TBA General Practice Summit ranked best in Tennessee

The Tennessee Bar Association's General Practice Summit was recognized today as the state's top single educational seminar by the Tennessee Society of Association Executives. The award was presented to TBA CLE Director Therese Byrne during ceremonies in Nashville. The program was launched last year under the direction of then-President Larry Wilks as a means of providing solo and small firm practitioners with a broad summary of developments in key practice areas from leaders in those fields. This year's General Practice Summit will be held Aug. 23-25 in Nashville. Register or find out more at

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5100

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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

00 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
10 - TN Court of Appeals
04 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.

KENNETH CONAWAY v. U.S. PIPE AND FOUNDRY COMPANY, ET AL.

Court: TWCA

Attorneys:

David Collier Nagle, Chattanooga, Tennessee, for the appellant, U.S. Pipe and Foundry Company.

Robert Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; Lauren S. Lamberth, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund.

Thomas L. Wyatt, Chattanooga, Tennessee, for the appellee, Kenneth Conaway.

Judge: HARRIS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee, Kenneth Conaway, was permanently and totally disabled. The employer has appealed that ruling, contending that the Mr. Conaway's work as a minister precludes a finding of total disability. We agree and modify the award of the trial court to seventy-two percent permanent partial disability of the body as a whole.

http://www.tba2.org/tba_files/TSC_WCP/2007/conawayk_072707.pdf


BODY INVEST, LLC ET AL. v. CONE SOLVENTS, INC.

Court: TCA

Attorneys:

Raymond G. Prince of Nashville, Tennessee for Appellants, Body Invest, LLC and Norvell Skin Solutions, LLC

H. Frederick Humbracht, Jr. of Nashville, Tennessee for Appellee, Cone Solvents, Inc.

Judge: CRAWFORD

This case arises from the grant of summary judgment in favor of Defendant/Appellee. Plaintiffs/Appellants purchased denatured alcohol from Defendant/Appellee for use in Plaintiffs/Appellants' sunless, tanning products. Upon receipt of customer complaints, Plaintiffs/Appellants had the denatured alcohol tested, which testing revealed certain contaminates in the alcohol. Plaintiff/Appellants sued Defendant/Appellee under theories of negligence, breach of contract, breach of implied and express warranties, and misrepresentation. Finding that Plaintiffs/Appellants had not shown proof that Defendant/Appellee's product caused harm to the ultimate consumer, the trial court granted summary judgment in favor of Defendant/Appellee. Plaintiffs/Appellants appeal. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/bodyi_072707.pdf


ANDREA COLLINS v. AMSOUTH BANK

Court: TCA

Attorneys:

James L. Harris, Nashville, Tennessee, for the appellant, Andrea Collins.

C. Eric Stevens, Nashville, Tennessee, for the appellee, AmSouth Bank.

Judge: KOCH

This appeal involves a dispute between a bank and a former teller whose employment was terminated following an argument with her supervisor. The former teller filed suit against the bank in the Circuit Court for Cheatham County, asserting both statutory and common-law retaliatory discharge claims. The trial court granted the bank's motion for summary judgment after determining, based on the undisputed facts, that the teller's complaints regarding conduct she considered to be illegal were neither the sole reason nor even a substantial motivating reason for the termination of her employment and that the bank had a legitimate, non-pretextual reason for terminating the tellerís employment. The teller appealed. We affirm the summary judgment.

http://www.tba2.org/tba_files/TCA/2007/collinsa_072707.pdf


DEDRA F. JONES, INDIVIDUALLY AND ON BEHALF OF HER DAUGHTER, AMANDA K. JONES-ERVIN, AND DAUGHTER, SIERRA C. CREW, AND RUSSELL J. URBAN, INDIVIDUALLY AND ON BEHALF OF HIS SON, CHRISTOPHER C. URBAN v. THE MARLOW FAMILY LIMITED PARTNERSHIP AND MARY ANN MARLOW
CRYSTAL T. UDOVICH V. THE MARLOW FAMILY LIMITED PARTNERSHIP AND MARY ANN MARLOW


Court: TCA

Attorneys:

Larry C. Vaughn, Knoxville, Tennessee, for the appellants, Dedra F. Jones, individually and on behalf of her daughter, Amanda K. Jones-Ervin, and daughter, Sierra C. Crew; Russell J. Urban, individually and on behalf of his son, Christopher C. Urban; and Crystal T. Udovich.

