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| Thursday, May 26, 2011 |
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U.S. wins $82.6 million in Medicare fraud case
The United States was awarded $82.6 million today in a whisteblower case against Renal Care Group, Renal Care Group Supply Company and Fresenius Medical Care Holdings Inc. The case, decided by District Court Judge William J. Haynes Jr., found the companies recklessly disregarded federal law when billing the Medicare program for home dialysis supplies and equipment from 1999 to 2005. Specifically, the judge found that executives set up a sham supply company that appeared to be independent from the dialysis services business, interfered with patients' choice of supply options, and disregarded the advice of company lawyers.
Read more in this press release from the U.S. attorney's office
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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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IN THE MATTER OF: BRANDON C. S. (d/o/b 10/1/2002), a Child Under Eighteen (18) Years of Age
Court: TCA
Attorneys:
Alicia A. Howard, Memphis, Tennessee, for the appellants.
Robert E. Cooper, Jr., Attorney General and Reporter and Marcie E. Greene, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.
Judge: FARMER
The trial court terminated the parental rights of Mother and Father on the grounds of persistence of conditions and severe child abuse. We affirm.
http://www.tba2.org/tba_files/TCA/2011/brandoncs_052611.pdf
THE ESTATE OF PAULINE VERNUSE BUTLER, v. PAUL V. PEEPLES, SR.
Court: TCA
Attorneys:
Jerre B. Mosley, and R. Jonathan Guthrie, Chattanooga, Tennessee, for the appellant, Paul V. Peeples, Sr.
Lynn Dechman, Chattanooga, Tennessee, for the appellee, The Estate of Pauline Vernuse Butler.
Judge: FRANKS
The representative of this Estate filed a "Motion to Marshal Assets" alleging that a California resident held assets of the Estate and had refused to turn them over to the Estate. The Trial Court summarily ordered the California resident to surrender any assets held and turn them over to the Estate. Paul V. Peeples, the California resident, filed a Motion in Probate Court that the Court had no personal jurisdiction over him, along with his affidavit. His Motion was denied. He appealed to this Court and we hold that he was not subject to the jurisdiction of the Trial Court and reverse the orders against him and dismiss him as a party to the probate
estate action.
http://www.tba2.org/tba_files/TCA/2011/butlerv_052611.pdf
CRYE-LEIKE, INC. v. SARAH A. CARVER
With Concurring Opinion
Court: TCA
Attorneys:
Brittan Webb Robinson and Roger A. Stone, Memphis, Tennessee, for the appellant, Crye-Leike, Inc.
Kenneth Raymond Besser and Al H. Thomas, Memphis, Tennessee, for the appellee, Sarah A. Carver.
Judge: FARMER
This is a dispute over a real estate sales commission. The seller entered into a six-month exclusive listing agreement with a realty company. The agreement expired on August 21,
2007, one day before the eventual purchasers were shown the property. The realty company filed suit to recover a commission asserting it caused the property to be shown to the purchasers prior to August 21 and, in the alternative, the parties orally and through their actions extended the listing agreement to August 30, 2007. The trial court concluded the
realty company was not entitled to a commission under the plain language of the listing agreement because the property was not shown or submitted to the purchasers prior to August
21 and the parties did not extend the agreement to August 30. We affirm.
http://www.tba2.org/tba_files/TCA/2011/carvers_052611.pdf
Kirby Concurring
http://www.tba2.org/tba_files/TCA/2011/carvers_con_052611.pdf
DONNA CLARK v. SPUTNIKS, LLC ET AL.
Court: TCA
Attorneys:
Russell Edward Reviere and Jonathan David Stewart, Jackson, Tennessee, for the appellant, QBE Insurance Corporation.
William Bryan Jakes, III and Mary Martin Schaffner, Nashville, Tennessee, for the appellee, Donna Clark.
Joseph Michael Dalton, Hendersonville, Tennessee, for the appellee, Donna Clark.
Judge: BENNETT
The trial court determined that the insuror of a bar was liable under its commercial general liability policy and liquor liability policy for the death of a bar patron. We have concluded that this occurrence is excluded under the assault and battery exclusion of the commercial general liability policy but is covered by the liquor liability policy.
http://www.tba2.org/tba_files/TCA/2011/clarkd_052611.pdf
LEONARD GAMBLE v. SPUTNIKS, LLC ET AL.
Court: TCA
Attorneys:
Russell Edward Reviere and Jonathan David Stewart, Jackson, Tennessee, for the appellant, QBE Insurance Corporation.
William Bryan Jakes, III and Mary Martin Schaffner, Nashville, Tennessee, for the appellee, Leonard Gamble.
