Demystifying the Disciplinary Process

Learn about the state disciplinary process, common mistakes that trip up lawyers and the role malpractice insurance plays in the profession during the upcoming Ethics Forum from TennBarU and the TBA's Young Lawyers Division. Speakers include attorneys representing the Board of Professional Responsibility, the state entity that investigates allegations of attorney misconduct, and attorneys who represent those accused of wrongdoing. The course will be held May 16 in Nashville. Find out more or register 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.

EMILE V. HAMM, MD and ANGELA HAMM, v. SCOTT D. HODGES, DO, CHATTANOOGA ORTHOPAEDIC GROUP, PC, ROGER W. CATLIN, MD, SUZANNE E. BENSON, MD, GREGORY WHITE, MD, THE CHATTANOOGA CENTER FOR PAIN MANAGEMENT

Court: TCA

Attorneys:

Jeffrey D. Boehm, Chattanooga, Tennessee, for appellants Emile V. Hamm, M.D., and Angela Hamm.

Timothy J. Millirons, Chattanooga, Tennessee, for appellees Scott D. Hodges, D.O., Chattanooga Orthopaedic Group, P.C., Roger W. Catlin, M.D., Suzanne E. Benson, M.D., Gregory White, M.D., and the Chattanooga Center for Pain Management.

Judge: FRANKS

Plaintiff, a physician, brought a malpractice action against several defendant doctors and medical groups for damages which he averred resulted from negligent medical treatment. Defendants moved for summary judgment and filed their personal affidavits that their medical treatment met the standard of care in the communities where they practiced. Plaintiff answered and filed his personal affidavit disputing that defendants met the community standard of care. The Trial Court held that plaintiff's affidavit was deficient in that it did not comply with the statutory requirements to make his testimony admissible and granted summary judgment. On appeal, we affirm the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/hamme_050808.pdf


BART KINCADE v. JIFFY LUBE

Court: TCA

Attorneys:

Kevin A. Snider, Germantown, Tennessee, for the appellant, Bart Kincade.

L. Clayton Culpepper, Memphis, Tennessee, for the appellee, Jiffy Lube.

Judge: FARMER

Appellant appeals the trial court's grant of Appellee's motion for involuntary dismissal. Appellant brought suit against Appellee under Tennessee Code Annotated section 24-5-111 for damage to his vehicle's engine allegedly caused by Appellee's negligent performance of an engine flush procedure. Following Plaintiff/Appellant's proof, the trial court granted an involuntary dismissal in favor of Defendant/Appellee. Appellant appeals. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/kincadeb_050808.pdf


DOTTIE DIANA SLAUGHER v. HENRY SLAUGHTER, JR.

Court: TCA

Attorneys:

Justin K. Thomas and David Michael Waldrop, Germantown, Tennessee, for the appellant, Henry Slaughter, Jr.

Misty D. Becker, Memphis, Tennessee, for the appellee, Dottie Diana Slaughter.

Judge: FARMER

This is a divorce action in which the trial court declared the parties divorced pursuant to section 36-4- 129(b) without attributing fault to either party, divided the parties' property, awarded Wife alimony in futuro in the amount of $1500 per month, ordered Husband to pay for Wife's health insurance, and awarded Wife her attorney's fees as alimony in solido. Husband appeals the division of property, the award of alimony, and the award to Wife of her attorney's fees. We affirm.

http://www.tba2.org/tba_files/TCA/2008/slaughterd_050808.pdf


STATE OF TENNESSEE v. RICHARD ANTHONY ARRIOLA

Court: TCCA

Attorneys:

Jeffrey DeVasher, Nashville, Tennessee (on appeal); Ross Alderman and J. Michael Engle, Nashville, Tennessee (at trial), for the Appellant, Richard Arriola.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; James E. Gaylord, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Roger Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

After conducting a bench trial, the trial court found the Defendant, Richard Arriola, guilty of one count of first degree murder, one count of attempted first degree murder, and two counts of attempted second degree murder. The trial court sentenced the Defendant to an effective sentence of life imprisonment plus fifteen years. On appeal, the Defendant contends that the trial court erred when it: (1) used an improper legal standard for an insanity defense because it required the Defendant to prove both that he was unable to appreciate the nature of his acts and that he was unable to appreciate the wrongfulness of his acts; and (2) sentenced the Defendant to consecutive sentences. After a thorough review of the case and the applicable law, we remand this case to the trial court for the clarification of its factual findings with respect to insanity.

http://www.tba2.org/tba_files/TCCA/2008/arriolar_050808.pdf


STATE OF TENNESSEE v. SAMMY ANDREW BROOKS, JR.

