Beat the May 31 CLE compliance deadline; avoid late fee

If you still need CLE hours to complete your 2006 requirements, the TBA's TennBarU is ready to help. Along with the Tennessee Lien Law Update on Monday and the YLD Ethics Forum Wednesday, TennBarU has a full slate of online courses for you to take. See a full schedule in our course catalog.

https://www.tnbaru.com/CLE/index.php

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
08 - TN Court of Appeals
01 - TN Court of Criminal Appeals
01 - 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

STEVE BIGGERS v. TRANSPORT SERVICES, INC.

Court: TCA

Attorneys:

Lorraine Wade, Nashville, Tennessee, for the appellant, Steve Biggers.

Mark North, Madison, Tennessee, for the appellee, Transport Services, Inc.

Judge: KOCH

This appeal involves the termination of an independent contractor's contract to provide courier services. The independent contractor filed suit in the Circuit Court for Davidson County alleging that the employer did not have just cause to terminate the contract. After the trial court set aside a default judgment for the independent contractor, the employer filed an answer and a motion for summary judgment. Following a hearing, the trial court granted a summary judgment for the employer after concluding that the undisputed facts demonstrated that the employer had just cause to terminate the independent contractor. On this appeal, the independent contractor insists that the trial court erred by setting aside the default judgment and by determining that the employer was entitled to a judgment as a matter of law. We have determined that the undisputed facts support the trial court's conclusion that the employer was entitled to a judgment as a matter of law.

http://www.tba2.org/tba_files/TCA/2007/biggerss_051707.pdf


JAMES DAVID GAMBLE v. SUSAN MARIE GAMBLE

Court: TCA

Attorneys:

Karla C. Hewitt, Nashville, Tennessee, for the appellant, James David Gamble.

Russ Heldman, Nashville, Tennessee, and Kamie L. Hefner, Brentwood, Tennessee, for the appellee, Susan Marie Gamble.

Judge: KOCH

This appeal involves a dispute over spousal support following the dissolution of a 24-year marriage. The Chancery Court for Williamson County granted the wife a divorce on the ground of inappropriate marital conduct and awarded her $2,500 per month in alimony in futuro. The husband takes issue on this appeal with the trial court's decision to award the wife alimony in futuro rather than rehabilitative alimony and with the amount of the alimony. We have determined that the trial court's decision with regard to spousal support is supported by the record and that the wife is entitled to an additional award for the reasonable and necessary legal expenses she has incurred on appeal.

http://www.tba2.org/tba_files/TCA/2007/gamblej_051707.pdf


SHARON HUNT MATLOCK v. CLAUDE MARK MATLOCK

Court: TCA

Attorneys:

Penny Harrington, Nashville, Tennessee, for the appellant, Sharon Hunt Matlock.

David D. Wolfe, Dickson, Tennessee, for the appellee, Mark Matlock.

Judge: CAIN

In an action for divorce, Wife appeals the division of the marital debts and assets, the amount of her rehabilitative alimony award, and the court's decision to name Husband primary residential parent of the parties' two minor children. We affirm the judgment of the trial court on all issues except the classification and award of Husband's 401(k) retirement account.

http://www.tba2.org/tba_files/TCA/2007/matlocks_051707.pdf


PETER PAUL MITRANO v. MATTHAN HOUSER

Court: TCA

Attorneys:

Peter Paul Mitrano, Merrifield, Virginia, pro se Appellant.

Michael R. Giaimo, Livingston, Tennessee, for the Appellee, Matthan Houser.

Judge: LEE

The trial court dismissed this action for unpaid rent pursuant to the res judicata doctrine, holding that all claims and issues raised by the complaint were or could have been previously litigated in the New Hampshire court system and were resolved in the Defendant tenant's favor. The trial court also granted the Defendant's motion for sanctions under Tenn. R. Civ. P. 11 and ordered the Plaintiff to pay $1,500 of Defendant's attorney's fees. We hold that under applicable New Hampshire law, the judgment entered by a New Hampshire Superior Court dismissing Plaintiff's previous action for unpaid rent against the same Defendant because of Plaintiff's repeated discovery abuses and flagrant disregard of court orders is a judgment on the merits for purposes of the res judicata doctrine. We therefore affirm the trial court's dismissal of this action. However, because we find that the procedural "safe harbor" provisions of Tenn. R. Civ. P. 11.03 were not complied with in this case, we reverse the trial court's award of attorney's fees as sanctions.

http://www.tba2.org/tba_files/TCA/2007/mitranop_051707.pdf


GRANVILLE PAYNE v. W. W. SCOTT DUBE ET AL.

Court: TCA

Attorneys:

Granville Payne, Nashville, Tennessee, Pro Se.

Garrett E. Asher and Emily H. Wilburn, Nashville, Tennessee, for the appellee, W. W. Scott Dube.
Renee Levay-Stewart, Nashville, Tennessee, for the appellee, MidSouth Orthopedic Associates.