Robert W. Knolton, Oak Ridge, Tennessee, for the appellees, The Marlow Family Limited Partnership and Mary Ann Marlow.

Judge: KIRBY

This is a tragic case arising out of the accidental shooting of a child. The plaintiffs, three minors and one adult, were at the home of the individual defendant to celebrate the birthday of an 11-year-old child. A minor who was at the home obtained a loaded gun from the defendant's gun cabinet. The gun accidentally discharged, killing another child in the home. The plaintiffs filed this lawsuit, alleging that the defendants' negligent or reckless conduct caused emotional distress and psychological harm to the plaintiffs. The defendants later filed a motion to dismiss or for summary judgment as to the plaintiffs' claims of negligent and reckless infliction of emotional distress and as to their punitive damages claim. This motion was granted, with the consent of the plaintiffs. Subsequently, the defendants filed a motion to dismiss the remainder of the lawsuit, arguing that the plaintiffs had no viable claims for recovery other than those that had already been dismissed on summary judgment. The trial court agreed and dismissed the action. The plaintiffs now appeal. The plaintiffs argue that, despite the trial court's dismissal of their claims for negligent infliction of emotional distress, there remained for adjudication claims of ordinary negligence which resulted in emotional injuries. We affirm the dismissal of the complaint as a whole, concluding that all of the plaintiffs' claims were adjudicated.

http://www.tba2.org/tba_files/TCA/2007/jones_072707.pdf


TAMMY RENEE MAGGART v. ALMANY REALTORS, INC., ET AL.

Court: TCA

Attorneys:

Jeffrey O. Powell, Nashville, Tennessee, for the appellant, Tammy Renee Maggart.

Arthur E. McClellan, Gallatin, Tennessee, for the appellees, Almany Realtors, Inc., Frances Almany, and Vicki Louallen.

Judge: CLEMENT

In this personal injury action, wherein the small office employer was not subject to the Workers' Compensation Act, the employee sought damages against her employer for injuries she sustained at work when a filing cabinet fell on her. The employer denied liability contending the claim was barred based upon a prospective and unconditional "release of liability" the employee had signed prior to the injury. The trial court summarily dismissed the claim finding the release barred the employee's claim. We have concluded that the prospective release of the employer's liability for any injuries the employee might sustain in the course of her employment is void as against public policy and, therefore, vacate the order of dismissal and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/maggartt_072707.pdf


DONALD R. MCMAHAN v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Donald R. McMahan, Pro Se

Paul G. Summers, Attorney General and Reporter; Arthur Crownover II, Senior Counsel, Civil Rights and Claims Division for Appellee, Tennessee Department of Correction

Judge: CRAWFORD

This is a declaratory judgment suit filed by an inmate in the Tennessee Department of Correction asserting that T. C. A. Section 40-28-123 violates his constitutional rights of due process and constitutes double jeopardy. The trial court granted summary judgment to the department of correction, and the inmate appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/mcmahand_072707.pdf


TERESA McWHERTER v. JACOA ALCOHOLISM CENTER

Court: TCA

Attorneys:

Mark L. Agee and Gregory W. Minton, Trenton, Tennessee, for appellant, Teresa McWherter.

John S. Little and Matt S. Shepherd, Jackson, Tennessee, for appellee, JACOA Alcoholism Center.

