TBA bills clear legislature, CLE planned on new condo act

By a vote of 93-0-1, the state House today approved the TBA-backed bill extending statutes of limitations during times of disaster (SB3660 by Jamie Woodson/HB3060 by Henry Fincher). The bill earlier had passed the Senate and now goes to the governor for his signature.

The House also today passed the TBA-drafted bill known as the Tennessee Condominium Act of 2008 (SB2953 by Paul Stanley/HB2752 by Kent Coleman). The legislation was approved by the Senate on Monday night. The act, which replaces the 1963 Horizontal Property Act, takes effect Jan. 1, 2009. The TBA is planning a comprehensive array of continuing legal education programs on the new law including a two-hour primer at the TBA's annual convention in June, a day-long in-depth session for specialists and several half day and one hour updates.
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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WAYNE BOYKIN AND ASSOCIATES ET AL. v. HARRY TINSLEY

Court: TCA

Attorneys:

G. Jeff Cherry, Lebanon, Tennessee, for the appellant, Harry Tinsley.

Timothy A. Davis, Lebanon, Tennessee, for the appellees, Wayne Boykin and Associates and Cumberland Real Estate, LLC.

Judge: BENNETT

Listing real estate agent and buyer's agent filed suit against prospective buyer to recover their commissions due under a contract for the sale of real estate. The trial court found that prospective buyer breached the contract and awarded commissions to both agents. On appeal, prospective buyer challenges the trial court's finding that he breached the contract as well as the determination that he was liable to the listing agent for a real estate commission. We affirm.

http://www.tba2.org/tba_files/TCA/2008/boykinw_032708.pdf


DOYLE H. BRANDT ET AL. v. DAVID H. MCCORD, M.D. ET AL.

Court: TCA

Attorneys:

Joe Bednarz, Sr., Nashville, Tennessee; A. V. Conway, III, Hartford, Kentucky; and Steven R. Walker, Memphis, Tennessee, for the appellants, Doyle H. Brandt and Martha J. Brandt.

E. Reynolds Davies, Jr., Nashville, Tennessee, for the appellees, David H. McCord, M.D., and David H. McCord, M.D., P.C.

Tricia Dennis, Chattanooga, Tennessee, for the appellee, Karl Fournier, M.D.

Judge: CLEMENT

The issue on appeal in this medical malpractice action is whether the plaintiffs lawsuit was timely filed. The plaintiffs, husband and wife, filed this medical malpractice action on December 5, 2003, against three healthcare providers for a surgical procedure performed on husband on December 8, 2000. All defendants filed a Motion to Dismiss and/or for Summary Judgment based on the statute of limitations. The trial court summarily dismissed the complaint finding the plaintiffs had knowledge of enough facts more than one year before filing the lawsuit to put a reasonable person on notice that an injury had been suffered as a result of wrongful conduct by the defendants. The trial court also found that the doctrine of fraudulent concealment did not apply to toll the statute of limitations. The plaintiffs appealed. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/brandtd_032708.pdf


JAMES W. BURD, ET AL. v. DAESHAWN TRAUGHBER a/k/a DAESHAWN SOUZA, ET AL.

Court: TCA

Attorneys:

Nathan Whittle, Lebanon, Tennessee, for the appellants, Daeshawn Traughber, a/k/a Daeshawn Souza; and Lorena Traughber.

Martin Sir, Nashville, Tennessee, for the appellees, James W. Burd and Odie Burd.

Judge: COTTRELL

Defendants appeal the trial court's failure to set aside, under Tenn. R. Civ. P. 60.02, the grant of summary judgment in this intentional tort case. Finding that the trial court did not abuse its discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2008/burdj_032708.pdf


IN RE CONSERVATORSHIP OF CHADWICK

Court: TCA

Attorneys:

Billy N. Chadwick, Kingston, Tennessee, appellant, Pro Se.

No brief filed on behalf of the appellees, Kelley Narramore and Sandra Crabtree.

