Voting begins Friday in TBA election

Electronic voting will begin Friday to select Tennessee Bar Association leadership. This year, members will choose from two candidates competing to be the next TBA Vice President. This person will advance to become President-elect in 2010 and then TBA president in 2011. The two candidates are Jackson attorney Linda Warren Seely and Memphis attorney Danny Van Horn. There are no other contested races this year.

Read more about the two candidates and the incoming TBA Leadership

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.

BRYAN GIBSON v. DAWNE JONES

Court: TCA

Attorneys:

Larry A. Weissman, Memphis, TN, for Appellant, Bryan Gibson.

William M. Jeter, Memphis, TN, for Appellee, Dawne Jones.

Judge: STAFFORD

This appeal involves a claim for specific performance of a land sale contract. Plaintiff made partial payments towards the purchase price for several months after the agreement was reached. In 2005, however, the relationship between the Plaintiff and Defendant deteriorated, and the Plaintiff stopped making payments. Defendant then informed the Plaintiff that the agreement was cancelled and began looking for another buyer. After the presentation of Plaintiff's proof, the trial court found that Plaintiff was unable to perform under the agreement within a reasonable time. The trial court also found that the agreement expressly permitted the Defendant to cancel the agreement in the event of Plaintiff's non-performance. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/gibsonb_022509.pdf


MARK SAROFF v. ARNOLD G. COHEN, ET AL.

Court: TCA

Attorneys:

John A. Lucas, Alcoa, Tennessee, for the appellant, Mark Saroff.

George F. Legg and Douglas L. Rose, Knoxville, Tennessee, for the appellees, Arnold G. Cohen and Leibowitz & Cohen.

Judge: DINKINS

Client filed suit against his former attorney and law firm, asserting a claim for conversion for failure to produce his client file after he terminated them as counsel and seeking a declaratory judgment that a deed of trust entered into by the parties was unenforceable. The trial court granted the attorney and firm's motion to dismiss on the conversion claim, holding that the client failed to state a claim upon which relief could be granted and failed to allege an intent to convert his property. The trial court granted the attorney and firm's motion to dismiss on the declaratory judgment claim, holding that client failed to join necessary parties and that a prior suit was pending on the matter. Finding that the entirety of the client's file was produced, we affirm the dismissal of the conversion claim. Finding that the issues raised in this matter can be resolved in a pending suit, we affirm the trial court's dismissal of the declaratory judgment claim.

http://www.tba2.org/tba_files/TCA/2009/saroffm_022509.pdf


CHRISTINE SMARTT, ET AL. CO-EXECUTORS OF THE ESTATE OF CHEATUM MYERS v. NHC HEALTHCARE/MCMINNVILLE, LLC, ET AL.

Court: TCA

Attorneys:

John B. Curtis, Jr., Cherie D. Jewell, and Bruce D. Gill, Chattanooga, Tennessee, attorneys for the Appellants, NHC Healthcare/McMinnville, LLC, d/b/a NHC Healthcare, McMinnville; National Healthcare Corporation; and National Health Corporation.

Lisa Circeo, Susan Nichols Estes, and Deborah Truby Riordan, Little Rock, Arkansas, attorneys for the Appellees, Christine Smartt and Ruby Kilgore, as Co-executors of the Estate of Cheatum Myers.

Judge: DINKINS

Plaintiffs, executrixes of their father's estate, filed general negligence and medical malpractice claims against a nursing home and related entities for injuries arising out of his stay at the nursing home and for his death. At trial, the Circuit Court denied the defendants' motions for directed verdict, seeking dismissal of all claims because they owed no duty of care to the plaintiffs' father and seeking dismissal of the negligence claim because all alleged conduct was governed exclusively by the Medical Malpractice Act; the jury was permitted to consider liability on all issues against all defendants. Defendants appeal this decision of the trial court, and also appeal the jury award of compensatory damages as excessive and the court's award of discretionary costs as improper. Plaintiffs cross-appeal, contending that the trial court's grant of a directed verdict in favor of two defendants on the issue of punitive damages was in error. We vacate a portion of the compensatory damage award, finding it to be unsupported by the evidence. We reverse the trial court's order granting defendants a directed verdict on the issue of punitive damages and remand the case for a hearing on same. We modify the award of discretionary costs. In all other respects, the judgment of the Circuit Court is affirmed.

http://www.tba2.org/tba_files/TCA/2009/smarttc_022509.pdf


GENE BOOKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory T. Carman, Memphis, Tennessee, for the appellant, Gene Booker.

