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Monday, May 02, 2011

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TBA names YouTube video contest winners

Students from across Tennessee who were challenged to produce videos on the state's unique history of law and liberty are being honored today by the Tennessee Bar Association as a part of the national Law Day celebration. First place winner in the middle school category is Anna Whittemore of McMinnville, who chose the topic of labor laws and textile mills as her video subject. First place winner in the high school category is Vivian Hughbanks of Signal Mountain, who filmed a video about machine politics and citizen efforts to restore integrity to local political systems. The contest is an initiative of TBA President Sam Elliott, who has made civics education a focus of his presidency. All winners will receive cash prizes. The two first place winners will be invited to the TBA's annual meeting in Chattanooga and have their winning videos shown to legal leaders.

Learn more about all winners

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
01 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist050211.pdf

BRENDA COLE v. GOODYEAR TIRE & RUBBER COMPANY ET AL.

Court: TWCA

Attorneys:

W. Lewis Jenkins, Dyersburg, Tennessee, for the appellants, Goodyear Tire & Rubber Company and Liberty Mutual Insurance Company.

Jeffrey A. Garrety and Michael J. Cash, Jackson, Tennessee, for the appellee, Brenda Cole.

Judge: HARRIS

An employee was struck in the back of the leg by a wooden pallet while at work. She alleged that she sustained permanent injuries to her neck, back, and foot as a result of that incident and filed a complaint against her employer in chancery court for workers' compensation benefits. Her employer denied that she had sustained any permanent impairment or disability. The chancery court held that the employee sustained a compensable injury and awarded 20% permanent partial disability benefits. The employer has appealed. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/coleb_050211.pdf

DIANDRE GOODWIN v. TURNEY CENTER DISCIPLINARY BOARD ET AL.

Court: TCA

Attorneys:

Diandre Goodwin, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mark A. Hudson, Senior Counsel, for the appellee, Turney Center Disciplinary Board, et al.

Judge: CLEMENT

An inmate at the Turney Center Industrial Complex filed a petition for writ of certiorari seeking review of the decision of the Turney Center Disciplinary Board convicting him of the disciplinary offense of possession of "security threat group material." Acting sua sponte, the Hickman County Chancery Court dismissed the petition for failure to exhaust his administrative remedies. We affirm.

http://www.tba2.org/tba_files/TCA/2011/goodwind_050211.pdf

R. DOUGLAS HUGHES ET AL. v. NEW LIFE DEVELOPMENT CORPORATION ET AL.

Court: TCA

Attorneys:

Frederick L. Hitchcock and Willa Beth Kalaidjian, Chattanooga, Tennessee, for the appellants, R. Douglas Hughes, M. Lynne Hughes, Louise Hubbs, and Guy Hubbs.

Joseph Addison Woodruff and Michael A. Gardner, Nashville, Tennessee, for the appellees, New Life Development Corp., Robby McGee, Jeffrey M. Dunkle, B.J. Cline.

Douglas Sevier Hale, Franklin, Tennessee, for the appellees, New Life Development Corp., Robby McGee, Jeffrey M. Dunkle, B.J. Cline.

Judge: BENNETT

In this dispute concerning the use of real property located in a common interest community, we have concluded that summary judgment based on the amendments to the restrictive covenants was not appropriate. We also find that the new owner has the authority to act as developer.

http://www.tba2.org/tba_files/TCA/2011/hughesr_050211.pdf

GARRETT RITTENBERRY ET AL. v. KEVIN PENNELL ET AL.

Court: TCA

Attorneys:

Philip Clark Kelly, Gallatin, Tennessee, for the appellants, Kevin Pennell and Lana Pennell.

Christopher D. Cravens, Nashville, Tennessee, for the appellees, Garrett Rittenberry and Alma Rittenberry.

Judge: BENNETT

In this boundary dispute, the defendant property owners argue that the trial court erred in its reliance on the survey of the plaintiffs' expert and in concluding that the road in front of the plaintiffs' property is a public county road. We have determined that the evidence does not preponderate against the trial court's decision to credit the survey, but that the trial court erred in concluding that the disputed part of the road was a public county road.

http://www.tba2.org/tba_files/TCA/2011/rittenberryg_050211.pdf

EARLENE WADDLE v. LORENE B. ELROD

Court: TCA

Attorneys:

W. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Lorene B. Elrod.

Mary Beth Hagan, John T. Blankenship, Murfreesboro, Tennessee, for the appellee, Earlene Waddle.

Judge: COTTRELL

The trial court's enforcement of a settlement agreement between the parties' attorneys is appealed on the sole basis that the Statute of Frauds precludes enforcement since the parties never signed any agreement and the settlement pertained to real property. Because the Statute of Frauds concerns the sale of real property interests and not settlement agreements touching upon real property interests, it is not a bar to enforcement of a settlement agreement. The trial court is affirmed on that issue. The trial court's assessment of court costs, however, is reversed as it differs from the parties' agreement.

http://www.tba2.org/tba_files/TCA/2011/waddlee_050211.pdf

CRISTINA SUZANNE WARREN v. TIMOTHY THOMAS WARREN

Court: TCA

Attorneys:

Benjamin K. Dean, Clarksville, Tennessee, for the appellant, Cristina Suzanne Warren.

Mark R. Olson, Clarksville, Tennessee, for the appellee, Timothy Thomas Warren.

