Tuesday, September 27, 2011
Search our Database for Opinions and News Items
 
 
High court sets cases for fall session

The U.S. Supreme Court prepared for its fall session today by announcing seven new cases it will hear next year, including one that will determine whether private lawyers hired as outside counsels for governments can be sued. Another high profile case coming before the court will be the Obama administration's appeal of lower court rulings in favor of immigrants seeking to avoid deportation.

Read more from Tri-Cities.com
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
04 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
02 - 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.
C.F. PROPERTY, LLC v. RACHEL SCOTT ET AL.

Court: TCA

Attorneys:

Christopher D. Owens, Johnson City, Tennessee, for the appellant, C.F. Property, LLC.

Thomas A. Peters, Kingsport, Tennessee, for the appellees, Rachel Scott and Randy Scott dba Finishing Touch.

Judge: SUSANO

This is a landlord-tenant dispute involving commercial property with a known and disclosed "leaky roof." The lease states that the "property" is leased "as is where is." In an email sent prior to the execution of the lease, the landlord stated it would "talk about" repairing the roof after the first year. The leakage increased dramatically after the first year. The tenant began withholding rent. The landlord filed an unlawful detainer action and the tenant filed a counterclaim for damages resulting from the leaky roof. A bench trial ensured. The court held that, by telling the tenant it would "talk about" repairing the roof, the landlord misrepresented that the roof was repairable when the landlord knew it could not be repaired, and that the landlord had a duty under the lease to repair the roof. The landlord appeals. We reverse the judgment and remand for a determination of the damages due the landlord under the lease.

http://www.tba2.org/tba_files/TCA/2011/CFProperty_092711.pdf
CASANDRA CORNWELL v. TROY CORNWELL

Court: TCA

Attorneys:

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellant, Casandra Cooper, formerly Cornwell.

Martha Meares and Paul Dillard, Maryville, Tennessee, for the appellee, Troy Cornwell.

Judge: SUSANO

This case involves the plaintiff's motion seeking an order holding her former husband in contempt for failing to make certain monthly payments of $1,071 from his military retirement as required by the terms of a marital dissolution agreement incorporated into the parties' divorce judgment. The wife's former spouse stopped making the payments after the wife remarried. The trial court denied the motion upon finding that the payments in question were alimony subject to modification rather than a property distribution as the wife contends. The court held that Mr. Cornwell "properly" stopped paying the "alimony" when his former wife remarried. The wife has appealed. We reverse the judgment of the trial court and remand for a hearing on the wife's motion.

http://www.tba2.org/tba_files/TCA/2011/Cornwellc_092711.pdf
TONYA RENEE FLETCHER v. GLEN ALLEN FLETCHER

Court: TCA

Attorneys:

Norris A. Kessler, III, Winchester, Tennessee, for Defendant/Appellant, Tonya Renee Fletcher.

Doug Aaron, Manchester, Tennessee, for Plaintiff/Appellee, Glen Allen Fletcher.

Judge: KIRBY

This post-divorce appeal involves parenting issues. The parties, parents of two minor children, divorced pursuant to a marital dissolution agreement. After post-divorce custody disputes arose, the parties went through mediation and arrived at an agreed parenting plan. The next day, the mother repudiated the agreement. The father then filed a motion to enforce the mediation agreement. The mother requested an evidentiary hearing on whether the parenting arrangement embodied in the mediated parenting plan was in the best interest of the children. The trial court declined to hear any evidence, and found that the mediated parenting plan was a valid, enforceable contract. It entered an order enforcing the mediated parenting plan. The mother now appeals. We reverse, holding that the trial court erred in applying contract analysis to the mediated parenting plan, and remanding for an evidentiary hearing on whether the parenting arrangement in the mediated parenting plan is in the best interest of the minor children.

http://www.tba2.org/tba_files/TCA/2011/fletchert_092711.pdf
GINNY BETH KING, ET AL. v. FLOWMASTER, INC.

Court: TCA

Attorneys:

Lewis L. Cobb, Jackson, Tennessee, for the appellants, Ginny Beth King, Steve R. Taylor, Brenda Taylor and Bruce Replogle.

