Legislature moving on issues important to TBA members

This week saw legislators taking or failing to take action on several matters that the TBA has placed emphasis on in this legislative session, including:

Split the Baby -- SB 2881/HB 2916
The House sponsor of this bill has put it back on notice for committee consideration next week. As reported on Tuesday, after the committee adopted an amendment offered by the TBA to encourage courts to order the "maximum participation" in the lives of the children subject to the best interest of the child -- by a vote of 9 to 3 -- the House sponsor indicated he would "take the bill off notice." In legislative parlance, this generally means that the sponsor does not intend to move forward with the legislation, and it is effectively dead for the session. "It's not over till it's over," is the quote that comes to mind.

60-Day Notice of Foreclosure -- SB 3519/HB 3588
This initiative of the TBA to provide for an additional notice as part of the process of declaring default and foreclosure passed the House on Wednesday by a 97-0 vote. The bill has been cleared by the Senate Judiciary Committee with its recommendation for passage and could be acted on as early as next Monday.

Perjury By Lawyers -- SB 2770/HB 3077
Legislation that would have made it criminal perjury to make false unsworn statements characterizing or otherwise commenting on evidence and would have enhanced penalty for perjury by lawyers to a Class E felony, was taken off notice in the House Judiciary Civil Practice Subcommittee. That subcommittee closed this week. It would take extraordinary efforts to revive the bill.
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.

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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.

JAMES MORTON BURRIS v. LISA ESTES BURRIS

Court: TCA

Attorneys:

Andrew M. Cate, Nashville, Tennessee, for the appellant, Lisa Estes Burris.

Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellee, James Morton Burris.

Judge: STAFFORD

This is a divorce case ending a twenty-one year marriage. Following a three day trial, the trial court entered a parenting plan naming Appellee/Father as the primary residential parent, granting Father decision making authority, and providing Appellant/Mother with visitation. The trial court also entered judgment against Mother for retroactive child support since the parties separation and for marital debts that had been paid by the Father during the separation. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2010/burrisj_040810.pdf


IN RE: ESTATE OF ANDERSON CHARLES CARTER, III, DECEASED

Court: TCA

Attorneys:

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, William Carter, Executor of the estate of Edna Carter.

Lashawn A. Williams, Nashville, Tennessee, for the appellee, Michael Carter.

Judge: HIGHERS

This appeal involves a mother's claims against her deceased adult son's estate. The trial court denied the majority of her claims but granted her partial relief on one issue that was not disputed by the son's estate. The mother appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2010/cartera_040810.pdf


ALVIN FLATT, ATTORNEY IN FACT and NEXT OF KIN OF DECEDENT FALNETTA NOBLE, v. CLAIBORNE COUNTY HOSPITAL AND NURSING HOME

Court: TCA

Attorneys:

Paul E. Kaufman and Janie Kaufman, Knoxville, Tennessee, for the appellant, Alvin Flatt.

Jimmie E. Miller, Kingsport, Tennessee, for the appellee, Claiborne County Hospital and Nursing Home.

Judge: FRANKS

In this medical malpractice action, the plaintiff offered evidence of the standard of care required of defendant by an expert witness, and defendant offered evidence that it complied with the standard of care by an expert witness, who was accepted as an expert by the Trial Court. The Trial Judge ruled in favor of defendant, essentially accepting the defendant's evidence that it had met the standard of care for the deceased. Plaintiff appealed, insisting that the Trial Court did not "correctly weigh the conflicting expert testimony" in its ruling for the defendant. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2010/flatta_040810.pdf


THOMAS GAZLAY, d/b/a PERSONALIZED PLANTING, INC., v. TULSI ASSOCIATES, et al., and THE ESTATE OF HOWARD SEXTON, for decedent HOWARD SEXTON, et al., d/b/a PRECISION CONSTRUCTION COMPANY

Court: TCA

Attorneys:

William T. Alt, Chattanooga, Tennessee, for the appellants, Tulsi Associates, et al.

Jerry K. Galyon, Sevierville, Tennessee, for the appellee, Thomas Gazlay, d/b/a Personalized Plantings, Inc.

Judge: FRANKS

Plaintiff subcontractor, sued contractor, who constructed a hotel for co-defendant owner of hotel for breach of contract. Construction company cross-filed against defendant hotel owner. The Trial Court, after hearing proof, entered a joint settlement judgment against both defendants on behalf of the plaintiff and based the judgment on the terms of the settlement agreement which had been entered in a prior action in a suit between the defendants. The owner of the hotel appealed. We hold the Trial Court erred in its interpretation of the settlement agreement between the defendants, and set aside the judgment against appellant and direct that the contractor is liable for all the damages awarded, based on appellants' cross-action against the contractor.

http://www.tba2.org/tba_files/TCA/2010/gazlayt_040810.pdf


JAMES LAFAYETTE MOORE v. TURNEY CENTER DISCIPLINARY BOARD ET AL.

