Lee appointed to Tennessee Supreme Court

Gov. Bredesen has appointed Sharon Gail Lee of Madisonville to the Tennessee Supreme Court. Lee, who has served on the Tennessee Court of Appeals since 2004, fills a vacancy created by the recent retirement of Justice William M. "Mickey" Barker. With Chief Justice Janice M. Holder and Justice Cornelia A. Clark already serving, women now have a majority on the court for the first time.

Read more about Lee's appointment

TODAY'S OPINIONS
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LISA MARIE WALLS ALTMAN v. BENJAMIN ALTMAN

Court: TCA

Attorneys:

L. Caesar Stair, III., and Margo J. Maxwell,, Knoxville, Tennessee, for appellant.

Robert D. Arnold, Johnson City, Tennessee, for appellee.

Judge: FRANKS

The Trial Judge awarded the wife a divorce in this case and ordered the husband to pay periodic alimony in the amount of $5,000.00 a month. The husband has appealed and we affirm the Judgment of the Trial Court, as modified.

http://www.tba2.org/tba_files/TCA/2008/altmanl_092908.pdf


RUSSELL ELLISON ET AL. v. ROSE ELLISON

Court: TCA

Attorneys:

Greg Leffew, Rockwood, Tennessee, for the appellant, Rose Ellison

Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellees, Russell Ellison and Frances Ellison

Judge: SUSANO

This case involves an attempt by Russell Ellison ("Father") and Frances Ellison ("Mother") (collectively "the Grantor Parents"), ages 85 and 77 respectively, to set aside a warranty deed admittedly executed by them to one of their three daughters, the defendant Rose Ellison ("the Grantee Daughter"). Following a bench trial, the court set aside the deed, finding (1) that the Grantee Daughter had taken "improper advantage" of her parents; (2) that Mother was "not mentally competent" to convey the property; and (3) that the consideration for the conveyance was "clearly inadequate." The Grantee Daughter appeals, raising five issues. We modify the trial court's judgment. As modified, it is affirmed.

http://www.tba2.org/tba_files/TCA/2008/ellisonr_092908.pdf


GEORGIA-PACIFIC LLC, ET AL. v. SWIFT TRANSPORTATION CORPORATION

Court: TCA

Attorneys:

Jerry E. Mitchell, Memphis, TN, for Appellants

Carl Wyatt, Lewis W. Lyons, Memphis, TN, for Appellee

Judge: HIGHERS

This appeal involves the indemnity and insurance provisions of a contract, which must be interpreted according to Georgia law. The trial court found that the defendant had no duty to indemnify or insure the plaintiff for a claim based on the plaintiff's own negligence. We affirm.

http://www.tba2.org/tba_files/TCA/2008/georgiapacific_092908.pdf


CINDY GOODSON HARVEY, ET AL. v. FARMERS INSURANCE EXCHANGE, ET AL.

Court: TCA

Attorneys:

Richard Korsakov, Chattanooga, Tennessee, for the appellants, Cindy Goodson Harvey and Ronald W. Harvey, Jr.

Gordon C. Aulgur, Nashville, Tennessee, for the appellee, Farmers Insurance Exchange.

Judge: SUSANO

Ronald W. Harvey, Jr., was involved in an automobile accident while driving a 1999 Dodge Caravan in the course of his employment with B&W Wholesalers. At the time of the accident, Mr. Harvey and his wife, Cindy Goodson Harvey (collectively "the Harveys"), had an automobile insurance policy with Farmers Insurance Exchange ("Insurance Company") that listed the Caravan as the covered vehicle. However, the policy included an exclusion for any vehicle "[w]hile used in employment by any person whose primary duties are the delivery of products or services[.]" Insurance Company refused to defend the Harveys in a lawsuit regarding the accident, claiming that the exclusion applies. The Harveys sought a declaratory judgment that the accident was covered by the policy. After a bench trial, the court dismissed the case and declared that the exclusion applied. The Harveys appeal, arguing that "delivery of products or services" was not among Mr. Harvey's "primary duties," and that, in any event, Insurance Company should be stopped from denying coverage because it knew how Mr. Harvey intended to use the van and provided coverage anyway. We affirm.

http://www.tba2.org/tba_files/TCA/2008/harveyc_092908.pdf


IN THE MATTER OF: J.C.W., R.J.W

Court: TCA

Attorneys:

Sarah J. Cripps, Smithville, Tennessee, for the appellant, Mark Eugene West.

