Fee dispute arbitration published for comment

The Tennessee Supreme Court today published for comment a proposed new rule requiring lawyers to participate in a fee dispute resolution arbitration program. The rule "closely follows the concept of the TBA proposal submitted a year and a half ago," according to TBA Immediate Past President Charles Swanson, who headed the court-appointed group that reviewed the proposal. Clients could begin the process by filing a petition that would stay any court action to collect a fee. A Fee Dispute Resolution Commission, financed by filing fees, would appoint arbitrators to hear cases. Client consent would be required to bind clients, but initial fee agreements could include client consent to submit to the process. Read the proposal.


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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TWCA


Jennifer L. Williams, Nashville, Tennessee, for appellants, Mid-South Uniform Service, Inc., and Zenith Insurance Company.

Russell D. Hedges, Tullahoma, Tennessee, for appellee, Johnny Collins.

Judge: INMAN

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff Johnny Collins (Employee) filed two complaints, one for a shoulder injury and the second for bilateral carpal tunnel syndrome. The complaints were consolidated for trial by agreement. The trial court awarded Employee 200 weeks of compensation for the shoulder injury and 200 weeks of compensation for the bilateral carpal tunnel syndrome. Defendants Mid- South Uniform Service, Inc., and Zenith Insurance Company (collectively Employer) appeal. We modify Employee's award for the shoulder injury to 60 weeks of compensation. We affirm Employee's award for the bilateral carpal tunnel syndrome.



Court: TCA


Denty Cheatham, Nashville, Tennessee, for the appellant, Margaret Akins.

Darrell G. Townsend, Nashville, Tennessee, for the appellees, Beth Edmondson and Gullett, Sanford, Robinson & Martin, PLLC.


This is an action by a non-client of a law firm, contending she sustained pecuniary damages due to the acts and omissions of the law firm. The non-client, Margaret Akins, served as the attorney-in-fact for an aged, blind and infirm lady, Josephine Notgrass. In her capacity as attorney-in-fact, Ms. Akins engaged an accounting firm to render professional services for Ms. Notgrass, including tax services and estate planning. The accounting firm recommended the creation of a limited partnership as a vehicle for annual gifting, which the client approved; whereupon the accounting firm engaged the law firm to prepare a limited partnership agreement. Preparation of the partnership agreement was the only service for which the law firm was engaged, and the law firm had no communication or consultation with the client, Ms. Notgrass, or her attorney-in-fact, Ms. Akins. All communications went through the accounting firm. Ms. Notgrass died soon after the partnership agreement was executed, and only one annual gift had been perfected at the time of her death. Contending the inheritance she expected was substantially diminished by the law firm's failure to suggest amending the will after the creation of the limited partnership, Ms. Akins brought this action. The trial court summarily dismissed the complaint finding Ms. Akins was not a client of the law firm and the firm owed no duty to Ms. Akins. We affirm in all respects.



Court: TCA


Michael D. Sontag and Bryan W. Metcalf, Nashville, Tennessee, for the appellant, Arco Building Systems, Inc.

Paul G. Summers, Attorney General and Reporter, and Jimmy G. Creecy, Chief Special Counsel, for the appellee, Loren L. Chumley, Commissioner of Revenue for the State of Tennessee.

Judge: KOCH

This appeal involves the constitutionality of a sales and use tax assessment against an out-of-state seller of pre-engineered metal buildings. After conducting an audit, the Tennessee Department of Revenue assessed the seller $652,369.68 in uncollected sales and use taxes, penalties, and interest. The seller filed suit in the Chancery Court for Davidson County challenging the assessment on the grounds that it violated the Commerce Clause and the Due Process Clause of the Fourteenth Amendment because it did not have a sufficient connection with Tennessee to justify Tennessee's exercise of its taxing authority. Both parties filed motions for summary judgment, and the trial court upheld the assessment. The seller has appealed. We have determined that the seller's extensive connections with Tennessee are sufficient to provide the constitutional nexus required to support the imposition of tax collection liability on the seller.



Court: TCA


Michael A. Anderson, Chattanooga, Tennessee, for appellant.

John P. Konvalinka, Chattanooga, Tennessee, for appellee.


