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| Wednesday, July 01, 2009 |
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Consumer Jeopardy CLE offers credit for pro bono work
The Tennessee Alliance for Legal Services (TALS), in partnership with the Tennessee Bar Association, is holding a consumer law CLE on July 17. The session will be held live at the Nashville School of Law and be simulcast over the Internet. Participants will learn how to handle cases involving public utilities, bankruptcy, automobile contracts, reverse mortgages and debt collection. Featured speakers Jeff Hill and Brant Harrell from the Tennessee Attorney General's office will speak about state enforcement of the Consumer Protection Act, and the training will include a "jeopardy" style game with prizes. The seminar is free for legal aid attorneys, and the $60 registration fee will be waived for any attorney who agrees to handle at least two pro bono cases. For more information contact Lisa Primm at (615) 627-0956 x25 or lprimm@tals.org
Download a flyer about the CLE
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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.
00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
05 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
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.
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CHEATHAM COUNTY by and through its Floodplain Administrator, A. M. Armstrong v. JAMES KONG, ET AL.
Court: TCA
Attorneys:
Benjamin H. Perry, Ashland City, TN, for Appellant.
William B. Herbert, IV, Nashville, TN, for Appellee.
Judge: HIGHERS
Appellee was issued a building permit for a carport by Appellant, County. County subsequently revoked the permit and ordered demolition of the carport claiming the structure exceeded that permitted. Appellee failed to demolish the structure, and County sued in the chancery court. Appellee moved to dismiss for lack of subject matter jurisdiction, claiming that he should be allowed to exhaust his administrative remedies-an appeal to the Board of Zoning Appeals-before the chancery court could assume jurisdiction. The trial court granted Appellee's motion to dismiss. We find the chancery court had subject matter jurisdiction over the case, and thus, reverse and remand
to the chancery court for a trial on the merits.
http://www.tba2.org/tba_files/TCA/2009/cheathamcounty_070109.pdf
DAN STERN HOMES, INC. v. DESIGNER FLOORS & HOMES, INC., ET AL.
Court: TCA
Attorneys:
Thomas J. Drake, Nashville, Tennessee, for the appellant, Designer Floors & Homes, Inc. and Louise Frost d/b/a Designer Floors.
Joseph P. Rusnak, Nashville, Tennessee, for the appellee, Dan Stern Homes, Inc.
Judge: DINKINS
Appellants, a flooring company hired to install hardwood flooring at a home being built by Appellee, appeal the judgment of the trial court finding them liable for breach of contract and breach of warranty and awarding damages to Appellee. Appellants were hired to install hardwood flooring at a home being built by Appellee. After installation of the floors, problems developed; Appellants
tried to correct the problems on numerous occasions to no avail. Appellee hired another subcontractor to refinish the hardwood flooring and to resolve the problems associated therewith. Appellee subsequently brought action against Appellant to recover amounts paid to subcontractor and the trial court awarded Appellee full measure of damages sought. We modify and affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCA/2009/dansternhomes_070109.pdf
ALAN GENTRY v. MARTIN H. WAGNER, M.D.
Court: TCA
Attorneys:
Alan Gentry, Franklin, Tennessee, Pro Se.
E. Reynolds Davies, Jr., John T. Reese, Ed. R. Davies, and Andrew Chad Davidson, Nashville, Tennessee, for the appellee, Martin H. Wagner, M.D.
Judge: BENNETT
Patient brought a negligence action against neurologist for injuries allegedly arising out of a court-ordered medical evaluation. We find no abuse of discretion in the trial court's denial of the plaintiff's motion to amend his complaint to include allegations of sexual battery. We also agree with the trial court's grant of summary judgment in favor of the neurologist based on the absence of expert testimony to support the plaintiff's claim. Therefore, we affirm the trial court's decision.
http://www.tba2.org/tba_files/TCA/2009/gentrya_070109.pdf
MICHAEL SANFORD v. WAUGH & COMPANY, INC. ET AL.
Court: TCA
Attorneys:
Timothy L. Warnock and Sarah J. Glasgow, Nashville, Tennessee, for the appellant, Michael Sanford.
