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| Tuesday, May 31, 2011 |
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2011 Law Day contest winners announced
The Tennessee Bar Associaiton today announced the winners of the 2011 Tennessee Law Day Art and
Essay Competitions. The theme of this year's contest was "The Legacy of John
Adams: From Boston to Guantanamo." It was designed to educate students about
Adams' role in defending British soldiers arrested in what would come to be
known as the Boston Massacre. Students were asked to explore the historical
and contemporary role of lawyers in defending the rights of the accused --
even those that are unpopular -- and depict those concepts in their work.
The first-place winner in the art competition is Kylie Mackenzie Bowman, a fifth grade
student at Cedar Bluff Elementary in Knoxville. The first-place essay contest winner is Ashton Banta, a senior
at Red Bank High School in Chattanooga.
Students will receive cash prizes and have their
work displayed at the TBA Convention in Chattanooga in June.
Jackson lawyer Michelle Sellers with Rainey, Kizer, Reviere & Bell
PLC served as chair of this year's state competition.
See the list of all winners and the winning entries
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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
03 - TN Court of Appeals
03 - 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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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_053111.pdf
JEFFEREY D. KEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RANDALL EUGENE KEY ET AL.v. BLOUNT MEMORIAL HOSPITAL, INC. ET AL.
Court: TCA
Attorneys:
John C. Duffy, Knoxville, Tennessee, for the appellants, Jefferey D. Key, individually and as administrator of the Estate of Randall Eugene Key, deceased, William Key, Betty Key, Amanda J. Key and Sondra Clark.
Diane M. Hicks, Maryville, Tennessee, for the appellee, Blount Memorial Hospital, Inc.
Judge: SUSANO
This is an appeal from a grant of summary judgment to the defendant hospital in a medical malpractice wrongful death case. The trial court struck as untimely the materials filed by the plaintiff in opposition to the defendant's motion for summary judgment. The responsive materials were filed less than five days before the date originally scheduled for a hearing on the defendant's motion; however the hearing was continued for several months. Having struck the plaintiff's filings, the court held that the motion negated violation of the standard of care and causation and granted the motion as unopposed. The plaintiff contends on appeal that the defendant did not negate either violation of the standard of care or causation; that the materials responsive to the motion should not have been stricken; and that, if the materials filed in opposition to the motion are considered, the plaintiff presented issues of material fact for trial. We vacate the trial court's grant of summary judgment and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2011/keyj_053111.pdf
JERRY ALAN RICHARDS v. TINA LOU RICHARDS
Court: TCA
Attorneys:
Robert W. White, Maryville, Tennessee, for the appellant, Jerry Alan Richards.
Rebecca D. Slone, Dandridge, Tennessee, for the appellee, Tina Lou Richards (Long).
Judge: MCCLARTY
This is a post-divorce case where both parties sought to modify the existing custody arrangement. At the time of the divorce, the parties agreed to equal co-parenting time. Upon
the mother's request for modification, the court designated her as the primary residential parent and awarded the father standard co-parenting time. The trial court also ordered the
father to pay child support and certain outstanding expenses incurred by the mother toward the child's care. Further, the mother was awarded her attorney fees. In the initial appeal, we found that a material change in circumstances had not been proven. Accordingly, we reversed the trial court's modification of the original custody arrangement and reinstated the initial permanent parenting plan. We also vacated the trial court's order as to child support, the payment by the father of expenses incurred by the mother, and the award of attorney fees to the mother, and remanded the case to the trial court for further proceedings. The matter
was reheard, with the parties stipulating that there has been a material and substantial change in circumstances. The trial court again named the mother primary residential parent, with the father having co-parenting time every other weekend and on an alternating two-week schedule in the summer. The father appeals. We hold that the evidence does not preponderate against the trial court's findings. The judgment of the trial court is affirmed.
http://www.tba2.org/tba_files/TCA/2011/richardsj_053111.pdf
IN RE ESTATE OF ELOISE J. STOREY
PEGGIE SHERRILL HUBER v. LAWRENCE G. YOHANEK, CPA, A/K/A LARRY G. YOHANEK, SHARRON S. YOHANEK, AND JOHN GARY STOREY
Court: TCA
Attorneys:
John D. Horne, Memphis, Tennessee, for the Plaintiff/Appellant, Peggie Sherrill Huber.
James M. Hivner, Memphis, Tennessee, for the Defendants/Appellees, Lawrence G. Yohanek, CPA a/k/a Larry G. Yohanek, Sharron S. Yohanek, and John Gary Storey.
