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Wednesday, August 31, 2011

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Former TBA President Larry Wilks dies in Springfield

Former Tennessee Bar Association President Larry Dean Wilks died suddenly yesterday at his home. Wilks, 56, was president of the TBA in 2006-2007. During his year as president, the TBA adopted the slogan "Serving Every Lawyer, Every Day," which arose from his 25-year practice on the court square in Springfield.

Visitation will be held Friday, from 10 a.m. to 8 p.m., and Saturday, from 10 a.m. to 1 p.m., followed by a funeral service at 1 p.m. at the First United Methodist Church, 511 Oak Street, Springfield 37172. Internment will take place at the Robertson County Memorial Gardens.

Read about Wilks' contributions to the profession and comments from colleagues

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
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
01 - 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.

ARLENE R. STARR v. PAUL B. HILL, SR., ET AL.

Court: TSC

Attorneys:

Kirk A. Caraway and Heather W. Fletcher, Memphis, Tennessee, for the appellant, Paul B. Hill, Sr.

S. Newton Anderson and Paul R. Sciubba, Memphis, Tennessee, for the appellee, Arlene R. Starr.

Judge: LEE

A father and his sixteen-year-old son were sued after the son was involved in an accident while driving a vehicle owned, insured, and provided to him by his father. The basis for the suit against the father was the family purpose doctrine, which imposes vicarious liability on the owner of a vehicle for the negligent operation of the vehicle by a family member. Whether the family purpose doctrine applies to the father requires us to address these issues: (1) whether the father, who does not reside in the same household as the son, was a head of the household under the family purpose doctrine; (2) whether the vehicle was maintained for the comfort or pleasure of the family or solely for use by the son; and (3) whether the vehicle was being driven with the father's permission such that he had control over its use. The essential elements of the family purpose doctrine are that the owner must be a head of the household who furnishes and maintains the vehicle for the purpose of providing pleasure or comfort for the family, and at the time of the injury, the vehicle must have been driven in furtherance of that purpose with the head of the household's express or implied permission. The trial court granted summary judgment to the father, finding that the family purpose doctrine did not apply. The Court of Appeals reversed, ruling that the family purpose doctrine applied to the father as a matter of law. We hold that the father was a head of the household because he had a family relationship with his son and a duty to support his son and the father furnished and maintained the vehicle for the purpose of providing pleasure or comfort to the family. However, a genuine issue of material fact remains as to whether the father had sufficient control over the vehicle. We vacate the decision of the Court of Appeals and remand for trial.

http://www.tba2.org/tba_files/TSC/2011/starra_083111.pdf

PAUL E. KENNEDY v. LAKEWAY AUTO SALES, INC.

Court: TWCA

Attorneys:

Evan E. Hauser and Michael J. Mollenhour, Knoxville, Tennessee, for the appellant, Lakeway Auto Sales, Inc.

James Madison Davis, Morristown, Tennessee, for the appellee, Paul E. Kennedy.

Judge: WADE

When the employer refused to provide another panel of physicians following the employee's negative drug screen result, the employee filed a motion to compel medical treatment. The trial court ordered the employer to provide a panel of three doctors for pain treatment and granted the employee's request for attorney's fees. The Supreme Court referred the employer's appeal to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) (2008) and Tennessee Supreme Court Rule 51. The judgment of the trial court is affirmed and the cause is remanded for modification of the trial court's order.

http://www.tba2.org/tba_files/TSC_WCP/2011/kennedyp_083111.pdf

IN RE A'MARI B.

Court: TCA

Attorneys:

William E. Phillips II, Rogersville, Tennessee, for the appellant, Troy B.

John S. Anderson, Rogersville, Tennessee (appeal), and Gerald T. Eidson, Rogersville, Tennessee (trial), for the appellant, Rebecca S.

Douglas T. Jenkins, Rogersville, Tennessee, for the appellees, Christopher N. and Dean N.

Judge: SUSANO

This is termination of parental rights case involving A'Mari B. ("the Child"), the minor daughter of Troy B. ("Father") and Rebecca S. ("Mother"). The Department of Children's Services ("DCS") took the Child as an infant into state custody after both Father and Mother were arrested and jailed. The Child was promptly placed with Christopher N. and Dean N. (collectively, "the Custodians"), the prospective adoptive parents, where she has remained. Five months after obtaining legal custody, the Custodians filed a petition to terminate the parental rights of Father and Mother in order to facilitate their adoption of the Child. Following a bench trial, at which Mother appeared, the court terminated both natural parents' rights to the Child based on the court's finding of multiple forms of abandonment. Over Father's objection, his case was tried without his presence or participation. Father and Mother, by separate notices of appeal, challenge the termination order. As to Father, the judgment is vacated and the case remanded for a new trial - our action being based on the fact that Father was denied due process in the termination proceeding. As to Mother, the evidence does not preponderate against the trial court's finding that there is clear and convincing evidence that she abandoned the Child and that termination of her rights is in the Child's best interest. Accordingly, as to Mother, the judgment is affirmed

http://www.tba2.org/tba_files/TCA/2011/amarib_083111.pdf

IN RE ESTATE OF ROGER WASHINGTON BOULDIN

Court: TCA

Attorneys:

Elizabeth Gai Bouldin Payor, Hohenwald, Tennessee, Pro Se.

