TBA programs nominated for national award

Two Tennessee Bar Association community service programs have been nominated for the American Society of Association Executive's "Associations Advance America Awards." The programs -- Justice 4 All and Tennessee Celebrates Pro Bono -- were major initiatives undertaken during the year to enhance volunteer legal services by lawyers across the state. In announcing the nominations, TBA President Gail Vaughn Ashworth said, "The deep care, constant concern and eager willingness to serve as demonstrated by the numbers of lawyers participating in these programs is truly extraordinary. It is certainly an honor for the TBA to be nominated for one of these prestigious awards." The Associations Advance America Awards recognize associations that propel America forward with innovative projects in public education and information; civic and community volunteer activities; and citizenship and democracy enhancement. The awards are given each year by the American Society of Association Executives (ASEA), the membership organization and voice of the association profession.

Read the TBA's press release here

TODAY'S OPINIONS
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CHATTANOOGA AREA REGIONAL TRANSIT AUTHORITY ET AL. v. MARY K. COLEMAN

Court: TWCA

Attorneys:

David F. Hensley, Chattanooga, Tennessee, for the appellants, Chattanooga Area Regional Transit Authority and Tennessee Municipal League Risk Management Pool.

Jeffrey W. Rufolo, Chattanooga, Tennessee, for the appellee, Mary K. Coleman.

Judge: BIVINS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee injured her ankle as a result of a fall. At the time the injury occurred, she was between two portions of a split work shift. She had undertaken a personal errand at a building adjacent to her workplace, and intended to return to an employee break room at her workplace to await the second half of her shift. The fall occurred on property owned by her employer, but the property was leased to an unrelated third party. The trial court held that the injury was compensable. Employer has appealed, asserting that the trial court erred by finding that the injury arose out of and occurred in the course of the employee's employment. We agree with Employer, and therefore reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2009/colemanm_121009.pdf


FORREST CONSTRUCTION COMPANY, LLC v. JAMES L. LAUGHLIN, II, ET AL. v. THOMAS B. NAIVE

Court: TCA

Attorneys:

Christopher S. Dunn, Alyssa M. Leffall and William B. Herbert, Nashville, Tennessee, for the appellants, Forrest Construction Company, LLC, and Thomas B. Naive.

Donald Capparella, Nashville, Tennessee, for the appellees, James L. Laughlin, II, and Debbie Laughlin.

Judge: CLEMENT

This action involves a variety of claims arising from the construction of a residence in Williamson County. A homeowner, James Laughlin, entered into a cost plus contract with Forrest Construction Company, LLC to construct a home for he and his wife. Prior to the home being completed, Forrest Construction stopped work, filed a lien on the residence, and thereafter filed a breach of contract action against Mr. Laughlin and an action to recover damages based on the doctrine of quantum meruit against Mrs. Laughlin. Forrest Construction claimed that Mr. Laughlin was in breach of the contract for failure to pay according to the contract. Mr. and Mrs. Laughlin filed a counter-claim for negligent construction, gross negligence, negligence per se, breach of contract, and violations of the Tennessee Consumer Protection Act. The trial court found that Mr. Laughlin had materially breached the contract by failing to pay according to the terms of the contract, and awarded damages to Forrest Construction. Conversely, the trial court found for the Laughlins on their claim of negligent construction and awarded damages against Forrest Construction. Both parties appeal. Forrest Construction contends that the trial court erred in holding it liable for alleged defects because Mr. Laughlin committed the first material breach and failed to give Forrest Construction notice and the opportunity to cure the alleged defects. Mr. Laughlin contends the trial court erred in finding that he committed the first material breach. The Laughlins also contend the trial court erred in reducing the cost of the repairs to their residence and in failing to pierce the corporate veil. We find that Forrest Construction was the first to materially breach the contract by submitting requests for draws that were not properly supported by records of its costs and expenses as required by the contract, including submitting draws which erroneously included charges for work done on its other projects, and by failing to complete construction of the home. We, therefore, reverse the trial court's determination that Mr. Laughlin committed the first material breach and hold that Forrest Construction was the first to materially breach the contract. We affirm the trial court's determination that the Laughlins were excused from the duty to give notice of the alleged defects and an opportunity to cure; thus, the Laughlins are entitled to recover damages due to the negligent construction by Forrest. As for the trial court's substantial reduction of the damages requested by the Laughlins for the cost to repair the yet unrepaired defects to their home, we are unable to determine whether the trial court considered or overlooked $55,000 of the estimated cost to repair the defects; therefore, we remand this issue to afford the trial court the opportunity to either restate its previous ruling or to increase the award of damages, if it so determines, based on the evidence presently in the record. As for the issue of piercing the corporate veil, we remand that issue for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/forrestconst_121009.pdf