Plaintiff brought an action in the Chancery Court to pierce the corporate veil to reach assets of a member to satisfy a judgment against the corporation. The Chancellor refused the request and dismissed the action. On appeal, we affirm.



Court: TCA


R. Stephen Doughty, Nashville, Tennessee, for the appellant, Lynda Grisham.

C.J. Gideon, Clare T. Smith, and Kenneth P. Flood, Nashville, Tennessee, for the appellees, Steven G. McLaughlin and Premier Orthopaedic & Sports Medicine, PLC.

Judge: KOCH

This appeal involves a medical malpractice action arising from knee replacement surgery. The patient filed suit against her surgeon in the Circuit Court for Davidson County in August 2003. Approximately four months later, the surgeon filed a motion for summary judgment supported by his own affidavit. The patient requested a continuance of the hearing on the summary judgment motion to depose the surgeon. The surgeon renewed his summary judgment motion on the day after his deposition. Prior to the hearing, the patient requested another continuance because the surgeon's deposition had not yet been signed and because the patient's expert had not yet had an opportunity to review the deposition. The trial court declined to grant the continuance. The court also granted the surgeon's summary judgment motion after concluding that there were no material factual disputes because the patient had failed to present an expert affidavit contradicting the surgeon's affidavit. The patient filed a Tenn. R. Civ. P. 59.04 motion accompanied by an affidavit opposing the summary judgment motion. After the trial court denied that motion, the patient appealed. We have determined that the summary judgment must be vacated because, under the facts of this case, the patient was not provided an adequate opportunity to respond to the surgeon's summary judgment motion.



Court: TCA


Edward Kershaw, Greeneville, Tennessee, for the appellant Kenneth Hodson.

Karla Griffin, Morristown, Tennessee, appearing Pro Se.

Judge: LEE

In this custody case, Father argues that the trial court erred in awarding Mother primary parental responsibility of the parties' minor child. Father contends that the trial court's decision was based on the "tender years doctrine," which presumed that a child of a very young age should be placed with its mother. Father notes that the "tender years doctrine" is no longer applicable in Tennessee and contends that, because of her efforts to thwart his relationship with the child, Mother should not have been awarded primary parenting responsibility. We determine that there is no evidence that the trial court applied the "tender years doctrine" in this case. We further determine that the evidence does not preponderate against the trial court's finding that Mother has repented of her prior attempts to interfere with the relationship between Father and the child, and we find that the evidence otherwise supports the trial court's award of primary parental responsibility to Mother. Accordingly, we affirm the judgment of the trial court.



Court: TCA


Marc E. Reisman, Memphis, Tennessee and Leslie G. Coleman, Memphis, Tennessee, for the appellant, Timothy Lapleau McIntire.

George Lawrence Rice, III, and Laura Diane Rogers, Memphis, Tennessee, for the appellee, Mary Ellen Hall McIntire.


The trial court granted Mother's petition in objection to Father's proposed relocation of the parties' minor children and amended parenting plan to award custody to Mother; ordered Father to repay prepaid child support to Mother; set Father's child support obligation based on his current income; ordered Father to refund sums to the children's accounts; awarded Mother the parties' timeshare property; and ordered Father to pay $30,000 of Mother's attorney's fees. We affirm in part, modify in part, reverse in part, and remand.



Court: TCA


Phillip R. Robinson and James C. Bradshaw, III, Nashville, Tennessee, for the appellant, David Vincent Ashby.

Michael W. Binkley, Nashville, Tennessee, for the appellees, Steven Scott Means and Cheryl Lynn Means.

Brenda Clark, Nashville, Tennessee for the appellee, Tawni Anne Means Ashby (Little).


This is the second appeal of a protracted custody dispute among the parents and an aunt and uncle of a minor child. The aunt and uncle have had legal custody since 1997. This action commenced in 2000, when the aunt and uncle filed a petition to terminate the parental rights of the parents and the parents filed counter-petitions for custody. In 2002, the trial court dismissed the petition to terminate and custody remained with the aunt and uncle. On appeal this Court affirmed the dismissal of the petition to terminate but vacated the custody determination due to the application of an incorrect legal standard. The case was remanded for the trial court to determine the legal effect of the 1997 custody order on the pending custody claims. The record in this second appeal tells us the trial court failed to determine on remand the effect of the 1997 custody order. Having determined the record is inadequate for this Court to make the determination, we have no option but to vacate the judgment of the trial court and remand this matter once again.



