TBA recognized for going green

The Tennessee Bar Association was recognized this week for its efforts to become a "green" workplace, gaining the designation as a partner in the ABA-EPA's Law Office Climate Challenge. "We are proud of our state bar association leading the way with a commitment to greener offices at our headquarters, the Tennessee Bar Center," TBA President Gail Vaughn Ashworth said today. "The TBA has an aggressive recycling program and a commitment to purchase at least 90 percent of its office paper with 30 percent recycled content. We hope that more law firms and lawyers across the state will join us in this ongoing effort to conserve energy and help our planet."

Learn more about the ABA-EPA Law Office Climate Challenge

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Court: TCA


William S. Nunnally, Greeneville, Tennessee, for the appellant, The Harbour Subdivision P.O.A., Inc.

Frank A. Johnstone, Kingsport, Tennessee, for the appellants, Willis Herren and Betty Herren.

L. Eric Ebbert and W. Derek Malcolm, Knoxville, Tennessee, for the appellees, John C. Lowe, Diane W. Lowe, Jane Lee Rankin, and William B. Cameron.

David Amundson, Winston Salem, North Carolina, appellant, Pro Se.


This is an action filed by a property owners' association and one of the property owners ("the plaintiffs") against several of the other property owners ("the defendants") to prevent them from renting their properties on a short-term basis. Initially, the trial court granted the defendants summary judgment. Later, upon hearing a motion to alter or amend, the court expressed concern that it had improvidently granted summary judgment and, then, sua sponte, ordered the case dismissed in its entirety but without prejudice. The plaintiffs appeal, arguing that the effect of the dismissal was to vacate the summary judgment, and, alternatively, that the trial court erred in granting summary judgment. The defendants contend that the trial court erred in dismissing the case after correctly granting summary judgment and denying the motion to alter or amend. We conclude that the trial court erred in dismissing the case. Accordingly, we vacate the order of dismissal and remand for further proceedings.



Court: TCA


Larry G. Roddy, Dayton, Tennessee, for the appellant, Robert Keith.

Carol Ann Barron, Dayton, Tennessee, for the appellee, Cheryl Keith.


Cheryl Keith ("Wife") initiated this post-divorce case by filing a petition for contempt that included allegations of nonpayment of alimony and other claims against her former spouse, Robert Keith ("Husband"). By way of a counterclaim, Husband sought termination or modification of the periodic alimony previously awarded to Wife. The trial court found that Husband was in arrears in his alimony obligation and awarded Wife a judgment for $8,000. The trial court further found a material change of circumstances and reduced Husband's periodic alimony obligation. Husband appeals, contending that the trial court erred in failing to terminate the alimony award. We conclude that the evidence does not preponderate against the trial court's modification of the alimony award. We affirm.



Court: TCA


Donna M. Bolton, Johnson City, Tennessee, for the appellant, Mary Anne M.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.


The trial court terminated the parental rights of Mary Anne M. ("Mother") to her two minor children, Matthew P. ("Lee")(DOB: 2/15/96) and Dustin P. (DOB: 8/31/97) (collectively, "the Children") upon finding, by clear and convincing evidence, that grounds for termination existed and that termination was in the Children's best interest. Mother appeals and challenges only the best interest determination. We affirm.



Court: TCA


Bruce Hill, Sevierville, Tennessee, for the appellant, Donald Simmons.

Scott D. Hall, Sevierville, Tennessee, for the appellee, K.C. Construction and Consulting, Inc.


Plaintiff brought this action for breach of contract. The issues were referred to a Special Master, and the plaintiff on the hearing date, acting pro se, asked for a continuance which the Master denied. The defendant moved to confirm the Master's report and a hearing was set on the Motion. The plaintiff, again acting pro se, asked for a continuance, which was again denied. The plaintiff, acting pro se, moved to set aside the Judgment because he did not get a full ten days to file objections, and the court set aside the Judgment and set another hearing date. After hearing plaintiff's objections, the Court affirmed the Special Master's report and entered Judgment. Plaintiff, on appeal, raises the issues of whether the Trial Court erred in not sustaining objections to the Master's report, whereby the Master allowed defendant to interview witnesses and exhibits at the hearing without compliance with local rules that require the parties to exchange names of witnesses in advance of trial, and whether the Trial Court erred in denying plaintiff's motion for continuance. We affirm the Judgment of the Trial Court.



Court: TCA


Kenneth Shannon Williams, William E. Halfacre, III, Cookeville, Tennessee, for the appellants, Lowell Smith and wife, Patricia Ann Smith.