BOBBY STEVE SIMMONS and JEANNIE L. SIMMONS v. CITY OF MURFREESBORO, ET AL.

Court: TCA

Attorneys:

D. Russell Thomas, Herbert M. Schaltegger, Murfreesboro, for Appellants

Richard W. Rucker, Murfreesboro, TN, for Appellee, City of Murfreesboro

Judge: HIGHERS

Appellants granted a sewer line easement to the City. The City hired a sub-contractor to install the sewer line and to restore the property following construction. Appellants, who were dissatisfied with the sub-contractor's restoration, filed suit against the City and the sub-contractor. The sub-contractor subsequently went out of business, and the trial court entered a judgment against the City for $13,070.00, representing the value of Appellants' land plus the cost to repair a fence. Appellants appeal, claiming the proper measure of damages is the cost to restore their property -- $137,779.62. On appeal, the City contends that Appellants may not sue the City, that Appellants breached the contract by refusing the sub-contractor access to their property, and that the trial court's award should be reduced by $132.00. The proper measure of damages in this case is the lesser of the cost to restore Appellants' property or the difference in reasonable market value of the premises immediately prior to and immediately after the injury. Although neither party presented evidence regarding the property's diminished value, we find that the trial court considered the appropriate factors in setting the amount of damages. Thus, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2009/simmonsb_121009.pdf


DAMON A. TATUM v. MERCEDEAS A. TATUM

Court: TCA

Attorneys:

Ivan D. Harris, Jr., Collierville, TN, for Appellant.

Gail W. Horner, Germantown, TN, for Appellee.

Judge: HIGHERS

Wife filed a divorce complaint in Judge Robilio's court, which she later voluntarily dismissed. Wife then filed a complaint in the Court of the Judiciary against Judge Robilio. Subsequently, Husband filed a complaint for divorce, and the matter was set in Judge Robilio's court. Wife filed a motion to dismiss for insufficient service of process of Husband's divorce complaint, which was denied after the process server identified Wife as the person he had served. Wife failed to appear at the hearing on Husband's divorce complaint, and a guardian ad litem was appointed. Husband then filed a motion for default. Wife was notified that the default hearing would take place on October 24, but the hearing was actually held on October 23. When Wife failed to appear, a default judgment was entered against her. After entry of the final decree of divorce, Wife filed a motion for recusal, which was denied. On appeal, Wife claims that service of process was falsified, that she did not receive notice of the October 23 hearing, and that Judge Robilio should have recused herself. We affirm the trial court's finding that service of process was properly made, and that a guardian ad litem was properly appointed. We also affirm the trial court's denial of Wife's motion for recusal. However, because Wife was not afforded notice of the default hearing, we vacate, as void, the default judgment entered against Wife. This case is remanded for a trial on the merits. All matters, including custody, shall remain in status quo pending further resolution in the trial court.

http://www.tba2.org/tba_files/TCA/2009/tatumd_121009.pdf


MICHAEL LAWRENCE TRUE v. WENDY SUE ROBINSON-TRUE

Court: TCA

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the Plaintiff/Appellant Michael Lawrence True.

Philip E. Smith, Nashville, Tennessee, for the Defendant/Appellee Wendy Sue Robinson-True.

