Final week to nominate for public service awards

The deadline is Sept. 4 to nominate one of your colleagues for one of the Tennessee Bar Association's prestigious public service awards. The TBA's Access to Justice Committee is accepting nominees now for the Ashley T. Wiltshire Public Service Attorney of the Year Award, the Harris Gilbert Pro Bono Award and the Law Student Volunteer Award. These awards will be presented at the TBA Public Service Awards Luncheon in January.

Find out more or make your nomination online now

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
05 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - 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.

BONNIE CADY v. TENNESSEE BOARD OF VETERINARY MEDICAL EXAMINERS

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Sue A. Sheldon, Senior Counsel, for the appellant, Tennessee Board of Veterinary Medical Examiners.

Frank J. Scanlon, Nashville, Tennessee, for the appellee, Bonnie Cady.

Irwin Venick, Nashville, Tennessee, for the Amicus Curiae, Tennessee Veterinary Medical Association.

Judge: CLEMENT

This is an appeal from two separate but related contested case hearings before the Tennessee Board of Veterinary Medical Examiners. The first case pertains to a Notice of Charges filed by the Tennessee Department of Health against Bonnie Cady, a breeder and trainer of horses, alleging that she had engaged in the unlicensed practice of veterinary medicine as defined by Tenn. Comp. R. & Regs. 1730-1-.02. Following a hearing before the Tennessee Board of Veterinary Medical Examiners, the Board found Ms. Cady had engaged in the unlicensed practice of veterinary medicine and assessed $17,000 in civil penalties against her. The second case was initiated by Ms. Cady who sought a Declaratory Order that the Rule she was alleged to have violated, Tenn. Comp. R. & Regs. 1730-1-.02, was void because the definition of the "scope of the practice of veterinary medicine" in the Rule adopted by the Board was impermissibly broader than and inconsistent with the statutory definition set forth in sections 63-12-103(9), (17) of the Tennessee Veterinary Practice Act. Following a hearing on the declaratory order case, the Board found that the Rule was promulgated in accordance with the Board's statutory authority and was "neither broader than nor inconsistent with" the definition of the practice of veterinary medicine in the statute. Ms. Cady appealed both rulings. The Chancery Court reversed the Board's ruling in both cases based on its finding that Tenn. Comp. R. & Regs. 1730-1-.02 was invalid because it was overbroad and inconsistent with the statutory definition. We affirm the Chancellor's finding that Tenn. Comp. R. & Regs. 1730-1-.02 is invalid. We also affirm the Chancellor's decision to reverse the Board's imposition of civil penalties against Ms. Cady because the Board found that she had violated Tenn. Comp. R. & Regs. 1730-1-.02, not the Tennessee Veterinary Practice Act, and the Rule is invalid.

http://www.tba2.org/tba_files/TCA/2009/cadyb_082809.pdf


IN RE E.M.S.

Court: TCA

Attorneys:

Mitchell J. Ferguson, Murfreesboro, Tennessee, for the appellant, V.S.C.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua Davis Baker, Assistant Attorney General, Nashville, Tennessee, for the appellee, the Tennessee Department of Children's Services.

Judge: DINKINS

Mother challenges the trial court's termination of her parental rights on the grounds of abandonment by an incarcerated person and persistence of conditions. Finding that the trial court's decision was supported by clear and convincing evidence, the judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2009/ems_082809.pdf


KP BUILDING PRODUCTS, INC. v. J. W. GARLAND WHOLESALE, INC., ET AL.

Court: TCA

Attorneys:

John R. Jacobson and Elizabeth O. Gonser, Nashville, Tennessee, for the appellant, K. P. Building Products, Inc.

Paul A. Bates, Lawrenceburg, Tennessee, for the appellee, J.W. Garland Wholesale, Inc., Johnny Garland a/k/a Johnny W. Garland and Danette Garland.

Judge: DINKINS

Manufacturer of vinyl siding brought suit against wholesaler when wholesaler refused to pay for specially manufactured inventory that a particular customer no longer wished to purchase; wholesaler claimed it was entitled to return the inventory for a credit to offset the invoiced amount of the shipment. At trial, the manufacturer attempted to introduce an application for credit signed by the wholesaler which the manufacturer contended established a written contract setting forth the business arrangement between the parties, but the trial court ruled it inadmissible. The trial court ultimately found that no written contract existed between the parties, ordered the return of the entire shipment to the manufacturer and awarded the wholesaler a credit for the amount of the inventory. On appeal, the manufacturer challenges the trial court's grant of wholesaler's motion to amend its answer on the day of trial; evidentiary decisions; order for the return of inventory and award of credit to wholesaler; and adoption of wholesaler's statement of the evidence. Finding that the trial court erred in granting wholesaler's motion to amend its answer on the day of trial we reverse the judgment of the trial court and remand for a new trial.

http://www.tba2.org/tba_files/TCA/2009/kpbuilding_082809.pdf


LYNN MICHELLE NIEMAN v. GREGORY DALE NIEMAN

Court: TCA

Attorneys:

Jonathan R. Bunn, Tullahoma, Tennessee, for the appellant, Gregory Dale Nieman.

