Harwell wins nomination for speaker

Nashville Rep. Beth Harwell today was nominated by state House Republicans to be the party's candidate for speaker of the House. She defeated Franklin Rep. Glen Casada and fended off a campaign against her by tea party and gun rights activists to win the nomination. In a speech shortly before the vote, Harwell urged unity within the Republican caucus. If she wins a majority of the votes when the House convenes in January, Harwell will be the first woman to serve as speaker in the state.

Read more in the Tennessean

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
03 - TN Court of Appeals
07 - 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.

BOYD'S CREEK ENTERPRISES, LLC., ET AL. v. SEVIER COUNTY, TENNESSEE, a Governmental Corporate Entity, ET AL.

Court: TCA

Attorneys:

Wayne A. Kline and Joshua J. Bond, Knoxville, Tennessee, for the appellant(s), Boyd's Creek Enterprises, LLC.

J. Eric Harrison, Morristown, Tennessee, for the appellant, K-VA-T Food Stores, Inc.

Steven E. Marshall, Sevierville, Tennessee, for the appellant, Weigels Stores, Inc.

Jerry K. Galyon, Sevierville, Tennessee, for the appellees, Sevier County, Tennessee and Sevier County Beer Board.

Judge: FARMER

The question before this Court is whether the issuance of a beer permit in violation of a county's distance rule is non-discriminatory if it results from an agreed order resolving litigation. We conclude that a beer board's decision to effectively exempt a single premises or subset of premises from the enforcement of a valid distance rule is impermissibly discriminatory, even if it results from an agreed order. Because the discriminatory issuance of a single permit in violation of a county's distance rule may invalidate the rule, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2010/boydscreek_111810.pdf


EARL FAULKNER, ET AL. v. TOM EMMETT CONSTRUCTION COMPANY

Court: TCA

Attorneys:

George F. Legg and Charles D. Waller, Knoxville, Tennessee, for the Appellants, Earl and Faye Faulkner.

Daniel Kidd, Knoxville, Tennessee, for the Appellee, Tom Emmett Construction Company.

Judge: SWINEY

Earl and Faye Faulkner ("Plaintiffs") hired Tom Emmett Construction Company ("Defendant") to construct a new driveway at their home in Knox County. Plaintiffs refused to pay $8,000 of the total $18,000 contract price because they were dissatisfied with the workmanship of the driveway. Plaintiffs sued Defendants seeking as damages what it would cost to remove and replace the allegedly defective driveway. Defendant asserted that the driveway was properly constructed and filed a counterclaim for the remaining $8,000 balance owed on the oral contract. Following a bench trial, the Trial Court concluded that any problems with the driveway were not sufficient to require that it be removed and replaced. Because there was a problem with how the concrete on one portion of the driveway had been poured, the Trial Court required Plaintiffs to pay Defendant only $5,000 of the remaining $8,000 owed on the contract. Plaintiffs appeal. We affirm as modified.

http://www.tba2.org/tba_files/TCA/2010/faulknere_111810.pdf


JOY C. LINDSEY v. WALGREEN COMPANY, ET AL.

Court: TCA

Attorneys:

James W. Harrison, Morristown, Tennessee, for the appellants, Walgreen Company and Robert Cortney.

James A.H. Bell, Knoxville, Tennessee, for the appellee, Joy C. Lindsey.

Judge: SWINEY

Joy C. Lindsey ("Plaintiff") sued Walgreen Company ("Walgreen"), Robert Cortney ("Cortney"), and Kane David Stackhouse ("Stackhouse") after David Z. Lindsey, Sr. was shot and killed by Stackhouse in a Walgreen's parking lot. Approximately ten months after filing their answer to Plaintiff's complaint, Walgreen and Cortney filed a motion to amend to add a cross-claim against Stackhouse. The Trial Court denied Walgreen and Cortney permission to amend. We granted permission for an interlocutory appeal on the sole issue of whether Walgreen and Cortney should be granted leave to amend to add a cross-claim against Stackhouse. We reverse the Trial Court's order and grant Walgreen and Cortney permission to add a cross-claim against Stackhouse.

http://www.tba2.org/tba_files/TCA/2010/lindseyj_111810.pdf


STATE OF TENNESSEE v. STEVE BILLMAN, JR.