Robert E. Cooper, Jr., Attorney General and Reporter, and Scott Edward Schwieger, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Judge: DINKINS

Father appeals the order of the Juvenile Court for Dekalb County terminating his parental rights, contending that neither the grounds for termination nor the court's conclusion that termination of Father's parental rights is in the best interest of the children are supported by clear and convincing evidence. Having reviewed the record and finding no error in the court's ruling, we affirm same.

http://www.tba2.org/tba_files/TCA/2008/jcw_092908.pdf


PREMIER GRAPHICS, INC., v. WESTERN EXPRESS, INC.

Court: TCA

Attorneys:

Isham B. Bradley, Nashville, Tennessee, for Appellant, Western Express, Inc.

E. Steele Clayton, IV., and Russell S. Baldwin, Nashville, Tennessee, for Appellee, Premier Graphics, Inc.

Judge: FRANKS

Plaintiff's action charged defendant with failure to deliver time-sensitive material, and sought damages. The Trial Court granted summary judgment on the issue of liability and submitted the issue of damages to a jury. The jury awarded damages and defendant has appealed raising issues as to liability, timely filing a claim, the measure of damages under the "Carmack Amendment", special damages, and insufficiency of evidence of damages. We affirm the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/premiergraphics_092908.pdf


STATE OF TENNESSEE v. RANDY GEORGE ROGERS

Court: TCA

Attorneys:

Charles C. Burks, Knoxville, Tennessee, for appellant, Randy George Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for appellee, State of Tennessee.

Judge: FRANKS

The Trial Court held defendant in contempt. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2008/rogersr_092908.pdf


STEVEN TODD WALLS v. TARA L. WALLS

Court: TCA

Attorneys:

Grace E. Daniell, Chattanooga, Tennessee, for the appellant, Steven Todd Walls

Daniel K. Habenicht, Chattanooga, Tennessee, for the appellee, Tara L. Walls

Judge: SUSANO

This is a divorce case. The only issue before the court is whether the trial court made the proper calculation of the parties' respective periods of parenting time under the Child Support Guidelines in determining the child support obligation of Tara L. Walls ("Wife") to Steven Todd Walls ("Husband") for the benefit of the parties' three minor children. Husband appeals. We affirm pursuant to the provisions of Court of Appeals Rule 10.

http://www.tba2.org/tba_files/TCA/2008/wallss_092908.pdf


MARY HELEN WHITE v. BI-LO, LLC, D/B/A BI-LO

Court: TCA

Attorneys:

Liberti A. Snider, Shelbyville, Tennessee, for the appellant, Mary Helen White.

Andy Rowlett and Patrick Witherington, Nashville, Tennessee, for the appellee, BI-LO, LLC, d/b/a BI-LO.

Judge: CLEMENT

Plaintiff, who was injured in a slip and fall, appeals the dismissal of her claim for personal injuries against a grocery store. The trial court awarded summary judgment based upon a finding that there were no genuine issues of material fact and that plaintiff had failed to establish the elements of a premises liability action. Plaintiff appeals arguing that there is a sufficient dispute of material fact over whether the grocery store had actual or constructive notice that a dangerous condition existed. We affirm the trial court's finding that the grocery store is entitled to judgment as a matter of law because there is no evidence in the record that the grocery store had actual or constructive notice of the dangerous condition.

http://www.tba2.org/tba_files/TCA/2008/whitem_092908.pdf


WILLIAM EDWARD WYNNS, JR. v. SHERRIE BLACKBURN WYNNS

Court: TCA

Attorneys:

Mark Wesley Henderson, Lebanon, Tennessee, for the appellant, Sherrie Blackburn Wynns.

James H. Flood, Lebanon, Tennessee, for the appellee, William Edward Wynns, Jr.