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

Judge: THOMAS

The petitioner, Gene Booker, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. On appeal, the petitioner argues that he received the ineffective assistance of counsel in that counsel failed to properly preserve the petitioner's severance issue on direct appeal. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/bookerg_022509.pdf


STATE OF TENNESSEE v. THOMAS COGGINS

Court: TCCA

Attorneys:

John D. Pellegrin, Gallatin, Tennessee and Stephen G. Young, Nashville, Tennessee (at trial); and David A. Collins, Nashville, Tennessee (at trial and on appeal), for the appellant, Thomas Coggins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Bryna Landers Grant, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: WITT

The defendant, Thomas Coggins, appeals from the trial court's denial of his proffer of evidence during the hearing on his "Motion for New Hearing and For Arrest of Judgment," filed after his probation was revoked. Because neither the Tennessee Rules of Appellate Procedure, nor any other governing law, entitles the defendant to an appeal as of right under these circumstances, we dismiss his appeal.

http://www.tba2.org/tba_files/TCCA/2009/cogginst_022509.pdf


STATE OF TENNESSEE v. JAMES ROOSEVELT FLEMING

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and Periann S. Houghton, Assistant District Public Defender, for the appellant, James Roosevelt Fleming.

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

Judge: THOMAS

A Tipton County jury convicted the defendant, James Roosevelt Fleming, of one count of possession of 26 grams or more of cocaine with intent to deliver, a Class B felony, and one count of attempted possession of marijuana, a Class B misdemeanor. The trial court sentenced the defendant to an effective sentence of thirty years as a career offender. On appeal, the defendant argues that the evidence produced at trial was insufficient to support his felony conviction, and he also asserts that the trial court erred by allowing opinion testimony in violation of Rule 701 of the Tennessee Rules of Evidence. After reviewing the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/flemingr_022509.pdf


STATE OF TENNESSEE v. CHRISTOPHER JOHNSON

Court: TCCA

Attorneys:

Gerald S. Green, Memphis, Tennessee, for the appellant, Christopher Johnson.

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

Judge: MCMULLEN

A Shelby County Criminal Court jury convicted the Defendant-Appellant, Christopher Johnson (hereinafter "Johnson"), of aggravated robbery and aggravated assault. As a Range I, standard offender, Johnson received concurrent sentences of eight years, nine months for the aggravated robbery conviction and three years, three months for the aggravated assault conviction. On appeal, Johnson challenges the sufficiency of the evidence and the sentence imposed solely for the aggravated robbery conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/johnsonc_022509.pdf


BOBBY LEE v. STEPHEN DOTSON, WARDEN

Court: TCCA

Attorneys:

Bobby Lee, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Bobby Lee, appeals the trial court's summary dismissal of his petition for writ of habeas corpus. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/leeb_022509.pdf


GREGORY L. WHISNANT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Casey Stokes, Georgetown, Tennessee, for the Petitioner, Gregory L. Whisnant.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia S. Lee, Assistant Attorney General; R. Steve Bebb, District Attorney General; James Stutts, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A McMinn County jury found the Petitioner, Gregory L. Whisnant, guilty of carjacking. The trial court sentenced him to an eleven-year sentence, and this Court affirmed his conviction and sentence. The Petitioner filed a petition for post-conviction relief, claiming, among other things, that he failed to receive the effective assistance of counsel at trial. After a hearing, the post-conviction court dismissed the petition, and he now appeals, claiming that he received the ineffective assistance of counsel because Counsel did not prevent the admission into evidence of certain photographs. After a thorough review of the record and the applicable law, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/whisnantg_022509.pdf


