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TODAY'S OPINIONS
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IN THE MATTER OF: AMBER M. S. AND STEFANIE L. S.

Court: TCA

Attorneys:

Andrea Hagan, Lebanon, Tennessee, for the appellant, Mariah M. S.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Judge: CLEMENT

Mother appeals the termination of her parental rights to her two oldest children. The children were first removed in 1998. Mother briefly regained custody in 2001 only to have the children removed again when Mother's aunt successfully petitioned for custody. Mother moved to Arizona in 2001 and has had very little contact with the children since that time. When the aunt became unable to care for the children, they were placed in the custody of DCS and have resided with foster families ever since. DCS filed a petition to terminate the parental rights of both parents and Father voluntarily surrendered his parental rights on March 9, 2009. Following a trial in February 2010, the trial court granted DCS's petition on the grounds of abandonment by willful failure to visit, abandonment by willful failure to support, and substantial noncompliance with the permanency plans, and upon the finding that termination was in the best interests of the children. We affirm the termination of Mother's parental rights.

http://www.tba2.org/tba_files/TCA/2010/amberms_120110.pdf


JOHN GALLON, ET AL. v. HARRY ELBERSON, ET AL.

Court: TCA

Attorneys:

Timothy T. Ishii, Nashville, Tennessee, for the appellants, Advantage Home Inspection and Environmental Services, Inc., David Vaudrey, and Cameron Stokes.

Louis White Oliver, III, Hendersonville, Tennessee, for the appellees, John Gallon and Wife, Sophia Gallon.

Judge: COTTRELL

The plaintiff home buyers filed suit against two home inspectors and a home inspection company after discovering defects in the home that were not mentioned in the inspection report. The court found that the defendants were negligent and granted the plaintiffs a judgment for damages against the home inspectors and the inspection company, individually, jointly and severally. The defendants argue on appeal that the judgment was not supported by the evidence and that in holding them individually liable, the court pierced the corporate veil without the proof of the extraordinary circumstances normally required for a court to do so. We affirm the finding of liability and the judgment for damages, but we vacate the judgment as to one of the individual defendants, because the evidence preponderated against the trial court's finding that he was in partnership with the other individual defendant.

http://www.tba2.org/tba_files/TCA/2010/gallonj_120110.pdf


RICHARD L. HOLLOW, TRUSTEE, et al., v. MICHAEL L. INGRAM, et al.
CORRECTION changes the last name of attorney E. Jerome Melson from Milson to Melson


Court: TCA

Attorneys:

David E. Fielder, P. Edward Pratt and Melissa Loney Stevens, Knoxville, Tennessee, for appellants Bryan E. Testerman and William Ted Phillips, Jr., and Lewis S. Howard, Jr., Knoxville, Tennessee, for the appellant, Scott W. Davis.

Joseph J. Levitt, Jr., and Jason T. Murphy, Knoxville, Tennessee, for the appellee, Patrick J. Schaad, Trustee, and E. Jerome Melson, Knoxville, Tennessee, for the appellees, Richard L. Hollow, Trustee, Kent W. Ingram, David L. Ingram, and Albert J. Ingram.

Judge: FRANKS

The parties, owners of a tract of land, ultimately agreed to the sale of the property by a Special Master appointed by the Court. The sale was held and the Master ultimately reported the purchase and asked that the sale be confirmed. Before the Court acted on the Master's Report, the plaintiff moved for a dismissal pursuant to Tenn. R. Civ. P. Rule 41, which the Trial Court granted and dismissed the case. On appeal, we hold that the Trial Court was required to act on the Master's Report before entertaining any motion to dismiss the case, and reinstate the action and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/hollowr_COR_120110.pdf


IN RE JACK H. L. B-K.

Court: TCA

Attorneys:

Virginia Lee Story, Franklin, Tennessee, for the appellant, Timothy A. B.

Donna L. Green and Emily K. Moore, Brentwood, Tennessee, for the appellee, Trudi K.

