Monday, January 31, 2011
Search our Database for Opinions and News Items
 
 
Federal judge strikes Health Care Reform Act

Finding that an unconstitutional provision requiring most individuals to purchase insurance is central to the entire Health Care Reform Act championed by the Obama administration, a federal judge in Florida struck down the entire statute today. He found that the insurance-purchase requirement violates the commerce clause of the U.S. Constitution. "Because the individual mandate is unconstitutional and not severable, the entire act must be declared void," writes U.S. District Judge Roger Vinson in his opinion. "This has been a difficult decision to reach, and I am aware that it will have indeterminable implications."

ABAJournal.com connects to you more from Bloomberg, Politico, The New York Times and The Wall Street Journal
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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
10 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
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.
SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist_013111.pdf
ROBERT E. DAVIS ET AL. v. CRAWFORD L. WILLIAMS ET AL.

Court: TCA

Attorneys:

Terry G. Vann, Lenoir City, Tennessee, for the appellants, Robert E. Davis and Angela K. Davis.

G. Scott Green, Knoxville, Tennessee, for the appellees, Crawford L. Williams and Betty Jo Williams.

Judge: SUSANO

Robert E. Davis and wife, Angela K. Davis ("the Buyers"), filed this action against Crawford L. Williams and wife, Betty Jo Williams ("the Sellers"), to enjoin them from taking possession of real property that the Sellers had sold the Buyers and re-acquired through foreclosure. The Buyers also sought to set aside the foreclosure sale. The Sellers moved to dismiss and then for summary judgment on the ground that a final judgment against the Buyers in an unlawful detainer action in general sessions court barred the present action under principles of res judicata and collateral estoppel. The trial court granted summary judgment in favor of the Sellers. The Buyers appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2011/davisr_013111.pdf
DEPOT PROPERTY, LLC AND TERRY C. COX v. TOWN OF ARLINGTON, TENNESSEE

Court: TCA

Attorneys:

Terry C. Cox and F. Auston Wortman, III, Cox & Wortman, PLLC, Collierville, Tennessee, for Petitioner/Appellees, Depot Property, LLC and Terry C. Cox.

Edward J. McKenney, Jr., Harris Shelton Hanover Walsh, PLLC, Memphis, Tennessee, for Respondent/Appellant, Town of Arlington, Tennessee.

Judge: KIRBY

This is a zoning case. The homeowner purchased a house in an area zoned as single-family residential and applied to have the property rezoned for office use. The application was considered by the town legislative body. Some members of the legislative body recused themselves. A majority of the members present voted in favor of the rezoning application, but it did not receive a majority of the entire membership of the legislative body, including the members who recused themselves. Pursuant to T.C.A. section 13-7-204, the rezoning application was deemed to have failed. The homeowner then filed a petition for a common law writ of certiorari, asking that the trial court deem the rezoning application approved based on the favorable vote of the majority of the members who participated in the consideration of his rezoning application. The trial court granted the writ, deemed the rezoning application approved, and modified the legislative body's decision to grant the homeowner's application. The town appeals. We reverse, finding, inter alia, that an affirmative vote by a majority of the entire membership of the town legislative body was required for adoption of the rezoning application.

http://www.tba2.org/tba_files/TCA/2011/depotproperty_013111.pdf
MIECHELLE FORGEY-LEWIS v. JOHN PAUL LEWIS, SR.

Court: TCA

Attorneys:

William P. Price, III, Knoxville, Tennessee, for the appellant, John Paul Lewis, Sr..

James F. Logan, Jr., Cleveland, Tennessee, for the appellee, Miechelle Forgey-Lewis.

Judge: SUSANO

Prior to their marriage, John Paul Lewis, Sr., ("Husband") and Miechelle Forgey-Lewis ("Wife") signed an antenuptial agreement. In this divorce proceeding filed by Wife, the parties agreed that the antenuptial agreement is valid and enforceable but they disagreed sharply as to its application. The trial court awarded Wife a divorce and alimony in futuro of $3,000 per month retroactive to the date of the filing of the complaint. Wife collected approximately $5,000 of the accrued alimony through garnishments. Husband appeals, challenging the alimony award as well as the garnishments. Wife contends the trial court erred in allowing Husband an offset of approximately $80,000 against her entitlements under the court's orders for payments made by him on joint debts. We affirm the judgment of the trial court except for the garnishments. We quash the garnishments and order the return of funds collected through them to the garnishee.

http://www.tba2.org/tba_files/TCA/2011/lewism_013111.pdf
IN THE MATTER OF: LILLIAN M, DOB 08/08/06, A Minor Child Under the Age of Eighteen (18) Years Old, STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. TM and CM

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Lindsey O. Appiah, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee Department of Children's Services.

