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| Tuesday, August 30, 2011 |
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Memorial service for Justice Birch begins at 6 p.m.
A memorial service is set for 6 p.m. today (Aug. 30) at Nashville's War Memorial Auditorium for former Tennessee Supreme Court
Justice Adolpho A. Birch Jr., who died Aug. 25. Birch, the first African-American elected to a Nashville judgeship and the first to lead the Tennessee Supreme Court, was 78.
Attorneys and community members paid their respects at the Metro Courthouse Tuesday afternoon where Justice Birch's body lay in repose, as WPLN and NewsChannel 5 report.
In lieu of flowers, donations may be made to the Justice A.A. Birch Jr. Legal Education Fund, P.O. Box 331487, Nashville 37203.
TBA Today will have coverage of the service in Wednesday's edition.
See photos of Justice Birch on Flickr
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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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ANTHONY RAY ADKINS ET AL. v. BLUEGRASS ESTATES, INC. ET AL.
Court: TCA
Attorneys:
Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellants, Daniel J. Tribell, and wife,
Ruby Tribell, as Trustees of the Daniel J. Tribell and Ruby Tribell Living Trust.
Terry M. Basista, Jacksboro, Tennessee, for the appellees, Anthony Ray Adkins and wife,
Raye Ann Adkins; Ronald D. Casey; John C. Coward and wife, Sandra Coward; John
Delaura and wife, Michelle Delaura; Brain P. Goins and wife, Nichole Goins; David D.
Gough; Mayford McCarter and wife, Helen McCarter; Michael J. McWhorter; David E.
Miller and wife, Kathryn D. Miller; Teresa D. Poston; and, Kenneth Powell and wife,
Carolyn Powell.
Judge: SUSANO
The purchasers of lots in a "subdivision known as Timberlake Estates, Phase One" --
described in a plat and restrictive covenants as a twenty-lot subdivision -- acquired with their
deeds the right to use a boat ramp and parking area to be located in a common area within
the subdivision. When they learned that additional lots -- not located within the combined
acreage of the twenty lots -- were being advertised for sale along with the right to use the
same boat ramp and parking area, they filed this action against their predecessor in interest.
After a trial on the merits, the court held that only the purchasers of lots in "Phase One" were
entitled to use the boat ramp and parking area. The defendant appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2011/adkinsa_083011.pdf
AMERICAN GENERAL FINANCIAL SERVICES, INC. v. UNKNOWN TENANT OF FORECLOSED PROPERTY (MARTIN GOSS)
Court: TCA
Attorneys:
Martin Luther Goss, Knoxville, Tennessee, pro se appellant.
Jerry M. Martin, Knoxville, Tennessee, for the appellee, American General Financial
Services, Inc.
Judge: MCCLARTY
A show cause order was entered in this case on July 15, 2011, directing the pro se appellant
to show cause why this appeal should not be dismissed for lack of jurisdiction. The appellant
has failed to respond to the show cause order within the time specified. The review of the
record reveals that the judgment to which the notice of appeal is directed is not "a final
judgment adjudicating all the claims, rights, and liabilities of all parties" from which an
appeal as of right would lie. See Tenn. R. App. P. 3(a). Accordingly, we dismiss the appeal
as premature.
http://www.tba2.org/tba_files/TCA/2011/americangen_083011.pdf
CAROL D. DAVIS v. KOLO LYNN DAVIS, ET AL.
Court: TCA
Attorneys:
H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Kolo Lynn Davis.
Eric S. Armstrong, Cleveland, Tennessee, for the appellee, Carol D. Davis.
Shari Tayloe Young, Cleveland, Tennessee, for the appellee, Cleveland Building Materials,
Inc.
Judge: MCCLARTY
In this post-divorce case, Kolo Lynn Davis ("Husband") appeals the trial court's
classification of an agreement to maintain health insurance through his company, Cleveland
Building Materials ("CBM"), as alimony in futuro. Husband and Carol D. Davis ("Wife")
were married in 1964 and divorced in 1995. Pursuant to the mutual agreement of the parties,
Wife was given the option of maintaining health insurance through CBM. In furtherance of
this agreement, Wife was given a paid position as a non-voting member of CBM's board of
directors, which allowed her to maintain health insurance through CBM. Wife was tasked
with reimbursing CBM for all costs associated with the health insurance coverage. Husband
later sold CBM to Kolo Lynn Davis, II ("Son"). Son, through CBM, continued to pay Wife
for her services as a board member. In 2005, CBM discontinued its group health insurance,
thereby removing Wife from the plan and ceased paying Wife for her services as a board
member. Wife filed suit, naming Husband and CBM as parties. Following a hearing, the
trial court classified the payments from CBM as alimony in futuro, held Husband personally
liable for CBM's non-payment, and instructed Husband to continue with future payments
pursuant to the agreement. Husband appeals. We reverse the decision of the trial court.
http://www.tba2.org/tba_files/TCA/2011/davisc_083011.pdf
MELVIN B. SMITH, ET AL. v. GARY HANKINS, ET AL.
