Gonzales resigns, Clement will be acting attorney general

In a brief statement that made scant reference to his troubled time at the Justice Department, Alberto Gonzales announced this morning that he is resigning as attorney general, effective Sept. 17. The embattled attorney general, who had ridden out numerous storms during his two years as the nation's top law enforcement official, said he told President Bush on Sunday about his plans to leave office. U.S. Solicitor General Paul Clement will serve as acting attorney general after Sept. 17 until a new attorney general can be nominated and confirmed by the Senate.

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Court: TSC



Court: TCA


William D. Leader, John B. Carlson, Nashville, Tennessee, for the appellant, Blackburn & McCune.

Anthony McFarland, Jody E. O'Brien, Nashville, Tennessee, for the appellees, Pre-Paid Legal Services, Inc., and Pre-Paid Legal Services of Tennessee, Inc.


Blackburn & McCune brought suit alleging it was fraudulently induced to enter an administrative services contract with Pre-Paid Legal Services, Inc. The trial court dismissed the suit based upon a forum selection provision contained in an Attorney Provider Agreement executed by the parties. Blackburn & McCune has appealed. Based upon our interpretation of the forum selection clause, we reverse the judgment of the trial court.



Court: TCA


Klint W. Alexander, Nashville, Tennessee, for the appellants, Green Tree Servicing, LLC; Conseco Finance Servicing Corp. and Clay Borders.

W. Gary Blackburn and Patrick Dollar, Nashville, Tennessee, for the appellees, Bruce Bodor, Individually and as Trustee for Green Park Trust, Ironwood Company Trust, Sharberhouse Trust, Snow Creek Trust, Sevier Park Trust, Walnut Grove Trust, Fogerty Beach Trust, BLMS Trust, and Majestic Mountain Trust.


Plaintiffs executed installment contracts and notes which contained identical arbitration clauses, giving Financing Corporation a security interest in fifteen mobile homes purchased by Plaintiffs. Plaintiffs allege that an employee of Financing Corporation unlawfully induced the tenants of Plaintiffs' mobile homes to breach their leases.1 Defendants appeal the trial court's decision declining to compel arbitration pursuant to the financing agreements. We conclude that Plaintiffs' claims arising from the fifteen units under contract with Financing Corporation are covered by the arbitration clauses; however, the sparse record does not support a finding that the arbitration clauses cover Plaintiffs' claims arising out of units not financed by Financing Corporation. Accordingly, we reverse the trial court in part and affirm in part.



Court: TCA


Curtis F. Hopper, Savannah, Tennessee, for the appellant, Russell Keith Frazier.

Betty Stafford Scott and Mary Jo Middlebrooks, for the appellee, Janette Direnzo Frazier.


The trial court found Defendant/Petitioner to be in contempt; denied his petition to modify alimony upon finding no change in material circumstance; ordered him to pay back alimony, plus 10% interest; awarded Plaintiff/Respondent's attorney's fees. On appeal, Defendant/Petitioner asserts the trial court erred in failing to find a material change in circumstance. We vacate in part, affirm in part, and remand for further proceedings.



Court: TCA


W. Gerald Tidwell, Jr., Chattanooga, Tennessee for the Appellants, Avalon Golf Properties, LLC, a Tennessee limited liability company, a.k.a. Landmark Golf Properties, LLC, a Tennessee limited liability company, a.k.a. Landmark Development, Inc.

Gregory H. Harrison, Knoxville, Tennessee for the Appellees, O. Hogan Harrison, and Sally D. Harrison.


O. Hogan Harrison and Sally D. Harrison ("Plaintiffs") sued Avalon Properties, LLC ("Avalon Properties"), Avalon Golf Properties, LLC ("Avalon Golf"), and Usonia Homes, Inc. ("Usonia") for breach of contract and negligent misrepresentation, among other things, in connection with the construction of Plaintiffs' house. Plaintiffs were granted a default judgment against Usonia for its failure to answer the complaint. After a bench trial, the Trial Court entered an order of involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02 as to Avalon Properties. The Trial Court also entered a Final Judgment incorporating by reference the Trial Court's Opinion finding and holding, inter alia, that Avalon Golf made representations to Plaintiffs through its agent that Usonia was qualified to build the house and implicitly vouched that Usonia had the ability to fund the work; that the representations were made with the intent to induce Plaintiffs to rely on them; that Plaintiffs did rely on the representations to their detriment and were damaged; and that Avalon Golf was negligent in the selection of Usonia as the exclusive builder. The Trial Court awarded Plaintiffs a judgment of $164,065.87. Avalon Golf appeals to this Court. We reverse that portion of the Trial Court's judgment holding Avalon Golf liable for negligent misrepresentation and negligent selection, and affirm as to the other defendants.



Court: TCCA


J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Roger Gene Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; Patricia Cristil, Assistant District Attorney General, for the Appellee, State of Tennessee.


A Knox County jury convicted the Defendant of aggravated assault, one count of theft, Class D felony theft, and misdemeanor vandalism, and the trial court sentenced him to an effective sentence of thirteen years. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions for aggravated assault and theft; (2) the trial court improperly allowed testimony that the Defendant had kidnapped the victim the night before this incident; and (3) the trial court improperly imposed consecutive sentences. Finding that there exists no error, we affirm the judgments of the trial court.


