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| Monday, June 13, 2011 |
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Suit challenges new law prohibiting anti-discrimination
A lawsuit has been filed against a new state law that prohibits cities and counties from creating anti-discrimination regulations stricter than the state's. The plaintiffs in the lawsuit filed Monday by attorney Abbey Rubenfeld in Davidson County Chancery Court include three Nashville council members who supported the ordinance and Lisa Howe, a former Belmont University coach who left the private university after revealing that she and her same-sex partner were having a baby.
The Tennessean has the story
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TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_061311.pdf
RICHARD A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING APPEALS
Court: TCA
Attorneys:
Sue B. Cain, Director of Law, The Department of Law of the Metropolitan Government of Nashville and Davidson County, J. Brooks Fox, Christopher Michael Lackey, Elizabeth Anne
Sanders, for the appellant, Metropolitan Board of Zoning Appeals.
Richard A. Demonbreun, Nashville, Tennessee, Pro Se.
Judge: COTTRELL
The Metropolitan Nashville Board of Zoning Appeals refused to grant a special exception permit to allow a Nashville businessman to operate a Historic Home Events business in a
residential neighborhood. The Board stated that its decision was based on the businessman's history of non-compliance with the conditions it had imposed on earlier permit grants and renewals. The businessman filed a petition for writ of certiorari in the Circuit Court of Davidson County. After a hearing, the court found that four of the BZA members had acted out of ulterior motives, i.e.,their displeasure and frustration with the applicant, and it granted the requested permit, subject to a number of restrictions. We hold that the BZA may take into consideration prior activity at the location in the context of the impact of those activities on the public health, safety, and welfare. Because herein the BZA did not relate any specific prior conduct to a public harm and because most of the activities discussed at the hearing had
occurred prior to previous permit grants and renewals, we conclude that the denial was arbitrary. Accordingly, we affirm the trial court.
http://www.tba2.org/tba_files/TCA/2011/demonbreunr_061311.pdf
FIRST COMMUNITY FINANCIAL SERVICES v. RONALD SIMMONS AND SUNNY SIMMONS
Court: TCA
Attorneys:
Norris Arthur Kessler, III, Floyd Don Davis, Winchester, Tennessee, for the appellants, Ronnie and Sunny Simmons.
Clifton N. Miller, Bradley Joseph Eldridge-Smith, Tullahoma, Tennessee, for the appellee, First Community Financial Services.
Judge: COTTRELL
The plaintiff financial services company filed actions in the General Sessions Court against defendants alleging they had defaulted on promissory notes. The court entered judgments
for the plaintiff on both notes, including attorney fees. After making installment payments on the judgments for well over a year, the defendants filed a Rule 60 motion in the same
court to set the judgments aside, accompanied by affidavits alleging that their signatures on the notes were forgeries. The court overruled the motion because it was filed more than ten
days after the challenged judgments were entered and thus was not timely in accordance with Tenn. Code Ann. section 16-15-727(b). The defendants then appealed to the Circuit Court, which dismissed the appeal on the ground of lack of jurisdiction because of the untimeliness of the defendants' filing in the court below. We affirm the Circuit Court.
http://www.tba2.org/tba_files/TCA/2011/firstcommunity_061311.pdf
CHARLES ISHAM v. JAMES C. MARSHALL, ET AL.
Court: TCA
Attorneys:
James C. Marshall, Sherry Marshall, Gallatin, Tennessee, Pro Se.
Gwynn K. Smith, Nathan Harsh, Gallatin, Tennessee, for the Appellee, Charles Isham.
