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| Monday, December 28, 2009 |
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It's not too late: Take last-minute CLE from TBA's TennBarU
If you haven't met your 2009 CLE requirements or want to get a head start on 2010, take a look at the TennBaru Course Catalog, with more than 300 online video programs and more than 25 online text programs available to choose from. Or sign up for the TBA's Year-End CLE Blast. Now in its fifth year, the program offers replays of 2009's top CLE programs continuously from 7 a.m. to 7 p.m. each day this week through Thursday. These replay sessions will be presented at the Tennessee Bar Center with a moderator so they are accredited for live credit.
See the full Year End CLE blast schedule or register now
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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.
01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
07 - 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
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SUPREME COURT DISCRETIONARY APPEALS
Court: TSC
http://www.tba2.org/tba_files/TSC/2009/certlist_122809.pdf
TIMOTHY BOWEN, ET AL. v. SAMUEL E. RASNAKE
Court: TCA
Attorneys:
James D. Culp, Johnson City, Tennessee, for the appellant, Samuel E. Rasnake.
Thomas C. Jessee, Johnson City, Tennessee, for the appellees, Timothy Bowen and Leanne Bowen.
Judge: SUSANO
Timothy Bowen and his wife Leanne Bowen ("the Buyers") contracted to purchase a house from Samuel E. Rasnake ("the Seller") that was still under construction. The Buyers experienced numerous problems with the house and filed their complaint against the Seller for defective construction, breach of warranty and misrepresentation. After a bench trial, the court awarded the Buyers judgment against the Seller in the amount of $42,300. The Seller appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2009/bowent_122809.pdf
CITY OF HARRIMAN, TENNESSEE v. ROANE COUNTY ELECTION COMMISSION, ET AL.
Court: TCA
Attorneys:
Harold D. Balcom, Jr., Kingston, Tennessee, for the appellant, City of Harriman.
Thomas M. Hale, Knoxville, Tennessee, and Jack H. McPherson, Jr., Kingston, Tennessee, for the appellee, City of Kingston.
No appearance on behalf of Roane County Election Commission.
Judge: SUSANO
This is a contest between two neighboring towns in Roane County over common territory that both have purported to annex. The defendant, Kingston, sought to add the territory through a successful referendum election conducted on February 5, 2008. The plaintiff, Harriman, sought to add the territory through its annexation ordinance No. 200801-1 adopted on first reading January 28, 2008.
The disputed territory is outside the "[u]rban growth boundary" of both municipalities; it is within the "[r]ural area" of Roane County as those terms are respectively defined in Tenn. Code Ann. section 6- 58-101 (7) and (6) (2005). Harriman's complaint to void the Kingston referendum asserts that Harriman's ordinance takes priority because Harriman, as a larger municipality, is granted statutory priority. Kingston argues that the Harriman ordinance was of no effect because Harriman did not
first secure an amendment to its urban growth boundary before passing the ordinance. Harriman responded that it did in fact "propose" an amendment and that a proposal was all that was required under Tenn. Code Ann. section 6-58-111(d)(1) (Supp. 2009). The parties tried the case on stipulated facts. The trial court agreed with Kingston and dismissed Harriman's complaint without reaching the issue
of priority. Harriman appeals, asking us to reverse and remand for a determination of the pretermitted issues. We vacate the judgment of the trial court and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2009/cityofharriman_122809.pdf
MICHAEL CROSBY v. CAROLYN S. HOLT, ET AL.
Court: TCA
Attorneys:
Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Michael Crosby.
H. Scott Reams, Morristown, Tennessee, for the appellees, Carolyn S. Holt, Charles Cross, Joe Gibson, Jr., Roger Greene, James Grigsby, Janice Haun, Clyde Kinder, members of the Hamblen County Board of Education, and Dale P. Lynch, Director of the Hamblen County Department of Education.
