Hot Topics in Real Estate coming to Nashville

The top educational program for professionals who represent purchasers, sellers and lenders in real estate transactions returns to Nashville on Nov. 11. Hot Topics in Real Estate -- jointly sponsored by the Tennessee Bar Association and the Tennessee Land Title Association -- brings you legal experts from across the state. They will update your knowledge on topics that include bankruptcy, elder law issues and Tennessee Medicaid benefits as they affect a property transfer, new legislation, recent court decisions, and other topics of interest to real estate professionals.

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TODAY'S OPINIONS
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SHELBY COUNTY HEALTH CARE CORPORATION d/b/a REGIONAL MEDICAL CENTER v. NATIONWIDE MUTUAL INSURANCE COMPANY
CORRECTION: On page 2, amici curiae were added changing the pagination


Court: TSC

Attorneys:

Parks Tedford Chastain and Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Nationwide Mutual Insurance Company.

Curtis H. Goetsch and Gary Carlton McCullough, Germantown, Tennessee, for the appellee, Shelby County Healthcare d/b/a Regional Medical Center.

Benjamin K. Lauderback, Hanson R. Tipton, and Sarah Larkin, Knoxville, Tennessee, for the amicus curiae, Tennessee Municipal League Risk Management Pool.

Melanie M. Stewart and Matthew S. Russell, Germantown, Tennessee, for the amicus curiae, Tennessee Defense Lawyers Association.

Edward Knight Lancaster and Julie Pedigo Bowling, Columbia, Tennessee, for the amicus curiae, Tennessee Farmers Mutual Insurance Company.

Robyn E. Smith and William Beesley Hubbard, Nashville, Tennessee, for the amicus curiae, Tennessee Hospital Association.

Judge: WADE

Kevin L. Holt, injured in an automobile accident in Arkansas, was first taken by ambulance to an Arkansas hospital and then transported to the Regional Medical Center in Memphis, where he incurred $33,823.02 in expenses. Shelby County Health Care Corporation, the operator of the Regional Medical Center, filed affidavits for a lien as prescribed by statute. Thereafter, Nationwide Mutual Insurance Company, which had medical coverage for Holt with limits of $5,000, paid $1,290 for ambulance services and $3,710 to the Arkansas hospital. Shelby County Health Care Corporation sued Nationwide for impairment of its lien, seeking as recovery the entire amount due for its medical services to Holt. The trial court awarded $5,000 in damages. The Court of Appeals revised the amount of the judgment to $33,823.02. Because we have determined that liens under the Hospital Lien Act do not attach to medical payment benefits paid pursuant to an insurance policy, the judgment of the Court of Appeals is reversed and the cause is dismissed.

http://www.tba2.org/tba_files/TSC/2010/shelbycountyhccCORR_102810.pdf


LOU ELLA SHERRILL ET AL. v. BOB T. SOUDER, M.D. ET AL.

Court: TSC

Attorneys:

Edmund J. Schmidt, III and David Randolph Smith, Nashville, Tennessee, for the appellant, Barbara Pigg.

Jeffrey L. Lay, Dyersburg, Tennessee, for the appellees, Bob T. Souder, M.D. and TransSouth Health Care Center, P.C.

Judge: WADE

This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed. The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2010/sherrilll_102810.pdf


84 LUMBER COMPANY v. R. BRYAN SMITH, ET AL.
With Concurring and Dissenting Opinion


Court: TCA

Attorneys:

Rick J. Bearfield, Johnson City, Tennessee, for the appellant, R. Bryan Smith.

John M. Neal, Knoxville, Tennessee, for the appellee, 84 Lumber Company.