Judge: KIRBY
This lawsuit was filed by the decedent's daughter against other family members alleging undue influence, conversion, breach of fiduciary duty, and civil conspiracy. After the
decedent suffered a stroke, the family members, as attorney in fact and signatory on the decedent's bank accounts, made gifts from the decedent's assets to themselves and to other
family members. After the decedent died, the plaintiff daughter filed this lawsuit, alleging that the defendant family members wrongfully depleted the decedent's assets during her
lifetime so as to deprive the plaintiff of her specific bequest in the decedent's will. The defendants filed a motion for partial summary judgment on various grounds. The trial court
granted in part and denied in part the defendants' motion finding, inter alia, that the plaintiff did not submit evidence to support several of her claims, and that several claims were barred by the statute of limitations. The Plaintiff now appeals. On appeal, we apply the Tennessee Supreme court's revised analytical framework for summary judgment motions, requiring the defendant movants to either conclusively establish facts supporting an affirmative defense or negate an essential element of the plaintiff's claim. Applying this standard, we affirm in part, reverse in part, and remand.
http://www.tba2.org/tba_files/TCA/2011/storeye_053111.pdf
STATE OF TENNESSEE v. SHIRLEY LARHONDA GAGNE
Court: TCCA
Attorneys:
Michael G. Hatmaker, Jacksboro, Tennessee, for the Appellant, Shirley LaRhonda Gagne.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General; and LaTosha Wassom, Assistant
District Attorney General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
A Campbell County jury convicted the Defendant, Shirley LaRhonda Gagne, of driving under the influence ("DUI"), third offense; driving on a suspended license, second offense;
possession of drug paraphernalia; violation of the seatbelt law; and violation of the open container law. The trial court sentenced the Defendant to eleven months and twenty-nine
days, with 130 days to be served in confinement and the remainder to be served on probation. On appeal, the Defendant contends that: (1) the trial court erred when it admitted into evidence testimony pertaining to a blood sample taken from her; and (2) the evidence is insufficient to support her conviction for DUI, third offense. After a thorough review of the record and applicable law, we affirm the trial court's judgments.
http://www.tba2.org/tba_files/TCCA/2011/gagnes_053111.pdf
LORENZO JOHNSON v. CORRECTIONS CORPORATION OF AMERICA, ET AL.
Court: TCCA
Attorneys:
Lorenzo Johnson, Pro se.
Melissa K. Van Pelt, Jon A. York and James I. Pentecost, Jackson, Tennessee, for the appellee, Corrections Corporation of America.
Judge: FARMER
This is an appeal from an order dismissing an inmate's civil rights action. Because the inmate clearly did not move to dismiss his action, we reverse the decision of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/johnsonl_053111.pdf
JOSHUA D. SCHAFFER v. STATE OF TENNESSEE BOARD OF PROBATION AND PAROLE
Court: TCCA
Attorneys:
Gregory P. Isaacs and Andrea B. Mohr, Knoxville, Tennessee, for the appellant, Joshua D. Schaffer.
Robert E. Cooper, Jr., Attorney General and Reporter and Kellena Baker, Assistant Attorney General, Tennessee, for the appellee, State of Tennessee Board of Probation and Parole.
Judge: FARMER
This appeal involves subject matter jurisdiction over a petition for a writ of certiorari. The petitioner is an inmate in the custody of the Tennessee Department of Correction. The
respondent, the Tennessee Board of Probation and Parole, denied the inmate's request for parole. The inmate thereafter filed a petition for a writ of certiorari in the chancery court
challenging the Board's decision as illegal, arbitrary, and fraudulent. The chancery court dismissed the case for lack of subject matter jurisdiction because the inmate did not file a
verified, notarized petition within the sixty-day jurisdictional time limit. We affirm.
http://www.tba2.org/tba_files/TCCA/2011/schafferj_053111.pdf
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| TODAY'S NEWS |
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Convention 2011
Legal News
General Assembly News
Congressional News
Tenn. Supreme Court
Upcoming
TBA Member Services
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| Convention 2011 |
| Register now! Convention price goes up after June 1 |
| You have one more day to save $50 on the lower registration price for the Tennessee Bar Association's 130th Annual Convention. The registration fee goes up after June 1 for the meeting you don't want to miss, June 15-18 in Chattanooga. You also can still reserve a room near the convention host hotel, but the deadline to take advantage of the TBA's room block at The Hampton Inn, downtown Chattanooga, is today, May 31. The deadline to reserve rooms at the
Holiday Inn Express is June 1.
