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| Tuesday, February 01, 2011 |
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Estate tax changes featured in February TBJ
In the February issue of the Tennessee Bar Journal, Knoxville lawyer Dan Holbrook helps you make sense of changes in estate tax law, and Nashville lawyer Brandt McMillan explains how revised T.R.C.P. Rule 5 (service by email) is almost but not quite really helpful. President Sam Elliott focuses his column on lawyer-hero Z. Alexander Looby's role in the Nashville sit-ins, and regular columnists cover Gossett and summary judgment (Edward Phillips), conservatorship (Monica Franklin) and writs of error coram nobis (Don Paine).
Bill Haltom has patent questions about "sexting." Your Journal should be in your mailbox soon, or
read it online
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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.
00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
01 - 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
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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.
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MARRIOTT APPLEWHITE v. JAMES BLANCHARD, JR.
Court: TCA
Attorneys:
Valerie Smith, Memphis, Tennessee, for the appellant, Marriott Applewhite
Hope B. Calabro, Memphis, Tennessee, for the appellee, James Blanchard, Jr.
Judge: FARMER
The trial court awarded a directed verdict to the Defendant in this tort action arising out of an automobile accident. We reverse and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2011/applewhitem_020111.pdf
RONALD P. BOAZ v. ROZANNE JACKSON, ET AL.
Court: TCA
Attorneys:
Jeffrey Spark, Nashville, Tennessee, for the appellant, Ronald P. Boaz.
Kenneth A. Weber, Ben H. Bodzy, Nashville, Tennessee, for the appellees, Rozanne Jackson d/b/a Irongate/ d/b/a Irongate, LLC d/b/a Rozanne Jackson Interiors, Inc. and Rozanne Jackson Interiors, Inc.
Judge: COTTRELL
The plaintiff claimed that in 1997 he entered into a verbal partnership agreement with the defendant to open and operate the antique store that the plaintiff managed for the next twelve years. He further claimed that the defendant withheld profits and other benefits of the partnership from him, in violation of their agreement. The plaintiff accordingly asked the trial court to dissolve the partnership and to award him his share of the partnership assets. The defendant filed a Rule 12.02(6) motion to dismiss the plaintiff's complaint for failure to state a claim. She denied that she had ever been in any sort of partnership relationship with the plaintiff and claimed, instead, that he was a salaried managerial employee-at-will of her solely-owned corporation. The trial court granted the defendant's motion. The allegations in the complaint, which we must take as true, state a claim for relief. Additionally, material extraneous to the complaint was submitted and presumably considered by the trial court, requiring that the motion be treated as one for summary judgment. Disputes of material fact exist in the filings, precluding the grant of summary judgment. Accordingly, we reverse.
http://www.tba2.org/tba_files/TCA/2011/boazr_020111.pdf
JAFFTON RICHARDSON v. DEPARTMENT OF CORRECTION, TURNEY CENTER DISCIPLINARY BOARD
Court: TCA
Attorneys:
Jaffton Richardson, Only, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Hudson, Senior Counsel, for the appellee, Department of Correction, Turney
Center Disciplinary Board.
Judge: CLEMENT
Petitioner, an inmate in the custody of the Tennessee Department of Correction being housed at Turney Center Industrial Complex, filed this petition for writ of certiorari seeking to overturn the decision of the Turney Center disciplinary board convicting him of the offense of possession of a cell phone. The Chancery Court, sua sponte, dismissed the petition because the petitioner's verification was not notarized as required by Tenn. Code Ann. section 27-8-106. We affirm.
http://www.tba2.org/tba_files/TCA/2011/richardsonj_020111.pdf
DONNA ROWLAND v. RISHI K. SAXENA, M.D.
Court: TCA
Attorneys:
John L. Ryder and Ashley Austin Martin, Memphis, Tennessee, for the appellant, Donna Rowland.
Paul W. Ambrosius and W. Justin Adams, Nashville, Tennessee, for the appellee, Rishi K. Saxena, M.D.
Judge: DINKINS
State representative appeals dismissal of her suit to recover attorney fees incurred as a result of her former opponent's contest of the election. The trial court held that the Tennessee Constitution and statutes governing election contests vest exclusive jurisdiction to decide contests for the office of state representative, and that, consequently, the court was without jurisdiction to determine the issue of costs and fees awardable under the statute. We hold that the chancery court correctly determined that it was without jurisdiction to decide issues arising under section 2-17-115.
http://www.tba2.org/tba_files/TCA/2011/rowlandd_020111.pdf
TENNESSEE AMERICAN WATER COMPANY, v. THE TENNESSEE REGULATORY AUTHORITY, et al.
CORRECTION appears at bottom of first page of opinion, Chattanooga Manufacturers Association, Appellee, and counsel David C. Higney and Henry M. Walker have been added.
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.
David C. Higney, Chattanooga, Tennessee, and Henry M. Walker, Nashville, Tennessee, for
the Appellee, Chattanooga Manufacturers Association.
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_COR_020111.pdf
MARKINA WESTMORELAND ET AL. v. WILLIAM L. BACON, M.D. ET AL.
With Dissenting Opinion
Court: TCA
Attorneys:
Bill M. Wade, Memphis, Tennessee, for the appellants, Markina Westmoreland, Jacqueline Westmoreland, and Robert Westmoreland, III.
Robert L. Trentham, Bryant C. Witt, and Sepideh C. Khansari, Nashville, Tennessee, for the appellee, William L. Bacon, M.D.