Court: TCA

Attorneys:

James LaFayette Moore, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Brenner, Office of the Attorney General, Civil Rights and Claims Division; for the appellees, Turney Center Disciplinary Board, Commissioner George M. Little, James Fortner, Mark W. Carroll, Mark Turney, and Lannie Dedrick.

Judge: BENNETT

Inmate appeals the trial court's dismissal of a petition for writ of certiorari challenging a decision of the prison disciplinary board. Because we have determined that the trial court erred in failing to allow the inmate to amend his petition, we vacate the trial court's order of dismissal and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/moorej_040810.pdf


GREGORY POOLE v. UNION PLANTERS BANK, N.A.

Court: TCA

Attorneys:

Brett A. Schubert, Memphis, Tennessee, for the appellant, Gregory Poole.

Caren B. Nichol and Lewis Clayton Culpepper, III, Memphis, Tennessee, for the appellee, Union Planters Bank, N.A.

Judge: FARMER

The plaintiff/appellant, an owner-operator truck driver, entered into a note, disclosure, and security agreement with the defendant/appellee, Union Planters Bank, for the purchase of a tractor-trailer truck. At the time of the original agreement, the bank promised to have the vehicle's title converted to a Tennessee certificate of title. The plaintiff filed suit several years later to recover damages incurred due to the bank's failure to timely provide a copy of said title. Prior to trial, the bank moved to compel arbitration and to strike the plaintiff's jury demand based on contractual language found in the original agreement and a subsequent refinancing agreement. The trial court declined to compel arbitration but granted the motion to strike. At trial, the plaintiff recovered in breach of contract. On appeal, the plaintiff challenges the enforcement of his pre-dispute contractual waiver of the right to trial by jury, the involuntary dismissal of his Tennessee Consumer Protection Act claim, the calculation of his damages, and the denial of his claim for prejudgment interest. We affirm.

http://www.tba2.org/tba_files/TCA/2010/pooleg_040810.pdf


WAYLAND-GOODMAN PROPERTIES, LP., v. SOUTHSIDE PACKAGE STORE, INC.

Court: TCA

Attorneys:

Joseph J. Levitt, Jr., Knoxville, Tennessee, for the appellant, Southside Package Store, Inc.

Stephen R. Wise and Robin M. Cleavenger, Knoxville, Tennessee, for the appellee, Wayland-Goodman Properties, LP.

Judge: FRANKS

Plaintiff landlord brought a detainer action against defendant in Sessions Court. On appeal to the Circuit Court, the Trial Court in its Judgment, awarded possession to plaintiff and awarded plaintiff a Judgment of $17,800.00 for the rent due and one-half of the 2009 ad valorem property taxes. Defendant has appealed. We affirm the Judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCA/2010/waylandgoodman_040810.pdf


