Early voting begins today

Early voting in the state's primary election begins today (July 16) and continues through July 31. Election day for the state primaries and county general elections will be Aug. 5. Voters will be choosing party nominees for governor, half of the members of the Senate and all members of the House. The July issue of the Tennessee Bar Journal features the four major candidates for governor along with a brief description of their positions on issues of interest to lawyers.

Read more here

TODAY'S OPINIONS
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CLEMENT HOMES, INC. v. BETH CHILCUTT, a/k/a BETH GORRELL

Court: TCA

Attorneys:

J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Beth Chilcutt.

Thomas D. Forrester, Covington, Tennessee, for the appellee, Clement Homes, Inc.

Judge: FARMER

This is a breach of contract case. The trial court entered a final judgment in favor of the plaintiff but did not issue findings of fact or conclusions of law pursuant to Rule 52.01 of the Tennessee Rules of Civil Procedure. Because the trial court failed to comply with the mandatory requirements of Rule 52.01, we vacate and remand.

http://www.tba2.org/tba_files/TCA/2010/chilcuttb_071610.pdf


PAUL DAVIS, M.D., v. JACKSON TENNESSEE HOSPITAL COMPANY, LLC.

Court: TCA

Attorneys:

Stephen H. Biller, Memphis, Tennessee, for the appellant, Paul Davis, M.D.

Julie Murphy Burnstein, Nashville, Tennessee, for the appellee, Jackson Tennessee Hospital Company, LLC, d/b/a Regional Hospital of Jackson.

Judge: STAFFORD

This is an appeal from the trial court's grant of summary judgment. After reviewing the record, we find that the Notice of Appeal was not timely filed. Therefore, this Court does not have subject matter jurisdiction and the appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2010/davisp_071610.pdf


WARREN A. HAKANSON, ET AL. v. JUDITH K. HOLLAND, TRUSTEE OF THE G.W. HAKANSON LIVING TRUST, ET AL.

Court: TCA

Attorneys:

William S. Lewis, and Steven C. Huret, Kingsport, Tennessee, for the appellants, Warren A. Hakanson and Sylvia Harris.

Thomas A. Peters, Kingsport, Tennessee, for the appellees, Judith K. Holland, Trustee of the G.W. Hakanson Living Trust, and Judith K. Holland, individually.

Judge: SWINEY

Warren A. Hakanson and Sylvia Harris sued Judith K. Holland both as Trustee of the G.W. Hakanson Living Trust dated November 19, 1996 ("the Trust"), and individually, seeking, among other things, to have Ms. Holland removed as Trustee and to have the Trust correctly administered. The case was tried, and the Trial Court entered an order finding and holding, inter alia, that the Trust, as written, did not comport with the intent of G.W. Hakanson, that Ms. Holland had proposed a distribution which she believed met G.W. Hakanson's intent, that Ms. Holland remain as Trustee, and that prior distributions to Mr. Hakanson and Ms. Harris should be added back into the Trust with Mr. Hakanson and Ms. Harris each to receive $247,800 from the Trust and then the remaining Trust assets divided equally three ways with Mr. Hakanson, Ms. Harris, and Ms. Holland each to receive one-third. Mr. Hakanson and Ms. Harris appeal to this Court. We reverse, in part, finding and holding that there is no ambiguity in the written Trust and that the Trust shall be distributed in accordance with its clear written directions. We affirm the remainder of the Trial Court's order.

http://www.tba2.org/tba_files/TCA/2010/hakansonw_071610.pdf


VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL.

Court: TCA

Attorneys:

Larry D. Ashworth, Nashville, Tennessee, for the appellant, Vicki P. Jacobs, surviving spouse of Harris N. Jacobs, deceased, and for the benefit of herself and the minor children of Harris N. Jacobs.

E. Reynolds Davies, Jr., and John T. Reese, Nashville, Tennessee, for the appellees, K. James Schumacher, M.D., Associated Radiologists, P.C., and Radiology Alliance, P.C.

Robert E. Parker and Thomas W. Lawrence, Jr., Nashville, Tennessee, for the appellees, Stephen A. Mitchell, M.D., and Nashville Ear, Nose & Throat Clinic.