Judge: COTTRELL
The landlord and owner of a house filed a detainer warrant in general sessions court to regain possession of his house after notifying the tenants they should look for another place to live. In the warrant the landlord asked for possession, rents due, and reimbursement for any damages to the property. The general sessions court awarded the landlord possession only. The tenants filed a petition for writ of certiorari and supersedeas with the circuit court, claiming they had not received sufficient notice as required by statute and should therefore be permitted to remain in the house. The circuit court held a trial de novo on the issue of notice and granted the landlord a directed verdict on this issue. The tenants filed three motions asking the circuit court judge to recuse himself, and the judge denied them. The tenants appealed the court's award of possession to the landlord and the trial judge's refusal to recuse himself. Following the tenants' appeal, the landlord filed a post-trial motion seeking an award of back rent and reimbursement for damages the tenants had caused the house to suffer. Following a hearing, the trial court awarded the landlord $14,865 in back
rent and damages. The tenants filed a second Notice of Appeal and argued their first Notice of Appeal divested the trial court of jurisdiction to hear the landlord's post-trial motion. We affirm the trial court in all respects. We first determine we do not have jurisdiction to rule on the issue of notice because the tenants have vacated the house and do not wish to return, rendering that issue moot. The trial judge did not abuse its discretion in refusing to recuse himself because the tenants' motions seeking his recusal were primarily based on the court's adverse rulings against them. Finally, we determine the trial court retained jurisdiction to
hear the landlord's post-trial motions for back rent and damages because these issues were properly before the trial court and were unadjudicated issues when the tenants filed their first Notice of Appeal.
http://www.tba2.org/tba_files/TCA/2011/ishamc_061311.pdf
MOUNTAIN VALLEY PROPERTIES, INC. v. THE RIVER PRESERVE OWNERS' ASSOCIATION, INC., ET AL.
Court: TCA
Attorneys:
Adam U. Holland, Chattanooga, Tennessee, for the appellant, Mountain Valley Properties, Inc.
Sam D. Elliott, Chattanooga, Tennessee, for the appellee, The River Preserve Owners' Association, Inc.
Arnold A. Stulce, Jr., Chattanooga, Tennessee, for the appellees, Richard J. Prichard and Pamela L. Prichard, and Joseph E. Scott and Paula A. Scott.
Judge: SWINEY
Mountain Valley Properties, Inc. ("Plaintiff") sued The River Preserve Owners' Association, Inc., Richard J. Prichard, Pamela L. Prichard, Joseph E. Scott, and Paula A. Scott
("Defendants") with regard to disputes concerning a tract of land owned by Plaintiff located in a residential development situated on Chickamauga Lake in Hamilton County, Tennessee.
Both Plaintiff and Defendants filed motions for summary judgment. After a hearing, the Trial Court entered its order denying Plaintiff's motion for summary judgment and granting
Defendants' motions for summary judgment after finding and holding, inter alia, that Plaintiff does not have standing to contest the building of a community parking area on land
not owned by Plaintiff; that Plaintiff does not have the right to close off an existing drive to other land owners in the community; and that Plaintiff should not be allowed to produce additional evidence after the hearing on the motions for summary judgment. Plaintiff appeals to this Court. We affirm.
http://www.tba2.org/tba_files/TCA/2011/mountainvalley_061311.pdf
JOSHUA CORDELL PAYNE v. KYNDRA LORAN PAYNE
Court: TCA
Attorneys:
Michael Savage, Livingston, Tennessee, for the appellant, Joshua Cordell Payne.
Melanie Stepp Lane, Jamestown, Tennessee, for the appellee, Kyndra Loran Payne.
Judge: COTTRELL
Father appeals the trial court's order granting Mother's petition that she be named the primary residential parent of their one child. Father was named the primary residential parent when the parties were divorced, and Mother was granted liberal parenting time with the child. Father filed three separate petitions during the following three years seeking to modify and limit Mother's time with the child. However, Father was unable to prove any of his allegations against Mother, leading the court to deny each of his petitions. In response to his final petition to modify, Mother filed a counter petition asking to be named the primary
residential parent. The trial court granted Mother's petition, finding that Father's petitions seeking to limit Mother's time with the child and his failure to investigate the allegations in
his petitions intentionally interfered in the child's relationship with her mother, constituting a material change in circumstances unanticipated at the time the permanent parenting plan was established. Father contends the trial court was precluded by res judicata and collateral estoppel from finding his earlier petitions were frivolous and filed without adequate investigation, and that the court erred in relying on these findings to change the primary residential parent from Father to Mother. We affirm the trial court's judgment and grant Mother her attorney's fees incurred at trial and this appeal. We remand this case to the trial
court to determine Mother's reasonable attorney's fees.
http://www.tba2.org/tba_files/TCA/2011/paynej_061311.pdf
KIRKLAND STURGIS v. DONNA SMITH THOMPSON
Court: TCA
Attorneys:
Plaintiff/Appellee Kirkland Sturgis, Alamo, Tennessee, pro se.