Judge: SWINEY

84 Lumber Company ("84 Lumber") sued R. Bryan Smith ("Smith") and Allstates Building Systems, LLC ("Allstates") for a balance owed on an open account. Both sides filed motions for summary judgment. The Circuit Court granted 84 Lumber summary judgment, and entered a judgment against Smith and Allstates in the amount of $27,611.31 plus attorney's fees and costs in the amount of $6,500.00. Smith appeals to this Court. We find that Smith did not sign the credit application in his personal capacity and, therefore, did not guarantee Allstates' debt. We reverse the grant of summary judgment against Smith, and grant summary judgment to Smith. We affirm the grant of summary judgment against Allstates.

http://www.tba2.org/tba_files/TCA/2010/84lumber_102810.pdf

SUSANO concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/84lumber_CON_102810.pdf


ROBERT G. CRABTREE, JR., ET AL. v. JENNIFER L. LUND
With Concurring Opinion


Court: TCA

Attorneys:

Thomas E. Cowan, Jr. (trial counsel) and J. Collins Landstreet, II (appellate counsel), Elizabethton, Tennessee, for the appellants, Robert G. Crabtree, Jr. and Bonnie K. Hakey.

J. Eddie Lauderback, Johnson City, Tennessee, for the appellee, Jennifer L. Lund.

Judge: SUSANO

Robert G. Crabtree, Jr., and Bonnie K. Hakey (collectively "the plaintiffs") filed suit against Jennifer L. Lund ("the defendant") seeking compensation for personal injuries and property damage arising out of a April 22, 2005, multiple-vehicle accident in Carter County. With her answer, the defendant coupled a motion to dismiss under Tenn. R. Civ. P. 12.02 "on the basis of insufficiency of process and insufficiency of service of process." Following a hearing, the trial court dismissed the plaintiffs' suit with prejudice finding "that the Plaintiffs have not provided to the Court any valid reason for the delay in obtaining prompt service of process upon the Defendant." Plaintiffs appeal. We (1) vacate the trial court's judgment dismissing the plaintiffs' complaint and (2) remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/crabtreer_102810.pdf

SWINEY concurring
http://www.tba2.org/tba_files/TCA/2010/crabtreer_CON_102810.pdf


JOHN P. KONVALINKA v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY

Court: TCA

Attorneys:

Fred H. Moore and Joseph R. White, Chattanooga, Tennessee, and Richard L. Shackelford and Lynn M. Adam, Atlanta, Georgia, for the appellant, Chattanooga-Hamilton County Hospital Authority.

John P. Konvalinka, Chattanooga, Tennessee, Pro Se.

Judge: SUSANO

This is the second time this case, filed by John P. Konvalinka ("the Petitioner") to force disclosure of public documents, has been before us. In the trial court's order that generated the first appeal, the court held that the records the Petitioner requested from Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") were exempt from disclosure under state law, and pretermitted the question of whether they were exempt from disclosure under federal law. On appeal, we held that the records were not protected from disclosure by state law and remanded for a determination of whether they were protected from disclosure by federal law. The Hospital attempted on remand to assert additional state law defenses to disclosure. The trial court held that the new state law defenses were outside the scope of the remand. It also held that federal law did not protect the documents at issue from disclosure. Accordingly, it ordered the Hospital to produce the documents. The Hospital appeals challenging both aspects of the trial court's judgment. We affirm.

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


SHIRLEY NICHOLSON v. LESTER HUBBARD REALTORS, ET AL.

Court: TCA

Attorneys:

Sam F. Cole, Jr., Memphis, Tennessee, for the appellant, Shirley Nicholson.

Kenneth M. Margolis, Memphis, Tennessee, for the appellees, Lester Hubbard Realtors, Regina H. Hubbard, Lester Hubbard and Kimberly Jackson.

Judge: HIGHERS

After Plaintiff appealed from general sessions to circuit court, the circuit court entered an order requiring her to file a formal complaint. The circuit court then granted the Defendants' motion to dismiss the complaint for failure to state a claim. We find no error in the trial court's decision to require Plaintiff to file a formal complaint, but we reverse its determination that the amended complaint failed to state a claim upon which relief could be granted.

http://www.tba2.org/tba_files/TCA/2010/nicholsons_102810.pdf


SHERRY A. RIDLEY v. JAMES G. NEELEY, ET AL.

