Law Firm Management Conference a must-attend event

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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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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.

WAYNE B. GILLARD v. JAMES A. TAYLOR, ET AL.

Court: TCA

Attorneys:

Gary H. Nichols, Michael R. Flynn, Memphis, TN, for Appellant, Nationwide Insurance Company.

Eugene A. Laurenzi, Memphis, TN, for Appellee, Wayne B. Gillard.

Judge: STAFFORD

Police officer who was injured while driving his patrol car brought this action against his automobile insurer to recover uninsured motorist benefits under his personal policy. The trial court denied insurers' motion for summary judgment, finding that the regular use exception found in the policy was ambiguous. The insurance company appeals. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2009/gillardw_031809.pdf


HERMOSA HOLDINGS, INC. f/k/a/THE MONROE PAGE GROUP v. MID-TENNESSEE BONE AND JOINT CLINIC, P.C., AMSURG, THE SURGERY CENTER OF MIDDLE TENNESSEE, et al

Court: TCA

Attorneys:

James A. Crumlin, Jr., Lane Moorman, Nashville, Tennessee, for the Appellant, Hermosa Holdings, Inc., f/k/a/ The Monroe Page Group.

Michael L. Dagley, Kelly A. Cunningham, Nashville, Tennessee, for the Appellee, AmSurg Corporation & The Surgery Center of Middle Tennessee. L. Webb Campbell, II and Phillip F. Cramer, Nashville, TN, Dalton M. Mounger, Columbia, TN for Appellees, Mid-Tennessee Bone and Joint Clinic, P.C., James Campbell Bloulevard Properties, LLC, Charles D. Atnip, M.D., Timothy Gordon, M.D. and Ralph F. Hamilton, M.D.

Judge: FRIERSON

The Plaintiff, Hermosa Holdings, Inc., instituted the case at bar against several Defendants by asserting various causes of action with reference to a proposed medical office building development. All Defendants responded to the original complaint by filing motions to dismiss pursuant to Tenn.R.Civ.P. 12.02(6) and for improper venue. The Plaintiff subsequently filed an amended complaint. The Defendants responded by filing additional motions to dismiss. By Order entered February 14, 2008, the Chancery Court of Davidson County granted the Defendant' motions and dismissed the amended complaint with prejudice. We affirm in part, vacate in part and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/hermosa_031809.pdf


URBAN HOUSING SOLUTIONS, INC., v. ASSURANCE COMPANY OF AMERICA ARTECH, INC., AND SIGNATURE PROPERTIES, LLC v. ZANDER INSURANCE AGENCY, INC., D/B/A ZANDER INSURANCE GROUP AND ASSURANCE COMPANY OF AMERICA

Court: TCA

Attorneys:

Matthew R. Zenner and Malcolm L. McCune, Nashville, Tennessee, for Appellant, Urban Housing Solutions, Inc.

J. Frank Thomas, Nashville, Tennessee, for Appellee, Zander Insurance Agency, Inc.

Judge: FRANKS

Plaintiff entered into an agreement with defendant Artech for renovation of plaintiff's building. The agreement provided that Artech would obtain builder's risk insurance naming Artech and plaintiff as the insured under the policy. Artech procured insurance through defendant Zander Insurance Agency, but the policy did not name plaintiff as an additional insured. A loss occurred and the insurance company refused to pay plaintiff's claim because plaintiff was not named as an insured on the policy. A consent Judgment was entered in favor of plaintiff against Artech (which had become insolvent) and Artech assigned its cause of action against the insurance agency to plaintiff. The Trial Court granted Zander Insurance Agency summary judgment and plaintiff has appealed. On appeal, we hold that there is a disputed issue of material fact as to whether Artech asked the insurance agency to add plaintiff as an additional insured under the policy which was procured through the agency. We vacate the summary judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/urbanh_031809.pdf


BEVERLY WALLER v. BRENDA EVANS

Court: TCA

Attorneys:

Larry B. Hoover, Nashville, TN, for Appellant.

George J. Duzane, Dominic J. Leonardo, Nashville, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the decedent, Floyd Evans, Sr., possessed the requisite mental capacity to execute a power of attorney naming his brother as attorney-in-fact, which was subsequently used to change his life insurance and investment account beneficiary from his daughter to his wife. Additionally, we are asked to determine whether a confidential relationship existed between the decedent and his wife such that his wife exerted undue influence upon him in having his beneficiaries changed just prior to his death. We affirm the trial court, finding that the decedent possessed the requisite mental capacity and that the presumption of undue influence was rebutted through independent advice.

http://www.tba2.org/tba_files/TCA/2009/wallerb_031809.pdf


MELINDA REUST WILLIAMS v. ERIC BUTZE

Court: TCA

Attorneys:

Timothy J. Williams, Memphis, TN for Appellant, Melinda Reust Williams.

