The Complete Lawyer: Battling the invasion of the jerks

Workplace bullies are becoming a national epidemic and law firms are not immune. The latest issue of The Complete Lawyer looks at this problem -- how bullies are causing increased turnover, absenteeism and a declining commitment to work -- and explores how to confront the problem and develop strategies for eliminating it. Read about this and more in the latest Complete Lawyer.

http://tennessee.thecompletelawyer.com/volume4/issue1/index.php

TODAY'S OPINIONS
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FRANK BARRETT d/b/a BARRETT CONSTRUCTION COMPANY v. TENNESSEE OCCUPATIONAL AND HEALTH REVIEW COMMISSION

Court: TCA

Attorneys:

John E. Herbison, Nashville, TN, for Appellant

Robert E. Cooper, Jr., Attorney General and Reporter, Warren A. Jasper, Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

In this appeal, we are asked to reexamine whether the Fifty Dollar Fines Clause of the Tennessee Constitution applies to administrative agencies. The Tennessee Occupational Safety and Health Review Commission fined a business owner $950 for various jobsite violations. The business owner appealed to the chancery court, arguing that the $950 fine violates Article VI, section 14 of the Tennessee Constitution. After considering the constitutional argument, the chancery court affirmed the agency's decision. We affirm, finding that Article VI, section 14 does not apply to administrative agencies.

http://www.tba2.org/tba_files/TCA/2007/barrettf_122807.pdf


IN RE ESTATE OF JOSEPH OWEN BOOTE, JR.

Court: TCA

Attorneys:

Andree Sophia Blumstein and William L. Harbison, Nashville, Tennessee, for the appellees, Helen Boote Shivers and Linda Boote Gerritsen.

Walter W. Bussart and Lee Bussart Bowles, Lewisburg, Tennessee, for the appellant, Martha M. Boote.

Judge: KOCH

This is the fourth appeal involving the disposition of the sizeable estate of a Marshall County resident. It is also the second appeal regarding the dispute between the testator's widow and his children from a previous marriage over the validity of the third codicil to the testator's will. This codicil dramatically alters the distribution of the testator's estate because it would entitle his widow, who is barred by an antenuptial agreement from receiving an elective share of her husband's estate, to receive one-third of the estate. In the third appeal, In re Estate of Boote, 198 S.W.3d 699 (Tenn. Ct. App. 2005), we vacated the judgment of the Chancery Court for Marshall County admitting the will and two codicils to probate in solemn form because we concluded that the widow's filing of a declaratory judgment seeking to establish the validity of the third codicil amounted to a timely contest of the will and the first two codicils. We remanded the case to enable the trial court, based on evidence presented by the parties, to determine whether the widow had established the purported third codicil as a lost or destroyed testamentary instrument and to enable the testator's children to contest the validity of any or all of the codicils to their father's will. Rather than permitting the parties to present evidence regarding all the elements required to establish a lost or destroyed testamentary instrument, the trial court limited the scope of the hearing on remand to (1) whether the testator had validly executed the third codicil and (2) whether the widow should be barred from establishing the third codicil because of unclean hands. The trial court found in the widow's favor on both issues, and the testator's children have appealed. They assert that the trial court improperly narrowed the scope of the hearing on remand and that they should have been permitted to present evidence with regard to all the elements needed to establish a lost or destroyed testamentary instrument. We agree and, therefore, vacate the August 30, 2006 and September 13, 2006 orders, and remand the case for further proceedings consistent with this opinion and our earlier opinion.

http://www.tba2.org/tba_files/TCA/2007/booteJ_122807.pdf


DENNIS HALL, ET AL. v. THOMAS HOWELL FOWLER, ET AL.

Court: TCA

Attorneys:

Thomas Burrell, Pro se.

Ivan D. Harris, Jr., Collierville, Tennessee, for the appellant, Thomas Howell Fowler.