Gregory D. Smith and Alexandra T. MacKay, Nashville, Tennessee, for the appellee, Carol Waugh; Joseph A. Woodruff and Keenan Carter, Nashville, Tennessee, for the appellees, Troy Waugh and Waugh & Company, Inc.
Judge: BENNETT
Plaintiff is a creditor of an insolvent corporation that owed him in excess of $1 million under the terms of a promissory note. Plaintiff sued the corporation and its owner to enforce the note. Defendants are former officers and directors of the corporation who instituted a direct action against Plaintiff shortly after the filing of his complaint alleging he fraudulently misrepresented the financial
condition of the company. During the pendency of both actions, Defendants began winding down the corporation and disposing of assets in which Plaintiff claimed a security interest. Plaintiff believed Defendants were acting to enrich themselves and avoid paying Plaintiff under the note. After Defendants voluntarily dismissed their action against Plaintiff, Plaintiff sued Defendants for breach of fiduciary duty, fraudulent conveyance, malicious prosecution, abuse of process, conspiracy, and conversion. The trial court dismissed the abuse of process, breach of fiduciary duty, and conversion claims on summary judgment, limited the scope of Plaintiff's claim for fraudulent
conveyance and conspiracy, and denied summary judgment on the malicious prosecution claim. Following Plaintiff's proof, the trial court granted a directed verdict in favor of Defendants on Plaintiff's claim for punitive damages but denied the motion on the malicious prosecution and
fraudulent conveyance claims. The jury returned verdicts in favor of Plaintiff awarding $51,000 in damages for malicious prosecution, $176,222 in damages for fraudulent conveyance, and found that Defendants conspired both to maliciously prosecute their claim against Plaintiff and to fraudulently transfer corporation assets. Both parties appeal issues on summary judgment, evidentiary rulings,
and directed verdicts. We have determined that Plaintiff sufficiently pled a cause of action for civil conspiracy based on facts alleged in the amended complaint and that, under the circumstances in this case, Plaintiff is entitled to assert a claim for breach of fiduciary duty directly against Defendants. We reverse the directed verdict granted in favor of Defendants on punitive damages and remand for a new trial on these issues. We further find that summary judgment was proper on Plaintiff's conversion claim and
affirm the trial court's decisions allowing the claims for fraudulent conveyance and malicious prosecution to proceed to the jury.
http://www.tba2.org/tba_files/TCA/2009/sanfordm_070109.pdf
STATE OF TENNESSEE v. JAMIE SCOTT BROCK
Court: TCCA
Attorneys:
Wesley D. Stone, Franklin, Tennessee, for the appellant, Jamie Scott Brock.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Paul Phillips, District Attorney General, and Jared Effler, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
The Claiborne County Grand Jury indicted Appellant, Jamie Scott Brock, for the murder of his wife. After a lengthy trial, he was convicted of first degree murder and sentenced to life in prison. He now appeals his conviction. He does not appeal his sentence. Appellant argues several issues on appeal: (1) the trial court erred in denying his motion to suppress; (2) the trial court erred in excluding evidence of three anonymous letters; (3) the trial court erred in allowing evidence in at the trial concerning the autopsy because the order was illegally obtained; (4) the trial court erred in admitting autopsy photographs into evidence; (5) the trial court erred in denying his motion to dismiss based
upon the State's failure to preserve evidence; (6) the trial court erred in allowing the State to introduce evidence through a rebuttal witness; and (7) the evidence was insufficient to support his conviction. After a thorough review of the record and the law, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/brockj_070109.pdf
STATE OF TENNESSEE v. JASON GLEN LEFAN
Court: TCCA
Attorneys:
Emma Rae Tennent (on appeal) and Tyler Chance Yarbro (at trial), Assistant Public Defenders, for the appellant, Jason Glen Lefan.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Jason Glen Lefan, pled guilty to aggravated burglary, a Class C felony; theft of property over $1000, a Class D felony; and harassment, a Class A misdemeanor, and was sentenced to an effective term of five years on supervised probation. On appeal, the defendant argues that the trial court erred in denying his request for judicial diversion. Upon review, we affirm the trial court's denial of judicial diversion.