Judge: CLEMENT

Father appeals the trial court's decision to allow Mother to relocate to California with the parties' minor child. Mother and Father lived separately in California when their only child was born. Mother moved with the minor child to Tennessee in April 2008; Father also moved to Tennessee to be near the child. A year later, Father filed a Petition to Register a Foreign Decree and Modify and Enforce Visitation in the Williamson County Juvenile Court. In June 2009, Mother notified Father she intended to return to California with their child and sought court permission to do so. When the juvenile court referee denied the relocation, Mother sought a de novo hearing before the juvenile court judge. Following a full hearing, the juvenile court judge granted Mother's request to relocate finding that Father, who did not have substantially equal parenting time, failed to carry his burden under the parental relocation statute, Tenn. Code Ann. section 36-6-108(d)(1). We affirm the trial court's findings that Father did not prove that Mother's move is not for a reasonable purpose, poses a specific or serious threat of harm to the child, or is vindictive. We also affirm the trial court's decision denying Mother's request for attorney's fees and deny her request for attorney's fees on appeal.

http://www.tba2.org/tba_files/TCA/2010/jackhl_120110.pdf


JESSICA HOOPER McQUADE (now BURNETT) v. MICHAEL VINCENT McQUADE

Court: TCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the Defendant/Appellant, Jessica Hopper McQuade (Burnett)

John T. Maher, Clarksville, Tennessee, for Plaintiff/Appellee, Michael Vincent McQuade

Judge: KIRBY

This is a divorce appeal involving subject matter jurisdiction. The parties, the parents of one minor child, resided in Tennessee when divorce proceedings were initiated in the Tennessee trial court. The trial court entered a pendente lite order designating the father as the child's primary residential parent and setting the mother's child support obligation. Before the trial, a special master made a recommendation on the mother's child support obligation. In May 2008, after a trial, the Tennessee trial court entered an order declaring the parties divorced and designating the father as primary residential parent, but did not rule on child support. By the time of the divorce order, both parties had moved to Kentucky. Almost immediately afterward, the mother filed an objection regarding the amount of her child support obligation, and the Tennessee trial court entered an order temporarily modifying her child support. In February 2009, the mother filed a petition to modify the designation of primary residential parent. The Tennessee trial court conducted a hearing on the mother's objection to the amount of child support and her petition to modify the designation of primary residential parent. It declined to change the designation of primary residential parent, and also held that the mother owed no back child support arrearage. Both parties appeal. We hold that, under the Uniform Child Custody Jurisdiction and Enforcement Act, the Tennessee trial court did not have subject matter jurisdiction to adjudicate the mother's petition to change the designation of primary residential parent. We also hold that, under the Uniform Interstate Family Support Act, the trial court did not have subject matter jurisdiction to adjudicate the mother's request for modification of child support. Therefore, we vacate the trial court's orders modifying the parenting plan and modifying child support.

http://www.tba2.org/tba_files/TCA/2010/mcquadej_120110.pdf


ROKISHA LASHIA ALDERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rokisha Lashia Alderson, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Rokisha Lashia Alderson, appeals the Davidson County Criminal Court's summary dismissal of her petition for post-conviction relief. The post-conviction court found that the petition was barred by the statute of limitations. On appeal, she argues that the statute of limitations was tolled because she was misled by prison officials about her minority status. After our review of the record, we reverse the judgment of the post-conviction court summarily dismissing the petition and remand for an evidentiary hearing on the timeliness of the petition.

http://www.tba2.org/tba_files/TCCA/2010/aldersonr_120110.pdf


STATE OF TENNESSEE v. JERRY LEN ANGUS

Court: TCCA

Attorneys:

John S. Colley, III, Columbia, Tennessee, for the appellant, Jerry Len Angus.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; J.W. Hupp, Assistant District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Jerry Len Angus, was indicted in a seventeen- count indictment by the Davidson County Grand Jury for three counts of official misconduct in violation of Tenn. Code Ann. section 39-16-402, nine counts of sexual battery by an authority figure in violation of Tenn. Code Ann. section 39-13-527, four counts of statutory rape in violation of Tenn. Code Ann. section 39-13-506, and one count of rape in violation of Tenn. Code Ann. section 39-13-503. Defendant was convicted by a jury of three counts of official misconduct, one count of attempt to commit sexual battery, a lesser-included offense of the charged offense of sexual battery, one count of sexual battery, and two counts of attempt to commit statutory rape, a lesser-included offense of statutory rape. The jury did not consider eight counts of the indictment as the trial court granted judgments of acquittal at the close of the State's proof, and Defendant was acquitted by the jury of the remaining two counts. Defendant filed a motion for new trial, and following a hearing, the trial court vacated his conviction for official misconduct in Count 1 of the indictment for insufficiency of the evidence. The court granted a mistrial as to Defendant's conviction for attempted sexual battery in Count 4, his conviction for official misconduct in Count 8, and his conviction for sexual battery in Count 11. In an amended order, the trial court also vacated Defendant's conviction for official misconduct in Count 3 of the indictment. On appeal, Defendant asserts that the trial court's polling of the jury was improper and that he is entitled to a new trial. Finding no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/angusj_120110.pdf