John S. Wilder, Sr., and Joseph W. Archer, Somerville, Tennessee, for the appellees, Emma Lee Hall, Jean Hall Miller, Wilma Hall Patterson, Ercille Hall Williams, Evelyn Hall Little, Lela Hall Greene, Sam Hall, Julia Lockridge, Grady Cheryl Williams, Mary Gates, James E. Williams, Gloria Williamson, Mary Bonner, Sheila Bonner, Mary Jewel Bonner, Dennis Bonner, Lonnie Bonner, Virgie Burham, Johnnie Mae Evans, Sidney Hall and Velma Hall Tate.

Judge: FARMER

In this action to quiet title in ancestral land held as a tenancy in common, the plaintiff co-tenants challenged two deeds conveying a portion of the land to a grantee outside the family. The defendant grantee procured two deeds to an undivided fractional interest in this property for the sum of $3,500. The first deed was executed by some of the heirs of a record co-tenant, and the second deed originated from two sons of a record co-tenant's non-marital child. At that time, both the co-tenant of record and his non-marital child were deceased. Five days later, the grantee conveyed his interest in the subject property to a subsequent grantee for $21,000. The trial court set aside all deeds to the grantee, in part, on the ground of fraudulent procurement. It also set aside the deed to the subsequent grantee because the grantee had no title to convey. The court quieted title to the subject property in the plaintiff family members according to a series of quit claim deeds they had executed and recorded so as to partition the property among themselves. Further, the trial court ordered, sua sponte, the grantee to return the purchase price of the subject property, plus pre-judgment interest, to the subsequent grantee. Finding support in the record for setting aside the conveyances from only two of the original six grantors, we affirm in part, vacate in part, reverse in part, and remand for a calculation of the respective interests in the property and for a determination regarding the subsequent grantee's counterclaim for a partition in kind.

http://www.tba2.org/tba_files/TCA/2007/halld_122807.pdf


MALCOLM HINSON v. CITY OF COLUMBIA

Court: TCA

Attorneys:

Renee Andrews-Turner, Murfreesboro, Tennessee, for the appellant, Malcolm Hinson.

C. Tim Tisher, Columbia, Tennessee, for the appellee, City of Columbia.

Judge: ANDERSON

The issue presented to this court is whether the Chancery Court was correct in affirming the decision of a civil service board to terminate a city employee on the ground that he "knowingly received pay he did not earn." On appeal the employee contends that notice of the charge was inadequate and that there was not material and substantial evidence to support the board's decision. We agree that the notice was inadequate, and we have also determined that the board's decision was arbitrary and capricious. Accordingly, the Chancery Court judgment is reversed.

http://www.tba2.org/tba_files/TCA/2007/hinsonm_122807.pdf


J & B INVESTMENTS, LLC v. TARUN N. SURTI, ET AL.

Court: TCA

Attorneys:

Donald N. Capparella and Mathew R. Zenner Nashville, Tennessee, for the appellants, Tarun N. Surti, Lata Surti, and Arte Corporation, Inc.

Sam J. McAllester, III, and William J. Haynes, III, Nashville, Tennessee, for the appellee, J & B Investments, LLC.

Judge: CLEMENT

Three guarantors of a promissory note appeal the Chancery Court's decision to hold them liable for the deficiency owing on the note, including interest at the default rate of 24%, following the discharge in bankruptcy of the original debtor. After the debtor defaulted on the $1,500,000 promissory note, the debtor filed for Petition for Relief under Chapter 11 in Bankruptcy Court. The Bankruptcy Court approved the debtor's plan of reorganization after declaring that the Allowed Claim Amount would be based upon the original interest rate of 8.5%, not the default rate of 24%. In the interim, the holder of the promissory note filed this action to collect a deficiency on the indebtedness, specifically the difference between the default rate of 24% and the original interest rate of 8.5%. The Chancellor ruled by summary judgment that the plaintiff was entitled to collect the deficiency on the indebtedness against the Guarantors, the deficiency being the difference in the interest rates. Following the debtor's discharge in bankruptcy, the guarantors filed a Tenn. R. Civ. P. 60.02(4) motion contending the indebtedness owing to the plaintiff was satisfied pursuant to the Plan of Reorganization. The Chancellor denied the motion and awarded the holder of the note prejudgment and post-judgment interest at the default rate of 24%, and attorney fees incurred in this and a separate action. The guarantors appealed contending the Chancellor erred in denying their Rule 60 motion, finding the default rate of 24% to be legal, and awarding interest at the default rate prior to notice of default. The guarantors also contended it was error to award the plaintiff attorney fees for services rendered in a separate action. We have determined the debtor's bankruptcy does not affect the liability of the guarantors and thus does not impair the plaintiff's right to recover the deficiency. We have also determined the default rate of 24% was not usurious, and the holder of the note was not required to give notice of default to invoke the default rate. Further, we have determined the holder of the note was only entitled to recover attorney fees incurred to enforce the Guaranty Agreements, not to defend related actions that do not pertain to the Guaranty Agreements.