Judge: BENNETT
The trial court determined that the insuror of a bar was liable under its commercial general liability policy and liquor liability policy for injuries to a bar patron. We have concluded that this occurrence is excluded under the assault and battery exclusion of the commercial general liability policy but is covered by the liquor liability policy.
http://www.tba2.org/tba_files/TCA/2011/gamblel_052611.pdf
LARRY HENDRICKS v. TENNESSEE BOARD OF PROBATION & PAROLE
Court: TCA
Attorneys:
Larry Hendricks, Nashville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter, Kellena A. Baker, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Board of Probation & Parole.
Judge: HIGHERS
Petitioner filed a petition for writ of certiorari alleging that the Tennessee Board of Probation and Parole acted arbitrarily and illegally in denying him parole. After reviewing the record, the chancery court concluded that the Board acted lawfully, and it dismissed the petition. Petitioner appeals, and we affirm.
http://www.tba2.org/tba_files/TCA/2011/hendricksl_052611.pdf
JIM REED, et al., v. CAMBRIDGE RESOURCES, INC., et al.
Court: TCA
Attorneys:
Johnny Von Dunaway, LaFollette, Tennessee, for the appellants, Jim Reed and James Lueking.
John Wingo, Nashville, Tennessee, for the appellees, Cambridge Resources, Inc., Lick
Branch Unit Joint Venture, Oneida Gas, Inc., and PDC Resources, Inc.
Judge: PER CURIAM
This appeal came before the Court on appellants' "Motion to Stay the Appeal" until an Order on appellees' timely motions for a new trial and to alter or amend the judgment is
entered. The motion asserts that a hearing on the new trial motions took place on May 3, 2011, and that an order is yet to be entered by the Trial Court on the motion. However, our
review of the record reveals there are unresolved issues other than post trial motions. Specifically, the Judgment states "The issue of Plaintiffs' right to recover as damages one-eighth
of the gross rentals Defendants received for storage of gas under Plaintiffs' property shall be held in abeyance."
http://www.tba2.org/tba_files/TCA/2011/reedj_052611.pdf
TIMOTHY C. RUSSELL, v. SUZANNE COLETTE LANDRY LYUBIMOV
Court: TCA
Attorneys:
Timothy Russell, Hixson, Tennessee, pro se.
Dennis C. Campbell, Sevierville, Tennessee, for the appellee, Suzanne Colette Landry
Lyubimov.
Judge: PER CURIAM
On May 2, 2011, a show cause order was entered in this case, directing appellant to show cause why the appeal should not be dismissed for lack of jurisdiction. Appellant responded to the show cause order, but the argument in the response does not establish good cause for maintaining this case in this court. The Order entered by the Trial Judge on November 8, 2010, demonstrates that there are issues yet to be resolved in the Trial Court before a Tenn. R. App. P. 3, appeal will lie. Accordingly, the appeal is dismissed and the cost of the appeal is assessed to Timothy C. Russell.
http://www.tba2.org/tba_files/TCA/2011/russellt_052611.pdf
STATE OF TENNESSEE v. CAULEY McCLITON CROSS
Court: TCCA
Attorneys:
Donna Orr Hargrove, District Public Defender; Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the Defendant-Appellant, Cauley M. Cross.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Frank Crawford, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Defendant-Appellant, Cauley Cross, was convicted by a Marshall County jury of two counts of aggravated sexual battery, a Class B felony, and three counts of exhibition of
obscene materials to a minor, a Class A misdemeanor. He was sentenced as a child predator to concurrent terms of ten years for both aggravated sexual battery convictions. For the
misdemeanor offenses, Cross was sentenced to eleven months and twenty-nine days in the county jail, to be served concurrently, for an effective sentence of ten years. On appeal, he claims: (1) his convictions were not supported by sufficient evidence; (2) his sentences for aggravated sexual battery were excessive; and (3) his convictions for aggravated sexual battery should be merged. Upon review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/crossc_052611.pdf.pdf
STATE OF TENNESSEE v. KENNETH DUNLAP
Court: TCCA
Attorneys:
Gregory D. Gookin, Assistant District Public Defender, for the appellant, Kenneth Dunlap.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant entered pleas of guilty in the Madison County Circuit Court to five counts of aggravated burglary, see T.C.A. section 39-14-403(a) (2006); two counts of theft of property
valued at $1,000 or more but less than $10,000, see id. section 39-14-103, -105(3); three counts of theft of property valued at more than $500 but less than $1,000, see id. section 39-14-103, -105(2); one count of vandalism of property valued at more than $500 but less than $10,000, see id. section 39-14-408(a); one count of vandalism of property valued at $500 or less, see id. section 39-14-408, -105(2); and tampering with evidence, see id. section 39-16-503(a)(1). The trial court imposed a total effective sentence of 15 years to be served in the Department of Correction. In this appeal, the defendant contends that the trial court erred by ordering consecutive sentencing. Discerning no error, we affirm.
