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| Tuesday, June 28, 2011 |
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Free materials to promote OnlineTNJustice.org
The Tennessee Alliance for Legal Services
(TALS) has developed fliers and postcards to help in the promotion of
OnlineTNJustice, a new website that allows Tennesseans to seek free legal advice from volunteer lawyers using a computer. The promotional materials will help to actively recruit clients.
The service -- a joint project of TALS and the Tennessee Bar Association -- provides civil legal help to those unable to afford a lawyer. Lawyers can volunteer to help
with the service, which is a convenient way to provide help to those in need.
To request a printed supply of fliers or postcards, contact Linnet Overton at (615) 627-0956.
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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.
00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
10 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
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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
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and save a plain-text version of the opinion.
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DEBORAH LYNN DAVIS v. JACK E. SCARIANO, JR., M.D. ET AL.
Court: TCA
Attorneys:
Deborah Lynn Davis, Knoxville, Tennessee, appellant, pro se.
Stephen C. Daves, Knoxville, Tennessee, for the appellees, Dr. Jack E. Scariano, Jr., and West Knoxville Neurological Associates.
Judge: SUSANO
The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates.
Except when the context requires otherwise, we will refer to the defendants collectively as "Dr. Scariano." Davis sued Dr. Scariano alleging medical malpractice and fraud related to
the doctor's treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the
motion and granted it based on Dr. Scariano's filings and the plaintiff's failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2011/davisd_062811.pdf
MICHAEL C. DRESSLER ET AL. v. EDWARD BUFORD
Court: TCA
Attorneys:
John R. Officer, Livingston, Tennessee, and Craig P. Fickling, Cookeville, Tennessee, for the appellant, Edward Buford.
Bruce E. Myers, Livingston, Tennessee, for the appellees, Michael C. Dressler and wife, Myra L. Dressler.
Judge: CLEMENT
This is an action to establish the common boundary line between adjacent property owners. Following a four-day bench trial, the trial court adopted Plaintiffs' survey to establish the parties' common boundary line. Defendant appeals arguing that the evidence preponderates against the trial court's findings. Finding the evidence does not preponderate against the trial court's numerous findings, we affirm.
http://www.tba2.org/tba_files/TCA/2011/dresslerm_062811.pdf
RICHARD W. FELDMAN, M.D. v. TENNESSEE BOARD OF MEDICAL EXAMINERS
Court: TCA
Attorneys:
Donald Capparella, Nashville, Tennessee, for the appellant, Richard W. Feldman, M.D.
Robert E. Cooper, Jr., Attorney General and Reporter, Sara E. Sedgwick, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Board of Medical Examiners
Judge: HIGHERS
This appeal arises out of disciplinary proceedings against a physician before the Tennessee Board of Medical Examiners. The Board found the physician guilty of numerous statutory
and regulatory infractions, and it assessed a monetary penalty against the physician and revoked his license for at least one year. The physician filed a petition for review in chancery court, and the chancery court affirmed the decision of the Board. The physician appeals, challenging the Board's decision on numerous grounds. We affirm.
http://www.tba2.org/tba_files/TCA/2011/feldmanr_062811.pdf
KEILAH GONZALEZ-BONILLA v. EDUARDO MENDEZ
Court: TCA
Attorneys:
Wanda G. Sobieski, Diane M. Messer, and Maia A. Niemann, Knoxville, Tennessee, for the appellant, Keilah Gonzalez-Bonilla.
Jerrold L. Becker, Knoxville, Tennessee, for the appellee, Eduardo Mendez.
Judge: SWINEY
Keilah Gonzalez-Bonilla ("Mother") and Eduardo Mendez ("Father") are the divorced parents of a minor child ("the Child"). At the time of the divorce, Mother was named the
primary residential parent of the Child, and Father was granted visitation. After the divorce, Mother relocated and a revised permanent parenting plan was entered on August 3, 2007. In December of 2007, Father filed a petition seeking a change in custody of the Child alleging that a material change in circumstances had occurred. After a trial, the Trial Court
entered its order on August 4, 2009 finding and holding, inter alia, that there had been a material change in circumstances since February 5, 2007, that custody would be changed
with Father to be the primary residential parent, and that the joint decision making would be changed and Father shall have the decision-making authority. Mother appeals to this Court.