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender (on appeal); Jonathan Levy, Clark B. Thornton, Kyle F. Mothershead, Assistant Public Defenders (at trial), Nashville, Tennessee, for the Appellant, Sammy Andrew Brooks, Jr..

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Michel-Claire Bottoms, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Sammy Andrew Brooks, Jr., appeals his Davidson County jury conviction for driving under the influence, second offense, and the imposition of the resulting sentence of eleven months and twenty-nine days with service of ninety days in confinement. On appeal, Brooks raises the following issues: (1) whether the language of the DUI pattern jury instruction, particularly the phrase "impairs to any extent," is confusing and reduces the State's burden of proof; (2) whether the trial court erred in admitting the results of his breath alcohol test at trial; (3) whether the evidence was legally sufficient to support his conviction for driving under the influence; and (4) whether the decision of the trial court to sentence him to ninety days in jail was excessive. After review, we conclude that no reversible error exists and affirm.

http://www.tba2.org/tba_files/TCCA/2008/brookss_050808.pdf


KENNETH D. CROSS, JR., V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Tom Beesley, Crossville, Tennessee, for the appellant, Kenneth D. Cross, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Anthony J. Craighead, Interim District Attorney General; and Gary S. McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Kenneth D. Cross, Jr., pled guilty in the Cumberland County Criminal Court to aggravated vehicular homicide and received a sentence of twenty years. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective by failing to pursue a motion to suppress the results of a blood alcohol test that was taken without his consent and that his pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner now appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/crossk_050808.pdf


STATE OF TENNESSEE v. LISA DURBIN HOWARD
CORRECTION


Court: TCCA

Attorneys:

Larry D. Wright, Assistant Public Defender, Cleveland, Tennessee, for the Appellant, Lisa Durbin Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Steven Bebb, District Attorney General; and John R. Bledsoe, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WELLES

A jury found the Defendant, Lisa Durbin Howard, guilty of first degree premeditated murder, and the trial court sentenced her to life imprisonment. In this delayed appeal, she presents seven issues for our consideration: (1) whether the evidence was sufficient to support her conviction; (2) whether comments made by the trial court to the jury as it deliberated were improper; (3) whether the trial court erred by disallowing expert testimony proffered by the Defendant regarding her experiences with domestic violence; (4) whether it was plain error for the trial court not to address the State's striking of the only African-American of the venire; (5) whether alleged juror misconduct deprived the Defendant of her right to a fair and impartial jury; (6) whether the trial court abused its discretion by not individually polling the jury; and (7) whether the State's failure to properly preserve the recordings of the preliminary examination, contrary to Tennessee Rule of Criminal Procedure 5.1(a), required the trial court to remand the case to the general sessions court. 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/howardl_CORR_050808.pdf


STATE OF TENNESSEE v. KIMBERLY A. BUSH O'NEAL

Court: TCCA

Attorneys:

C. Kelly Wilson, Shelbyville, Tennessee, for the Appellant, Kimberly A. Bush O'Neal.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel; Chuck Crawford, District Attorney General; Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Kimberly A. Bush O'Neal, was declared a motor vehicle habitual offender (MVHO) by order of the Bedford County Circuit Court. The Defendant subsequently filed a motion, pursuant to Rule 60 of the Tennessee Rules of Civil Procedure, asking the Bedford County Circuit Court to declare the MVHO order void because it did not comply with Rule 58 of the Tennessee Rules of Civil Procedure. In the Circuit Court and on appeal, the Defendant claims the order is void because the court clerk did not sign the certificate of service. After a thorough review of the record and the applicable law, we conclude the order was not void and affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/onealk_050808.pdf


Quarantine of Clandestine Methamphetamine Lab Locations

TN Attorney General Opinions

Date: 2008-05-08

Opinion Number: 08-100

http://www.tba2.org/tba_files/AG/2008/ag_08_100.pdf

Financing for a Religious Entity under Tenn. Code Ann. Sections 67-4-3001, et seq.