Michael A. Geracioti and Kelly R. Thomas, Nashville, Tennessee, for the appellee, Wichai Chinratanalab, M.D.
Thomas W. Lawrence, Jr., and Matthew A. Moushon, Nashville, Tennessee, for the appellee, Chukwuemeka Ikpeazu, M.D.
Judge: CLEMENT
Plaintiffs appeal the summary dismissal of their medical malpractice claims against three physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs'
mother, who suffered from several medical conditions, underwent a total hip replacement and remained in the hospital under the care of several doctors for ten days. Nine days after surgery, her condition dramatically declined; she died the following day from a severe diffuse pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians breached the standard of care for their respective specialties in the care of their mother. Each defendant filed a motion for summary judgment and each motion was supported by the affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their expert witness in response. The trial court ruled that Plaintiffs' only expert was not a qualified witness under Tenn. Code Ann. section 29-26-115 and granted summary judgment to all
three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding that their expert witness was not qualified to testify. We affirm the trial court's ruling that
Plaintiffs' expert was not qualified to testify under Tenn. Code Ann. section 29-26-115 and the summary dismissal of Plaintiffs' claims.
http://www.tba2.org/tba_files/TCA/2011/westmorelandm_020111.pdf
DINKINS dissenting
http://www.tba2.org/tba_files/TCA/2011/westmorelandm_DIS_020111.pdf
STATE OF TENNESSEE v. ALAN DALE BOBYARCHICK
Court: TCCA
Attorneys:
Brian L. O'Shaughnessy, Chattanooga, Tennessee, for the appellant, Alan Dale Bobyarchick.
Robert E. Cooper, Jr., Attorney General; Sophia S. Lee, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and David Schmidt, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
Following a bench trial, the Defendant, Alan Dale Bobyarchick, was convicted of violating an order of protection, a Class A misdemeanor. See Tenn. Code Ann. section 39-13-113(g). In this direct appeal, he contends that, in the Order of Protection, the circuit court did not make
any specific findings of fact that he committed domestic abuse, sexual assault, or stalking, and, therefore, he could not be convicted of violating the Order of Protection pursuant to Tennessee Code Annotated section 39-13-113(f)(3). After our review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/bobyarchicka_020111.pdf
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| TODAY'S NEWS |
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Legal News
Disciplinary Actions
TBA Member Services
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| Legal News |
| Chattanooga Bar honors outstanding lawyers |
| At the Chattanooga Bar Association's recent annual meeting, six area lawyers were recognized with awards. Richard W. Burman was given the Humanitarian Award; Patricia Best Vital received the President's Award; Sheri Fox received the Albert L. Hodge Volunteer Award; Alan L. Cates was given the Harry Weill Zealous Practice of Law Award; and the YLD Volunteer of the Year was Jason D. Demastus. |
Learn more about the awards from the CBA
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| Eminent domain cases now to be randomly assigned |
| For years, the same judge has been assigned all eminent domain cases in Davidson County but on Monday Circuit Court Judge Joe Binkley put an end to that practice. Binkley, who is the presiding judge for Davidson County state trial courts, signed an order requiring the clerk to randomly assign Metro condemnation cases to one of six Circuit Court judges. |
The Tennessean has the story
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| Judges tell city council not to go with mayor's plan |
| Chattanooga city judges Russell Bean and Sherry Paty are challenging Mayor Ron Littlefield's plans to move the City Court and City Court Clerk's office from the Hamilton County Courthouse. Speaking at a recent Legal and Legislative Committee meeting, Patty told council members "I hope you will not stand by and let one person single-handedly destroy something that is working." |
The Times Free Press reports
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| U of M mock trial team heads to national competition |
| For the second consecutive year, a team from the University of Memphis Cecil C. Humphreys School of Law has advanced to the national finals of the Thurgood Marshall Mock Trial tournament. The U of M team recently finished a close second in the regional competition, sponsored by the National Black Law Students Association (NBLSA), defeating teams from the University of North Carolina, Samford University, the University of Miami and Faulkner University to reach the national finals, which are March 9-13 in Houston.
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Download more from the school
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| Judges don't anticipate any lag while Baumgartner is out |
| Knox County Criminal Court judges have a plan to keep the wheels of justice turning while one of their own, Judge Richard Baumgartner, is on medical leave and facing a TBI investigation.
"There should not be any significant disruption in legal services for Knox County at all," Criminal Court Judge Bob McGee said. |
WBIR.com has more
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| List for bankruptcy judge position begins |
| When U.S. Bankruptcy Court Judge George Paine announced his retirement plans for Dec. 31 of this year, he gave plenty of time to start looking for his replacement.
Bankruptcy judges are judicial officers of the U.S. district court appointed by the majority of judges of the U.S. Court of Appeals and are not appointed by the president and not confirmed by the U.S. Senate, as is the case with most federal judicial positions. So the NashvillePost decided to make a short list of its own. |
Read who the Post thinks would make a good bankruptcy judge
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| Disciplinary Actions |
| Suspension of Elizabethton lawyer stands |
| An item in last Thursday's TBA Today, based on a story in the Johnson City Press, incorrectly reported that the Tennessee Supreme Court had overturned the suspension of Elizabethton lawyer Thomas Cowan. The court's order dismissed the appeals from both Cowan and the BPR but left in place the decision of the hearing panel to suspend Cowan based upon a conviction. |
Download the order
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| TBA Member Services |
| Discounts from Office Depot |
| Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot. |
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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.
© Copyright 2011 Tennessee Bar Association
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