Defendant/Appellant Donna Smith Thompson, Alamo Tennessee, pro se.
Judge: KIRBY
This is an appeal from the circuit court's dismissal of an appeal from the general sessions court. The appellee purchased property during a foreclosure sale. The appellee purchaser filed an action in general sessions court to gain possession of the property from the defendant/appellant and recover rent. After an adverse judgment in the general sessions court, the defendant/appellant appealed to the circuit court. The circuit court found that the defendant/
appellant failed to perfect her appeal because she did not file a cost bond or make bond for one year's rent and costs. Consequently, the circuit court dismissed the appeal from
general sessions court. The defendant/appellant appeals to this Court. We affirm based on failure to file a cost bond.
http://www.tba2.org/tba_files/TCA/2011/sturgisk_061311.pdf
WILLIAM BRIAN TAYLOR v. THE DEL-NAT TIRE CORPORATION
Court: TCA
Attorneys:
Cheryl Rumage Estes, Margaret F. Cooper, Memphis, Tennessee, for the appellant, The Del-Nat Tire Corporation
James W. Hodges, Jr.,, Memphis, Tennessee, for the appellee, William Brian Taylor
Judge: HIGHERS
Plaintiff sued his former employer, claiming that he was entitled to unpaid overtime pay and reimbursement for the cost of educational courses he took while employed by the employer. Following a bench trial, the trial court awarded the plaintiff overtime pay, reimbursement for the courses, and attorney's fees. We reverse the decision of the circuit court and vacate the award.
http://www.tba2.org/tba_files/TCA/2011/taylorw_061311.pdf
STATE OF TENNESSEE v. BRANDON M. CARTWRIGHT
Court: TCCA
Attorneys:
Michael A. Carter, Milan, Tennessee, for the appellant, Brandon M. Cartwright.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Garry Brown, District Attorney General; and Larry Hardister, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
A Humboldt Law Court jury convicted the defendant, Brandon M. Cartwright, of first degree murder committed in the perpetration of a robbery, see T.C.A. section 39-13-202(a)(2)(2006), and especially aggravated robbery, see id. section 39-13-403. On appeal, the defendant argues that the trial court erred by admitting hearsay evidence and that he was denied his right to a jury of his peers because members of his race were underrepresented in the venire due to their
systematic exclusion. Discerning no infirmity in the convictions, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/cartwrightb_061311.pdf
DUSTY B. HAYNES v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); James E. Lanier, District Public Defender; and H. Tod Taylor, Assistant Public Defender (at hearing and on appeal), for the appellant, Dusty B. Haynes.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.
Judge: GLENN
The petitioner, Dusty Haynes, appeals the order of the post-conviction court that denied him post-conviction relief from his guilty plea conviction for burglary but nonetheless granted him a delayed appeal of his sentence. The petitioner argues that the post-conviction court instead should have reversed his conviction and granted him a new trial. Following our review, we affirm the denial of post-conviction relief and reverse the granting of a delayed appeal.
http://www.tba2.org/tba_files/TCCA/2011/haynesd_061311.pdf
TERRY JONES v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Terry Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the appellee, State of
Tennessee.
