CLE: Mediating and Arbitrating Construction Disputes

Construction disputes can be complicated and costly, and most are mediated or arbitrated. An upcoming TennBarU seminar put on by some of the best construction lawyers, mediators and arbitrators in Tennessee will educate both new and experienced lawyers how to best represent clients in construction mediations and arbitrations. The six-hour program will be Jan. 22 in Nashville.

Learn more or register now for this program

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Court: TSC


Garrett E. Asher, Matthew A. Moushon, and Jennifer G. Rowlett, Nashville, Tennessee, for the appellant, The Elks Club Pride of Tennessee 1102, Pride of Tennessee Lodge of Elks No. 1102, Improved Benevolent, and Elks Lodge 1102 Pride of Tennessee.

Dixie W. Cooper, Carol Davis Crow, and Brian P. Manookian, Nashville, Tennessee, for the appellant, Robert H. Boyce, M.D., and Premier Orthopaedics & Sports Medicine, P.C.

David E. High, Nashville, Tennessee, for the appellee, Alice J. Banks.

Daniel L. Clayton, Nashville, Tennessee, for the Amicus Curiae, Tennessee Association of Justice.

Matthew S. Russell and Melanie M. Stewart, Germantown, Tennessee, for the Amicus Curiae, Tennessee Defense Lawyers Association.

Judge: KOCH

This appeal involves the continuing viability in Tennessee of the common-law principle that imputes liability to an original tortfeasor for enhanced physical harm caused by the normal efforts of third persons to render aid which an injured party reasonably requires. A guest at a private club was injured on the club's premises. The injuries to the guest's back were compounded first by the conduct of her surgeon and second by the actions or inactions of a nursing home where the guest was a patient following her surgery. The guest filed separate lawsuits against the private club and her surgeon in the Circuit Court for Davidson County. After the cases were consolidated, the club and the surgeon moved to amend their answers to assert comparative fault claims against the nursing home. The trial court denied their motions but granted them permission to pursue an interlocutory appeal. After the Court of Appeals declined to consider the interlocutory appeal, the club and the surgeon sought this Court's permission for an interlocutory appeal. We granted their application. We now hold that an original tortfeasor is not jointly and severally liable for the further aggravation of an original injury caused by a subsequent tortfeasor's medically negligent treatment of the injury caused by the original tortfeasor's negligence. Therefore, we have determined that the trial court erred by denying the motions of the club and the surgeon to amend their complaints to assert comparative fault claims against the nursing home.


Court: TCA


Alan J. Wade, Brandy S. Parish, Javier Michael Bailey and John Gordon Howard, Memphis, Tennessee, for the appellant(s), City of Memphis and Memphis City Council.

Michael R. Marshall, Ernest G. Kelly, Jr., and Dorsey E. Hopson, Memphis, Tennessee, for the appellee(s), Board of Education of the Memphis City Schools.

Richard Lee Colbert, Memphis, Tennessee, for the appellee, Memphis Education Association.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and Melissa Moreau, Assistant Attorney General, Amicus Curiae of the State of Tennessee.


The City of Memphis and the Memphis City Council appeal the trial court's writ of mandamus ordering the City to restore funding to the Memphis City Schools for the 2008-09 school year in compliance with Tennessee Code Annotated sections 49-2-203 and 49-3-314. We affirm.


Court: TCA


Bernard E. Bernstein and L. Caesar Stair, IV., Knoxville, Tennessee, for appellants.

Raymond E. Lacy, Knoxville, Tennessee, for appellee.


In this action, plaintiff acting as a facilitator, introduced buyer to defendants who then sold the real property to the person introduced to them by the facilitator. Plaintiff brought this action seeking a fee for its services. The Trial Court held there was a quasi contract and awarded plaintiff a judgment based on evidence that a realtor under a contract with the seller upon the sale of the property would be entitled to a real estate commission of 10%. Both parties have appealed and we affirm the Trial Court's finding that the evidence established a quasi contract between the parties, but vacate the judgment as to both defendants. Defendant Lane was dismissed from the action because there was no evidence that he had any interest in the property, and the judgment is vacated as to Young because the Trial Court applied the wrong measure of damages. We remand the case to the Trial Court to hear evidence as to the actual value of the services rendered by the facilitator to Young, and base a judgment on the value of those services in the capacity as a facilitator. The cost of the appeal is assessed one-half to Rocky Top Realty, Inc., and one-half to Debra Young.


Court: TCA


Michael L. Powell, Knoxville, Tennessee, for appellant.

David H. Dupree, Knoxville, Tennessee, for appellee.


Petitioner filed for a writ of certiorari after his bank accounts were attached for a judgment which had been entered by the Sessions Court against him. The petition alleged that petitioner was unaware of the judgment against him and had not been served with service of process in the Sessions Court. The Trial Court granted the petition and considered a motion to dismiss by the respondent. The writ was dismissed and petitioner has appealed. On appeal we hold that the Trial Court erred in dismissing the petition and remand for further proceedings on the writ.

MCCLARTY dissenting


Court: TCCA


Gregory D. Smith, Nashville, Tennesse, for the appellant, James Earl Kenner.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, James E. Kenner, has appealed the Montgomery County Circuit Court order dismissing his petition for post-conviction relief in which Petitioner alleged that his guilty plea to five counts of robbery in 1980: (1) were based on an unlawfully and involuntarily entered guilty pleas; (2) were based on Petitioner's lack of knowledge about the right to trial by jury; (3) resulted in the denial of the right to confront witnesses; and (4) were being used to enhance a conviction in another county. Upon a review of the record in this case, we are persuaded that the post-conviction court was correct in dismissing the petition for relief as time-barred and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.