Judge: KIRBY

This appeal involves divorce support obligations. The parties have three minor children. During the marriage, the husband worked construction and the family moved often. After both parties filed for divorce and moved away from Tennessee, the husband left his employment in construction to become a full-time student attending chiropractic school. After trial, the trial court designated the wife as the children's primary residential parent and determined the husband's earning capacity, for purposes of child and spousal support, at the level it found he had earned in prior construction work. The husband was ordered to pay child support, alimony in solido, and transitional alimony. The husband filed a motion to alter or amend arguing, inter alia, that his total monthly support obligation exceeded his ability to pay. The trial court granted his motion in part and reduced the total monthly support obligation. The husband now appeals, challenging the determination of his earning capacity, the amount of child support, and the alimony awarded by the trial court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/truem_121009.pdf


TERRINA D. BATES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Terrina D. Bates, Pro se, Benton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Melissa Roberge, Assistant Attorney General; Steven Bebb, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In June 2007, the Defendant pled guilty in McMinn County to theft between $500 and $1000 and possession of cocaine for resale, and she received an effective ten-year sentence on Community Corrections. In December 2007, the trial court found that the Defendant violated the terms of her Community Corrections sentence, and it ordered her to serve the remainder of her sentence in the Tennessee Department of Correction. In March 2009, the Defendant filed a notice of appeal and, in April 2009, she filed a motion for the appointment of counsel. Because the Defendant failed to file a timely notice of appeal, we dismiss the Defendant's appeal.

http://www.tba2.org/tba_files/TCCA/2009/batest_121009.pdf


STATE OF TENNESSEE v. TAMEKA L. HAMILTON

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and William A. Kennedy, Assistant Public Defender, attorneys for appellant, Tameka L. Hamilton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Welles, Jr., District Attorney General; and Lewis Combs, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Tameka L. Hamilton, pled guilty in the Sullivan County Criminal Court to violating her probation in case numbers S52,821, S52,610, S53,448, and S53,449. After the probation revocation hearing, the trial court revoked the Defendant's probation and ordered her to serve two years at thirty percent for case numbers S52,610, S53,448, and S53,449 and consecutively to the service of the remaining sentence in case number S52,821. In this appeal as of right, the Defendant argues that the trial court erred in ordering her to serve her sentences in incarceration. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/hamiltont_121009.pdf


STATE OF TENNESSEE v. JOSHUA ALLEN HUTTON

Court: TCCA

Attorneys:

Mack Garner (at trial), Maryville, Tennessee; and J. Liddell Kirk (on appeal), Knoxville, Tennessee, for the Appellant, Joshua Allen Hutton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General; Michael L. Flynn, District Attorney General; Tammy M. Harrington, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Joshua Allen Hutton, pled guilty to three counts of forgery, and the trial court sentenced him to a total effective sentence of three years to be served on probation. Probation violation warrants were issued for the Defendant, after which the trial court revoked the Defendant's probation and ordered him to serve the remainder of his sentence in the Tennessee Department of Correction. On appeal, the Defendant claims that the trial court abused its discretion by failing to impose a less restrictive alternative to confinement. After a thorough review of the record and the applicable law, we conclude the trial the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/huttonj_121009.pdf


ROBERT BRADLEY SCOTT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert Bradley Scott, appellant, pro se.

Robert E. Cooper, Attorney General & Reporter; and Matthew Bryant Haskell, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Robert Bradley Scott, appeals from the order of the Knox County Criminal Court dismissing his petition for a writ of habeas corpus, and the State has moved this court to summarily affirm the criminal court's order pursuant to Rule 20 of the Tennessee Court of Criminal Appeals Rules. We agree with the State and affirm the criminal court's order.

http://www.tba2.org/tba_files/TCCA/2009/scottr_121009.pdf


JOSEPH B. THOMPSON v. TONY PARKER, WARDEN (STATE OF TENNESSEE)

Court: TCCA

Attorneys:

Joseph B. Thompson, Tiptonville, Tennessee Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Deshea Dulany Faughn, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Joseph B. Thompson, was convicted by a Sullivan County Criminal Court jury of aggravated robbery and aggravated kidnapping, Class B felonies. He was sentenced as a Range II, multiple offender to twenty years at thirty-five percent for the aggravated robbery conviction and as a Range II, violent offender to twenty years at one hundred percent for the aggravated kidnapping conviction, which were to be served consecutively, for an effective sentence of forty years in the Tennessee Department of Correction. He filed a pro se petition for habeas corpus relief in the Lake County Circuit Court, which was dismissed. On appeal, the Petitioner argues that his judgments are void because his sentences exceed the statutory minimum, thereby violating Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

