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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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BRUNSWICK ACCEPTANCE COMPANY, LLC v. MEJ, LLC, ET AL.

Court: TCA

Attorneys:

Michael L. Powell, Knoxville, Tennessee, for the Appellants, MEJ, LLC, and Mitchell E. Jones.

Buffey Klein, Memphis, Tennessee, for the Appellee, Brunswick Acceptance Company, LLC.

Judge: LEE

This case arises out of the financing and subsequent repossession of several boats. After the debtor defaulted and surrendered the collateral boats, the creditor sent written notification via multiple emails to the debtor, notifying the debtor of its plan to sell the boats at private sale. Following the sale of the collateral boats, the creditor filed this action seeking a deficiency judgment for the remaining amount owed by the debtor. The trial court held that the creditor's provision of notice was sufficient and that the sales of the boats were conducted in a commercially reasonable manner under the Uniform Commercial Code ("UCC") and awarded the creditor a deficiency judgment in the amount of $160,879 plus post-judgment interest and $30,000 in attorney's fees. The debtor raises the issues of whether the notice provided by the creditor was sufficient under the UCC and whether the trial court erred in awarding attorney's fees. We hold that the evidence does not preponderate against the trial court's conclusions that the creditor acted in a commercially reasonable manner regarding all aspects of the sales of the collateral boats, including providing the debtor sufficient notice under the circumstances presented here, and consequently affirm the judgment of the trial court, including its award of attorney's fees.

http://www.tba2.org/tba_files/TCA/2008/brunswick_102208.pdf


JANE CHERA v. INDYMAC, INC. ET AL.

Court: TCA

Attorneys:

Andrew M. Cate, Nashville, Tennessee, for the appellant, Jane Chera.

Jason S. Mangrum, Brentwood, Tennessee, for the appellee, Indymac, Inc.

J. Trent Lehman, Nashville, Tennessee, for the appellee, George Mitchell.

Judge: BENNETT

This appeal is taken from the denial of plaintiff’s Tenn. R. Civ. P. 59 and 60 motion for relief from the dismissal of her action for failure to prosecute. Plaintiff sued the loan servicing company and the subsequent buyer of her residence for claims based on the alleged wrongful foreclosure on the property. The complaint was filed on April 21, 2004, and dismissed with prejudice on July 14, 2006, as a sanction for failing to comply with discovery orders. Finding the trial court did not abuse its discretion, we affirm the judgment of the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2008/cheraj_102208.pdf


O. WILLIAM FERGUSON, SR. v. J. CLIFFORD BROWN, D. C.

Court: TCA

Attorneys:

Thomas F. Bloom and Niles S. Nimmo, Nashville, Tennessee, for the appellant, O. William Ferguson.

John F. Floyd and Mandy Langford, Nashville, Tennessee, for the appellee, J. Clifford Brown.

Judge: CLEMENT

The dispositive issue on appeal is whether the trial court abused its discretion by applying an incorrect legal standard in denying Plaintiff's motion to set aside an order summarily dismissing his Complaint. Plaintiff filed this action against his chiropractor alleging injures due to a violation of the appropriate standard of care. Defendant filed a Motion for Summary Judgment based upon Plaintiff's failure to support the allegations with expert medical testimony. Plaintiff failed to file a written response to the motion or appear at the hearing on the motion and, as a consequence, the trial court summarily dismissed the Complaint. Twenty-nine days after the order was entered, Plaintiff filed a motion pursuant to Tenn. R. Civ. P. 60.02(1) to set aside the order due to his attorney's excusable neglect. An affidavit of the attorney filed in support of the motion stated that the attorney's failure to file a response and attend the hearing were due to his failure to calender the pertinent dates when the motion was received, which omission was due to the fact he was attending to significant personal and legal needs of his brother who was suffering from a life threatening condition. The trial court denied the motion to set aside on the ground of prejudice to Defendant. We have determined the trial court's decision to deny the motion to set aside was based on its application of an incorrect legal standard. Applying the legal standard set forth in State ex rel. Sizemore v. United Physicians Ins. Risk Retention Group, 56 S.W.3d 557, 567 (Tenn. Ct. App. 2001), we have determined the omissions of Plaintiff's attorney constitute excusable neglect and, therefore, the motion to set aside the order of summary judgment should have been granted.

http://www.tba2.org/tba_files/TCA/2008/fergusono_102208.pdf


STATE OF TENNESSEE, EX REL. TERESA GARRISON v. LARRY L. SCOBEY

Court: TCA

Attorneys:

Kenneth Greg Alford, Dyersburg, Tennessee, for the appellant, Larry Scobey.

