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Tuesday, May 24, 2011

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June 1 deadline for Court of Judiciary nominations

The Tennessee Bar Association Board of Governors, at its June 18 meeting, will select three members -- one from each grand division -- to sit on the Tennessee Court of Judiciary. The position from East Tennessee is currently held by Pamela Reeves of Knoxville while the position from West Tennessee is held by David Cook. Both Reeves and Cook are eligible for reappointment. The other TBA-appointed member, Mary Schaffner of Nashville, is ineligible for reappointment. In order to be considered for this appointment, members should submit a letter indicating their interest along with a resume to TBA Executive Director Allan F. Ramsaur at the Tennessee Bar Center, 221 Fourth Avenue North, Suite 400, Nashville, TN 37219, not later than June 1.

Review the procedure the Board will use to fill the seats

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
05 - TN Court of Appeals
02 - 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.

DALTON REB HUGHES ET AL. v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE ET AL.

Court: TSC

Attorneys:

Kevin C. Klein, Andrew David McClanahan, James William Jefferson Farrar, Melissa S. Roberge, and Sue Cain, Nashville, Tennessee, for the appellants, Metropolitan Government of Nashville and Davidson County, Tennessee.

Irene Regina Haude and Michael Joseph Flanagan, Nashville, Tennessee, for the appellee, Frank Archey.

Joe Mann Haynes, Goodlettsville, Tennessee, for the appellees, Dalton Reb Hughes and Sandra Hines Hughes.

Judge: WADE

After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed. The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee's conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee.

http://www.tba2.org/tba_files/TSC/2011/hughesd_052411.pdf

KATHLEEN ANNE DILLEY v. JAMES KEVIN DILLEY

Court: TCA

Attorneys:

Bert W. McCarter, Murfreesboro, Tennessee, for the appellant, James Kevin Dilley.

Susan M. Merry, Andrea Hagan, Lebanon, Tennessee, for the appellee, Kathleen Anne (Hansen) Dilley.

Judge: COTTRELL

In this divorce case the father appeals the trial court's naming of the mother as the primary residential parent, the calculation of the mother's income for purposes of child support, and the trial court's valuation and division of marital assets. We find the record supports the trial court's decision to name the mother the primary residential parent. We further find the evidence does not preponderate against the trial court's valuation and division of the parties' marital assets. An equitable division of marital assets does not require an equal division between the parties, and the court did not abuse its discretion in this regard. The trial court did not err in calculating the parties' incomes for child support purposes. We conclude the mother is entitled to an award of some of the attorney's fees she incurred in this appeal. We affirm the trial court in all respects and remand the case for a determination of the amount of the mother's attorney's fees on appeal to be paid by the father.

http://www.tba2.org/tba_files/TCA/2011/dilleyk_052411.pdf

THOMAS L. GRIMES, ET AL. v. HELEN CORNELL

Court: TCA

Attorneys:

Helen Cornell, Nashville, Tennessee, Pro Se.

John Lester Whitfield and Michael Mario Castellarin, Nashville, Tennessee, for the appellees, Thomas L. Grimes, Jeff Grimes, and Michael Grimes.

Judge: DINKINS

This appeal involves a will contest in which the trial court found that a will executed in 2005 was the product of undue influence and, as a consequence, admitted a will executed by the testator in 2004 to probate. The proponent of the 2005 Will appeals the finding of undue influence as well as the dismissal of her claim for intentional infliction of emotional distress and award of attorney's fees to Plaintiffs to be paid from the estate. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2011/grimest_052411.pdf

MARK H. RUTH, v. ROBIN M. RUTH
CORRECTION: " December 13, 2010 Session" was changed to "Assigned May 13, 2011"

Court: TCA

Attorneys:

Robin M. Ruth, Knoxville, Tennessee, pro se.

Mark H. Ruth, Knoxville, Tennessee, pro se.

