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| Friday, June 10, 2011 |
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TBA Convention on tap for next week
Advance registration to the 2011 TBA Annual Convention in Chattanooga has closed, but you can still register at the event, which kicks off Wednesday at the Chattanoogan Hotel. Highlights of the convention include a journey to the Rhea County Courthouse in Dayton, site of the famed Scopes trial, where Pulitzer Prize-winning author Edward Larson will tell the story of the famous case and discuss the legal issues raised in the trial, and an evening at the Tennessee Aquarium -- the top-rated aquarium in America -- for dinner, touring and access to the acclaimed Riverbend Music Festival.
Find out more about convention activities now
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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
02 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
03 - 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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IN RE: THE HONORABLE JOHN A. BELL, JUDGE, GENERAL SESSIONS COURT OF COCKE COUNTY, TENNESSEE
Court: TSC
Attorneys:
W. Gordon Ball and W. Allen McDonald, Knoxville, Tennessee, for the appellant, Judge John A. Bell.
Timothy R. Discenza, Memphis, Tennessee, and Patrick J. McHale, Nashville, Tennessee, for the appellee, Court of the Judiciary.
Judge: CLARK
In this direct appeal of a judicial disciplinary proceeding, we are asked to review the Court of the Judiciary's decision that Cocke County General Sessions Court Judge John A. Bell
violated various canons of the Tennessee Code of Judicial Conduct, resulting in sanctions that included a ninety-day suspension. The Court of the Judiciary found that Judge Bell
violated the Code by taking nine months to decide the complainant's personal injury action, re-hearing the case without disclosing to a new party that he had previously made findings against the new party as to liability and damages, and contacting through an attorney the self-represented
complainant while the complainant's case was still pending before him in General Sessions Court. We affirm the code violations with respect to the delay and the ex parte communication and affirm the sanctions.
http://www.tba2.org/tba_files/TSC/2011/bellj_061011.pdf
CLINT BLACK ET AL. v. CHARLES SUSSMAN ET AL.
Court: TCA
Attorneys:
Samuel David Lipshie and Patricia Head Moskal, Nashville, Tennessee, for the appellants, Clint Black, Black Top Entertainment, Inc., Black Top, LLC, and Clint Black, Inc.
C. Bennett Harrison, Jr. and J. Cole Dowsley, Jr., Nashville, Tennessee, for the appellee, Charles Sussman.
John O. Belcher, Curtis Rodney Harrington II, and Jordan S. Keller, Nashville, Tennessee, for the appellees, Sussman & Associates, P.C., GSO Business Management, LLC, and GSO Accountancy Corporation.
Judge: BENNETT
Entertainer filed this suit against his former business manager, who is an accountant, and against several business entities for breach of fiduciary duty, accounting malpractice, breach of contract, misrepresentation, and violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment for the business manager and another defendant on the ground that the gravamen of the complaint was accounting malpractice and that all of the claims were barred by the applicable one-year statute of limitations. As to a second group of defendants, the trial court granted summary judgment based upon the absence of an actual
partnership and the absence of proof that the entertainer relied on any representations of partnership. We have concluded that the trial court erred in granting summary judgment to the first group of defendants because the complaint states causes of action for breach of a business manager's fiduciary duties as well as causes of action for accounting malpractice, and these two types of causes of action are subject to different statutes of limitations. As to
the second group of defendants, we have concluded that summary judgment was not appropriate because material issues of fact remain as to the entertainer's reliance on
representations of partnership.
http://www.tba2.org/tba_files/TCA/2011/blackc_061011.pdf
ELLIOT H. HIMMELFARB, M.D. ET AL. v. TRACY R. ALLAIN
Court: TCA
Attorneys:
Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Tracy Allain.
M. Todd Sandahl, Franklin, Tennessee, for the appellees, Elliot Himmelfarb, M.D., Elliot Himmelfarb, M.D., P.A., and Douglas C. York, M.D.
