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
JOHNNY COLLINS v. MID-SOUTH UNIFORM SERVICE, INC., ET AL.
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.
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.
MARGARET AKINS v. L. JOE EDMONDSON, ET AL.
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.
ARCO BUILDING SYSTEMS, INC. v. LOREN L. CHUMLEY ET AL.
Michael D. Sontag and Bryan W. Metcalf, Nashville, Tennessee, for the appellant, Arco Building
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.
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.
DAVID CANTER v. RICHARD EBERSOLE
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.
LYNDA GRISHAM v. STEVEN G. McLAUGHLIN ET AL.
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.
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
KENNETH HODSON v. KARLA GRIFFIN
Edward Kershaw, Greeneville, Tennessee, for the appellant Kenneth Hodson.
Karla Griffin, Morristown, Tennessee, appearing Pro Se.
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.
MARY ELLEN HALL MCINTIRE v. TIMOTHY LAPLEAU MCINTIRE
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.
STEVEN SCOTT MEANS, ET AL. v. DAVID VINCENT ASHBY, ET AL.
Phillip R. Robinson and James C. Bradshaw, III, Nashville, Tennessee, for the appellant, David
Michael W. Binkley, Nashville, Tennessee, for the appellees, Steven Scott Means and Cheryl Lynn
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.
RANDY E. SIMPSON v. JOHN DOE, AN UNKNOWN/UNIDENTIFIED DRIVER
Robert P. Rayburn, Chattanooga, Tennessee for the Appellant, Randy E. Simpson.
Michael A. Anderson, Chattanooga, Tennessee for the Appellee, Bluecross Blueshield of
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.
IN THE MATTER OF: Z.A.W.
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.
STATE OF TENNESSEE v. JONATHAN B. DUNN
Tony L. Maples and Allen Hale (at trial), Murfreesboro, Tennessee, for the appellant, Jonathan B.
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
STATE OF TENNESSEE v. KELLY HUMPHREY, ALIAS
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.
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.
STATE OF TENNESSEE v. TERRY V. JOHNSON
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.
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.
STATE OF TENNESSEE v. JAMES WESLEY NUCHOLS, IV
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.
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
Opinion Number: 06-099
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