cnty., No. M2007-00528-COA-R3-CV, 2009 WL 454183 (Tenn. Ct. App. Feb. 23, 2009). We granted the Metropolitan Government's Tenn. R. App. P. 11 application for permission to appeal. We have determined that Tennessee's courts are not free to disregard applicable intervening changes in federal constitutional law announced by the United States Supreme Court while a case is pending on remand. Accordingly, we reverse the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2010/graysdisposal_083110.pdf


JAMES McKAY ANDREWS v. SUSIE HEASOOK CHO ANDREWS

Court: TCA

Attorneys:

Donald Capparella, Nashville, Tennessee, for the appellant, James McKay Andrews

Laura D. Rogers, Memphis, Tennessee, for the appellee, Susie Heasook Cho Andrews

Judge: KIRBY

This is a divorce case. The plaintiff husband is a successful physician and the defendant wife is a stay-at-home mother. They have one minor child. After twelve years of marriage, the husband left the marital home and filed for divorce. The wife counter-claimed for divorce, and protracted and contentious litigation ensued. The initial trial judge appointed a guardian ad litem and an attorney ad litem. After several trial judges recused themselves, a senior judge was assigned. After nearly three years of dispute, the case proceeded to trial. The trial court granted a divorce to the wife; it found that she was economically disadvantaged but capable of partial rehabilitation, and that the husband had the ability to pay spousal support. The wife was awarded alimony in futuro, rehabilitative alimony, attorney fees as alimony in solido, and discretionary costs. The husband appeals the award of alimony, attorney fees, and costs. We affirm, finding no abuse of the trial court's discretion under the circumstances.

http://www.tba2.org/tba_files/TCA/2010/andrewsj_083110.pdf


BENNY TAYLOR, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Scott A. Lovelace, Ripley, Tennessee, for the appellant, Benny Taylor, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Benny Taylor, Jr., appeals the denial of his petition for post-conviction relief wherein he challenged his 2008 Lauderdale County Circuit Court conviction of possession with intent to deliver cocaine. In this appeal, he contends that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/taylorb_083110.pdf


TODAY'S NEWS

Legal News
Election 2010
Upcoming
Disciplinary Actions
Correction
TBA Member Services

Legal News
Locke hears frustration from musicians about piracy
When Commerce Secretary Gary Locke was in town Monday he got an earful from musicians about piracy. "You can have all the laws on the books that you want," Locke told the group, "but if you don't have that mindset that it's wrong, then it's just a piece of paper." Songwriter and publisher James Dean Hicks spoke up, saying "Sir, with all due respect, it's already illegal. We just need some enforcement."
WPLN reports
Goodbye, so long, farewell!
For those Tennessee lawyers who have not yet renewed their membership in the Tennessee Bar Association, this will be your last edition of TBA Today. You will no longer receive court opinions and legal news every day through TBA Today or analysis of legal developments in the Tennessee Bar Journal. You will lose access to free online legal research from Fastcase, and discounts on CLE programs will no longer be available to you. Section membership will no longer be an option. Discounts from GEICO, Office Depot, Compupay, and FedEx will end. You will not receive preferred customer status with our insurance agency, with First Tennessee, or with Bank of America.

If you have not yet renewed your membership and don't want to lose all of this, you can still renew online now to continue being a part of the state's largest organization dedicated to serving lawyers.
Questions? Contact TBA Membership Director Colleen O'Connell
Hunger strike ends; law schools likely still opaque
A blogger went on a hunger strike recently ... to protest the lack of transparency in law schools. But Zenovia Evans has ended her protest after 24 days because of health concerns. Fellow blogger Caleb Newquist visited her, noting her weight-loss and concluded that Evans' hunger strike was "ill-conceived, dangerous and potentially fruitless."
ABAJournal.com connects you to this story
Election 2010
After commission vote, Fisher new judge in Anderson Co.
With a tie for Anderson County juvenile judge that lingered for nearly a month, the county commission finally broke it Monday night. The commission's vote, required by law in the event of a tie, put Democrat Brandon Fisher in the judge's seat. The meeting was quick -- eight minutes -- and at 15 to 1, decisive. Fisher had been named interim judge in January by the County Commission after April Meldrum announced her resignation in December. He beat Republican Zach Farrar, who said he "thought it would be a little bit closer."
The News Sentinel has more
Shelby election dispute continues, as winners proceed with inauguration
One side of the Aug. 5 election dispute in Shelby County says the other has "conspiratorial paranoia" while the other side flat out says they "don't trust" the other to do what's right. The Election Commission leadership has said a worker mistakenly entered the wrong data into the electronic poll books used to determine eligibility to vote but that it didn't change the outcome. Democrats filed their first lawsuit Aug. 9, and it led to an informal, court-sanctioned arrangement under which the commission provided information. A second lawsuit asks the court to prevent winning candidates from taking office, but Shelby County is moving ahead with plans for an inauguration celebration for Mayor-elect Mark Luttrell and other elected officials.
Read more from the Commercial Appeal
Groups ask for mayoral recall
Three different groups -- Citizens to Recall Mayor Littlefield, the Chattanooga Tea Party and Chattanooga Organized for Action -- handed in enough petitions Friday to force a recall election or referendum on Chattanooga's mayor. They now are waiting to see if any lawsuit will take place in the matter in Hamilton County Chancery Court. Charlotte Mullis-Morgan, administrator for elections, said Monday the commission is expecting a lawsuit, and she also expects a judge to make some decisions on how the recall will take place. Chris Clem, the election commission's attorney, said there are a number of legal problems, one of which is that neither state law nor the city charter spell out the amount of time needed to qualify for recalls.
The Times Free Press tells you more
9 line up for Burchett's Senate seat
With Tim Burchett starting as Knox County mayor on Wednesday, his Senate seat will be vacant until after the November election. Candidates had until 5 p.m. today to submit their resumes to the Knox County Commission, which will select the person to fill Burchett's vacant seat. Members of the commission received nine resumes.
See who they are from WBIR-TV
Upcoming
Clark investiture Wednesday
Justice Cornelia A. Clark will be sworn in as chief justice tomorrow, Sept. 1, at 10 a.m. at the historic courthouse in Franklin. The current chief justice, Janice Holder, will administer the oath of office to Clark, who was elected by the court to serve a two-year term as chief justice. The ceremony will also feature remarks by the other members of the Supreme Court, representatives from the intermediate appellate courts, and judges and clerks from all levels of the judicial branch.

Napolitano to meet with TBI officials this week
Department of Homeland Security (DHS) Secretary Janet Napolitano will be in Nashville on Sept. 1 to meet with state and local law enforcement partners at the headquarters of the Tennessee Bureau of Investigation (TBI), according to the DHS press office. The visit is to highlight the department's "continued commitment to facilitating information sharing among federal, state, local, tribal and private sector partners, as well as the Department's national 'If You See Something, Say Something' campaign." Napolitano will also meet with emergency management officials to discuss ongoing recovery efforts following recent flooding in Tennessee.

Disciplinary Actions
Dickson attorney suspended
The Tennessee Supreme Court suspended the law license of Dickson attorney William Warren Leech on Aug. 27 for violating disciplinary rules by failing to substantially comply with his Tennessee Lawyers Assistance Program monitoring agreement. The agreement was a condition of Leech's reinstatement to the practice of law. His suspension is for three years.
Download the BPR news release
Correction
Cert lists now available
The Supreme Court Discretionary Appeals Grants & Denials lists from Aug. 23 and 30 were incorrectly uploaded on those dates and are now available here.
Aug. 23 cert list
Aug. 30 cert list

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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