Judge: CLEMENT
Two physicians filed this malicious prosecution action against a former patient after she voluntarily dismissed, without prejudice, a medical malpractice action she filed against them. The defendant, the former patient, moved for summary judgment asserting that the plaintiffs could not prove the essential elements of a malicious prosecution claim: that the medical malpractice suit was brought without probable cause, that it was brought with malice, and that it was terminated in the physicians' favor. The trial court denied the motion. We have determined that the issue of favorable termination in this case involves questions of fact and law, and that fact questions concerning the circumstances surrounding the voluntary dismissal without prejudice of the medical malpractice action are in dispute. We have also
determined that there are genuine issues of material fact concerning the other essential elements. Therefore, the defendant's motion for summary judgment was properly denied.
http://www.tba2.org/tba_files/TCA/2011/himmelfarbe_061011.pdf
STATE OF TENNESSEE v. SAMUEL ALAN IRESON
Court: TCCA
Attorneys:
Charles R. Martin, Kingsport, Tennessee, for the appellant, Samuel Alan Ireson.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Greeley Wells, District Attorney General; and William Harper, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
The Defendant, Samuel Alan Ireson, was convicted by a Sullivan County jury of voluntary manslaughter, fabrication of evidence, and employment of a firearm during the commission
of a dangerous felony. The trial court sentenced the Defendant as a Range I, standard offender to consecutive terms of five years for the voluntary manslaughter conviction, five years for the fabrication of evidence conviction, and six years for the firearm conviction, resulting in an effective sentence of sixteen years in the Department of Correction. On
appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions and several sentencing determinations made by the trial court-the length of his sentences for voluntary manslaughter and fabrication of evidence, the consecutive nature of his fabrication of evidence sentence, and the denial of judicial diversion. Following our review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/iresonn_061011.pdf
CHARLES NASH v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Charles Nash, Appellant, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
Following a jury trial, the Petitioner, Charles Nash, was convicted of first degree murder and especially aggravated robbery. This Court affirmed his convictions on direct appeal. See State v. Charles Nash, No. E2008-00951-CCA-R3-CD, 2009 WL 2461178 (Tenn. Crim. App., Knoxville, Aug. 12, 2009), perm. to appeal denied, (Tenn. Mar. 1, 2010). The Petitioner filed a timely petition for post-conviction relief, however, the post-conviction court summarily dismissed it without conducting an evidentiary hearing. In this appeal, the
Petitioner contends that he presented colorable claims in his petition and that the post-conviction court erred when it dismissed his petition without an evidentiary hearing. The
State concedes that the trial court erred. We agree and remand to the post-conviction court for proceedings consistent with the Post-Conviction Procedure Act.
http://www.tba2.org/tba_files/TCCA/2011/nashc_061011.pdf
ORTEGA WILTZ v. HOWARD CARLTON, WARDEN
Court: TCCA
Attorneys:
Ortega Wiltz, Appellant, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Anthony Clark, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
In August 2002, the Petitioner, Ortega Wiltz, was convicted by a jury of two counts of facilitation of especially aggravated kidnapping. He later filed a petition for habeas corpus
relief in the Johnson County Circuit Court, contending that his convictions were void due to his illegal arrest based upon information from an unreliable informant and due to a violation of his due process rights because he was denied a preliminary hearing. The habeas corpus court summarily dismissed the petition, finding that the Petitioner had failed to state a cognizable claim for relief. After our review of the record, we agree and affirm the order summarily dismissing the petition.
http://www.tba2.org/tba_files/TCCA/2011/wiltzo_061011.pdf
IN RE: NATHAN EDWARD BROOKS, BPR 011803
Court: TSC-Disciplinary_Order
Judge: CLARK
Reinstatement Denied
http://www.tba2.org/tba_files/TSC/2011/brooksn_061011.pdf
IN RE: SPENCE R. BRUNER, BPR #019056
Court: TSC-Disciplinary_Order
Judge: PER CURIAM
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/bruners_061011.pdf
IN RE: MARK HENRY WOERNER, BPR 000346
Court: TSC-Disciplinary_Order
Judge: CLARK
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/woernerm_061011.pdf
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| TODAY'S NEWS |
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Legal News
Tenn. Government
Career Opportunities
Upcoming
Disciplinary Actions
TBA Member Services
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| Legal News |
| Supreme Court affirms disciplinary action against Judge John A. Bell |
| The Tennessee Supreme Court today upheld the Court of the Judiciary's decision that
Cocke County General Sessions Court Judge John A. Bell violated the Code of Judicial Conduct for
taking too long to decide a personal injury case and participating in an ex parte communication. The high
court also affirmed the Court of the Judiciary's sanctions against Bell, which included a 90-day
suspension. |
The AOC has the details
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| Water deal may be on table after all |
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Tennessee Gov. Bill Haslam's spokeswoman Yvette Martinez indicated Thursday the governor would not summarily reject overtures from Georgia Gov. Nathan Deal that the two states work out a trade of Volunteer State water for Peachtree State transportation improvements. "Governor Haslam has said that he is open to sitting down and discussing the issue with Governor Deal," Martinez said. |
The Times Free Press reports on the issue
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| Court finds against the bullies in hazing case |
| A federal trial in Columbia Thursday strengthened the contention that bullying is not OK, by awarding the families of two boys $100,000 each after they were sexually harassed in a middle school locker room.
