Be informed when you go to the polls on Thursday

Election Day is tomorrow -- Thursday, Aug. 5. In addition to the gubernatorial primaries, ballots include local court races and two judicial retention votes. The Tennessee Bar Association has collected a package of resources to help voters make informed choices in the upcoming judicial elections. Also available is the Tennessee Fair Judicial Campaign Code of Conduct and a listing of judges who have signed the Code of Conduct and agreed to conduct their campaigns in a manner reflecting the integrity of the justice system in Tennessee. Watch a short video about the resources or visit the TBA's online Judicial Election Center for more information.

Access the election center 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.

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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.

JESSE ROBERT ANDERSON v. CHRIS (ANDERSON) WEBSTER

Court: TCA

Attorneys:

Patti B. Garner and David R. Howard, Gallatin, Tennessee, for the appellant, Jesse Robert Anderson.

Jennifer Davis Roberts, Dickson, Tennessee, for the appellee, Chris (Anderson) Webster.

Judge: CLEMENT

The order that is the subject of this appeal purports to amend the division of marital property as stated in the final judgment. It was entered in response to a motion filed more than a year after the entry of the final judgment. We have determined the motion was untimely because it did not qualify as a Tenn. R. Civ. P. 60 motion; therefore, the order that purports to amend the division of marital property as stated in the final judgment is void. We, therefore, reverse and remand with instructions for the trial court to vacate the order that purports to amend the final judgment.

http://www.tba2.org/tba_files/TCA/2010/andersonj_080410.pdf


IN THE MATTER OF: ARTERIA H.

Court: TCA

Attorneys:

Curtis D. Johnson, Jr., Memphis, Tennessee, for the appellant, Berthenia H.

W. Ray Glasgow, Memphis, Tennessee, for the appellant, Arterio H.

Robert E. Cooper, Jr., Attorney General and Reporter and Douglas Earl Dimond, Senior Counsel, for appellee, State of Tennessee, Department of Children's Services.

Erica C. Gatewood, Memphis, Tennessee, Guardian Ad Litem.

Judge: STAFFORD

This is a termination of parental rights case. Both Mother and Father appeal the trial court's decision to terminate their parental rights. After a thorough review of the record, we affirm.

http://www.tba2.org/tba_files/TCA/2010/arteriah_080410.pdf


IN RE: THE CONSERVATORSHIP OF JOYCE D. BENNY
Memorandum Opinion


Court: TCA

Attorneys:

Joyce B. Denny, Johnson City, Tennessee, pro se.

Monica Franklin, Knoxville, Tennessee, for the Appellant, Judy S. Wyrick.

This is an appeal in a conservatorship case. The notice of appeal was mailed via overnight delivery. Had the notice of appeal been delivered the next day, it would have been timely. Unfortunately, the notice of appeal was not delivered the next day and, therefore, was not timely filed. Because the notice of appeal was not filed within thirty (30) days of entry of the final judgment, this Court lacks subject matter jurisdiction and this appeal must be dismissed.

http://www.tba2.org/tba_files/TCA/2010/bennyj_080410.pdf


GAYLE BERNARD AND EDWARD MICHAEL SHEA v. METROPOLITAN GOVERNMENT OF NASHVILLE/DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

David L. Raybin, Nashville, Tennessee, for the appellants, Gayle Bernard and Edward Michael Shea.

Sue B. Cain, Paul Jefferson Campbell, II, Lora Barkenbus Fox, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville/Davidson County, Tennessee.

Judge: DINKINS

This is the second appeal by two former police officers who sought retirement gifts provided for by Metro ordinance and police department policies. The officers requested the gifts and were denied based on lacking good standing at the time they retired, as required by the ordinance. The officers filed a declaratory judgment action as well as civil rights claims, which the trial court dismissed on jurisdictional grounds and for failure to state a claim, respectively. The Court of Appeals reversed the dismissal of the declaratory judgment action and remanded. On remand, the trial court found that, because the officers were under investigation for misconduct at the time of their retirement, they were not in good standing as required by the ordinance and, thus, not entitled to the retirement gifts. The officers appeal. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2010/bernardg_080410.pdf


DAVE BRUNDAGE, et al., v. CUMBERLAND COUNTY, et al.

Court: TCA

Attorneys:

Elizabeth L. Murphy, Nashville, Tennessee, for the appellants, Dave Brundage, Black Cat Lodge, LLC., John Coye, Barbara Coye, David Cobb, Sonja Cobb, Larry Oran, Mary Oran, Lou Devillon, Joan Devillon, Carolyn Jozwiak, and Vincent Jozwiak.

Randal R. Boston, Crossville, Tennessee, for the appellees, Cumberland County and Cumberland County Commission.

