TBA files comment on proposed lawyer assistance rules

The TBA today filed a comment with the Tennessee Supreme Court supporting, with a few modifications, the joint effort of the Board of Professional Responsibility (BPR) and the Tennessee Lawyer Assistance Program (TLAP) to consolidate and reorganize the rules dealing with lawyer assistance.

The proposed amendments, put out for comment on Dec. 2, formalize the process of referring lawyers from the BPR to TLAP and integrate local lawyer assistance programs with the state program. The TBA comments are aimed at strengthening immunity and confidentiality for local bar programs and enhancing due process protections for lawyers referred to TLAP. The comment was recommended on an expedited basis by the TBA Ethics and Professional Responsibility Committee and the Executive Committee after the association learned on Jan. 26 that the deadline for filing comments would be Feb. 8. A copy of the comment, which has been served an all interested bar groups can be found at:

http://www.tba2.org/tbatoday/news/2006/TLAPcomment_020706.pdf

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

ALTON BOWMAN v. CHARLES WAGGONER, ET AL.

Court: TCA

Attorneys:

Jacky O. Bellar and Jamie D. Winkler, Carthage, Tennessee, for the appellant, Alton Bowman.

David Bass, Carthage, Tennessee, for the appellees, Charles Waggoner, Tim Tisdale, Lee Davis, and Smith County Motor Company, Inc.

Judge: CLEMENT

This is an action by Alton Bowman seeking damages against Smith County Motor Company, Inc. arising from the purchase of two vehicles. Bowman claims damages based on alleged misrepresentations and fraud concerning his intent to purchase disability insurance when he purchased the vehicles. He contends he requested both disability and life insurance when he purchased the vehicles from the dealership, however, only life insurance was provided and the contracts executed by the parties at the time of the sale clearly evidence only life insurance was provided. Bowman suffered a stroke subsequently and when he attempted to file a claim for disability coverage he was notified he did not purchase disability insurance. Bowman filed suit seeking damages in the amount of the balance owing on the vehicles. The case went to trial and at the close of Bowmanís proof, the dealership moved for a directed verdict on all issues, which the trial court granted. On appeal, Bowman contends the trial court erred by granting a directed verdict and by failing to grant a voluntary non-suit as to the issue of negligent misrepresentation. Finding there is no material evidence to support a verdict for Bowman, we affirm the grant of directed verdict. We also find that Bowman did not comply with Tenn. R. Civ. P. 41.01(1) by providing an unequivocal notice of dismissal in open court and, thus, affirm on this issue as well.

http://www.tba2.org/tba_files/TCA/2006/bowmana020706.pdf


IN THE MATTER OF DESHUNDRA YVONNE HUNT
SHELLY BRYANT v. JUAN HUNT


Court: TCA

Attorneys:

Jeanie M. Todd, Jackson, TN, for Appellant

Bob C. Hooper, Jackson, TN, for Appellee

Judge: HIGHERS

This appeal stems from a custody dispute between a mother and father over their minor daughter. In this appeal, we are asked to determine whether the circuit court erred when it dismissed the appeal of two juvenile court orders denying the motherís petition for permanent custody and the motherís amended petition to reconsider. The mother argues that both orders were related to an original dependency and neglect proceeding that transferred custody of her minor daughter from her to the daughterís father. The circuit court found that both orders were not related to the dependency and neglect proceedings and dismissed the motherís appeal. Also on appeal, the mother asserts that the circuit court erred when it dismissed her appeal of the order regarding the original dependency and neglect proceedings as not being timely filed. The mother has also requested that this Court vacate the original order regarding the dependency and neglect proceedings because of several due process violations that occurred during the hearing. We dismiss the appeal of the issue requesting that we vacate the original order from the dependency and neglect proceedings and affirm the portion of the circuit courtís order dismissing the appeal of the order stemming from the original dependency and neglect proceedings. We vacate portion of the order dismissing the appeal of the two juvenile court orders filed September 24, 2004 and remand to the trial court for the entry of an order transferring the appeal of the two orders to the Court of Appeals for processing and disposition.

http://www.tba2.org/tba_files/TCA/2006/huntd020706.pdf


CITY OF NEW JOHNSONVILLE v. KEVIN E. HANDLEY, ET AL.
and GENE PLANT, ET AL. v. KEVIN E. HANDLEY, ET AL.