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

Judge: FARMER

This is a child support case. The trial court determined Respondent Father had the ability to earn minimum wage and entered a temporary order of support ordering him to pay child support based upon a minimum wage income. Father filed a motion to set aside the order and failed to pay the ordered support. The State, acting ex rel. Mother, filed a petition for contempt, a petition for retroactive child support, and a petition to set permanent child support. Following a hearing, the trial court denied Father's motion to set aside the temporary support order, affirmed the finding that Father was capable of earning minimum wage, and held Father in criminal contempt. The trial court also ordered Father to pay retroactive child support. The trial court stayed its order sentencing Father to jail for criminal contempt pending appeal to this Court. Father appeals the order finding him in contempt, the denial of his motion to set aside the temporary order of support, and the order of retroactive child support. We reverse the order on contempt and dismiss the remainder of Father's appeal for failure to appeal a final judgment.

http://www.tba2.org/tba_files/TCA/2008/garrisont_102208.pdf


STATE OF TENNESSEE v. MARKESE ALEXANDER BROOKS

Court: TCCA

Attorneys:

Paul K. Guibao and Matthew S. Lyons, Memphis, Tennessee, for the appellant, Markese Alexander Brooks.

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

Judge: GLENN

The defendant, Markese Alexander Brooks, was convicted by a Shelby County Criminal Court jury of first degree felony murder and attempted especially aggravated robbery and was sentenced by the trial court to concurrent terms of life and ten years, respectively. In a timely appeal to this court, he challenges the sufficiency of the convicting evidence and argues that the trial court erred in denying his motion to suppress his statement to the police and in allowing inadmissible hearsay testimony from a State's witness. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/brooksm_102208.pdf


EDDIE LEE DOUGLAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender, and Jeff Lee, Assistant Public Defender, for the appellant, Eddie Lee Douglas.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe L. VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Eddie Lee Douglas, appeals the denial of his petition for post-conviction relief from his second degree murder conviction, arguing that he received ineffective assistance of trial counsel and that his guilty plea was therefore unknowing and involuntary. Following our review, we affirm the judgment of the post-conviction court denying the petition.

http://www.tba2.org/tba_files/TCCA/2008/douglase_102208.pdf


JONATHAN BRADFORD DUNN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant Jonathan Bradford Dunn.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Mike McCown, District Attorney General and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jonathan Bradford Dunn, was indicted by the Bedford County Grand Jury for one count of theft of property valued at more than $1,000 but less than $10,000, and one count of filing a false report. After a jury trial, Appellant was convicted on both counts as stated in the indictment. The trial court sentenced Appellant to three years as a Range II multiple offender for theft of property and six years as a Range II multiple offender for filing a false report. The sentences were ordered to run consecutively to each other and to the sentence in Bedford County Case Number 15560. After the denial of a motion for new trial, Appellant initiated the appeal herein, presenting the following issues for our review: (1) whether the evidence was sufficient to support the conviction for filing a false report; and (2) whether the sentence imposed by the trial court was excessive. We determine that the evidence is sufficient to support the conviction and that the trial court properly sentenced Appellant. Consequently, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/dunnj_102208.pdf


STATE OF TENNESSEE v. AQUELLIS QUINTEZ TUCKER

Court: TCCA

Attorneys:

Matthew R. Armour, Somerville, Tennessee, for the appellant, Aquellis Quintez Tucker.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; D. Michael Dunavant, District Attorney General; Joe L. VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

A Hardeman County jury convicted the defendant, Aquellis Quintez Tucker, of one count of first degree felony murder, one count of first degree premeditated murder, one count of attempted first degree murder, one count of aggravated assault, and one count of especially aggravated burglary. The trial court merged the two first degree murder convictions, and it also merged the defendant's attempted first degree murder and aggravated assault convictions. The trial court sentenced the defendant to life in prison on the first degree murder conviction, fifteen years on the attempted first degree murder conviction, and eight years on the especially aggravated burglary conviction, with all sentences to be served concurrently. The defendant appeals, asserting that the evidence produced at trial was insufficient to support his convictions. After reviewing the record, we conclude that no error exists with respect to the defendant's allegations. However, we further conclude that the defendant's especially aggravated burglary conviction was precluded by statute. Accordingly, we modify that conviction to one for aggravated burglary and remand the case to the trial court for sentencing on that offense.

