AOC Accepting Applications for 2 Grant Programs

The Administrative Office of the Courts (AOC) is seeking applications for two grant programs it administers. The first, the Victim Offender Reconciliation Program (VORP), was created by the state legislature in 1993 to provide alternatives to the courts for the resolution of felony, misdemeanor and juvenile delinquent disputes, and encourage community participation in such programs. The second, the Parent Education and Mediation Fund, was created as part of Tennessee's parenting plan law to provide court-ordered mediation, parenting education programs and other related services to families facing child custody matters. Organizations seeking to provide services under these programs should apply by April 23. Notification of grant awards will be sent in late May.

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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.


TN Court of Appeals

AMBER BRAZILIAN EXPORT RESOURCES, INC., DBA AMBER INTERNATIONAL v. CROWN LABORATORIES, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

Arthur M. Fowler and Arthur M. Fowler, III, Johnson City, Tennessee, for the appellants, Crown Laboratories, Inc. and Jeffrey A. Bedard.

Thomas R. Banks, Elizabethton, Tennessee, for the appellee, Amber Brazilian Export Resources, Inc., dba Amber International.

Judge: SUSANO

Amber Brazilian Export Resources, Inc., doing business as Amber International (“the Plaintiff”), filed this action against Crown Laboratories, Inc. and Jeffrey A. Bedard (collectively “the Defendants”) to collect a debt owed on an “open account.” The liability of Mr. Bedard is based upon a personal guaranty of Crown’s obligation. The Defendants admit that something is owed on the account but deny the amount and further deny that Mr. Bedard signed the guaranty in a personal capacity. The Plaintiff filed a motion for summary judgment supported by the affidavit of its president, which the Defendants opposed with the affidavit of Mr. Bedard in which he states that he signed the guaranty in a representative capacity. He also disputes the amount due as stated in the Plaintiff’s affidavit. The trial court granted the Plaintiff’s motion. The Defendants appeal. We affirm that part of the judgment holding Mr. Bedard liable on the guaranty and vacate that part of the judgment setting the amount owed because there is a genuine issue of material fact as to the amount.


EQUITY MORTGAGE FUNDING, INC. OF TENNESSEE ET AL. v. JOE BOB HAYNES

Court: TN Court of Appeals

Attorneys:

Frank Reeves, Nashville, Tennessee, for the appellants, Equity Mortgage Funding, Inc. of Tennessee and Joseph M. Swanson.

Susan Carol Parkes, Lebanon, Tennessee, for the appellee, Joe Bob Haynes.

Judge: BENNETT

The issue in this case is which of two deeds of trust has priority. Deed of trust A was executed before deed of trust B was executed; A was also registered before B was registered, but after B was executed. We affirm the chancellor’s decision that A has priority over B and that equitable estoppel does not apply to change this result.


FARMERS MUTUAL OF TENNESSEE v. JENNIFER ATKINS

Court: TN Court of Appeals

Attorneys:

Christopher D. Heagerty and Kristi M. Davis, Knoxville, Tennessee, for the appellant, Farmers Mutual of Tennessee.

Chad D. Wilson, Knoxville, Tennessee, and Peter Alliman, Madisonville, Tennessee, for the appellee, Jennifer Atkins.

Judge: STAFFORD

This is an interlocutory appeal from the denial of summary judgment. Appellant insurance company sought a declaratory judgment that Appellee was precluded from recovering under her home owner’s insurance policy due to her failure to submit to an examination under oath. The insurance company moved for summary judgment, arguing that the failure to submit to an examination under oath was the nonoccurrence of a condition precedent to recovery under the policy, as outlined in Spears v. Tennessee Farmers Mut. Ins. Co., 300 S.W.3d 671 (Tenn. Ct. App. 2009). Appellee responded that she had not failed to submit to an examination and argued that, under Talley v. State Farm Fire & Cas. Co., 223 F.3d 323 (6th Cir. 2000), the insurance company must prove prejudice in order to preclude recovery. The trial court denied summary judgment, citing material factual disputes and noting, without deciding, the divergence of opinion regarding the condition precedent issue. Accordingly, the trial court granted an interlocutory appeal for this Court to determine the applicable law. This Court granted the interlocutory appeal; however, upon further review, we have determined that this issue is not properly before us. Accordingly, we vacate the grant of the interlocutory appeal, remand to the trial court for further proceedings and dismiss the appeal.


IN RE FRIDRICH E.T.W.

Court: TN Court of Appeals

Attorneys:

Julie Anne Foster, Oak Ridge, Tennessee, for the appellant, George R.W., Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Martha A. Campbell, Associate Deputy Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services. No appearance by Guardian ad Litem.

