Celebrate Pro Bono events continue across the state

Celebrate Pro Bono Month activities come to the Tennessee Bar Center Friday, kicking off with a luncheon to celebrate the 25th Anniversary of the launch of IOLTA (Interest On Lawyers' Trust Accounts), followed by a free CLE program and an afternoon legal clinic. You can still register for the webcast of the CLE on TennBarU. In Knoxville, lawyers will be sharing a similar experience, starting with a CLE program in the morning, followed by an IOLTA celebration luncheon and an afternoon clinic, all at the Family Justice Center. Other upcoming Pro Bono activities across the state include Saturday legal clinics in Bristol and Chattanooga, and Saturday Wills for Heroes programs in Gallatin and Jackson.

Find out more about Celebrate Pro Bono events

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.

MELISSA L. BRIGHT DOCKERY v. KEVIN CARL DOCKERY, SR.

Court: TCA

Attorneys:

Ben H. Houston, II, Knoxville, Tennessee, for the Appellant, Kevin Carl Dockery, Sr.

Lisa A. White, Knoxville, Tennessee, for the Appellee, Melissa L. Bright Dockery.

Judge: SWINEY

In December 2008, Kevin Carl Dockery, Sr. ("Husband"), was found guilty of seventeen counts of criminal contempt for violating an order of protection in favor of his ex-wife, Melissa L. Bright Dockery ("Wife"). Husband was sentenced to 10 days in jail for each violation, for a total of 170 days. Husband already had served 40 days in jail. He was sentenced to time served, with the remaining 130 days to be held in abeyance pending strict compliance with the order of protection. No appeal was taken from that judgment. Soon after being released from jail, Husband yet again began violating the order of protection. Wife filed two motions seeking to have Husband held in criminal contempt for these new violations of the order of protection. Following a trial, Husband was found guilty of seven additional counts of criminal contempt. Husband was ordered to serve 10 days in jail for each violation, for a total of 70 days in jail. In addition, Husband was ordered to serve the 130 days previously held in abeyance, less time served of 57 days. This resulted in an effective sentence of 143 additional days in jail. Husband appeals raising numerous issues. For the reasons discussed below, we vacate one of the seven findings of criminal contempt. In all other respects, the judgment of the Trial Court is affirmed.

http://www.tba2.org/tba_files/TCA/2009/dockerym_102909.pdf


GRAPEVINE TRUCKING, LLC v. CAROLINA CASUALTY INSURANCE COMPANY, ET AL.

Court: TCA

Attorneys:

Christopher D. Heagerty and Lisa J. Hall, Knoxville, Tennessee for the Appellant, American Southern Insurance Company.

M. Keith Davis, Dunlap, Tennessee for the Appellee, Grapevine Trucking, LLC.

Judge: SWINEY

Grapevine Trucking, LLC ("Grapevine") sued Carolina Casualty Insurance Company ("Carolina Casualty") and American Southern Insurance Company ("American Southern Insurance") alleging breach of insurance contracts. The Trial Court granted Carolina Casualty summary judgment dismissing them from the suit. The Trial Court also granted Grapevine partial summary judgment finding that the theft of a truck and trailer covered by Grapevine's policy with American Southern Insurance had occurred and that American Southern Insurance was liable. The issue of damages was tried, and the Trial Court entered its order finding and holding, inter alia, that the combined value of the stolen truck and trailer was $53,000 and that Grapevine was entitled to a judgment against American Southern Insurance for $53,000, plus state sales tax on Grapevine's loss in the amount of $3,710. American Southern Insurance appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/grapevinetrucking_102909.pdf


IN RE JOSHUA L. H.

Court: TCA

Attorneys:

Luther H., pro se Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee ex rel. Rhonda F.

Judge: SWINEY

A petition for paternity was filed in June 1990 by the Tennessee Department of Children's Services ("DCS") seeking an order declaring Luther H. ("Father") to be the biological father of Joshua L. H. ("Joshua"). At a hearing on the petition, Father acknowledged paternity in open court and waived DNA testing. Accordingly, an order was entered establishing Father as the biological father and ordering him to pay child support. Over eighteen (18) years later, Father, who is incarcerated and proceeding pro se, filed a "Petition to Determine Paternity" claiming that he no longer was certain that he is Joshua's biological father. Father sought an order requiring DNA testing be conducted and that the State be required to pay for the testing. The Juvenile Court Referee dismissed the petition, finding that the 1990 order declaring Father to be the child's biological father was res judicata to the current petition. The Referee's order was confirmed by the Juvenile Court Judge. Father appeals, and we affirm.

http://www.tba2.org/tba_files/TCA/2009/joshualh_102909.pdf


IN RE: ESTATE OF FLORA ETTA LEADBETTER, DECEASED

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; and L. Vincent Williams, Deputy Attorney General; for the Appellant, Tennessee Bureau of TennCare.

Thomas Privette, Jr., Knoxville, Tennessee for the Appellee, Estate of Flora Etta Leadbetter, Deceased.