Stephen L. Hale, Bolivar, Tennessee, for the appellants, Sheila Sisk and Jeff Sisk and Amy J. Driskill, Individually and as surviving spouse of Sean Driskill.

Douglas J. Fees, Huntsville, Alabama; Johnnie L. Franks, Florence, Alabama, for the appellants, Linda Harmon and Rouge-Jett Cloud.

C. Mark Donahoe, Jackson, Tennessee, for the appellants, Codye Tomaszewski, Roger Pitchford, Mark and Rowena Pope, Individually and as parents of Brooke Lauren Pope, deceased, and Ronald Griswell, Individually and as parents of Raven Leann Griswell, deceased, and Nichole Charm Griswell, deceased.

R. Christopher Gilreath, Memphis, Tennessee, for the appellants, Andrew James Bishop, Jeannie Dawn Townsend, Anthony Weirich and Vicky Weirich, Cynthia G. Stephens, Shane A. Smith, Christopher L. Mettlen, Michael L. Smith and Teresa A. Smith, and Selina H. Kennedy.

William B. Jakes, III, Hugh C. Gracey, III, Nashville, Tennessee, for the appellee, Flowmaster, Inc.

Judge: HIGHERS

Flowmaster invited a professional driver to attend an exhibition in which such driver allegedly lost control of his vehicle, killing or injuring many spectators. The plaintiffs sued numerous defendants, including Flowmaster, and the trial court granted Flowmaster's motion for summary judgment. We affirm the trial court's finding that Flowmaster was not a member of a joint venture. However, we find that Flowmaster failed to negate the duty element of the plaintiffs' negligence claim, and that genuine issues of material fact exist as to whether Flowmaster "engaged" in an ultrahazardous activity or "participated" in a "drag race," and we remand on these issues.

http://www.tba2.org/tba_files/TCA/2011/KingG_092711.pdf
STATE OF TENNESSEE v. SAMIR RAMON MEJIA

Court: TCCA

Attorneys:

Richard L. Burnette (on appeal) and Bryan E. Delius (at trial), Sevierville, Tennessee, for the appellant, Samir Ramon Mejia.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; James B. Dunn, District Attorney General; and Ashley Musselman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

After a bench trial, the Sevier County Circuit Court convicted the appellant, Samir Ramon Mejia, of simple possession of a Schedule II controlled substance, a Class A misdemeanor, and sentenced him to eleven months, twenty-nine days to be served as six months in jail and the remainder on supervised probation. On appeal, the appellant contends that the trial court erred by denying his motion to suppress evidence because the arresting officer lacked reasonable suspicion to pat-down the appellant for weapons. Based upon the record and the parties' briefs, we conclude that the officer lacked reasonable suspicion for the pat-down and reverse the appellant's conviction.

http://www.tba2.org/tba_files/TCCA/2011/MejiaS_092711.pdf
STATE OF TENNESSEE v. ANTHONY M. RELIFORD

Court: TCCA

Attorneys:

Roger E. Nell, District Public Defender, and Crystal Myers, Assistant Public Defender, for the appellant, Anthony M. Reliford.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Robert J. Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Anthony M. Reliford, pled guilty to domestic assault and aggravated assault, receiving concurrent sentences of four years and eleven months and twenty-nine days to be served in confinement. The court further ordered that the defendant pay restitution to the victim in the amount of $830.19. On appeal, the defendant contends that the trial court erred by: (1) imposing a fully incarcerative sentence and (2) improperly ordering restitution. Following review of the record, we affirm the sentences of incarceration but remand for reconsideration of restitution in light of the defendant's ability to pay.

http://www.tba2.org/tba_files/TCCA/2011/relifordam_092711.pdf
STATE OF TENNESSEE v. CHARLES H. VIRES, JR.