William E. Phillips, II., Rogersville, Tennessee, for the appellees, TM and CM.

Judge: FRANKS

In this action, the Trial Court ordered the Department of Children's Services which had custody of the minor child, to furnish the parents with medical information, including video tapes. A written response was not made by the Department and the video tapes were not obtained and furnished to the parents. The Trial Court held the Department in willful contempt of the Court and entered sanctions as punishment. The Department has appealed. We hold that the record does not establish a basis to hold the Department in willful contempt of Court and we reverse the Trial Court's contempt judgment.

http://www.tba2.org/tba_files/TCA/2011/lillianm_013111.pdf
DAVID L. MORROW and JUDY M. WRIGHT v. SUNTRUST BANK, ET AL.

Court: TCA

Attorneys:

Larry E. Parrish, Memphis, Tennessee, for the appellants, David L. Morrow and Judy M. Wright.

Kenneth P. Jones, M. Matthew Thornton, Memphis, Tennessee, for the appellee, Suntrust Bank.

Robert E. Cooper, Jr., Attorney General and Reporter, Janet M. Kleinfelter, Deputy Attorney General, Nashville, Tennessee, on behalf of Robert E. Cooper, Jr., Attorney General and Reporter.

Judge: HIGHERS

Appellants filed a complaint for declaratory judgment seeking to be named the sole heirs to trust residue. However, the Attorney General moved for summary judgment, claiming that a later trust document provided for a full disposition of the trust assets, and therefore, that no assets remained to which Appellants could be entitled. The trial court granted summary judgment, finding that the intent to leave no residue stated in the later document superseded the prior edition. On appeal, Appellants argue that intent is irrelevant without a determination of the legal efficacy of the trust documents, and that the trial court lacked subject matter jurisdiction to render an advisory opinion. We find that the trial court properly exercised subject matter jurisdiction in adjudicating the declaratory judgment. Additionally, we affirm the trial court's denial of attorney fees and costs to SunTrust incurred at trial, and we decline to award SunTrust its attorney fees and costs incurred on appeal.

http://www.tba2.org/tba_files/TCA/2011/morrowd_013111.pdf
TINA J. PARKS v. MID-ATLANTIC FINANCE COMPANY, INC.

Court: TCA

Attorneys:

David B. Hamilton, Knoxville, Tennessee, for the appellant, Tina J. Parks.

John A. Walker, Jr., Knoxville, Tennessee, for the appellee, Mid-Atlantic Finance Company, Inc.

Judge: SUSANO

Tina J. Parks ("the Buyer") purchased an automobile on an installment payment plan and signed a "Retail Installment Contract and Security Agreement" ("the Installment Contract") pledging the vehicle as collateral to the seller-lender, Chris Yousif dba Quality Motors ("the Seller"). Mid-Atlantic Finance Company, Inc. purchased the Seller's rights in the Installment Contract. Mid-Atlantic later informed the Seller when the Buyer fell behind on her payments. The Seller repossessed the vehicle. Mid-Atlantic sold its rights under the Installment Contract to the Seller. The Buyer then filed this action against the Seller and Mid-Atlantic on various theories. The trial court granted Mid-Atlantic summary judgment and dismissed the Buyer's claim against the company, finding that, as the purchaser of the Installment Contract, it had no duty to the Buyer. The Buyer appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/parkst_013111.pdf
KAY SAUER v. DONALD D. LAUNIUS DBA ALPHA LOG CABINS

Court: TCA

Attorneys:

Jack W. Piper, Knoxville, Tennessee, for the appellant, Donald D. Launius dba Alpha Log Cabins.

Allen E. Schwartz, Knoxville, Tennessee, for the appellee, Kay Sauer.