STATE OF TENNESSEE V. MARY CATHLEENA BLINDT

Court: TCCA

Attorneys:

Thomas G. Kirkpatrick, Manchester, Tennessee, for the Appellant, Mary Cathleena Blindt.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Bedford County grand jury indicted the Defendant, Mary Cathleena Blindt, for three counts of prescription fraud, two counts of forgery, and one count each of theft, introduction of contraband into a penal facility, and failure to appear. Following guilty pleas and a sentencing hearing, the Defendant received an effective sentence of ten years in the Tennessee Department of Correction. On appeal, the Defendant argues that the trial court erred when it denied alternative sentencing, ordered consecutive sentencing, and imposed the maximum sentence within the range for three of the Defendant's convictions. The Defendant also correctly notes an error on the judgment forms. After a thorough review of the record and the applicable law, we affirm the trial court's judgments in part and remand the case for correction of an error on one of the judgment forms.

http://www.tba2.org/tba_files/TCCA/2010/blindtm_120110.pdf


STATE OF TENNESSEE v. LINDA F. CATHEY

Court: TCCA

Attorneys:

Christopher L. Young, Assistant District Public Defender, for the appellant, Linda F. Cathey.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Humphreys County Circuit Court jury convicted the defendant, Linda F. Cathey, of one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony. See T.C.A. sections 39-14-104, -105(4) (2006). The trial court sentenced the defendant to six years' probation and ordered restitution to the victim in the amount of $27,000. On appeal, the defendant argues that the trial court erred by denying her request for judicial diversion, by imposing the maximum sentence of six years, and by ordering restitution without properly considering her ability to pay. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/catheyl_120110.pdf


MATTHEW R. HAKODA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Matthew R. Hakoda.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Amy H. Eisenbeck, Assistant District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Matthew R. Hakoda, appeals the post-conviction court's dismissal of his petition for post-conviction relief in which he alleged the ineffective assistance of counsel at trial and on appeal. After a thorough review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/hakodam_120110.pdf


STATE OF TENNESSEE v. DUANTEZ CORNELL JENKINS

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Hugh Ammerman, Assistant District Attorney General, for the appellant, the State of Tennessee.

Mark E. Chapman, Nashville, Tennessee, for appellee, Duantez Cornell Jenkins.

Judge: WOODALL

Defendant, Duantez Cornell Jenkins, was indicted for possession, within a school zone, and with intent to sell or deliver twenty-six (26) grams or more of a substance containing cocaine. In the same indictment, Robert Lee Archibald, Jr. (Archibald), was indicted for the same offense, in addition to two other charges. All charges were the result of evidence seized pursuant to a search warrant. Defendant filed a motion to suppress all the evidence seized which forms the basis of the charges against him. The trial court entered an order granting the motion and dismissed the charges against Defendant. The State appeals. Based upon the record and briefs of the parties, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/jenkinsd_120110.pdf


STATE OF TENNESSEE V. RICKY LANE MCKNIGHT

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Ricky Lane McKnight.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Marshall County grand jury indicted the Defendant, Ricky Lane McKnight, for violation of the Habitual Motor Offender Act and driving on a revoked license. The trial court ordered the Defendant to serve an effective sentence of three and one-half years. On appeal, the Defendant argues that the trial court's sentence is excessive. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2010/mcknightr_120110.pdf


CHARLES MONTAGUE v. CHERRY LINDAMOOD, WARDEN

Court: TCCA

Attorneys:

Charles Montague, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Charles Montague, appeals from the dismissal of his petition for a writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2010/montaguec_120110.pdf


ROBERT J. SKILLEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert J. Skillen, Clifton, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Robert J. Skillen, appeals from the trial court's dismissal of his petition for error coram nobis relief. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/skillenr_120110.pdf