Ivan D. Harris, Collierville, TN for Appellee, Eric Butze.

Judge: STAFFORD

This case began as a petition for dependency and neglect, which petition was dismissed by consent of the parties. The juvenile court then proceeded to determine custody pursuant to its authority granted by Tenn. Code Ann. Section 37-1-104(f). When custody was placed with Father/Appellee, Mother/Appellant appealed to the Circuit Court of Shelby County. The Circuit Court determined that the Tennessee Court of Appeals was the proper appellate court and entered an order transferring the appeal to us. Mother appeals that transfer. We affirm.

http://www.tba2.org/tba_files/TCA/2009/williamsm_031809.pdf


STATE OF TENNESSEE v. ZACHERY SCOT BROTHERTON

Court: TCCA

Attorneys:

Paul D. Cross, Monteagle, Tennessee, for the Appellant, Zachery Scot Brotherton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; J. Michael Taylor, District Attorney General; David O. McGovern, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The vehicle of the Defendant, Zachery Scot Brotherton, was stopped for a moving violation. The Defendant consented to a search of his person, which yielded marijuana. After a bench trial, the trial court convicted the Defendant of one count of felony possession of a Schedule VI controlled substance, marijuana, and one count of operating a motor vehicle without the required headlights and tail lamps. The trial court sentenced him as a Range I offender to two years of probation. The Defendant appeals, contending that the trial court erred when it denied his motion to suppress the marijuana seized during the search. After thoroughly reviewing the record and applicable authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2009/brothertonz_031809.pdf


JASON CLARK v. CHERRY LINDAMOOD, WARDEN, AND STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason Clark, Clifton, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Mike Bottoms, District Attorney General; and Cameron L. Hyder, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Jason Clark, appeals the Wayne County Circuit Court's summary dismissal of his petition for habeas corpus relief. The Petitioner was indicted for first degree felony murder and especially aggravated robbery, and he ultimately pleaded guilty as charged. On appeal, the Petitioner argues that the indictment against him was fatally defective and, thus, deprived the trial court of subject matter jurisdiction and violated principles of due process. Specifically, he argues that the indictment did not state the charges against him; i.e., failed to include the words "especially aggravated robbery" and "first degree felony murder." The habeas corpus court dismissed the petition, finding that the Petitioner had failed to state a cognizable claim for relief. We agree and affirm the order summarily dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2009/clarkj_031809.pdf


STATE OF TENNESSEE v. MELVIN CRUMP

Court: TCCA

Attorneys:

Edmund L. Carey, Jr., Nashville, Tennessee, for the appellant, Melvin Crump.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and John C. Zimmerman and Kathy Morante, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Melvin Crump, was convicted by a Davidson County Criminal Court jury of first degree premeditated murder, first degree felony murder based upon the predicate crime of rape, first degree felony murder based upon the predicate crime of larceny, and aggravated sexual battery. At the capital sentencing hearing, the jury imposed a life sentence for the first degree murder conviction. The trial court merged the defendant's murder convictions and granted the defendant's motion to set aside the aggravated sexual battery conviction based upon the statute of limitations. In this appeal, the defendant raises the following issues: (1) the evidence was insufficient to prove murder, either premeditated or felony, (2) the delay between the defendant's original indictment in 1988 and his later indictment in 2003 and 2004, with the commencement of the trial in 2006, deprived him of his rights to speedy trial and to due process under the Tennessee and United States Constitutions, (3) the jury pool was contaminated when inadmissable, unconstitutionally obtained evidence reached the jury pool and at least one juror and when the State violated Batson v. Kentucky during jury selection, (4) the trial court erred in ruling that the defendant could be impeached by his unconstitutionally obtained 1988 confession and would be subject to unlimited cross-examination even if he testified only on the limited subject of the admissibility of biological sample evidence obtained from him after his 1988 arrest, (5) the trial court erred when it denied the defendant's Motion to Dismiss Indictment Due to Police and Prosecutorial Misconduct and in the remedy it fashioned when the court granted defendant's Motion to Suppress fruits of the 1988 confession, (6) the trial court erred when it admitted expert opinion testimony from witnesses who did not have education, experience, or training in the subject area, and had never seen the subject discussed in any relevant scientific literature, (7) the deputy medical examiner should not have been permitted to testify as a State's fact witness about the autopsy report because the medical examiner who performed the autopsy was available, (8) there were multiple, prejudicial instances of prosecutorial misconduct, (9) the trial court erred in allowing the former medical examiner Dr. Charles Harlan to be questioned repeatedly regarding charges brought against him to the medical licensing board and the findings of that board, (10) the trial court erred by denying defendant's request for a "missing witness" instruction regarding a DNA hair expert the State flew in from another state who was not called and sent home, (11) the indictment should have been dismissed on grounds of double jeopardy, and (12) the various errors occurring in the trial court constitute cumulative error requiring reversal. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/crumpm_031809.pdf


