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| Monday, March 14, 2011 |
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White Station again wins TBA YLD state mock trial
For the third year in a row, White Station High School of Memphis won the Tennessee State High School Mock Trial Competition, defeating McCallie School of Chattanooga in the final round. Sixteen teams qualified for the state championship by winning their local mock trial competitions. The White Station team now advances to represent Tennessee at the National High School Mock Trial Competition in Phoenix on May 5-8. Eugene "Buddy" Bernstein is attorney coach of White Station. Alicia Oliver is McCallie's attorney coach. Nashville lawyer Marisa Combs was chair of the event, while Knoxville lawyer Troy Weston was vice chair and TBA staffer Stacey Shrader coordinated the competition. Watch for more detailed results and photos on the TBA website.
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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.
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00 - TN Worker's Comp Appeals
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SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_031411.pdf
MICHAEL ADLER v. DOUBLE EAGLE PROPERTIES HOLDINGS, LLC v. AIRWAYS COMMONS, LLC
Court: TCA
Attorneys:
Roger A. Stone and Lisa N. Stanley, Memphis, Tennessee, for the appellant, Airways Commons, LLC.
Oscar C. Carr, III and R. Mathew Brinner, Memphis, Tennessee, for the appellee, Double Eagle Properties Holdings, LLC.
Judge: STAFFORD
In this declaratory judgment action, the parties sought interpretation of a real estate purchase contract. The contract between the buyer and the seller provided for the assignment of all leases on the property and proration of rents to the buyer. The parties disputed whether these
provisions contemplated a separate agreement between the seller and a third party. At the behest of the parties, the trial court construed both agreements and granted summary
judgment to the buyer. On appeal, we raise, sua sponte, the question of whether all necessary parties were before the trial court pursuant to Tenn. Code Ann. section 29-14-107(a) and Tenn. R. Civ. P. 19. After concluding that all necessary parties were not included in this action, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.
http://www.tba2.org/tba_files/TCA/2011/adlerm_031411.pdf
IN RE: DEMITRUS M. T., A CHILD UNDER 18 YEARS OF AGE, ET AL.
Court: TCA
Attorneys:
Arthur M. Fowler, III, Johnson City, Tennessee, for the appellants, Wayne T., Kelly C. and Thunder N. bnf Kelly C.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and David Sadlow, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.
Judge: SWINEY
This is a wrongful death action filed in the Tennessee Claims Commission ("the Commission") by the parents and brother ("the Claimants") of six month old Demitrus M. T. ("the Infant" or "Demitrus"), individually and on behalf of Demitrus, after he drowned in a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a Tennessee Department of Child Services ("DCS" or "the Department") safety plan as the "placement caretaker." There is no dispute that Hamilton left the Infant unattended in the bathtub while she was otherwise occupied in an adjacent room. The primary disputes at trial before the Commissioner, and on appeal, are whether the Infant was in the "care, custody and control" of the Department so as to provide jurisdiction to the Commission; whether the Department's "Case Recordings," some of which were made more than a month after the
event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the Department that Hamilton would leave the helpless Infant unattended in a bathtub and let him drown. The Commission found that it had jurisdiction because the Department had control of the Infant even though it did not have custody, that the Case Recordings were
admissible, and that the Department was not negligent because it could not have foreseen this tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the dismissal on the merits.
http://www.tba2.org/tba_files/TCA/2011/demitrust_031411.pdf
MARTHA DUKE, As Next of Kin of William Jerry Duke, Deceased, and on behalf of the wrongful death beneficiaries of William Jerry Duke v. KINDRED HEALTHCARE OPERATING, INC., ET AL.
Court: TCA
Attorneys:
F. Laurens Brock, David J. Ward, Chattanooga, Tennessee, for the appellants, Kindred Healthcare Operating, Inc., et al
Cameron C. Jehl, Deborah Truby Riordan, Carey L. Acerra, Tammera Harrelson, Little Rock, Arkansas, for the appellee, Martha Duke As Next of Kin of William Jerry Duke, Deceased,
and on behalf of the wrongful death beneficiaries of William Jerry Duke
Judge: HIGHERS
This appeal involves an arbitration agreement that was executed when a patient was admitted to a nursing home. The arbitration agreement was signed by the patient's sister, who had presented a power of attorney document to the admissions staff that designated her as the patient's attorney-in-fact. The patient's representative in this lawsuit contends that the patient was incompetent when he executed the power of attorney document, and therefore, the sister lacked authority to sign the arbitration agreement on his behalf. The trial court found by clear and convincing evidence that the patient was incompetent when he signed the document and denied the defendants' motion to compel arbitration. We affirm and remand.
http://www.tba2.org/tba_files/TCA/2011/dukem_031411.pdf
MARVIN MCNEARY, ET AL. v. BAPTIST MEMORIAL HOSPITAL , A Tennessee Corporation, ET AL.