John C. Knowles, Sparta, Tennessee, for the appellees, Stephen Douglas Phillips and wife, Melanie Phillips.


A man was bitten by a horse while on a trail ride with friends. He sued the owner of the horse that bit him, claiming that the owner had failed to properly restrain or control his animal. The trial court granted summary judgment to the owner, ruling that he was entitled to immunity under the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The Act must be strictly construed, since it is in derogation of common law. We hold that under a strict construction of the act, the defendant is not entitled to immunity, and we accordingly reverse the trial court.



Court: TCA


David L. Buuck, Knoxville, Tennessee, for the appellants, Daniel Walker and W&W Golf Management, Inc., dba Cedar Hills Golf Club.

Austin L. McMullen and Max Smith, Nashville, Tennessee, for the appellee, Frontier Leasing Corporation.


Daniel Walker and W&W Golf Management, Inc., dba Cedar Hills Golf Club ("the plaintiffs") filed this action against Frontier Leasing Corporation, demanding in their amended complaint, damages and rescission of the lease financing contract the plaintiffs had signed with Frontier's assignor, C and J Leasing Corp. The complaint attached a copy of the contract and a copy of a judgment that the plaintiffs had previously secured against C&J1 awarding them damages and rescission of the subject contract. The complaint alleged that Frontier had full knowledge of the complaint against C&J and that Frontier took the assignment of the contract with knowledge that a judgment would be entered against C&J rescinding the contract. The complaint alleged that the plaintiffs' lessor, Royal Links USA, was an agent of both C&J and Frontier and that the agent induced the plaintiffs to sign the finance contract by misrepresentations. Frontier moved to dismiss the complaint pursuant to Tenn. R. Civ. P. 12.02 on five grounds: (1) failure to state a claim, (2) lack of personal jurisdiction over Frontier, (3) a contract provision calling for the state of Iowa to be the forum for any dispute, (4) failure to plead fraud with particularity, and (5) a "hell or high water" legal obligation on the part of the plaintiffs to perform as lessees despite any breach by Royal Links as the supplier of the leased goods. The plaintiffs were allowed to file their amended complaint before the motion was heard. The trial court granted the motion to dismiss in an order that does not state the court's reasoning. The plaintiffs appeal. We affirm.



Court: TCCA


John G. Mitchell and Elizabeth C. Fikes, Murfreesboro, Tennessee, for the appellant, Kyra Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and Bill Whitesell, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Kyra Robinson, was indicted by the Cannon County Grand Jury for one count of theft of property over $10,000, one count of conspiracy to commit theft, and 268 counts of fraudulently obtaining a controlled substance. Appellant filed an application for pretrial diversion. The Assistant Attorney General denied the application. Appellant sought review by petition for writ of certiorari with the trial court. After a hearing, the trial court denied the petition, finding that the Assistant Attorney General did not act arbitrarily or capriciously in denying the request for pretrial diversion. Subsequently, Appellant pled guilty to one count of theft and thirty-five counts of fraud in exchange for a total effective sentence of eight years. The State dismissed the remaining counts of the indictment. The trial court determined, after a sentencing hearing, that Appellant should serve the entire sentence on probation. Appellant appeals, challenging the denial of pretrial diversion as well as the trial court's denial of the writ of certiorari and judicial diversion. After a review of the record, we determine that Appellant waived the issue regarding pretrial diversion for failure to seek review via Tennessee Rule of Appellate Procedure 9 or 10 and by entering a guilty plea. Further, we determine that the trial court properly denied the writ of certiorari and judicial diversion. Accordingly, the judgments of the trial court are affirmed.



Court: TCCA


Frank J. Runyon, III, Clarksville, Tennessee, for the appellant, Andrew Bradley Simpkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A jury convicted the petitioner, Andrew Bradley Simpkins, of attempted first degree murder and possession of a prohibited weapon. The trial court sentenced him to an effective twenty-five-year sentence. On direct appeal, this court upheld the convictions and sentences. This court also upheld the habeas corpus court's dismissal of the petitioner's petition for writ of habeas corpus. On this appeal, he asserts that he received ineffective assistance of counsel. Specifically, the petitioner argues that his trial counsel was ineffective because he did not inform the petitioner of a settlement offer, did not move the court to limit his exposure to second degree murder, and he insisted that the petitioner not testify on his own behalf. The petitioner argues that his pretrial counsel were ineffective because they did not file a motion for a speedy and public trial or a motion for change of venue. In addition, the petitioner argues that his sentence is improper. Following a review of the parties' briefs, the record, and applicable law, we affirm the denial of post-conviction relief.



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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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