Joseph E. Ford, Winchester, Tennessee, for the appellee, Lynn Michelle Nieman.

Judge: DINKINS

In this divorce action, the trial court accepted Husband's and Wife's stipulated grounds for divorce, as well as their agreement regarding the distribution of marital assets and debt, Husband's child support obligation, and a parenting plan; a trial was held on the sole issue of alimony. After a hearing, the trial court awarded Wife $800 per month in rehabilitative alimony for six years. On appeal, Husband alleges that the trial court erred in awarding alimony in excess of his ability to pay and for a longer period of time than was requested; in ordering him to supplement his income to pay the alimony award; in rendering an order for him to pay a monthly "lump sum obligation," which combined his alimony and child support payments; and in declining to consider his motion to modify support because the court found that it lacked jurisdiction. Finding that the trial court erred in finding that it lacked jurisdiction to hear Husband's motion to modify child and spousal support, we reverse and remand for further hearing. In all other respects we affirm the judgment.

http://www.tba2.org/tba_files/TCA/2009/niemanl_082809.pdf


MONTE SUE SMITH v. JOE NEIL SMITH

Court: TCA

Attorneys:

Lindsay C. Barrett, Dickson, Tennessee, for the appellant, Joe Neil Smith.

No appearance by or on behalf of the appellee, Monte Sue Smith.

Judge: SUSANO

In this divorce case, Monte Sue Smith ("Wife") sued Joe Neil Smith ("Husband") for divorce after nearly 30 years of marriage. Following a bench trial, the court divorced the parties on stipulated grounds, classified and distributed the marital property, and awarded Wife rehabilitative alimony. Husband's appeal relates to the classification and division of the marital estate. He concludes that the trial court erred (1) by ruling that Husband's workers' compensation award was marital property; (2) by awarding Wife one-half of a jointly-held investment account; (3) by including Husband's IRA in the marital estate after it was cashed out to pay certain marital bills; and (4) by failing to credit Husband with the payment of marital debts since the special master's hearing. Concluding that there is no error, we affirm the judgment in all respects.

http://www.tba2.org/tba_files/TCA/2009/smithm_082809.pdf


STATE OF TENNESSEE v. JERION CRAFT

Court: TCCA

Attorneys:

Jake Erwin (on appeal), and William Gosnell (at trial), Memphis, Tennessee, for the appellant, Jerion Craft.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Abby Wallace and Summer Morgan, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Jerion Craft, was convicted of separate counts of unlawful possession of cocaine with intent to sell and to deliver. The trial court merged the convictions and sentenced the defendant to serve eleven years as a standard offender. On appeal, the defendant contends that the evidence was insufficient to demonstrate that: he possessed cocaine with the intent to distribute it; the trial court interfered with his right to a fair trial; and the trial court erred in failing to declare a mistrial. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/craftj_082809.pdf


STATE OF TENNESSEE v. ROY SHOTWELL, JR.

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender, and Rickey W. Griggs and Kari I. Weber, Assistant Public Defenders, for the appellant, Roy Shotwell, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; D. Michael Dunavant, District Attorney General; and Terry Dycus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Roy Shotwell, Jr., was convicted of two counts of rape, each a Class B felony, and one count of sexual battery, a Class E felony. The defendant was sentenced to ten years for each Class B felony and to two years for the Class E felony. The defendant received a total effective sentence of twenty years. The defendant appeals, arguing that the trial court erred in: denying his motion for a severance; allowing the State to offer expert witnesses on DNA and forensic nursing; and in sentencing. After careful review, we affirm the trial court's decisions to join the indictments in one trial and to admit the State's expert testimony. Moreover, the trial court did not abuse its discretion in applying the enhancement factors or in ordering consecutive sentences. Therefore, the judgments from the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/shotwellr_082809.pdf


TODAY'S NEWS

Legal News
Politics
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Take a closer look at the Judicial Nominating Commission
Lawyers are well represented on the newly appointed Judicial Nominating Commission: of the 17 appointees, 15 are lawyers. Here's how the body breaks down: 12 are male and 5 are female. There are five from West Tennessee, five from Middle and seven from East. There is one Hispanic, 14 Caucasians and two African Americans. Nine are from metro areas and eight are from outside of metro areas. "We are very pleased with the appointments by Lieutenant Governor Ramsey and Speaker Williams," TBA President Gail Vaughn Ashworth said. "They made diverse appointments to the Commission that clearly reinforce the important role of Tennessee lawyers in evaluating and recommending judicial candidates in our state."