Judge: SWINEY

More than one year after the death of Flora Etta Leadbetter ("Deceased"), the State of Tennessee ex rel. Bureau of TennCare ("the Bureau") filed a complaint seeking to have the Trial Court appoint an administrator for the Estate of Flora Etta Leadbetter ("the Estate"). The Trial Court appointed a personal representative of the Estate. The Bureau filed a claim against the Estate seeking to recover monies paid for medical assistance and services provided for Deceased. The personal representative of the Estate filed a notice of insolvency and an exception to the Bureau's claim. The Trial Court heard argument on the exception and then entered its order on February 27, 2008 finding and holding, inter alia that the Bureau's claim is "barred, disallowed and for nothing held" and that the personal representative was authorized to close the Estate without securing a waiver or release of claims from the Bureau. The Bureau appeals to this Court. Pursuant to the Supreme Court's Opinion, In re: Estate of Martha M. Tanner, M2006-02640-SC-R11-CV, 2009 WL 3191703 (Tenn. 2009), we vacate and remand.

http://www.tba2.org/tba_files/TCA/2009/leadbetterf_102909.pdf


SIEGEL-ROBERT, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Jonathan N. Wike, Assistant Attorney General, Nashville, Tennessee, for the appellant, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee.

Patricia Head Moskal and Joseph W. Gibbs, Nashville, Tennessee, for the appellee, Siegel-Robert, Inc.

Judge: DINKINS

Taxpayer filed a complaint against the Tennessee Department of Revenue, seeking a tax refund for an overpayment of taxes assessed on "nonbusiness earnings." The Department denied Taxpayer's request for a refund, alleging that the income taxed was "business earnings." Upon cross-motions for summary judgment, the trial court granted Taxpayer's motion and denied the Department's, finding that the tax assessment was unconstitutional since the income at issue was used for investment purposes only and not for Taxpayer's business activities operated in Tennessee. On appeal, the Department contends that the income was used in the operations Taxpayer conducted in Tennessee and, as such, should be apportionable to the state for tax purposes. Finding that Taxpayer was entitled to judgment as a matter of law, the decision of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2009/siegelrobert_102909.pdf


JAMES GREGORY TIMMINS, INDIVIDUALLY, AND FOR THE BENEFIT OF ALL THE SURVIVING CHILDREN OF JANICE SUE TIMMINS, DECEASED v. JERRY LINDSEY, ET AL.

Court: TCA

Attorneys:

David M. Pollard, Jr., Jacksboro, Tennessee, for the appellant, James Gregory Timmins, Individually, and for the benefit of all surviving children of Janice Sue Timmins, Deceased.

Walter W. Bussart and Lee Bussart Bowles, Lewisburg, Tennessee, for the appellees, Jerry Lindsey, Gary Lindsey, Joseph Lindsey, and Mary Ann Owens.

Judge: DINKINS

Plaintiff appeals the determination of the trial court in a declaratory judgment action that the plaintiff was not entitled to any portion of settlement proceeds derived from the personal injury action of the plaintiff's deceased grandmother by operation of Tenn. Code Ann. section 20-5-111 and because of the existence of a will that excluded the plaintiff's mother from the decedent's estate. Finding error, we vacate the judgment of the trial court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/timminsj_102909.pdf


WILLIAM ALAN WATERMEIER v. SHERRY DUNAWAY MOSS AND THOMAS R. MOSS III

Court: TCA

Attorneys:

J. Steven Anderson, Memphis, Tennessee, for the Appellant William Alan Watermeier.

Anne Johnson Mead, Memphis, Tennessee, for the Appellees, Sherry Dunaway Moss and Thomas R. Moss, III.

Judge: STAFFORD

This is a petition to establish parentage case. Father/Appellant appeals from the dismissal of his petition. Finding that the requirements of Tenn. Code Ann. section 36-2-304(b)(2) have not been met and that Appellant is the child's biological and legal father, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2009/watermeierw_102909.pdf


STATE OF TENNESSEE v. KATIE ANN WALSH

Court: TCCA

Attorneys:

Joseph F. Harrison, Blountville, Tennessee, for the appellant, Katie Ann Walsh.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Janine Myatt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Katie Ann Walsh, challenges the trial court's imposition of an incarcerative sentence, arguing that she should have been granted an alternative sentence. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/walshk_102909.pdf