http://www.tba2.org/tba_files/TCCA/2009/lefanj_070109.pdf
STATE OF TENNESSEE v. DALTON LISTER
Court: TCCA
Attorneys:
Charles Richard Hughes, Jr., District Public Defender, for the appellant, Dalton Lister.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Robert Steve Bebb, District Attorney General; and Kristie Luffman, Sandra Donaghy, Stephen Crump and John Williams, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: TIPTON
The defendant, Dalton Lister, appeals from his jury convictions in the Bradley County Criminal Court for first degree felony murder; two counts of attempted aggravated robbery, a Class C felony; and conspiracy to commit aggravated robbery, a Class C felony. He received a life sentence, with concurrent sentences of six years as a Range I, standard offender for each Class C felony. On appeal, the defendant contends (1) that the evidence was insufficient to convict him of the charged offenses; (2) that the trial court erred in not permitting cross-examination regarding a severed defendant's outstanding arrest warrant, pending charges, status as a fugitive, and possible bias to fabricate testimony to obtain a favorable disposition of the pending charges; (3) that the trial court erred by failing to suppress a recorded statement of the defendant when the original recording was intentionally destroyed and lost by the detective who had possession of it; and (4) that the trial court erred in not ordering disclosure of the detective's statement to the Tennessee Bureau of Investigation
concerning the lost and destroyed original recording of the defendant's statement taken the night of the homicide. We hold that the evidence was sufficient to convict the defendant of the charges and that the defendant waived his remaining issues by not filing a timely motion for new trial, and we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/listerd_070109.pdf
STATE OF TENNESSEE v. JIMMY JOE STAPLETON
Court: TCCA
Attorneys:
David G. Mullins, Bristol, Tennessee, for the appellant, Jimmy Joe Stapleton.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus and William B. Harper, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, Jimmy Joe Stapleton, appeals from his Sullivan County Criminal Court convictions of attempted aggravated rape, aggravated assault, and two counts of assault. On appeal, the defendant alleges that the trial court erred in denying a new trial based on the prosecution's suppressing exculpatory evidence. The defendant also argues the trial court erred by sentencing him to the maximum allowable sentence for his Class B felony conviction of attempted aggravated rape on the basis that his sex offender evaluation wrongfully stated his conviction offense as aggravated rape instead of attempted aggravated rape. Discerning no error, we affirm the judgments of the Sullivan County Criminal Court.
http://www.tba2.org/tba_files/TCCA/2009/stapletonj_070109.pdf
STATE OF TENNESSEE v. WILLIAM GLENN TALLEY
Court: TCCA
Attorneys:
David L. Raybin (at trial and on appeal) and Ed Yarbrough (at trial), Nashville, Tennessee, for the appellant, William Glenn Talley.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
The appellant, William Glenn Talley, was charged in the Davidson County Criminal Court with two counts of sexual exploitation of a minor and four counts of possessing a controlled substance with intent to sell or deliver. He filed pretrial motions to suppress the evidence linking him to the crimes and his statement to police, and the trial court denied the motions. From the trial court's order, the
appellant brings this interlocutory appeal, arguing that the evidence and his statement were obtained in violation of his right to be free from unreasonable searches and seizures as provided by the Fourth Amendment of the United States Constitution and article I, section 7 of the Tennessee Constitution. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/talleyw_070109.pdf
Solemnization of Marriages by Former Municipal Mayor
TN Attorney General Opinions
Date: 2009-07-01
Opinion Number: 09-123
http://www.tba2.org/tba_files/AG/2009/ag_09_123.pdf
Payment of County Election Commission's Fees and Expenses
TN Attorney General Opinions
Date: 2009-07-01
Opinion Number: 09-124
http://www.tba2.org/tba_files/AG/2009/ag_09_124.pdf
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| TODAY'S NEWS |
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Legal News
Politics
Correction
TBA Member Services
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| Legal News |
| TBA closed Friday for holiday |
| The Tennessee Bar Association will be closed Friday, July 3, for the Independence Day holiday. The office will reopen on Monday at 8 a.m. central. Have a safe and fun July 4th!
