New law, court rule will guide actions following disasters

The Tennessee Supreme Court today adopted rules changes which, when taken with the recently enacted Public Chapter 725, outline the process the courts will use to address the extension of deadlines and statute of limitations when disasters occur. Under the amendment to Supreme Court Rule 49, the chief justice may extend filing and other deadlines when a major disaster incapacitates a court or courthouse. The order may also designate alternative filing methods. The TBA-proposed legislation that won approval this year and has been enacted as Public Chapter 725 provides that the extension of deadlines under any court rule would also have the effect of extending the statute of limitations. Both of these recommendations resulted from the Emergency Preparedness Task Force appointed by the TBA in the wake of hurricanes Katrina and Rita.
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Court: TCA


Lisa Armstrong Houston and Teresa A. Luna, Jackson, Tennessee, for the appellant, Anthony D. Adams

Cynthia Chandler-Snell and Barbara Hobock, Humboldt, Tennessee, for the appellee, Tammy Keymon Adams

Judge: KIRBY

This is a divorce case. The parties began living together in 1998, and married in 2004. Some time before the marriage, the parties purchased a residential lot on which they constructed a home, financing the construction with a credit card in the wife's name. Title to the home was in the wife's name alone. The husband performed manual labor on the lot and the home during and after the construction. During the marriage, the parties operated a business that proved unsuccessful. The wife eventually left to start her own business in a different field. At approximately the same time, the wife filed for divorce. A trial ensued. The parties introduced evidence on the value of the home, various items of personal property, and a significant amount of credit card debt. After the close of the evidence, the trial court granted a divorce to the wife, and awarded the home and the debt associated with the home to her. It ordered the sale of some property and application of the proceeds to the parties' debt. The remaining debt was not classified as marital or separate and was not divided. The parties appeal. The husband argues that the trial court erred in not awarding him a share of the parties' business and the increase in value of the marital home. The wife argues that the trial court erred in failing to designate the assets and debts as marital or separate and to divide them between the parties. We affirm the trial court's decision not to award the Husband a share of the failed business or a share of the increase in value of the parties' home. We vacate the remainder of the judgment and remand for allocation of the personal property and the debt.


Court: TCA


Paula Ogle Blair, Nashville, Tennessee, for the appellant, Sherry Rosette Barbee.

Robert E. Cooper, Jr., Attorney General and Reporter, and Warren Jasper, Assistant Attorney General, for the appellee, State of Tennessee.


The State of Tennessee, acting on behalf of a father, filed a petition for contempt against the mother of the parties' three minor children for her failure to pay child support. Following the contempt hearing, the trial court found the mother "might be slightly mentally retarded" but that she had the ability to pay and willfully failed to pay child support on eighteen occasions. Finding her guilty of criminal contempt, the trial court sentenced the mother to 180 days in jail. The mother appeals, contending the State failed to present sufficient evidence that she had the ability to pay child support and failed to present sufficient evidence that her failure to pay was willful. Finding the evidence in the record insufficient to prove that the mother had the ability to pay the amount of support as ordered and that the evidence is insufficient to prove that the mother's failure to pay child support was willful, we reverse the trial court's finding of criminal contempt.


Court: TCA


Michael C. Murphy, Morristown, Tennessee for the Appellant, Stephen Shawn Bunch.

Denise Terry Stapleton, Morristown, Tennessee for the Appellee, Sonya Lynn Bunch.


After six years of marriage, Sonya Lynn Bunch ("Wife") sued Stephen Shawn Bunch ("Husband") for divorce. The Trial Court, inter alia, granted Wife a divorce, awarded Wife transitional alimony, awarded Wife attorney's fees, and divided the parties' marital property and debts. Husband appeals the division of marital property. We affirm.


Court: TCA


Paula Ogle Blair, Nashville, Tennessee, for the appellant, Lance E. Eastman.

Timothy T. Ishii, Nashville, Tennessee, for the appellee, Leilani K. Eastman.


The appellant, Father, was found guilty of fourteen counts of criminal contempt for his failure to pay child support, for which he was sentenced to 140 days in jail. Father admitted that he only paid $20.00 in child support for eighteen months although the court order expressly directed that he remit $372.000 per month; however, he contended the payment of the lesser amount was due to confusion and instructions from his former attorney. The Final Divorce Decree erroneously directed Father to pay $20.00 per month in child support. A corrected order, which expressly acknowledged the error in the initial decree, directed Father to pay $372.00 per month. It is undisputed that Father and his counsel received the corrected order. Following an evidentiary hearing, the trial court found Father was not a credible witness, that he had the ability to pay and that his payment of $20.00 per month for fourteen consecutive months following receipt of the corrected order constituted willful disobedience of the court's order. We have determined the evidence established beyond a reasonable doubt that Father had the ability to pay the child support obligations as and when they became due, that his failure to pay the correct amount for fourteen months following the receipt of the corrected order was willful, that he was guilty of fourteen counts of criminal contempt, and that the sentence of ten days for each offense for a total of 140 days is appropriate. Accordingly, we affirm the judgment of the trial court.