Judge: KIRBY

This is a negligence case. The defendant is a treatment facility for drug and alcohol addictions. The plaintiff was an inpatient at the defendant facility, undergoing substance abuse treatment. The plaintiff was admitted on referral from her probation officer. As part of her treatment, the plaintiff participated in experiential therapy designed to teach through experiences. For one exercise, a group of patients were organized into a team and a rope was tied between two posts, with a mattress on one side. The team was asked to devise a plan for getting all team members over the rope, without touching it. The plaintiff's team decided to "toss" the female members of the team over the rope. The plaintiff was thrown over the rope once without injury. However, the team had to repeat the exercise. During the second attempt, the plaintiff was tossed over the rope, but this time her foot missed the mattress and she broke her ankle. The plaintiff then filed this lawsuit against the defendant facility. The facility moved for summary judgment, arguing that it could not be held liable because the plaintiff voluntarily chose to engage in the exercise despite an obvious risk of injury. The trial court granted the motion. The plaintiff now appeals. We reverse and remand, finding that the defendant facility had a duty of care to the plaintiff and that there is a genuine issue of material fact as to the extent to which the plaintiff felt compelled to participate in the exercise and as to whether the fault attributable to the plaintiff is greater than the fault attributable to the defendant facility.

http://www.tba2.org/tba_files/TCA/2007/mcwhertert_072707.pdf


RICKY PATTON AND NOVELLA MARIE PATTON v. THE ESTATE OF CORNELL PROCTOR UPCHURCH, DECEASED; TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, AND CAROLINE ALBRITTON

Court: TCA

Attorneys:

John M. Wolfe, Jr., Chattanooga, Tennessee, for appellants.

Daniel H. Rader, III., Cookeville, Tennessee, for appellee, The Estate of Cornell Proctor Upchurch, Deceased. Michael R. Campbell, Chattanooga, Tennessee, for appellee, Tennessee Farmers Mutual Insurance Company.

Judge: FRANKS

The Trial Court dismissed plaintiffs' Breach of Contract claim against defendants on the basis of collateral estoppel. Plaintiffs have appealed. We hold that the doctrine of collateral estoppel does not apply, but affirm the Trial Court's Judgment on the grounds that the doctrine of res judicata bars the action against the insured, the insurance attorney could not be held personally liable as he was an agent of a disclosed principal, and the insurance company could not be held vicariously liable for its attorney's conduct, since the action against the attorney was extinguished by operation of law.

http://www.tba2.org/tba_files/TCA/2007/pattonr_072707.pdf


DENNIS M. PHILLIPS, ET AL. v. CUMBERLAND MOUNTAIN RETREAT PROPERTY OWNERS ASSOCIATION, INC.

Court: TCA

Attorneys:

Dennis M. Phillips, Crossville, Tennessee, pro se Appellant.

Sharon Potter, Knoxville, Tennessee, for the Appellee, Cumberland Mountain Retreat Property Owners Association, Inc.

Judge: LEE

Dennis M. Phillips brought this action seeking financial records and an accounting of certain transactions of the Cumberland Mountain Retreat Property Owners Association (the "Association"), a nonprofit landowners' association of which he was a member. He alleged mismanagement, breach of fiduciary duty, and other wrongdoing by the officers and directors of the Association. The dispositive issues are whether the trial court correctly granted the Association's motion to dismiss for failure to state a claim upon which relief can be granted, and whether the trial court erred in ordering Mr. Phillips to pay the Association's attorney's fee. We hold that the complaint states a claim for which relief can be granted under Tenn. Code Ann. Section 48-66-101, et seq., which entitles members of a nonprofit corporation to copy and inspect corporate records under certain circumstances. We therefore reverse the judgment of the trial court dismissing Mr. Phillips' action and the award of attorney's fees against him.

http://www.tba2.org/tba_files/TCA/2007/phillipsd_072707.pdf


PERRY LEE WOODS v. ROSE MARY WOODS

Court: TCA

Attorneys:

Umeka Foreman, Nashville, Tennessee, for the appellant, Perry Lee Woods.

Robert G. Ingrum, Gallatin, Tennessee; Thomas F. Bloom, Nashville, Tennessee, for the appellee, Rose Mary Woods.