Court: TCA
Attorneys:
Duncan E. Ragsdale, Memphis, Tennessee, for the appellants, Marvin L. McNeary and Gwendolyn V. McNeary, for themselves and as next Friend to Kayla J. McNeary.
James T. McColgan, III and Michael T. Goodin, Memphis, Tennessee, for the appellee, J. M. Harmon
Judge: STAFFORD
This case arises from the grant of a Tennessee Rule of Civil Procedure 12 motion to dismiss, whereby the trial court dismissed one of the party-defendants from this lawsuit for lack of personal jurisdiction. Specifically, the trial court determined that: (1) the Appellants had failed to serve process on the Appellee; (2) that neither the statute of limitations nor the statute of repose operated to save the Appellants' cause of action; and (3) that Appellants were not entitled to Tennessee Rule of Civil Procedure 60 relief on grounds of fraud or misrepresentation. Discerning no error, we affirm and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2011/mcnearym_031411.pdf
JEFFREY PAUL ROLLER V. ANNA MARIE ROLLER
Court: TCA
Attorneys:
Brandy Boyd Slaybaugh, Knoxville, Tennessee, for the appellant, Anna Marie Roller.
Jim Terry, Clinton, Tennessee, for the appellee, Jeffrey Paul Roller.
Judge: SUSANO
The order from which the appellant Anna Marie Roller seeks to appeal was entered on Wednesday, December 15, 2010. A notice of appeal was filed by the appellant on Tuesday,
January 18, 2011, the 34th day following the entry of the trial court's order. Because the notice of appeal was not timely filed, we have no jurisdiction to consider this appeal.
Accordingly, the motion of the appellee to dismiss is granted. This appeal is dismissed.
http://www.tba2.org/tba_files/TCA/2011/rollerj_031411.pdf
ROCKY GLEN ROSS v. DONNA ANGELA ROSS
Court: TCA
Attorneys:
Margaret Jane Powers, Crossville, Tennessee, for the Appellant, Donna Angela Ross.
John Mark McFarland, Kingston, Tennessee, for the Appellee, Rocky Glen Ross.
Judge: SWINEY
The order from which the appellant Donna Angela Ross seeks to appeal was entered on Monday, August 2, 2010. A notice of appeal was filed by the appellant on Friday, September
3, 2010, the 32nd day following the entry of the trial court's order. Because the notice of appeal was not filed timely, we have no jurisdiction to consider this appeal. Accordingly,
this appeal is dismissed.
http://www.tba2.org/tba_files/TCA/2011/rossr_031411.pdf
ROBERT SHROUT, et al., v. HALL CONSTRUCTION, et al.
Court: TCA
Attorneys:
Van R. Irion, Knoxville, Tennessee, for the appellants, Robert Shrout and Joyce Shrout.
Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellee, Mark Rodriguez.
Judge: FRANKS
This case arose over the construction of a home for plaintiffs. Plaintiffs sued the construction company and a bank and several individuals. The Trial Court resolved the issues as to defendants, except Mark Rodriguez, prior to trial. The plaintiffs' case against Rodriguez was tried by the Trial Court who directed a verdict at the end of plaintiffs' proof.
Plaintiffs appealed to this Court. Plaintiffs insisted that material evidence established a violation of the Consumer Protection Act by defendant, and the directed verdict should be reversed. Upon review of the evidentiary record, we conclude that the Trial Judge properly directed a verdict in favor of the defendant, and we affirm the Trial Court's Judgment.
http://www.tba2.org/tba_files/TCA/2011/shroutr_031411.pdf
WISE CONSTRUCTION, LLC, ET AL. v. THOMAS BOYD, ET AL
With Dissenting Opinion
Court: TCA
Attorneys:
William G. Colvin, Chattanooga, Tennessee, for the appellants, Thomas A. Boyd and Lori Boyd.
William T. Alt, Chattanooga, Tennessee, for the appellees, Wise Construction, LLC and John Wise, III.
