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Tuesday, February 15, 2011

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Corporate Counsel awards nominations due Feb. 25

The Fifth Annual Corporate Counsel Pro Bono Initiative Gala will be held in Nashville on March 26, at The Hermitage Hotel. The event recognizes outstanding pro bono contributions by law firms and corporate legal departments, and raises money that is given back to the community via a grant process designed to engage corporate counsel in pro bono service. Nominations for the Corporate Counsel Pro Bono Initiative Awards are now being accepted, but must be received by Feb. 25.

The Corporate Counsel Pro Bono Initiative was launched as a joint effort by the TBA Access to Justice Committee, the TBA Corporate Counsel Section and the Association of Corporate Counsel to help foster a coordinated approach to pro bono work and support for the access to justice community by corporate counsel in Tennessee.

Learn more or make a nomination for a Corporate Counsel Pro Bono Award

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.

KRISTENE M. BREWER v. BOYD W. BREWER

Court: TCA

Attorneys:

James C. Thomas, Winchester, Tennessee, for the appellant, Boyd W. Brewer, Sr.

Floyd Don Davis and Norris Arthur Kessler, III, Winchester, Tennessee, for the appellee, Kristene M. Brewer.

Judge: BENNETT

Former cohabitant brought this partition action with respect to real and personal property. On appeal, the defendant argues that the trial court erred in dividing the real property and a mobile home, in finding the motor vehicles to be jointly-owned property, and in dividing the proceeds of a savings account equally between the parties. We have concluded that the trial court erred in dividing the savings account, which is titled in the defendant's name alone. In all other respects, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2011/brewerk_021511.pdf

KARAH and RYAN DePUE, et al., v. CHARLES D. SCHROEDER, et al.
With Dissenting Opinion

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor General, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for the appellant/intervenor, State of Tennessee.

Robert H. Watson, Jr., and Emily A. Cleveland, Knoxville, Tennessee, for the appellants, John Showalter, M.D., and Summit Medical Group, PLLC.

James H. London, Jennifer Pearson Taylor, and Mark A. Castleberry, Knoxville, Tennessee, for the appellant, Joseph P. Bruner, M.D.

Rick L. Powers, Knoxville, Tennessee, for the appellant, Fort Sanders Perinatal Center.

Debra A. Thompson, Knoxville, Tennessee, for the appellants, Charles David Schroeder, M.D., and OB/GYN Professionals of East Tennessee, P.C.

Stephen C. Daves, Knoxville, Tennessee, for the appellants, J. Frederick Wolfe, M.D., and Rheumatology Consultants, P.L.L.C.

Donna Keene Holt, Knoxville, Tennessee, for the appellees, Karah and Ryan DePue.

Judge: FRANKS

Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. section 29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. section 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint". In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.

http://www.tba2.org/tba_files/TCA/2011/depuek_021511.pdf

MCCLARTY dissenting
http://www.tba2.org/tba_files/TCA/2011/depuek_DIS_021511.pdf

IN RE: ESTATE OF JAMES A. HAMILTON a/k/a JAMES ROBERT HAMILTON

Court: TCA

Attorneys:

H. Graham Swafford, Jr., Jasper, Tennessee, for the appellant, Lora Davis.

Russell Anne Swafford, Dunlap, Tennessee, for the appellee, Alice Hamilton Davis, in her capacity as Administratrix of the Estate of James A. Hamilton.

Judge: COTTRELL

A woman who failed to have her paternity determined while her putative father was living filed a complaint seeking to establish her right to inherit a part of his estate. Tennessee Code Annotated section 31-2-105 requires paternity to be established by clear and convincing evidence if paternity is sought to be established after the putative father's death. Prior to the trial, the woman moved the chancery court to order the deceased's family to provide her with DNA samples in an effort to prove the deceased was her father. The trial court denied this motion, finding the rules of civil procedure do not require non-parties to provide DNA samples. Following a bench trial, the court concluded the woman failed to prove by clear and convincing evidence that the deceased was her father. The woman appealed. We affirm the trial court in all respects because, first, nothing in the Rules of Civil Procedure requires the deceased's family members to provide DNA samples to assist the woman in proving she was the deceased's daughter. Second, the positive and negative evidence rule does not apply to the testimony in this case because there was no conflicting testimony by eyewitnesses to the woman's conception. Third, the missing evidence and missing witness rule applies to jury trials, whereas this trial was a bench trial, and there was no evidence that the purportedly missing evidence or missing witnesses were under the estate's control.