Court: TCA
Attorneys:
Keith H. Grant, Chattanooga, Tennessee, for the appellants, Melvin B. Smith, Jr. and
Charlotte E. Smith.
Howard L. Upchurch, Pikeville, Tennessee, for the appellees, Gary Hankins and Stanley
Hankins.
Judge: MCCLARTY
This appeal involves a boundary line dispute raised by the plaintiff, Melvin B. Smith and his
wife, Charlotte E. Smith ("the Smiths") and a request for an easement by the defendants,
Gary Hankins and Stanley Hankins ("the Hankinses"). After a trial, the court entered rulings
in favor of the Hankinses as to both the establishment of the boundary line and the easement.
The Smiths appeal. We affirm.
http://www.tba2.org/tba_files/TCA/2011/smithm_083011.pdf
TRI AM CONSTRUCTION, INC., ET AL. v. J & V DEVELOPMENT, INC., ET AL.
Court: TCA
Attorneys:
Richard Gossett and P. Edward Pratt, Knoxville, Tennessee, for the appellants, Branch
Banking and Trust Company and Richard Gossett, Substitute Trustee.
David B. Hamilton, Knoxville, Tennessee, for the appellant, J & V Development, Inc.
William G. Colvin, Chattanooga, Tennessee, for the appellee, Tri Am Construction, Inc.
Mary Beth Hagan, Murfreesboro, Tennessee, for the appellee, Century Fire Protection, LLC.
Edward L. Summers, Knoxville, Tennessee, for the appellee, Tindells', Inc.
Judge: SWINEY
This interlocutory appeal stems from a lien enforcement action. Tri Am Construction, Inc.
("Tri Am") filed a complaint in the Chancery Court for Rhea County ("the Trial Court")
against J & V Development, Inc. ("J & V"), Randall E. Vick, Brenda B. Jung1, and Branch
Banking and Trust Company ("BB&T") to enforce a lien. BB&T2 moved to dismiss Tri
Am's complaint, citing alleged fatal procedural defects. The Trial Court denied BB&T's
motion to dismiss and allowed Tri Am to amend its complaint to cure the procedural defects.
We granted permission for this interlocutory appeal. We find that the Trial Court did not err
in liberally construing the revised mechanic's and materialmen's liens statutes to permit Tri
Am to amend its complaint in order to cure the procedural defects. We further find that the
Trial Court did not err in declining to hold that BB&T's rights would be retroactively
impaired by the liberal application of the revised mechanic's and materialmen's liens
statutes. We affirm the judgment of the Trial Court.
http://www.tba2.org/tba_files/TCA/2011/triamconstruct_083011.pdf
ALFIE TUCKER v. TABITHA FINCH
Court: TCA
Attorneys:
Alfie Tucker, Chattanooga, Tennessee, Pro Se.
Tabitha Finch, Chattanooga, Tennessee, Pro Se.
Judge: MCCLARTY
In this legal malpractice case, Alfie Tucker filed suit against his attorney, Tabitha Finch,
alleging that she had negligently represented him in his lawsuit against his former employer
by failing to timely file his claim with the Tennessee Claims Commission ("TCC"). Ms.
Finch filed a motion to dismiss based upon lack of subject matter jurisdiction, asserting that
the applicable statute of limitations had passed. The trial court granted Ms. Finch's motion
and dismissed the case. Mr. Tucker appeals. We affirm the trial court's order of dismissal.
http://www.tba2.org/tba_files/TCA/2011/tuckera_083011.pdf
HECTOR ALONZO v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Hector Alonzo, Tiptonville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Tammy
Meade, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Hector Alonzo, appeals pro se from the denial of post-conviction relief by the
Criminal Court for Davidson County. He was convicted by a jury of conspiracy to possess
with intent to sell more than seventy pounds of marijuana within one thousand feet of a
school zone, a Class A felony. The petitioner was sentenced to fifteen years in the
Tennessee Department of Correction. On appeal, he claims: (1) he received ineffective
assistance of counsel; and (2) the trial court abused its discretion by prohibiting him from
raising a selective prosecution claim. Upon review, we affirm the judgment of the postconviction
court.