Court: TCCA

Attorneys:

Anita Zona-Peters, Lawrenceburg, Tennessee (on appeal); and John S. Colley, III, Columbia, Tennessee (at trial), attorneys for appellant, Steve Billman, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; T. Michael Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Steve Billman, Jr., was convicted of driving under the influence (DUI), second offense, a Class A misdemeanor, and violation of the implied consent law, a Class C misdemeanor. Following a sentencing hearing, the trial court sentenced the Defendant for DUI, second offense, to 11 months and 29 days suspended to probation following the service of 60 days in the county jail. In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain his conviction for DUI and that (2) the trial court erred in denying the Defendant's motion for a mistrial. Following our review, we conclude that the trial court abused its discretion in declining to grant a mistrial. Therefore, we reverse the judgment of the trial court and remand the case for a new trial.

http://www.tba2.org/tba_files/TCCA/2010/billmans_111810.pdf


JEREMY CROSBY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

D. Chad Hindman, Nashville, Tennessee, for the appellant, Jeremy Crosby.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Jeremy Crosby, appeals as of right the Davidson County Criminal Court's order denying his petition for post-conviction relief attacking his jury convictions of possession with the intent to sell .5 grams or more of cocaine and possession of drug paraphernalia. On appeal, he contends that appellate counsel committed ineffective assistance by failing to raise or effectively argue certain issues on direct appeal. Following our review, we affirm the order of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/crosbyj_111810.pdf


ERIC DAVIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Fikisha Swader, Nashville, Tennessee, attorney for appellant, Eric Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulaney Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Eric Davis, appeals as of right from the Davidson County Criminal Court's denial of his petition for post-conviction relief. The Petitioner pled guilty to possession with intent to sell 300 grams or more of cocaine, a Class A felony, and received a sentence of 15 years to be served consecutively to prior sentences. The Petitioner challenges the performance of trial counsel and the voluntariness of his guilty plea. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/davise_111810.pdf


RODNEY JEFFRIES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert L. Parris, Memphis, Tennessee, for the appellant, Rodney Jeffries.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Rodney Jeffries, appeals the habeas corpus court's order summarily dismissing his "Petition for Writ of Habeas Corpus or in the Alternative, Petition to Re-open Petition for Post-Conviction Relief." Following our review of the record and applicable law, we affirm the habeas court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2010/jeffriesr_111810.pdf


STATE OF TENNESSEE v. ANDRE JABBAR JOHNSON

Court: TCCA

Attorneys:

J. Colin Morris, Jackson, Tennessee, for the appellant, Andre Jabbar Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A trial jury found the defendant, Andre Jabbar Johnson, guilty of resisting arrest, a Class B misdemeanor. The trial court sentenced the defendant to six months in the county jail, with a release eligibility of 75%. On appeal, the defendant contends that his sentence is excessive because the trial court failed to properly weigh the mitigation factors against the enhancement factors. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/johnsona_111810.pdf


STATE OF TENNESSEE v. EDDIE LATTIMORE

Court: TCCA

Attorneys:

Kevin S. Latta, Pulaski, Tennessee, for the appellant, Eddie Lattimore.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Randall A. York, District Attorney General; and Josh Parsons, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Eddie Lattimore, was found guilty by a Dekalb County Circuit Court jury of possession of schedule II hydromorphone with the intent to sell, a Class C felony; possession of schedule II morphine, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. sections 39-17-417(a)(4), -418(a), -425(a)(1) (2010). He was sentenced as a Range III, persistent offender to fourteen years' confinement for possession of hydromorphone with intent to sell and to eleven months, twenty-nine days' each for possession of morphine and possession of drug paraphernalia, all to be served concurrently. On appeal, he contends that the evidence was insufficient to support his convictions. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/lattimoree_111810.pdf


SPENCER PETERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Spencer Peterson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Spencer Peterson, appeals the denial of his petition for post-conviction relief,arguing that the post-conviction court erred in finding that he received the effective assistance of counsel. After review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2010/petersons_111810.pdf


TODAY'S NEWS

Legal News
Upcoming
Passages
Clarification
Disciplinary Actions
Career Opportunities
TBA Member Services

