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

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
02 - 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.

HARBOUR SUBDIVISION P.O.A., INC. ET AL. v. JOHN C. LOWE ET AL.

Court: TCA

Attorneys:

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.

Judge: SUSANO

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.

http://www.tba2.org/tba_files/TCA/2010/harbour_033010.pdf


ROBERT KEITH v. CHERYL KEITH

Court: TCA

Attorneys:

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

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

Judge: SUSANO

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.

http://www.tba2.org/tba_files/TCA/2010/keithr_033010.pdf


IN RE MATTHEW P., ET AL.

Court: TCA

Attorneys:

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.

Judge: SUSANO

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.

http://www.tba2.org/tba_files/TCA/2010/matthewp_033010.pdf


DONALD SIMMONS, v. KC CONSTRUCTION AND CONSULTING, INC., et al.

Court: TCA

Attorneys:

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

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

Judge: FRANKS

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.

http://www.tba2.org/tba_files/TCA/2010/simmonsd_033010.pdf


LOWELL SMITH ET AL. v. STEPHEN DOUGLAS PHILLIPS, ET AL.

Court: TCA

Attorneys:

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.

Judge: COTTRELL

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.

http://www.tba2.org/tba_files/TCA/2010/smithl_033010.pdf


DANIEL WALKER ET AL. v. FRONTIER LEASING CORPORATION

Court: TCA

Attorneys:

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.

Judge: SUSANO

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.

http://www.tba2.org/tba_files/TCA/2010/walkerd_033010.pdf


STATE OF TENNESSEE v. KYRA ROBINSON

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2010/robinsonk_033010.pdf


STATE OF TENNESSEE v. ANDREW BRADLEY SIMPKINS

Court: TCCA

Attorneys:

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.

http://www.tba2.org/tba_files/TCCA/2010/simpkinsa_033010.pdf


TODAY'S NEWS

Legal News
Legislative News
Politics
Supreme Court Report
Your Practice
TBA Member Services

Legal News
Judge: Bell can still practice in federal court
U.S District Chief Judge Curtis L. Collier today ordered Knoxville attorney James A.H. Bell to lecture on legal ethics to bar associations and at Tennessee's five law schools after he had earlier been found guilty of contempt by U.S. Magistrate Judge Clifford Shirley. Collier could have found the conduct merited suspension or even disbarment from federal practice. Shirley had found Bell guilty of contempt for stating he had met in his office with a drug dealer who actually was in jail.
The News Sentinel reports
Lawyer in Haiti on mission for 'humanitarian parole'
A lawyer who just returned from Haiti on a humanitarian mission along with two other lawyers and three doctors interviewed Haitians who might qualify for humanitarian parole. She recounts her experience for The American Lawyer and tells how lawyers might help there. "Lawyers are also needed to document the social conditions in Haiti because their human rights are being violated every day they go without food, shelter, water and security," says Jayne Fleming.
Read her story on Law.com
Pro bono: Still her calling 70 years later
New York lawyer Shirley Adelson Siegel hadn't practiced law in about 20 years when she took a pro bono case in 2008, through a foreclosure project at the City Bar Justice Center. The news of so many losing their homes was pressing enough that she found a compelling reason to return to the cause that first captured her intellect as an undergraduate at Barnard in the late 1930s. That's right, the 1930s. Siegel is 91. "My interest was always to work to help people get decent housing they could afford," Siegel said. "That's what inspired the New Deal programs for public housing. And I guess I never got over it, that's all."
Read more about her in The New York Times
Legislative News
Income tax amendment passes Senate
A proposed constitutional amendment that declares an income tax and payroll tax unconstitutional in Tennessee was approved 25-7 by the Senate Monday evening. The earliest it could go before voters is 2014. Even though the state constitution already says an income tax is not allowed, the bill's sponsor, Sen. Brian Kelsey of Germantown, said the proposal is necessary because difficult economic times may prompt lawmakers to try to pass one.
Read more in the Tennessean
Bill calls for end to pretrial diversion
A bill moving through the state legislature, HB 3283, would eliminate pretrial diversion for first-time, non-violent offenders. Prosecutors support ending the practices because they say the alternative sentencing option is too cumbersome to manage. But defense attorneys say if the crime is a first for the person and if it's not violent, then those people should get a break.
The Tennessean has the story
Politics
Marine lines up to run for Gordon's seat
Marine Capt. Ben Leming of Murfreesboro has filed a petition to run as a Democrat for the congressional seat being vacated by Rep. Bart Gordon. Leming cannot actively campaign until his active duty ends May 1.
The Daily News Journal reported this AP story
Supreme Court Report
Whistleblowers: Refers to any government, not just federal
The U.S. Supreme Court ruled 7-2 today, placing limits on existing whistleblower lawsuits alleging local governments misused federal money. The language on administrative audits refers to a report prepared by any government, not just a federal government document, the court said. The question had divided federal appeals courts. The ruling is the first dissenting opinion for the court's newest justice, Sonia Sotomayor.
WKRN.com carried this AP story
Your Practice
Law firm market trends are looking up
One expert predicts law firms will do better in 2010, with the disclaimer that prospects for growth remain sluggish. "Things were very challenging in 2009, but many firms did okay," says Mark Medice, who is the program director for the Hildebrandt Baker Robbins Peer Monitor Index Economic Report. "On the other hand, things look like they are rebounding or at least recovering gradually in 2010. And that's not to say everything will be okay. There will still be significant challenges."
Learn more and access a related podcast from Legal Current
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

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