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| Wednesday, April 20, 2011 |
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Rules book contains error, correction now available
The 2011 edition of the Tennessee Rules of Professional Conduct (purple cover) recently published by the Tennessee Bar Association contains an error with respect to the version of RPC 1.16(d) and Comment [9]. After originally approving revisions to the rules on Sept. 29, 2010, the Tennessee Supreme Court issued an order on Oct. 12, 2010, that corrected certain editing errors to RPC 1.16 and replaced the previously-approved version of RPC 1.16 with a new, corrected version. The 2011 edition of the rules published by the TBA did not accurately reflect those corrections, which while limited to RPC 1.16(d) and Comment [9] are significant. The TBA regrets the error and has a corrected version of those pages that can be downloaded to update the book. A complete electronic version of the rules book also is available online from the TBA.
Download the corrected version of RPC 1.16(d) and Comment [9]
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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.
01 - 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
00 - TN Supreme Court - Disciplinary Orders
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.
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STATE OF TENNESSEE v. GENARO DORANTES
CORRECTION on pages 18, 19 and 25 (see below)
Court: TSC
Attorneys:
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball and John H. Bledsoe, Assistant Attorneys General; Victor S. Johnson, III, District Attorney General;
Katrin N. Miller and Brian Holmgren, Assistant District Attorneys General, for the appellant, State of Tennessee.
Jeffery Allen Devasher (on appeal), Nashville, Tennessee, and Amy D. Harwell and Ross Alderman (at trial), Nashville, Tennessee, for the appellee, Genaro Dorantes.
Judge: WADE
CORRECTION SUMMARY
This corrected opinion makes the following changes to the original opinion:
--On page 18, in the first line of the first paragraph after the block quote, the quotes are changed to double instead of single.
--On page 18, in the ninth line of the first paragraph after the block quote, a hyphen is added after "nature."
--On page 19, on line 19 of the first full paragraph, "Defendant" is changed to "defendant."
--On page 25, in the first line of the first full paragraph, a space is deleted between "S.W." and "3d."
OPINION SUMMARY
The defendant, who was extradited from Mexico to face charges for aggravated child abuse and felony murder by aggravated child abuse, was convicted for each offense. The trial court imposed sentences of twenty-two years and life, respectively, to be served consecutively.
The Court of Criminal Appeals reversed the conviction for aggravated child abuse, finding the evidence to be insufficient, but upheld the felony murder conviction. This Court granted applications for permission to appeal by both the State and the defendant. Because the circumstantial evidence was sufficient to support the convictions for both aggravated child abuse and felony murder, the judgment of the Court of Criminal Appeals is reversed in part and affirmed in part. More specifically, the conviction for felony murder is affirmed, and the conviction for aggravated child abuse is reinstated. No other issues warrant the grant of a new trial on either offense. The sentences imposed by the trial court for each of the two offenses are affirmed.
http://www.tba2.org/tba_files/TSC/2011/dorantesg_COR_042011.pdf
JOSEPH C. BARNA v. W. MARTIN SEILER
With Dissenting Opinion
Court: TCA
Attorneys:
Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Joseph C. Barna.
Karl M. Braun, Nashville, Tennessee, for the appellee, W. Martin Seiler.
Judge: COTTRELL
An investor who lost money on stock transactions filed a claim against his stockbroker that was dismissed in arbitration. The investor then filed a complaint for legal malpractice against the attorney who had represented him in the arbitration proceeding. The attorney filed a motion for summary judgment accompanied by his expert affidavit, declaring that in his representation of the investor he had complied with all applicable standards of legal professional practice. The investor did not respond with an expert testimony contradicting the defendant. Following a series of delays, the trial court granted summary judgment to the
defendant attorney after declining to grant another continuance. The former client filed a motion for relief from judgment, and the trial court denied the motion. After the attorney voluntarily dismissed his counterclaim, the judgment became final, and the investor appealed. We affirm.
http://www.tba2.org/tba_files/TCA/2011/barnaj_042011.pdf
CLEMENT dissenting
http://www.tba2.org/tba_files/TCA/2011/barnaj_DIS_042011.pdf
ELMWOOD APARTMENTS v. JESSICA WOODSON, ET AL.
