New TBA committee examines foreclosure procedure

Amid the continuing wave of home loan defaults, foreclosure procedure in Tennessee is getting a fresh look by a special TBA committee formed to examine the procedures employed when homeowners default on their loans and face foreclosure. Chaired by Chattanooga lawyer Hal North, a shareholder at Chambliss, Bahner & Stophel PC, the committee is charged with examining what procedural changes could be made to reduce the cost of foreclosures, streamline the process and protect homeowners. The committee, composed of a balanced group of lawyers who represent banks, consumers, lenders and those who deal with bankruptcies, held its first organizational meeting last week. It plans to meet monthly during the fall.

Get more details about the committee and its members

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.

RICK BOVEE v. HOME DEPOT, USA, INC.

Court: TWCA

Attorneys:

William M. Billups, Nashville, Tennessee, for the appellant, Rick Bovee.

Lynn Vo Lawyer, Nashville, Tennessee, for the appellee, Home Depot, USA, Inc.

Judge: ALISSANDRATOS

In this workers' compensation action, employee sought benefits for injuries to his hips, shoulders, and feet. The trial court awarded benefits for injuries to his shoulders and feet but found that he failed to give timely notice of his bilateral hip injuries to his employer and dismissed those claims. Employee has appealed, contending that the trial court erred in finding that he did not provide timely notice of his hip injuries and that the complaint is barred by the statute of limitations. He requests that temporary disability, medical, and permanent disability benefits be awarded for those claims. Employer argues that the trial court erred in its calculation of the amount to be set off for social security retirement benefits. We conclude that the employee gave sufficient notice of his hip injuries to satisfy the requirements of the workers' compensation statute. However, we find that those claims are barred by the applicable statute of Limitations. The judgment is affirmed in all other respects.

http://www.tba2.org/tba_files/TSC_WCP/2010/boveer_081810.pdf


JOHN FREEMAN v. GENERAL MOTORS CORPORATION

Court: TWCA

Attorneys:

Kent E. Krause and Benjamin J. Miller, Nashville, Tennessee, for the appellant, General Motors Corporation.

Jonathan Williams, Nashville, Tennessee, for the appellee, John Freeman.

Judge: HARRIS

The trial court granted the employee's post-judgment motion to compel his employer to provide certain medical treatment. The employer has appealed, contending that the trial court erred by finding that the proposed treatment was related to the work injury. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/freemanj_081810.pdf


BRENDA M. McGHEE v. HOLLAND GROUP OF TENNESSEE, INC.

Court: TWCA

Attorneys:

Robert Payne Cave, Jr. and Jonathan Sevier Cave, Greeneville, Tennessee, for the appellant, Brenda M. McGhee.

Jonathan E. Roberts and Jeffrey M. Ward, Greeneville, Tennessee, for the appellee, Holland Group of Tennessee, Inc.

Judge: WADE

The Employee filed a workers' compensation claim against her Employer for back pain resulting from the aggravation and advancement of her degenerative disc disease, which she claimed had occurred from her injury while working on a brake line assembly. The trial court found that the Employee had not carried her burden of proof, and the Employee appealed. Because the evidence does not preponderate against the findings of fact made by the trial court, the Special Workers' Compensation Appeals Panel, sitting in accordance with Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51, affirms the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/mcgheeb_081810.pdf


JOSEPH SCOTT RICHARDSON v. JAMES BROWN CONTRACTING, INC. d/b/a JAMES BROWN TRUCKING COMPANY ET AL

Court: TWCA

Attorneys:

Melissa Kelly Helton, Chattanooga, Tennessee, for the appellant, James Brown Contracting.

Russell Theodore King, Chattanooga, Tennessee, for the appellee, Joseph Scott Richardson.

Judge: WADE

The owner and operator of a tractor-trailer filed a workers' compensation claim against a common carrier for injuries that he incurred while attempting to verify a load to transport to another location. The trial court ruled that the owner/operator, while an independent contractor, was entitled to workers' compensation benefits by virtue of a written contract between the parties extending coverage, as permitted by statute. The trial court reserved judgment on the award and permitted an interlocutory appeal. The Supreme Court granted the appeal and referred it to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed. The cause is remanded to the trial court for the disposition of the remaining issues.

http://www.tba2.org/tba_files/TSC_WCP/2010/richardsonj_081810.pdf


IN RE CHASE A. C.

Court: TCA

Attorneys:

David K. Vander Sluis, Oak Ridge, Tennessee, for the Appellant, Ronnie Cupp.

Robert E. Cooper, Attorney General & Reporter, Michael E. Moore, Solicitor General, and Douglas Earl Dimond for the Appellee, State of Tennessee Department of Children's Services.