Judge: SUSANO
Michael Crosby ("the Teacher"), a public school teacher, appealed his termination by the Hamblen County Board of Education ("the Board") to the trial court pursuant to Tenn. Code. Ann. section 49-5-513 (2009). The court upheld the discharge as "warranted on the grounds of unprofessional conduct and insubordination." The Teacher appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2009/crosbym_122809.pdf
H.P. LARGE, and TERRANCE R. CRAIG, d/b/a GREENFIELD LAND AND CATTLE COMPANY, v. GREENE COUNTY, TENNESSEE
Court: TCA
Attorneys:
James D. Culp, Johnson City, Tennessee, for appellants.
Roger A. Woolsey, Greeneville, Tennessee, for appellee.
Judge: FRANKS
Plaintiffs alleged that defendant had constructed a bridge over Lick Creek which was adjacent to their property, and the bridge had caused their property to repeatedly flood. They further alleged that they were entitled to recover damages under the theory that the County maintained a temporary nuisance which damaged their property. Defendant filed a Motion for judgment on the pleadings
which characterized plaintiffs' cause of action as an inverse condemnation action. Affidavits and other documents were filed in the record and the Trial Court agreed with the defendant that plaintiffs' action was based on inverse condemnation and the statute had run on that action. The
Trial Judge also ruled that the statute had run on the nuisance claim. On appeal, we affirm the Trial Judge's holding that plaintiffs' action was a nuisance type taking and was governed by the inverse condemnation statute, and we agree that the record demonstrates that the statute of limitations had run on plaintiffs' claims.
http://www.tba2.org/tba_files/TCA/2009/hplarge_122809.pdf
SUSANO dissenting
http://www.tba2.org/tba_files/TCA/2009/hplarge_DIS_122809.pdf
DAREL L. JONES, ET AL. v. UNITED PROPANE GAS, INC., ET AL.
Court: TCA
Attorneys:
Paul R. Leitner and Bruce D. Gill, Chattanooga, Tennessee, for the appellants, United Propane Gas, Inc., and Ocoee River Propane Gas, Inc.
J.Y. Elliott, III, Chattanooga, Tennessee and R. Charles Wilkin, III, Tulsa, Oklahoma, for the appellees, Darel L. Jones, Donald A. Maples, Jr., and Heritage Operating, L.P., dba Hydratane of
Athens.
Judge: SUSANO
Darel L. Jones, Donald A. Maples, Jr., and Heritage Operating, L.P., dba Hydratane of Athens (collectively "the Plaintiffs") commenced this litigation originally against United Propane Gas, Inc. ("UPG"), with a petition seeking a declaration that the Pricing, Confidentiality and Post-
Employment Activities Agreement (referred to as "the Agreement," "the Jones Agreement," or "the Maples Agreement" as the context requires) signed by Jones and Maples in favor of their past employer, Ocoee River Propane Gas, Inc. ("ORP"), was unenforceable and that their new employer, Hydratane, had no liability for hiring them. The Plaintiffs later amended their petition to add ORP
as a defendant. UPG and ORP (collectively "the Gas Companies") filed an answer asserting, among other things, (1) that they were independent entities and (2) that Jones and Maples were not UPG employees. ORP filed a counterclaim against Maples asking that he be held in breach of contract and enjoined from violating the Agreement as well as a counterclaim against Hydratane for tortuous interference with the Agreement. After a bench trial, the court announced its findings in favor of the
Plaintiffs from the bench and later signed and entered an order submitted by the Gas Companies that limited the effect of the court's ruling to "the non-compete provision" of the Agreement. The Plaintiffs filed a motion to alter or amend which the trial court granted, the effect of which was to hold that the Agreement in its entirety, rather than just the non-compete provision, was unenforceable. The Gas Companies appeal. We affirm.
http://www.tba2.org/tba_files/TCA/2009/jonesd_122809.pdf
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. K.B.M., IN THE MATTER OF: G.M.M. (dob 5/18/2000) and S.A.M. (dob 1/14/1999) Children Under Eighteen (18) Years of Age
Court: TCA
Attorneys:
Russell S. Veldman, Chucky, Tennessee, for appellant.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for appellee.