http://www.tba2.org/tba_files/TCCA/2011/dunlapk_052611.pdf
STATE OF TENNESSEE v. EMANUEL HAMILTON
Court: TCCA
Attorneys:
Michael Colavecchio, Nashville, Tennessee, for the appellant, Emanuel Hamilton.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia Lee, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Jeff Burks and Stacey Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Emanuel Hamilton, appeals the Davidson County Criminal Court's order revoking his probation for possession with the intent to deliver one-half gram or more of
cocaine, a Class B felony, and sale of less than one-half gram of cocaine, a Class C felony, and ordering the remainder of his effective eleven-year sentence to be served in confinement.
He contends that he should have been returned to probation. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/hamiltone_052611.pdf
STATE OF TENNESSEE v. DARRELL ANTHONY JONES
Court: TCCA
Attorneys:
Kenneth Quillen, Nashville, Tennessee, for the appellant, Darrell Anthony Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Debbie Housel,
Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Appellant, Darrell Anthony Jones, was charged in two separate indictments by the Davidson County Grand Jury for one count of possession of cocaine with intent to sell or deliver, two counts of possession of marijuana with intent to sell or deliver, one count of possession of a firearm by a convicted felon, one count of criminal impersonation, and one count of driving on a suspended, revoked, or canceled driver's license. Appellant pled guilty to one count of
felony possession of cocaine and one count of felony possession of marijuana, for a total effective sentence of four years. The remaining counts were dismissed. Pursuant to the plea agreement, the sentences were suspended, and Appellant was placed on four years of supervised probation. A probation violation warrant was filed. After a hearing, the trial court determined that Appellant had violated the terms of his probation and imposed a sentence of one year to serve, after which Appellant was to be reinstated to probation for
three years. Appellant contends on appeal that the evidence did not support the finding that he violated the terms of his probation. After a thorough review of the record, we conclude
that the trial court properly revoked Appellant's probation. Accordingly, the judgment of the trial court is affirmed.
http://www.tba2.org/tba_files/TCCA/2011/jonesd_052611.pdf
STATE OF TENNESSEE v. LAWRENCE E. RALPH
Court: TCCA
Attorneys:
Lawrence E. Ralph, Spencer, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and William M. Locke,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
A Warren County Circuit Court jury convicted the defendant, Lawrence E. Ralph, of violation of the seatbelt law, see T.C.A. section 55-9-603, and operating a vehicle in violation of
restrictive condition number 01 (driving without corrective lenses), see id. section 55-50-331. The trial court imposed concurrent sentences of 30 days and 11 months and 29 days, respectively, suspended to intensive probation following the service of 120 days in jail. Additionally, the trial court imposed fines totaling $1,010 and ordered the defendant to perform 40 hours of community service as a condition of his probation. The defendant appeals pro se, making various arguments concerning the propriety of his trial in circuit court and the trial court's sentencing. Because the defendant filed his notice of appeal prior to his motion for new trial
and failed to prepare an adequate record on appeal, we determine that his issues are waived and affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/lawrencer_052611.pdf
CHARLES WADE MCGAHA v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Benjamin S. Burton, Sevierville, Tennessee, for the Appellant, Charles Wade McGaha.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
A Cocke County jury convicted the Petitioner, Charles Wade McGaha, of first degree murder and aggravated assault. The Petitioner filed a petition for post-conviction relief, which
appointed counsel amended to allege the petitioner received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, and the Petitioner now
appeals. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/mcgahac_052611.pdf
STATE OF TENNESSEE v. JAMES ALTON WALTON
Court: TCCA
Attorneys:
James E. Lanier, District Public Defender; Patrick McGill (on appeal and at trial) and Christy Cooper (at trial), Assistant Public Defenders, for the appellant, James Alton Walton.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Renee Creasy and Karen Burns,
Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: MCLIN
A jury convicted the defendant, James Alton Walton, of aggravated burglary, a Class C felony, and theft of property $500 or less, a Class A misdemeanor. The trial court sentenced
him to an effective ten-year sentence. On appeal, the defendant argues that the evidence was insufficient to sustain his convictions and that the trial court erred in sentencing the defendant. After reviewing the record, the parties' briefs, and applicable law, we affirm the
judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/waltonj_052611.pdf
IN RE: SAMUEL MINGLEDORFF, BPR 017490
Court: TSC-Disciplinary_Order
Judge: PER CURIAM
Disbarment
http://www.tba2.org/tba_files/TSC/2011/mingledorffs_052611.pdf
Holder Dissenting
http://www.tba2.org/tba_files/TSC/2011/mingledorffs_diss_052611.pdf
IN RE: WILLIAM B. PENN, BPR 0I8173
Court: TSC-Disciplinary_Order
Judge: CLARK
Suspension
http://www.tba2.org/tba_files/TSC/2011/pennw_052611.pdf
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| Legal News |