Judge: KIRBY

This is a termination of parental rights case. The child at issue was removed from his father's home based on allegations of physical abuse and inability to control the child's behavior. After the child was placed in state custody, the state developed a permanency plan. The father timely performed some of his assigned tasks under the plan, but not others. As to the tasks he completed, the father did not submit documentation to show completion. Eventually, the state filed a petition to terminate the father's parental rights. After a trial, the trial court terminated the father's parental rights based on abandonment for failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistent conditions. The father now appeals, arguing that the state did not make reasonable efforts to reunify him with the child. We agree that the State did not make reasonable efforts at reunification, and we further find that the State did not by clear and convincing evidence show that termination of the father's parental rights is in the child's best interest. Therefore, we reverse the termination of the fathers parental rights.

http://www.tba2.org/tba_files/TCA/2010/chaseac_081810.pdf


CLAIBORNE HAULING, LLC v. WISTERIA PARK, LLC
CORRECTION on page 2 to reflect appellee's attorney's name as "Swartwood" rather than "Smartwood" and on page 13 to change "challenged on direct" to "challenged on cross examination"


Court: TCA

Attorneys:

W. Tyler Chastain and Margo J. Maxwell, Knoxville, Tennessee, for the appellant, Wisteria Park, LLC.

Garrett P. Swartwood, Knoxville, Tennessee, for the appellee, Claiborne Hauling, LLC.

Judge: SUSANO

Claiborne Hauling, LLC, contracted with Wisteria Park, LLC, to perform the excavating and grading, including installation of storm sewers and sanitary sewers, for a residential subdivision Wisteria was developing. The contract calls for Claiborne Hauling to commence work on November 6, 2006, with a substantial completion date of April 5, 2007. The contract further provides that Claiborne Hauling will receive a bonus of $500 per day for early completion but will pay a $500 per day "penalty" if completion extends past May 31, 2007. Claiborne did not finish by May 31, 2007. Wisteria "fired" Claiborne Hauling during a heated exchange in August 2007, and confirmed termination of the contract in a letter from counsel. The ground stated for termination is failure to complete the project by May 31, 2007. However, Wisteria did not secure approval of its plans for construction of the sewer system until June 8, 2007. When Wisteria did not pay the invoices and change orders outstanding at the time of the termination, Claiborne Hauling first sent a "prompt pay notice" and then filed this action alleging breach of contract against Wisteria. Wisteria answered and filed a counterclaim asserting, among other things, that it was entitled to recover $500 per day from May 31, 2007, until substantial completion, as liquidated damages. After a bench trial, the court found that Wisteria was guilty of the first material breach and awarded Claiborne Hauling a judgment in the amount of $301,430.62, which included attorney fees under the Prompt Pay Act, Tenn. Code Ann. section 66-34-602 (2004). Wisteria appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/claibornehauling_CORR_081810.pdf


JOY HENLEY MCKEE v. JEFFREY ELSTON MCKEE

Court: TCA

Attorneys:

Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellant, Jeffrey Elston McKee.

James L. Weatherly, Jr., Nashville, Tennessee, for the appellee, Joy Henley McKee.

Judge: BENNETT

In a divorce action, Husband appeals the trial court's valuation of Wife's dental practice, its division of the marital assets, and its denial of alimony. We affirm.

http://www.tba2.org/tba_files/TCA/2010/mckeej_081810.pdf


ROGER TAYLOR v. CLARKSVILLE MONTGOMERY COUNTY SCHOOL SYSTEM, et al.

Court: TCA

Attorneys:

Debra A. Wall, Clarksville, Tennessee, for the appellant.

Carol M. Joiner, Clarksville, Tennessee, for the appellees.

Judge: FRANKS

In this action the School Board brought an action to dismiss plaintiff, a tenured teacher. Following a hearing, the Board of Education voted to suspend plaintiff without pay from November 27, 2007 to May 23, 2008, and required other sensitivity training and a probationary period. Plaintiff petitioned for a writ of certiorari to the Chancery Court, and the Chancellor affirmed the suspension on the grounds that plaintiff was guilty of conduct unbecoming a member of the teaching profession. On appeal we affirm the Trial Court's Judgment and remand with direction that the plaintiff be reinstated as a teacher with back pay from the time the appeal to Chancery Court ended.

http://www.tba2.org/tba_files/TCA/2010/taylorr_081810.pdf


STATE OF TENNESSEE v. LANCE BURTON

Court: TCCA

Attorneys:

Neil Umsted (on appeal); and Kevin T. Krause (at trial), Memphis, Tennessee, attorneys for appellant, Lance Burton.