TODAY'S NEWS

Legal News
Legislative News
Politics
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Court rules for lawyers in 'Red Flags' case
The U.S. District Court for the District of Columbia today granted the American Bar Association's request for summary judgment in a case challenging the Federal Trade Commission's application of the Fair and Accurate Credit Transactions Act to lawyers. The decision prohibits the FTC from imposing new identity theft regulations on lawyers and comes just a few days before the new rules are to take effect. ABA President Carolyn B. Lamm responded to the ruling saying it was "an important victory for American lawyers and the clients we serve." The FTC reportedly is considering whether to appeal.
The Blog of Legal Times reports
Moses named president of the court historical society
Marlene Eskind Moses, founder and partner with the law firm of Moses & Townsend PLLC in Nashville, was recently installed as president of the Tennessee Supreme Court Historical Society. Other officers are President-Elect William M. Barker, former Chief Justice of the Tennessee Supreme Court now at Chambliss, Bahner & Stophel in Chattanooga; Treasurer Jerry Adams, a CPA with Decosimo Certified Public Accountants in Chattanooga; and Secretary Joy Day with Sutter, O'Connell & Farchione in Franklin.
Learn more about the society
See a list of new board members
Jefferson delivered secret records to grand jury
Former Memphis city attorney Elbert Jefferson appeared before a federal grand jury today with a secret tape recording and a file several inches thick. The documents reportedly are a record of his ethics investigation of former Mayor Willie Herenton. Jefferson's lawyer, Ted Hansom, said the records would prove Jefferson conducted an honest and thorough investigation of the former mayor, and that Jefferson himself is not a target of the grand jury's inquiry.
The Commercial Appeal has more
American Bar Foundation names new Tennessee fellows
The American Bar Foundation announced this week that nine Tennessee lawyers have been elected ABF Fellows. They are: Douglas A. Blaze, dean, University of Tennessee College of Law, Knoxville; David M. Cook, president, Hardison Law Firm, Memphis; William L. Harbison, member, Sherrard & Roe, Nashville; Jimmie C. Miller, partner, Hunter Smith & Davis, Kingsport; Sarah Y. Sheppeard, partner, Sheppeard, Swanson & Mynatt, Knoxville; Justice Gary Wade, Tennessee Supreme Court, Knoxville; Leigh Walton, member, Bass Berry & Sims, Nashville; Ricky E. Wilkins, Law Offices of Ricky E. Wilkins, Memphis; and Larry D. Wilks, Law Offices of Larry D. Wilks, Springfield.

Man freed by DNA wants state to pay
Lawrence McKinney spent more than three decades in prison for rape and burglary. A recent DNA test revealed he did not do the crime, a judge has set him free and now he wants the state of Tennessee to pay him for lost time. He is filing a wrongful imprisonment claim for one million dollars after spending "31 years, 9 months, 18 days and 12 hours" in prison.
NewsChannel 5 has the story
Hamilton County rehires all but one magistrate
Hamilton County commissioners voted today to keep all but one magistrate on the job. Larry Ables will remain chief magistrate while Bob Davis and Yolanda Mitchell will continue. The commission voted 5-4 to replace Marty Lasley with attorney Jennifer Lloyd. Commissioners said they were concerned that Lasley had called for cutting magistrates and judges in the county.
Read more in the Chattanooga Times Free Press
Legislative News
MALS director testifies before congressional panel
Memphis Area Legal Services Inc. Executive Director Harrison McIver testified before the U.S. House Subcommittee on Commercial and Administrative Law this week on the growing casework demands on the Legal Services Corporation and the legal aid agencies it funds. McIver testified that MALS has handled more than 4,500 cases during the first half of the year, compared to a total caseload of 5,600 last year. The subcommittee is chaired by U.S. Rep. Steve Cohen, D-Memphis, who invited McIver to appear before the panel.
The Memphis Daily News reports
Politics
Candidates jockey for 9th District Senate seat
A number of Southeast Tennessee Republicans have been looking at running for the 9th Senatorial District after Sen. Dewayne Bunch, R-Cleveland, began telling lawmakers he would not seek re-election. Rep. Mike Bell, R-Riceville, has announced his candidacy. Rep. Kevin Brooks, R-Cleveland, has been quoted saying he is weighing a bid. And former state Sen. Lou Patten confirmed yesterday he is considering a run. By contrast, Rep. Eric Watson, R-Cleveland -- once considered a potential contender -- announced today he will not be a candidate for the Senate but will seek reelection to his District 22 House seat. Read about the potential candidates in two articles from the Times Free Press:
Watson opts out of Senate race
Several candidates eye Senate seat

Upcoming
Seminar explores royalty payments for performers
The Arts & Business Council of Greater Nashville is sponsoring a presentation on the latest hot-button issue in the entertainment law community: performance rights in sound recordings. The seminar will take place Nov. 10 from 5:30 to 7 p.m. in the offices of Bradley Arant Boult Cummings. Former Nashville attorney Sam Reed, who now serves on the staff of U.S. Rep. Jim Cooper will provide an overview of congressional proposals for a performance rights royalty and will take questions from attendees. The event is $10 for council members and $15 for non-members. To RSVP, email VLPA@abcnashville.org or call (615) 743-3055.

Disciplinary Actions
Lawyers suspended for 2008 CLE violations
Approximately 100 lawyers were suspended from the practice of law in Tennessee for failing to comply with mandatory continuing legal education requirements in 2008. The Supreme Court issued the suspension orders on Aug. 31 and Sept. 4. Attorneys who have since complied with the requirements are noted as reinstated.
View the list of suspended attorneys
TBA Member Services
Secure, compliant data backup service now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
Learn why lawyers trust i365 for online data backup solutions

 
 
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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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