Review, comment on Tenn. Closing Opinion Report draft

A joint committee of the Business Law and Real Estate Law Sections of the Tennessee Bar Association is preparing a Report on Third-Party Closing Opinions. A "discussion draft" of the Report is now available. Comments and suggestions of TBA members are both welcomed and encouraged. The report, when issued in final form and approved by the TBA, will supersede the Report of the Special Committee on Opinion Standards of the TBA that was issued in 1995. The TBA also will sponsor a CLE program covering the report on May 7 in Nashville. Comments or suggestions regarding the report should be sent to Pete Ezell at pezell@bakerdonelson.com.

Download the discussion drafts here

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
04 - TN Court of Appeals
02 - TN Court of Criminal Appeals
01 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_042610.pdf


BAIRD TREE COMPANY, INC. v. CITY OF OAK RIDGE, ET AL.

Court: TCA

Attorneys:

David H. Dunaway, LaFollette, Tennessee, for the Appellant, Baird Tree Company, Inc.

Benjamin K. Lauderback, Knoxville, Tennessee, for the Appellees, City of Oak Ridge and Jerry Dover, individually and as Electric Operations Manager for the City of Oak Ridge.

Frank M. Fly, Murfreesboro, Tennessee, for the Appellee, Seelbach and Company, Inc.

William A. Blue, Jr., Nashville, Tennessee, for the Appellee, Environmental Consultants, Inc.

Judge: SWINEY

In 2004, Baird Tree Company, Inc. ("Baird Tree") unsuccessfully bid on a tree trimming and removal project with the City of Oak Ridge ("Oak Ridge"). Baird Tree filed a lawsuit claiming, inter alia, that Oak Ridge's bidding process violated the Tennessee Trade Practices Act, Tenn. Code Ann. Section 47-25-101. We affirmed the Trial Court's grant of summary judgment to the defendants because the contract at issue was a contract for services, not goods, and, therefore, the Tennessee Trade Practices Act did not apply. We also concluded that Baird Tree could not challenge the bidding process because it had failed to submit a valid bid in the first place. See Baird Tree Co., Inc. v. City of Oak Ridge, No. E2007-01933- COA-R3-CV, 2008 WL 2510581 (Tenn. Ct. App. June 24, 2008). When the same project came up for bid in 2007, Baird Tree again submitted a fatally defective bid. When it was not awarded the contract, Baird Tree filed the present lawsuit raising various challenges to Oak Ridge's bidding process. The Trial Court granted summary judgment to all defendants. We, again, conclude that Baird Tree does not have standing to challenge the bidding process because it submitted a fatally defective "bid" in the first place. The judgment of the Trial Court is, therefore, affirmed.

http://www.tba2.org/tba_files/TCA/2010/bairdtreeco_042610.pdf


JESSE ARVIL CANTRELL v. PAMELA RENEE CANTRELL

Court: TCA

Attorneys:

Pamela Cantrell, Sparta, Tennessee, pro se.

J. Hilton Conger, Smithville, Tennessee, for the appellee, Jesse Cantrell.

Judge: MCCLARTY

This appeal arises from a divorce action. After a trial, the court entered a divorce decree and divided the marital property. The trial court awarded the marital real property to Husband, and Wife, a pro se litigant, appeals the trial court's division of the marital property. We affirm in part, modify in part, and remand.

http://www.tba2.org/tba_files/TCA/2010/cantrellj_042610.pdf


COREY GERULIS AND WIFE SARA FELMLEE v. DANIEL A. JACOBUS, ET AL.

Court: TCA

Attorneys:

Timothy A. Drown, Nashville, Tennessee, for the appellants, Daniel A. Jacobus and Debra Jacobus.

Byron M. Gill, Lebanon, Tennessee, for the appellees, Corey Gerulis, Sara Felmlee, and Heartland Construction, LLC.