With Dissent

Court: TCCA


J. Thomas Marshall, Jr., Clinton, Tennessee, for the appellant, David Harold Hanson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, David Harold Hanson, was convicted of aggravated child abuse a Class A felony, and received a sentence of eighteen years imprisonment. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred in refusing to instruct the jury on the definition of "accidental means" as submitted by the defendant; (3) whether the trial court improperly instructed the jury on the "knowing" element of aggravated child abuse; and (4) whether the trial court erred by giving sequential jury instructions. Following our review of the record, the parties' briefs and the applicable law, we conclude that the evidence was insufficient to prove that the defendant possessed the requisite mental state for aggravated child abuse; and therefore, we reverse the judgment of the trial court and dismiss the case.


Wedemeyer, Robert W., Judge, concurring in part, dissenting in part.


Court: TCCA


James O. Marty (on appeal) and Joshua B. Spickler (at trial), Memphis, Tennessee, for the appellant, Jarvis Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman and Ray Lepone, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Jarvis Harris, was convicted of first degree premeditated murder and attempted first degree murder and sentenced to concurrent terms of life imprisonment and eighteen years. On appeal, he argues: (1) the trial court erred in denying his motion in limine to exclude references to gang affiliation and the State made improper comments about gang membership during opening and closing statements; (2) the trial court erred in denying his motion to suppress his statements; and (3) the trial court imposed an excessive sentence. Based on our review, we affirm the judgments of conviction but remand for appropriate resentencing for the attempted first degree murder conviction



Court: TCCA


Larry G. Roddy, Dayton, Tennessee, for the Appellant, Michael Wayne Poe.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox, III, District Attorney General; Neal Pinkston, Assistant District Attorney General, for the Appellee, State of Tennessee.


The Defendant, Michael Wayne Poe, appeals from the trial court's determination that he violated the terms of his probation by abusing and killing his infant son. Because substantial evidence supports the trial court's judgment, we affirm.



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Knox open meetings settlement not on agenda
A detailed plan to settle the News Sentinel's Open Meetings lawsuit never made it to the County Commission agenda this afternoon, the newspaper reports. The resolution needed 13 votes but only received eight. Earlier, the News Sentinel's attorney, Richard Hollow, had said that without an injunction prohibiting commissioners from violating the act in the future, the settlement would be a no-go. "If it doesn't solve anything and doesn't satisfy the News Sentinel, why go through the motions?" Commissioner Richard Cate said.
Read more in the News Sentinel
Sumner bar association pushes for extra judge
Because of jam-packed dockets in growing Sumner County, the local bar association wants to create either a third general sessions judgeship or a full-time referee. "The good news is the county commission wisely planned for growth and built an additional courtroom facility when the Sumner County Jail and courthouse was renovated," said Jim Hawkins, who recently spoke on behalf of the Sumner County Bar Association in a meeting with county commissioners.
Read more in the Tennessean
Moncier sentence includes probation, anger class
A federal judge today sentenced Knoxville lawyer Herbert S. Moncier to one-year probation; fined him $5,000; ordered community service for a criminal contempt conviction; and ordered him to undergo an anger-management class and a three-hour course on legal ethics. "I can say without reservation no lawyer that practices in this court exhibits the kind of behavior you do," U.S. District Judge Ronnie Greer told Moncier during sentencing. "I should have put my foot down a long time ago."
The News Sentinel has the story
Selection commission to consider Knox Criminal
Court post
Knox County Criminal Court Judge Ray Lee Jenkins' death means the position is now open, according to the state attorney general's office, even though Kenneth Irvine Jr. had been sworn in before Jenkins' death as a temporary replacement. The Judicial Selection Commission must now pick three nominees to forward to Gov. Bredesen for consideration for appointment. Irvine, who had earlier campaigned unsuccessfully for the seat, said on Friday he would apply for the job. Whomever is chosen would serve until the August 2008 election.
The Kingsport TImes-News carried this AP story
Editorial: Blount should pay for study on justice center
The Mountain Press questions the county commissioners for voting against paying $10,000 for a study that would shed more light on whether or not Blount County should build a new justice center. The newspaper looks at some options that might come from the study, saying "Opposing the study because it might lead to paying millions for a justice center is shortsighted for now."
Read the editorial
Women's vote ratification celebrated
Festivities to celebrate Women's Equality Day were held in Knoxville Sunday to mark Tennessee's role as the 36th and final necessary state to ratify the 19th Amendment and give women the right to vote. About 50 re-enactors dressed for the event. Area lawyer Wanda Sobieski is coordinator of the Suffrage Coalition, which last year unveiled the Tennessee Woman's Suffrage Memorial on Market Square.
Read about the event in the News Sentinel
Ford sentencing hearing continues
A hearing to determine former Sen. John Ford's sentence is ongoing at press-time and may not be completed today, as defense attorney Michael Scholl announced his plans to call 10 or more witnesses. Ford, who was convicted in April of accepting $55,000 in bribes, legally faces up to 10 years in prison, but his defense says it should be limited to 27 to 33 months.
Follow the story in the Commercial Appeal
Turner a 'hero' of
Tennessee Waltz
Chattanooga attorney Russell King calls former Rep. Brenda Turner a "hero" in the Tennessee Waltz scandal. "They came to her, offered her money, and she turned them down. She did it the right way," King said in an article in Chattanoogan.com
Read more of the interview
Jenkins' service set
for Thursday
A memorial service for Judge Ray L. Jenkins, who died last Friday, will be Aug. 30 at 5:30 p.m. at Sequoyah Hills Presbyterian Church in Knoxville, with a reception following. There will be reserved seating for judges, who are asked to wear their robes.
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Alimony Bench Book now available
The 5th Edition of the Alimony Bench Book is now available from the TBA Family Law Section. This newest edition is available for purchase at the TBA's online bookstore or by calling 800-899-6993 or in Nashville at 383-7421.
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