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Friday, August 27, 2010

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Change in timing, payment of CLE fees proposed

The Tennessee Commission on Continuing Legal Education and Specialization has proposed, by petition filed with the Tennessee Supreme Court this week, to change the timing and manner in which lawyers report and pay the per-hour user fee for CLE offered by providers that are not regular Tennessee providers. The CLE Commission is financed largely by fees paid by providers of CLE in the state, like the TBA, and by fees paid by lawyers who request accreditation for programs they attend. When credits are filed, the TBA and other regular providers pay a fee to the commission for acceptance of that credit. However, 12 percent of hours annually credited to Tennessee lawyers are from out-of-state or national providers that do not report attendance or pay fees. In these cases, the commission proposes that lawyers pay the fee when they report their attendance, rather than wait until the end of the year as is now the case. The commission reports this should help some 650 lawyers who last year paid a late fee of $100 for not paying non-regular credit fees on time.

Read the commission's proposal

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.

JOHN CARTLIDGE v. STATE OF TENNESSEE

Court: TWCA

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, Assistant Attorney General, for the appellant, State of Tennessee.

Art D. Wells, Jackson, Tennessee, for the appellee, John Cartlidge.

Judge: WALLACE

Employee suffered a compensable back injury in the course of his employment for the State of Tennessee. The Claims Commission found that he was permanently and totally disabled. On appeal, the State contends that the evidence preponderates against the finding of permanent total disability. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/cartlidgej_082710.pdf

RICHARD P. ALEXANDER, JR., Individually and as Personal Representative of the ESTATE OF JUNE ALEXANDER, Deceased, and as Parent and Guardian of R.C.A, a Minor, ET AL. v. ANTONIO ZAMPERLA, S.p.A., ET AL.

Court: TCA

Attorneys:

R. Price Nimmo and Niles Nimmo, Nashville, Tennessee, for the appellants, Richard P. Alexander, Jr., Individually and as Personal Representative of the Estate of June Alexander, Deceased, and as Parent and Guardian of R.C.A., a Minor, and Regina Phillips, Individually, and Gail Young and Judy Sprinkles.

Robert R. Davies, Knoxville, Tennessee, and Thomas M. Sheehan, Cary, Illinois, for the appellees, Antonio Zamperla, S.p.A. and Zamperla, Inc.

Judge: MCCLARTY

Richard P. Alexander, Regina Phillips, Gail Young and Judy Sprinkles ("Plaintiffs") filed this products liability suit against Antonio Zamperla, S.p.A. and Zamperla, Inc. ("Defendants"), as a result of June Alexander's death that occurred while riding an amusement park ride manufactured by Defendants. Defendants moved for summary judgment. After a hearing, the trial court entered an order granting Defendants summary judgment, finding the act of a third party constituted both a superseding cause of the death and an alteration of the product which relieved Defendants of liability. Plaintiffs appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2010/alexanderr_082710.pdf

IN RE: APRIL P-C, JENNIFER P-C, AND KENNETH P-C

Court: TCA

Attorneys:

Thomas H. Castelli, Murfreesboro, Tennessee, for the appellant, Ray C.

Robert E. Cooper, Jr., Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General; and Susan H. Hubbard, Murfreesboro, Tennessee, for the appellee, the Tennessee Department of Children's Services.

Judge: DINKINS

Father appeals the termination of his parental rights to three children, asserting that the findings of the juvenile court that he had abandoned his children by failure to support and that the conditions which led to the children's removal persisted were not supported by clear and convincing evidence. Father also asserts that the court erred in finding that the termination of his parental rights was in the best interests of his children. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2010/aprilp-c_082710.pdf

E & J CONSTRUCTION COMPANY v. LIBERTY BUILDING SYSTEMS, INC.

Court: TCA

Attorneys:

Thomas M. Leveille, Knoxville, Tennessee, for the Appellant, E & J Construction Company.

James G. O'Kane, Knoxville, Tennessee, for the Appellee, Liberty Building Systems, Inc.

Judge: SWINEY

E & J Construction Company ("Plaintiff") purchased a metal building from Liberty Building Systems, Inc. ("Defendant"). The metal building was purchased by Plaintiff for one of its customers, Camel Manufacturing Company ("Camel"). Plaintiff constructed the metal building for Camel and connected it to an existing building. Almost from the outset, there was a problem with leaking. Plaintiff sued Defendant raising various claims including, among others, breach of contract. After the Trial Court granted Defendant's motion for partial summary judgment, the case proceeded to trial on the few remaining claims. At the conclusion of Plaintiff's proof, the Trial Court granted Defendant's motion for directed verdict. Plaintiff appeals. We reverse the grant of a directed verdict on Plaintiff's breach of contract claim and remand for further proceedings. The judgment of the Trial Court otherwise is affirmed.

http://www.tba2.org/tba_files/TCA/2010/ejconstruction_082710.pdf

SHIRLEY J. ELLIOTT V. LIFE OF THE SOUTH INSURANCE COMPANY, INC.
Memorandum Opinion

Court: TCA

Attorneys:

M. Josiah Hoover, III, Knoxville, Tennessee, for the appellant, Shirley J. Elliott.

Christopher D. Heagerty, Knoxville, Tennessee, for the appellee, Life of the South Insurance Company.