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Get more details and register for the convention here
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| Legal News |
| Field narrowed to 7 for bankruptcy judgeship |
| A merit selection panel of the 6th Circuit Judicial Council has recommended seven candidates to the full council to be considered
for appointment to the bankruptcy judge position in the Middle District of Tennessee. The position currently is held by Judge George C. Paine II, who is retiring in December. They are
Barbara Dale Holmes, Nashville;
Randal Steven Mashburn, Nashville;
William Neal McBrayer, Brentwood;
William LaFayette Norton III, Nashville;
Marie Kimberly Stagg, Nashville;
Charles M. Walker, Antioch; and
Wendy Michelle Warren, Nashville.
The council now will narrow the list to three recommended candidates
and the final selection will be made by the U.S. Court of Appeals for the Sixth Circuit. Written comments are being accepted through June 13. |
Download the notice from the 6th Circuit
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| State's medical examiners have troubled histories |
| The Knoxville News Sentinel looks at Tennessee's recent medical examiners and why their terms have ended in disaster and disgrace. The state's top examiners have pleaded guilty to drugging and molesting young males, botching autopsies, storing body parts at home, stealing marijuana found with corpses, testifying in a drugged-up stupor, and multiple counts of misconduct.
"Historically, if you're not in trouble after five years of being a medical examiner in Tennessee, you're an outlier," said Nashville attorney Dan Warlick. |
Read the story
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| Opinion: Legislative failure invites court activism |
| A Washington Post columnist asks: "When the legislature consistently fails in a fundamental duty, should the courts step in to provide a remedy?" Looking at California's prison situation, Michael Gerson says that the
combination of "an incorrigibly irresponsible state legislature and a federal legislative mandate -- was an engraved invitation to judicial activism." |
Read it in the Commercial Appeal
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| General Assembly News |
| Search warrant requirements eased |
| Law enforcement agencies in Tennessee may have an easier time in obtaining search warrants under a new law that prosecutors say will make the process more flexible. But Jeff Henry, executive director of the Tennessee District Public Defenders Conference, said the new law eats away at legal protections for citizens. The Exclusionary Rule Reform Act, which passed easily, will become law July 1. |
The Johnson City Press has this AP story
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| DUI law would require blood draw |
| DUI-related legislation awaiting Gov. Bill Haslam's signature, if signed, will require police to force a blood draw regardless of whether the driver consents to it if they have a prior DUI conviction or if they have a child in the vehicle with them under the age of 16.
The new law, if signed, would go into effect Jan. 1, 2012. |
The News Sentinel has this story
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| Editorial: Pretrial diversion changes fall short |
| In an editorial, The Leaf Chronicle commends the state legislature for the changes to pretrial diversion but says it doesn't go far enough, saying it doesn't take into account victims' rights. "With the legislature's action this session, it's hoped that more crime victims do get to see the perpetrators brought to justice in court," the paper writes. "The state of Tennessee owes that to them and to society in general" |
Read the editorial
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| Congressional News |
| Bill would give trustees more power |
| Legislation introduced by U.S. Sen. Patrick Leahy, D-Vt., would give the U.S. Trustee Program, the arm of the Justice Department that oversees foreclosures, the power to sanction servicers and lenders who submit false claims, overstate what's owed or don't produce proper documentation. In Tennessee, judges aren't involved in the foreclosure process so it's been bankruptcy trustees here who have been fighting that battle. Just ask Tennessee bankruptcy trustee Henry "Hank" Hildebrand who says he's had about 60 cases this year where a lender couldn't produce the actual note. He says, though, that he is seeing some movement towards compliance. |
The Nashville Business Journal has more
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| Tenn. Supreme Court |
| Supreme Court ruling takes award back from firefighter |
| A Tennessee Supreme Court ruling recently made a huge distinction: if a government employee hurts you by accident, you can sue the government for up to $300,000. If he hurts you on purpose, you now get nothing, WSMV reports. "That makes no sense at all," said Nashville lawyer David Raybin. |
Learn more from WSMV
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| Upcoming |
| 'Duck Derby' to raise funds for Child Advocacy Center |
| Since 2000, the team at the Child Advocacy Center has investigated and prosecuted more than 6,000 cases of child abuse in Rutherford and Cannon Counties. To raise funds, the center will hold a Duck Derby June 11 at the Sportsman's Club on Medical Center Parkway in Murfreesboro. For $5 a duck, participants will float their ducks in hopes of winning the $5,000 grand prize or 13 other prize packages.
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Learn more from the Cannon Courier
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| TBA Member Services |
| Let JobLink help you with your next career move |
| A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
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Visit the site
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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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