The suit claimed the then-7th-grade boys were subjected to hazing at the hands of older members of the team while unsupervised in the locker room of a Wayne County school. |
Read more in the Tennessean
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| Alabama immigration law tougher than Arizona's |
| Alabama now has what is being called the most restrictive law in the nation against illegal immigration, requiring schools to find out if students are in the country lawfully and making it a crime to knowingly give an illegal immigrant a ride.
It takes effect Sept. 1.
"It is clearly unconstitutional. It's mean-spirited, racist, and we think a court will enjoin it," said Mary Bauer, legal director for the Southern Poverty Law Center.
But Republican Gov. Robert Bentley, who signed it into law Thursday, expressed confidence it would withstand any legal challenges. |
The News Sentinel has this story
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| Opinion: E-Verify law is needed step |
| State Sen. Jim Tracy, R-Shelbyville, writes an opinion piece explaining why the new "E-Verify" bill, is necessary. The law was signed into law by Gov. Bill Haslam on June 7. |
Read it
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| Tenn. Government |
| Unhealthy habits dragging budget down, Haslam says |
| Gov. Bill Haslam kicked off a health and wellness task force Thursday with a goal to improve Tennesseans' health specifically to save money on health care. He says that saved funds could then be funneled into education and other areas affected by budget cuts. Former Sen. Bill Frist, who will act as an adviser to the task force, says the problem is people not taking care of themselves.
Tennesseans are behind the national average for health, and consequently people are burdening the state budget. |
The Tennessean has the story
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| Career Opportunities |
| Litigator sought for Chattanooga firm |
| Counsel On Call seeks an attorney with medical malpractice and/or products
liability experience for an on-going contract assignment with a law firm in
Chattanooga. This is a full-time position but the right candidate may be
able to work slightly reduced hours (30 or 35 hours per week). Candidates
should have at least three years of litigation experience in a law firm or
corporate environment; prior medical malpractice and/or products liability
experience; and experience managing a file and conducting discovery.
Qualified candidates should send resumes to Patty Wise at
counseloncall.com.
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Learn more on Joblink
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| Upcoming |
| Ditch your pills with the sheriff this Saturday |
| For the first time, the Hawkins County Sheriff's Office will hold a "pill drop off" event and according to Chief Deputy Tony Allen, authorities will not ask any questions and no identification will be required to drop off medication. The goals of the event are "keeping illegal drugs off the streets and protecting the safety of water resources in Hawkins County." The event is 10 a.m to 2 p.m. June 11 at the Hawkins County Justice Center parking lot at 117 Justice Center Drive, Rogersville. |
Learn more from the Rogersville Review
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| Disciplinary Actions |
| Germantown lawyer reinstated |
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Germantown lawyer Robertson Morrow Leatherman was reinstated to the practice
of law on June 10 after paying past-due BPR fees and required fines. The
reinstatement did not require action by the Tennessee Supreme Court.
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| Chattanooga lawyer denied reinstatement |
| A petition for reinstatement by Chattanooga lawyer Nathan Edward Brooks was denied by the Tennessee Supreme Court June 6, for not taking steps to comply with Supreme Court Rule 9, Section 19. |
Download the court's order
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| Suspension dissolved |
| By order entered April 25, the Supreme Court dissolved the March 25 temporary
suspension of Spence R. Bruner. |
Download the court's order
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| Lawyer reinstated after 16 years |
| Mark Henry Woerner has been reinstated to the practice of law by the Tennessee Supreme Court, filed June 7. He was suspended for nonpayment of fees in 1995. |
Download the court's order
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| TBA Member Services |
| Secure, compliant data backup now available |
| The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774. |
Learn why lawyers trust i365 for online data backup solutions
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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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