Judge: PER CURIAM

This appeal is before the Court due to the failure of appellant to respond to a Show Cause Order in this Court as to why the appeal should not be dismissed as premature.

http://www.tba2.org/tba_files/TCA/2011/ruthm_COR_052411.pdf

JOHNATHAN LEONARD SULLIVAN v. TRACY L. BROOKS

Court: TCA

Attorneys:

Derrick H. Green, Mt. Juliet, Tennessee, for the appellant, Tracy L. Brooks.

Michael R. Giaimo, Cookeville, Tennessee, for the appellee, Johnathan Leonard Sullivan.

Judge: COTTRELL

Mother appeals trial court's decision to change the parties' nonmarital child's surname to that of the father. Finding that the father failed to meet his burden of proving that a name change was in the child's best interest, we reverse.

http://www.tba2.org/tba_files/TCA/2011/sullivanj_052411.pdf

KENNETH W. TAYLOR v. LAWRENCE COUNTY, TENNESSEE ELECTION COMMISSION ET AL.

Court: TCA

Attorneys:

John Russell Parkes and Charles McIver Molder, Columbia, Tennessee, for the appellant, Kenneth W. Taylor.

John Christopher Williams, Lawrenceburg, Tennessee, for the appellees, Lawrence County, Tennessee, Election Commission and June Davis.

Walter Charles Doerflinger, Lawrenceburg, Tennessee, for the appellee, Jimmy Brown.

Judge: BENNETT

Unsuccessful sheriff candidate sued to void the August 5, 2010 Lawrence County sheriff's election based on the ineligibility of one of the five candidates. The trial court found the challenged candidate ineligible but declined to void the election. On appeal, we find the plaintiff guilty of gross laches in waiting to file suit to the prejudice of the defendants. Therefore, we reverse the trial court's order.

http://www.tba2.org/tba_files/TCA/2011/taylork_052411.pdf

SHAWN RAFAEL BOUGH v. JIM MORROW, WARDEN

Court: TCCA

Attorneys:

Shawn Rafael Bough, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Shawn Rafael Bough, appeals from the Bledsoe County Circuit Court's dismissal of his petition for habeas corpus relief. The State of Tennessee has moved to have this court summarily affirm the dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the motion and affirm the order of dismissal pursuant to Rule 20.

http://www.tba2.org/tba_files/TCCA/2011/boughs_052411.pdf

STATE OF TENNESSEE v. JOHN E. LANE

Court: TCCA

Attorneys:

James L. Deaton, Dandridge, Tennessee, for the appellant, John E. Lane.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James B. Dunn, District Attorney General; and Tonya Keith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Grainger County Circuit Court Jury convicted the appellant, John E. Lane, of the premeditated first degree murder of Joe Brooks and conspiracy to commit first degree murder. The trial court imposed a total effective sentence of life in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence underlying his convictions. Upon review, we affirm the appellant's conviction for first degree murder but reverse his conviction for conspiracy.

http://www.tba2.org/tba_files/TCCA/2011/lanej_052411.pdf

TODAY'S NEWS

Passages
Legal News
Career Opportunities
TBA Member Services

Passages

Former TBA Family Law chair Mitchell Byrd dies

Services have been set for Friday for Chattanooga attorney Mitchell A. Byrd, 61, who died today (Tuesday). Originally from Johnson City, he began practicing law in 1976 in Chattanooga after graduating from the Cecil M. Humphreys School of Law in Memphis. Mr. Byrd was chair of the Tennessee Bar Association's Family Law Section in 2007-2008, served on the Family Law Code Commission, on the Child Support Guidelines Committee, and was a contributing author to the Alimony Bench Book. He was honored by the section on May 19 with a resolution of "appreciation, thanks and gratitude for his years of dedicated service." Visitation will be at Lane Funeral Home on Ashland Terrace on Friday from 11 a.m. to 2:30 p.m. Funeral services will be at 3 p.m. with the burial following at the Hamilton Memorial Garden on Highway 153. In lieu of flowers, donations may be made to the Cancer Society or Hospice of Chattanooga.