Judge: KOCH

This appeal involves a pro se medical malpractice complaint filed against an orthopedic surgeon in the Circuit Court for Davidson County. After the patient took no action for more than one year, the trial court clerk notified him that his complaint would be dismissed if the case was not set for trial within thirty days. When the patient failed to set the case, the trial court dismissed his complaint. The patient then filed a motion to set aside the order of dismissal and requested additional time to retain counsel and to develop a factual basis for the complaint. The trial court declined to set aside the order of dismissal, and the patient appealed. We have determined that the trial court was fully justified in dismissing the complaint given the patient's multiple violations of the Tennessee Rules of Civil Procedure.

http://www.tba2.org/tba_files/TCA/2007/payneg_051707.pdf


LESLIE ROEHM REESE v. JEFFREY MARK KLOCKO

Court: TCA

Attorneys:

Jeffrey M. Klocko, pro se Appellant.

J. Robin McKinney, Jr., Nashville, Tennessee, for the Appellee, Leslie Roehm Reese.

Judge: SWINEY

Leslie Roehm Reese ("Wife") filed a complaint seeking a divorce from Jeffrey Mark Klocko ("Husband"). Husband filed a counter-claim also seeking a divorce. While this litigation was pending, Husband was convicted of sexually abusing his step-daughter and was sent to prison. After Husband was sent to prison, his attorney withdrew from the case. Thereafter, Husband filed a pro se motion seeking to participate in the divorce trial by telephone. The Trial Court never ruled on Husband's motion and proceeded with the trial without Husband being allowed to participate. Husband appeals claiming, among other things, that the Trial Court erred when it failed to rule on his motion seeking to participate in the trial by telephone. We agree with Husband, vacate the judgment of the Trial Court, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/reesel_051707.pdf


LINUS THORNTON v. JAMES A. MASSEY, ET AL.

Court: TCA

Attorneys:

Dennis W. Plunk, Savannah, Tennessee, and Mary Stewart Nelson, Pelham, Alabama, for the appellant, James A. Massey.

Charles C. Drennon, III, Memphis, Tennessee, for the appellee, Linus Thornton.

Judge: FARMER

This lawsuit concerns Plaintiff's claim under the parties' lease agreement for a percentage of the sale price generated by the auction sale of Defendant's real property, and Defendant's counter-claim for payments due on promissory notes. The trial court entered judgment in favor of Plaintiff on both the lease claim and counter-claim. We affirm in part, vacate in part, and remand.

http://www.tba2.org/tba_files/TCA/2007/thorntonl_051707.pdf


ROBERT TURNER v. RICKY BATES D/B/A RB AUTO SALES

Court: TCA

Attorneys:

Thomas J. Drake, Jr., Nashville, Tennessee, for the appellant, Ricky Bates d/b/a RB Auto Sales.

Terry R. Clayton, Nashville, Tennessee, for the appellee, Robert Turner.

Judge: KOCH

This appeal involves a dispute regarding the consequences of a default in payment of a car note. The purchaser defaulted on the note five months after purchasing the vehicle, and the dealer repossessed the vehicle and resold it. Thereafter, the purchaser filed suit against the dealer in the Davidson County General Sessions Court seeking to recover $3,000 of his $3,400 down payment on the theory that the dealer had wrongfully repossessed and sold the vehicle because he had paid the dealer a $400 "payment in the hole" to be used whenever he failed to make a required payment. The general sessions court awarded the purchaser $3,000, and the dealer perfected a de novo appeal to the Circuit Court for Davidson County. The trial court determined that there had been a miscommunication between the purchaser and the dealer regarding the application of the $3,400 down payment and ordered the dealer either to pay the purchaser $2,000 or to give the purchaser a $3,000 credit toward the purchase of another vehicle from the dealer. The dealer has appealed. We have determined that the plain language of the parties' contract compels reversal of the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2007/turnerr_051707.pdf


STATE OF TENNESSEE v. JACQUELINE P. WARLICK

Court: TCCA

Attorneys:

Branch H. Henard, III, Nashville, Tennessee, for the Appellant, Jacqueline P. Warlick.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Linda Walls, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

Following a bench trial in the Macon County Criminal Court, the Appellant, Jacqueline P. Warlick, was convicted of driving under the influence and sentenced to eleven months and twenty-nine days in jail, with the sentence being suspended after the service of two days in confinement. On appeal, Warlick argues that her conviction was obtained in violation of her Sixth Amendment right of confrontation, as recognized by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and her right under article I, section 9 of the Tennessee Constitution to "meet the witnesses face to face," as recognized by State v. Maclin, 183 S.W.3d 335, 343 (Tenn. 2006). Specifically, Warlick challenges the admission of the following evidence under Crawford and Maclin: (1) her son's statement, which was admitted as an excited utterance, made at the accident scene to an ambulance attendant that he knew his mother was going to wreck because she had been drinking; and (2) medical records from Vanderbilt University Medical Center, admitted pursuant to the Medical Records as Evidence Act, which contained: (a) Warlick's statement to medical personnel that she had consumed alcohol prior to the wreck; and (b) laboratory results from the hospital indicating a blood alcohol level of "183 mg/dL." Warlick further argues that the trial court erred by allowing a state trooper to testify with regard to the analysis and conversion of the blood alcohol test results. After review, we conclude that the admission of the challenged evidence was not error, as the evidence was not "testimonial" within the meaning of Crawford, and was properly admitted under a "firmly rooted hearsay exception" and bore "particularized guarantees of trustworthiness." See Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980). Warlick's issue regarding the testimony of a state trooper is without merit. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/warlickj_051707.pdf