STATE OF TENNESSEE v. JIMMY HEARD

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellant, the State of Tennessee.

Brad W. Hornsby and Luke A. Evans, Murfreesboro, Tennessee, for the appellee, Jimmy Heard.

Judge: WOODALL

Following the return of a multi-count indictment, Defendant was convicted of criminal conspiracy to commit aggravated robbery, a Class C felony; aggravated robbery, a Class B felony; the lesser included offense of attempted second degree murder, a Class B felony; and two counts of felony evading arrest, a Class E felony. Defendant filed a motion for new trial arguing, among other issues, that the trial court erred in providing a supplemental instruction to the jury that it could proceed to consider the lesser included offense of attempted second degree murder in count 3 of the indictment if it could not unanimously agree as to a verdict of guilt or acquittal on the charged offense of attempted first degree murder. At the conclusion of the motion hearing, the trial court found that the challenged supplemental instruction as to count 3 of the indictment was provided in error. The trial court granted Defendant's motion for new trial as to count three of the indictment charging Defendant with attempted first degree murder, and denied the motion in all other respects. The trial court denied the State's request for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. However, this Court granted the State's Rule 10 application for an extraordinary appeal by permission in which the State challenges the trial court's grant of a new trial on the charged offense of attempted first degree murder. After a thorough review of the record and the briefs of the party, we affirm the trial court's grant of Defendant's motion for new trial as to count 3 of the indictment.

http://www.tba2.org/tba_files/TCCA/2009/heardj_031809.pdf


TRAVIS J. WOODS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason D. Demastus, Chattanooga, Tennessee, for the appellant, Travis J. Woods.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William H. Cox, III, District Attorney General; Jason L. Thomas, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Travis J. Woods, appeals the denial of post-conviction relief by the Criminal Court for Hamilton County from his convictions for attempted first degree murder, a Class A felony; aggravated assault, a Class C felony; and reckless endangerment, a Class E felony. He received consecutive sentences of thirty-five years for attempted first degree murder, six years for aggravated assault, and two years for reckless endangerment, for an effective sentence of forty-three years. He contends that (1) the trial court erred in finding he had the effective assistance of counsel at trial when trial counsel failed to (a) obtain a mental evaluation of the petitioner, (b) discover the weapon used in the shooing and to obtain ballistics testing of it, (c) object to the prosecution's statements regarding the petitioner's prior bad acts or "alleged drug involvement," and (d) impeach the victim with his drug conviction and "drug history;" (2) the trial court erred in finding that appellate counsel's failure to inform the petitioner of his appeal did not fall below the range of competence demanded of criminal defense counsel; and (3) the trial court erred in not holding that his sentences were invalidly enhanced in violation of his right to trial by jury pursuant to Blakely v. Washington, 542 U.S. 296 (2004). We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/woodst_031809.pdf