Court: TCA

Attorneys:

Joe Timberlake, Signal Mountain, Tennessee, for the appellant, Sherry A. Ridley.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Lindsey O. Appiah, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Labor and Workforce Development.

Colby S. Morgan, Memphis, Tennessee, for the appellee, Federal Express Corporation.

Judge: SUSANO

After being discharged from her employment with Federal Express Corporation ("the Employer"), Sherry A. Ridley filed a claim for unemployment compensation. The Tennessee Department of Labor and Workforce Development ("the Department") initially approved her claim, and its ruling was affirmed by the Appeals Tribunal. Following an evidentiary hearing, the Appeals Tribunal reversed, concluding that Ridley was disqualified from receiving unemployment benefits because she was discharged for work-related misconduct. The Board of Review affirmed the denial of benefits. Ridley filed a petition for judicial review. The trial court affirmed the Board's decision. Ridley appeals to this Court and essentially contends that there is no evidence that she committed work-related misconduct. We conclude that there is substantial and material evidence to support the decision that Ridley is disqualified from receiving unemployment compensation benefits because of work-related misconduct. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2010/ridleys_102810.pdf


DANNY E. ROGERS v. STEVE PAYNE, ET AL.

Court: TCA

Attorneys:

Danny E. Rogers, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, David S. Sadlow, Assistant Attorney General, Nashville, Tennessee, for the appellees, Steve Payne, et al.

Judge: HIGHERS

This appeal involves an inmate's petition for writ of certiorari, which he filed after he was convicted by the prison disciplinary board of participating in security threat group activity. After reviewing the record, the trial court dismissed his petition. We affirm.

http://www.tba2.org/tba_files/TCA/2010/rogersd_102810.pdf


ARTHUR A. WINQUIST, et al., v. JAMES A. GOODWIN, et al.

Court: TCA

Attorneys:

Susie Lodico and Gary R. Patrick, Chattanooga, Tennessee, for the appellants, James A. Goodwin and Verna K. Goodwin.

Rebecca L. Hicks, Dayton, Tennessee, for the appellees, Arthur A. Winquist and Judith Winquist.

Judge: FRANKS

This case was precipitated when defendants blocked plaintiffs' use of an existing driveway. Plaintiffs brought this action for a declaratory judgment and following an evidentiary hearing, the Trial Court ruled that plaintiffs had a prescriptive easement to use the driveway and that defendants would be required to restore the driveway as well as the excavations damaging plaintiffs' lots. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2010/winquesta_102810.pdf


STATE OF TENNESSEE v. DOYLE BENTON

Court: TCCA

Attorneys:

D. Mitchell Bryant, Athens, Tennessee, for the appellant, Doyle Benton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Robert Steve Bebb, District Attorney General; and Cynthia LaCroy-Schemel and A. Wayne Carter, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Doyle Benton, pled guilty and was sentenced as a Range I, standard offender to three years' confinement for criminal conspiracy to sell schedule II cocaine in an amount less than 0.5 grams, a Class D felony; to five years' confinement for sale and delivery of schedule II cocaine in an amount less than 0.5 grams, a Class C felony; and to three years' confinement for sale and delivery of schedule III narcotics, a Class D felony; all to be served concurrently for an effective sentence of five years' confinement. On appeal, the Defendant contends that his sentences are excessive in length and that the trial court erred by denying his request for probation. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/bentond_102810.pdf


ALFRED EUGENE BRADLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ardena J. Garth and Richard Kenneth Mabee (on appeal) and Jonathan Turner (at trial), Chattanooga, Tennessee, for the appellant, Alfred Eugene Bradley.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox, III, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Alfred Eugene Bradley, filed a petition for post-conviction relief, raising numerous claims of ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition, finding that trial counsel was not ineffective, and the Petitioner timely appealed. We affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/bradleya_102810.pdf