Court: TCA


Robert P. Rayburn, Chattanooga, Tennessee for the Appellant, Randy E. Simpson.

Michael A. Anderson, Chattanooga, Tennessee for the Appellee, Bluecross Blueshield of Tennessee, Inc.


As a result of an automobile accident, Randy E. Simpson (Plaintiff) sued John Doe, an unknown/unidentified driver. BlueCross BlueShield of Tennessee, Inc. (BlueCross/BlueShield) sought and was granted leave to intervene in the suit to protect its subrogation and right of reimbursement claims. Plaintiff and his uninsured motorist carrier agreed to settle Plaintiff's case and the Trial Court entered an order dismissing all claims with the exception of BlueCross/BlueShield's subrogation claims. BlueCross/BlueShield then filed a motion for summary judgment, which the Trial Court granted. Plaintiff appeals to this Court. We find that there are genuine issues of material fact with regard to whether Plaintiff was made whole by the settlement, and we reverse the grant of summary judgment.



Court: TCA


Princess Walker Mirabal, Pro Se.

Lanis L. Karnes, Jackson, Tennessee, for the appellee, Rickey L. Coleman.


The trial court denied continuance, awarded custody of the parties' child to Father, and refused to grant Mother visitation until she completed a psychological evaluation and petitioned the court. Mother appeals, asserting the trial court erred by denying a continuance and by refusing to award her visitation rights. We affirm the denial of a continuance, but reverse the denial of visitation and remand to the trial court to set visitation.



Court: TCCA


Tony L. Maples and Allen Hale (at trial), Murfreesboro, Tennessee, for the appellant, Jonathan B. Dunn.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.


After the Bedford County Juvenile Court transferred the defendant to the Bedford County Circuit Court for trial, the defendant pled guilty to one count of aggravated assault, a Class C felony, and one count of reckless endangerment with a deadly weapon, a Class E felony. The trial court sentenced the defendant to concurrent terms of four years for the assault and one year for the reckless endangerment, ordering the defendant to serve one year in confinement before being released on supervised probation. On appeal, the defendant contends the trial court erred (1) in applying enhancement factors to increase the length of his assault sentence, (2) in denying full probation, and (3) in denying judicial diversion. Concluding the trial court erred in sentencing, upon de novo review, we sentence the defendant to three years incarceration with nine months to be served in confinement before release on supervised probation. We affirm the trial court's denial of judicial diversion.



Court: TCCA


William C. Talman, Knoxville, Tennessee, for the appellant, Kelly Humphrey, alias.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Phillip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Kelly Humphrey, pled guilty in the Knox County Criminal Court to sexual battery by an authority figure and statutory rape, and he received a total effective sentence of three years with the trial court to determine the manner of service. At the sentencing hearing, the trial court denied the appellant's request for alternative sentencing, which denial the appellant appeals. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.



Court: TCCA


Jeffrey S. Burton, Assistant Public Defender, for the appellant, Terry V. Johnson.

Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch and Thomas S. Santel, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Terry V. Johnson, was convicted of the sale of less than .5 grams of cocaine. See Tenn. Code Ann. Section 39-17-417(a)(3) (2003). The trial court sentenced the defendant, a career offender, to fifteen years in the Department of Correction. In this appeal, the defendant asserts that the evidence was insufficient to support his conviction. The judgment of the trial court is affirmed.



Court: TCCA


Amber D. Haas, Sevierville, Tennessee, for the appellant, James Wesley Nuchols, IV.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Al C. Schmutzer Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, James Wesley Nuchols, IV, pled guilty in the Sevier County Circuit Court to aggravated robbery and contributing to the delinquency of a minor, with the length of the sentences and the manner of service to be determined by the trial court. After a sentencing hearing, the trial court sentenced the appellant to concurrent sentences of eight years for aggravated robbery and eleven months, twenty-nine days for contributing to the delinquency of a minor. On appeal, the appellant claims that the trial court erred by refusing to impose an alternative sentence such as split confinement or probation. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.


Constitutionality of Governor's Authority to Transfer Functions Between Departments

TN Attorney General Opinions

Date: 2006-06-08

Opinion Number: 06-099



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