TN Attorney General Opinions

Date: 2008-05-08

Opinion Number: 08-101

http://www.tba2.org/tba_files/AG/2008/ag_08_101.pdf

School Board Spouse of Assistant Director Voting on School Director's Contract

TN Attorney General Opinions

Date: 2008-05-08

Opinion Number: 08-102

http://www.tba2.org/tba_files/AG/2008/ag_08_102.pdf

Transfer of Felons Housed in the County Jails to the TDOC

TN Attorney General Opinions

Date: 2008-05-08

Opinion Number: 08-103

http://www.tba2.org/tba_files/AG/2008/ag_08_103.pdf

Regulatory Takings as Applied to Coal Severance Tax

TN Attorney General Opinions

Date: 2008-05-08

Opinion Number: 08-104

http://www.tba2.org/tba_files/AG/2008/ag_08_104.pdf

Constitutionality of Amendment 1 to Senate Bill 4104/House Bill 4089

TN Attorney General Opinions

Date: 2008-05-08

Opinion Number: 08-105

http://www.tba2.org/tba_files/AG/2008/ag_08_105.pdf

Constitutionality of HB2858/ SB2653 Authorizing Student Drug Testing

TN Attorney General Opinions

Date: 2008-05-08

Opinion Number: 08-106

http://www.tba2.org/tba_files/AG/2008/ag_08_106.pdf

TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Disciplinary Actions
Your Practice
Passages
TBA Member Services

Legal News
Medina judge files for Criminal Appeals vacancy
Circuit Court Judge Roger Amos Page of Medina is the seventh applicant seeking to fill the vacant Court of Criminal Appeals seat for the western division. He joins Clayburn L. Peeples Jr., Jeff Mueller, Joe H. Walker III, Garland Ingram Erguden, W. Mark Ward and J. Ross Dyer. The vacancy was created by the retirement of Judge David Hayes. The deadline to apply is tomorrow, May 9.
The Administrative Office of the Courts has details
New judge to hear Lineweaver's appeal
Davidson County Judge Betty Adams Green this week agreed to step aside and let another judge hear Juvenile Court Clerk Vic Lineweaver's appeal of civil contempt charges. Green had ordered Lineweaver jailed after his office misplaced files for cases that were months overdue in court. Lineweaver's attorneys asked for the reassignment, arguing that Green was too close to the case to be impartial.
The Tennessean has more
Scalia explains recent spate of publicity
U.S. Supreme Court Justice Antonin Scalia has been making the media rounds to publicize his new book. Known for his often-stated view that judges should not seek publicity, Scalia now says that tradition has broken down -- concluding that if he is going to be a public figure, he would rather the public get their notion of him firsthand. Law.com has this Legal Times article looking at the justice's media tour. Read an interview Scalia recently gave to C-SPAN

Memphis lawyer describes holistic law practice
Since 2000, Memphis lawyer Maureen T. Holland has been practicing holistic law, which promotes peaceful advocacy, compassion, reconciliation and healing, and advocates for a humane legal process. The Memphis Daily News recently interviewed Holland about her approach to the practice of law.
Read more here
Legislative News
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
Alcohol related bills move
Legislation that would remove limits on how much time authorities have to give drunken driving tests following a traffic stop has cleared both chambers and is headed to the governor for his consideration. Read more about that bill from the Memphis Daily News. In addition, legislation requiring all individuals convicted of drunken driving to serve at least 48 hours in jail has passed the House. A similar bill was approved by the Senate last month. The chambers must now work out differences. Get details on that proposal

Supreme Court Report
State high court considers 'crack tax'
The fight for Tennessee's so-called "crack tax" has reached the Supreme Court, where state lawyers argued Wednesday that drug dealers should be taxed like any other merchant. Lower courts have ruled the tax unconstitutional because it generates revenue from illegal activity and potentially violates the right against self-incrimination.
The Clarksville Leaf Chronicle looks at the arguments
State court takes on custodial question
The state Supreme Court struggled yesterday with a unique question under the law: how strong must the bond be to legally bind a person to a child's care and welfare? The case at issue involves alleged cult leader Ariel Ben Sherman and whether his role as "spiritual father" to a 15-year-old makes him criminally responsible for her death.
The News Sentinel explores
Disciplinary Actions
Correction: Knoxville lawyer remains suspended
TBA Today recently reported that Nathanael Ellis Anderson had complied with requirements for continuing legal education, and would be reinstated to practice law. Anderson, however, remains suspended based on a March 19 Supreme Court order that he poses a threat of substantial harm to the public for continuing to practice law while suspended.

Your Practice
Tips for avoiding career-ending mistakes
A recent article in the National Law Journal outlines the worst mistakes a lawyer can make and suggests ways to avoid such pitfalls. Among the top behaviors to avoid: not admitting mistakes, abusing firm staff, and badmouthing clients and firm administration. Top tips include learning to play nice, being smart about using email and handling social situations properly.
Law.com has the full article
Passages
Powell lawyer dies
Powell lawyer Charles Gordon died Monday at the age of 80. Gordon earned his law degree from the University of Tennessee College of Law and began practicing in 1975. A memorial service will be held at 10 a.m. May 17 at Westminster Presbyterian Church, 6500 Northshore Drive, Knoxville. In lieu of flowers, the family requests contributions be made to the church.

TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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