Legal News

Gov. signs 'Equal Access' bill, Rubenfeld promises lawsuit

Gov. Bill Haslam signed the Equal Access to Intrastate Commerce Act, HB600, Monday afternoon. The bill effectively reverses an ordinance passed by the Metro Nashville Council that required contractors with the city to agree to follow Metro's rules barring discrimination against gay, lesbian and transgendered people. Shortly after the governor signed the bill, Nashville attorney Abby Rubenfeld told the Nashville Scene, "Yes, you can expect a lawsuit." She wouldn't provide details but said a New York-based national firm would be assisting local attorneys in the suit.

The Tennessean has more on the legislation

Crocker named U.S. trustee

Samuel K. Crocker has been appointed by Attorney General Eric Holder as U.S. trustee for Tennessee and Kentucky (Region 8), and will assume his duties in June, the Executive Office for U.S. Trustees announced today. Crocker replaces Daniel M. McDermott, the U.S. trustee for Region 9 (Ohio and Michigan), who has also served as U.S. Trustee for Region 8 since January 2011. Crocker has been in the private practice of law in Nashville for more than 25 years, primarily representing bankruptcy debtors, creditors and trustees. In addition, since 1984 he has been a member of the panel of Chapter 7 trustees in the Middle District of Tennessee. Region 8 is headquartered in Memphis, with offices in Nashville, Chattanooga and Louisville and Lexington, Ky.

Editorial: Rutherford Drug Court should get more money

In an editorial, the Daily News Journal makes its case for more money to be allocated to Rutherford County's Drug Court. The county currently receives $50,000 a year in state funding, according to the paper, while the state's four largest counties -- Shelby, Davidson, Knox and Hamilton -- receive $500,000 annually. Rutherford is lumped in with the rest of the state's 92 "rural" counties, splitting $1.5 million among them. Agreeing with state Rep. Rick Womick, R-Murfreesboro, the paper supports his asking that Rutherford's funding be boosted to $400,000 a year by adding it to the mix of the four largest counties. Rutherford County Drug Court serves the third largest number of people of any similar court in Tennessee, the paper says.

Read the editorial

Is Iowa Supreme Court becoming politicized?

Iowa's judicial system is in jeopardy of becoming highly politicized if judges continue to face retention elections like that of 2010, Mark Cady, chief justice of the Iowa Supreme Court, said Friday. All three of the Iowa Supreme Court justices who were up for retention last November were voted off the bench after organizations that opposed a decision legalizing gay marriage, spent much money and effort campaigning against them. Several Republican lawmakers have called for the remaining four justices to be impeached.

The Iowa City Press-Citizen has more

Gonzales says he is 'disappointed' in himself

"I feel disappointment in myself," former Attorney General Alberto Gonzales said, regarding the politicization of the system of hiring career Justice Department attorneys through its honors program during his time in office. The statement is according to filings this week in a pending suit filed on behalf of applicants who were rejected for the program for political or ideological reasons. Gonzales' statements came during a deposition he gave last September in the case of Gerlich v. Department of Justice, now pending before Judge John Bates in the U.S. District Court for the District of Columbia.

The Blog of Legal Times has more

Hangover II: Can a tatoo be copyrighted?

"The Hangover: Part II" will open this week after U.S. District Judge Catherine Perry refused to issue an injunction barring its release. Perry ruled in a suit by tattoo artist S. Victor Whitmill, who claims an actor in the movie sports a tattoo on his face with Whitmill's copyrighted design. Whitmill originally created the tattoo for prizefighter Mike Tyson. A brief for Warner Bros. had argued that "the very copyrightability of tattoos is a novel issue."

ABAJournal.com connects you to more

Brad Paisley joins First Amendment campaign

The national public education campaign, "1 for All," announced today the addition of award-winning country music singer and songwriter Brad Paisley to its lineup of celebrity supporters. "1 for All" addresses a lack of understanding among the American public about the freedoms granted by the First Amendment. "Freedom is what makes America great," said Paisley. "I count myself blessed to live in a country where I can exercise that right every day, whether I'm writing, recording or performing."

The First Amendment Center has it

Career Opportunities

Attorney sought for Nashville environmental law office

The Southern Environmental Law Center seeks a managing attorney for its new Nashville office, which will initially be staffed with three attorneys.

Learn more about the job from JobLink

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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.