http://www.tba2.org/tba_files/TCCA/2011/alonzoh_083011.pdf
ALISHA J. GLISSON v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Ryan C. Caldwell, Nashville, Tennessee, for the Petitioner-Appellant, Alisha J. Glisson.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel,
Assistant Attorney General; Victor S. (Torry) Johnson, III District Attorney General; and
Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Petitioner, Alisha J. Glisson, appeals the denial of post-conviction relief by the Davidson
County Criminal Court. She was convicted of felony murder, aggravated robbery, and three
counts of attempted aggravated robbery and received an effective sentence of life
imprisonment. The sole issue raised in this appeal is whether trial counsel was ineffective
by failing to subpoena a co-defendant at trial. Upon review, we affirm the judgment of the
post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/glissona_083011.pdf
D'ANGELO MARQUEZ JENKINS v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Travis N. Meeks, Clarksville, Tennessee, for the appellant, D'Angelo Marquez Jenkins.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant
District Attorney General, for the appellee.
Judge: OGLE
The petitioner, D'Angelo Marquez Jenkins, pled guilty in the Montgomery County Circuit
Court to facilitation of aggravated robbery and being a felon in possession of a handgun.
Pursuant to the plea agreement, he received a total effective sentence of nine years and six
months. Thereafter, the petitioner filed for post-conviction relief, alleging that his trial
counsel was ineffective and that his pleas were not knowingly and voluntarily entered.
Specifically, the petitioner complained that trial counsel failed to interview or subpoena
witnesses on the petitioner's behalf or pursue DNA evidence. The petitioner also contended
that his guilty pleas were the result of counsel's ineffective assistance and prosecutorial
misconduct. The post-conviction court denied the petition, and the petitioner now appeals.
Upon review, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/jenkinsd_083011.pdf
STATE OF TENNESSEE v. JEREMY O'NEAL
Court: TCCA
Attorneys:
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jeremy O'Neal.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Mike Flynn, District Attorney General; and Tammy Harrington, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
On October 1,2007, Appellant, Jeremy O'Neal, pled guilty in Blount County to one count of
felony robbery. He was originally placed on judicial diversion. On April 5, 2010, the trial
court set aside Appellant's judicial diversion for violating the terms thereof. The trial court
sentenced Appellant to six years with split confinement of thirty-five days with the remainder
to be served on probation. Appellant's probation officer subsequently filed a violation of
probation report in September 2010. After conducting a probation revocation hearing, the
trial court determined that Appellant had violated the terms of his probation and revoked
Appellant's probation. The trial court ordered Appellant to serve the balance of his six year
sentence in incarceration. Appellant argues on appeal that the trial court abused its discretion
in ordering Appellant to serve his sentence in incarceration. We conclude that there is ample
evidence to support the trial court's decision to revoke Appellant's probation and to order
him to serve the balance of his sentence in incarceration. Therefore, we affirm the revocation
of probation and the order that Appellant to serve the balance of his sentence in incarceration.
http://www.tba2.org/tba_files/TCCA/2011/onealj_083011.pdf
STATE OF TENNESSEE v. BILLY TATE, a/k/a JAMES MOORE, a/k/a LARRY MOORE
Court: TCCA
Attorneys:
Lorrie Miller, Chattanooga, Tennessee, for the appellant, Billy Tate.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Lance Pope, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: SMITH
Appellant, Billy Tate, a/k/a James Moore, a/k/a Larry Moore, was indicted by the Hamilton
County Grand Jury for burglary of a business and theft of property. Appellant was convicted
of burglary of a business and theft of property valued at more than $1,000. As a result,
Appellant was sentenced to twelve years of incarceration as a Career Offender. The trial
court denied a motion for new trial. On appeal, Appellant complains that the trial court erred
in denying the motion to suppress; the trial court erred in failing to grant a mistrial; and the
trial court erred in admitting testimony about "bootprints" left at the scene of the crime.
Because Appellant has failed to provide an adequate record for review on appeal, these issues
are waived, and the judgments of the trial court are affirmed.
http://www.tba2.org/tba_files/TCCA/2011/tateb_083011.pdf
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| TODAY'S NEWS |
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Legal News
Upcoming
Disciplinary Actions
Career Opportunities
TBA Member Services
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| Legal News |
| Howard Gentry sworn in as Metro criminal clerk |
| Former Nashville Vice Mayor Howard Gentry took the oath of office Tuesday afternoon to serve as Metro Nashville's new criminal court clerk. He was sworn in by Judge Angie Blackshear Dalton. Gentry, 59, will stand for countywide election next August, the next time Metro will hold a general election, and might have to win a Democratic primary before that. He replaces David Torrence, who resigned after an investigation into his work habits exposed that his work week was quite short and that he used his government vehicle for personal trips. |
WSMV has this story
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| Gonzalez's plight raises more questions about 287(g) |
| High school student Mercedes Gonzalez's
arrest and subsequent deportation proceeding have ignited more fury over Davidson County's controversial 287(g) program, a federal initiative that allows sheriff's deputies to serve as de facto immigration agents.