Judge: MCCLARTY
This appeal involves a home construction dispute between an LLC contractor and the homeowners. The contractor entered into a written contract with the homeowners for the
construction of a 6000 square foot home. Upon the relationship between the parties becoming strained, the homeowners claim the contractor told them to find another builder. The contractor contends it was fired from the project. The instant action was commenced by the contractor to enforce a lien. The trial court found in favor of the contractor. The homeowners appeal. We affirm.
http://www.tba2.org/tba_files/TCA/2011/wiseconstruction_031411.pdf
SWINEY dissenting
http://www.tba2.org/tba_files/TCA/2011/wiseconstruction_DIS_031411.pdf
MARK ALAN DEAKINS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Mark Alan Deakins, Nashville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D. Michael Dunavant, District Attorney General; and Rachel E. Willis, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Petitioner, Mark Alan Deakins, appeals pro se the Lauderdale County Circuit Court's summary dismissal of his petition for habeas corpus relief from his conviction for especially aggravated sexual exploitation of a minor, a Class B felony. The Petitioner contends that the trial court erred by finding that the judgment was not void and by dismissing his petition without an evidentiary hearing and without appointment of counsel. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/deakinsm_031411.pdf
JOHN GRIGGS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Robert C. Brooks (on appeal) and Charles Perkins (at trial), Memphis, Tennessee, for the appellant, John Griggs.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Chris Scruggs and Stephanie Johnson,
Assistant District Attorney Generals, for the appellee, State of Tennessee.
Judge: TIPTON
The Petitioner, John Griggs, appeals the Shelby County Criminal Court's denial of post-conviction relief from his convictions for aggravated kidnapping, kidnapping,
aggravated burglary, aggravated assault, and attempted rape, for which he received an effective sentence of eleven years. On appeal, the Petitioner contends that his guilty pleas
were not entered voluntarily and knowingly because he was not informed of his right against compulsory self-
incrimination. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/griggsj_031411.pdf
TERRY D. SNEED v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Ilya I. Berenshteyn, Bristol, Tennessee, for the appellant, Terry D. Sneed.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee, State of
Tennessee
Judge: WITT
The petitioner, Terry D. Sneed, aggrieved of his convictions of aggravated robbery, aggravated kidnapping, aggravated rape, and two counts of aiding and abetting aggravated rape for which he received sentences totaling 124 years' incarceration, filed a timely pro se petition for post-conviction relief. Following multiple appointments of counsel, amendments
to the petition, and other procedural matters spanning over nine years, the post-conviction court denied relief after a full evidentiary hearing. On appeal, the petitioner contends that
the post-conviction court erred by (1) denying his motion to sever his post-conviction hearing from that of his co-
defendant, (2) denying his motion to continue the evidentiary hearing based upon the unavailability of two witnesses, and (3) denying relief for his claim of ineffective assistance of counsel based upon the single allegation that trial counsel failed to introduce evidence of a Federal Bureau of Investigation (FBI) laboratory report at trial. Discerning no error, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/sneedt_031411.pdf
JAMES GREGORY WATSON v. HOWARD CARLTON, WARDEN AND THE STATE OF TENNESSEE
Court: TCCA
Attorneys:
James Gregory Watson, Mountain City, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Randall E. Nichols, District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, James G. Watson, entered guilty pleas to theft, felony reckless endangerment, and two counts of aggravated assault in the Knox County Criminal Court. He subsequently filed a pro se petition for writ of habeas corpus in the Johnson County Criminal Court, which was summarily dismissed. On appeal, the Petitioner argues that he is entitled to habeas corpus relief because the probationary sentence he received for his theft conviction expired before the trial court revoked his probation. Upon review, we affirm the judgment
dismissing the petition for writ of habeas corpus.
http://www.tba2.org/tba_files/TCCA/2011/watsonj_031411.pdf
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| TODAY'S NEWS |
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Legal News
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General Assembly News
TBA Member Services
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| Legal News |
| Bail should be set individually, lawyer argues |
| Murfreesboro attorney Jerry Gonzalez is taking his campaign against what he calls arbitrary bail amounts to Davidson, Shelby and four other counties. Gonzalez has already successfully argued in Wilson and Rutherford counties that state law requires judicial commissioners to set bail on a case-by-case basis, not by some "rule of thumb" based on the charges alone. "Right now, most judicial commissioners literally pull the number out of the air. It's just the way the person before did it. And that's the way the person before him did it," Gonzalez said.
In addition to Davidson and Shelby counties, Gonzalez is also suing Henry, Macon, Trousdale and Bedford counties, accusing each of setting bail arbitrarily. |
The Tennessean has the story
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| Apply for 6th District seat by April 4 |
| The Judicial Nominating Commission is now accepting applications for the vacancy in the 6th Judicial District Criminal Court previously held by Judge Richard Baumgartner.
Applications are due to the Administrative Office of the Courts by April 4 at noon CDT.