Judge: SUSANO

This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001. The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/jacobsv_071610.pdf


STATE OF TENNESSEE v. DANIEL PATRICK BLANKENSHIP

Court: TCCA

Attorneys:

Willow Fort (at trial), Nashville, Tennessee, and James O. Martin, III (on appeal), Nashville, Tennessee, for the Appellant, Daniel Patrick Blankenship.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Elaine Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Daniel Patrick Blankenship, pled guilty to aggravated burglary, theft over $10,000, and theft over $1,000. The trial court sentenced him to an effective sentence of six years to be served on probation. Soon thereafter, a violation of probation affidavit was filed against the Defendant. After a hearing, the trial court revoked the Defendant's probation and ordered him to serve his sentence in confinement. The Defendant appeals, contending the trial court erred in placing his original sentence into effect. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2010/blankenshipd_071610.pdf


STATE OF TENNESSEE v. TONY LEE CROWE

Court: TCCA

Attorneys:

H. Marshall Judd, Assistant Public Defender, Cookeville, Tennessee, for the appellant, Tony Lee Crowe.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William E. Gibson, District Attorney General; and Beth Willis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Tony Lee Crowe, was convicted by a Putnam County Jury of two counts of rape of a child and two counts of aggravated sexual battery. As a result, he was sentenced to sixteen years incarceration, to be served at 100%. On appeal, he alleges that the trial court improperly denied his motion for new trial based on newly discovered impeachment evidence and recanted testimony. After a review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/crowet_071610.pdf


STATE OF TENNESSEE v. CURTIS LYNN HEARON

Court: TCCA

Attorneys:

Robert L. Huddleston, Maryville, Tennessee, for the appellant, Curtis Lynn Hearon.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Ellen Berez, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Curtis Glenn Hearon, appeals from the sentencing judgment of the Blount County Circuit Court. Upon review of the record and the parties' briefs, we affirm the judgment but remand the case for further findings and rulings on the issue of pretrial jail credit.

http://www.tba2.org/tba_files/TCCA/2010/hearonc_071610.pdf


STATE OF TENNESSEE v. GARY DEWAYNE PITTS

Court: TCCA

Attorneys:

Jeffrey A. DeVasher, Assistant Public Defender; Mary Kathryn Harcombe, Assistant Public Defender, Nashville, Tennessee, for the appellant, Gary Dewayne Pitts.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Gary Dewayne Pitts, appeals from the order of the Davidson County Criminal Court revoking his probation. In January 2009, the Defendant pleaded guilty to felony simple possession of cocaine and vandalism over $500 and received an effective three-year sentence as a Range II, multiple offender. His sentence was partially suspended, and he was placed on probation. Subsequently, a violation warrant was issued, wherein it was alleged that the Defendant violated his probation by using illegal drugs. After a hearing, the trial court took the matter under advisement so that the Defendant could be evaluated for a drug and mental health program. Based upon the results of the assessment evincing an unwillingness on the part of the Defendant to abide by the terms of the program, the trial court concluded that the Defendant violated the conditions of his probationary sentence and ordered that his original three-year sentence to the Department of Correction be reinstated. On appeal, the Defendant argues that the trial court abused its discretion by revoking his probation and ordering that the remainder of his sentence be served in confinement. After a review of the record, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/pittsg_071610.pdf


JAMES MARK THORNTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Wesley D. Stone, Brentwood, Tennessee, for the appellant, James Mark Thornton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James B. Dunn, District Attorney General; and Brownlow Marsh, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, James Mark Thornton, appeals from the denial of his petition for writ of habeas corpus wherein he challenged his judgments in Cocke County case numbers 6617, 6618, 6820, and 9827. In this appeal, the petitioner claims entitlement to habeas corpus relief on the basis that he received concurrent sentences when consecutive sentences were statutorily required. He also contends that he should be permitted to withdraw his guilty pleas in each of the four cases because the concurrent sentence alignment was a bargained- for element of each plea. We agree that the judgment in case number 6820 is void, but because the petitioner has failed to establish that he is restrained of his liberty by virtue of the void judgment, we affirm the denial of habeas corpus relief.

http://www.tba2.org/tba_files/TCCA/2010/thorntonj_0716.pdf


STATE OF TENNESSEE v. MATTHEW STEVEN WRIGHT

Court: TCCA

Attorneys:

Robin Ruben Flores, Chattanooga, Tennessee for the appellant, Matthew Steven Wright.

Robert E. Cooper, Jr., Attorney General and Reporter, Deshea Dulany Faughn, Assistant Attorney General; J. Michael Taylor, District Attorney General, and Sherry Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Matthew Steven Wright, was indicted by the Marion County Grand Jury for aggravated assault. Appellant pled guilty to the charge and received a sentence of four years. The trial court suspended the sentence to three years and ten months of probation after the service of thirty-five days in incarceration. After the issuance of a probation violation warrant and hearing, the trial court revoked Appellant's probation and ordered him to serve his sentence. Appellant seeks a review of the denial of his probation. We determine that the trial court made adequate findings of fact with regard to the denial of probation. Therefore, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/wrightm_071610.pdf


TODAY'S NEWS

Legal News
Election 2010
Court of the Judiciary
Disciplinary Actions
TBA Member Services

