Elliott to lead TBA in 2010-2011

Chattanooga attorney Sam Elliott will become the next vice president of the Tennessee Bar Association after drawing no challenger for the position. That puts him on track to lead the organization as president in the 2010-2011 bar year. Elliott, a lawyer with Gearhiser, Peters, Lockaby, Cavett & Elliott, currently serves as the third district representative to the TBA Board of Governors and leads its Operations Committee. His election will become official following certification by the Board of Governors. Several other candidates for positions on the Board of Governors and seats in the ABA House of Delegates also will gain their offices without opposition. See the full listing
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Court: TCA


James F. Arthur, III, Memphis, TN, for Appellant.

Rachael E. Putnam, Memphis, TN, for Appellee.


The trial court entered an order modifying its earlier parenting plan. After the Court's judgment, the mother filed a motion attacking the jurisdiction of the Court to modify the prior order. The trial court overruled the motion. On appeal, we find that neither the child nor either of the parents have resided in Tennessee since 2002. Therefore, the trial court did not have subject matter jurisdiction to modify its prior order. We reverse and dismiss.



Court: TCA


Kirk L. Clements, Goodlettsville, Tennessee, for the appellant, Horizon Communications, Inc.

Culwell E. Ward, Nashville, Tennessee, for the appellee, Boggs Kurlander Steele, LLC d/b/a Old Hickory Mobile Estates.

Judge: SCOTT

This appeal involves a declaratory judgment regarding the termination of a contract to install a cable system and provide cable service to a trailer park as well as a counter-complaint for damages. The trial court determined that the contract was properly terminated and dismissed the counter-complaint. On appeal, the Appellant argues that (1) the Appellee waived its contractual right to have this matter decided pursuant to Kentucky law; (2) that the trial court erred in determining that it materially breached the contract by failing to install a new system in a timely manner; (3) that the trial court erred in determining that it did not provide cable service equal to the service rendered by the former cable provider; (4) that the trial court erred in determining that the contract was properly terminated; (5) that it is entitled to damages because the Appellee failed to notify the Appellant with information about new residents as required by the contract; and (6) that the trial court erred by awarding the Appellee its attorney's fees and failing to award the Appellant its attorney's fees. We find that the Appellee has waived its right to have this matter determined pursuant to Kentucky law. The trial court did not err in determining that the Appellant materially breached the contract by not providing cable service equal to the service previously provided and that the contract was properly terminated. Furthermore, we find that the Appellant is not entitled to damages because the Appellant did not prove what damages it incurred due to the Appellee's failure to provide the homes of new residents as required by the contract. Finally, the trial court did not err in awarding the Appellee's attorney's fees. The judgment of the trial court is affirmed, and this cause is remanded to the trial court for the award of Appellee's attorney's fees on appeal.



Court: TCA


Michael M. Raulston, Chattanooga, Tennessee, for the appellant, Daniel Pantoja Garcia, individually and as the surviving spouse of Lydia Garcia, deceased, and as father and next friend of Ismael Corona Garcia, Manuel Corona Garcia, and Daniel Corona Garcia, minor children of Lydia Garcia, deceased.

Craig R. Allen, Thomas A. Williams, and Bruce D. Gill, Chattanooga, Tennessee, for the appellee, Norfolk Southern Railway Company.


In this appeal of a directed verdict in a wrongful death case, Daniel Pantoja Garcia ("Husband") claims that Norfolk Southern Railway Company ("Norfolk Southern") was negligent in failing to warn his now-deceased wife, Lydia Garcia ("Wife"), of the presence of diesel fuel inside a fuel tank that Wife, as an employee of Progress Rail Services Corporation ("Progress Rail"), was assigned to dismantle. As Wife was cutting the tank with a torch-cutter on Norfolk Southern's property, the tank exploded, killing Wife. The trial court granted a directed verdict because it found no evidence that Norfolk Southern owed any duty in this case. We affirm.



Court: TCA


August C. Winter, Brentwood, Tennessee, for the appellants, Ronnie R. Smith and Betty Jo W. Smith.

Robert Evans Lee, Lebanon, Tennessee, for the appellee, Beverly C. Smith.


Buyers of commercial property, who were denied possession of that property for a period of two years, appeal from the trial court's determination that they failed to carry their burden of proving a fair rental value for one of the three units of the property. Finding that the evidence preponderates against the trial court's determination, we reverse.



Court: TCCA


J. Carter Massengill, Bristol, Tennessee, for the Appellant, James Alan Bates.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, James Alan Bates, appeals the order of the Sullivan County Criminal Court denying his petition for post-conviction relief in which he asserted ineffective assistance of counsel. Bates contends that trial counsel was ineffective based upon the following: (1) failing to call a DNA expert as a witness at trial; (2) failing to utilize an investigator to aid in locating potential defense witnesses; (3) failing to adequately communicate and report developments in preparation of the defense at trial and on appeal; (4) failing to file a motion for a speedy trial; and (5) failing to provide "street clothes" for incarcerated defense witnesses, who testified while wearing their jail uniforms. After review, we affirm.



Court: TCCA


Kelly S. Johnson, Knoxville, Tennessee, for the Appellant, William Justin Brewster.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, William Justin Brewster, appeals the denial of his petition for post-conviction relief by the Knox County Criminal Court. Brewster argues that the post-conviction court erred in denying him relief on his asserted claims of ineffective assistance of counsel both during trial and on appeal. Upon thorough review, we conclude that the post-conviction court correctly denied the petition and affirm.



Court: TCCA


Brent Hensley, Greeneville, Tennessee, for the appellant, David Wayne Hearing.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Connie Trobaugh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, David Wayne Hearing, pled guilty to two counts of first degree felony murder and received concurrent life sentences. He subsequently filed a Tennessee Rule of Criminal Procedure 32(f) motion to withdraw his guilty pleas, which was denied by the trial court. He alleges on appeal that he should have been allowed to withdraw his pleas because they were unknowing and involuntary, and his counsel's assistance was ineffective. Following our review, we affirm the judgment of the trial court.



Court: TCCA


Ross Brent Gray (at trial and on appeal), Sevierville, Tennessee, and Charmaine Nichols (at trial), Knoxville, Tennessee, for the appellant, Jeffrey Ray McMahan.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Johnnie D. Sellars, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Jeffrey Ray McMahan, was convicted by jury of one count of driving as a habitual motor vehicle offender (HMVO), driving while under the influence (DUI), fourth offense or greater, violation of the implied consent law, reckless endangerment, and disorderly conduct. The defendant was sentenced as a Range II, multiple offender. With the exception of disorderly conduct, the trial court ordered the defendant's convictions to run consecutively for a total effective sentence of twelve years. As his sole issue on appeal, the defendant challenges the trial court's imposition of consecutive sentences. After appellate review, we affirm the judgments of the trial court.



Court: TCCA


Bruce E. Poston, Knoxville, Tennessee, for the appellant, Joey Dewayne Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Joey Dewayne Thompson, appeals from his Knox County Criminal Court jury convictions of second degree murder and voluntary manslaughter. The trial court imposed an effective sentence of 25 years to be served in the Department of Correction. On appeal, the defendant claims that the conviction of second degree murder is unsupported by sufficient evidence, that the verdicts are contradictory, that the prosecution for and conviction of second degree murder violated principles of double jeopardy, and that the prosecution was barred by principles of collateral estoppel. Following our review, we affirm the convictions.


Charter Schools Sunset Date

TN Attorney General Opinions

Date: 2008-02-22

Opinion Number: 08-32



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