Legal News
Nashville lawyer Sharp nominated for federal bench
President Barack Obama has nominated Nashville attorney Kevin Sharp for a seat on the U.S. District Court for the Middle District of Tennessee. Before co-founding the firm of Drescher & Sharp, the Vanderbilt University Law School graduate practiced at the firm of Stokes, Bartholomew, Evans & Petree.
Read more in the Tennessean
Judge Kennedy marks 30 years of service
David S. Kennedy, U.S. Bankruptcy Judge for the Western District of Tennessee, was honored Wednesday by colleagues and staff for 30 years of service on the bench. Kennedy used the occasion to reflect on the changes in bankruptcy law since he first took the post. He said he has no plans to retire because he wants to be around for whatever changes come next. "I'm having too good a time," he quipped.
The Commercial Appeal reports
Baker's Watergate work draws praise from scholars
A two-day conference examining Sen. Howard Baker's career wrapped up yesterday with praise for the values Baker exhibited during the Watergate hearings in the 1970s. As vice chairman of the Senate Watergate Committee, Baker played a central role in the hearings that led to the resignation of President Richard Nixon. Scholars characterized him as a model of nonpartisanship and suggested similar leadership is needed in the current political climate to address the important issues of the country.
Learn more about the conference in this article from the Tennessean
Former federal prosecutor defends Farr
Former U.S. Attorney Ed Yarbrough is defending his client, former state Revenue Commissioner Reagan Farr, and predicting that Farr will not face criminal charges from an inquiry into his decisions at the Revenue Department. The FBI and the Tennessee Bureau of Investigation are investigating complaints that Farr stopped state tax agents from building criminal cases against certain companies. Yarbrough argued that Farr exercised his judgment in good faith and suggested that those who complained were "manipulated by individuals within the Revenue Department into believing there was impropriety in these cases."
The Tennessean has more
Putnam drug court is reorganized
The Putnam County drug court is under new management. It had been administered by the Upper Cumberland Community Services Agency but the state recently dissolved that group. The program now will be managed by the Upper Cumberland Human Resource Agency (UCHRA), which plans to expand the court to other counties in the judicial district. Officials involved with the court hope that the larger jurisdiction will bring additional federal grant funds to the area.
The Herald Citizen reports
Moses & Townsend adds partner, changes name
Nashville family law firm Moses & Townsend has named Marissa Moses Russ a partner in the firm and has changed its name to Moses Townsend & Russ PLLC. It will market itself as MTR Family Law. Russ joined the firm -- founded by her mother, Marlene Eskind Moses -- three years ago. She previously spent two years in the litigation group at Gullett Sanford Robinson & Martin.
The Nashville Post has the story (subscription required)
Local government adviser recognized
Karen Beyke with the University of Tennessee's Municipal Technical Advisory Service (MTAS) has been designated a local government fellow by the International Municipal Lawyers Association (IMLA). She is just the second Tennessean to receive the honor. Beyke lectures nationally as chair of the group's Code Enforcement Section and serves as Tennessee state chair. Her work with MTAS involves advising Tennessee cities on municipal legal issues. She formerly served as city attorney of Franklin.

Upcoming
KBA memorial service set for tomorrow
The Knoxville Bar Association will hold its annual memorial service tomorrow, Nov. 19, beginning at 3 p.m. The event will take place in the Tennessee Supreme Court Courtroom at 505 Main Street. The service will be led by Tennessee Supreme Court Justice Gary R. Wade and will recognize 10 members who died in the past year. A reception will follow.
Learn more on the KBA website
Passages
Chattanooga lawyer dies
Bernard David Cohen, 95, a practicing attorney for more than 70 years, died Oct. 24 at his home in Chattanooga. Cohen graduated from Washburn University School of Law in 1937 and practiced in Kansas, Missouri and Washington, D.C. before moving to Chattanooga in 1961. Cohen was active in the local bar and other professional organizations. Memorial gifts may be made to the Hospice of Chattanooga, Chattanooga-Hamilton County Public Library for large-print books, the Mizpah Congregation Library Fund or a charity of choice.
Read the full obituary
Clarification
An item in Wednesday's TBA Today reported a pair of awards presented to students at the University of Memphis Cecil C. Humphreys School of Law during the recent Memphis Bar Foundation Fellows Reception. The awards were created by the family of Irvin Bogatin, who established a fund with the Memphis Bar Foundation to recognize his long and devoted service to the bar and the community, especially in the area of social justice. Third-year student C. Grace Whiting received the Irvin Bogatin Social Justice Award and first-year student Christopher D. Santirojprapai received the Irvin Bogatin Scholarship.

Disciplinary Actions
Memphis lawyer suspended
On Nov. 10, the Tennessee Supreme Court suspended the law license of Memphis lawyer Jack Lester Mewborn Jr. The justices imposed the temporary suspension after the Board of Professional Responsibility petitioned the court for the action. The discipline came in response to a finding that Mewborn had misappropriated funds.
Download the BPR notice
Career Opportunities
Federal laboratory seeks general counsel
The Oak Ridge National Laboratory (ORNL) is seeking an assistant general counsel to handle environmental, safety and health matters as well as real estate and tax law. Additional duties include managing contracts, procurement of goods and services, physical security, cyber security and information security. A successful candidate will have five years of relevant work or educational experience. Knowledge of federal contracting and an understanding of the U.S. Department of Energy are preferred.
Learn more about the job and how to apply on JobLink
TBA Member Services
Ship directly from Microsoft Office Outlook with FedEx QuickShip
Now you can ship your FedEx packages directly from the Microsoft Office Outlook application -- and save money doing it. It's a fast and convenient way to easily access some of the most popular features on fedex.com using Microsoft technology. That's why you should Think FedEx First.
Take advantage of your member discounts on select FedEx shipping services and FedEx OfficeSM business services

 
 
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 2010 Tennessee Bar Association