Judge: DINKINS

Prospective buyers entered into a contract with construction company for purchase of a home; the contract was amended to provide that a garage would be constructed. A letter was subsequently prepared specifying a time for the buyers to tender payment for the garage. The buyers failed to secure a loan to finance construction of the garage until a year after closing. When the construction company refused to build the garage for the amount specified in the contract amendment, the buyers initiated this action. The trial court found that the letter clarified the amendment by setting a time for performance and that the buyers' failure to pay within that time was a breach of the agreement which relieved the construction company of its contractual obligations; the court consequently dismissed buyers' action. Finding that there was not an agreement between the parties, the trial court's determination that the letter clarified the amendment is reversed. Finding that a reasonable time for performance was 90 days from closing on the home, and that the buyers' failure to tender payment within such period was a material breach, we affirm the trial court's determination that the construction company was relieved of its contractual obligations.

http://www.tba2.org/tba_files/TCA/2010/gerulisc_042610.pdf


DANNY J. PHILLIPS v. WILLIAM T. MULLINS

Court: TCA

Attorneys:

Dail R. Cantrell, Clinton, Tennessee, and Harry L. Lillard, Oak Ridge, Tennessee, for the appellant, Danny J. Phillips.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, William T. Mullins.

Judge: SWINEY

Danny J. Phillips ("Plaintiff") sued William T. Mullins ("Defendant") after a truck driven by Defendant struck and injured Plaintiff who was riding a bicycle. Defendant moved for summary judgment. After a hearing, the Trial Court entered an order granting Defendant summary judgment. Plaintiff appeals to this Court. We reverse the grant of summary judgment finding that there are disputed issues of material fact which preclude summary judgment.

http://www.tba2.org/tba_files/TCA/2010/phillipsd_042610.pdf


RICHARD JOE FITTEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Richard Joe Fitten, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clark B. Thornton, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Richard Joe Fitten, appeals pro se from the denial of post-conviction relief by the Criminal Court for Hamilton County. Pursuant to a plea agreement, Fitten resolved case numbers 255275, 261292, and 261403. In case number 255275, Fitten agreed to the revocation of his probation and the imposition of a six-year sentence. He also agreed to plead guilty to filing a false police report, case number 261292, and retaliation for past action, case number 261403. He received a two-year sentence on the false 1 reporting offense, and one year on the retaliation offense, to be served consecutively. However, the effective three-year sentence was suspended to unsupervised probation, to be served consecutively to the six-year sentence. Although not entirely clear from his handwritten brief, Fitten claims: (1) his conviction for retaliation for past action should be dismissed because it resulted from an illegal arrest under the Fourth and Fourteenth Amendments to the United States Constitution; and (2) the evidence was insufficient to support his convictions for retaliation for past action and filing a false police report. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/fittenr_042610.pdf


JEFFREY A. WAGGONER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James L. Flanary, Knoxville, Tennessee, for the appellant, Jeffrey A. Waggoner.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Jeffrey A. Waggoner, appeals the denial of error coram 1 nobis relief by the trial court. He was convicted of first degree murder on February 2, 1984, and sentenced to life imprisonment. He filed a petition for writ of error coram nobis relief, alleging that a witness who had testified against him at trial had recanted his testimony. After careful review, we affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/waggonerj_042610.pdf


Four Lake Regional Industrial Development Authority: Appointing Executive Director

TN Attorney General Opinions

Date: 2010-04-23

Opinion Number: 10-55

http://www.tba2.org/tba_files/AG/2010/ag_10_55.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Legislative News
TBA Member Services