http://www.tba2.org/tba_files/TCA/2011/hamiltonj_021511.pdf

BILLY ERNEST KILBURN v. TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Court: TCA

Attorneys:

Billy Ernest Kilburn, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Kellena Baker, Assistant Attorney General; for the appellee, Tennessee Department of Correction, State of Tennessee, Civil Rights and Claims Division.

Judge: BENNETT

Inmate brought petition for writ of certiorari challenging his conviction of the prison disciplinary offense of conspiracy to violate state law. The trial court granted judgment on the record to the Tennessee Department of Correction ("TDOC"). We have concluded that TDOC failed to follow the Uniform Disciplinary Procedures, but that this departure did not affect the disposition of the case. We therefore affirm the chancellor's decision.

http://www.tba2.org/tba_files/TCA/2011/kilburnb_021511.pdf

JUDY DOTSON MCCONNELL, ET AL. v. PAT FULLER, ET AL.

Court: TCA

Attorneys:

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellants, Judy Dotson McConnell, and Jerry Dotson.

Whitney Durand, Chattanooga, Tennessee, for the appellees, Pat Fuller, John Fuller, and Lela Dotson Gravett.

Judge: SWINEY

In September of 2009, Judy Dotson McConnell and Jerry Dotson ("Plaintiffs") sued Pat Fuller, John Fuller, and Lela Dotson Gravett ("Defendants") alleging, in relevant part, that the Last Will and Testament of Clarence E. Dotson, which was offered for probate in May of 2003, was a fraudulent will. Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted alleging that the statute of limitations barred Plaintiffs' claim. After a hearing, the Trial Court entered its order on February 16, 2010 finding and holding, inter alia, that Plaintiffs' lawsuit was not filed within the statute of limitations and that Plaintiffs failed to "allege facts which would bring into play fraudulent concealment," which would have tolled the statute of limitations. The Trial Court dismissed Plaintiffs' suit. Plaintiffs appeal to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2011/mcconnellj_021511.pdf

SUZANNE H. McKIN, v. CHARLES DAVID McKIN

Court: TCA

Attorneys:

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Charles David McKin.

H. Wayne Grant, and Jillyn M. O'Shaughnessy, Chattanooga, Tennessee, for the appellee, Suzanne H. McKin..

Judge: FRANKS

In this divorce case the Trial Judge granted the parties a divorce, divided the marital property, and ordered transitional alimony to the wife until the husband pays the wife an amount ordered by the Court to render the property settlement equitable. The parties have appealed, and we modify the Judgment because the Trial Court inadvertently included an amount in the property division which he had found to be the separate property of the husband. We adjust the property division along the lines intended by the Trial Judge and set a definite time for the transitional alimony to comply with the statute.

http://www.tba2.org/tba_files/TCA/2011/mckins_021511.pdf

STATE OF TENNESSEE v. DEBORAH N. COTTER

Court: TCCA

Attorneys:

John S. Anderson, Rogersville, Tennessee, for the appellant, Deborah N. Cotter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Kimberly Morrison, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Deborah N. Cotter, was convicted by a jury in the Hamblen County Criminal Court of aggravated robbery and was sentenced to ten years in the Tennessee Department of Correction. On appeal, she argues that the evidence is insufficient to support her conviction, particularly because no witness identified her in court as the robber. She also contends that the trial court erred in arriving at her sentence. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/cotterd_021511.pdf

STATE OF TENNESSEE v. PATRICK RICO EDWARDS

Court: TCCA

Attorneys:

C. Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender; and Jonathan Augusta, Assistant Public Defender, Nashville, Tennessee, for the appellant, Patrick Rico Edwards.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; Deborah Housel, Assistant District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Patrick Rico Edwards, was indicted by the Davidson County Grand Jury for murder in the perpetration of a theft and first-degree premeditated murder, both in violation of Tenn. Code Ann. section 39-13-202. After a jury trial began on August 21, 2008, the trial court granted a mistrial. On March 19, 2009, Defendant pleaded guilty to the lesser-included offense of second degree murder. Following a sentencing hearing on May 12, 2009, Defendant was sentenced to serve 21 years in confinement at 100 percent. In this appeal, Defendant challenges the length of his sentence. After a thorough review of the record, we conclude that Defendant's sentence is not excessive and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/edwardsp_021511.pdf