We find that the proper date from which to determine whether there had been a material change in circumstances is the date the previous order was entered, i.e., August 3, 2007, and that a material change in circumstances sufficient to justify a change in custody had not been proven. We, therefore, reverse the Trial Court's order changing custody, and remand this case to the Trial Court for reconsideration of its orders regarding child support in light of this Opinion.
http://www.tba2.org/tba_files/TCA/2011/gonzalez-bonillak_062811.pdf
JOHN HAYNES v. RUTHERFORD COUNTY ET AL.
Court: TCA
Attorneys:
Mitchell J. Ferguson, Murfreesboro, Tennessee, for the appellant, John Haynes.
Thomas S. Santel, Jr., and Jeremy M. Cothern, Murfreesboro, Tennessee, for the appellee, Rutherford County and Matthew J. Goney.
Judge: CLEMENT
The issue in this matter is whether Tenn. Code Ann. section 16-1-116 ("the Transfer Statute") tolls the running of the statue of limitations when a claim under the Government Tort Liability Act is filed in a court that lacks subject matter jurisdiction, and the court transfers the case to a court with jurisdiction. Acting pro se, the plaintiff filed a GTLA claim in the general sessions court of Rutherford County; the civil warrant was filed prior to the running of the one-year statute of limitations for a GTLA claim. Because subject matter jurisdiction over GTLA claims is limited to the circuit court, the sessions court transferred the case. The circuit court
held that, because the sessions court lacked jurisdiction, the transfer itself was invalid; therefore, the action was not effectively filed until it was transferred to the circuit court.
However, the date of transfer was beyond the applicable one-year statute of limitations for GTLA claims; thus, the circuit court dismissed the case as time barred. We have determined this case is not time barred because, under the Transfer Statute, the statute of limitations was tolled when the civil warrant was timely filed in sessions court and, because it was timely filed, the sessions court was authorized to transfer the case to the circuit court. Therefore, we
reverse and remand with instructions to reinstate the case and for further proceedings consistent with this opinion.
http://www.tba2.org/tba_files/TCA/2011/haynesj_062811.pdf
RACHEL LEE EX REL. REBECCA LEE v. MARK EMKES, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION
Court: TCA
Attorneys:
David Kozlowski, Columbia, Tennessee, for the appellant, Rachel Lee.
Robert E. Cooper, Jr., Attorney General and Reporter, and Shayna Abrams, Senior Counsel, for the appellee, Mark Emkes, Commissioner, Tennessee Department of Finance and
Administration.
Judge: CLEMENT
Petitioner, when she was thirteen years old, was having difficulty eating because of the position of her teeth, which also irritated her lips and cheeks. An orthodontist recommended braces to remedy the problem; however, the Tennessee Department of Finance and Administration denied TennCare coverage for orthodontic braces. Upon review by the
Davidson County Chancery Court, the court found that the TennCare regulations impermissibly required both a Salzmann Index score of 28 and an abnormal dental development, i.e., a handicapping malocclusion, to qualify for orthodontic treatment, and that the Salzmann Index was an illegal utilization control because it nullified eligibility based
upon an individualized review. The trial court also found that petitioner had not demonstrated a handicapping malocclusion, which is a valid utilization control under the regulations, therefore, she did not qualify for braces. Petitioner appealed. We affirm the trial court's finding that the TennCare regulation in effect at the time impermissibly required a Salzmann Index score of at least 28 to qualify for orthodontic treatment. The record does, however, establish that an individualized assessment of Petitioner's condition to determine whether she had a handicapping malocclusion was conducted by a consulting dentist employed by the agency, which satisfies the federal requirements. Accordingly, we affirm the trial court's decision to affirm the agency's denial of orthodontic braces.
http://www.tba2.org/tba_files/TCA/2011/leer_062811.pdf
OTTER'S CHICKEN TENDER, LLC v. JOEY COPPAGE
Court: TCA
Attorneys:
James G. Stranch, R. Jan Jennings, Michael J. Wall, and Stacey K. Skillman, Nashville, Tennessee, for the appellant, Joey Coppage.