http://www.tba2.org/tba_files/TCA/2007/jbinvestments_122807.pdf


IN RE: J.B.W.

Court: TCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, K.S.

Christopher Wayne Barber, Stone Mountain, Georgia, for the appellee, W.L.W.

Judge: COTTRELL

This application for an interlocutory appeal concerns whether the Juvenile Court for Montgomery County has jurisdiction over and is the proper forum to consider a parentage and child support action. The putative father is a resident of Georgia. The mother and child resided in Tennessee when the petition was filed, but moved to Georgia shortly thereafter. We concur with the trial court that this is an appropriate case for an interlocutory appeal pursuant to Tenn. R. App. P. 9. Because the father made a general appearance in open court, we reverse the trial court's determination that it lacked personal jurisdiction over the father. However, we affirm the trial court's determination that, because both the parties and the child now reside in Georgia, Tennessee is an inconvenient forum and the action should be brought in Georgia.

http://www.tba2.org/tba_files/TCA/2007/jbw_122807.pdf


ESTATE OF HENRY ATLAS QUALLS AMOS E. QUALLS v. H. J. Q. KLUTTS, EXECUTRIX

Court: TCA

Attorneys:

Amos E. Qualls, Fayetteville, Tennessee, Pro Se.

Kimberly M. Hinson, Linden, Tennessee, and Larry Joe Hinson, Hohenwald, Tennessee, for the appellee, H. J. Q. Klutts, Executrix.

Judge: CLEMENT

This is the second appeal by the appellant who again has asked this court to review the Probate Court of Perry County's denial of his petition. In that petition, the appellant contested the manner in which the Executrix of his late father's estate administered the estate. We have determined the issue is res judicata and thereby affirm the trial court. We have also determined the appeal is devoid of merit and, therefore, the Executrix is entitled to recover her reasonable expenses incurred on appeal.

http://www.tba2.org/tba_files/TCA/2007/quallsh_122807.pdf


RAY A. WILSON, ET AL. v. ROBERT J. SCHWIND, M.D., ET AL.

Court: TCA

Attorneys:

Bob McD. Green, Johnson City, Tennessee, for the Appellants, Ray A. Wilson and wife, Beverly Wilson.

Charles T. Herndon, IV, and Bradley E. Griffith, Johnson City, Tennessee, for the Appellees, Robert J. Schwind, M.D., and Anesthesia and Pain Consultants, P.C.

Judge: SWINEY

In this medical malpractice action, Ray A. Wilson and his wife, Beverly Wilson, (the "Plaintiffs") sued the anesthesiologist and medical group responsible for administering anesthesia for Mr. Wilson's cataract surgery. Plaintiffs allege that the improper administration of anesthetic resulted in permanent blindness in Mr. Wilson's right eye. The defendants filed a Motion for Summary Judgment and attached an affidavit and deposition of an expert witness. At the hearing on the summary judgment motion, the Trial Court granted Plaintiffs' oral motion to take a voluntary dismissal of their case without prejudice. The defendants filed a motion to alter or amend the order of dismissal so as to be "with prejudice," and the Trial Court granted the defendants' motion. Plaintiffs filed a motion requesting a rehearing. At the hearing on Plaintiffs' motion, the Trial Court set aside its order amending the dismissal to be with prejudice and allowed Plaintiffs 30 days to file an expert witness affidavit in response to the defendants' Motion for Summary Judgment. Plaintiffs attempted to fax file an affidavit in opposition to the Motion for Summary Judgment. A few months later, Plaintiffs filed a second lawsuit in the same court against the same parties, alleging the same malpractice that was the basis of the first lawsuit. The defendants filed a Motion to Dismiss the second lawsuit. Following a hearing on both cases, the Trial Court found that fax filing an affidavit was not permitted by the Tennessee Rules of Civil Procedure, and therefore, Plaintiffs had not responded to the defendants' Motion for Summary Judgment. Consequently, the Trial Court granted summary judgment to the defendants in the first case. The Trial Court dismissed the second lawsuit upon finding that the first case was pending when the second case was filed and when the Motion to Dismiss was heard. Plaintiffs appeal. We find no error in the Trial Court's rulings, and we affirm.