Judge: BENNETT

This appeal concerns the spousal support awarded Wife in a divorce action. Both Husband and Wife sought a divorce in the Circuit Court for Wilson County. Following a bench trial, the court granted Wife an absolute divorce based on Husband's adultery and divided the marital assets equally between the parties. The court awarded Wife alimony in the form of attorney's fees and insurance premiums for the first year post-divorce followed by alimony of $500 per month for four years. The court did not classify the alimony as either rehabilitative, transitional, in solido, or permanent. Wife appeals seeking increased support or, in the alternative, a redistribution of marital property. We have determined that Wife's spousal support should be increased based on the disparity between the parties' economic status.

http://www.tba2.org/tba_files/TCA/2008/wynnsw_092908.pdf


STATE OF TENNESSEE v. STARBROUGH JONES

Court: TCCA

Attorneys:

David Christensen (on appeal) and Robert Parris (at trial), Memphis, Tennessee, for the appellant, Starbrough Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle Parks and GregDistrict Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, Starbrough Jones, of first degree felony murder, especially aggravated robbery, and attempted especially aggravated robbery, and the appellant received sentences of life, twenty-one years, and nine years, respectively. The trial court ordered that the appellant serve the twenty-one-year and nine-year sentences concurrently with each other but consecutively to the life sentence. On appeal, the appellant contends that (1) the trial court erred by allowing unreliable hearsay testimony into evidence in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004); (2) the evidence is insufficient to support the convictions; and (3) consecutive sentencing is excessive. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/joness_092908.pdf


STATE OF TENNESSEE v. MARIO LESTER

Court: TCCA

Attorneys:

R. Price Harris, Memphis, Tennessee, for the appellant, Mario Lester.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Mario Lester, was convicted of one count of burglary of a building (Class D felony) and was sentenced to twelve years as a career offender. On appeal, he argues that the evidence was insufficient to support the conviction and that the trial court erred in denying community corrections. After careful review, we affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCCA/2008/lesterm_092908.pdf


STATE OF TENNESSEE v. ISEDORE LAMONT PARKS

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, for the appellant, Isedore Lamont Parks.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Isedore Lamont Parks, was convicted of simple possession of cocaine, a Class A misdemeanor, and sentenced to eleven months, twenty-nine days in the county jail at seventy-five percent release eligibility, to be served consecutively to a prior sentence. On appeal, he argues that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/parksi_092908.pdf


TODAY'S NEWS

Legal News
Politics
TennBarU CLE
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Mukasey taps prosecutor to probe U.S. attorney firings, Vines 'targeted'
Attorney General Michael Mukasey today appointed Nora Dannehy, a career prosecutor, to direct the probe into possible criminal charges against Republicans who were involved in the controversial firings of U.S. attorneys. His move follows the leading recommendation of a Justice Department investigation that harshly criticized Bush administration officials, members of Congress and their aides for the ousters, which were seen by many as politically motivated.
The Commercial Appeal carried this AP story
The report specifically alleges that political motives ruled who would be appointed or re-appointed to serve as a U.S. Attorney. While not the cause or focus of the investigation, it was revealed today in the report that former Nashville U.S. Attorney Jim Vines was on the targeted list of those slated for a later round of removals from office. Vines resigned his position in September of 2006, heading back to D.C. to become a partner in the firm of King & Spalding.
Read more from the Nashville Post.com [subscription required]
Get analysis of court's October docket
The Tennessee Supreme Court's October docket includes several important civil and criminal issues, including whether information concerning a defendant's liability insurance coverage is discoverable by a plaintiff in a tort action and whether police may use deception to get a defendant to the police station to extract a confession. Read an analysis of these and other issues in the Raybin-Richter Tennessee Supreme Court Hot List.
Access other legal blawgs at the TBA's Information Central
Deaner to be sworn in Wednesday
The swearing in ceremony for Dawn Deaner as Nashville's new Public Defender will be Oct. 1, at 3:30 p.m. in the A. A. Birch Building, Courtroom 1A.