Court: TCA
Attorneys:
Joshua A. Decker, Columbia, Tennessee, for the appellant, Jessica Woodson.
No appearance for appellee, Elmwood Apartments.
Judge: DINKINS
This appeal arises out of a detainer action originally filed in general sessions court in which landlord of apartment was awarded possession of leased premises. Tenants filed a
petition for writs of certiorari and supersedeas for de novo review to the circuit court, accompanied by an affidavit of indigency; the writs were issued. Landlord subsequently
sought dismissal of both writs on several grounds. The court granted the motion, finding that the writ of supersedeas was improperly granted and, as a consequence, review by certiorari was not available as a substitute for appeal. Finding that the court erred in considering grounds for dismissal which were added by landlord within five days of the hearing on the motion, we reverse the judgment and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2011/elmwood_042011.pdf
IN RE: THE ESTATE OF ERNEST DWIGHT KING, DECEASED
Court: TCA
Attorneys:
Aubrey L. Harper, Chattanooga, Tennessee, for the appellants, Lynn and Jerry King.
Frank D. Farrar, Barry H. Medley, McMinnville, Tennessee, for the appellee, Patricia King; Robert Newman, McMinnville, Tennessee, for the appellees, Andrea Jacobs, Lisa Christian,
and Heather King Payne.
Judge: COTTRELL
Following the death of her husband, a widow filed a petition in probate court and sought to aggregate the estate's assets. The decedent had been in partnership with two brothers in a
company that owned real estate and operated a nursery. The widow sought to partition the land and sell the partnership's assets to obtain the estate's one-third share of the partnership. The trial court ordered the land be sold at auction and the proceeds partitioned as the widow requested, and decreed certain expenses be paid from the sale before the proceeds were distributed to the estate and the two brothers. The brothers appealed the trial court's decree affirming the payment of certain expenses before the proceeds were divided up among the partners, and claimed the estate should be liable for additional expenses the partnership incurred following the decedent's death. However, the brothers failed to present evidence to the trial court in support of their arguments, with the result that we are unable to provide the brothers with any of the relief they seek. Accordingly, the trial court is affirmed in all respects.
http://www.tba2.org/tba_files/TCA/2011/kinge_042011.pdf
DENZIL RUSS PARTIN v. MARY AVA PARTIN, ET AL.
Court: TCA
Attorneys:
J. Stephen Hurst, LaFollette, Tennessee, for the appellant, Denzil Russ Partin.
Mark R. Orr, LaFollette, Tennessee, for the appellees, Mary Ava Partin and Hazel Walden.
Judge: SWINEY
This lawsuit arose out of two transfers of real property. Denzil Russ Partin ("Husband") sued Mary Ava Partin ("Wife") and Hazel Walden ("Mrs. Walden"), seeking declaratory relief
that the two properties Wife transferred to Mrs. Walden, Wife's mother, were held in trust for Husband, Wife, and their son, Courtney Partin. The Trial Court found that title to the real property at issue was vested in Mrs. Walden, that no resulting trust had been created, and, that, in any event, the statute of limitations had run on Husband's action. Husband appeals. We hold that although the Trial Court erred in stating that the statute of limitations had run on Husband's claim, the Trial Court did not err in declining to impose a resulting trust on the real property at issue. We affirm the judgment as modified.
http://www.tba2.org/tba_files/TCA/2011/partind_042011.pdf
ADAM PAUL ROBERTS ET AL. v. SAMUEL LEE ROBERTS ET AL.
Court: TCA
Attorneys:
Donald N. Capparella and Jennifer Lee Mullins, Nashville, Tennessee, for the appellants, Samuel Lee Roberts, Teressa Ann King, and Kristen Leah Lewis.
Robert Eric Thornton, Dickson, Tennessee, for the appellees, Adam Paul Roberts and Matthew Thomas Roberts.