| Sumner schools defend religious interactions |
| The Sumner County School District, which is being sued by the American Civil Liberties Union of Tennessee for allegedly promoting Christianity, argues some interactions between church and state are inevitable and should be tolerated. The school cites two Supreme Court decisions to bolster its argument. Its defense is being provided by the nonprofit organization American Center for Law & Justice. |
The Tennessean looks at the case
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| Nashville's Drescher & Sharp changes name |
| A month after the U.S. Senate confirmed Nashville attorney Kevin Sharp to the U.S. District Court for the Middle District of Tennessee, his former firm is changing its name to Drescher Heller Pieper Martin PC. The new name reflects the addition of David E. Heller, Sean J. Martin and Bryan E. Pieper as members. The firm was required to rebrand itself as judges' names cannot be associated with law firms. |
The Nashville Post has more (subscription required)
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| Holder encourages women in transitional program |
| U.S. Attorney General Eric H. Holder Jr. was in Chattanooga yesterday to celebrate the opening of a new facility that will provide counseling, job training and support for female inmates re-entering society. He praised The Next Door Inc. for taking a comprehensive approach to the issues of re-entry and said its program is a model that can be replicated in other states.
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The Times Free Press reports
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| Congressional News |
| Liu withdraws appeals court nomination |
| University of California at Berkeley law professor Goodwin Liu has withdrawn his nomination to the 9th U.S. Circuit Court of Appeals after Senate Republicans blocked a vote on his confirmation. In a letter to President Obama, Liu said the 9th Circuit has a "desperate need for judges" and that continuing his nomination "will not address that need any time soon." |
The Bristol Herald Courier has more on the story
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| Congress has midnight deadline on anti-terror bill |
| Lawmakers are rushing to extend the life of three anti-terror tools before they expire at midnight tonight. The legislation under consideration would extend authority for law enforcement to conduct roving wiretaps, access business records and other documents that might be relevant to a terrorist threat, and conduct surveillance of "lone wolf" suspects not known to be tied to specific terrorist groups. Both the Senate and House must pass the bill before it can go to President Obama for his signature. |
WRCB-TV Chattanooga reports
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| U.S. Supreme Court |
| Justice Alito presents annual book award |
| U.S. Supreme Court Justice Samuel Alito yesterday presented the annual George Washington Book Award to Pauline Maier, a history professor at the Massachusetts Institute of Technology. Maier was recognized for her book "Ratification: The People Debate the Constitution, 1787-1788." According to the Associated Press, the book "picks up where the Constitutional Convention...left off, detailing the state-by-state battle" to ratify the document. The award and accompanying $50,000 cash prize honor what judges deem to be the year's best book about America's founding. |
Learn more from WJHL News 11
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| Upcoming |
| Memphis lawyer launches new mediation center |
| Memphis lawyer Rebecca Adelman, a principal of Adelman Law Firm, is launching a new mediation practice. The Conflict Resolution Center of the Mid-South will celebrate a grand opening on Friday, May 27, from 5 to 9 p.m. at the Historic Central Station, 545 South Main. The mission of the center is to provide conflict resolution services as well as resources for the community. The festivities also will include a celebration of the 10th anniversary of the Adelman Law Firm. The event is open to all. Please call (901) 529-9313 for more information.
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| Disciplinary Actions |
| Memphis lawyer suspended |
| On May 8, Memphis lawyer William B. Penn was suspended for three years by the Tennessee Supreme Court. However, the court allowed him to serve two of the years on probation. The court determined that he violated disciplinary rules by failing to preserve client confidences and secrets, failing to safeguard client funds, and taking an excessive unearned fee. Prior to reinstatement, Penn must pay $36,040 in restitution and pay the costs of the disciplinary proceeding.
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Download the court order
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| Wilson County lawyer disbarred |
On May 9, the Tennessee Supreme Court disbarred Wilson County lawyer Samuel Mingledorff. The court determined that he violated disciplinary rules by abandoning his practice, practicing law while suspended, and failing to respond to the Board of Professional Responsibility. It also ordered him to pay the costs of his disciplinary proceeding.
Download the court order here
In a dissenting opinion filed in the case, Justice Janice Holder argues that Mingledorff should be referred to the Tennessee Lawyers Assistance Program for evaluation prior to imposing displinary action. |
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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.
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