Austen Adams, Nashville, Tennessee, for the appellee, Otter's Chicken Tenders, LLC.
Judge: DINKINS
This appeal arises out of a breach of contract action between a restaurant and its former employee. On cross motions for summary judgment, the court resolved all issues between
the parties except whether attorney fees should be awarded and whether a permanent injunction should be issued against the employee. The court subsequently dismissed both
parties' claims for attorney fees and extended a temporary injunction previously entered. Both parties appeal the denial of attorney fees; in addition, defendant asserts that the trial
court erred in extending the temporary injunction. Finding that the court erred in determining that plaintiff was not the prevailing party, we reverse the court's denial of attorneys fees to plaintiff and remand for an award of fees for time spent pursuing injunctive relief; we affirm the court's action in extending the temporary injunction.
http://www.tba2.org/tba_files/TCA/2011/otters_062811.pdf
IN THE MATTER OF: SCOTT C.
Court: TCA
Attorneys:
S. Craig Moore, Fayetteville, Tennessee, for the appellant, Cynthia C.
Robert E. Cooper, Jr., Attorney General and Reporter, and Lyndsay Fuller Sanders, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.
Judge: CLEMENT
Mother appeals the termination of her parental rights. The trial court found by clear and convincing evidence that Mother's parental rights should be terminated on the grounds of mental incompetence, substantial noncompliance with the provisions of the permanency plan, and persistence of conditions, as well as a finding that termination of her rights was in the best interest of the child. Mother appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2011/scottc_062811.pdf
SENIOR HOUSING ALTERNATIVES, INC. v. BERNARD GLOBAL LOAN INVESTORS, LTD.
Court: TCA
Attorneys:
David R. Evans, Chattanooga, Tennessee, for the appellant, Senior Housing Alternatives, Inc.
Bruce C. Bailey, Chattanooga, Tennessee, and David A. Rabin, Atlanta, Georgia, for the appellee, Bernard Global Loan Investors, Ltd.
Judge: SUSANO
Senior Housing Alternatives, Inc. ("the Borrower") filed this action against Bernard Global Loan Investors, Ltd. ("the Secured Party") asking the trial court to enjoin the Secured Party from foreclosing on a deed of trust that secured several notes on which the Borrower had defaulted. In essence, the Borrower's complaint alleges that its original lender had defrauded the Borrower and inflated the balance owed on the notes and that the Secured Party had knowledge of the fraud when it took ownership of the notes and deed of trust. The complaint alleges that the merits of the case are at issue in a federal district court in Georgia. Despite expressing reservations about the Borrower's ability to prevail on the merits, the trial court granted it a temporary injunction to preserve the status quo in an order entered February 15,
2010. The court noted that developments in the federal court action could affect the equities and set a hearing for August 13, 2010, to "review the entire matter." Two days before the
hearing date, the Secured Party filed a brief, with supporting affidavits, asking the court to dissolve the injunction. The court heard proof at a status conference and thereafter issued
a memorandum opinion explaining that it was dissolving the injunction because, among other things, the court did not believe the Borrower could prevail on the merits. The Borrower appeals from the order dissolving the injunction and dismissing the complaint. We affirm.
http://www.tba2.org/tba_files/TCA/2011/seniorhousing_062811.pdf
IN RE T.C.E.
Court: TCA
Attorneys:
Ben H. Houston II, Knoxville, Tennessee, for the appellant, D.B.E.
Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.
Judge: SUSANO
This is a biological father's appeal from a judgment terminating his parental rights. The trial court found by clear and convincing evidence (1) that he had abandoned the child by willfully failing to visit during the four-month period immediately preceding the filing of the petition to terminate; (2) that he had not substantially complied with his obligations under a court-approved permanency plan despite reasonable efforts to reunite him with the child; and (3) that termination is in the best interest of the child. We affirm.
http://www.tba2.org/tba_files/TCA/2011/tce_062811.pdf
STATE OF TENNESSEE v. SCOTT D. JULIAN
Court: TCCA
Attorneys:
William C. Talman, Knoxville, Tennessee, for the appellant, Scott D. Julian.