William L. Penny, Dianna Baker Shew, and Christina B. Davidow, Nashville Tennessee, for the appellees, Smith Mountain Solutions, LLC.

Judge: FRANKS

Petitioners filed a Statutory Writ of Certiorari, seeking the review of respondents' action in granting the right to develop a landfill to Smith Mountain Solutions pursuant to Tenn. Code Ann. section 68-211-704. Petitioners did not timely verify their petitions and the Trial Judge dismissed the action on the ground he did not have jurisdiction to entertain the petition. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2010/brundaged_080410.pdf


P & N DEVELOPMENT, A PARTNERSHIP, ET AL. v. BETTY B. CHURCH

Court: TCA

Attorneys:

Timothy W. Hudson, Bristol, Tennessee, for the appellant, Betty B. Church.

Thomas A. Peters, Kingsport, Tennessee, for the appellees, P & N Development, a partnership, Barney Pendleton, and Rhea Newland.

Judge: MCCLARTY

Lessee sued Lessor for specific performance and damages, alleging breach of contract after Lessor did not permit Lessee to exercise the option to purchase the property. Lessor moved to dismiss, claiming that Lessee failed to properly and timely exercise the option to purchase the property. Lessor filed a counterclaim, alleging breach of contract and damages. After a bench trial, the trial court held that Lessee properly and timely exercised the option to purchase the property. Lessor appeals. Upon reviewing the record, we conclude Lessee did not exercise the option to purchase the property before the expiration of the Lease. Therefore, we affirm in part, reverse in part, and remand.

http://www.tba2.org/tba_files/TCA/2010/churchb_080410.pdf


IN RE JOSEPH A.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellant, State of Tennessee, Department of Children's Services.

Robert B. Pyle, Chattanooga, Tennessee, Guardian ad Litem.

Judge: SWINEY

This proceeding began in the Hamilton County Juvenile Court when the Department of Children's Services ("DCS") filed a petition seeking to have Joseph A. (the "Child") declared dependent and neglected based on allegations of abuse committed by Douglas A. ("Father"). Katheryn B. ("Mother") was allowed to intervene. A guardian ad litem was appointed on the Child's behalf. The Juvenile Court found the Child to be dependent and neglected, and Father appealed that finding to the Circuit Court. While this case was pending in the Circuit Court, DCS voluntarily dismissed the original petition. Thereafter, the guardian ad litem filed a motion seeking payment of attorney fees and costs. The Circuit Court granted this motion and entered a judgment against DCS for the guardian ad litem's fees and expenses. DCS appeals. We vacate the order taxing the guardian ad litem fees and costs against DCS and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/josepha_080410.pdf


NOEL MONTEPEQUE, ET AL. v. PATRICIA CLAIRE ADEVAI, EXECUTRIX OF THE ESTATE OF JOSEPH ADEVAI

Court: TCA

Attorneys:

J. Randall Shelton, Morristown, Tennessee, for the appellant, Patricia Claire Adevai, Executrix of the Estate of Joseph Adevai.

C. Dwaine Evans, Morristown, Tennessee, for the appellees, Noel Montepeque and Celia M. Martinez.

Judge: MCCLARTY

The parties own adjoining properties with a common party wall. The building belonging to Noel Montepeque and Celia M. Martinez (collectively "Party A") is one story, whereas the building of Joseph Adevai ("Party B") is two stories and overlooks Party A's roof. The party wall contains four windows on the second level of Party B's building. The bottom sills of two of these windows are below the roof line, thus creating open spaces between the party wall and Party A's roof. While Party A was in the process of having a new rubberized roof installed by a contractor, a dispute arose between the parties concerning the manner in which the new roof would be secured to the party wall. Actions allegedly taken by Mr. Adevai to remove the flashing covering the party wall windows eventually resulted in water damage to the existing roof and interior portions of Party A's building. Party A sued Mr. Adevai for compensatory damages and requested that Mr. Adevai be enjoined from committing further damage to the party wall. Mr. Adevai filed a counterclaim, alleging harassment and intimidation by Party A. Following a bench trial, the trial court dismissed the counterclaim and awarded Party A damages for negligence, totaling $28,350.00. We affirm.

http://www.tba2.org/tba_files/TCA/2010/montepequen_080410.pdf


RANDALL S. PATTON, ET AL. v. LARRY MASSEY

Court: TCA

Attorneys:

Mark E. Brown, Knoxville, Tennessee, for the appellant, Larry Massey.

Charles W. Pope, Jr., Athens, Tennessee, for the appellees, Randall S. Patton and Rebecca Patton.