The Judicial Nominating Commission will meet on April 26 at 9 a.m. EDT to interview all qualified applicants. |
Find the requirements and application from the AOC
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| Paper wishes the judge well, after 'astonishing fall' |
| An editorial calls former Judge Richard Baumgartner's "fall from respected jurist to confessed criminal ... as sudden as it was astonishing." The News Sentinel continues:
"Now that he no longer serves on the bench, Baumgartner can focus on his substance abuse issues. We wish him well, and hope that he will be able to rehabilitate his body and someday restore his reputation."
A columnist at the paper who covered Richard Baumgartner's judicial career from start to finish recalls his excitement for his job when Gov. McWherter appointed him in 1992, as well as his kindnesses and generosity to the Friends program at St. John's Episcopal Cathedral. |
Read Georgiana Vines' column in the News Sentinel
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| UM Law team takes first national title |
| The University of Memphis's Cecil C. Humphreys School of Law won its first mock trial championship ever when LaChina Algers, Angela Harris, Chandra Madison, and Joseph McKinney last week captured the 2010-2011 Thurgood Marshall Mock Trial National Championship in Houston. The event featured 18 teams from six regions, including Texas Wesleyan, DePaul, Seattle, St. Mary's and Harvard. The UM team, which is coached by Melanie Stovall Murry and Bridgett Stigger, was undefeated throughout the tourney. |
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| A look at open government for 'Sunshine Week' |
To kick off "Sunshine Week," Tennessee Coalition for Open Government Executive Director Frank Gibson writes that some proposals in this year's General Assembly "would make it harder for Tennesseans to keep up with what their government is doing, how tax dollars are spent, and how some services are performing. Another would make it significantly more expensive for citizens to see public records."
On a federal level, two years into its pledge to improve government transparency, the Obama administration handled fewer requests for federal records from citizens, journalists, companies and others last year even as more people asked for information, the Associated Press reports.
Associated Press analysis showed that there were 544,360 requests from the largest federal agencies last year under the U.S. Freedom of Information Act, up nearly 41,000 from the previous year. The government, meanwhile, took action on nearly 12,400 fewer requests.
The Citizen Tribune writes about
the public's right to know and "the Pandora's box left open by the Supreme Court last year." The paper refers to Citizens United v. Federal Election Commission and, subsequently, Speech Now v. Federal Election Commission, saying the court gave "corporations the right to spend as much as they want on campaign ads, often without disclosing the donors who funded the ads. ... The solution is meaningful lobbying disclosure reform," it concludes.
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Read this editorial
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| Dress for success when waiting for jury duty |
| A writer for the Leaf-Chronicle details the day she was called as a juror, having dressed in business-casual as the notice suggested. But not everyone followed that rule: "From the looks of some of the other jurors plodding along the halls of the courthouse their "business" was either a Crocs model, a lifeguard or an adult industry professional," Tina Dupuy writes. "It's justice who's blind ... as for the rest of us -- we see you!" |
Read the column
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| Juvenile Justice Center reopens after flooding |
| Davidson County's Juvenile Justice Center opened today for the first time since 15,000 case files where ruined in last May's flood.
The flood left the lower level of the building buried in four feet of water. Since then, the courthouse has undergone an extensive renovation with
workers installing new floors, doors and elevators. Employees started moving into their offices last week. |
WSMV.com has video
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| Upcoming |
| Senate hearing for Donald this Wednesday |
| The confirmation hearing for Judge Bernice B. Donald is set for March 16 at 2:30 p.m., Eastern. She was nominated Dec. 6, 2010, by President Obama for a judgeship on the United States Court of Appeals for the Sixth Circuit.
Donald is currently U.S. District judge for the Western District of Tennessee. |
Watch the webcast of the hearings
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| General Assembly News |
| Sen. Overbey honored as community leader |
| State Sen. Doug Overbey has been chosen as the 2011 recipient of the Leadership Blount Community Leadership Award, which recognizes individuals whose sustained actions and leadership reflect Leadership Blount's commitment to life-long service.
Overbey will be honored at the annual Community Leadership Award Breakfast at 7:30 a.m. on April 8. |
Learn more from Blount Today
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| Track legislation of interest to Tennessee attorneys |
| The 107th Tennessee General Assembly is now in session and the TBA has a number of tools to help you track the status of legislation. Watch TBA Today for regular news updates and follow the TBA Action List to track bills in the General Assembly that the TBA has a direct interest in -- those it has initiated, taken a position on, or has a policy on. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community. |
Find complete TBA legislative resources
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| TBA Member Services |
| CompuPay offers deals for TBA members |
| CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees. |
Learn more about CompuPay's benefits
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But if you must, visit the TBALink web site at:
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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
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