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
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.

DONALD T. ARENDALE v. GLENDA S. ARENDALE (SCHUETT)

Court: TCA

Attorneys:

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

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

Judge: CANTRELL

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.

http://www.tba2.org/tba_files/TCA/2008/arendaled_022208.pdf


BOGGS KURLANDER STEELE, LLC V. HORIZON COMMUNICATIONS, INC.

Court: TCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCA/2008/boggskurlandersteele_022208.pdf


DANIEL PANTOJA GARCIA v. NORFOLK SOUTHERN RAILWAY COMPANY

Court: TCA

Attorneys:

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.

Judge: SUSANO

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.

http://www.tba2.org/tba_files/TCA/2008/garciad_022208.pdf


BEVERLY C. SMITH v. RONNIE R. SMITH ET AL.

Court: TCA

Attorneys:

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.

Judge: BENNETT

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.

http://www.tba2.org/tba_files/TCA/2008/smithb_022208.pdf


STATE OF TENNESSEE v. JAMES ALAN BATES

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/batesj_02208.pdf


WILLIAM JUSTIN BREWSTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/brewsterw_022208.pdf


DAVID WAYNE HEARING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/hearingd_022208.pdf


STATE OF TENNESSEE v. JEFFREY RAY MCMAHAN

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/mcmahanj_022208.pdf


STATE OF TENNESSEE v. JOEY DEWAYNE THOMPSON

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2008/thompsonj_022208.pdf


Charter Schools Sunset Date

TN Attorney General Opinions

Date: 2008-02-22

Opinion Number: 08-32

http://www.tba2.org/tba_files/AG/2008/ag_08_32.pdf

TODAY'S NEWS

Legal News
Legislative News
TennBarU CLE
TBA Member Services

Legal News
Legal hotline now available for tornado victims
Victims of this month's tornadoes may request free legal assistance by calling a toll-free disaster legal services hotline set up this week. The hotline number is (877) 396-6248. It will be operated Monday through Friday from 9 a.m. to 5 p.m. Central Time by Tennessee Alliance for Legal Services staffers, who will refer requests to local legal aid offices in coordination with the TBA Young Lawyers Division. The TBA also continues to recruit attorneys statewide to volunteer to handle cases.
Sign up to volunteer
Former inmate working to block Puryear nomination
A former inmate has turned advocate in his efforts to block Nashville lawyer Gus Puryear from being confirmed to a seat on the federal bench. Alex Friedmann spent six years at a prison owned by Corrections Corporation of America - where Puryear serves as chief counsel - and successfully sued the company for a civil rights violation.
Read more in the Kingsport Times-News
ABA announces professionalism awards
Nominations are now being accepted for the 18th annual E. Smythe Gambrell Professionalism Awards, which recognize projects that enhance professionalism among lawyers. Bar associations, law schools, law firms and other not-for-profit law related organizations are eligible to apply.
Entry forms and guidelines are available here
Legislative News
Big Shrimp Reception no small event
The Tennessee Bar Association's Big Shrimp Reception Tuesday night was again a big hit, welcoming legislators from across the state for the annual event. The evening gave TBA leaders and other members the opportunity to meet with about 100 legislators and their staff in a casual setting.
See scenes from Big Shrimp 2008
Crime reporting bill may face difficulties in enforcement
The state Senate passed a bill on Thursday that would punish people who fail to report crimes that result in injury or death. A House version of the bill is scheduled for a hearing next week, however the Tennessee Judicial Council is still reviewing the bill. Tennessee Supreme Court Justice Cornelia A. Clark, who chairs the council, expressed doubts about the legislation, saying "I think the actual enforcement may have several levels of difficulty."
Read more in the Tennessean
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
TennBarU CLE
Getting paid a problem? TennBarU online ethics course can help
Collecting fees is not directly addressed in the Rules of Professional Conduct, however both the rules and malpractice carriers have something to say on the issue. This online course from TennBarU explores practice management strategies to help reduce the number of non-paying clients and discusses ethical obligations for collecting fees from such clients.
Register or learn more
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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