Nashville at law: One win, one draw for Metro Legal

Two-year lawsuit ends in jury verdict for city, but appeals court says strip-club regulators can't impose fines [From our print edition featured in Monday's City Paper]

In this week's courthouse roundup: Metro lawyers face off against tow-truck drivers and strippers, one of the Nashville area's oldest manufacturers goes to court to fight for its reputation, Bart Durham demands personal justice, and more....

United States District Court

Mark Wayman d/b/a Able Towing et al. v. Metropolitan Government of Nashville et al. Jury verdict returned August 14. After a two-day trial, a jury finds in favor of the city and its Transportation Licensing Commission, turning away the plaintiff's claims that the board discriminated against non-emergency towing companies in its disciplinary actions.

Wayman and Able Towing were among the defendants named in a recent lawsuit over towing incidents outside the Virago restaurant in Midtown, as reported in this column on July 6. The lawsuit against Metro had been pending since July 2007.

Plaintiff's attorney: Phillip L. Davidson of Nashville. Defendant's attorneys: Keli J. Oliver and Elizabeth A. Sanders, Metro Legal Department.

Jamison Bedding Inc. v. CMC Corp. Case transferred from Williamson Chancery August 14. Venerable mattress-maker Jamison has gotten crosswise with North Carolina hotelier CMC over supposed defects in the bedding provided to several Best Western and Holiday Inn units that CMC owns.

When CMC told Jamison that inspectors from Holiday Inn had "failed" its mattresses and box springs, Jamison looked into the matter and found, it says, that they had been installed with improper supports. Moreover, the beds had been "subjected to abuse, such as excessive force like jumping on the bed," according to the complaint.

In June, CMC told Jamison that if it did not provide some $250,000 worth of replacement bedding at no charge, legal action would ensue. "In its 126-year history, Jamison has not been the subject of suits by its customers," the lawsuit states. It seeks a declaratory judgment that the damage to the beds is not covered by warranty, and it wants CMC to be "enjoined from committing trade defamation."

Plaintiff's attorney: Jay S. Bowen, of the newly formed Music Row firm Bowen & Unger PLC.

Tennessee Court of Appeals

Entertainer 118 and Meroney Entertainment Inc. d/b/a Ken's Gold Club. v. Metropolitan Sexually Oriented Business Licensing Board. Opinion filed August 14. The appeals court reverses part of a ruling by Davidson County Chancellor Carol L. McCoy while upholding the rest of it.

In a 2006 visit to the club, an inspector from the licensing board found the anonymous "entertainer" entertainer straddling a male customer's legs, "grinding the pubic region and her buttocks against the customer's pubic region." (Both were clothed.) The appellate opinion notes that in court, the woman "demonstrated her positioning with the assistance of her legal counsel."

She and the club sued after the board fined them $500 each for violating Metro's naughtiness codes, a penalty McCoy upheld. The Court of Appeals finds that the board lacks the authority under Tennessee's constitution to impose a monetary fine, but that the dancer and club did break the law. The case was remanded to McCoy, who can impose an alternative penalty by suspending their permits - not that there is much point in doing so, since the board put Ken's Gold Club out of business last year for unrelated violations. A male strip joint is now slated for its former home on Fifth Ave. S.

Appellants' attorney: John E. Herbison, Nashville. Appellees' attorneys: J. Brooks Fox and Paul Jefferson Campbell II, Metro Legal.

United States Bankruptcy Court

Gunderson & Baca LLC. Chapter 11 reorganization petition filed August 7. Utah entrepreneur and motivational speaker Garrett B. Gunderson, who hit the New York Times bestseller list last year with his financial advice book Killing Sacred Cows, is managing partner of this company, which owns several units in a Gallatin office condo building.

Gunderson told The City Paper a developer approached him about purchasing the units several years ago. "It was early in my real estate investment career, and I believed in it without doing full due diligence," he recalled. The units have not rented out as planned, and the result has been "pretty massive negative cash flow." The author said the investment has been a "valuable, if expensive, learning experience."

The filing shows assets of $575,000 and liabilities of $695,000. Debtor's attorney: Kevin Key of Nashville.

Davidson County Circuit Court

Bart Durham v. Robert L. Whitaker. Complaint filed August 14. Well-known personal-injury attorney Durham does battle with Nashville lawyer Robert L. Whitaker, who was the senior attorney in the Durham law office from 1997 until late last month, when he set up a solo practice. The lawsuit claims that efforts by Whitaker to obtain part of a recent legal settlement amounted to "attempted extortion and/or embezzlement."

The complaint says Whitaker worked on a salaried basis as he supervised all of the nearly 300 cases a year that the Durham office handled. But in one case, Durham says, he agreed "under the coercion of a long hospitalization" to split fees with Whitaker on a 50-50 basis. Whitaker is now handling that case solo, and the lawsuit says he has repudiated the agreement to split the fees.

In another case, where the firm obtained a settlement just before Whitaker departed, "Whitaker told adverse counsel and the adjuster for the insurance carrier for the defendant... that he, individually, earned an attorneys fee and he wanted his portion of the fee structured in his name, individually," the lawsuit alleges.

Durham seeks $500,000 in damages for what he terms the "fraudulent" and "outrageous" conduct of Whitaker. Filing the lawsuit along with him was his son, Blair Durham, who has a separate legal practice.

Whitaker stated last week that he could not comment on the allegations, except to say that the case involves a "misunderstanding" and that he expects Durham will soon "dismiss the case with prejudice."