Judge: SUSANO

Kelley Narramore and Sandra Crabtree (collectively "the petitioners") are cousins of Lorilee Chadwick ("the ward"). The petitioners filed a petition seeking to be appointed conservators of the ward. The ward's father, Billy N. Chadwick ("Father"), opposed the petition. The trial court granted the petition and named the petitioners co-conservators. Father appeals, challenging the propriety of their appointment. We lack an adequate factual record, and therefore the trial court's factual findings are conclusively presumed to be correct. Furthermore, we do not find the absence from the record of a written report from the guardian ad litem to constitute a reversible error. Accordingly, we affirm the court's judgment.

http://www.tba2.org/tba_files/TCA/2008/chadwickl_032708.pdf


STATE OF TENNESSEE ex rel, PEGGY DOREEN (HUNN) FLATT v. JERRY KEITH FLATT

Court: TCA

Attorneys:

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

C. Mark Donahoe, Magan White, Jackson, TN, for Appellee.

Judge: HIGHERS

This appeal involves a child support obligation. The mother and father had three minor children. When the parties divorced, they entered into a marital dissolution agreement and a permanent parenting plan, which were approved by the divorce decree. Relevant to this appeal, the parties owned a newer residence, which was their marital home, and also an older residence, which had been listed for sale. The permanent parenting plan provided that it would not become effective until the older residence was sold. The parties agreed that the mother and the three children would be allowed to continue living with the father in the newer residence after the divorce until the older residence was sold. The father would be paying several marital debts until the older home sold, including the mortgage on the older home. However, the parenting plan provided that the father's obligation to pay child support would not begin until the older home was sold. The mother and children soon moved out of the marital home and into the older residence. Pursuant to the agreement, the father had no obligation to pay child support because the older residence had not been sold. Six weeks after the final divorce decree was entered, the mother filed a motion to set aside the divorce decree and parenting plan, claiming that the parties were not abiding by the decree and the father was not paying any child support. The mother began receiving public assistance benefits, and the State of Tennessee Department of Human Services filed a petition on her behalf seeking to modify the father's child support obligation, claiming that the agreement relieving him of his duty to pay child support was void and that a significant variance existed between his current obligation and the Child Support Guidelines. The trial court entered a default order requiring the father to pay child support directly to the mother, but later set it aside, leaving the father with only his obligation, pursuant to the marital dissolution agreement, to pay the marital debts until the older residence sold. The State appeals. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2008/flattp_032708.pdf


IN RE ADOPTION OF F.M.B.P.W.

Court: TCA

Attorneys:

Seth W. Rye, Erin, Tennessee, for the appellant, M.D.W.

Timothy K. Barnes, Clarksville, Tennessee, for the appellee, D.J. and C.J.

Judge: BENNETT

The biological father of F.M.B.P.W. appeals the termination of his parental rights. He maintains that he should have been personally served rather than served by publication and that he had no notice of the final hearing. Because we have determined that the statutory requirements of service by publication were not met, we vacate the order and remand the case to the trial court.

http://www.tba2.org/tba_files/TCA/2008/fmbpw_032708.pdf


STATE EX REL. TRACY RENEE JACKSON v. SHANNON MICHAEL JACKSON

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, for the appellant, State of Tennessee, Department of Human Services, ex rel. Tracy Renee Jackson.

Shannon Michael Jackson, not represented on appeal.

Judge: COTTRELL

This appeal involves a chancery court's modification of a pendente lite child support order and the forgiveness of arrearages resulting from that order. Because the modified order was interlocutory by nature and therefore subject to modification at any time prior to the entry of a final judgment, we affirm.

http://www.tba2.org/tba_files/TCA/2008/jacksont_032708.pdf


MARY ANNE MARCIANTE v. WILLIAM HAROLD PERRY

Court: TCA

Attorneys:

Joanie L. Abernathy, Franklin, TN, for Appellant.

Abby R. Rubenfeld, Nashville, TN, for Appellee.

Judge: HIGHERS

This appeal involves the classification and division of marital property after a marriage of approximately thirteen years. We have determined that the trial court erred in its classification of various assets and debts, and the resulting distribution of the marital estate was inequitable. Therefore, we modify the judgment and affirm as modified.

http://www.tba2.org/tba_files/TCA/2008/marciantem_032708.pdf


IN RE ADOPTION OF M. D. W., JR.