STATE OF TENNESSEE v. CHARLES E. LOWE-KELLEY

Court: TCCA

Attorneys:

Mark K. Green (at trial); and Robert C. Richardson, Jr. (at motion for new trial and on appeal), Columbia, Tennessee, for the appellant, Charles E. Lowe-Kelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Kimberly L. Cooper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Maury County Circuit Court jury convicted the defendant, Charles E. Lowe-Kelley, of two counts of first degree premeditated murder, two counts of first degree felony murder, and nine counts of attempted first degree murder. At sentencing, the trial court imposed consecutive sentences of life with the possibility of parole for each first degree premeditated murder conviction, merged the first degree felony murder convictions into the first degree premeditated murder convictions, and imposed concurrent sentences of 15 years' incarceration for each attempted first degree murder conviction to be served concurrently with the life sentences. On appeal, in addition to contesting the sufficiency of the evidence, the defendant contends that the trial court erred by (1) denying his motion for a continuance, (2) allowing a juror to remain on the jury who expressed an opinion about the case, (3) admitting evidence without establishing a proper chain of custody, (4) admitting a tape recorded conversation between the defendant and a separately-tried co-defendant, and (5) imposing consecutive sentences. Because the defendant failed to file a timely motion for new trial, all issues except the sufficiency of the evidence and sentencing are waived. Furthermore, the untimely motion for new trial rendered the notice of appeal untimely. In the interest of justice, however, we waive the timely filing of the notice of appeal and review the remaining issues. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/lowe-kelleyc_021511.pdf

ALVIN T. MCGEE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Alvin T. McGee.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Alvin T. McGee, filed for post-conviction relief from his convictions for attempted burglary and vandalism between $500 and $1000, alleging that his guilty pleas were not knowingly and voluntarily entered. The post conviction court denied the petition, and the Petitioner now appeals. Upon review, we affirm the judgment of the post conviction court.

http://www.tba2.org/tba_files/TCCA/2011/mcgeea_021511.pdf

STATE OF TENNESSEE v. MITZI ROLLINS

Court: TCCA

Attorneys:

A. Jackson Dearing, III (at trial) and Gregory D. Smith (on appeal), Clarksville, Tennessee, for the appellant, Mitzi M. Rollins.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Hollyn Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Mitzi Rollins, pled guilty in the Moore County Circuit Court to one count of initiating a false report under Tennessee Code Annotated section 39-16-502. The plea agreement provided that she would be sentenced to two years and ten months, with the trial court to determine the manner of service. After a hearing, the trial court denied the appellant's request for alternative sentencing, citing her lengthy criminal history and the repeated unsuccessful attempts to use less restrictive sentencing. The appellant contends the trial court erred by ordering her to serve her sentence in confinement. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/rollinsm_021511.pdf

TODAY'S NEWS

Legal News
General Assembly News
TBA Member Services

Legal News

TBA leader urges support for Legal Services Corporation

Tennessee Bar Association President Sam Elliott today urged Tennessee legislators in Washington to reject proposals to cut the Legal Services Corporation (LSC) budget and ensure it "receives full and adequate funding" for the remainder of fiscal year 2011. "LSC provides essential legal assistance to Tennessee residents dealing with home foreclosures, veterans returning from military service, domestic violence victims and others in need of civil legal services," Elliott wrote. "Private and corporate lawyers in Tennessee are doing their part, donating thousands of hours of pro bono service annually; however legal service programs in Tennessee provide the foundation for all our pro bono efforts."

Download the letter

New Nashville Courthouse cut from budget proposal

President Barack Obama's proposed budget released Monday cuts money for new courthouses, including the one planned for Church Street and Eighth Avenue in Nashville. The Estes Kefauver Federal Building on Broadway was targeted for replacement in the early 1990s, but the project has continually been bumped from funding.