STATE OF TENNESSEE v. TIMOTHY SCOTT RAUHUFF

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee (at trial), for the appellant, Timothy Scott Rauhuff.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Kathy Aslinger, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Timothy Scott Rauhuff, pled guilty in the Blount County Circuit Court to manufacturing no less than 20 and no more than 99 marijuana plants. He received a four- year suspended sentence. Subsequently, the State brought a revocation action, alleging that the appellant violated the terms of his probation. The trial court revoked the appellant's probation and ordered him to serve one year in confinement and the remainder of the sentence on intensive probation. On appeal, the appellant challenges the trial court's imposition of a period of continuous confinement. The State filed a motion requesting that this court affirm the trial court's ruling pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the trial court did not err in sentencing the appellant to a period of continuous confinement. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/rauhufft_040810.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Lockett pleads guilty to embezzlement
Knox County Law Director Bill Lockett today resigned his post and pleaded guilty to embezzling thousands of dollars in fees from his former law firm. He'll serve no jail time but will spend three years on probation and must repay the $32,022.99 that he still owes to his former firm. The Board of Professional Responsibility has a hearing planned for May 24-25 to investigate charges of ethical misconduct against Lockett. New charges may be considered now that Lockett has been convicted of a felony.
The News Sentinel has the story
Local rule change proposed
Davidson County chancellors have proposed a change to Local Rule 23.03 (court approval of settlements) in light of a decision from the Tennessee Supreme Court's Special Worker's Compensation Panel, and are seeking comments. Comments are due by May 18 and should be sent to Chancellor Caroll McCoy at carollmccoy@jis.nashville.org
Download the proposed change
Sentence upheld for killer of Memphis lawyer
A federal appeals court today upheld a 10-year-sentence for the former client who ambushed and killed Memphis attorney Robert Friedman in 2002. Harold Don Noel was convicted of voluntary manslaughter in state court and then pleaded guilty to federal charges of being a felon in possession of ammunition. Noel challenged the federal sentence on grounds that it was unreasonable and that his time served in state custody should have been credited toward his federal sentence. His arguments did not sway the court.
The Commercial Appeal has more
Criminal clerk candidate hits incumbent's work ethic
Nashville Metro Councilman Michael Craddock, the challenger in what has turned into a heated race for Davidson County Criminal Court clerk, has demanded incumbent David Torrence release records showing how often he enters and leaves the workplace. Craddock has accused Torrence of taking personal time while on the public payroll. Torrence, who has served as clerk for the past 16 years, disputes the claim.
The Nashville City Paper reports
Vanderbilt law prof. named to presidential commission
Vanderbilt associate professor of law and philosophy Nita Farahany will be named to the Presidential Commission for the Study of Bioethical Issues, which will advise the president on legal, philosophical and social issues arising from the biosciences. Farahany has focused her work on the interplay between law, philosophy and the biosciences, especially with regard to behavioral genetics and neuroscience.
Learn more about Farahany and the commission
Court clerk appears before commissioners
Shelby County commissioners grilled General Sessions Court Clerk Otis Jackson Jr. about accounting issues in a "wild session" Wednesday. Though interim commissioner John Pellicciotti proposed a measure to censure certain staff of the clerk's office, questioning ended without action being taken. Commissioners are investigating discrepancies and problems with the office accounting system. A story in the Commercial Appeal yesterday indicated the FBI also is looking at the situation.
The Commercial Appeal reports
Judge reiterates warning against gang violence
Hamilton County General Sessions Court Judge Bob Moon said Wednesday that continued gang violence in Chattanooga along with incidents involving guns at schools must be addressed aggressively before the city experiences a deadly school shooting. Moon cited recent trends in gang activity and urged school administrators to revisit security issues to better protect against violence.
Read more on Chattanoogan.com
Obama could set record for fewest judicial appointments
The Obama administration could be on the verge of a modern record for the fewest number of judicial candidates nominated and confirmed in the first two years of the presidency. So far President Obama has nominated 56 people for federal judgeships (not including the Supreme Court), compared to 77 nominated by Bill Clinton and 98 nominated by George W. Bush.
Read more in the Washington Post
Supreme Court Report
Roberts speaks about collegiality on the court
U.S. Supreme Court Chief Justice John G. Roberts Jr. says strident language in court decisions reflects strongly-held positions rather than personal animosity. Answering questions after a speech at the Indiana University School of Law, Roberts said, "It is a very, very collegial court," but acknowledged consensus can be difficult in some areas. The ABA Journal links to two stories about the speech.
Read Roberts' other comments
Disciplinary Actions
Jackson lawyer suspended, will serve time on probation
On March 29, the state Supreme Court suspended Jackson lawyer Thomas V. Smith for one year, but allowed Smith to serve one year of probation instead if he meets two requirements: obtaining three hours of additional continuing legal education and engaging the services of a practice monitor. Smith was disciplined for engaging in a business transaction with his client without properly informing the client of a conflict of interest.
Download the BPR notice
Former Knox County lawyer reinstated
Clinton E. Hagaman, formerly of Knox County, was reinstated to the practice of law on March 29. He previously had been on disability inactive status. On July 13, 2009, Hagaman filed a petition for reinstatement. After conducting a hearing on Nov. 12, 2009, the hearing panel recommended reinstatement on Dec. 21, 2009.
Read the BPR press release
Nashville lawyer reinstated
Nashville attorney Mary Belle Langford was reinstated to the practice of law on March 30. She had been temporarily suspended on March 10 for failing to respond to a complaint of misconduct. On March 15, Langford petitioned the court to set aside the suspension and on March 26 a hearing panel recommended it be dissolved.
View the BPR release
Upcoming
Catch 'Mockingbird' on the big screen tomorrow
Tomorrow evening in Nashville, the Frist Center for the Visual Arts will show "To Kill a Mockingbird" as part of its exhibit Heroes: Mortals and Myths in Ancient Greece, which examines what it means to be an everyday hero. The free showing starts at 7 p.m. in the center's auditorium.
Learn more from the Frist
Juvenile court clerk candidates debate Saturday
Davidson County Juvenile Court Clerk candidates will have their first debate Saturday, just days before early voting begins on April 14. The debate will begin at 2 p.m. at Tennessee State University's Avon Williams campus downtown, 330 10th Avenue North. The event, which is free and open to the public, is sponsored by TSU, the Nashville Association of Black Journalists and Gideon's Army Grassroots Army for Children. For more information call (615) 481-2866.

TBA Member Services
Program offers savings on auto insurance
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or get an online rate quote

 
 
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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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