Adrienne Schlichtemier, who is regional attorney for the group Justice For Our Neighbors, is representing Gonzalez. |
The Nashville Scene has the story
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| Editorial: School right to stop official pre-game prayer |
| An editorial in the Commercial Appeal reminds citizens of DeSoto County, Miss. -- upset over the halting of prayers over public address systems at athletic events -- that government-sanctioned prayer
undermines the constitutional guarantee of freedom of religion.
The First Amendment Center gives the background. |
Read the editorial
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| Alabama immigration law temporarily on hold |
| A federal judge in Birmingham has temporarily blocked enforcement of Alabama's new law cracking down on illegal immigration.
U.S. District Judge Sharon L. Blackburn says she needs more time to decide whether the law opposed by the Obama administration, church leaders and immigrant-rights groups is constitutional. The decision means the new law won't take effect as scheduled on Thursday. |
CBS News has the story
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| ABA: Law schools should post scholarship renewal rates |
| Law schools would have to publish on their websites the percentage of students whose scholarships are renewed, under
a proposal being considered by the American Bar Association Section of Legal Education and Admissions, which oversees accreditation.
The section floats the idea in a second response to U.S. Sen. Charles Grassley, R-Iowa, who had questioned the ABA about its oversight of law schools and asked for additional information about law school employment, student loan defaults and accreditation procedures. |
Read the details from Law.com
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| Prayer in national cemetery under fire |
| A lawsuit filed this summer against the Department of Veterans Affairs has turned Houston National Cemetery into a battleground over the role of prayer in veterans' burials. The uproar started with the enforcement of a little-noticed 2007 policy that prohibits volunteer honor guards from reading recitations -- including religious ones -- in their funeral rituals, unless families specifically request them. |
The New York times reports
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| Health care fraud prosecutions spike |
| New government statistics show federal health care fraud prosecutions in the first eight months of 2011 are on pace to rise 85 percent over last year. The statistics, released by the non-partisan Transactional Records Access Clearinghouse, show 903 prosecutions so far this year. That's a 24 percent increase over the total for all of fiscal year 2010, when 731 people were prosecuted for health fraud through federal agencies across the country. Prosecutions have gone up 71 percent from five years ago, according to TRAC. |
Read the story in USA Today
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| Upcoming |
| Law admissions workshop, recruitment fair next week |
| Potential law school applicants are invited to attend the Law School Admission Workshop and Recruitment Fair on Sept. 7, at the University of Tennessee, Knoxville.
Panelists will discuss preparing for law school as an undergraduate, the law school admission process and the LSAT, followed by a recruitment fair with nearly 20 law schools represented. |
Learn more
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| Alexander memorabilia to be displayed |
| A collection of Lamar Alexander memorabilia from the years 1955 to 2002 will be on display at Vanderbilt University beginning next month. The collection includes material from Alexander's unsuccessful race for governor in 1974 and successful bid in 1978, through his 2002 election to the U.S. Senate. The donation also includes papers of Alexander's wife, Honey. The exhibit will run from Sept. 17 to Aug. 12, 2012. |
Learn more in the News Sentinel
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| Disciplinary Actions |
| Six lawyers reinstated after paying fee, filing report |
| Six lawyers were reinstated to the practice of law on Aug. 29 after paying their 2011 BPR registration fee, filing their IOLTA compliance form and paying any required fines. They are:
Christopher Lee Brown, Germantown; Nancy Anne Burnett, Dalton, Ga.; Laura Michelle Crawford, Ducktown; Willie Leroy Robinson, Knoxville; James Winfrey Sowell, Dickson; and
Jonathan Wayne Vincent Jr., Chattanooga.
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View all attorneys suspended and reinstated for 2011 registration violations
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| Career Opportunities |
| Real estate lawyers sought in Nashville |
| Counsel On Call is seeking experienced real estate attorneys to assist with various projects for clients in the Nashville area. The agency anticipates ongoing work for various clients with full-time or reduced-hour schedules. Candidates should have at least three years of real estate experience, preferably in a law firm or corporate environment and prior real estate transactional experience. Submit resumes to
nashvilleresumes@counseloncall.com.
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Learn more on JobLink
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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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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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