http://www.tba2.org/tba_files/TCCA/2008/tuckera_102208.pdf


TODAY'S NEWS

Legal News
Disciplinary Actions
TBA Member Services

Legal News
Retired Chief Justice Birch faints, rallies
Retired Tennessee Supreme Court Chief Justice Adolpho Birch collapsed today while speaking at a public dedication of Nashville's new city bus terminal. He recovered quickly though, and after resting for a minute finished his remarks.
Read about it in the Tennessean
Hooker's law license suspended
Special Judge Jon Kerry Blackwood suspended John Jay Hooker from the practice of law for 30 days after the Board of Professional Responsibility argued he had become a nuisance for filing repeated frivolous lawsuits. The 78-year-old has practiced law in Tennessee for 54 years. Hooker says he disagrees with the ruling and will ask the judge to reconsider.
Read more in the News Sentinel
Despite execution date, lethal injection questions remain
For the first time in almost a year a Tennessee inmate is scheduled for execution, but death penalty opponents say last year's ruling that the state's lethal injection protocol is unconstitutional stands in the way. Based on that decision, attorneys in the case planned to file a motion in federal court today opposing the execution of convicted murderer Steve Henley.
The Nashville City Paper reports
New DA reorganizes office
Newly appointed 13th Judicial District Attorney Randy York has reorganized his office after asking all employees to resign and re-apply for their jobs. The result: three administrative staff and a criminal investigator were let go, two assistant DAs have been reassigned to offices closer to their homes, and new prosecutors have been hired to replace those who have retired or resigned since York's arrival. York, a Crossville attorney, took over as DA following the resignation of Bill Gibson. The 13th Judicial District covers the counties of Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White.
Read more about the changes in the Herald-Citizen
U.S. drops charges against 5 at Guantanamo
The U.S. military has dropped charges against five Guantanamo Bay detainees after the prosecutor on the cases resigned saying the military suppressed evidence that could help clear his clients. Despite the announcement Tuesday, however, the military said it has no plans to free the men. Rather, new trial teams will take another look at the evidence and recommend whether to reinstate charges after consulting with intelligence agencies.
The Commercial Appeal has more
Moncier ordered to turn over file or face sanctions
Knoxville attorney Herbert S. Moncier is under court order to turn over a client's files to a new defense team. Moncier was removed from the case, against the client's wishes, when he was suspended from federal practice. Moncier plans to appeal the order arguing that only the client can authorize release of the file, and that to date he has instructed Moncier not to cooperate with federal defenders.
Read more in the News Sentinel
Hamblen beefs up court and jail security
Hamblen County has added new security measures at its courthouse and justice center, including metal detectors and armed security officers. Since the new measures have been in place, dozens of weapons have been confiscated from those entering the justice center, according to officials.
WATE News Channel 6 reports
Jail concerns dominate county government agendas
Across the state, county governments are struggling with jail overcrowding issues, plans for expanding or relocating jail operations and possible decertification. The Cookeville Herald-Citizen reports on Putnam County's decision to price expansion of its current jail site versus converting empty industrial space into an annex. In Scott County, the sheriff continues to plea for extra beds at his jail, reports the Oneida Independent Herald. And in Greene County, officials have been given until Dec. 3 to have plans in place for expansion or replacement of their detention center, or face decertification, according to the Greeneville Sun.

Disciplinary Actions
Jacksboro attorney takes disability status
The Tennessee Supreme Court transferred the law license of Jacksboro attorney Timothy Paul Webb to disability inactive status on May 23. Webb can return to the practice of law only after reinstatement by the court.
Read the BPR release
Attorneys reinstated after completing CLE
Lisa Belle Hatfield of Knoxville, Arienne Paige Brint Lebow of Houston, Texas, and Cynthia Nienaber of Henry, Tenn., have been reinstated to the practice of law after complying with requirements for continuing legal education.
View all attorneys suspended and reinstated for 2007 CLE violations
Lawyers reinstated after paying BPR fees
Joseph Edward Beecham of Jackson and Kimberly Pinckard Kernodle of Oak Park, Ill. have been reinstated to the practice of law in Tennessee after paying their annual BPR fees and required fines. Both have been suspended for several years.

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.
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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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