Judge: PER CURIAM

The defendants in this matter have filed a motion to dismiss the appeal, alleging that the notice of appeal was not timely filed. The attachments to the motion support the allegation of the defendants that the only notice of appeal received by the trial court clerk was a facsimile filed notice of appeal. As such is insufficient to confer subject matter jurisdiction on this court, the appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2010/elliots_082710.pdf

JEAN HENSLEY v. ROBERT CERZA ET AL.
CORRECTION on page 1 of the majority opinion amends the judges' information to reflect that Judge Frank Clement filed a separate concurring opinion

Court: TCA

Attorneys:

Stephen C. Knight and Nader Baydoun, Nashville, Tennessee, for the appellant, Jean Hensley.

Heidi Anne Barcus, Knoxville, Tennessee, and Donald W. Darby, Louisville, Kentucky, for the appellees, Robert Cerza, M.D. and Cardiac Anesthesia Services, PLLC.

Judge: BENNETT

A jury returned a verdict in favor of the defendants in this medical malpractice action. On appeal, the plaintiff assigns error to various decisions made by the trial court concerning the admission of evidence and arguments and to the trial court's grant of summary judgment on the plaintiff's claim of negligent retention. While the trial court erred in several respects, we consider the errors to be harmless and affirm the judgment based on the jury verdict.

http://www.tba2.org/tba_files/TCA/2010/hensley_CORR_082710.pdf

CLEMENT concurring
http://www.tba2.org/tba_files/TCA/2010/hensley_CON_082710.pdf

SANDI D. JACKSON ET AL. v. CVS CORPORATION ET AL.

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Sandi Jackson, individually and as next friend of Keely Jackson.

Barry L. Howard, Nashville, Tennessee, for the appellees, CVS Corporation and CVS Pharmacy #129, Inc., and John Does 1-3.

Judge: BENNETT

Plaintiff, individually and as the guardian of her minor child, appeals the trial court's grant of summary judgment to the defendants on her claims for negligent infliction of emotional distress. Plaintiff claims that she and her child were harmed by the defendants' disclosure of their private health information. We affirm the trial court's grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2010/jacksons_082710.pdf

SHARON M. KEISLING v. DANIEL KERRY KEISLING, ET AL.

Court: TCA

Attorneys:

Sharon M. Keisling, Mount Juliet, Tennessee, Pro Se.

Gloria Jean Evins, Lebanon, Tennessee, Guardian Ad Litem, Pro Se.

Judge: COTTRELL

This matter was remanded to the trial court for the sole purpose of determining the amount of attorneys' fees to be awarded for a frivolous appeal. Appellant challenges only the award itself and not the amount decided by the trial court. The party awarded the fees argued that the trial court erred in the amount awarded. Finding no error, the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2010/keislings_082710.pdf

STATE OF TENNESSEE IN HAC PARTE KNOX COUNTY DISTRICT ATTORNEY GENERAL RANDALL E. NICHOLS ON RELATIONSHIP OF BRADLEY J. MAYES, ET AL. V. JOHN E. OWINGS, ET AL.
Memorandum Opinion

Court: TCA

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, for the appellant, Bradley J. Mayes.

John A. Lucas, Knoxville, Tennessee, for the appellee, John E. Owings.

Darryl G. Lowe, Knoxville, Tennessee, for the appellees, Dean B. Farmer and Hodges, Doughty and Carson, PLLC.

Judge: PER CURIAM

The defendants in this matter have filed a motion to dismiss the appeal, alleging that the Notice of Appeal was not timely filed. The attachments to the motion support the allegation. Therefore, this court does not have subject matter jurisdiction and the appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2010/mayesb_082710.pdf

STATE OF TENNESSEE v. TERRY LYNN CRAFT

Court: TCCA

Attorneys:

Paul E. Meyers, Assistant Public Defender, Jackson, Tennessee, for the appellant, Terry Lynn Craft.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Jerry Woodall, District Attorney General; and Anna Cash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Terry Lynn Craft, was convicted of two counts of vehicular homicide by intoxication, a Class B felony. See Tenn. Code Ann. section 39-13-213(b)(2). In this direct appeal, he contends that: (1) the State presented evidence insufficient to convict him; and (2) the trial court violated the hearsay rule in admitting a recording of a 911 call. After our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/craftt_082710.pdf

STATE OF TENNESSEE v. RON "COTTON" SEALS

Court: TCCA

Attorneys:

James F. Taylor, Rogersville, Tennessee, for the appellant, Ron "Cotton" Seals.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Douglas Godbee and Alex Pearson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Hawkins County Criminal Court jury convicted the defendant, Ron "Cotton" Seals, of one count of possession with intent to deliver .5 grams or more of cocaine; one count of possession with intent to deliver dihydrocodeinone, a schedule II controlled substance; one count of possession with intent to deliver alprazolam, a schedule IV controlled substance; one count of possession with intent to deliver one-half ounce or more of marijuana; one count of maintaining a dwelling where controlled substances are used, kept, or sold; and one count of possession of drug paraphernalia. The trial court imposed a total effective sentence of 20 year' incarceration. In this appeal, the defendant contends that the evidence was insufficient to support his convictions and that his sentence is excessive. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/sealsr_082710.pdf

STATE OF TENNESSEE v. JOSEPH SHAW, JR.

Court: TCCA

Attorneys:

Magan N. White, Jackson, Tennessee (on appeal); and Paul Edward Meyers, Assistant Public Defender (at trial), for the appellant, Joseph Shaw, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Joseph Shaw, Jr., was convicted by a Madison County jury of one count of rape, a Class B felony, and one count of sexual battery, a Class E felony. The trial court merged the sexual battery conviction into the rape conviction and sentenced the defendant as a Range I offender to eleven years at 100% in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence and argues that the trial court erred by admitting a prior consistent statement of the victim without issuing a limiting instruction and by imposing an excessive sentence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/shawj_082710.pdf

Seller-financing under the Tennessee Residential Lending, Brokerage and Servicing Act

TN Attorney General Opinions

Date: 2010-08-27

Opinion Number: 10-93

http://www.tba2.org/tba_files/AG/2010/ag_10_93.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
Practice Management
Career Opportunities
Court of the Judiciary
TBA Member Services

Legal News

Get to know your next chief justice: Connie Clark

Tennessee Supreme Court Justice Connie Clark will be sworn in next Wednesday as the chief justice -- the second woman to hold that post. The first woman to hold it -- Janice Holder -- will be swearing her in. In this profile, Clark talks about family, her early career as a school teacher, and living in Franklin, two blocks from where she was born.

It's in the Tennessean

Bar foundation announces 2011 grant process

The Tennessee Bar Foundation, through the Interest On Lawyers' Trust Accounts (IOLTA) program, makes grants to organizations that provide direct civil legal services to the indigent or seek to improve the administration of justice. Applications for grants to be paid during 2011 are now available. Completed applications must be returned to the foundation by mail and be postmarked no later than Sept. 10. For more information, contact the foundation at info@tnbarfoundation.org or call (615) 242-1531 or (800) 634-2516.

Learn more or download an application

TJC lawyer recognized for child advocacy

Tennessee Voices for Children (TVC) has honored Nashville lawyer Michele Johnson with its Lifetime Advocate Award. Johnson was recognized for her work with the Tennessee Justice Center and as an active member of the TBC Board of Directors. The award is given annually to an individual who spends his or her career advocating for the best interest of children and families, and supporting family-driven, youth-guided systems of care.

Deadline for TALS award nominations extended

The deadline for nominations for two Tennessee Alliance for Legal Services' (TALS) awards has been extended to 5 p.m., Central time, on Wednesday, Sept. 1. The awards are the B. Riney Green Award, which recognizes those who strengthen access to justice in Tennessee and effectively promote inter-program cooperation, and the New Advocate of the Year Award, which recognizes energetic, effective advocacy by an individual in the first four years of his or her career. Submit nominations to Erik Cole at ecole@tals.org or by fax to (615) 627-0964.

Learn more on the TALS website

Editorial: Bringing collections in-house a good idea

The News Sentinel praises Trustee-elect John J. Duncan III for bringing collections of delinquent taxes in-house, saying it was "long overdue and will save the county somewhere around $250,000 a year and $1 million over Duncan's four-year term." The editorial says the change "improves accountability and transparency in the office, which has provided its share of questionable financial dealings over the past few years." Knoxville lawyer Chad Tindell will handle the job, after the contract of longtime delinquent tax attorney Albert Harb was not renewed.

Read the editorial

Former medical examiner gets no jail time

Former Davidson County and state medical examiner Bruce Levy was placed on pretrial diversion Thursday, with the possibility that the charges will be dismissed and the record expunged if he stays out of trouble for three years. He was charged in Mississippi of possessing more than 30 grams of marijuana in March. Levy still holds his medical license in Tennessee. The board that handles disciplinary action against doctors has not issued a notice of charges, a state Health Department spokeswoman said.

The Tennessean reports

Sevier clerk takes leave; audit underway

Sevier County Clerk Joe Keener is taking an unpaid leave of absence while an investigation into the finances of his office takes place. During the county's regular annual financial audit, inspectors apparently found something in the books that raised red flags. They subsequently called in four investigators, in addition to the two who were already here, and they have been checking records in the department.