Judge: COTTRELL

Wife filed a complaint seeking a divorce and child support from Husband. Husband filed no answer or counterclaim, but caused to be served upon Wife a summons directing Wife to defend a civil action against her. Husband then filed and served upon Wife a notice of a hearing for default divorce. The trial court entered a Final Decree of Absolute Divorce awarding Husband a divorce based on inappropriate marital conduct and entered Husband's proposed parenting plan designating Husband as the primary residential parent. Nearly a year later Wife filed a Rule 60.02 motion seeking to have the Final Decree set aside on the grounds of (1) mistake, inadvertence or surprise, (2) fraud, misrepresentation, and misconduct, and (3) the judgment was void. The trial court denied Wife's Rule 60.02 motion, and Wife appeals. Because the Final Decree of Divorce was not void and because of the circumstances surrounding Wife's motion, we affirm the trial court.

http://www.tba2.org/tba_files/TCA/2011/warrenc_050211.pdf

ELIZABETH C. WRIGHT, v. FREDERICO A. DIXON, III

Court: TCA

Attorneys:

James B. Johnson, Nashville, Tennessee, for the appellant, Frederico A. Dixon, III.

Lewis S. Howard, Jr., and Elizabeth S. Dodd, Knoxville, Tennessee, for the appellee, Elizabeth C. Wright.

Judge: FRANKS

In this action to enforce a contract for the sale of real estate against defendant buyer, the Trial Court held that defendant failed to make reasonable efforts to obtain a loan in accordance with the requirement to obtain a mortgage for 100% financing, and awarded damages to plaintiff for breach of the contract since the plaintiff had sold the property before trial. On appeal, we hold that the evidence preponderates against the Trial Judge's finding that the defendant failed to put forth reasonable efforts to obtain a loan which was a condition in the contract for purchase of the property, and remand.

http://www.tba2.org/tba_files/TCA/2011/wrighte_050211.pdf

STATE OF TENNESSEE v. SCOTT CLEVENGER

Court: TCCA

Attorneys:

Pepper Bowser, Rutledge, Tennessee, for the appellant, Scott Clevenger.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Tonya Thornton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Grainger County Grand Jury indicted Appellant, Scott Clevenger, for one count of aggravated sexual battery, one count of rape of a child, and two counts of incest. The trial court sentenced Appellant to an effective sentence of fifty years. On appeal, Appellant argued that he was denied his rights under Miranda v. Arizona, 384 U.S. 436 (1966). State v. Scott G. Clevenger, No. E2007-298-CCA-R3-CD, 2008 WL 588862, at *1 (Tenn. Crim. App., at Knoxville, Mar. 5, 2008). Appellant was unsuccessful on appeal because he had failed to file a motion for new trial and because this Court determined that he was advised of his rights under Miranda and, therefore, a clear and unequivocal rule of law had not been breached in order to allow plain error review. Id. at *4. After being granted a delayed appeal, Appellant once again raises the issue that he was denied his rights under Miranda. However, this issue was previously determined in this Court's review under the plain error doctrine. Therefore, the law of the case doctrine prevails and we are unable to revisit the issue. For this reason, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/clevengers_050211.pdf

TODAY'S NEWS

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Legal News

AOC announces process for filling Judicial Nominating Commission seats

The terms of five members of the Judicial Nominating Commission are set to expire on June 30, so the Administrative Office of the Courts is now accepting applications to fill those seats. The new commissioners will serve six-year terms on the body, which reviews and recommends applicants for vacancies on the appellate and state trial courts for the governor's consideration. Appointments to the commission are made by the Lieutenant Governor and the Speaker of the House.

Find out more about the application process

Court issues orders amending Rules 7 and 9

The Tennessee Supreme Court today issued orders amending two of its rules, one dealing with proceedings before the Board of Legal Examiners and the other dealing with proceedings before the Board of Professional Responsibility. In an order amending Rule 9, the court decided not to adopt proposed amendments published for public comment in March but instead made amendments to section 1.3 and section 8.3. In a second order amending Rule 7, the court again decided not to adopt the proposed amendment published for public comment in March and instead amended section 14.01. Both amendments take effect with the filing of the orders.

ACLU files suit against school system

The ACLU filed a lawsuit in federal court on Monday claiming a widespread, unconstitutional pattern of religious activities in the Sumner County school system. The move follows the filing of a complaint last week, which led the school board to secure legal representation. The suit has been filed on behalf of nine students who attend Beech High School, T.W. Hunter and Robert Ellis middle schools, and Indian Lake and Madison Creek Elementary schools, all in Hendersonville.

The Hendersonville Star News has more

Legal Aid of East Tennessee presents awards

Cleveland attorney Ashley L. Ownby recently was honored by Legal Services of East Tennessee as the "2010 Pro Bono Attorney of the Year." According to the agency, Ownby has demonstrated his commitment to equal access to justice for over a decade by consistently representing clients through its pro bono project. The agency also recognized the Cleveland law firm of Chancey, Kanavos, Love & Painter as the "Pro Bono Firm of the Year" for its work helping low-income residents of Bradley and surrounding counties.

The Cleveland Banner reports

Article provides insight into nominating panel

The Judicial Nominating Commission met recently to interview candidates to replace Knox County Criminal Court Judge Richard Baumgartner, who resigned earlier this year after admitting official misconduct. An article in the Knoxville News Sentinel provides an insider's view of the questioning of candidates.

Read it here

Too many lawyers on county payroll?

Shelby County Commissioner Terry Roland says the county government supports too many lawyers: "Either we need to get rid of some attorneys, or we need to quit hiring some attorneys." During a news conference Friday, Roland also criticized the practice of paying pension and other benefits to part-time lawyers. But County Attorney Kelly Rayne said there's a "tremendous" caseload for the 15 full-time lawyers and 14 part-time lawyers in her office.

The Commercial Appeal reports

Law school scholarships in the spotlight

A recent article in The New York Times takes on the subject of how many first-year law students lose their merit scholarships when they cannot maintain the required grade point average. It concludes that schools offer these scholarships to "build the best class that money can buy," but often do so "at the expense of students, who in many cases figure out the perils of the merit scholarship game far too late."