Court: TCA

Attorneys:

Seth W. Rye, Erin, Tennessee, for the appellant.

Timothy K. Barnes, Clarksville, Tennessee, for the appellee.

Judge: BENNETT

The biological father of M.D.W. appeals the termination of his parental rights. He maintains that he should have been personally served rather than served by publication and that he had no notice of the final hearing. Since constructive service is intended to be the last resort and is only permitted when the defendant's residence is unknown, counsel's knowledge of the biological father's address before service by publication was completed created an obligation to provide actual service to the biological father. We, therefore, vacate the order and remand the case to the trial court.

http://www.tba2.org/tba_files/TCA/2008/mdw_032708.pdf


RONALD PHILLIPS V. STRANGE TRUCK LINES

Court: TCA

Attorneys:

Larry V. Roberts, Kingsport, Tennessee, for the appellant, Ronald Phillips.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, Strange Truck Lines.

Judge: SUSANO

This suit arose out of a two-vehicle collision in Cocke County on September 15, 2005. Ronald Phillips ("the plaintiff") initiated this action by filing a civil warrant in General Sessions Court. The sole defendant was Strange Truck Lines ("the defendant"). Following a bench trial, the General Sessions Court entered judgment for the defendant. The plaintiff appealed to the trial court. In the trial court, the defendant filed a motion for summary judgment with supporting material. The plaintiff responded. The trial court granted the defendant summary judgment. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/phillipsr_032708.pdf


IN RE ADOPTION OF S.A.W.

Court: TCA

Attorneys:

Seth W. Rye, Erin, Tennessee, for the appellant, M.D.W.

Timothy K. Barnes, Clarksville, Tennessee, for the appellee, B.W. and L.W.

Judge: BENNETT

The biological father of S.A.W. appeals the termination of his parental rights. He maintains that he had no notice of the final hearing. The notice of the hearing was sent in accordance with Tenn. R. Civ. P. 5.02 to the address supplied by the biological father. Proof of due mailing creates a presumption of receipt and nothing in the record rebuts this presumption. We affirm.

http://www.tba2.org/tba_files/TCA/2008/S.A.W._032708.pdf


ROBERT J. YOUNG COMPANY v. NASHVILLE HOCKEY CLUB LIMITED PARTNERSHIP

Court: TCA

Attorneys:

Robert J. Walker and John L. Farringer IV of Nashville, Tennessee for appellant, Nashville Hockey Club Limited Partnership.

Ralph W. Mello of Nashville, Tennessee for Appellee, Robert J. Young Company.

Judge: CRAWFORD

This case arises from a contract dispute between the parties. The Appellant herein, Nashville Hockey Club, entered into a "Sponsorship Agreement" with the Appellee herein, Robert J. Young Company. Subsequently, the parties agreed to change their agreement. As a result, the parties entered into a subsequent "Letter of Agreement." When a players' strike occurred, Appellee wished to cancel the contract. Appellant claimed that the "Sponsorship Agreement," and particularly the force majeure clause contained therein, were not superseded by the "Letter of Agreement." The trial court granted summary judgment against Appellee and, following a hearing on Appellant's counter- claim, granted judgment in favor of Appellant but did not award damages based upon its finding that Appellant had mitigated all of its damages. Appellant appeals on the issue of damages. Appellee appeals on the issue of what, if any, agreement exists between the parties. Finding that the plain language of the "Letter of Agreement" supports a finding that same supersedes the "Sponsorship Agreement," we reverse and remand.

http://www.tba2.org/tba_files/TCA/2008/youngr_032708.pdf


STATE OF TENNESSEE v. SCOTT HOUSTON NASH

Court: TCCA

Attorneys:

Kenneth K. Crites, Centerville, Tennessee, for the Appellant, Scott Houston Nash.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and R. Stephen Powers, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WELLES