JEFFREY S. WHITAKER v. JACK MORGAN, WARDEN and STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Jeffrey S. Whitaker.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; and Joe H. Walker, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Jeffrey S. Whitaker, was denied habeas corpus relief by the Criminal Court for Morgan County from his eight convictions for rape of a child for which he received three consecutive sentences of fifteen years, with the remaining fifteen-year sentences running concurrently, for an effective sentence of forty-five years. On appeal, he contends that the trial court erred in (1) denying relief because the record of the proceedings shows he was sentenced illegally and (2) not applying judicial estoppel against the State. We affirm the trial court's dismissal of the petition but remand the cause to the trial court for transfer to the convicting court for correction of the judgments.

http://www.tba2.org/tba_files/TCCA/2009/whitakerj_022509.pdf


TODAY'S NEWS

Legislative News
Legal News
Politics
Upcoming
TBA Member Services

Legislative News
TBA testifies on judicial selection
The Civil Procedure and Practice Subcommittee of the state House Judiciary Committee heard from lawyers on both sides of the judicial selection issue yesterday as legislators decide whether to reinstate, reform or reject the state's current system of merit selection, performance evaluation and retention elections for appellate judges. TBA Executive Director Allan Ramsaur appeared before the panel and reminded members that the legislature has traditionally found contested, partisan elections to be "expensive, corrosive and not conducive to promoting the public trust and confidence in our system."
The Memphis Commercial Appeal covered the hearing
Watch the subcommittee proceeding
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
Legal News
Commission selects 3 for Stotts' seat
The Judicial Selection Commission met today in Memphis and selected the following three applicants as nominees to fill the vacancy in the 30th Judicial District created by the death of Judge Rita Stotts: Venita Marie Martin with Glankler Brown PLLC; Antonio L. Matthews with Baker, Donelson, Bearman, Caldwell & Berkowitz PC; and Lorrie K. Ridder with Luckett, Pinstein, Ridder PC. All are from Memphis.

New guardian ad litem rules explained
Starting in May, courts across the state will have new guidelines for appointing guardians ad litem to represent children and adults of diminished mental capacity. Tennessee Supreme Court Chief Justice Janice Holder says the provisional rules adopted by the court will better define the role of the GALs and result in fewer appointments. TBA President Buck Lewis says the rules will bring a more uniform approach to the appointment of GALs and more guidance to the bench and bar on how they are to be used.
Memphis Daily News reports
Dispatchers no longer signing warrants
The move to having 911 operators write warrants in Bradley County proved short lived. County commissioners now have been asked to rescind their action approving the transfer of duties after court personnel said it was too difficult for the dispatchers to handle emergencies with police officers waiting for warrants. The clerk's office will again sign the warrants until a new budget is set.
Read more in the Cleveland Banner
Hamblen Bar elects president
Richard Norris Swanson is the new president of the Hamblen County Bar Association. He practices law in Morristown.

Politics
GOP: Ideology not issue in Williams ouster
Tennessee Republican Party Chairwoman Robin Smith says ideology did not factor into the decision to oust House Speaker Kent Williams from the party and that the move has been unfairly portrayed in the media.
The Memphis Daily News has more
Upcoming
Asian Pacific bar to host conference
The Tennessee Asian Pacific American Bar Association (TAPABA) will host the National Asian Pacific American Bar Association's 2009 Southeastern Regional Conference in Nashville March 27-29. Scheduled speakers include U.S. Magistrate Judge Tu Pham, Tennessee Attorney General Robert E. Cooper Jr. and Cheryl White Mason, vice president of litigation for HCA. The conference is open to all lawyers and law students. For more information about the conference or TAPABA contact president Kaz Kikkawa at kaz.kikkawa@hcahealthcare.com or visit the group's
web site
TBA Member Services
UPL enforcement resources available
The TBA Committee on the Protection of the Public from the Unauthorized Practice of Law encourages local bar leaders to review the sample protocol for handling UPL complaints and to urge adoption by local bar associations. The sample protocol is available on the TBA website, along with the other UPL resources.
Visit the UPL webpage for more information

 
 
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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.

© Copyright 2009 Tennessee Bar Association