http://www.tba2.org/tba_files/TCCA/2009/thompsonj_121009.pdf


TODAY'S NEWS

Legal News
Legislative News
Politics
TBA Member Services

Legal News
Rucker named new bankruptcy judge
Chattanooga attorney Shelley Rucker has been chosen as a new bankruptcy judge in the eastern district of the state. She replaces Judge Tom Stinnett who is retiring. Rucker, a partner at Miller & Martin law firm and a member of the American College of Bankruptcy, joins fellow judge John Cook in the federal bankruptcy office in Chattanooga. Rucker was selected for the post by the Sixth Circuit Court of Appeals. Other attorneys considered for the post were Kent Anderson, Mike Fitzpatrick, Jim Lane, Richard Klingler and Kim Swafford.
Chattanoogan.com has the story
Hamilton attorneys upset about court policy change
A letter from 30 attorneys says a decision by Hamilton County general sessions and city judges to close off a hallway near their offices is "an insult" to attorneys who long have had access to the area. The letter, which came from members of the Chattanooga Association of Criminal Defense Lawyers, including the public defender, noted a persistent erosion of collegiality in General Sessions Court. The move, which came two weeks ago, has steadily been building steam as an issue among judges sharing courtrooms in the building and between judges and lawyers.
Read the latest developments from Chattanoogan.com
State requests execution date for Owens
The Tennessee attorney general's office has asked the state Supreme Court to set an execution date for Gail Owens, one of two women on death row in Tennessee. Owens, 57, was convicted in 1986 of accessory before the fact of first-degree murder for having her husband murdered, becoming the first woman sentenced to death under Tennessee's 1977 death penalty law. She recently exhausted all appeals.
The Tennessean reports
'Unprecedented, disturbing' day in juvenile court
State prosecutor Terre Fratesi said the number of juvenile murder defendants handled Wednesday in Shelby County Juvenile Court was unprecedented and disturbing as five teenagers, including two girls, were ordered to be tried as adults in four separate murder cases. "My reaction to this? Compete horror," said Fratesi, who also had cases involving the rape of a child, prostitution, aggravated robbery and kidnapping. "It's utterly heartbreaking. The juvenile justice system was set up to deal with kids who stole cars and shoplifted."
The Commercial Appeal has more
Waddey & Patterson under new leadership
Nashville-based intellectual property firm Waddey & Patterson PC will no longer be led by a Waddey or a Patterson, but by Ed Lanquist, who will serve as president and managing partner of the firm. The founders of the firm, Jack Waddey and Mark Patterson, are still with the firm and are looking forward to getting back to the practice of law, reports the Nashville Business Journal.

Alabama gets third accredited law school
With the ABA's approval of Faulkner University's Jones School of Law in Montgomery, Alabama now has three accredited law schools. The Jones School joins the University of Alabama and Samford University's Cumberland School of Law.
Read more from the school
Out-of-work lawyers volunteer to help N.J. government
The New Jersey attorney general's office is taking advantage of the tough job market for lawyers to help meet the state's legal needs. More than 100 people applied and more than 60 have begun doing work in a volunteer program dreamed up by Attorney General Anne Milgram, who said the state can't afford to hire all the lawyers it needs due to a hiring freeze. The volunteers have committed to work at least 20 hours a week for three months.
Read or hear the story from National Public Radio
Legislative News
Early Christmas present for poor clients
U.S. House and Senate negotiators have approved an appropriations bill for Fiscal Year 2010 that increases funding for the Legal Services Corporation (LSC) by $30 million. Included in the bill's $420 million appropriation is $394.4 million for state and local legal aid programs, $3.4 million for technology grants to improve access to legal assistance and $1 million for student loan repayment assistance to legal aid lawyers. In addition to funding the agency for another year, the bill also lifts a restriction on LSC-funded programs pursuing the recovery of attorneys' fees when it is permitted or required under law.

Politics
Ford takes helm as county mayor
Shelby County Commissioner Joe Ford was sworn into the county mayor's office today, creating a series of changes and two possible commission vacancies in the process. Chosen last month by his colleagues after multiple rounds of contentious voting, Ford will serve as interim mayor until Sept. 1, 2010, completing the unfinished term of Memphis Mayor A C Wharton who was elected city mayor in October.
The Commercial Appeal reports
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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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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