Robert E. Cooper, Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; W. Chris Scruggs and Kate Edmands, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Lance Burton, was convicted by a Shelby County Criminal Court jury of one count of aggravated robbery, a Class B felony. The trial court sentenced the Defendant as a mitigated offender to eight years in the custody of the Tennessee Department of Correction. In this appeal as of right, he contends that the evidence is insufficient to support his conviction and that the State committed prosecutorial misconduct during closing argument. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/burtonl_081810.pdf


STATE OF TENNESSEE v. BRANDON TAYLOR FISHER

Court: TCCA

Attorneys:

William Thomas Mullican, Brentwood (on appeal), and Reginald Horton (at trial) Nashville, Tennessee, for the appellant, Brandon Taylor Fisher.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero and J. Wesley King, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Brandon Taylor Fisher, stands convicted of robbery and kidnapping, both Class C felonies. The trial court sentenced him as a Range I standard offender to five years for robbery and four years for kidnapping and ordered him to serve the sentences consecutively in the Tennessee Department of Correction. On appeal, the defendant challenges the trial court's imposition of consecutive sentences. Following our review, we conclude that the trial court failed to make findings sufficient to justify consecutive sentences under Tennessee Code Annotated section 40-35-115(b) and remand for a new sentencing hearing solely on the issue of whether consecutive sentences are appropriate in this case.

http://www.tba2.org/tba_files/TCCA/2010/fisherb_081810.pdf


JONATHON C. HOOD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jonathon C. Hood, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; J. Michael Taylor, District Attorney General; and William Copeland, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Jonathon C. Hood, appeals the dismissal of his motion to discharge fines. More specifically, he contends that because his sentence was expired, the trial court erred in dismissing the motion. The State argues that this Court does not have jurisdiction to hear this appeal because Rule 3 of the Tennessee Rules of Appellate Procedure does not provide for an appeal as of right from the denial of a motion to discharge fines. We agree. Additionally, the record is incomplete. Therefore, Defendant's appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2010/hoodj_081810.pdf


STATE OF TENNESSEE v. TELLY SAVALAS JOHNSON

Court: TCCA

Attorneys:

Harry E. Sayle, III (at trial and on appeal), and Robert T. Hall (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Telly Savalas Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Dwyer and Marianne Bell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A Shelby County jury convicted the defendant, Telly Savalas Johnson, of five counts of criminal attempt to commit first degree murder. The trial court sentenced him as a Range I standard offender to an effective sentence of seventy-five years in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence at trial was insufficient to prove identity and premeditation. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/johnsont_081810.pdf


STATE OF TENNESSEE v. DESHAWN GAIL LEIGER

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender, and Patrick R. McGill, Assistant Public Defender, Dyersburg, Tennessee, for the appellant, Deshawn Gail Leiger.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Karen Burns, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Deshawn Gail Leiger, appeals from the revocation of her community corrections sentence, claiming that the trial court erred by ordering that she serve her sentence in confinement. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2010/leigerd_081810.pdf


MARVIN ANTHONY MATTHEWS v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Marvin Anthony Matthews, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Marvin Anthony Matthews, appeals pro se the Circuit Court of Lake County's order dismissing his petitions for habeas corpus relief. The petitioner claims he is being illegally detained because his sentence for third degree burglary has expired. The State filed a motion requesting this court to affirm the trial court's order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/matthewsm_081810.pdf


STATE OF TENNESSEE v. JOSHUA BRYANT MCCLAIN

Court: TCCA

Attorneys:

Vanessa P. Bryan, District Public Defender; and J. Gregory Burlison, Assistant Public Defender, Franklin, Tennessee, for the appellant, Joshua Bryant McClain.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Kim R. Helper, District Attorney General; and Michael J. Fahey, II, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Joshua Bryant McClain, pleaded guilty to vandalism of cemetery monuments in an amount over $10,000. After a sentencing hearing, the trial court denied the Defendant's request for judicial diversion and sentenced the Defendant to five years; after the service of 150 days in jail, his sentence was to be suspended for a six-year period. The trial court also ordered the Defendant to pay $5,000 in restitution to the cemetery association. The Defendant now appeals, challenging the denial of judicial diversion, the length of his sentence, and the restitution award. After a review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/mcclainj_081810.pdf


Hours for the Sale of Beer in a Municipality Located Within a Tennessee River Resort District

