Ethics Roadshow returns with a top-secret topic

Brian Faughnan returns for another year as host to the popular TennBarU Ethics Roadshow CLE program. This year's title is a secret: A Guided Tour of Client Confidentiality and Attorney-Client Privilege in Tennessee. The three-hour sessions are scheduled for Nov. 16 in Chattanooga, Nov. 29 in Memphis and Dec. 12 in Nashville. And remember, TBA members can use their three hours of prepaid CLE programming to take this course for free. Sign up or find out more now.
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.

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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.

CHRISTINA JO BERTUCA v. THEODORE JOSEPH BERTUCA

Court: TCA

Attorneys:

Michael D. Sontag, Stephen J. Jasper, Nashville, Tennessee, for the appellant, Theodore Joseph Bertuca.

Julie Robinson Rowland, Jere N. McCullough, Lebanon, Tennessee for the appellee, Christina Jo Bertuca.

Judge: HARRIS

This is an appeal from a divorce action filed by Christina Jo Bertuca against her husband, Theodore Joseph Bertuca. The divorce was granted on June 23, 2005, but the trial court reserved the issue of a division of marital assets. That matter was tried in February, 2006. While the hearing related to a variety of assets, most of the evidence presented related to the value of the husband's ninety percent ownership in Capital Food Services, a Tennessee general partnership that was engaged in the ownership and operation of seven McDonald's franchises located in Wilson County, Tennessee. The trial court determined the value of Capital Food Services had increased by $1,000,000 above the amount paid for the restaurants. The value of Mr. Bertuca's interest had, therefore, increased by $900,000 and half that amount was awarded to Ms. Bertuca. Mr. Bertuca has appealed challenging the conclusions reached by the trial court. Ms. Bertuca has appealed from the judgment of the trial court allowing Mr. Bertuca to pay the sum awarded in eighty-four equal monthly installments without interest and asserting she is entitled to her attorneys' fees on appeal. Having carefully reviewed the record, we affirm the judgment of the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2007/bertucac_111507.pdf


IN RE ESTATE OF TROY G. BLACKBURN: TROY BLACKBURN AND BOBBIE ELLIS, AS CO-ADMINISTRATORS OF THE ESTATE OF TROY G. BLACKBURN, DECEDENT v. HERBERT FRED BLACKBURN

Court: TCA

Attorneys:

Robert L. Huskey, Manchester, Tennessee, for the appellant, Herbert Fred Blackburn.

J. Stanley Rogers and Christina Henley Duncan, Manchester, Tennessee, for the appellees, Troy Blackburn and Bobbie Ellis, as Co-Administrators for the Estate of Troy G. Blackburn, Decedent.

Judge: KIRBY

This is a will contest. The decedent, who had three grown children, died after a long illness. Two of his children filed a petition to administer the decedent's intestate estate as co-administrators. During the ensuing two years, the third child lived part-time in the decedent's home. When it was discovered that some personal property in the decedent's home was missing, the co-administrators filed a petition against their sibling to recover it as property of the estate. The third child filed a counterclaim, seeking to probate as the decedent's last will and testament a handwritten document that was drafted and executed about eight hours before the decedent's death. The co-administrators contested the purported will. After a jury trial, the jury returned a verdict finding that the handwritten document was "not a will." The trial court entered judgment on the verdict. The will proponent now appeals. We affirm, concluding that the validity of the will was a fact question for the jury, that the trial court did not abuse its discretion on the evidentiary issues presented, and that the jury's verdict is supported by material evidence.

http://www.tba2.org/tba_files/TCA/2007/blackburnt_111507.pdf


IN THE MATTER OF L.A.J., III STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. LARRY JONES, JR.

Court: TCA

Attorneys:

Richard D. Cartwright, Covington, Tennessee, for Appellant Larry Jones, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for the State of Tennessee, Department of Children's Services.

