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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
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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, 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 http://www.tba.org/getpassword.mgi.
00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
04 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
TBA members can get the full-text versions of these opinions three ways detailed below.
All methods require a TBA username and password. If you have forgotten your password or need to obtain a password,
you can look it up on-line at http://www.tba.org/getpassword.mgi
Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then
open them from there. 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. 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. Browse the Opinion List area of TBALink.
This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
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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 Bowman’s 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 mother’s petition for permanent custody and the mother’s
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
daughter’s father. The circuit court found that both orders were not related to the dependency and
neglect proceedings and dismissed the mother’s 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 court’s 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 city’s complaint. The city and
the councilman ultimately settled their lawsuit. The taxpayers’ lawsuit continued, ultimately
naming the city as a defendant. The trial court partially granted the defendants’ 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
court’s grant of summary judgment on their claim regarding the land transaction. We vacate the
trial court’s 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 Plaintiff’s right to
use the easement located on Plaintiff’s 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 Court’s 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 Defendant’s 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 attorney’s 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 court’s 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 court’s denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State’s 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 defendant’s 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 defendant’s guilty plea and
remanded the case to this court for consideration of the defendant’s 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 parties’ briefs, we conclude that the State’s 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
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| TODAY'S NEWS |
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Legal News
Legislative News
TBA Member Services
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| 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 judge’s view of the court and his role in a |
Mountain Press article
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| 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. |
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| 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. |
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| New CLE Commission officers |
| The CLE Commission has named its new officers for 2006. John A. Day of Nashville’s Branham & Day will chair the commission, while Dr. Deborah Joyner, Ph.D. of Mountain Home will serve as vice chair. |
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| 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
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| Memphis IP forum announced |
| The Memphis law firm of Butler, Snow, O'Mara, Stevens & Cannada PLLC and the American Bar Association’s 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. |
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| 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
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| 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
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Commercial Appeal report
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| 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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