Court: TCCA

Attorneys:

John Russell Parkes, Columbia, Tennessee, for the appellee, Charles H. Vires, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Mike Bottoms, District Attorney General; and David Cruz, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: TIPTON

The State appeals the Maury County Circuit Court's granting of the Defendant's motion to suppress evidence obtained during a sobriety checkpoint. The State claims that the trial court erred by concluding that the Defendant was unreasonably seized at the checkpoint due to the failure of the advance publicity to comply with Tennessee Department of Safety General Order 410-1. We judgment of the trial court and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCCA/2011/ViresC_092711.pdf
IN RE: ROBERT M. ASBURY, BPR 017024

Court: TSC-Disciplinary_Order

Judge: KOCH

Censure

http://www.tba2.org/tba_files/TSC/2011/asburyr_092711.pdf
IN RE: RHONDA D. HOOKS, BPR 021886

Court: TSC-Disciplinary_Order

Judge: KOCH

Censure

http://www.tba2.org/tba_files/TSC/2011/hooksr_092711.pdf
TODAY'S NEWS
Legal News
Upcoming
Disciplinary Actions
TBA Member Services
Legal News
Shelby court clerk resigns, newspaper reports
Beleaguered Shelby County Chancery Court clerk Dewun Settle has resigned, the Memphis Commercial Appeal reports this afternoon. A series of disclosures regarding his handling of a $1 million embezzlement scheme in his office led to the resignation, the paper said.
The Commercial Appeal has more
Critics want more info from law schools
Some law school reform advocates are critical of an American Bar Association committee decision that doesn't require schools to report the percentage of their graduates who landed jobs requiring bar passage or the percentage of graduates in part-time jobs.
Read more from the National Law Journal on Law.com
Law prof directs new film on Memphis desegregation
A new documentary marking the 50th anniversary of the integration of Memphis elementary schools by 13 African American first graders will premier Oct. 3 at the Civil Rights Museum. Directed by Daniel Kiel, a professor at the University of Memphis Cecil C. Humphreys School of Law, the film will have it's public premier on Oct. 4 at Malco Paradiso at 6 p.m. Admission is free.
Learn more about the film
Former interim mayor charged with theft
Former interim Shelby County Mayor and County Commissioner Joe Ford has been charged with theft of property under $10,000, according to a county website. Ford, 57, is named in a warrant posted on the Shelby County Sheriff's website that lists the charge as theft of property over $1,000 and under $10,000.
The Commercial Appeal reports
CLE Milestone
It was 25 years ago this week, the Memphis Commercial Appeal reports, that Tennessee's Supreme Court ordered the state's lawyers to "brush up on their skills or risk losing their licenses." Justice William H.D. Fones told the media that the court had approved a plan requiring lawyers to obtain at least 12 hours of continuing legal education each year to retain their licenses. That requirement was later increased to 15 hours.
Upcoming
Equal Justice University schedule now live
The Equal Justice University (EJU) schedule is now available online at TALS.org. Sessions will cover a number of substantive law areas including health care, elder law, special education, veterans' benefits, fair housing and more. There are also activities planned to help attendees enjoy the fall season, including programs on birds of prey and flora and fauna with interpretive rangers from Paris Landing State Park.
View the schedule or register
Disciplinary Actions
Knoxville lawyer censured
On Sept. 22, Knoxville lawyer Robert M. Asbury was publicly censured by the Tennessee Supreme Court for depositing funds into his business account rather than his trust account. Asbury submitted a conditional guilty plea acknowledging violating Rules of Professional Conduct 1.4, 1.5 and 8.4. The court found that none of his client's suffered loss or injury.
Download the court order
Columbia lawyer censured
On Sept. 22, Columbia lawyer Rhonda D. Hooks was publicly censured by the Tennessee Supreme Court for violating Rules of Professional Conduct dealing with diligence and promptness in representing clients, communication with clients and expeditiously handling litigation. Hooks submitted a conditional guilty plea acknowledging violating the rules.
Download the court order
TBA Member Services
New solutions for your insurance needs
Working with Graham Swafford III, the TBA Member Insurance Solutions Program is able to provide members with exclusive benefits, personalized service, and pricing discounts for disability income insurance, business overhead expense insurance, life and long-term care insurance with other employee related benefits. TBA Member Insurance Solutions can also provide an objective review of your current health insurance program, evaluate your needs, and recommend the most cost effective solution.
Learn more about TBA Insurance Solutions now

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

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