Economic Crime Fees and Judicial Forfeiture Proceeds

TN Attorney General Opinions

Date: 2009-03-16

Opinion Number: 09-29

http://www.tba2.org/tba_files/AG/2009/ag_09_29.pdf

TODAY'S NEWS

Legal News
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Smith named to Davidson County court
Gov. Phil Bredesen today appointed Philip E. Smith of Madison to the Tennessee Circuit Court for the 20th Judicial District, Division IV. Smith will fill a vacancy created by the retirement of Judge Muriel Robinson. Prior to his appointment, Smith worked as a solo practitioner in Nashville. From 1988 to 1990, he served as an assistant district attorney in Nashville. He graduated from the University of Tennessee College of Law in 1988.
Read the governor's announcement
Verdict upheld in Salvadoran torture case
The 6th Circuit Court of Appeals yesterday upheld a verdict from the U.S. District Court for the Western District of Tennessee finding Nicolas Carranza, the former commander of El Salvador's security forces, responsible for human rights abuses. Following the decision, Carranza's lawyer said his client likely would appeal to the U.S. Supreme Court. In 2005, Nashville lawyer David Esquivel represented victims who brought suit against Carranza and won the TBA's Harris Gilbert Pro Bono Attorney of the Year Award for his work.
Read more about the case from the Memphis Daily News
Impropriety standard raised for federal judges
In the first revision of the conduct code for federal judges since 1992, the U.S. Judicial Conference yesterday enacted a streamlined set of rules that for the first time defines "appearance of impropriety" and expands the test for appearance of impropriety to concerns beyond judges' adjudicative responsibilities. The new rules will take effect July 1. The ABA Journal reported the development.
Learn more in this press release from the Judicial Conference
Former state worker arrested for use of criminal database
Former state probation officer Thomas Dean has been arrested and indicted on several charges, including civil rights intimidation, official misconduct, coercion of a witness and perjury. While employed by the Tennessee Board of Probation and Parole, Dean allegedly searched for information on the state's criminal justice web site and later tried to cover up his activities. Another officer accused of the same conduct, Ronnie Shirley, has been cleared of wrongdoing and is awaiting an administrative hearing to regain his job, according to the Tennessean.

Personal technology causing headaches for jury trials
Several stories in the last few weeks have highlighted the challenges modern technology poses for those conducting jury trials. Last week, eight jurors in a federal drug trial admitted they had been doing Internet research on the case via BlackBerrys and iPhones. Also last week, a company asked an Arkansas court to overturn a $12.6 million judgment against it claiming that a juror used Twitter to send updates during the trial. This week, defense lawyers in the federal corruption trial of a former Pennsylvania state senator asked for a mistrial after learning that a juror posted updates on the case on Twitter and Facebook.
The New York Times explores how courts are responding
New ABA resource helps lawyers weather recession
For those in the profession trying to avoid a layoff or struggling to recover from one, the American Bar Association has launched a new Economic Recovery Resources page on its website. The page offers resources and tips on a variety of topics including job searching, practice management, professional development and more.
Visit the site
Tenn. among states with no attorney-client sexual ban
According to the American Bar Association, 27 states have adopted rules banning sexual relations between attorneys and clients, while six others have incorporated similar recommendations into their standards of attorney conduct. Tennessee, however, is one of 14 states that does not address the topic.
The Bristol Herald Courier looks at a case from Virginia, one of the other 14 states
Disciplinary Actions
Knoxville lawyer reintated
Knoxville lawyer Darren E. Ridenour was reinstated to the practice of law on Feb. 17 after complying with continuing legal education requirements. He had been suspended on Aug. 27, 2008.

Utah lawyer reinstated
Nicole Pyne of Salt Lake City, Utah, was reinstated to the practice of law on Feb. 18 after complying with continuing legal education requirements. She had been suspended on Aug. 15, 2007.

South Carolina lawyer reinstated
Matthew Edward Davis of Gilbert, S.C., was reinstated to the practice of law on Feb. 18 after complying with continuing legal education requirements. He had been suspended on Feb. 15, 2000.

Upcoming
Judge Robinson to address business group
Judge Muriel Robinson, who recently announced her retirement from the 20th Judicial District Circuit Court, will address the Bellevue Chamber of Commerce on Thursday, March 19, from noon to 1 p.m. The meeting will be held at The Meadows, 8044 Coley Davis Road. Lunch and registration opens at 11:15 a.m. The program is free for chamber members; guests pay $10. For more information, call the chamber at (615) 662-2737 or visit www.thebellevuechamber.com. The Tennessean reported the event.

National judges conference planned for Memphis
The National Association of Women Judges will hold its annual conference in Memphis this year on Oct. 15-18. Over 300 judges from across the country are expected to attend. Tennessee Supreme Court Chief Justice Janice Holder is leading the planning effort along with a host of west Tennessee judges. Events include a keynote address by retired U.S. Supreme Court Justice Sandra Day O'Connor and a grand celebration of the 100th anniversary of the Shelby County Courthouse. For more information contact Dottie McCallen with the Memphis Bar Association at dmccallen@memphisbar.org or (901) 527-3573. In addition, sponsorship opportunities are available for the event; interested individuals should contact Jeana Littrell at jmlittrell@fedex.com

TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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