Legal News
Kernell trial ready for jury, defendant does not testify
The federal trial of 22-year-old David C. Kernell, on charges of breaking into Sarah Palin's email account, was expected to wrap up this afternoon, with jurors returning in the morning for legal instructions from U.S. District Judge Thomas Phillips before beginning deliberations. Kernell himself did not testify in his defense. He is charged with four felonies including identity theft that carry a maximum possible penalty of 50 years in prison.
WATE News 6 reports
Some nonprofits' tax breaks to end May 15
At midnight on May 15, an estimated one-fifth to one-quarter of some 1.6 million charities, trade associations and membership groups will lose their tax exemptions, thanks to a provision buried in the Pension Protection Act of 2006. An I.R.S spokeswoman said that while groups would lose their exemptions effective May 16, the I.R.S. would probably not send out notices until January to give nonprofits a chance to bring themselves into compliance with the law.
Learn more from The New York Times
Kelley Cannon trial begins
A jury was seated and opening statements scheduled to begin late today in the trial of the Nashville woman charged with murdering her estranged husband, Nashville lawyer James Cannon. Kelley Cannon was arrested in July 2008, one month after James Cannon was found strangled to death in an upstairs closet of his Bowling Avenue home.
WKRN.com reports
Did you check the bathroom?
The last time Dearick Stokes walked away from the law, he had to go. He had asked for a bathroom break near the end of his murder trial in February and did not return. He was caught a month later in a bathroom ceiling and has since been sentenced to life in prison -- but was released by mistake Thursday from the Shelby County Jail. "The only comment I have is 'You must be kidding,'" said defense attorney Marvin Ballin.
The Commercial Appeal has the story
Editorial: Execution's delay has taken too long
The Chattanooga Times Free Press writes in an editorial that the state should go ahead with the execution of Gaile Owens. "We do not oppose reasonable appeals processes for anyone sentenced to die," it says. "But justice delayed 25 years is truly justice denied."
Read the editorial
Immigration lawyers won't meet in Arizona because of policies
Because of Arizona's sweeping new immigration enforcement policy the Board of Governors of the American Immigration Lawyers Association voted Friday to move the association's fall 2010 conference -- scheduled for a hotel in Scottsdale, Ariz. -- to another state. Linda Rose, a Nashville immigration lawyer who is part of the organization's 100-member board of governors, was the first to cast her vote in favor of moving the meeting.
The Tennessean has the story
Supreme Court Report
First Amendment issue: Court will look at ban on violent video games
The U.S. Supreme Court has agreed to decide whether California's ban on the sale and rental of violent video games to minors violates the First Amendment. The 9th U.S. Circuit Court of Appeals had overturned the law, saying the state did not produce enough evidence showing the harmful effects of the games.
ABAJournal.com connects you to this story
Legislative News
The politics behind push for election of A.G. explained
Last week in a narrow senate vote, lawmakers took the first step toward changing the law so Tennesseans would elect the state's attorney general. WPLN's Jacqueline Fellows talked with state capitol correspondent Joe White about the politics behind the effort to change Tennessee's constitution to allow a statewide vote.
Listen to the report
TBA Member Services
New resources available for TBA members
The TBA Law Office Technology & Management Section has purchased a collection of resource materials to be added to the TBA Lending Library for use by all members. Those materials include:

-- Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients and Others
-- Letters for Lawyers: Essential Communications for Clients, Prospects and Others, Second Edition
-- Risk Management: Survival Tools for Law Firms, Second Edition
-- The 2009 Solo & Small Firm Legal Technology Guide: Critical Decisions Made Simple
-- The Lawyer's Guide to Adobe Acrobat, Third Edition (Covers Adobe Acrobat 8.0)
-- The Lawyer's Guide to Collaboration Tools & Technologies: Smart Ways to Work Together + CD-ROM Supplement
-- The Lawyer's Guide to Governing Your Firm
-- The Lawyer's Guide to Marketing on the Internet, Third Edition
-- The Lawyer's Guide to Microsoft Excel 2007
-- The Lawyer's Guide to Microsoft Outlook 2007
-- The Lawyer's Guide to Practice Management Systems Software, Second Edition

Books may be borrowed for up to two weeks. To request a book, please email Sharon Ballinger or call her at (615) 383-7421.


 
 
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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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