TBA's 4ALL, membership programs named best in state

The Tennessee Bar Association was honored with two awards today from the Tennessee Society of Association Executives. The awards recognize excellence in all areas of association management, representing the best in the state. TBA received the "Associations Advance Tennessee" award, in recognition of the association's 4ALL campaign, and "Best Membership Recruitment or Retention Program," for the TBA's Trial Membership campaign. The 4ALL campaign took on the critical problem of access to justice on four fronts: education, collaboration, participation and legislation. One of its components included a statewide Pro Bono Public Service Day where attorneys across Tennessee donated their time and talents to bring access to justice to those in need. To recruit new members, the Trial Membership campaign offered free TBA membership to nonmembers for three months, with a result so far of 512 of them joining.
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.

BOBBY J. COLLINS v. LYNDA C. FUGATE

Court: TCA

Attorneys:

Thomas F. Mabry, Knoxville, Tennessee, for the appellant, Bobby J. Collins.

Kimberlee A. Waterhouse, Lenoir City, Tennessee, for the appellee, Lynda C. Fugate.

Judge: SUSANO

This appeal arises out of litigation in the trial court pertaining to a disputed interest in the use of a boat dock. Bobby J. Collins filed suit against Lynda C. Fugate seeking compensation for labor expended and materials used in the construction of a boat dock. He claimed that, some ten years before filing suit, he helped build the dock on lakeside property owned by Ms. Fugate. The plaintiff contended that, in exchange for building the dock, the defendant gave him a "lifetime dowry" to use her property and dock his houseboat. The defendant acknowledged an agreement between the parties, but contended that it ended by its own terms before she revoked her permission for the defendant's continued use of the property. Following a bench trial, the court found that the plaintiff had a revocable personal license to use the defendant's property that was terminated when and by virtue of the fact he had sold his boat. The complaint was dismissed. We affirm.

http://www.tba2.org/tba_files/TCA/2009/collinsb_073109.pdf


JIM DOWD, ET AL. v. JAMES A. CANAVAN, ET AL.

Court: TCA

Attorneys:

M. Keith Davis, Dunlap, Tennessee, for the appellants, James A. Canavan and Ann Canavan.

Elizabeth Greer Adams, Dunlap, Tennessee, for the appellees, Jim Dowd and Peggy Dowd.

Judge: SUSANO

This case was brought by potential purchasers of a farm, Jim Dowd and Peggy Dowd ("the Buyers"), against the potential sellers, James A. Canavan and Ann Canavan ("the Sellers") to recover earnest money retained by the Sellers under a sales contract. After a bench trial, the court determined the Buyers are entitled to recover the earnest money deposit because they had been unable to secure financing, which was a contingency acknowledged in the contract. The Sellers appeal, arguing that the Buyers were able to arrange financing, and, alternatively, that they did not try hard enough. We affirm.

http://www.tba2.org/tba_files/TCA/2009/dowdj_073109.pdf


EAST RIDGE DENTAL CENTER, INC., and DREW SHABO, DDS., v.
CORRECTION is page one to reflect the correct spelling of atty Thomas Gautreaxs' name


Court: TCA

Attorneys:

John P. Konvalinka and Thomas M. Gautreax, Chattanooga, Tennessee, for appellant, Joseph D. Prince, DDS.

L. Blair Bennington, Chattanooga, Tennessee, and James F. Logan, Jr., Cleveland, Tennessee, for appellees, East Ridge Dental Center, Inc., and Drew Shabo, DDS.

Judge: FRANKS

Plaintiffs sued the defendant, alleging breach by defendant of the contract with defendant to purchase his dental practice. Included in the agreement was a restrictive covenant not to compete. Following an evidentiary hearing, the Trial Court held that the $75,000.00 that was paid for the restrictive covenant should be returned to the plaintiffs under the theory of unjust enrichment, because the covenant was not enforceable. On appeal, we hold that defendant abided by the terms of the restrictive covenant for five of the seven years that the covenant covered and, as a matter of equity, the Judgment of the Trial Court should be reduced proportionately.

http://www.tba2.org/tba_files/TCA/2009/eastridge_CORR_073109.pdf


KINZEL SPRINGS PARTNERSHIP v. HAROLD KING, ET AL.

Court: TCA

Attorneys:

James H. Ripley, Sevierville, Tennessee, for Appellants, B. Gerard Bricks and Barbara B. Bricks.

John T. McArthur, Maryville, Tennessee, for Appellee, Kinzel Springs Partnership.