STATE OF TENNESSEE v. MARK HINES

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; and Phyllis L. Aluko (on appeal) and Timothy J. Albers (at trial), Assistant Public Defenders, for the appellant, Mark Hines.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; William L. Gibbons, District Attorney General; and Hamilton Douglas Carriker and Kate Edmands, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Mark Hines, was found guilty by a Shelby County Criminal Court jury of criminal attempt to commit second degree murder. See T.C.A. sections 39-13-210(a)(1), 39-12-101(a)(2), -(3) (2006). He was sentenced as a Range I, standard offender to ten years' confinement in the Department of Correction. On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by permitting the State to introduce prejudicial demonstrative evidence to the jury, (3) the trial court erred by admitting testimonial hearsay into evidence, (4) the trial court erred by giving incorrect and incomplete jury instructions, and (5) he was improperly sentenced. We affirm the conviction, but we reverse the sentence and remand the case for resentencing.

http://www.tba2.org/tba_files/TCCA/2010/hinesm_102810.pdf


DEXTER F. JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dexter F. Johnson, Mountain City, Tennessee, pro se.

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

Judge: THOMAS

The Petitioner, Dexter F. Johnson, appeals from the post-conviction court's order denying his motion to reopen his petition for post-conviction relief. The State has filed a motion requesting that this court affirm the post-conviction court's order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, the State's motion is granted, and the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/johnsond_102810.pdf


TODAY'S NEWS

Legal News
Election 2010
Celebrate Pro Bono
Upcoming
Career Opportunities
Disciplinary Actions
TBA Member Services

Legal News
Memphis Bar Foundation awards seven grants
The Memphis Bar Foundation has awarded seven grants totaling $43,832 to charitable organizations -- the largest amount given in the foundation's history. Grant recipients include CASA of Memphis & Shelby County Inc., Community Legal Center, Exchange Club Family Center, Mediation and Restitution/Reconciliation Services, Memphis Area Legal Services, the Memphis Bar Association Diversity Committee and the National Civil Rights Museum.
The Memphis Daily News has more
New Hamilton County commissioners named
Hamilton County Commissioners today approved four judicial magistrates -- Larry Ables, Pete Johnson, Yolanda Mitchell and Randall Russell -- to oversee bond hearings in the county. Ables was named chief magistrate. He and Mitchell are returning magistrates. Current Magistrate Robert Davis reapplied but was not selected. On Oct. 6, commissioners interviewed 11 applicants for the four seats.
The Times Free Press reports
Divorce Inc. opens Collierville office
Saying an increasing amount of its business is coming from West Tennessee, the Jackson family law firm Divorce Inc. has expanded its reach with a new office in Collierville. The firm has operated in Jackson since 2004 and currently has three attorneys and a legal assistant. The new office will have one full-time attorney and one full-time legal assistant. It offers a range of family law services, as well as some criminal defense, probate and elder law representation.
Read about the firm in the Memphis Daily News
Union City child support office closed
The Union City office of Child Support Services has closed but customers will continue to receive service from the Dresden office. Court cases will be heard in the same jurisdiction, the same call-in number will be utilized, and local appointments still will be made for court appearances or board hearings. Officials said consolidating offices in the state is not unusual since child support offices are based on judicial districts, which often serve several counties.
The Union City Messenger has the news
Memphis lawyers honored by local newspaper
Memphis Bar Association President Ricky E. Wilkins and Memphis City Attorney Herman Morris Jr. have been named Men of Excellence by the Tri-State Defender. They are among 50 African-American men recognized for motivating and inspiring others "through their vision and leadership, exceptional achievements, and participation in community service." An awards reception will be held Nov. 19 at 6 p.m. at The Holiday Inn University of Memphis for the honorees.
See a list of all recipients
Student 'access to justice' essay contest announced
After 40 years, the Roscoe Hogan Environmental Law Essay Contest has changed to the Hogan/Smoger Access to Justice Essay Contest. The new competition will focus on whether and how the courts can be used to obtain justice. The contest awards a $5,000 cash prize. The 2011 topic is "The Gulf Oil Spill: Who Are The Victims & How Do They Get Compensated?" Any student currently enrolled in an accredited American law school may submit an entry. A declaration of intent to enter the contest is due by Jan. 31, while the contest deadline is March 31, 2011.
Get more information
Election 2010
Killian appoints Election Day monitor
U.S. Attorney Bill Killian announced today that Assistant U.S. Attorney Helen Smith would lead efforts in his office in connection with the Department of Justice's nationwide Election Day Program. Smith will serve as election officer for the Eastern District of Tennessee and will be responsible for overseeing complaints of election fraud and voting rights abuses. She will be on duty so long as polls are open on voting day next Tuesday. Anyone concerned about illegal activity at the polls can contact Smith at (423) 823-5020 or (423) 329-3847.
Find out more about the election program at Chattanoogan.com
Celebrate Pro Bono
Two Knoxville events planned for Friday
Two events in Knoxville tomorrow will provide legal advice and public education to local residents. From 9 a.m. to 2 p.m., Legal Aid of East Tennessee will hold a legal advice clinic at the Family Justice Center. Also beginning at 9 a.m., the Knoxville Bar Association will hold a public education session at the O'Connor Senior Center. Topics will include wills, estate planning and legal protections for seniors. The event is being co-sponsored by Mercy Health Partners, the Knox County Office on Aging and the Knoxville Bar Foundation.
Get additional information and contact information for these events
Upcoming
CDC counsel to speak at UT
The University of Tennessee Health Law Society is sponsoring a lecture on campus Nov. 1 with Paula Kocher, Deputy Associate General Counsel for the Centers for Disease Control. Kocher will be speaking on the "The Role of a Legal Advisor at the Centers for Disease Control and Prevention." The event will take place at noon in Room 242 of the College of Law.