Read more analysis of this group in the The Tennessean, The Commercial Appeal and the News Sentinel.

Bailey to leave Circuit Court after 19 years
Circuit Court Judge D'Army Bailey of Memphis is leaving the bench after 19 years. Bailey, who was re-elected to an eight year term in 2006, told the Memphis Daily News, "I think that there's an opportunity to help people as a lawyer. ... I think now is the time to go back out and be of service in a different way."
Read more in the Memphis Daily News
Tennesseans have strong showing in ABA appointments
Tennessee is well-represented in American Bar Association leadership positions this year. ABA President Carolyn Lamm made the following appointments: Howard H. Vogel, Finance Committee chair and Executive Committee member; Hon. Bernice B. Donald, member, Operations and Communications Committee; Allan F. Ramsaur, member, Commission on the Impact of the Economic Crisis on the Profession & Legal Needs, and member, Coalition for Justice; Howard T. Wall III, member, Task Force on Federal Agency Preemption of State Tort Laws; Lucian T. Pera, liaison, Association of Professional Responsibility Lawyers, and special adviser, Strategic Communications; Teresa Jones, member, Lawyer Assistant Programs Advisory Commission; Carl A. Pierce, member, Delivery of Legal Services; Albert C. Harvey, chair, Law and National Security Advisory Committee; and Edward T. Brading, member, Publishing Oversight.

Legal aid attorneys get praise from satisfied clients
Legal Aid Society of Middle Tennessee & the Cumberlands Managing Lawyer Barbara Futter is described by one of her clients as "one of the people who cares about what happens."
Read this inspiring story in the Tennessean
Politics
Marsh, Cobb to faceoff for vacant House seat
Pat Marsh of Shelbyville won Thursday's Republican primary for the vacant 62nd District Tennessee House of Representatives seat and will now face Democrat Ty Cobb II, who was unopposed in the Democratic primary. Ty Cobb II is the brother of Curt Cobb, who resigned from the seat effective July 1 in order to take a position in the Bedford County court system.
Read more in the Shelbyville Times-Gazette
Disciplinary Actions
Davidson County lawyer suspended
On Aug. 4, the Supreme Court of Tennessee temporarily suspended Davidson County lawyer Alea Danielle Ashby after finding she failed to respond to complaints of misconduct received by the Board of Professional Responsibility.
Read the BPR news release
Upcoming
Paine and Roberts to be honored for Advisory Commission work
The Tennessee Supreme Court will recognize Knoxville attorney Donald Paine for 35 years of service on the court's Advisory Commission on the Rules of Practice and Procedure. The court will also recognize Paine's long-time assistant, Karen Roberts. They will be honored Sept. 3, at 1:30 p.m. at the Knoxville Supreme Court building. Chief Justice Janice Holder will read the orders from the bench and Paine will briefly respond. Members of the Advisory Commission on the Rules of Practice and Procedure are appointed by the Supreme Court to vote on proposed rule amendments for civil procedure, criminal procedure, rules of evidence and rules of juvenile court. Paine, who served as both chair and reporter of the commission, will retire from the commission on September 3, 2009.
Read more from the AOC
TBA tour brings history to life in France
Join your colleagues in the Tennessee bar on an exciting history tour of France, June 19-25, 2010. You will stay in charming three-star hotels as the group travels from Paris to Giverny, Caen, Bayeux, Honfleur and other Normandy locations, sampling French cuisine, culture and architecture. Highlights of the trip include the Normandy D-Day landing beaches, the Memorial Peace Museum in Caen, the American Cemetery at Omaha Beach, the Chateau of William the Conqueror, the famous Bayeux Tapestry, the island monastery Mont Saint-Michel, and the home and gardens of Claude Monet. Learn more about the trip or register now on TBALink, or watch a webcast about the trip on Thursday, Sept. 10 from 5 - 5:30 p.m. to get detailed highlights and ask questions from tour leaders.

TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA 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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