Judge: KIRBY

This case involves the termination of parental rights. The child at issue was born in 1992. In 2000, the child was taken into protective custody based on allegations that the father had sexually abused him. A no-contact order was entered against the father. The mother regained custody of the child in 2002. In April 2003, the mother voluntarily relinquished custody of the child and he was placed with his aunt and uncle. After the child kicked his pregnant aunt in the stomach, custody was returned to the Department of Children’s Services ("DCS"). In June 2003, the child was found to be dependent and neglected. After the father failed to comply with the child's permanency plan, DCS filed a petition for termination of parental rights as to both the mother and the father. Default judgment was granted as to mother. The court appointed an attorney to represent the father. A trial was held, after which the court ordered termination of the father's parental rights on several grounds. The father appeals, arguing, inter alia, that the failure to appoint an attorney for him during the dependency and neglect proceedings violated his due process rights. Finding that the dependency and neglect proceedings are separate and distinct from the termination proceedings, we hold that the father received full procedural protection in the termination proceedings that are the subject of this appeal, and affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2007/laj_111507.pdf


STATE OF TENNESSEE V. TONYA LEA CHANDLEY

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General; Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the Appellant, State of Tennessee.

Mark E. Stevens, District Public Defender; and Christy Murray, Assistant Public Defender, Knoxville, Tennessee, for the Appellee, Tonya Lea Chandley.

Judge: WEDEMEYER

In this appeal by the State, a Knox County Grand Jury returned a presentment against the Defendant, Tonya Lea Chandley, charging her with two counts of aggravated robbery. The presentment was returned by the grand jury during the pendency of the Defendant's preliminary hearing in Knox County General Sessions Court on a warrant for the same two aggravated robbery charges. The Defendant filed a motion to dismiss the presentment and remand the case to General Sessions Court for a preliminary hearing. The Defendant alleged that she had effectively been denied a preliminary hearing by the issuance of the presentment. The trial court, interpreting Rule 5(e) of the Tennessee Rules of Criminal Procedure, granted the Defendant's motion. The State filed this appeal contending that the motion was improperly granted. Because we conclude that Rule 5(e) of the Tennessee Rules of Criminal Procedure does not afford the Defendant a remedy in cases in which a presentment is returned prior to preliminary hearing, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/chandleyt_111507.pdf


STATE OF TENNESSEE v. JAMES SIMONTON

Court: TCCA

Attorneys:

George Todd East, Kingsport, Tennessee, for the Appellant, James Simonton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, James Simonton, appeals his convictions from the Sullivan County Criminal Court for criminal conspiracy to sell or deliver .5 grams or more of cocaine within 1000 feet of a school and for maintaining a dwelling where controlled substances are used or sold. On appeal, Simonton alleges the following errors: (1) that the evidence presented to the jury was insufficient to support the convictions; (2) that the trial court erred in ruling that his prior convictions would be admissible for impeachment purposes; (3) that the trial court erred by sentencing him as a career offender on the conviction for maintaining a dwelling where controlled substances are used or sold; and (4) that the trial court erred by failing to waive or reduce the $100,000 fine imposed by the jury for the latter conviction. After a review of the record on appeal, Simonton's conviction for maintaining a dwelling where controlled substances are used or sold is affirmed. We conclude, however, that the evidence is legally insufficient to support the conviction for conspiracy to sell or deliver cocaine. Moreover, the fine of $100,000 is modified to reflect a fine of $50,000. Simonton's remaining issues are without merit.