Court: TCA

Attorneys:

R. Eric Thornton, Dickson, TN, for Appellants

T. Holland McKinnie, City Attorney, Franklin, TN; Michael R. Hill, Milan, TN, for Appellee, City of New Johnsonville, TN

Judge: HIGHERS

This appeal involves protracted litigation over a parcel of land conveyed by the City of New Johnsonville, Tennessee, to a member of the New Johnsonville City Council. The mayor, on behalf of the city, subsequently filed suit against the councilman seeking to nullify the transaction. During the pendency of that litigation, several taxpayers filed their own suit against the councilman alleging the same causes of action set forth in the cityís complaint. The city and the councilman ultimately settled their lawsuit. The taxpayersí lawsuit continued, ultimately naming the city as a defendant. The trial court partially granted the defendantsí motions for summary judgment by ruling that the taxpayers did not have standing to contest the land transaction between the city and the councilman. The court ruled that the taxpayers did have standing to continue with their other causes of action concerning allegations that the councilman engaged in illegal business transactions with the city. The taxpayers subsequently took a voluntary nonsuit on their remaining claims and filed an appeal to this Court to contest the trial courtís grant of summary judgment on their claim regarding the land transaction. We vacate the trial courtís decision regarding the land transaction, and we remand for further proceedings not inconsistent with this opinion.

http://www.tba2.org/tba_files/TCA/2006/newjohnsonville020706.pdf


CONNIE J. OTTINGER v. PATRICIA E. STOOKSBURY

Court: TCA

Attorneys:

Charles W. Van Beke and Mark N. Foster, Knoxville, Tennessee for the Appellant, Patricia E. Stooksbury.

Arthur F. Knight, III, Knoxville, Tennessee for the Appellee, Connie J. Ottinger.

Judge: SWINEY

Connie J. Ottinger (Plaintiff) sued Patricia E. Stooksbury (Defendant) seeking, among other things, to quiet title to a thirty foot easement. Defendant answered the complaint and filed a counter- claim asserting, in part, that her right to use the easement is exclusive and that Plaintiff has no right to use the easement. The case was tried without a jury and the Trial Court entered a final order holding, inter alia, that Defendant is permanently enjoined from interfering with Plaintiffís right to use the easement located on Plaintiffís property. Defendant appeals claiming that the Trial Court erred by considering parol evidence and by requiring Defendant to prove her case by clear evidence. Defendant also argues that the evidence preponderates against the Trial Courtís finding that the original grantors did not intend to create an exclusive easement in favor of Defendant. We affirm.

http://www.tba2.org/tba_files/TCA/2006/ottingerc020706.pdf


SREE, ET AL. v. JACQUBHAI CHAMPANERIA

Court: TCA

Attorneys:

Phillilp Leon Davidson, Nashville, Tennessee, for the appellant, SREE.

David B. Herbert, Julie Bhattacharya Peak, Nashville, Tennessee, for the appellee, Jacqubhai Champaneria.

Judge: CAIN

The plaintiffs appeal the action of the trial court in granting Defendantís Motion for Summary Judgment on the basis of res judicata. Specifically, Plaintiffs complain of the action of the trial court in allowing Defendant to belatedly amend his answer in order to assert res judicata as a defense. Plaintiffs sought attorneyís fees which the trial court denied. We affirm the action of the trial court.

http://www.tba2.org/tba_files/TCA/2006/sree020706.pdf


CATHY LEE BARNES WILLIAMS v. RODNEY LEE WILLIAMS

Court: TCA

Attorneys:

Tyree B. Harris, Alfred H. Knight, Nashville, Tennessee, for the appellant, Cathy Lee Williams.

Phillip Robinson, Philip E. Smith, Nashville, Tennessee, for the appellee, Rodney Lee Williams.

Judge: CAIN

Former wife, Cathy Williams, appeals the action of the trial court in reducing the alimony in futuro obligation of former husband, Rodney Williams, from $4,000 per month to $2,000 per month based on a finding that a substantial and material change in circumstances sufficient to justify the decrease had occurred. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2006/williamsc020706.pdf


SHAWN DONZELL ANGLIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Shawn Donzell Anglin.

Paul G. Summers, Attorney General and Reporter; Jane L. Beebe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

This is an appeal from the denial of post-conviction relief. The Petitioner, Shawn Donzell Anglin, pled guilty to and was convicted of facilitation of possession for resale of more than 0.5 grams of cocaine. Pursuant to a plea agreement, the Petitioner was sentenced to ten years to be served in Community Corrections and was fined $2,000. The Petitioner filed for and was denied post- conviction relief. The Petitioner now appeals the trial courtís order denying post-conviction relief, claiming his trial counsel provided ineffective assistance of counsel which resulted in an involuntary guilty plea. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/anglins020706.pdf


STEVE E. HOUSTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steve E. Houston, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Steve E. Houston, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the Court affirm the trial courtís denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the Stateís motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2006/houstons020706.pdf


THOMAS POSTON STUDDARD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jim W. Horner, District Public Defender, and H. Tod Taylor, Assistant District Public Defender, for the appellant, Thomas Poston Studdard.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

This case is before us after remand by the Tennessee Supreme Court. The defendant, who was indicted on three counts of rape of a child, a Class A felony, pled guilty to one count of incest, a Class C felony, in exchange for a negotiated eight-year sentence as a Range II, multiple offender. On direct appeal, this court originally vacated the judgment of conviction on the grounds that incest is not a lesser-included offense of rape, without reaching the merits of the defendantís sentencing issues. Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn. Crim. App. Feb. 27, 2004), perm. to appeal granted (Tenn. Sept. 7, 2004). Our supreme court, however, concluded that the trial court had jurisdiction to accept the defendantís guilty plea and remanded the case to this court for consideration of the defendantís sentencing issues. Studdard v. State, __ S.W.3d __, 2005 WL 3192279 (Tenn. 2005). Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/studdardt020706.pdf