http://www.tba2.org/tba_files/TCA/2007/wilsonr_122807.pdf


AARON BURTON v. HOWARD CARLTON, Warden

Court: TCCA

Attorneys:

Aaron Burton, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee and Mark Fulks, Assistant Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Aaron Burton, appeals the Johnson County Criminal Court's summary dismissal of his petition for a writ of habeas corpus. In 1997, the Petitioner pled guilty to second degree murder and received a sixteen-year sentence. The main focus of the Petitioner's argument is that his judgment is void because at the time of his conviction, second degree murder was not a lesser- included offense of felony murder. In two prior decisions of this Court, we addressed this precise claim of the Petitioner and determined it to be without merit. We affirm the order summarily dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2007/burtona_122807.pdf


STATE OF TENNESSEE V. OSHIA LYNN STARNES, A/K/A OSHIA LYNN BAFFA, A/K/A OSHIA LYNN BOFFA

Court: TCCA

Attorneys:

Joseph F. Harrison, Blountville, Tennessee, for the appellant, Oshia Lynn Starnes.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Rebecca Davenport and Joseph E. Perrin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Oshia Lynn Starnes, a/k/a Oshia Lynn Baffa, a/k/a Oshia Lynn Boffa, pled guilty in the Sullivan County Criminal Court to two counts each of identity theft, forgery, and misdemeanor theft and agreed to an effective sentence of four years with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the appellant serve her effective sentence in confinement. On appeal, the appellant contends that the trial court erred by denying her request for alternative sentencing. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/starneso_122807.pdf


TODAY'S NEWS

Legal News
Legislative News
TennBarU CLE
TBA Member Services

Legal News
New gun crime law takes effect Jan. 1
Tennessee's "Crooks with Guns" law will take effect on Tuesday, imposing mandatory minimum sentences without parole for individuals who use firearms to commit felonies; individuals who are in possession of guns while committing felonies; or prior felons who are found in possession of illegal weapons.
Read more in the City Paper
Judge rules for Genesco in high-stakes merger case
A judge ruled Thursday that Genesco Inc. executives did not commit fraud during negotiations over a $1.5 billion acquisition and that fellow mall retailer The Finish Line Inc. must complete the purchase.
Read the Associated Press's account of the decision
Thieves grab Nashville voting information
Thieves made off with computers containing the names and identifying information of every voter in Nashville when they broke in to the Davidson County Election Commission offices over the Christmas holiday.
Read more in the Tennessean
Pro se in the news
Self representation can be an effective tool for some people, but carries with it some risks. The Wall Street Journal's Law Blog looks at a pair of cases in the news that have spurred lively discussion.
Read more
Legislative News
Sunshine Law changes may change again
State Sen. Randy McNally says he continues to have some reservations about proposed changes to the state's open meetings law and expects the legislature to look closely at how, and if, it will alter the law this session.
Read more in the Loudon County News-Herald
TennBarU CLE
Online course tackles security interests in intellectual property
Intellectual property is increasingly one of the more important asset classes for modern businesses and a part of almost all funding transactions. However, few lawyers involved in commercial lending are IP experts. This TennBarU online CLE course from Nashville attorney Kelly Frey of Baker, Donelson, Bearman, Caldwell & Berkowitz can help. You may not become an expert, but learning about the unique aspects of intellectual property in secured lending could be essential to your practice.
Learn more or register now
TBA Member Services
Free online legal research is hot TBA benefit
Online legal research is available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
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