http://www.tba2.org/tba_files/TCCA/2007/simontonj_111507.pdf


Local Government Regulation of Smoking in Parks

TN Attorney General Opinions

Date: 2007-11-14

Opinion Number: 07-152

http://www.tba2.org/tba_files/AG/2007/ag_07_152.pdf

TODAY'S NEWS

Legal News
Legislative News
Passages
Upcoming
TBA Member Services

Legal News
2008 mock trial case posted
The TBA Young Lawyers Division released the 2008 state mock trial problem and competition rules today. This year, teams will debate a civil case stemming from a car accident involving a teenager allegedly text messaging and speeding while driving. The state competition will be held March 14-15 in Nashville following district competitions throughout the state.
For more details visit the mock trial web page
Memphis lawyers march in support of Pakistani colleagues
About 40 Memphis lawyers on Wednesday marched in solidarity with lawyers and judges facing persecution in Pakistan, the Commercial Appeal reports. Dressed in black suits, the lawyers gathered on the plaza in front of city hall and walked to the Shelby County Courthouse at the same time that lawyers in Washington D.C. and other cities were taking part in protests organized by the American Bar Association. Tennessee lawyers can still show their support for the cause by signing the TBA's petition opposing attacks on the rule of law in Pakistan.
Show your support
Do law school rankings miss mark?
Quality of teaching, bar passage rate, placement rate at nine months, practical skills training and faculty-student relations are important to law students, but aren't always reflected in law school rankings from U.S. News, according to reports in the ABA's Online Journal.
Read more about it
Legal analysts weigh in on Crutchfield vote
Officials at the Hamilton County election office said former Sen. Crutchfield cast a ballot during early voting in the state Senate District 10 race -- his former seat -- despite a state law that prohibits felons from voting until they complete their sentence. Crutchfield is awaiting sentencing after pleading guilty to federal bribery charges this summer. Read what two legal commentators say about the legitimacy of the vote.
The Times Free Press has more
Peete receives maximum sentence
Former Memphis City Council member Rickey Peete was sentenced to the maximum 51 months in prison after pleading guilty to accepting $12,000 in bribes for his vote on a zoning issue last year. He previously served prison time for the same type of offense, which destroyed any chance he had for leniency.
The Commercial Appeal reports
Mukasey names judge as top deputy
Attorney General Mukasey has tapped Mark Filip, a federal judge in Chicago, to be his deputy attorney general. If confirmed, Filip will replace acting deputy AG Craig Morford, a career prosecutor who filled the post after Gonzales's No. 2 Paul McNulty resigned last summer.
Read more in the Wall Street Journal's Law Blog
MBA prepares for new leadership
The Memphis Bar Association will bring 2007 to a close with a ceremonial transferring of the gavel during its annual meeting Dec. 6. The Memphis Daily News recently interviewed outgoing president David Cook and incoming President Amy Amundsen. Learn more about Amundsen's theme of the "Three C's" -- cooperation between bench and bar, cohesiveness between minority bars and the MBA, and competency and wellness of lawyers.
Read the article
Improving communication is key goal for AWA president
Shari Myers, the new president of the Association for Women Attorneys, recently said that improving communication among lawyers, the legal community and the greater public will top her agenda for the year. In an interview with the Memphis Daily News she talks about her new position and the path that led her to the law.
Read more
Legislative News
Committee holds hearing on 'medical' marijuana
Members of the Tennessee House Health and Human Services Committee heard testimony this week on a proposal to allow the use of marijuana for medicinal purposes. Speaking in opposition to the legislation was Dr. David Murray, chief scientist for the Office of National Drug Control Policy and Dr. Kent Shih, an oncologist currently practicing in the Nashville area.
Read about the hearing on Chattanoogan.com
Passages
Rose funeral details released
The family of Kingsport lawyer Steven C. Rose will receive guests at the First Broad Street United Methodist Church tomorrow from 10-11 a.m. Funeral services will follow at 11:00 a.m. with Rev. Jack P. Weikel officiating. Burial will be at Oak Hill Memorial Park. In lieu of flowers memorial contributions can be made to the one of three organizations: the Steven C. Rose Memorial Scholarship Fund, c/o West & Rose, P.O. Box 1404, Kingsport, TN 37662; Friends of Allandale, 4444 W. Stone Drive, Kingsport, TN 37664; or Mountain Region Speech and Hearing, 404 Revere Street, Kingsport, TN 37660.
Read about Rose's life in the Johnson City Press
Upcoming
Swearing in ceremonies on tap
Newly admitted lawyers will be sworn in to the practice of law next week as admission ceremonies continue across the state. On Monday, the ceremony will take place in Nashville and be followed by an open house and lunch at the Tennessee Bar Center. On Tuesday, new lawyers in Knoxville and Chattanooga will be admitted. A reception hosted by the TBA Young Lawyers Division will follow the ceremony in Chattanooga. Last week, ceremonies were held in Memphis and Jackson. For details about the TBA open house contact Sarah Stair at sarahstair@tnbar.org

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

 
 
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