TN Attorney General Opinions

Date: 2010-08-18

Opinion Number: 10-92

http://www.tba2.org/tba_files/AG/2010/ag_10_92.pdf

TODAY'S NEWS

Legal News
Election 2010
TBA Member Services

Legal News
Carter sworn in to criminal court
Longtime state prosecutor Bobby Carter was sworn in Tuesday as judge of Shelby County Criminal Court, Division 3. Carter, 54, who defeated five other candidates on the ballot earlier this month, succeeds Judge John Colton Jr., who retired after 20 years on the bench. As his last act of office, Colton administered the oath of office to Carter.
The Commercial Appeal has more
Tennessee law schools make list of best values
The University of Memphis and University of Tennessee made the top 20 list among preLaw Magazine's 60 "best value" law schools. Schools are selected if their bar passage rate is higher than the state average, average indebtedness is below $100,000, employment rate is 85 percent or higher, and tuition is less than $35,000 a year. The fall issue of the magazine will rank the top 20 schools and assign a letter grade to the others.
See the full list
Bankruptcy stats reveal troubling trend
A decline in Chapter 13 bankruptcy filings in West Tennessee might look like a welcome trend, but instead may reflect the inability of debtors to file for relief because they're unemployed, reports the Commercial Appeal. At the same time Chapter 13 filings were down, Chapter 7 liquidations were up across the Mid-South, including in West Tennessee. These developments have lead some to conclude that debtors are not filing for restructuring that requires repayment of debts.
Learn more about the issue
Judge criticized for action in Pet Company case
City Court Judge Sherry Paty had no authority to consider whether a Chattanooga pet store's license should be repealed, much less reverse a city government decision, says Senior Judge Frank Harris, who was appointed by the Tennessee Supreme Court to replace Paty in the highly publicized case. Harris said his take on the situation is based on a reading of the city charter, which he believes does not give the municipal court jurisdiction in such cases.
Chattanoogan.com has more
Flooding threatens Washington Co. court records
After a waterline burst over the weekend in the Johnson City Downtown Centre, most of the building was flooded. But it's not damage to the building that's the biggest concern; it's the thousands of documents that contain court cases dating back to the 1920s. The leak, which was discovered by a lawyer whose office is across the street from the courthouse, will keep the trustee and county clerk offices closed for at least a week.
News Channel 5 Bristol has the story
Lipscomb hires law prof for governance institute
Lipscomb University has hired Brad Reid, a former professor of business law at Abilene Christian University, to lead its Dean Institute for Corporate Governance and Integrity. Reid also has spent time in private legal practice and as an Exxon executive. He earned his law degree from the University of Texas. The Dean Institute was launched in 2008 as a partnership between the school and Nashville law firm Bone McAllester Norton PLLC. It is charged with developing best practices in governance for company executives and board members. The Nashville Post reported the news.

Today marks anniversary of suffrage vote
Ninety years ago today, the Tennessee House of Representatives -- by one vote -- ratified the 19th Amendment to the Constitution, giving women the right to vote. Tennessee was the 36th state to ratify the amendment, sealing the success of the suffrage movement.
Read about this moment in history in the Commercial Appeal
Corrections Corp. recruits Nashville lawyer
Nashville-based prison operator Corrections Corp. of America has named Kate Stephenson, a former managing partner at Trauger & Tuke, as assistant general counsel for labor and employment. The UT College of Law graduate has more than 20 years of legal experience. She was at Trauger & Tuke for a decade after spending six years with predecessor firm Tuke, Yopp & Sweeney. She first practiced at Farris Warfield & Kanaday.
Read more from the company
Election 2010
Democrats to decide Monday on state Senate recount
The Tennessee Democratic Party's Executive Committee will meet Monday evening to decide whether to grant attorney Jeff Yarbro's request for a recount in the Democratic primary for the District 21 state Senate seat. At a news conference today, party chairman Chip Forrester said Yarbro and incumbent state Sen. Douglas Henry -- who holds a lead of 11 votes -- met earlier in the day and agreed to the procedure.
The Nashville City Paper has more
Zelenik issues concession of sorts
In a recent message to friends and supporters, Sixth Congressional District primary candidate Lou Ann Zelenik said "assuming the vote margin remains the same, I congratulate Diane Black on her victory." She still has not publicly conceded the race to Black, who is leading by 300 votes. Zelenik faced off against Black and Jim Tracy in the Republican primary for the seat held by Bart Gordon, D-Murfreesboro.
Read Zelenik's message in the Nashville Post (subscription required)
Mediator asks challengers to suspend review
A court-appointed mediator has asked Democrats complaining about polling problems in Shelby County to suspend inspections of voting equipment and records until Monday. Chancery Court Clerk and Master Dewun Settle, appointed by Chancellor Walter Evans to referee the inspection process, said the break was needed to give the election commission time to prepare for a meeting tomorrow to certify the vote.
The Commercial Appeal reports
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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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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