Employment law event marks anniversary of Title VII
The U.S. Attorney's Office for the Western District of Tennessee, the Ben F. Jones Chapter of the National Bar Association and the Memphis office of the U.S. Equal Employment Opportunity Commission will celebrate the 46th Anniversary of Title VII with a seminar on Nov. 5 from 1 to 5:30 p.m. at the National Civil Rights Museum. The event will feature sessions on using the federal courts to challenge and remedy workplace discrimination, ethical considerations for an employment law practice, and national trends in discrimination cases. A reception and optional museum tour will be held from 5:30 to 6:30 p.m. For more information or to register, call Brenda Webber at (901) 544-0122.

Career Opportunities
Legal Aid Society seeks two lawyers
The Legal Aid Society of Middle Tennessee and the Cumberlands has immediate openings for attorneys in its Columbia and Gallatin offices. Attorneys will handle a general civil practice, including domestic violence, housing, consumer, elder, health and benefits law. Spanish language skills and intent to reside in the office's service area are preferred. Applicants should submit a cover letter, resume, writing sample and three references to Legal Aid Society, Human Resources Administrator, P.O. Box 5209, Oak Ridge, TN 37831; by fax to (865) 483-8905; or by email to hr@las.org.
Learn more about the openings on JobLink
Disciplinary Actions
Memphis lawyer suspended
On Oct. 21, the Tennessee Supreme Court temporarily suspended the law license of Memphis attorney Alisa L. Simmons for failure to respond to a complaint of misconduct.
Learn more from the BPR's release
Johnson City lawyer suspended
The Tennessee Supreme Court suspended Johnson City attorney Alex Vanburen on Oct. 21 for 18 months. The court found that Vanburen violated disciplinary rules by failing to communicate with clients, failing to diligently represent clients, failing to properly withdraw from representation and failing to respond to requests from the Board of Professional Responsibility.
Download the BPR's notice
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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