Judge: SUSANO

Kay Sauer ("the Plaintiff") sued Donald D. Launius ("the Defendant") on a civil warrant in general sessions court alleging, among other things, that the Defendant did business as Alpha Log Cabins. The Defendant appealed an adverse judgment in general sessions to the trial court. In the trial court, the Defendant, by counsel, filed a motion to dismiss, asserting that the Plaintiff had sued the wrong party as the contract upon which she had sued was with Alpha Log Cabin Sales and Rentals, Inc. ("the Agent"). The case was set for hearing on April 13, 2009. In the meantime, between the filing of the motion to dismiss and the hearing date, the Defendant's attorney withdrew. The Defendant failed to appear on the hearing date, and the court entered judgment in the Plaintiff's favor. The Defendant filed a motion to set aside pursuant to Tenn. R. Civ. P. 60.02 supported by his affidavit in which he stated that he did not receive notice of the hearing date. The trial court denied the motion to set aside. The Defendant appeals. We remand the case to the trial court with instructions to enter an order vacating the court's judgment.

http://www.tba2.org/tba_files/TCA/2011/sauerk_013111.pdf
TENNESSEE AMERICAN WATER COMPANY, v. THE TENNESSEE REGULATORY AUTHORITY, et al.

Court: TCA

Attorneys:

R. Dale Grimes, Nashville, Tennessee, for the Appellant, Tennessee American Water Company.

J. Richard Collier, Kelly Cashman-Grams and Shilina B. Brown, Nashville, Tennessee, for the Appellee, Tennessee Regulatory Authority.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Ryan McGehee, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Consumer Advocate and Protection Division of the Office of the Tennessee Attorney General.

Frederick L. Hitchcock, Harold L. North, Jr., Tom Greenholtz, Michael A. McMahan and Valerie L. Malueg, Chattanooga, Tennessee, for the Appellee, City of Chattanooga.

Judge: FRANKS

The Tennessee American Water Company petitioned the Tennessee Regulatory Authority to approve a revision to the existing rates it charges its customers for water. The Authority authorized a revision in the existing tariffs but made several rulings adverse to the plaintiff. Plaintiff has appealed numerous issues. On appeal, we affirm the rulings of the Authority, except its ruling which only allowed plaintiff to recover one-half of the rate case expenses. We hold that ruling was arbitrary and we require the Authority to pay the full amount of the rate case expenses claim.

http://www.tba2.org/tba_files/TCA/2011/tawc_013111.pdf
TRECIA GAYLE WATSON v. BRADLEY COUNTY SCHOOL BOARD, ET AL.

Court: TCA

Attorneys:

Trecia Gayle Watson, pro se Appellant.

Lance W. Parr, Athens, Tennessee, for the Appellees, Bradley County School Board, Bob Taylor, Charlene Cofer, and Joy Yates.

Judge: SWINEY

Trecia Gayle Watson ("Plaintiff") formerly was employed as a teacher with the Bradley County School System. In 2002, Bob Taylor ("Taylor"), the Director of Schools for the Bradley County School System, instituted disciplinary charges against Plaintiff seeking to have her employment terminated. Plaintiff voluntarily resigned prior to completion of the disciplinary proceedings. In 2007, pursuant to a grand jury subpoena from the criminal court in Whitfield County, Georgia, Taylor sent all information pertaining to the disciplinary charges and other information in Plaintiff's personnel file to the criminal court. Plaintiff, proceeding pro se, sued for defamation and filed suit against Taylor, the Bradley County School Board (the "School Board"), and various other defendants. All of the defendants filed a motion for summary judgment and, thereafter, sought various forms of sanctions against Plaintiff for numerous alleged violations of Tenn. R. Civ. P. 11. The Trial Court expressly declined to Rule on the motion for Rule 11 sanctions, providing instead for this Court to dispose of the defendants' Motion for Rule 11 sanctions if Plaintiff appealed. The Trial Court then granted the defendants' motion for summary judgment. Plaintiff appeals. We conclude that because the Trial Court has yet to rule on the defendants' motion for Rule 11 sanctions, there is no final judgment. Accordingly, we dismiss the appeal and remand this case for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2011/watsont_013111.pdf
KATHY YOUNG ET AL. v. FIRST BANK OF TENNESSEE

Court: TCA

Attorneys:

Larry G. Roddy, Dayton, Tennessee, for the appellants, Kathy Young and husband Donny Young.

N Mark Kinsman and J. Chad Hogue, Chattanooga, Tennessee, for the appellee, First Bank of Tennessee.