Chattanooga lawyers line up to be judicial commissioners
Nine attorneys have applied for judicial commissioner (magistrate) positions in Chattanooga: Christine Mabe Scott, Darren K. Hastings, Warren J. Yemm II, Robert N. Meeks, Larry W. Ables, Yolanda E. Mitchell, D. Marty Lasley, James Gordon Petty and Clayton Whittaker.
Find out more at Chattanoogan.com
Judges criticize Scalia's gun decision
Two "respected fellow conservative federal judges" -- J. Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago -- take Supreme Court Justice Antonin Scalia to task for engaging in the same sort of judicial activism he regularly disdains. Their criticisms regard his opinion in the landmark decision guaranteeing people the right to keep guns at home for self-defense.
TriCities.com carried this AP story
Courthouse 'fixture' ban raises questions
A man who has been "a fixture" at the Davidson County courthouse for 20 years has been banished for 11 months and 29 days for carrying a crack pipe. "He has issues of mild retardation, epilepsy and it causes impulse control issues," General Sessions Court Judge Casey Moreland said. "I think they are holding him to a higher standard. He comes in like Kramer from 'Seinfeld,' and some people think he's very annoying."
Read the AP story in the News Sentinel
Alito steps out of 'cert pool'
The U.S. Supreme Court's long-standing law clerk pooling arrangement, known as the "cert pool" got a shake-up last week when Justice Samuel Alito Jr. said he was no longer going to be a part of it. The cert pool, started more than 30 years ago, is where justices' law clerks divide up incoming petitions and one law clerk summarizes each petition for the benefit of all the justices in the pool. Only Justice John Paul Stevens has remained outside the pool, preferring to have his own clerks take an independent look at the petitions to be sure worthy cases are not missed and flawed cases are not granted.
Law.com tells you why Alito made the change
Politics
Fight to control state Senate heats up
The City Paper looks at the state Senate races and what they could mean.
Find out more
TennBarU CLE
Learn election law from Kim McMillan
Whether you want to run for public office or you represent an elected official or someone running for office, this week's TennBarU webcast is for you. Former Tennessee House Majority Leader and gubernatorial advisor Kim McMillan will give you an update on Tennessee election law and new ethics guidelines for public officials during this one-hour program, Oct. 1 at noon.
Find out more or register now
Disciplinary Actions
Three Chattanooga lawyers suspended
On Sept. 24, the Tennessee Supreme Court entered an order suspending the law license of Jeffrey A. Stinnett, a Chattanooga lawyer, for four months. The Board of Professional Responsibility filed a petition for discipline against Stinnett alleging that he had continued to practice law while administratively suspended for noncompliance with his continuing legal education requirements.
Read the BPR release
On Sept. 22, the Supreme Court of Tennessee issued an order summarily and temporarily suspending Chattanooga lawyer Michael Joseph Mahn from the practice of law upon finding that he failed to respond to the board regarding a complaint of misconduct. Effective that date, Mahn is precluded from accepting any new cases and he must cease representing existing clients by Oct. 22.
Read the BPR release
On Sept. 22, John Cris Helton of Chattanooga received a public censure from the Tennessee Supreme Court. Helton violated the Rules of Professional Conduct by failing to properly administer an estate and failing to respond to court orders pertaining to the administration of that estate.
Read the BPR release
Two Memphis lawyers censured
On Sept. 16, Memphis lawyer Charles E. Waldman received a public censure from the Tennessee Supreme Court. Waldman violated the Rules of Professional Conduct with his persistent failure to comply with pro hac vice rules of the Arkansas Supreme Court, leading to a finding that he was in contempt of the Arkansas Supreme Court.
Read the BPR release
On Sept. 16, Memphis lawyer Thelma J. Copeland was publicly censured from the Tennessee Supreme Court and placed on probation for one year during which time she shall engage a practice monitor. Copeland violated the Rules of Professional Conduct due to her failure to properly maintain a trust account leading to an overdraft, failing to demonstrate an understanding of basic trust accounting principles.
Read the BPR release
Upcoming
O'Connor to speak at Baker Center opening
Former Supreme Court Justice Sandra Day O'Connor will be the keynote speaker for the Oct. 31 grand opening of the Howard H. Baker Jr. Center for Public Policy, the Knoxville News Sentinel reports.

TBA Member Services
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Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
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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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