Judge: MCCLARTY

Lessor and Lessee entered into a Lease with an option to purchase. Lessee subsequently assigned his interest in the Lease to a third party, who lived on the property throughout the Lease's primary term. The option to purchase the property was never completed and Lessee's assignee remained on the property after the expiration of the Lease. Lessor filed a suit alleging breach of contract and sought damages from Lessee. After a bench trial, the trial court found that the Lease was renewed by oral agreement; Lessee breached the contractual obligations of the Lease; and Lessee was liable for damages. Lessee appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/pattonr_080410.pdf


STATE OF TENNESSEE v. JAMES ANTHONY BURGESS

Court: TCCA

Attorneys:

Samuel J. Harris, Cookeville, Tennessee, for the appellant, James Anthony Burgess.

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

Judge: SMITH

Appellant, James Anthony Burgess, was indicted by the Putnam County Grand Jury for two counts of first degree murder, two counts of felony murder, one count of especially aggravated burglary, and one count of reckless endangerment. These indictments came as a result of the shooting deaths of Appellant's estranged wife and her boyfriend at her home. A jury convicted Appellant of two counts of second degree murder, two counts of felony murder, one count of especially aggravated burglary, and one count of reckless endangerment. The jury determined that Appellant should be sentenced to life in prison for each felony murder conviction. Appellant's total effective sentence was two consecutive life sentences. We remand this case for the trial court's modification of Appellant's sentence for especially aggravated burglary to aggravated burglary. In all other respects, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/burgessj_080410.pdf


JOHNNY B. EWING, II v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Johnny B. Ewing, II, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, Johnny B. Ewing, II, appeals the Davidson County Criminal Court's denial of his petition for writ of habeas corpus. Following our review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2010/ewingj_080410.pdf


STATE OF TENNESSEE v. PHIL FULLER

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender, and Michael J. Collins, Assistant Public Defender, for the appellant, Phil Fuller.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulaney Faughn, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Phil Fuller, appeals the sentencing decision of the Marshall County Circuit Court following the revocation of his probationary sentence. While on supervised probation, a violation warrant was issued alleging multiple violations of the defendant's probationary agreement. The defendant subsequently waived his right to a hearing and pled guilty to the violations. Afterwards, the trial court revoked the defendant's probation and ordered that the balance of the original effective sentence of three years and three months be served in confinement. On appeal, the defendant does not contest the trial court's revocation but argues that the court erred in ordered him to serve the sentence in confinement rather than in fashioning a sentence involving split confinement. However, after review, we conclude that the defendant has failed to establish that the trial court abused its discretion. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/fullerp_080410.pdf


RICKY LYNN HILL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Ricky Lynn Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Anna B. Cash and Alfred L. Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Ricky Lynn Hill, appeals the Chester County Circuit Court's denial of his petition for post-conviction relief. The petitioner pled guilty to vehicular assault, DUI - fifth offense, attempted tampering with evidence, and leaving the scene of an accident. Pursuant to the plea agreement, the petitioner was sentenced to an effective sentence of seven years, eleven months, and twenty-nine days and released to intensive probation. On appeal, the petitioner contends that his guilty plea was not entered knowingly and voluntarily based upon trial counsel's ineffectiveness in handling the case. Following review of the record, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2010/hillr_080410.pdf


STATE OF TENNESSEE v. DAVID LAWRENCE JONES
CORRECTION to August 2009 opinion adds a dissenting opinion


Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, David Lawrence Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; Kelly Jackson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, David Lawrence Jones, pled guilty to driving under the influence, fourth offense; driving on a revoked license; violating the open container law; and violating the implied consent law. He received a total effective sentence of two years. As a condition of his plea, the appellant reserved the following certified question of law: "whether the officer's initial encounter was a 'seizure' and, if so, was it supported by probable cause o[r] reasonable suspicion." Upon our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/jonesd_080410.pdf

WELLES Dissenting
http://www.tba2.org/tba_files/TCCA/2010/jonesd_DISS_080410.pdf


LATROY LEE ROBERTSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Latroy Lee Robertson, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks and Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The pro se Petitioner, Latroy Lee Robertson, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief, in which he attacks his sentences for three counts of the sale of .5 grams or more of cocaine and three counts of the sale of twenty-six grams or more of cocaine. The Petitioner seeks a delayed appeal of the sentence, alleging that his attorney was ineffective for failing to file a direct appeal of the sentences. The post-conviction court summarily dismissed the petition, and, after careful review, we reverse the post-conviction court's judgment and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/robertsonl_080410.pdf


TODAY'S NEWS

Legal News
Election 2010
Supreme Court Report
Career Opportunities
TBA Member Services