Court: TCCA


Asata D. Lowe, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.


The Appellant, Asata D. Lowe, appeals the trial court's dismissal of his petition for habeas corpus relief. The Appellant fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the judgment of the trial court is affirmed.


Court: TCCA


Jerry Daniel Oakley, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and Sallie Brown, Assistant District Attorney General, for the appellee, State of Tennessee.


The Petitioner, Jerry Daniel Oakley, appeals from the order of the trial court dismissing his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.


Legal News
Legislative News
Disciplinary Actions
TBA Member Services

Legal News
Public Service Luncheon moved to new location
Because the special session of the state legislature may go into the weekend, the location of Saturday's TBA Public Service Luncheon has been moved to the War Memorial Auditorium, at the corner of Charlotte and 7th Avenues. The annual luncheon, which honors the public service efforts of Tennessee attorneys and firms, will feature former ABA President Robert Grey Jr. as keynote speaker this year.

New CLE Commission chair named
Knoxville lawyer Dalton L. Townsend has been named the new chair of the Tennessee Commission on Continuing Legal Education and Specialization. Townsend practices with Hodges, Doughty & Carson in the areas of commercial litigation, products liability, torts and civil litigation. A former chair of the Tennessee Bar Foundation and member of the Knoxville Bar Association Board of Governors, Townsend earned his law degree in 1967 from the University of Tennessee College of Law.
Read more about him on his firm's web site
Barlett doubles load for remaining judge
In a surprising move Tuesday night, Bartlett aldermen passed up seven candidates for Division 2 judge and appointed current Division 1 Judge Freeman Marr to fill a vacancy created by the death of George McCrary. Marr will continue to serve in his current post while filling in until an election is held in November for McCrary's seat. The alderman said they accepted Marr's offer to fill both positions in order to save money and prevent an appointed candidate from running as an incumbent in next fall's election. The winner of that election will serve out the remainder of McCrary's term, which runs to 2016.
The Commercial Appeal has more
Interim juvenile judge recommended
Clinton attorney Brandon K. Fisher, 30, has received the unanimous endorsement of a special committee to serve as interim Anderson County juvenile judge. The full county commission will consider the recommendation next week. The committee interviewed eight applicants for the job before picking Fisher, who has been a referee in the court. If appointed, he will serve until Aug. 31 when a special election will be held to fill the four years remaining in the term.
The News Sentinel has the story
3 attorneys leave Apperson Crump to form new firm
Robert L. Dinkelspiel, former managing partner of Memphis-based Apperson Crump & Maxwell PLC, has opened a new practice with M. Wayne Mink Jr. and Robin H. Rasmussen, also formerly of Apperson Crump. Two other lawyers have joined Dinkelspiel in his new venture: Marshall Criss, who has been in private practice since owning and operating The Tennessean restaurant in Collierville, and Harry A. Johnson, who is the former executive vice president and general counsel of First Horizon National Corp. The new firm will focus on real estate, corporate law, homeowners' associations, transactions and litigation.
The Memphis Daily News reports
Two bar associations name new officers
The Maury County Bar Association has named two new leaders: President Dalton Mounger, a solo practioner, and Vice President Ed Lancaster, an attorney with the Tennessee Farm Bureau. Both are from Columbia.

In addition, the Washington County Bar Association recently installed new officers. J. Matthew Bolton with Herndon, Coleman, Brading & McKee is president. Solo practioner Stephanie A. Sherwood is vice president. Johnathan Minga with Slagle & Finney is secretary. And Lindsey Sue Wise with Leonard & Kershaw is treasurer. All are from Johnson City except for Wise, who is from Greeneville.

Legislative News
White wins election
Republican Mark White of East Memphis won Tuesday's special election for the District 83 state House seat previously held by Sen. Brian Kelsey, R-Germantown. White defeated Democrat Guthrie Castle and Independent candidate John Andreuccetti, both of Germantown, to keep the seat in Republican hands.
The Commercial Appeal reports
Huntingdon veteran announces for state Senate
Another Republican is seeking to take the state Senate seat held by Democrat Lowe Finney of Jackson. Jim Harding, a 75-year-old retired Air Force colonel who lives in Huntingdon, has announced he will campaign for the position. Harding is a highly decorated veteran of the Vietnam War who survived being shot down during a rescue mission in 1972. He recently retired from teaching in Carroll County. His campaign themes include education reform, strengthening sentencing laws and limiting the "frills" he says Tennessee prisoners enjoy.
The Jackson Sun reports
Law student opts out of 8th District race
Jackson native and University of Chicago law school student William Godwin announced today he will not run for Tennessee's 8th District congressional seat and instead will support Democratic candidate Roy Herron. Last month Godwin announced he was forming an exploratory committee to weigh a possible bid for the U.S. Congress.
Learn more in the Jackson Sun
Disciplinary Actions
Maryville lawyer suspended
On Jan. 6, the Tennessee Supreme Court suspended Maryville lawyer Charles Alphonso Carpenter for three months, referred him to the Tennessee Lawyers Assistance Program (TLAP) and ordered him to make restitution in the amount of $1,862 to his former law firm. The court found that Carpenter had misappropriated funds from his firm, neglected a client's case and failed to keep a client informed.
Download the BPR notice
Nashville lawyer suspended
On Jan. 8, Nashville lawyer David Henry Hornik was suspended by the Tennessee Supreme Court for one year and six months retroactive to a temporary suspension imposed on April 10, 2008. The court also referred him to the Tennessee Lawyers Assistance Program (TLAP). Hornik was found to have neglected clients' cases, failed to keep clients informed and failed to advise co-counsel and a client about his temporary suspension.
Read the BPR release
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