STATE OF TENNESSEE v. LETONIO SWADER

Court: TCCA

Attorneys:

Gerald L. Melton and Russell N. Perkins, Murfreesboro, Tennessee, for the appellant, Letonio Swader.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Rutherford County Circuit Court jury convicted the appellant, Letonio Swader, of first degree felony murder, second degree murder, attempted especially aggravated robbery, and possession of a deadly weapon during the commission of an offense. The trial court merged the murder convictions and sentenced the appellant to life. The trial court also sentenced the appellant to ten years for the attempted especially aggravated robbery conviction and two years for the possession of a weapon conviction. The trial court ordered the appellant to serve the life and ten-year sentences concurrently and ordered that the two-year sentence be served consecutively to the other two sentences. On appeal, the appellant claims (1) that the State committed reversible error by telling potential jurors during voir dire that the punishment for first degree murder in this case was life with the possibility of parole, (2) that the trial court erred by failing to suppress his statement to police, and (3) that the evidence is insufficient to support the convictions because there is no evidence to corroborate his statement to police that he intended to rob someone. Upon review of the record and the partiesí briefs, we conclude that the Stateís comments during voir dire were improper but harmless error and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/swaderl020706.pdf


Aggregate Contribution Limits and Disclosure Requirements under Proposed Ethics Bill

TN Attorney General Opinions

Date: 2006-02-07

Opinion Number: 06-024

http://www.tba2.org/tba_files/AG/2006/ag_06-24.pdf

Lobbyist Campaign Donations

TN Attorney General Opinions

Date: 2006-02-07

Opinion Number: 06-025

http://www.tba2.org/tba_files/AG/2006/ag_06-25.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
Judge Slone runs for re-election
Duane Slone of New Market, Circuit Court Judge in the 4th Judicial District, has qualified to seek re-election for the upcoming term, which will begin Sept. 1. Read about the judgeís view of the court and his role in a
Mountain Press article
Judge Clement named to NSL board
Court of Appeals Judge Frank G. Clement Jr. has joined the Nashville School of Law Board of Trust. A 1979 graduate of the law school, Clement is the newest member named to the board.

Chattanooga Bar names new leadership
The Chattanooga Bar Association (CBA) recently elected new leadership. Joe R. White of Spears Moor Rebman & Williams steps into the position of president, taking over for Michael K. Alston of Husch & Eppenberger. James M. Haley IV of Miller & Martin assumes the office of vice president. Cynthia Dell Hall of Shumacker Witt Gaither & Whitaker takes over as secretary/treasurer. Board members are: Chancellor W. Frank Brown III; David M. Elliott of Grant, Konvalinka & Harrison PC; Circuit Court Judge Jacqueline Schulten; Christopher T. Varner of Gearhiser, Peters, Lockaby, Cavett & Elliott PLLC; E. Joseph Warwick of the McMahan Law Firm; and Lynda Minks Hood, executive director of the CBA.

New CLE Commission officers
The CLE Commission has named its new officers for 2006. John A. Day of Nashvilleís Branham & Day will chair the commission, while Dr. Deborah Joyner, Ph.D. of Mountain Home will serve as vice chair.

TN Supreme Court to weigh prisoner DNA bank
The Tennessee Supreme Court is weighing the constitutionality of a state law allowing DNA from prison inmates to be stored in a database that could link them to additional crimes. Read more in a story by the
Tennessean
Memphis IP forum announced
The Memphis law firm of Butler, Snow, O'Mara, Stevens & Cannada PLLC and the American Bar Associationís Intellectual Property Litigation Subcommittee will sponsor a free forum on theories and tactics for IP plaintiff and defense lawyers at noon on Thursday. Butler Snow attorney Grady M. Garrison will moderate the event, which will be held at the firm. To register call Sheila at (901) 680-7226.

Legislative News
State of the State address tonight
Governor Phil Bredesen will present his 2006 State of the State Address to the 104th General Assembly as they convene in the State House Chambers at 6 p.m. CST tonight. The speech will kick off the new legislative session, which begins now that the special ethics session has been completed. Both the House and Senate passed a final reform bill last night and Bredesen is expected to sign it this week.
Watch a live webcast
Additional illegal votes possible in Ford probe
Senate majority leader Ron Ramsey said yesterday that he received details on 13 people who voted in the election of Ophelia Ford but do not live in her district. Based on a ruling by U.S. District Court Judge Bernice Donald, Ramsey said the Senate would hold a hearing on these allegations, possibly as early as next week, before making a decision on the validity of the election. Read more in a
Commercial Appeal report
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.


 
 
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