Applicability of Tenn. R. Crim. P. 32(f) to General Sessions Court

TN Attorney General Opinions

Date: 2007-05-16

Opinion Number: 07-72

http://www.tba2.org/tba_files/AG/2007/ag_07-72.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
Wiretap program hashed out over Ashcroft's hospital bed
Former Deputy Attorney General James Comey told the Senate Judiciary Committee earlier this week that he refused to recertify President Bush's no-warrant wiretapping program because then-Attorney General John Ashcroft had reservations about its legality just before falling ill with pancreatitis in March 2004. Questions about the program came to head at a confrontation over Ashcroft's hospital bed, Comey said, among himself and a White House team that included Bush's then-counsel, Alberto Gonzales, and White House Chief of Staff Andy Card. The White House, Comey said, recertified the program without the Justice Department's signoff, allowing it to operate for about three weeks without concurrence on whether it was legal.
The News Sentinel carried this AP story
Hagel calls for Gonzales resignation too
Republican Sen. Chuck Hagel became the latest to demand the resignation of Attorney General Alberto Gonzales, saying Gonzales has "lost the moral authority to lead." Hagel's harsh words came in response to testimony Tuesday by James Comey, who said that Gonzales pressured an ailing Ashcroft to approve the legality of President Bush's warrantless wiretapping program.
Learn more from wsmv.com
Nashville attorneys on trial for improper acts
Several well-known local personalities testified as character witnesses on behalf of Nashville attorneys Alan Saturn and Alan Mazer this afternoon, NashvillePost.com reports. At issue in the trial is the government's accusation that Saturn and Mazer knowingly helped an adult-entertainment proprietor conceal the sale of a Hickory Hollow-area property in 2000. Witnesses for the two attorneys included former chairman of the medical ethics commission of Vanderbilt University Medical Center Frank Boehm, Former Davidson County Circuit Court Judge Marietta Shipley and Metro District Attorney General Torry Johnson.
Follow the trial at NashvillePost.com
12th District elects officers
The 12th Judicial District held its annual spring dinner May 3, electing Chancellor Jeffrey Stewart of Winchester, president; Judge James McKenzie of Dayton, vice president; and Charles Jenkins Jr. of Jasper, secretary/treasurer.

Winkler sentencing to be set
According to the Administrative Office of the Courts, an order will be filed tomorrow setting Mary Winkler's sentencing for June 8 at 9 a.m.
The Commercial Appeal reports
Gender discrimination on grand jury not valid for death row inmate, court says
In a 2-1 opinion filed Tuesday, the 6th U.S. Circuit Court of Appeals rejected an argument from a Tennessee death row inmate that he deserved a new trial because a rural county systematically excluded women from the position of grand jury foreperson for 20 years.
The Kingsport Times-News has more
See vote on student loan bill
How did your representative vote on the bill passed Tuesday that would pay off up to $60,000 in student loans for lawyers who commit to working as public defenders or prosecutors?
Find out here
Adults should know better than to help teen violence
Adults who encourage juveniles to commit violent acts sometimes will be held accountable, as in the case of Vivian Armstrong, whose case has enough evidence, a judge says, to send it to the grand jury. Armstrong is accused of handing a gun to her 14-year-old daughter and encouraging her to "get at" a teen who was trying to break up a fight.
WSMV has the story
Firm funds U of M minority scholarship
The Memphis office of Wyatt, Tarrant & Combs LLP has established a scholarship program for a minority student to attend the Cecil C. Humphreys School of Law at the University of Memphis. In addition to tuition, the recipient will have an internship with the firm during the summer. The scholarship will begin this fall and will be renewable for two additional years as long as the student is in the top 50 percent of the class.
The Memphis Daily News has the story
Legislative News
Bill to set up death penalty study committee in the works
The bill (SB1911, HB2162) to authorize a Committee to Study Administration of the Death Penalty was released by the Senate Delayed Bills Committee yesterday by a 3-0 vote. Under Senate rules, bills filed after a certain date may only be heard when approved by the committee made up of the speaker and majority and minority leaders. The House companion has been recommended by the House Judiciary Committee and awaits budget action.

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.
Find out more

 
 
UNSUBSCRIBE TO TBAToday? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba2.org/tbatoday/unsub_tbatoday.php

TBALink HomeContact UsPageFinderWhat's NewHelp
 
 
© Copyright 2006 Tennessee Bar Association