Michael E. Spitzer, Hohenwald, Tennessee, for the appellee, Estate of Roger Washington Bouldin, Sue Anderson Bouldin, Executrix.

Judge: BENNETT

Daughter of decedent filed claim against estate. The probate court dismissed the daughter's claim on the ground that it was not timely filed. We affirm the trial court's decision.

http://www.tba2.org/tba_files/TCA/2011/bouldinr_083111.pdf

VALERIE COSSAR CLARK AND ESTATE OF RICKY COSSAR V. DONNIE HOUSTON, LARRY SISCO, AND BRENDA SISCO

Court: TCA

Attorneys:

Lloyd Rogers Tatum, Henderson, Tennessee, for the appellants, Valerie Cossar Clark and Estate of Ricky Cossar.

Art D. Wells, Jackson, Tennessee, for the appellee, Donnie Houston.

Brenda Sisco and Larry Sisco, pro se appellees.

Judge: PER CURIAM

Appellants filed their Notice of Appeal more than thirty (30) days after the order appealed was entered by the trial court. Consequently, we must dismiss this appeal for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2011/clarkv_083111.pdf

MITCHELL EADS, TDOC #243729, v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TCA

Attorneys:

Mitchell Eads, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor General, and Lee Pope, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Department of Correction, et al.

Judge: FRANKS

Petitioner filed a Common Law Writ of Certiorari, alleging he was convicted of a disciplinary infraction while incarcerated, and that the conviction was illegal, arbitrary and fraudulent. Respondents filed a Motion to Dismiss on the grounds that the Petition contained no oath or affirmation and did not state it was the first application for a writ pursuant to Tenn. Code Ann. section 27-8-104(a) and 106. Further that petitioner failed to file a certified copy of his inmate trust account statement pursuant to Tenn. Code Ann. section 41-21-807(a). The Trial Court entered an Order of Dismissal for the deficiencies set forth in the Motion to Dismiss. Petitioner has appealed and we affirm the Trial Court's Order of Dismissal on the grounds set forth in that Order.

http://www.tba2.org/tba_files/TCA/2011/eadsm_083111.pdf

ALMETA ELLIS, AS THE ADMINISTRATRIX OF THE ESTATE OF JONAH ELLIS, AND THE ESTATE OF JONAH ELLIS, INDIVIDUALLY v. MINDER MUSIC LIMITED, LONNIE SIMMONS AND ROBERT LOUIS WHITFIELD

Court: TCA

Attorneys:

Samuel F. Miller, Bryan W. Jones, & Laura P. Merritt, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, Tennessee, for Plaintiffs/Appellants Almeta Ellis, as the Administratrix of the Estate of Jonah Ellis and the Estate of Jonah Ellis, Individually.

Byron K. Lindberg, Hall, Booth, Smith & Slover, P.C., Nashville, Tennessee, for Defendant/Appellee Minder Music Limited.

Judge: KIRBY

This appeal concerns venue in an action to recover royalties. The plaintiff songwriter resided in Shelby County, Tennessee. The plaintiff filed the instant lawsuit in Shelby County against the defendant music company to recover past-due royalties, asserting that he was the sole author of three musical compositions. The defendant music company, domiciled in the United Kingdom, filed a motion to dismiss based on, inter alia, improper venue. The trial court held that venue was improper and granted the motion to dismiss. We reverse.

http://www.tba2.org/tba_files/TCA/2011/ellisa_083111.pdf

ALAN BRADLEY POUNDERS v. TIFFANY WHITE POUNDERS

Court: TCA

Attorneys:

Leslie Gattas Coleman, Keating Lowery, Memphis, Tennessee, for the appellant, Alan Bradley Pounders.

Loys A. "Trey" Jordan, III, Joseph B. Baker, Memphis, Tennessee, for the appellee, Tiffany White Pounders.

Judge: HIGHERS

This is an appeal of an award of attorney fees in a post- divorce matter. The father had filed a petition to modify the permanent parenting plan, seeking to increase his parenting time and reduce his child support obligation. Approximately six months later, after Father's discovery deposition was taken, he asked the court to dismiss his petition to modify without prejudice. The trial court dismissed the petition but awarded the mother $20,000 for her attorneys' fees. The father appeals, arguing that the trial court lacked authority to award attorney fees and that the amount awarded was arbitrary and unreasonable. We find that the trial court had the authority to award attorney's fees, but due to the lack of findings by the trial court regarding the reasonableness of the fee award, we vacate the award and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2011/poundersa_083111.pdf

VICTORIA ANN THOMAS (ROSSIE) V. JOSEPH RICHARD ROSSIE

Court: TCA

Attorneys:

Joseph Richard Rossie, Memphis, Tennessee, appellant, pro se.