Robert E. Cooper, Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Randall Nichols, District Attorney General; and Steven Sword and
Charme Knight, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Scott D. Julian, was convicted by a Knox County Criminal Court jury of three counts of sexual battery by an authority figure, a Class C felony, and sexual exploitation of a minor, a Class D felony. See T.C.A. sections 39-13-527, 39-17-1003 (2010). He was sentenced as a Range I, standard offender to three years' probation for each of the sexual battery convictions and to two year' confinement for the sexual exploitation conviction, to be served concurrently. On appeal, he contends that (1) the evidence was insufficient to support his convictions, (2) the State's failure to provide a more specific bill of particulars deprived him of a fair trial and the ability to prepare a defense, (3) the trial court erred by denying his request to question witnesses about the existence of a sexual relationship between the victim and a witness, (4) the trial court erred by admitting a recorded telephone conversation between the Defendant and the victim, and (5) the State's election of the offenses in counts three and five were not specific enough to ensure jury unanimity. We affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/scottj_062811.pdf
STATE OF TENNESSEE v. KEANEST D. WHITSON
With Seperate Concurring in part and Dissenting in part Opinions
Court: TCCA
Attorneys:
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Tony Clark, District Attorney General; and Robin Ray, Assistant District Attorney General, for the appellant, State of Tennessee.
Steve McEwen, Mountain City, Tennessee (on appeal); and Bill Fransciso, Assistant District Public Defender (at trial), for the appellee, Keanest D. Whitson.
Judge: WITT
In this State appeal, the State contends that the trial court erroneously interfered with its plea negotiations with the defendant. The State has no right to appeal via the Tennessee Rules of Appellate Procedure. Because the State's claim in case number 33292 regarding the trial court's acceptance of the defendant's guilty plea to a community corrections violation is not reviewable via the common law writ of certiorari, a majority has concluded, albeit on different grounds, that the State's claim in that regard should be dismissed. Because the record establishes that the trial court acted outside its authority in case number 35646, a
majority has reviewed the State's claims in that case via the common law writ of certiorari and has concluded that the trial court was without authority to accept the defendant's plea of guilty to the lesser included offense of unauthorized use of an automobile without the consent of the State. In consequence, the conviction of the unauthorized use of an
automobile is vacated and reversed, and that count of the indictment is remanded to the trial court for further proceedings on the original charge of theft of property valued at more than $1,000 but less than $10,000. With regard to the sentences imposed in both cases, a majority of the court that does not include the author of this opinion has concluded, on differing grounds, that a remand for resentencing is appropriate.
http://www.tba2.org/tba_files/TCCA/2011/whitsonk_062811.pdf
TIPTON concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCCA/2011/whitsonk_CON_062811.pdf
THOMAS concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCCA/2011/whitsonk_DIS_062811.pdf
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| TODAY'S NEWS |
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Legal News
U.S. Supreme Court
Career Opportunities
TBA Member Services
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| Legal News |
| McCarter, Collins named to nominating commission |
| Lt. Gov. Ron Ramsey today announced the appointments of Rutherford County attorney Gilbert Wayne "Bert" McCarter and Shelby County attorney Elizabeth T. Collins to the Tennessee Judicial Nominating Commission. The Judicial Nominating Commission was created in 2009 when the process for selecting Tennessee's appellate judges was revised. The new commission has 17 members and is responsible for making judicial nominations to state appellate courts and the state Supreme Court when vacancies arise. |
The News Sentinel has details about the new members
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| Judge Brand's replacement on hold as vote deadlocked |
| The Hawkins County Commission was deadlocked 10-10 Monday night in an attempt to approve a replacement for the late Sessions Court Judge David Brand. The two finalists are Rogersville attorney Buddy Baird and Hawkins County Juvenile Court Judge Jay Taylor. After three consecutive 10-10 votes, commissioners agreed to make another attempt to break the deadlock at next month's regular meeting. The commission has 21 members but one was on vacation and was not at yesterday's meeting. |
The Times-News has the story
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| Senate confirms 3 in DOJ |
The top ranks of the U.S. Justice Department are almost at full strength after the Senate today confirmed nominees for three high-level spots that had been vacant for months or years:
-- Deputy Attorney General James Cole will fill the DOJ's No. 2 position, which he has been holding on an acting basis.