Court: TCA


Alex Darcy, Chicago, IL, Scott A. Frick, Memphis, TN, for Appellant

Robert L. Moore, Russell B. Jordan, Memphis, TN, for Appellee


This is an appeal from a trial court's grant of summary judgment. The plaintiff brought suit against the defendant, seeking the balance allegedly due under a contract between the defendant and a third party. The plaintiff contended that it was the assignee of the rights, but not the obligations, of this contract. The defendant moved for summary judgment, contending that the third party manifested its intent to terminate the contract prior to the alleged assignment. In the alternative, the defendant argued that its performance was excused because the third party filed for bankruptcy, which was a ground of default. The defendant also disputed whether there was in fact an assignment between the plaintiff and the third party. The trial court granted the defendantís motion for summary judgment. We affirm.


Court: TCA


M. Ben Moore, II, Nashville, Tennessee, for the appellant, Tri-Star Waste Systems, Inc.

Christian M. Garstin, Nashville, Tennessee, for the appellee, Nationwide Mutual Insurance Company.


The issue on appeal in this subrogation action is whether the insurance company's subrogation claim is barred by the doctrine of collateral estoppel due to the fact its insured's previous general sessions action against the same defendant concerning the same vehicular accident was dismissed and is a final judgment. The circuit court judge denied the defendant's motion for summary judgment, which was on the issue of collateral estoppel, due to the fact it could not determine from the scant general sessions' record that the issue the defendant sought to preclude was litigated and decided on its merits in the previous action in general sessions court. We affirm the decision of the circuit court.

IN RE: J. D. P. AND J. L. J.

Court: TCA


William C. Barnes, Jr., Columbia, Tennessee, for the appellant A. L. J., Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, for the Tennessee Department of Children's Services.


Father appeals the termination of his parental rights to his two minor children, J.L.J. and J.D.P. The trial court terminated his rights on the grounds of substantial non-compliance with the permanency plan and the existence of persistent conditions. The trial court also found that the termination of Father's parental rights was in the children's best interest. We affirm the trial court's termination of parental rights based upon Father's substantial non-compliance with the permanency plans and the fact that termination of his parental rights is in the children's best interest.


Court: TCA


Joseph Lee Johnson, Fulton, Kentucky, for the appellant, Donnie L. Richmond.

Jack L. Garton, Dickson, Tennessee, for the appellee, Newt Ochalek.


This is an appeal from a declaratory judgment action concerning the validity of a marriage. Purported wife died intestate; deceased's son sought declaration that her marriage to defendant was void ab initio for purposes of administering decedentís estate. The proof showed that defendant and deceased participated in a wedding ceremony but that defendant forged the officiating minister's signature on the marriage license and certificate following the ceremony. The trial court declared the marriage void as a matter of law. We affirm.


Court: TCA


Henry S. Queener, Nashville, Tennessee, for the appellant, Phyllis A. Rice.

Melissa B. Muller, Nashville, Tennessee, for the appellees, Amit S. Patel and Sharad M. Patel.


Plaintiff appeals from an adverse judgment rendered in a negligence case in which the trial court recalled the jury to the courtroom to give a supplemental instruction on comparative fault it had erroneously omitted. In her complaint, the plaintiff alleged the defendants negligently operated a vehicle causing her injuries. The defendants answered the complaint denying any wrongdoing and pleading the affirmative defense of comparative fault. The matter went to a jury trial, and the court instructed the jury on the issue of negligence but failed to instruct the jury on the issue of comparative fault. Immediately after the jury retired for deliberations, the defense counsel requested that the trial court call the jury back to the courtroom and give the omitted instruction. Plaintiff's counsel agreed to recall the jury on the condition the trial court also give a curative instruction. Three minutes after the jury originally left the courtroom, the trial court recalled the jury to the courtroom and gave the requested instructions, following which the jury returned to deliberate. Three hours later, the jury returned a verdict for the defendants. Plaintiff appeals, contending the omission of the instruction of comparative fault and subsequently giving the omitted instruction after the jury had been excused to deliberate, constitutes reversible error. We agree it was error but Plaintiff has failed to establish that the error more probably than not affected the judgment or resulted in prejudice to the judicial process. Therefore, the error does not constitute reversible error. Accordingly, we affirm.


Court: TCCA


Johnny Justin Postles, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter and Deshea Dulany, Assistant Attorney General, for the appellee, State of Tennessee.


The Petitioner, Johnny Justin Postles, appeals the Lauderdale County Circuit Court's summary dismissal of his petition for habeas corpus relief attacking his convictions for criminal trespass, simple assault, aggravated burglary, aggravated assault, and misdemeanor theft. On appeal, he argues that he is entitled to habeas corpus relief because the court reporter failed to file verbatim records with the clerk of the court in violation of Tennessee Code Annotated section 40-14-307(a). Following a review of the record, we conclude that the Petitioner has failed to allege any ground that would render the judgments of conviction void or his sentence illegal. The judgment of the habeas corpus court summarily dismissing the petition is affirmed.