Judge: SUSANO

George R.W., Jr. (“Father”) appeals the termination of his parental rights with respect to his minor son, Fridrich E.T.W. (DOB: Aug. 27, 2008) (“the Child”). The Department of Children’s Services (“DCS”) had filed a petition seeking to terminate both parents’ rights after the Child was taken into custody pursuant to an emergency protective order. He was subsequently adjudicated dependent and neglected as a result of being subjected to severe child abuse. As to Father, DCS pursued termination on the sole ground of severe child abuse. Father did not appear at trial. At the start of the trial, his counsel moved for a continuance based in part on counsel’s assertion that Father had advised her that he wished to effectuate a voluntary surrender of his parental rights. The trial court denied the motion and the hearing proceeded in Father’s absence. The court terminated Father’s rights based upon its finding that the sole ground for termination was established and that termination was in the best interest of the Child, both findings said by the court to be made by clear and convincing evidence. Father appeals. We affirm.


IN THE MATTER OF: THE ESTATE OF MARY ISABEL GENTRY, DECEASED

Court: TN Court of Appeals

Attorneys:

Kirk Vandivort and Brian Ragan, Dickson, Tennessee, for the appellant, Constance Gail Jones.

J. Reese Holley, Dickson, Tennessee, for the appellee, Estate of Gary Gentry. Jack L. Garton, Dickson, Tennessee, for the appellee, Estate of Gracie Gentry.

Judge: CLEMENT

Appellant filed a motion to set aside an order that purported to settle a dispute concerning the real estate in a decedent’s estate. The court denied the motion; Appellant contends this was error. The parties announced their agreement to settle the dispute in open court. An order, titled “Agreed Order,” was subsequently entered but it was not signed by Appellant’s counsel; moreover, Appellant filed an objection to the entry of the order prior to it being approved by the court. The transcript of the agreement announced in court reveals that the so-called “Agreed Order” does not contain a material condition to the fulfillment of the agreement, that Appellant “is going to be borrowing money in order to come up with the funds necessary to offset that and pay these amounts to these other two individuals, so that’s part of the agreement.” We find the denial of Appellant’s motion to set aside the so-called Agreed Order causes an injustice to Appellant; accordingly, we reverse the denial of Appellant’s Rule 59.04 motion to set aside the November 3, 2010 Agreed Order. The trial court also found that performance under the agreement was not a legal impossibility, meaning that Appellant could obtain the requisite loan. We have determined the evidence preponderates against this finding because Appellant demonstrated that, due to the current appraised value of the property, she is unable to obtain the requisite financing. Accordingly, we reverse and remand for further proceedings consistent with this opinion to the extent necessary to complete the administration of the decedent’s estate.


IN RE IZAIAH J. ET AL.

Court: TN Court of Appeals

Attorneys:

Shawn Sidwell, Cookeville, Tennessee, for the appellant, Robert S.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Douglas Earl Dimond, Senior Counsel; and Marcie Eubanks Greene, Assistant Attorney General; for the appellee, State of Tennessee, Department of Children’s Services.

Judge: BENNETT

The trial court terminated father’s parental rights to his daughter. We affirm because there was clear and convincing evidence to support the trial court’s decision.


LAUNDRIES, INC. v. COINMACH CORPORATION v. CARLA MOYER, ET AL.

Court: TN Court of Appeals

Attorneys:

Griffin S. Dunham, Nashville, Tennessee, for the Appellant, Coinmach Corporation.

Russell B. Morgan and Frankie N. Spero, Nashville, Tennessee, for the Appellees, Laundries, Inc., Carla Moyer, Sheri Cotham, and Christi Cotham.

Judge: DINKINS

Plaintiff filed an action to recover $150,000 due on a promissory note executed in conjunction with the purchase of its assets. Defendant admitted that it had not paid the full amount of the promissory note but denied that the amount was due, and asserted a counterclaim contending, inter alia, that the plaintiff had breached the asset purchase agreement, committed misrepresentation and not disclosed material facts with respect to the transaction, had fraudulently induced defendant to close on the transaction, and that plaintiff had been unjustly enriched. Plaintiff filed a motion for dismissal and for judgment on the pleadings, which the trial court granted. Defendant appeals. Finding that the causes of actions asserted in defendant’s counterclaim failed to state a claim for relief, we affirm the dismissal of the counterclaim. We reverse the grant of the motion for judgment on the pleadings and remand the case for further proceedings.


TN Court of Criminal Appeals

JAMES WESLEY OSBORNE V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

S. Joanne Sheldon, Newport, Tennessee, for the appellant, James Wesley Osborne.

Robert E. Cooper, Jr., Attorney General & Reporter; Meredith DeVault, Senior Counsel; James Bruce Dunn, District Attorney General; Charles L. Murphy, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: BIVINS

James Wesley Osborne (“the Petitioner”) filed a “petition for delayed post-conviction relief” on August 12, 2008, regarding his October 1999 conviction of first degree murder. A hearing was held to determine if the Petitioner was entitled to have the applicable statute of limitations tolled. The post-conviction court determined that he was not and dismissed the petition as untimely. This appeal followed. Upon our careful review of the record, we affirm the judgment of the post-conviction court.