Judge: MCCLARTY

In this action to quiet title, the plaintiff sought the declaration of the true boundary line between the parties, along with an award of the litigation expenses, discretionary costs, and attorneys' fees incurred in protecting the title to the property. Following a bench trial, the court agreed with the property line claimed by the plaintiff. The defendants appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2009/kinzel_073109.pdf


KNOX COUNTY, TENNESSEE, on the relationship of ENVIRONMENTAL TERMITE & PEST CONTROL, INC., qui tam
Per Order of 7/31/09 withdrawing and refilling opinion (7/20/09)


Court: TCA

Attorneys:

David S. Wigler, Knoxville, Tennessee, for appellant.

John E. Owings, Knox County Law Director and Robert C. McConkey, Deputy Law Director, Knoxville, Tennessee, for appellee.

Judge: FRANKS

Plaintiff filed this action as a "qui tam claim" pursuant to the Tennessee False Claims Act. Tenn. Code Ann. section 4-18-101 et seq. The Trial Court awarded plaintiff proceeds from the settlement under the Act and both parties have appealed. On appeal we hold that plaintiff did qualify under the statute as an original source, and the Trial Court had jurisdiction to award a recovery. However, we hold there is not sufficient evidence to affirm the award. We vacate the award and remand pursuant to Tenn. Code Ann. section 27-3-128.

http://www.tba2.org/tba_files/TCA/2009/knoxcounty_073109.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. L.A.C.R., IN THE MATTER OF: JWC (DOB 08/23/91) and BLC (DOB 10/23/99), Children Under Eighteen (18) Years of Age

Court: TCA

Attorneys:

Kevin R. Bryant, Crossville, Tennessee, for appellant, L.A.C.R.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for appellee, Tennessee Department of Children's Services.

Judge: FRANKS

The Trial Court terminated the mother's parental rights to her two minor children. The mother has appealed on the ground that the Trial Court erred in finding it was in the children's best interest to terminate her rights. We affirm.

http://www.tba2.org/tba_files/TCA/2009/lacr_073109.pdf


NANCY L. LANE v. JODI D. MCCARTNEY, M.D., ET AL.

Court: TCA

Attorneys:

Rob Starnes, Kingsport, Tennessee for the Appellant, Nancy L. Lane.

Charles T. Herndon, IV, and Elizabeth M. Hutton, Johnson City, Tennessee for the Appellees, Karen K. Lauer-Silva, M.D. and Medical Education Assistance Corporation d/b/a ETSU Physicians & Associates.

Judge: SWINEY

Nancy L. Lane ("Plaintiff") sued Karen K. Lauer-Silva, M.D. and Medical Education Assistance Corporation d/b/a ETSU Physicians & Associates ("Defendants") alleging medical malpractice. Defendants filed a motion for summary judgment. After a hearing on Defendants' motion, the Trial Court entered an order finding and holding, inter alia, that Plaintiff's expert witness did not meet the requirements of Tenn. Code Ann. section 29-26-115, and granting Defendants summary judgment. Plaintiff filed a motion to alter or amend along with a Second Supplemental Affidavit from Plaintiff's expert. The Trial Court considered the Second Supplemental Affidavit and found that Plaintiff's expert still did not satisfy the requirements of Tenn. Code Ann. section 29-26-115, and again granted Defendants summary judgment. Plaintiff appeals to this Court. We reverse.

http://www.tba2.org/tba_files/TCA/2009/lanen_073109.pdf


JOE E. ROGERS, JR. v. MARY K. ROGERS

Court: TCA

Attorneys:

Charles A. Carpenter, Maryville, Tennessee, for the appellant, Mary K. Rogers.

Neill R. Monaghan, Maryville, Tennessee, for the appellee, Joe E. Rogers, Jr.

Judge: SUSANO

This is a divorce case. After dissolving the parties' marriage, the trial court divided the marital estate. It declined to award Mary K. Rogers ("Wife") any statutory alimony or her attorney's fees. Wife appeals each of these three monetary determinations. We slightly modify the trial court's division of marital property. As modified, it is affirmed. Furthermore, we affirm the trial court's judgment denying Wife's request for statutory alimony and attorney's fees.

http://www.tba2.org/tba_files/TCA/2009/rogersj_073109.pdf


STATE OF TENNESSEE v. ROLAND PATRICK COBBINS

Court: TCCA

Attorneys:

Norris A. Kessler, III, Winchester, Tennessee, for the appellant, Roland Patrick Cobbins.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Mickey Layne, District Attorney General; and Felicia B. Walkup, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Roland Patrick Cobbins, was charged with and convicted by a jury of: two counts of burglary of a vehicle, both Class E felonies; two counts of theft under $500, one count of possession of burglary tools, and one count of vandalism under $500, all Class A misdemeanors; and one count of theft over $1,000, a Class D felony. See Tenn. Code Ann. sections 39-14-402, -105, -701, 408. He was sentenced as a Range II, multiple offender to six years for his Class D felony, three years for each Class E felony, and eleven months and twenty-nine days for each misdemeanor. The trial court ordered that all misdemeanor sentences run concurrently with each other and with the Defendant's felony sentences. It also ordered that both Class E felony sentences run consecutively to one another and concurrently with all other sentences, and that the Defendant's Class D felony conviction run concurrently with all other sentences. The Defendant therefore received a total effective sentence of six years in the Department of Correction. In this direct appeal, the Defendant contends that: (1) the evidence was insufficient to convict him; (2) the State violated discovery rules in failing to provide him with exculpatory evidence; and (3) the trial court erred in setting the length of his sentence. After our review, we affirm the Defendant's convictions but remand for reconsideration of his sentencing range.

http://www.tba2.org/tba_files/TCCA/2009/cobbinsr_073109


STATE OF TENNESSEE v. HEATHER L. JORDAN

Court: TCCA

Attorneys:

Mack Garner, District Public Defender (at trial); and J. Liddell Kirk (on appeal), attorneys for appellant, Heather L. Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; Mike Flynn, District Attorney General; and Robert Headrick, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Heather L. Jordan, pled guilty in the Blount County Circuit Court to one count of forgery valued at less than five hundred dollars and one count of identity theft. The trial court sentenced her to an effective sentence of four years suspended to probation after the service of ninety days in jail. A revocation warrant issued when the defendant failed to report to serve the balance of her jail sentence as required by an order allowing her a medical furlough. Following a hearing, the trial court revoked the defendant's probation. In this appeal as of right, the defendant argues that the trial court abused its discretion in revoking her probation and ordering her to serve her full sentence in incarceration. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/jordanh_073109.pdf


STATE OF TENNESSEE v. MICHAEL W. KEMP

Court: TCCA

Attorneys:

G. Jeff Cherry and David Veile, Lebanon, Tennessee, for the appellant, Michael W. Kemp.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Howard Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Michael W. Kemp, was charged with three counts of vehicular homicide by recklessness, Class C felonies, and three counts of reckless endangerment with a deadly weapon, Class E felonies. See Tenn. Code Ann. sections 39-13-213(b)(1), -103(b). He was convicted as charged following a jury trial and sentenced to three years for each vehicular homicide conviction, those sentences to be served consecutively. The trial court ordered split confinement for this effective nine-year sentence, one year in the Department of Correction and the balance to be served on probation. In this direct appeal, the Defendant contends that: (1) the evidence presented at trial was insufficient to convict him; (2) the trial court erred in overruling his motion for judgment of acquittal; (3) the trial court erred in ordering consecutive sentencing; and (4) the trial court erred in failing to merge his convictions for reckless endangerment into his convictions for vehicular homicide by recklessness. After our review, we affirm the Defendant's convictions, but remand for reconsideration of his consecutive sentences and entry of judgment forms properly reflecting merger.

http://www.tba2.org/tba_files/TCCA/2009/kempm_073109.pdf


STATE OF TENNESSEE v. WILEY MOORE, JR.

Court: TCCA

Attorneys:

James L. Baum, Burns, Tennessee, for the appellant, Wiley Moore, Jr..

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, District Attorney General; and Jude Santana, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Wiley Moore, Jr., pled guilty in Rutherford County to hindering a secured creditor in violation of Tennessee Code Annotated section 39-14-116. In March of 2008, the trial court granted judicial diversion in exchange for the guilty plea and the judgment specified that a "restitution hearing [was] to be scheduled." The trial court ultimately ordered Appellant to pay $15,870 in restitution and interest. Appellant filed a timely notice of appeal under Tennessee Rule of Appellate Procedure 3. On appeal, Appellant asks this Court to determine whether interest may be awarded as part of restitution. We determine that no final judgment of conviction exists that would entitle Appellant to an appeal pursuant to Tennessee Rule of Appellate Procedure 3 and that Appellant has not presented a compelling case for the grant of an extraordinary appeal under Tennessee Rule of Appellate Procedure 10. Accordingly, the Appellant's appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2009/moorew_073109.pdf


STATE OF TENNESSEE v. CHARLES DAVID SMITHSON

Court: TCCA

Attorneys:

John S. Colley, III, Columbia, Tennessee, for the appellant, Charles David Smithson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Charles David Smithson, was convicted by a Lawrence County jury of two counts of attempted first degree murder and one count of aggravated assault. Appellant was sentenced to an effective sentence of forty-five years as a result of his convictions. Appellant appeals his convictions for attempted first degree murder, arguing that the evidence did not show premeditation. Following a review of the record, we determine that the evidence introduced at trial was sufficient to establish that Appellant committed attempted first degree murder. As a result, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/smithsonc_073109.pdf


WILLIAM BURT SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, William Burt Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, William Burt Smith, appeals the Franklin County Circuit Court's denial of his petition for post-conviction relief from his conviction on one count of sale of a Schedule II controlled substance. On appeal, the petitioner argues that he received the ineffective assistance of counsel on direct appeal because his appellate counsel failed to file an adequate record regarding his sole issue on appeal: that the trial court erred by refusing to appoint counsel, thereby forcing him to proceed pro se. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/smithw_073109.pdf


TODAY'S NEWS

Politics
Legal News
Passages
TBA Member Services

Politics
Ramsey disagrees with Alexander's position on Sotomayor
State Senate Speaker Ron Ramsey spoke out today against U.S. Sen. Lamar Alexander's support of President Barack Obama's Supreme Court nominee. Ramsey said he's concerned Sonia Sotomayor would work against Second Amendment rights, including Tennessee's handgun carry permit law that he sponsored when he was in the state House. "Even though Judge Sotomayor's political and judicial philosophy may be different than mine, especially regarding Second Amendment rights," Alexander said yesterday said in a speech on the Senate floor, "I will vote to confirm her because she is well qualified by experience, temperament, character and intellect to serve."
The Tennessean carried this AP story
Herenton leaves City Hall
Memphis Mayor Willie Herenton did resign after all, leaving City Hall for the last time as mayor on Thursday. City Council chairman Myron Lowery became interim mayor until a special election is held Oct. 27.
The Commercial Appeal has more on the transition
Stanley qualifies for $7k annual pension
State Sen. Paul Stanley, who announced his resignation in the wake of a sex-and-extortion scandal that broke earlier this week, would qualify to receive an annual pension of more than $7,000 a year from the state government, the legislature's administrative office said.
The Tennessean tells you more
Legal News
White to serve on ABA jury project
University of Tennessee law professor Penny White has been nominated by the American Bar Association's Section of Litigation to serve as a member of the 13-person Commission on the American Jury Project. The American Jury Project is an ABA initiative aimed at implementing jury innovations throughout the United States by working with courts, rule-making bodies, state legislatures and the organized bar. In addition, the project is dedicated to educating the public, interest groups, government officials, national media and the legal profession as a whole about the importance of jury service and jury reform.

Bradley Arant lays off 35 staff
Birmingham-based law firm Bradley Arant Boult Cummings LLP said Wednesday it laid off 35 staff members but that the cuts did not include any lawyers. Bradley Arant and Tennessee-based Boult Cummings merged in January.
The Birmingham News reports
Passages
Memphis lawyer Melinda Blancett dies
Memphis attorney Melinda Enix Blancett died July 30, following a fight against ovarian cancer. She was 50. Her husband, Cary, is also a Memphis lawyer. Her father-in-law, George Blancett, is a Shelby County Juvenile Court Referee. Melinda Blancett graduated in 1983 from the University of Tennessee College of Law. Funeral services will be Aug. 1 at 3 p.m. at Memorial Park Funeral Home in the Riverside Chapel. A visitation will begin at 1:30 p.m. Saturday. Interment will be at Memorial Park Cemetery. The family requests that memorials be directed to either the Wings Cancer Foundation, 100 N. Humphreys Blvd., Memphis, TN 38120 or Methodist Alliance Hospice, 6423 Shelby View Drive, #103, Memphis, TN 38134.
Read more about her in the Commercial Appeal
TBA Member Services
Your August 'Journal' is ready
If you've been left scratching your head over how to determine reasonable needs and the ability to pay alimony in a divorce, the August Tennessee Bar Journal can help. Robert Vance's cover article this month, "Breakin' Up is Hard to Do," walks you through it. Insurance expert Billy Akin explains what lawyers need to know about insurance and Andrew Tillman takes a Jeff Foxworthy approach to problem clients that you won't want to miss. A new column, "Senior Moments with Monica Franklin" begins this month, exploring issues in elder law. Regular columns by President Gail Vaughn Ashworth, Dan Holbrook, Don Paine and Bill Haltom round out the issue.
Read the Journal online
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.
Click here

 
 
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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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