-- Virginia Seitz, a partner in Sidley Austin's Washington office, won confirmation on a voice vote to head the DOJ's Office of Legal Counsel. She becomes its first Senate-confirmed leader since 2004.
-- Career department official Lisa Monaco will lead the DOJ's National Security Division. She has been serving as Cole's top deputy. |
The Blog of Legal Times reports
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| Mayor chooses Escobar as new Metro clerk |
| Nashville lawyer Ana Escobar is Mayor Karl Dean's selection to become the next Metro clerk. Escobar, a former Davidson County drug prosecutor who has specialized in criminal defense law in recent years, will have to vacate her seat on the planning commission to take the job, which is subject to Council approval.
Escobar will be the first Hispanic woman to lead a Metro department, Dean said in a news release. She replaces Marilyn Swing, who led the city's official record-keeping office for nearly 27 years before announcing her retirement earlier this year. |
The City Paper reports
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| ACLU plans to sue over new 'cyberbullyling' law |
| The ACLU of Tennessee announced today it is planning to file a lawsuit challenging a new "offensive images" law.
The law, which goes into effect July 1, would make it a crime to post any image online that causes "emotional distress" to any individual.
The ACLU argues that the new law is a violation of freedom of speech and expression.
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The Nashville Business Journal has more
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| Oral arguments today in Fisk, O'Keeffe appeal |
| The state Court of Appeals is scheduled to hear oral arguments today about whether to allow Fisk University to sell a half share in its art collection to keep the school afloat. At issue is how to best approximate the wishes of the late painter Georgia O'Keeffe, who donated the Stieglitz Collection to the Nashville school. |
WSMV has this story
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| Guy's bankruptcy 'handbook' shares secrets |
| Nashville lawyer Bobby Guy wrote a recently published book, Distress to Success, which is billed as a "handbook for business leaders trying to turn around their company, as well as for investors trolling the market for a good opportunity." |
The Nashville Business Journal talks to Guy about the book
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| U.S. Supreme Court |
| Term in review: Conservative majority makes mark on law |
| Although the 2010-11 U.S. Supreme Court is
the most diverse in history, an enduring conservative majority has deepened its imprint on the law, USA Today reports. In the term that ended Monday, the majority exerted its power particularly on business cases, favoring big companies over the interests of consumers and employees. It closed off avenues to the courthouse for people suing corporations yet also for taxpayers who challenge government aid to religious schools. And it continued to roll back campaign-finance laws intended to diminish the influence of wealthy interests in elections. |
Get an overview of the court's actions
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| Roberts not a fan of televised court proceedings |
| Chief Justice John Roberts says that he is concerned about the effect television cameras in the Supreme Court would have on lawyers and justices -- more specifically how lawyers and judges would act if they knew they were on camera.
Roberts, whose court does not allow live television or audio broadcasting of arguments inside its chambers, says if the high court goes toward that, the "movement will be gradual." |
WATE carried this AP story
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| Editorial: Striking video ban went too far |
| In an editorial, the Paris Post Intelligencer says that when the U.S. Supreme Court struck down a California law that bans the sale of violent video games to minors, it was "another example of the shifting balance between liberty and responsibility." |
Read the editorial
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| Career Opportunities |
| Small Nashville practice seeks associate |
| The Law Offices of Woods and Woods -- a small practice located in the Music
Row area of Nashville -- is seeking a new associate with at least two years'
experience in workers' compensation or at least three years' experience in
general litigation. The firm handles plaintiff's litigation, civil rights,
family and small business law. The position will allow the new associate to
work hands-on with clients.
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Learn more on JobLink
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| TBA Member Services |
| Use the TBA rewards card |
| A Tennessee Bar Association Platinum Plus MasterCard credit card from Bank of America rewards you for the things you buy anyway. You also have the chance to show your support for Tennessee Bar Association every time you present your card. To apply, call toll-free 1.866.438.6262 or |
click here for more information.
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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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