Judge: BENNETT
This is a partition action instituted by two children against their father, their stepmother, and their sister. The trial court determined that these five family members are tenants in common of the disputed real property. We affirm.
http://www.tba2.org/tba_files/TCA/2011/robertsa_042011.pdf
ESTATE OF MIGUEL ROBLES, ETC. ET AL. v. VANDERBILT UNIVERSITY MEDICAL CENTER, ET AL.
Court: TCA
Attorneys:
W. Scott Sims, Nashville, Tennessee, for the appellants, the Vanderbilt University Medical Center, Tejal Brahmbhatt, M.D., Lauren Hubbard Adcock, R.N., and Michael Fischer, R.R.T.
Donald Capparella and Candi Henry, Nashville, Tennessee, and Morgan Adams, Chattanooga, Tennessee, for the appellee, Maria Montiel.
Judge: DINKINS
Defendants in medical malpractice action appeal the denial of their motion to set aside order entered on plaintiff's Tenn. R. Civ. P. 41.01 notice of voluntary dismissal without prejudice. Defendants contend that, because the certificate of good faith required by Tenn. Code Ann. section 29-26-122 was not filed with the complaint, dismissal should have been with prejudice. Finding that Tenn. Code Ann. section 29-26-122 does not limit plaintiff's right to voluntarily
dismiss an action without prejudice under the circumstances presented, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCA/2011/roblesm_042011.pdf
STATE OF TENNESSEE v. DAVID A. HUNTER
Court: TCCA
Attorneys:
Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, David A. Hunter.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William H. Cox, III, District Attorney General; and Neil Pinkston, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, David A. Hunter, appeals his Hamilton County Criminal Court jury convictions of first degree felony murder, see T.C.A. section 39-13-202(a)(2) (2006), and attempted especially aggravated robbery, see id. sections 39-12-101(a)(3), -13-403, for which he received an effective sentence of life imprisonment. In addition to contesting the sufficiency of the evidence on appeal, he argues that the trial court erred by denying his motions to suppress his statement and an eyewitness identification. Discerning no error, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/hunterd_042011.pdf
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| TODAY'S NEWS |
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General Assembly News
Legal News
Passages
Career Opportunities
Upcoming
TBA Member Services
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| General Assembly News |
| Rules amendments pass House Judiciary |
| Resolutions approving amendments to Tennessee Rules of Evidence and Rules of Procedure -- HR 33, 34, 35 and 36 -- were recommended for adoption by the House Judiciary Committee yesterday. The rules were approved by the Supreme Court in February. They will take effect July 1 if ratified by the General Assembly.
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Follow legislative action on the resolutions
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| Revised tort reform bill now available |
| The version of the tort reform bill that passed the House Judiciary Committee yesterday is now available. The committee added a provision
lifting the cap when the behavior resulting in the injury is felonious, as well as several amendments characterized as technical. |
Download the committee-approved bill here
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| Panel approves bill allowing judges to carry guns |
| A proposal that would allow Tennessee judges to carry a gun in the courtroom and during judicial duties passed the House Judiciary Committee on Tuesday. The bill now goes to the full House. A companion measure is awaiting a vote in the Senate Judiciary Committee. Under the legislation, judges would have to complete eight hours of firearms training to carry a weapon. |
WBIR has this AP story
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| UT law student testifies before committee |
| First year University of Tennessee College of Law student Todd Skelton testified before the House Judiciary Committee this week on HB2016, which would allow faculty and staff to carry handguns on college campuses in the state. As Graduate Student Senate president, Skelton was asked to represent the University of Tennessee at the hearing. The Informant -- UT law's weekly newsletter -- reported the news.
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Read more about the legislation in the News Sentinel
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| Legal News |
| Fisk appeals ruling on art collection |
| Fisk University is gearing up for the next round in an ongoing court battle over its famed art collection left to the school by Alfred Stieglitz, husband of artist Georgia O'Keeffe. The school has been trying for years to sell off a share of its $73 million modern art collection to a museum in Arkansas. Last November, a judge ruled that Fisk could sell a half-share in the collection but only if $20 million of the proceeds go to a fund to care for and maintain the art. On April 7, the school filed an appeal with the Court of Appeals. The state has until May 9 to file a response.