Aubrey L. Brown, Jr., Memphis, Tennessee, for the appellee, Victoria Ann Thomas (Rossie).

Judge: STAFFORD

The former husband appealed the trial court's order finding him in willful contempt of the final decree of divorce. We dismiss this appeal for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2011/thomasv_083111.pdf

STATE OF TENNESSEE v. KRISTEN A. WILSON

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee, for the appellant, Kristen A. Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kyle Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Kristen A. Wilson, presents for our review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pleaded guilty to driving under the influence, per se. As a condition of her guilty plea, the defendant reserved a certified question of law challenging the admissibility of her blood sample based on the two-hour admissibility limit. Following our review, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/wilsonk_083111.pdf

IN RE: HERBERT S. MONCIER, BPR 001910

Court: TSC-Disciplinary_Order

Judge: PER CURIAM

Board of Professional Responsibility petition dismissed

http://www.tba2.org/tba_files/TSC/2011/moncierh_083111.pdf

TODAY'S NEWS

Legal News
U.S. Supreme Court
Disciplinary Actions
TBA Member Services

Legal News

Birch 'celebration of life' attended by hundreds

Nashville's War Memorial Auditorium was packed Tuesday evening with mourners for former state Supreme Court Justice Adolpho A. Birch. Birch's son, Adolpho A. Birch III, said his father "gladly carried the weight for those who could not fend for themselves. It is our hope that others will take up that journey and be inspired to carry that weight." Chief Justice Connie Clark, Nashville Mayor Karl Dean, lawyer Nancy A. Vincent and First Amendment Center founder John Seigenthaler also paid tribute to Birch, a man who served at every level of the Tennessee court system, including being its first African American Supreme Court chief justice.

NewsChannel5 was at the ceremony

Daughtery interview of Birch available

Justice Adolpho A. Birch was interviewed in 2004 about his life and legal career, by his former Supreme Court colleague, Judge Martha Craig (Cissy) Daughtrey as part of the Tennessee Bar Foundation's ongoing Legal History Project. To borrow or buy a copy of the 96-minute video, contact the foundation at (615) 242-1531 or by emailing info@tnbarfoundation.org.

AOC indigent fee proposal generates debate

In an article today, the Tennessean explores the issues related to the Administrative Office of the Courts' proposal to solicit bids and award contracts to lawyers or firms that provide legal services to indigent persons for a fixed fee. The story quotes TBA Executive Director Allan Ramsaur who says that while the Administrative Office of the Courts knows how to process claims, it lacks the expertise to evaluate the bids lawyers would submit and that the association will urge the court to reject the proposal and instead establish a commission of experts to administer indigent defense in the state.

In related news, Virginia E. Sloan with the Washington, D.C.-based Constitution Project, outlines that organization's objections to the proposal in the paper. Other stories about the proposal include the Knoxville News-Sentinel, WBIR.com, The Wall Street Journal, the ABA Journal and USA Today.

Nashville mayor names interim law director

Nashville Mayor Karl Dean has named Metro Department of Law Deputy Director Mike Safley the new interim director, picking the 32-year Metro employee as the replacement for Sue Cain, whose final day at the top post was today. Safley's appointment is effective Thursday, Sept. 1.

The Nashville City Paper has the story

Editorial: Tread carefully on judges panel

An editorial in today's Daily News Journal warns lawmakers to "tread lightly as they approach potential changes in the Tennessee Court of the Judiciary, lest they overstep the lines that separate equal branches of government." The paper goes on to say it concurs with the "need for tweaking" the court but believes that the body "must remain free from the fetters of the legislature or the separation of powers between the legislative and judicial branches of government will be severely compromised."

Read the editorial here

Juvenile court nominated for federal award

Bradley County Juvenile Court has been nominated for the Office of Juvenile Justice and Delinquency Prevention's Organization of the Year award by United Way Vice President of Community Investment Strategy Matt Ryerson. In the nomination, Ryerson writes that the transformation that has occurred at the court "is amazing" and that its focus on helping families of children in the system and getting to the root of behavioral issues is "rare in this country." Court director Terry Gallaher said the court is blessed to have a unified staff that is constantly thinking of ways to better serve children and reach out to families.

The Cleveland Banner reports

Memphis lawyer named to ABA human rights board

Maurice Wexler, a shareholder in the Memphis office of Baker, Donelson, Bearman, Caldwell & Berkowitz PC, has been named a member of the board of the American Bar Association's Center for Human Rights, which leads the group's efforts to address critical human rights issues including human trafficking, business ethics and human rights, and the teaching of human rights in U.S. school systems.