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| State rep. resigns to take court clerk position |
State Rep. Curt Cobb, D-Shelbyville, resigned from the Tennessee State House today to begin a new job as Bedford County clerk and master. Cobb was appointed to the position by 17th Judicial District Chancellor J.B. Cox and now will serve in the same court his father, Chancellor Tyrus Cobb, presided over for 20 years. He replaces Pat Finney, who held the position for the last 12 years. Election officials say Gov. Phil Bredesen will have to call for a special election to fill the seat. The Shelbyville Times Gazette reported the news.
Read about Finney's long career
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Read more about Cobb's decision
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| Juvenile court adds new magistrates |
| Shelby County Juvenile Court Judge Curtis Person swore in four new magistrate judges yesterday who will handle child support tasks. Person selected Lyttonia Cunningham, David Ferguson, Nancy Kessler and Debra Sanders from 26 child-support attorneys available for the new roles. The ceremony was bittersweet, however. Though $1.5 million in new state funding allowed Person to appoint the four, the court is laying off dozens of workers because it lost a state contract to collect child-support payments.
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The Commercial Appeal has more
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| Ricci decision revives Memphis police suit |
| A group of Memphis police officers will get another day in court thanks to the U.S. Supreme Court's decision Monday in Ricci v. DeStefano. In that case, firefighters in New Haven, Conn. successfully challenged the city's decision to throw out a promotional process for fear it would have an adverse impact on minorities. The Memphis officers faced a similar situation but had lost an appeal to the Sixth Circuit. Within hours of the ruling, though, the Supreme Court vacated the circuit court's ruling, allowing the Tennessee group to resume its case. |
The Commercial Appeal has more
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| TALS requests feedback on its resources |
| The Tennessee Alliance for Legal Services is asking the legal community to review its online resources and provide feedback for a grant evaluation. Comments should focus on the agency's document library and training materials. Review the web site and then take this short survey, which will be live for the next 48 hours.
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| TBA immigration chair organizes public events |
| TBA's Immigration Law Section Chair Terry Olsen is taking his message of "buyer beware" on the road to help immigrants understand U.S. laws and warn them against scam operators who promise legal residency for a fee. Working with Catholic Charities of East Tennessee, Olsen has been and will continue to host immigration clinics in the Chattanooga area. |
Read more about his efforts in the Times Free Press
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| Complete Lawyer to end publication Friday |
| The Internet-based publication The Complete Lawyer will end operations this Friday. The national publication wrote on a number of issues facing lawyers today, including transition planning, marketing and law practice management. It was provided to Tennessee lawyers as a member service of the TBA, but the company was forced to cease publication because of the economic downturn. |
Read the most recent edition
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| Politics |
| Former GOP chair joins 3rd district race |
| Former Tennessee Republican Party Chair Robin Smith of Hixson has joined the race for Tennessee's 3rd Congressional District seat, announcing her campaign in a series of stops around the district today. She joins Bradley County Sheriff Tim Gobble and Chattanooga lawyer Chuck Fleischmann in seeking the GOP nomination. Former state commerce and insurance commissioner Paula Flowers of Oak Ridge is the only declared candidate seeking the Democratic nomination.
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WKRN News 2 reported the news
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| School board member, pastor now in mayoral race |
| Saying he has had a "change of heart," Memphis City Schools board member and New Olivet Baptist Church pastor Kenneth Whalum Jr. now says he will run in the city's special mayoral election. Other declared candidates in the field are Shelby County Mayor A C Wharton, City Council chair and future interim mayor Myron Lowery and former City Council member Carol Chumney. A special election likely will be held in early October, reports the Commercial Appeal.
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Read more
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| Correction |
| Rhea County judge's name corrected |
| An item in the June 11 issue of TBA Today listed new officers for the Twelfth Judicial District Bar Association. The president of the association is Rhea County General Sessions Judge James Wendell McKenzie.
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| Right office, wrong county |
| An item in the June 18 issue of TBA Today noting Sheriff Tim Gobble's candidacy for the Third Congressional District seat placed him in the wrong county. He is the sheriff of Bradley County.
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| TBA Member Services |
| First Tennessee is TBA's preferred provider |
| First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more |
on the TBA Web site
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Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
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Questions, comments: Email us at TBAToday@tnbar.org
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
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