Judge: COTTRELL

In this divorce action, Husband appeals the division of the marital estate and the amount and duration of Wife's rehabilitative alimony award. Finding no error below, we affirm the judgment of the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2007/woodsp_072707.pdf


WORLD RELIEF CORPORATION OF THE NATIONAL ASSOCIATION OF EVANGELICALS v. ANDARGIE MESSAY ET AL.

Court: TCA

Attorneys:

Nick Perenich, Nashville, Tennessee, for the appellant, Nebiu Messay.

Stephen C. Knight and W. Scott Rose, Nashville, Tennessee, for the appellee, World Relief Corporation of the National Association of Evangelicals.

Judge: KOCH

This appeal involves the effect that ambiguity regarding the status of legal representation can have on a default judgment. After the operator of an Ethiopian restaurant defaulted on a promissory note, the lender filed suit in the Chancery Court for Davidson County against the restauranteur and his son. The restauranteur and his son talked to the same lawyer and believed that he had agreed to represent them. However, the lender later obtained a default judgment against the restauranteur and his son because no answer was ever filed on their behalf. The restauranteur and his son then retained new lawyers to file Tenn. R. Civ. P. 60 motions to set aside the default judgment. The restauranteur later withdrew his motion. The son, in support of his motion, prepared and submitted affidavits stating that he had relied on his lawyer to present his meritorious defense to the lender's claims. The lawyer also filed an affidavit asserting that he had never represented the son in this proceeding. The trial court declined to set aside the default judgment against the son on the ground that the actions or inactions of his lawyer were attributable to him. The son appealed. We have determined that the record is insufficient to determine whether or not the lawyer was representing the son or whether the son reasonably believed that the lawyer was representing him. We have also concluded that the trial court erred by denying the son's Tenn. R. Civ. P. 60 motion in light of the materially incomplete record.

http://www.tba2.org/tba_files/TCA/2007/worldr_072707.pdf


STATE OF TENNESSEE v. GREGORY O. CHERRY

Court: TCCA

Attorneys:

Vance W. Dennis, Savannah, Tennessee, for the appellant, Gregory O. Cherry.

Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General; Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Gregory O. Cherry, was found guilty by a jury of possession of over .5 grams of cocaine with the intent to sell, delivery of under .5 grams of cocaine, and possession of drug paraphernalia. As a result, he was sentenced to a total effective sentence of eight years. The trial court ordered Appellant to serve the effective eight-year sentence consecutively to sentences in case numbers 8395 and 8396.1 Appellant filed a motion for new trial. Appellant appeals, arguing that the trial court erred by refusing to suppress Appellant's confession and improperly refused to suppress evidence obtained by a warrantless search of Appellant's car. Appellant also contends that the evidence was insufficient to sustain the convictions. Because the record does not indicate that the trial court denied Appellant's motion for new trial, we determine that we lack jurisdiction to hear the case and dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2007/cherryg_072707.pdf


STATE OF TENNESSEE v. GARY LEE MARISE

Court: TCCA

Attorneys:

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Gary Lee Marise.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Hansel Jay McCadams, District Attorney General; and Stephen D. Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Gary Lee Marise, was convicted by a Carroll County jury of attempt to manufacture methamphetamine, a Class D felony, and was sentenced by the trial court as a Range I, standard offender to four years in the Department of Correction. He raises essentially three issues on appeal: (1) whether the evidence was sufficient to sustain the conviction; (2) whether the trial court erred in refusing his request for special jury instructions; and (3) whether he was denied a fair trial and the effective assistance of counsel due to the poor acoustics in the temporary courtroom, which prevented some jurors from hearing his trial counsel. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/mariseg_072707.pdf


STATE OF TENNESSEE v. KORBYN ORDWAY

Court: TCCA

Attorneys:

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Korbyn Ordway.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; T. Michel Bottoms, District Attorney General; James G. White, II, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In August 2003, a Lawrence County grand jury indicted the defendant, Korbyn Ordway, with one count of first degree murder. In November 2004, following a jury trial in Lawrence County Circuit Court, the defendant was convicted on the sole count of the indictment and sentenced to life in prison without the possibility of parole. On appeal, the defendant claims that the evidence produced at trial was insufficient to support his conviction, that the trial court erred in denying a change of venue, that the defendant's right to a fair trial was tainted by the jury's viewing the defendant in handcuffs, and that the trial court erred in allowing the state's expert witness to refuse to answer questions concerning his qualifications. After reviewing the record, we conclude that there is no error in the judgment of the trial court and therefore affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/ordwayk_072707.pdf


TOMMY L. WATSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Tommy Lee Watson.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Kristen Shea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Tommy L. Watson, pled guilty to vehicular homicide (Class B felony) and reckless endangerment (Class E felony) in exchange for a sentence of twelve years. On appeal, he contends that he received ineffective assistance of counsel and submits that his guilty pleas were not knowingly and voluntarily entered. After review, we conclude that no error exists and affirm the judgment from the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/watsontl_072707.pdf


TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
Eason addresses LSC board in Nashville
TBA President Marcy Eason told Legal Services Corporation (LSC) board members meeting in Nashville today that Tennessee lawyers are proud of the many ways they have contributed to equal access to justice.

The LSC board began the day with a tour of the offices of the Legal Aid Society of Middle Tennessee and the Cumberlands, followed by meetings with clients and panel presentations, including one discussing the collaboration between legal aid programs and the bar. TBA Access To Justice Coordinator Becky Rhodes took part in that panel. Eason's speech came at a luncheon punctuated by welcome remarks from Mayor Bill Purcell, himself a former legal aid lawyer. A reception at the Miller & Martin firm, hosted by former TBA President and Legal Aid Society Chair Katie Edge, will take place tonight.

Judge: Shelby desegregation suit stands
Despite agreement on both sides that a 44-year-old school desegregation lawsuit should be dismissed, U.S. District Court Judge Bernice Donald Thursday said the request is premature and that the Shelby County School District has more work to do.
Read more in the Commercial Appeal
Applications available Monday for 2008 IOLTA grants
Applications for 2008 IOLTA program grants will be available Monday on the Tennessee Bar Foundation's web site. Money for the grants is accumulated through the Interest On Lawyers' Trust Accounts (IOLTA) program and is distributed to organizations that provide direct civil legal services to indigents or seek to improve the administration of justice. Completed applications must be postmarked no later than Sept. 5. For more information, contact the Foundation at info@tnbarfoundation.org or by calling (615) 242-1531 or (800) 634-2516.
Visit the Foundation's web site
Judge honored by disABILITY center
Judge Charles D. Susano Jr. is today receiving the 2007 Spirit of the ADA Award from the Knoxville disABILITY Resource Center to recognize his success in overcoming physical and attitudinal barriers. Susano, a judge on the Tennessee Court of Appeals, was paralyzed from the chest down in 1992 after falling from a second-story window.
Read more in the Knoxville News Sentinel
Efforts to split 9th Circuit draw ire from some
Judges meeting this week at the 9th Circuit's annual judicial conference are grumbling over repeated efforts to divide the circuit. Some of the talk was prompted by the recent L.A. Times op-ed piece from Vanderbilt University Law School professor Brian Fitzpatrick, who is an outspoken supporter of a circuit split.
Read more on Law.com
Legislative News
Richardson joins Tennessee House of Representatives
Jeanne Richardson of Memphis was sworn in as a member of the Tennessee House of Representatives by Supreme Court Justice Janice Holder on Thursday, WMC-TV reports. The 57-year-old Democrat won a special election earlier this month to fill the District 89 seat left vacant when Beverly Marrero was elected to the state Senate.

TBA Member Services
Save money on car rental
Traveling by car this Summer? Use your TBA membership to save on car rentals.
Click here to obtain discount codes for many major rental companies

 
 
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 2007 Tennessee Bar Association