Legal News
Judge overturns California's gay marriage ban
Chief Judge Vaughn Walker with the Northern District Court of California ruled today that the state's same-sex marriage ban -- known as Proposition 8 -- is unconstitutional. His verdict came in response to a lawsuit brought by two same-sex couples and the city of San Francisco, which claimed the voter-approved ban violated their civil rights. Parties on both sides of the case previously said an appeal was certain if Walker did not rule in their favor.
The Washington Post has this story from the Associated Press
Groups challenge terror license for attorneys
Two civil liberties groups are challenging a U.S. Department of Treasury regulation they say requires lawyers to get a government license before representing individuals designated as terrorists. The Center for Constitutional Rights and the American Civil Liberties Union filed suit against the rule after the department listed Anwar al-Awlaki as a terrorist just weeks after they began making inquiries about his case. The department's Office of Foreign Asset Control, however, denies that a specific license is necessary.
WATE Newschannel 6 reports
Co-founders split from Music Row firm
Nashville lawyers Rob Baker and Page Kelley, co-founders of the entertainment law firm Baker & Kelley PLLC, have moved on to new positions. According to the Nashville Post, Baker has joined Bone McAllester Norton PLLC, where he will lead a new practice group focusing on entertainment and intellectual property law. Kelley has joined Milom Joyce Horsnell Crow, a firm created in 2007 by several former Bass, Berry & Sims entertainment lawyers. Two other Baker & Kelley lawyers, Ted Graffam and Tyler Middleton, have formed Graffam Middleton with offices at 1200 Clinton St., Suite 225 in Nashville.
Read more on the move [subscription required]
Memphis firms form alliance
East Memphis law firms Apperson Crump and Jackson, Shields, Yeiser & Holt have forged a strategic alliance to provide broader expertise to clients. Apperson Crump, the city's oldest continuously operating law firm, has about 25 attorneys versed in real estate, banking, business, tax, estate planning, labor, family and immigration law. Jackson Shields' seven attorneys focus primarily on labor and school issues. According to firm leaders the partnership will "make it much easier for the clients of each firm to gain access to the specialties of the other."
The Commercial Appeal reports
Irick execution remains set for Dec. 7
The Tennessee Supreme Court today denied Billy Ray Irick's request to vacate his execution date and give his attorneys more time to prepare for a hearing that will determine whether he is competent to be executed. The court previously rejected an appeal from Irick's attorneys -- who argued he was insane at the time of the crime -- to issue a certificate of commutation. Download the decision
The Tennessean reports
Glass shatters at DA office, but no foul play
A large plate glass window in the office of Hamilton County District Attorney Bill Cox shattered early Tuesday morning, but officials said no intruder was involved. Security personnel at the City-County Courts Building said video shows the glass shattering "on its own" -- apparently due to stress on its components -- at about 2 a.m. This morning, the glass was cleaned up and an area near the door to the office was roped off.
Chattanoogan.com has the news
Election 2010
Lawyer claims mediator certification that lapsed
The Chattanooga Times Free Press reported today that a candidate for the Hamilton County Commission is claiming certification as a mediator after he let the designation expire. Signal Mountain attorney Jim Fields, who is seeking the post, claims on his campaign website that he is a Rule 31 civil mediator as well as a family mediator with domestic violence training. The Administrative Office of the Courts confirmed, however, that while Fields received certification in 2004, he became inactive in March 2009 when he did not renew his application. For his part Field said he has been "a little bit preoccupied" and that the information is not misleading.
Read more from the paper
Read Fields' responses on Chattanoogan.com
Marceaux has been frequent criminal court guest
Basil Marceaux Sr., the Chattanooga Republican candidate for governor whose unconventional political views have attracted national attention, has been in and out of Hamilton County Criminal Court since 1993, county records show. Many of the 19 cases involved misdemeanor traffic infractions, and he has been found not guilty by reason of insanity in seven of those cases. But he also has been found guilty in cases involving vandalism, possession of drug paraphernalia and cashing a bad check.
Read more in the Times Free Press
Supreme Court Report
Ginsburg: No plans to leave Supreme Court
U.S. Supreme Court Justice Ruth Bader Ginsburg, referencing the upcoming vote on the nomination of Elena Kagan to the high court, says the prospect of three women on the court is "one of the most exhilarating developments." She also said yesterday that she plans to remain on the court for the foreseeable future, hoping to match the tenure of Justice Louis Brandeis, who retired at age 82.
Nashville News Channel 5 has the story
Career Opportunities
Clerk and master needed in Hawkins County
The 3rd Judicial District Chancery Court is seeking a clerk and master, a position that carries a six-year term. Candidates should have the ability to work independently, solve problems and interact with legislative bodies. Though not required, the court prefers that the position be filled by a lawyer. Resumes must be postmarked by Aug. 27. A detailed job description and instructions for applying are posted on the AOC's website.
Learn more here
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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