Judge: SUSANO

Kathy Young ("the plaintiff") stepped backward onto an elevated curb as she opened the driver's door of her vehicle to leave the parking lot of First Bank of Tennessee. She was injured when she tripped over the curb and fell into the shrubbery that bordered the parking lot. She and her husband filed this action alleging that First Bank was negligent in creating or maintaining a dangerous condition. First Bank filed a motion for summary judgment which the trial court granted. The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/youngk_013111.pdf
TOBIAS JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellant, Tobias Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Damon Griffin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

On May 25, 2007, the petitioner, Tobias Johnson, pled guilty to first degree murder in the perpetration of a felony; two counts of rape, Class B felonies; and incest, a Class C felony. He received a negotiated sentence of life in the Tennessee Department of Correction, with the possibility of parole, for the first degree murder conviction. As a Range I, standard offender, he received eight years for each of the rape convictions and three years for the incest conviction, all sentences to be served concurrently with his life sentence. The petitioner filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the petitioner argues that trial counsel provided ineffective assistance when they (1) did not timely litigate an issue regarding the state's loss of the audio tape of the petitioner's August 27, 2003, interrogation; (2) failed to allege in a motion to suppress that the state violated the petitioner's right to remain silent; and (3) misadvised the petitioner regarding his release eligibility. The petitioner further argues that he did not enter his guilty plea knowingly, intelligently, and voluntarily. Following our review, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2011/johnsont_013111.pdf
VINCENT SIMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul Morrow, Jr., and Daniel E. Kirsch, Nashville, Tennessee, for the appellant, Vincent Sims.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Frank Borger-Gilligan, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The capital petitioner, Vincent Sims, appeals as of right from the October 1, 2008 order of the Shelby County Criminal Court denying his initial and amended petitions for post-conviction relief. On appeal, the petitioner claims that the trial court erred in denying relief because: (1) trial counsel was ineffective; (2) appellate counsel was ineffective; and (3) the imposition of the death penalty in this case was unconstitutional. After a careful and laborious review of the record, we conclude that there is no error requiring reversal. Accordingly, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/simsv_013111.pdf
TODAY'S NEWS
Legal News
Election 2010
TBA Member Services
Legal News
Daughter of TBA employee dies, fund established
Ashley Marie Johnson, daughter of long-time Tennessee Bar Association Financial Administrator Pam Johnson, died Jan. 28. She was 21. Visitation began yesterday and continues tonight from 4 to 8 p.m., and funeral services will be at noon Tuesday at Cole and Garrett Funeral Home, 127 N. Main St., Goodlettsville, TN 37072. A fund to assist with funeral and other expenses has been established at the Tennessee Legal Community Foundation. Tax-deductible contributions can be sent to the Ashley Johnson Fund at TLCF, 221 4th Ave. North, Suite 400, Nashville, TN 37219.
Read her obituary in the Tennessean
Bosch to represent Baumgartner in TBI probe
Defense attorney Donald A. Bosch confirmed he will represent Criminal Court Judge Richard Baumgartner in an investigation by the Tennessee Bureau of Investigation. Fellow Criminal Court judges Mary Beth Leibowitz and Bob McGee will be helping Special Judge Jon Kerry Blackwood handle Baumgartner's caseload. Blackwood is expected to take over Baumgartner's docket Tuesday, but Leibowitz noted that Blackwood has cases in other counties for which he also is responsible so Blackwood cannot take on the entirety of the cases. Al Schmutzer Jr., a retired district attorney general for Sevier, Cocke, Grainger and Jefferson counties, has been tapped to serve as special prosecutor.
The News Sentinel has more
Merit selection draws divergent opinions
Voices on all sides of the debate on merit selection are speaking up, including State Rep. Bill Dunn, R-Knoxville, who writes in an opinion piece that "the legislature and the judiciary are in collusion to ignore the state constitution." Columnist Dwight Lewis points out that "checks and balances exist now" and explains how the current system works. An article in the Nashville Scene predicts no movement in this legislative session but that with a decision needed by 2012 when the current law expires, "a few Christmases from now, you might be able to buy someone a judge."