TODAY'S NEWS

Legal News
Passages
Congressional News
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Courts hear arguments on early release for two
One of the last two incarcerated Tennessee Waltz defendants could be released as soon as this month, while the other is pressing a bid to be out in 2012. The Tennessean reports that 61-year-old Roscoe Dixon, could go to a halfway house as early as this month if he gets time off his sentence for good behavior. Meanwhile, John Ford could be free in 2012 if his attorneys are successful in getting several charges dropped. The Sixth Circuit Court of Appeals will hear oral arguments in that case on Jan. 18. The move comes after a U.S. Supreme Court decision raised the bar for when someone can be convicted of honest services fraud charges.
The Commercial Appeal reports
Tribe steps down from access to justice post
Laurence Tribe, a Harvard Law professor who has served as the Justice Department's senior counselor for access to justice since early this year, will leave his post Dec. 3. Tribe is returning to Harvard, citing health issues. He was diagnosed with a benign brain tumor in 2008 but recently began experiencing a recurrence of facial seizures and other symptoms. In a New York Times article, Tribe said his time with the Justice Department has been "extremely productive" and he feels good about what he has accomplished.
Read more from the Times
DOJ targets online counterfeit goods
On Monday, one of the year's busiest Internet shopping days, federal law enforcement announced a crackdown that blocked 82 websites from peddling counterfeit merchandise and illegal copies of music and software. The counterfeit goods included sports equipment, shoes, handbags, athletic apparel and sunglasses. Copyrighted materials included DVDs, music and software. Read about this and other recent attempts to crack down on trademark and copyright violations from WATE News Knoxville.
The station's site has this AP story
Judge says individual insurance mandate OK
U.S. District Judge Norman K. Moon in Lynchburg, Va., yesterday dismissed a lawsuit challenging the Obama Administration's new federal health care law, declaring that a provision requiring most individuals to obtain insurance is constitutional. The ruling is the second court decision upholding the law, following one in Michigan in October. Other suits are pending in Florida and in the federal court in Richmond, Va.
News Channel 9 has the AP story
Miller & Martin enrolls in pro bono payroll program
The Chattanooga office of Miller & Martin PLLC is the first firm in East Tennessee to enroll in a payroll deduction program that supports Legal Aid of East Tennessee (LAET). Under the system, which was the idea of associate Kevin Hudson, attorneys may select regular or one-time payroll deductions to fund pro bono services in the Chattanooga area. The firm says it hopes the move will challenge others to participate.
Read the firm's press release
UT hosts environmental law conference
From Nov. 19-21, more than 160 lawyers, environmental activists and scientists attended the inaugural Appalachian Public Interest Environmental Law Conference at the University of Tennessee College of Law. Workshops were presented on the Endangered Species Act, Clean Water Act, precautionary principle, ecological economics and mountaintop removal. The conference was organized by a steering committee that included professor Dean Rivkin and members of the student Environmental Law Organization. Rivkin also co-presented a workshop with John Rosenberg, director emeritus of the Appalachian Research and Defense Fund of Kentucky and founder of the Appalachian Citizens Law Center.

Passages
Services set for former solicitor general
A memorial service for former Tennessee Solicitor General Michael Moore will be held Dec. 12 at 2 p.m. at the Scarritt-Bennett Center's Wightman Chapel in Nashville (1008 19th Ave. South). Moore, who served as solicitor general for 17 years, died Nov. 14 at the age of 60. In lieu of flowers, the family requests that donations be made to the Vanderbilt-Ingram Cancer Center, c/o Gifts Processing, PMB 407727, 2301 Vanderbilt Place, Nashville 37240; or to the Legal Aid Society of Middle Tennessee and the Cumberlands, 300 Deaderick Street, Nashville 37201.
Read more about Moore's life
Congressional News
Senate excludes lawyers from FTC's red flags rule
The U.S. Senate yesterday voted to exempt lawyers from the Federal Trade Commission's proposed "red flags rule," which seeks to curb identity theft through prevention and detection programs. The legislation defines "creditor" to exclude lawyers, doctors, dentists, accountants and other service providers that do not receive payment in full from clients at the time services are provided. The House of Representatives is expected to take up a similar measure soon.
Read more from the ABA Journal
Disciplinary Actions
Nashville lawyer suspended
On Nov. 17, the Tennessee Supreme Court temporarily suspended the law license of Nashville lawyer Bradley H. Frakes for failure to comply with his Tennessee Lawyers Assistance Program agreement. The suspension remains in effect until dissolution or modification by the Supreme Court though Frakes may for good cause request dissolution or modification.
Download the BPR's notice
Upcoming
NBA Annual Meeting set for Dec. 8
The Nashville Bar Association's (NBA) Annual Meeting & Banquet will take place Dec. 8 at the Wildhorse Saloon in downtown Nashville. The evening kicks off with a reception at 5:30 p.m. followed by a dinner and program at 7 p.m. At the event, NBA President Jonathan Cole will pass the gavel to President-Elect Bob Mendes, officers will be introduced and awards will be presented.
Learn more or register here
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First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members.
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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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