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| Wednesday, January 13, 2010 |
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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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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
03 - TN Court of Appeals
03 - 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.
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ALICE J. BANKS v. ELKS CLUB PRIDE OF TENNESSEE 1102 ET AL.
Court: TSC
Attorneys:
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.
http://www.tba2.org/tba_files/TSC/2010/banksa_011310.pdf
THE STATE OF TENNESSEE, ex rel. THE BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, ET AL. v. CITY OF MEMPHIS, ET AL.
Court: TCA
Attorneys:
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.
Judge: FARMER
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.
http://www.tba2.org/tba_files/TCA/2010/boardofeducation_011310.pdf
ROCKY TOP REALTY, INC., v. DEBRA YOUNG AND KYLE LANE
Court: TCA
Attorneys:
Bernard E. Bernstein and L. Caesar Stair, IV., Knoxville, Tennessee, for appellants.
Raymond E. Lacy, Knoxville, Tennessee, for appellee.
Judge: FRANKS
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.
http://www.tba2.org/tba_files/TCA/2010/rockytop_011310.pdf
CHRIS YOUSIF, d/b/a QUALITY MOTORS, v. NOTRIAL CLARK and THE CIRCUIT COURT OF KNOX COUNTY
Court: TCA
Attorneys:
Michael L. Powell, Knoxville, Tennessee, for appellant.
David H. Dupree, Knoxville, Tennessee, for appellee.
Judge: FRANKS
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.
http://www.tba2.org/tba_files/TCA/2010/yousifc_011310.pdf
MCCLARTY dissenting
http://www.tba2.org/tba_files/TCA/2010/yousifc_DISS_011310.pdf
JAMES EARL KENNER v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
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.
http://www.tba2.org/tba_files/TCCA/2010/kennerj_011310.pdf
ASATA D. LOWE v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Asata D. Lowe, pro se.
Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
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.
http://www.tba2.org/tba_files/TCCA/2010/lowea_011310.pdf
JERRY DANIEL OAKLEY v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
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.
Judge: WELLES
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.
http://www.tba2.org/tba_files/TCCA/2010/oakleyj_011310.pdf
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| TODAY'S NEWS |
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Legal News
Legislative News
Politics
Disciplinary Actions
TBA Member Services
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| 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. |
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| 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.
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Read more about him on his firm's web site
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| 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.
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The Commercial Appeal has more
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| 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.
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The News Sentinel has the story
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| 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.
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The Memphis Daily News reports
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| 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.
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| 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.
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The Commercial Appeal reports
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| Politics |
| 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.
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The Jackson Sun reports
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| 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.
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Learn more in the Jackson Sun
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| 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.
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Download the BPR notice
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| 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.
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Read the BPR release
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| 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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Questions, comments: Email us at TBAToday@tnbar.org
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 2010 Tennessee Bar Association
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