Court: Defendants Have Right to Counsel in Plea Bargains

For the first time, the U.S. Supreme Court has ruled that defendants have a constitutional right to effective assistance of counsel in plea bargains. Its 5-4 decision today also declared that when a lawyer acts unethically or gives clearly wrong advice, the defendant may be entitled to a second chance at accepting a plea offer. Writing on behalf of the majority, Justice Anthony Kennedy argued that since 99 percent of all convictions are the result of plea bargains, not trials, the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the central role plea bargaining plays. NPR has this analysis


West Tenn. Bankruptcy Judge Retires

U.S. Bankruptcy Court Judge G. Harvey Boswell — the only bankruptcy judge in Jackson — will retire July 8, but because of stalled legislation in Congress, it appears his position will not be filled before he departs. David Kennedy, chief bankruptcy judge for the U.S. Bankruptcy Court of West Tennessee, said some of the bankruptcy judges in Memphis will likely travel to Jackson to hear cases until a replacement is named. In related news, Judge George Emerson Jr. recently was appointed to succeed Boswell on the 6th Circuit Bankruptcy Appellate Panel. Emerson will continue to serve as a trial bankruptcy judge in Memphis, in addition to reviewing decisions of bankruptcy judges from other judicial districts in the Sixth Circuit. The Memphis Daily News has more


County Evicts Occupiers from Courthouse

A large contingent of officers from the Hamilton County Sheriff's Office moved against the longtime occupiers of the county courthouse lawn on Monday afternoon, hauling off a dozen or so tents. The county commission earlier had gone to court to seek a ruling evicting the protestors. But there had not yet been a ruling, and the county on Monday asked that the lawsuit be withdrawn "in light of changed circumstances rendering the petition moot." Chattanoogan.com reports


Germantown Eyes 3 for City Prosecutor

The Germantown Board of Mayor and Aldermen will consider three recommendations from City Attorney Tom Cates to replace former senior prosecutor Joe Lee Wyatt, who resigned earlier this month after being charged with driving under the influence and refusing to submit to a breath or blood alcohol test. Of eight applicants, Cates has placed Christopher Nearn, Jennifer Nichols and Charles Bell Jr. on his short list. Nichols and Bell work in the Shelby County District Attorney General's Office. Nearn is a Collierville prosecutor who previously served as prosecutor in Bartlett City for nine years. He focuses on litigation, family, insurance, personal injury and mediation in private practice at Waldrop, Barnett, Lazarov & Nearn PC. Learn more about the candidates in The Commercial Appeal


County Courtroom to Undergo Renovation

Workers will begin the process of renovating the main courtroom of the Carter County Courthouse on April 16. Work is scheduled to continue through April 21. The project will include new carpeting in the courtroom, the judge’s chamber and jury room, and new seating in the spectator's section. Learn more in the Elizabethton Star


Special Health Care Edition of Court Magazine Available

The American Bar Association has published a special edition of its magazine "Preview of United States Supreme Court Cases" devoted entirely to the challenges to the Patient Protection and Affordable Coverage Act. The association reports that the publication "drills down into the nuts and bolts of the health-care cases" and includes a primer on the history of the health-care system as well as background on the legal teams making the arguments and experts' predictions on how the cases will play out. The publication, priced at $10, is available for order online or by phone at (800) 285-2221.


Lollar to Replace Hawk as Committee Chair

Tennessee House Speaker Beth Harwell announced today that Rep. Ron Lollar, R-Bartlett, will take over as chair of the House Conservation and Environment Committee following the decision by Rep. David Hawk, R-Greeneville, to step down from the post to focus on defending himself against charges of domestic abuse. In a statement Hawk said, "Proving my innocence will take much of my focus, so I feel relinquishing my chairmanship will best serve these goals." Because the committee plans to wrap up its work for the year in a few weeks, the speaker opted to not appoint an official replacement. Lollar is currently the committee's vice chair. TN Report has more


Subcommittee Approves Inheritance Tax Bill

In a last-minute move today, Republican legislators took a big step toward fully repealing Tennessee's inheritance tax  when the House Finance Subcommittee voted by unanimous voice vote to increase the exemption on the tax from $1 million to $1.25 million. But rather than increase the exemption over one year, as originally proposed, legislators opted for a multi-year approach, phasing in the full increase through 2016. The Nashville Business Journal reports


Dean, Thompson to Talk About Upcoming Election at U of M

The University of Memphis Student Government Association will host former presidential candidates Howard Dean and Fred Thompson to discuss the upcoming election and other political issues at 7 p.m.  Tuesday  in the Michael D. Rose Theatre. The public is invited to the free event. Learn more


Knoxville Firm Seeking Associate Attorney

The Knoxville firm of Frantz, McConnell, & Seymour LLP is seeking an associate attorney with one to five years experience in civil litigation. Contact Jennifer Crabtree at (865) 546-9321 or jcrabtree@fmsllp.com with resumes and references. Learn more or apply directly at JobLink


 
 

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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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