Judge: FRANKS
In this action to terminate the parental rights of the mother of her two minor children, the Trial Court held that the mother had abandoned the children by failure to visit the children within four months prior to the filing of the Petition for Termination, failure to comply with the terms of the permanency plan and found there were persistent conditions in the case that justified termination of the mother's parental rights. Further, the Trial Court held the mother's parental rights were terminated upon clear
and convincing evidence and that clear and convincing evidence supported the Trial Court's determination that termination was in the best interest of the children. The mother has appealed. Upon our review, we conclude that the Trial Court properly found that clear and convincing evidence supported one statutory ground for termination of parental rights, and affirm the Judgment of the Trial Court, as modified.
http://www.tba2.org/tba_files/TCA/2009/kbm_122809.pdf
GMAC, LLC v. JAMES V. KIMBRO
Court: TCA
Attorneys:
James V. Kimbro, Pro Se.
Charles D. Waller, Knoxville, Tennessee, for the appellee, GMAC, LLC.
Judge: FARMER
The Defendant/Appellant appeals from the trial court's grant of the Plaintiff/Appellee's motion for summary judgment which was supported by affidavit and a statement of undisputed material facts. The Defendant/Appellant failed to respond to either. We affirm.
http://www.tba2.org/tba_files/TCA/2009/kimbroj_122809.pdf
AARON BENJAMIN RUTHERFORD v. SOUTHERN COLLEGE OF OPTOMETRY
Court: TCA
Attorneys:
Amy J. Farrar and Donald Capparella, Nashville, Tennessee, for the appellant, Aaron Benjamin Rutherford.
James E. Conley, Memphis, Tennessee, for the appellee, Southern College of Optometry.
Judge: FARMER
The plaintiff/appellant voluntarily withdrew from graduate school when it became certain he would not successfully remediate a previously failed course. The school permitted the student to re-enroll the following academic quarter subject to several specific conditions of readmission. The school eventually dismissed the student after it determined that he had failed to earn a "C" or better in two audited courses, which it considered a violation of the student's readmission conditions. The student filed suit following his dismissal, but not until after he entered into an agreement resolving the underlying dispute. The school counterclaimed for breach of contract, damages, and enforcement of the parties' agreement. The jury determined that (1) the school violated its policies and
procedures when it dismissed the student, (2) the parties agreed to settle any differences that they may have had as set forth in the proof, and (3) neither party violated the agreement. The trial court accordingly entered judgment in favor of the school. Finding material evidence to support the jury's verdict, we affirm.
http://www.tba2.org/tba_files/TCA/2009/rutherforda_122809.pdf
LINN COOK v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Joseph S. Ozment, Memphis, Tennessee, for the appellant, Linn Cook.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The petitioner, Linn Cook, appeals the denial of his petition for post-conviction relief and argues that he received ineffective assistance of counsel at trial and that he was improperly sentenced in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). After careful review, we affirm the post-conviction court's denial of relief.
http://www.tba2.org/tba_files/TCCA/2009/cookl_122809.pdf
CARLOS COOPER v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Joseph T. Howell, Jackson, Tennessee, for the Petitioner-Appellant, Carlos Cooper.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James (Jerry) G. Woodall, District Attorney General; and Alfred (Al) L. Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Carlos Cooper, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief. He originally pled guilty to attempt to obtain a controlled substance by fraud and two counts of possession of cocaine, a Schedule II narcotic, with intent to sell or deliver 0.5 grams or greater. He received a four-year sentence for the attempt offense and eight-year sentences
for his convictions for possession of cocaine with intent to sell or deliver, all to be served concurrently, for an effective sentence of eight years. The petitioner was originally ordered to serve the eight year sentence on Community Corrections. On appeal, the Petitioner contends that he did not enter a knowing and voluntary guilty plea because he received ineffective assistance of counsel.