Judge: MCLIN
The petitioner, Terry Jones, pleaded guilty to possession with the intent to sell more than twenty-six grams of cocaine, a Class B felony, and received a sentence of ten years in the
Tennessee Department of Correction and a $2,000 fine. He filed a petition for post-conviction relief alleging the ineffective assistance of counsel. The post-conviction court
denied relief, and the petitioner appeals the post-conviction court's denial of relief. After a thorough review, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/jonest_061311.pdf
STATE OF TENNESSEE v. LARRY WARD
Court: TCCA
Attorneys:
Neil Umsted (on appeal) and Stephen Sauer (at trial), Memphis, Tennessee, for the appellant, Larry Ward.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Pam Fleming and Patience
Branham, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: MCLIN
The defendant, Larry Ward, stands convicted of criminally negligent homicide, a Class E felony. The trial court sentenced him as a Range II, multiple offender to four years in the workhouse. On appeal, the defendant challenges the sufficiency of the evidence to sustain his conviction. Upon our close review of the evidence, we are constrained to conclude that the evidence was insufficient to prove beyond a reasonable doubt that a homicide was committed in this case. Therefore, we reverse the judgment of the trial court, vacate the conviction, and dismiss the charge against the defendant.
http://www.tba2.org/tba_files/TCCA/2011/wardl_061311.pdf
EDDIE WILLIAMS, JR. v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Eddie Williams, Jr., pro se, Nashville, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark Bryan Thornton, Assistant
Attorney General, for the Appellee, State of Tennessee.
Judge: GLENN
The Petitioner, Eddie Williams, Jr., appeals the Criminal Court of Shelby County's dismissal of his pro se petition for post-
conviction relief. The State has filed a motion requesting that
this Court affirm the post-conviction court's order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm
the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/williamse_061311.pdf
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| TODAY'S NEWS |
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Legal News
TBA Member Services
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| Legal News |
| Wednesday is deadline for commission comment |
| Forty-three people have applied for the five seats on the Judicial Nominating Commission, which will become available on June 30.
Members of the public are encouraged to submit comments about the applicants, but comments must be received by Wednesday, June 15 at 4:30 p.m., CDT. |
See the list of applicants and more details
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| Pentagon Papers released 40 years later |
| Forty years after a young defense analyst leaked a top-secret study packed with damaging revelations about America's conduct of the Vietnam War -- dubbed the Pentagon Papers -- anyone can take a look. The National Archives released the Pentagon Papers in full today and put them online, long after most of the secrets spilled. The release was timed 40 years to the day after The New York Times published the first in its series of stories about the findings, on June 13, 1971. |
WRCB carried this AP story
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| Prosecutor retires after 37 years |
| A prosecutor in the 4th Judicial District, which includes Sevier, Cocke, Jefferson and Grainger counties, Steve Hawkins is philosophical about his retirement after 37 years of prosecuting criminals. "You can't save the world," he says of his role in the criminal justice system. "You just do the best you can and make a difference where you can." Hawkins retires June 30. |
Read this profile in the News Sentinel
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| Editorial: How long can a new jail wait? |
| In an editorial, the Advocate & Democrat addresses Monroe County's
outdated and overcrowded jail and court buildings.
"They have simply been put off for years because of the astronomical expense to build a new jail/justice center and the property tax increase that would be required to fund it. One has to wonder how much longer these issues can be put off?" |
Read the editorial
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| Domestic violence cases up 20 percent in Shelby County |
| If the trends continue, Shelby County District Attorney General Amy Weirich says her office will likely see over 7,000 arraignments by the end of this year -- nearly 1,200 more than in 2010.
The domestic violence cases are up 20 percent this year, she says, which prompted a request for more funding from the Shelby County Commission last week. |
The Commercial Appeal reports
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| Case study: Ways a court clerk can lose his job |
| The Nashville City Paper rehashed the details of Davidson County Criminal Court Clerk David Torrence's embarrassing, if not criminal, interviews this spring that revealed that he works three days a week, uses a county car to run errands (including buying alcohol) and hired his two sons without advertising those positions. The paper looks at past cases of public officials being removed from office, and how they may apply in this case. |
Read the story
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| TBA Member Services |
| Program offers savings on auto insurance |
| See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
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or get an online rate quote
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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.
© Copyright 2011 Tennessee Bar Association
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