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The Tennessean reports on the latest developments
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| No damages awarded in BlueCross 'noose' case |
| A federal jury has declined to award damages to a construction worker who claimed he was fired because of his race and for speaking out about a racially hostile work place. The case involved an incident in which a noose was discovered during construction of the BlueCross campus in Chattanooga, as well as swastika and "Johnny Rebel" images. The construction company said it did all it could to find the perpetrators and that the firing was based on the worker's poor performance.
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WTVC News Channel 9 reports
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| Big verdict winners say it's not about money |
| State court records show that very few lawsuits in Tennessee ever go to a jury, and even fewer end up with awards higher than the caps the General Assembly currently is considering. But those who do win large awards often say it's not about the money but about educating the public or protecting others from the trauma they faced. An article in today's Jackson Sun interviews several large verdict winners, and explores the possibility that tort reform might actually increase the number of trials by decreasing defendants' risks.
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Read it here
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| Mendes: Judicial selection is constitutional |
| Nashville Bar Association President Robert J. Mendes writes in today's Tennessean that opponents of the state's merit selection system rely on sound bites to seek political gain but risk a judicial system that is fundamentally fair to all. Taking on critics' number one argument against the current system, Mendes explains how a retention vote is both constitutional and beneficial for Tennesseans. |
Read his opinion piece here
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| Rhodes finishes in mock trial top 10 |
| The Rhodes College Mock Trial team competed in the American Mock Trial Association's championship finals and finished in the top 10 for the 24th time in 25 years. Rhodes also holds the distinction of being only one of three schools that have won more than two national championships. The Memphis Daily News reported the team's successful showing.
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| Input sought on alternative business structures |
| The American Bar Association's Commission on Ethics 20/20 is seeking comments on whether lawyers and non-lawyers in the United States should be allowed to form entities that provide legal and other services. Such alternative business structures are illegal in every state, but have gained a foothold in countries such as Canada, Australia and the United Kingdom. The deadline for submitting comments is June 1.
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Download an issues paper produced by the commission
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| Passages |
| Services set for Memphis lawyer |
| Jerre George Duzane "Papou" died April 19 at the age of 93. A member of the bar since 1939, Duzane retired at the age of 80 from the firm of Apperson, Crump, Duzane and Maxwell. During his practice he was active in the Memphis Bar Association, Memphis Trial Lawyers Association, Tennessee Trial Lawyers Association and Trial Lawyers of America. In Tennessee, he was influential in efforts to pass organ donor legislation and establish the Memphis law library. Visitation will take place April 25 from 5 to 8 p.m. at Canale Funeral Home, 2700 Union Extended, Memphis 38112. On April 26, viewing will be held at 10 a.m. followed by a service at 11 a.m. at the Annunciation Greek Orthodox Church, 573 N. Highland. Memorial donations may be made to the Annunciation Greek Orthodox Church, the Memphis Lions Club or the Nuber YMCA. |
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| Career Opportunities |
| Family law lawyer needed in Nashville |
| Special Counsel Inc. is seeking to place a family law attorney in a boutique Nashville law firm.
Qualified candidates should have recent family law experience and an active Tennessee license. This is a full time position. Salary is commensurate with experience.
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Learn more about the position on JobLink
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| Upcoming |
| Memphis Bar rolls out Law Week plans |
| The Memphis Bar Association's Law Week activities begin tomorrow with a party in Court Square. The event will be held from 5 to 7 p.m. and will offer food, drinks and music by the Paul Taylor Jazz Trio. RSVP on Facebook. Other events planned for the week include a volunteer day at the Mid-South Food Bank on April 25, a memorial service on April 26 for members who have passed away, the MBA YLD's annual Legal Lines clinic on April 27, a reception for pro bono attorneys on April 28 and a naturalization ceremony on May 2. To get involved with any of these events contact Mary Lynes at mlynes@memphisbar.org or (901) 527-3573. |
Learn more about these events
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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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Discontinue your TBA Today subscription? ... Surely not!
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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