Upon review of the record, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2009/cooperc_122809.pdf
NAKOMIS JONES v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
R. Todd Mosley (on appeal) and David Christensen (at hearing), Memphis, Tennessee, for the appellant, Nakomis Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The petitioner, Nakomis Jones, appeals the post-conviction court's denial of his petition for post- conviction relief, arguing that he received the ineffective assistance of counsel at trial and on appeal. Following our review, we affirm the post-conviction court's denial of post-conviction relief.
http://www.tba2.org/tba_files/TCCA/2009/jonesn_122809.pdf
STATE OF TENNESSEE v. JAMES NELSON
Court: TCCA
Attorneys:
Robert Wilson Jones, District Public Defender, and Phyllis Aluko and Russell White, Assistant Public Defenders, for the appellant, James Nelson.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The defendant, James Nelson, was convicted of reckless endangerment with a deadly weapon, a Class E felony, as a lesser included offense of the indicted offense of aggravated assault. He was sentenced, as a Range III, persistent offender, to six years in confinement. On appeal, he contends that the evidence was insufficient to sustain his conviction and that he was sentenced improperly.
After careful review, we affirm the judgment from the trial court.
http://www.tba2.org/tba_files/TCCA/2009/nelsonj_122809.pdf
STATE OF TENNESSEE v. LOROY SALTER
Court: TCCA
Attorneys:
Noel H. Riley, II, Dyersburg, Tennessee, for the appellant, Loroy Salter.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMSS
The defendant, Loroy Salter, was found to be in violation of his probationary sentence in the Dyersburg City Court and was sentenced to twenty days in jail and ninety days of community service. The defendant subsequently appealed the decision to the Dyer County Circuit Court, which
affirmed the violation and the resulting sentence. On appeal, the defendant contends that the trial court abused its discretion in ordering revocation, based upon the defendant's failure to pay costs and fines, without conducting a hearing on his ability to pay. Following review of the record, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/salterl_122809.pdf
STATE OF TENNESSEE v. JENNY LYNN SILER
Court: TCCA
Attorneys:
Herbert S. Moncier and Adam S. Moncier (at trial and on appeal), Knoxville, Tennessee; and Kristie N. Anderson (at trial), Jacksboro, Tennessee, attorneys for appellant, Jenny Lynn Siler.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, attorneys for appellee, State of Tennessee.
Judge: THOMAS
The Defendant, Jenny Lynn Siler, appeals as of right from the Campbell County Criminal Court's denial of judicial diversion and alternative sentencing following her guilty pleas to four counts of sale of oxycodone, Class C felonies. Pursuant to the plea agreement, the trial court imposed four concurrent eight-year sentences with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court imposed a sentence of split confinement, with four months to be served in the Campbell County Jail followed by the balance to be served on community corrections. On appeal, the Defendant contends that the trial court erred by denying her motion to recuse or change venue for sentencing, by denying her
application for judicial diversion, and, alternatively, by denying her full probation. Following our review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/silerj_122809.pdf
TONY YOUNG v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Magan N. White, Jackson, Tennessee, (on appeal) and Robert Gaia, Memphis, Tennessee, for the Petitioner-Appellant, Tony Young.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William L. Gibbons, District Attorney General; James Lammey, Jr., and David Zak, Assistant District Attorneys General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Tony Young, appeals the denial of post-conviction relief. He was originally convicted by a jury of aggravated rape, aggravated sexual battery, especially aggravated kidnapping, and four counts of aggravated assault. He was sentenced to concurrent terms of twenty-five years for the aggravated rape and especially aggravated kidnapping convictions, concurrent six year terms for each of the four aggravated assault convictions, and twelve years for the aggravated sexual battery conviction. These several sentences were to be served consecutively to each other for an effective sentence of forty-three years. The petitioner claims he received ineffective assistance of counsel at trial and on appeal. Upon review, we affirm the denial of post-conviction relief.
http://www.tba2.org/tba_files/TCCA/2009/youngt_122809.pdf
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| TODAY'S NEWS |
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Legal News
Politics
Passages
Disciplinary Actions
TBA Member Services
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| Legal News |
| Memphis schools and juvenile court to team up |
| Memphis City Schools is partnering with the Shelby County Juvenile Court to link youths awaiting court dates to formal schooling that until now has been limited to an hour a day with a guest speaker. But in January, it will start running classes from 8 a.m. to 3 p.m., with five full-time staff -- including two teachers and a school counselor -- followed by an hour of physical education.