Nashville lawyer Edmund J. Schmidt -- who practiced law in Louisiana for 17 years where all courts are popularly elected -- writes in an opinion piece that the judicial election process "resembles a political version of the playground game 'king of the mountain,' but with serious consequences." Fund-raising, election pressures and related decision-making are bad sides to election of judges, he writes. "On the other hand, the upside of open elections is that the wealthy and powerful can effectively control the judiciary. Of course, that is terrific for the king of the mountain, and terrible for the rest of us."
Justice at Stake outlines the situation
Shelby Youth Court gets underway
Shelby County Juvenile Court is launching a Youth Court where other kids sit in judgment of defendants. On Saturday, the court conducted a training session for prospective participants. Denise Bentley, the Tennessee Bar Association's Youth Court coordinator, stressed that juvenile justice is not about punishment, telling the teens, "What you do and say may turn somebody around completely. How many times do you have a chance, at this young age, to do something like that?"
Learn more from the Commercial Appeal
Opinion: Civil justice system 'ain't broke
In a guest column, former senator and new Tennessee Association for Justice lobbyist Fred Thompson writes that he wants to be part of the conversation when the state legislature considers changes to the civil justice system in Tennessee. He says "our civil justice system has served us well and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans." Knoxville News Sentinel political writer Tom Humphrey notes that in registering as a Tennessee lobbyist last week, Thompson listed "tort reform" as the focus of his coming efforts to help trial lawyers. Humphrey lists tort reform bills that have already been filed.
Read Fred Thompson's column
Judge wonders how defendants afford bond but not a lawyer
Bedford County General Sessions Judge Charles Rich spends much of his days on the bench asking defendants why they can not afford a lawyer, yet were able to "come up with the $15,000 bond to get out of jail?" And the answers do not sit well with the judge, who tells several defendants if they show up without an attorney next time they will be taken into custody.
The Shelbyville Times-Gazette tells the story
Gullett Sanford plans to move to The Pinnacle
Nashville's Gullett Sanford Robinson & Martin PLLC has signed a long-term lease for the entire 14th floor at The Pinnacle at Symphony Place, announced managing partner Scott Derrick in a news release. Construction of the over 23,000-square-foot space will begin this summer, with the move to the new space set for January 2012.
Investigator earns law degree, the hard way
Todd Hull, an investigator with the District Attorney General's Office in Johnson City, recently received his degree from the Nashville School of Law. He got the degree while working for DA Tony Clark, traveling back and forth from upper East Tennessee to Nashville every week to attend class. In his fourth year, he drove back and forth on the same night. "We're all proud of him," Clark said, adding that he plans to change Hull's position from investigator to attorney upon his successful completion of the bar exam. Clark said he would be losing an investigator but said he is currently six attorneys short for the case load his office has, so the new attorney position will be welcome.
The Johnson City Press has the story
Election 2010
Farrar gives up suit to contest juvenile judge election count
Republican candidate Zach Farrar today dropped his effort seeking a recount in his quest to be Anderson County juvenile judge. When Farrar and his Democratic opponent Brandon Fisher each received 6,442 votes in the Aug. 5 election, county commissioners broke the tie, voting 15 to 1 for Fisher. Farrar filed a complaint contesting the general election results and seeking a recount of the 392 paper ballots cast in the race. The matter remained mired for months in preliminary legal maneuvers, and today Farrar said "enough is enough."
The News Sentinel reports
TBA Member Services
Office management resources available for TBA members
The TBA Law Office Technology & Management Section has purchased a collection of resource materials to be added to the TBA Lending Library for use by all members. Those materials include:

-- Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients and Others
-- Letters for Lawyers: Essential Communications for Clients, Prospects and Others, Second Edition
-- Risk Management: Survival Tools for Law Firms, Second Edition
-- The 2009 Solo & Small Firm Legal Technology Guide: Critical Decisions Made Simple
-- The Lawyer's Guide to Adobe Acrobat, Third Edition (Covers Adobe Acrobat 8.0)
-- The Lawyer's Guide to Collaboration Tools & Technologies: Smart Ways to Work Together + CD-ROM Supplement
-- The Lawyer's Guide to Governing Your Firm
-- The Lawyer's Guide to Marketing on the Internet, Third Edition
-- The Lawyer's Guide to Microsoft Excel 2007
-- The Lawyer's Guide to Microsoft Outlook 2007
-- The Lawyer's Guide to Practice Management Systems Software, Second Edition

 Books may be borrowed for up to two weeks. To request a book, please email Sharon Ballinger or call her at (615) 383-7421.

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.
© Copyright 2011 Tennessee Bar Association