Legal News
Kennedy and Latta to address judiciary committee
Two West Tennessee bankruptcy judges are expected to go before the U.S. House Judiciary Subcommittee on Commercial and Administrative Law this Monday to take on questions about the relationship between bankruptcy law and foreclosure. The committee will hear from David Kennedy, chief bankruptcy judge for the U.S. Bankruptcy Court in West Tennessee, and bankruptcy judge Jennie Latta about whether to allow bankruptcy judges the power to modify mortgages on primary residences to give debtors a breather. "For many, many years, bankruptcy judges have been conducting evaluation hearings on investment homes, rental homes, vacation homes," Kennedy said. "But the only one that's sacred is home mortgages secured by the debtor's principal residence." U.S. Rep. Steve Cohen, D-Memphis, will chair the hearing.
The Memphis Daily News has this story
GOP, NRA working to derail Kagan nomination
Republican leadership, and some outside groups including the National Rifle Association, are pushing hard to raise the number of no votes in the Senate for the nomination of Elena Kagan to the U.S. Supreme Court.
National Public Radio reports
Juvenile court judge says building isn't safe
Davidson County Juvenile Court Judge Betty Green says the city needs to knock down the juvenile detention center and juvenile courthouse, and start over again. It was badly flooded in May, but many of the problems were there before then, she says, including exposed parking lots, close quarters and overall poor planning. "Within the building, we need to make sure there aren't some obstacles or barriers that are dangerous for people. For instance, the railing around our stairs is ridiculous," said Green.
WSMV-TV reports
Judge challenges churches to step in and help crime
Retiring criminal court judge John Colton Jr. called on Memphis's hundreds of churches to help turn Memphis crime around. His advice to the churches: "I'd go out and say get up off your ass and help some of these kids who just want you to pat them on the back," he said. "Instead of some guy who runs a gang to come up, pat them on the back and say 'join our gang.'" The judge said the city's crime crisis is rooted in parental failure. He said parents are not teaching their children the biblical commands to love God and love thy neighbor.
WMC-TV has the story
Seriously? 'Peoples' Court' testimony not real
A woman's statements made on "The People's Court" television show can't be used against her in a real legal proceeding, a Brooklyn judge has ruled. "The statements made on the show have no more probative force than the words of an actor reading from a script in a play," Judge Francois Rivera wrote. "The only difference between the two is that the participants of the show may freely ad-lib their lines."
The ABA Journal tells you more
Election 2010
Loudon General Sessions judicial candidates speak out
Candidates for General Sessions judge in Loudon County are interviewed by the News Herald about their backgrounds, qualifications and what they believe is the most pressing problem facing the office. Rex Dale said it is "keeping a continual commitment to impartial justice for everyone and having the moral honesty and integrity to follow through on that commitment." Finding a way to "provide stability and structure to our troubled juveniles," candidate Lee Ledbetter said was the most pressing problem. She said she plans to establish a mentoring program for these children. Mary Longworth says the most pressing issue "is how to manage quickly and efficiently the very large docket of cases."

Candidate resigns as deputy in face of Hatch Act violation
Memphis Chief Deputy Sheriff Bill Oldham, the Republican nominee for sheriff, has resigned as the department's deputy after learning the Justice Department was preparing to file or already had filed a civil action in Chancery Court alleging Oldham had violated the federal Hatch Act. The violation was that Oldham had run for sheriff while on leave as chief deputy. Two recent opinions from the Tennessee attorney general's office -- one that a deputy sheriff cannot run for sheriff -- may dramatically alter future races for sheriff.
The Memphis Daily News reports
Court of the Judiciary
Dumas reprimanded for nepotism
General Sessions Court Judge Gloria Dumas received a public reprimand today from the Court of the Judiciary for hiring her daughter as her court officer, "even though she had no experience or training for this position," the order reads. "This selection was made without the competitive consideration of other qualified applicants." A majority of the hearing panel agree with this resolution, but Judge Thomas Woodall filed a dissent, saying "that this case is one of those cases that should be resolved only after a full trial."
View the related documents at tncourts.gov
Disciplinary Actions
Knox County lawyer censured
On July 16, Knoxville lawyer Raymond Shirley Jr., received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court. For various acts, he violated Rules of Professional Conduct 1.3, 1.4, 5.5, and 1.8(b).
Download the BPR news release
TBA Member Services
Think FedEx first
If you've been shipping with other carriers, it's time to switch to FedEx. Not only will you get peace of mind from reliable FedEx shipping, but you can also take advantage of great savings on FedEx shipping as well as FedEx Office services by enrolling in the FedEx member benefits program.
Take advantage of your member discounts on select FedEx shipping services and FedEx Office business services

 
 
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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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