Each student will be provided a laptop for class use, plus textbooks and access to district-owned software. |
The Commercial Appeal has the story
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| More legal clinics set up in Washington County |
| The Washington County Bar Association recently teamed up with Legal Aid of East Tennessee's Johnson City office to establish free weekend legal clinics each month and legal assistance at the courthouse on certain days of the month. |
The Johnson City Press reports
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| CASA needs more volunteers |
| Through CASA -- Court Appointed Special Advocates of Sullivan and Hawkins counties -- hundreds of children are getting the help they need.
But about 4,000 reports of child abuse or neglect reach the court system in those counties, and last year only 569 of those children had their very own CASA volunteer to help them through the court process. As these numbers indicate, the need for CASA's services continues to far outpace its resources. |
The Times-News has the story
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| Should 'parental alienation' be a psychiatric diagnosis? |
| If the American Psychiatric Association adds "parental alienation" to its diagnostic reference manual, some children in contentious divorces could end up with a mental illness diagnosis.
The American Psychiatric Association is updating one of its most important reference books, and will decide whether or not to include the phrase. |
The Tennessean reports
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| Politics |
| Tennessee's political movers make interesting reading |
| The Tennessean presents its 2009 list of the state's top political players, from the surprise election of Kent Williams as House speaker in the Tennessee legislature, to devastating state budget shortfalls, to a string of Tea Party protests that helped galvanize a new, emboldened conservative movement. |
Read it here
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| McDonald to stick with state house |
| Rep. Mike McDonald, D-Portland, says that he won't run for the 6th Congressional District seat being vacated by U.S. Rep. Bart Gordon, but plans to run for re-election next year. |
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| Passages |
| Civil rights pioneer Percy Sutton dies |
| Percy Sutton, the pioneering civil rights attorney who represented Malcolm X before launching successful careers as a political power broker and media mogul, died Dec. 26. He was 89. |
WSMV-TV carried this AP story
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| Disciplinary Actions |
| Lawrenceburg attorney censured |
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Lawrenceburg lawyer James Daniel Freemon was publicly censured by the Tennessee Supreme Court on Dec. 22 for violating
the Rules of Professional Conduct by failing to either move to withdraw from the representation of his client or notify the court of false testimony presented by a witness for the state in the prosecution of his client. |
Read the BPR news release
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| Memphis lawyer suspended |
| On Dec. 23 Memphis lawyer Charles A. Sevier was suspended by the Tennessee Supreme Court for failing to inform his client that he had an affair with the client's wife prior to representing him in a divorce proceeding against the wife. Sevier's actions violated Tennessee Supreme Court Rule 8, Rules of Professional Conduct 1.7 (Conflict of Interest) and 8.4 (Misconduct). |
Read the BPR news release
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| Chattanooga lawyer censured |
| Chattanooga lawyer Tabitha Finch was publicly censured by the Tennessee Supreme Court on Dec. 22 for violating the Rules of Professional Conduct by failing to diligently represent and communicate with her clients, by failing to properly terminate representations of her clients and by failing to adequately respond to Disciplinary Counsel for the Board of Professional Responsibility. |
Read the BPR news release
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| Waynesboro lawyer suspended |
| On Dec. 14, the Tennessee Supreme Court temporarily suspended the law license of Waynesboro John Wilburn Castleman Jr.,
because of his failure to respond to a complaint of ethical misconduct. |
Read the BPR news release
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| TBA Member Services |
| 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.
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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.
© Copyright 2009 Tennessee Bar Association
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