Legal News
Your Practice
TBA Member Services

Memphis legal leader dies at age 92
Irvin Bogatin, co-founder of the Memphis-based Bogatin Law Firm, died this morning at age 92. A civic leader in Memphis for many years, Mr. Bogatin was also a leader in the bar, serving as a member of the TBA's Board of Governors, as president of the Memphis Bar Association, and as a charter fellow and past chairman of both the Memphis and Tennessee Bar Foundations. He was also a co-founder of Memphis Area Legal Services and was an inaugural year recipient of a Pillars of Excellence Award from the University of Memphis for his 50-plus years of service in helping shape the Memphis legal community and community at large. A memorial service is scheduled for July 7 at 3 p.m. at Temple Israel, with a reception to follow.

Legal News
Court of Judiciary questions lawyers about Judge Meares
The Tennessee Court of the Judiciary is apparently investigating the conduct of Maryville Circuit Judge Mike Meares, the Maryville Daily Times reports. TCJ investigator Jim LaRue reportedly interviewed several people about Meares' recent orders that called Circuit Court Clerk Tom Hatcher and attorneys, including Rob Goddard and Melanie Davis, into court to testify about administrative matters. Both Davis and Goddard confirmed that they had been interviewed about Meares.
Find out more
House set to go home Wednesday
Death row inmate Paul House's mother has posted the newly reduced $100,000 bond so that he can await his retrial at home. In prison for 23 years, House will be kept under house arrest at his mother's Crossville home and be monitored 24 hours a day.
Read more in the News Sentinel
McCroskey to be Phillips' successor, courts closed for two days
Knoxville's Chief Deputy Court Clerk Joy McCroskey will be sworn in to fill the unexpired term of Martha Phillips, who died Monday. Phillips, 79, was the long-time Criminal and Fourth Circuit Court clerk. There will be no court activities on Wednesday or Thursday in Criminal Court, Fourth Circuit Court or the Criminal Division of Sessions Court, and the clerk's offices of those courts will be closed on both of those days.
For more information about Phillips' funeral, see the News Sentinel
City budget proposes to cut judge's salary in half
An amendment to Clarksville's city budget cut one judge's salary in half -- returning it to 1988 levels, when the council approved a $12,000 salary. Councilman Wayne Harrison based his proposal on a review of Judge Charles Smith's hours worked on the bench, which he said totaled no more than 1.5 hours a day, and totaled 40 hours over two months. "I don't have anything against Judge Smith," Harrison said. "But this is a year of cuts." Smith countered in an e-mail to The Leaf-Chronicle: "Time spent on the bench is no more reflective of the many hours spent discharging judicial responsibilities than would a similar report suggesting that City Council members only 'work' when the council meets for each session."
Read the Leaf-Chronicle's account
Ky. public defenders say they can't take any more
In Kentucky, public defenders have gone to court in an effort to force the General Assembly to appropriate more money to pay for the legal defense of the poor. A suit filed Monday seeks permission to decline additional indigent clients when representing them would create excessive case loads. The Department of Public Advocacy director said the General Assembly failed to provide sufficient funding this year to pay for public defenders. The lawsuit also calls for judges to appoint alternative attorneys who would be paid by the state when caseloads force public defenders to turn away clients.
The Leaf Chronicle carried this AP story
Berkeley still in hospital
Third Judicial District Attorney General Berkeley Bell remained in "fair condition" this morning at the University of Alabama Birmingham hospital. Bell has been hospitalized there since being injured in a June 14 motorcycle crash at a track outside Birmingham.
The Greeneville Sun has more
Jury selection begins in Ford trial
After months of delays, John Ford's trial started today in Nashville with jury selection. Ford has pleaded not guilty to the two counts of wire fraud and four counts of concealing material facts regarding his consulting work for two major TennCare contractors, in violation of federal and state law.
The Commercial Appeal has the story
Your Practice
Have they got a deal for you
If you are looking for a space to put your law office and you don't mind a little hammering and sawing above your head, look no further than the Williamson County Courthouse. Officials are discussing leasing the ground and first floors of the old courthouse -- 18,000 square feet -- which is under renovation. Oh, there's a catch: they want a tenant who would pay for improvements to the courthouse, stay for 10 years, then leave.
The Tennessean tells you more
TBA Member Services
July 'TBJ' focuses on undocumented workers
The July issue of the Tennessee Bar Journal is out today, featuring two articles on undocumented workers -- their legal rights after Hoffman and what penalties businesses face for hiring them. New TBA President Buck Lewis outlines his goals for the year, encouraging all lawyers to help ensure justice for all. See coverage of the TBA's 127th annual convention, a round-up of legislative activity, book reviews and columns on PCs vs. Macs, procedure and a funny (and expensive at $4/gallon) trip down memory lane in a VW Beetle. You should have gotten the Journal in your mailbox already, or you can
see it online here
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.
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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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