The Defendant, Scott Houston Nash, was convicted by a Dickson County jury of driving under the influence (fourth offense), a Class E felony, and sentenced to serve two years in the Department of Correction as a Range I, standard offender. In this direct appeal, the Defendant raises three issues for our review: (1) whether the trial court abused its discretion by failing to grant a mistrial after a witness spontaneously made hearsay statements regarding the Defendant's prior convictions for driving under the influence; (2) whether it was an abuse of discretion for the trial court to allow a judicial commissioner to testify for the State about the Defendant's drunken appearance the day he was arrested; and (3) whether recalling his jury for the latter part of his bifurcated trial -- three days after it had been discharged without admonition by the trial court -- violated his right to be free from double jeopardy as guaranteed by the United States Constitution. Following our review of the appellate record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/nashs_032708.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
Passages
Disciplinary Actions
TBA Member Services

Legal News
Grand jury: Davidson needs new juvenile facility
A Davidson County grand jury has weighed in on the question of whether the county's juvenile justice facility is adequate to meet its needs. In a report filed recently, the jurors emphasized the need for an upgraded or new facility citing design flaws, a shortage of showers, too few classrooms and the location of female cells as just a few reasons.
Read about it in the City Paper
Prosecutor says blackmail plot accuser is believable
The special prosecutor investigating an alleged blackmail plot against Memphis Mayor Willie Herenton said today he believes former cocktail waitress Gwen Smith has credibility. Smith has claimed since last fall that powerful local businessmen approached her about ensnaring Herenton in a sex plot.
The Commercial Appeal has more
Kazee to fill city judge seat
Oneida attorney and former city alderman Philip Kazee has been named to fill the city judge's seat vacated due to the recent death of Harold Jeffers. Kazee was chosen today by a unanimous vote of the Board of Mayor and Aldermen, on the recommendation of City Police Chief Mike Cross. Two other attorneys had applied for the position: Howard Ellis and Lori Phillips. The Independent Herald reported the news.

DOJ reviewing sub prime crisis
Attorney General Michael Mukasey revealed this week that the U.S. Department of Justice's criminal division is operating two mortgage fraud programs that already have brought hundreds of charges against individual defendants. Mukasey also disclosed that broader elements within the department are reviewing the sub prime crisis to determine if a "larger criminal story" exists. Bloomberg.com reported the news.

Law school rankings leaked
U.S. News & World Report is planning to post its new law school rankings tomorrow, but two blogs apparently beat the magazine to the punch. The ABA Journal reports that Above the Law and The Shark are among those posting an advance look at the rankings.
Check it out here
Supreme Court Report
Court explores standards for self representation
In lively arguments yesterday that included the plight of the mentally ill, fantasies about Martians and plenty of lawyer jokes, the Supreme Court considered whether a delusional and schizophrenic man finally found competent to stand trial was wrongly prohibited from representing himself.
Read the arguments in the Washington Post
Justices to hear warrantless search case
The court this week agreed to hear a case testing the constitutionality of the so-called consent-once- removed exception to the Fourth Amendment, and police immunity when relying on the exception. The theory holds that a suspect who allows an undercover informant to enter his home has agreed to let police enter. In accepting the case, the court asked lawyers to address whether a 2001 decision setting out a test for determining government officials' immunity should be overturned. SCOTUSBLOG has more about the case and other grants and denials made this week.
Read it here
Passages
Services set for Snouffer
Chattanooga attorney Kirk Snouffer, who died Tuesday following a series of illnesses, will be remembered at a 2:30 p.m. service tomorrow at Grace Episcopal Church, 20 Belvoir Ave. Visitation will begin at 1 p.m. at the church. In lieu of flowers, the family requests that memorial donations be made to The American Cancer Society, The American Diabetes Association, McKamey Animal Care and Adoption Center, The Tennessee River Gorge Trust or the donor's favorite charity.
Read more about Snouffer's life from Chattanoogan.com
Disciplinary Actions
Nashville attorney censured
On March 4, Jack Howell Davis Sr. was censured by the Board of Professional Responsibility for failing to pay the litigation tax in a divorce action, failing to respond to a client's calls and failing to keep a client informed of a case's status. The censure declares these actions improper but does not affect Davis' right to practice law.
Download the BPR's release
Memphis lawyer suspended
The Supreme Court temporarily suspended the law license of Terry A. Scott on March 19 based on his failure to respond to a complaint of ethical misconduct.
Read the BPR notice
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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