TBA Today

Wednesday, October 26, 2011

Search our Database for Opinions and News Items

10 file to fill Nashville judicial post

Ten candidates filed to compete for the Davidson County General Sessions Court position that opened this month with the death of Judge Leon Ruben. The council's Rules-Confirmations-Public Elections Committee will interview the candidates next Tuesday and the council will appoint a replacement on Nov. 15. During the process, the Nashville Bar Association will also poll its members on the candidates.

See the full list of candidates in the City Paper

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

MARK D. TALLEY v. BOARD OF PROFESSIONAL RESPONSIBILITY
With Concurring Opinion

Court: TSC

Attorneys:

Ted I. Jones, Memphis, Tennessee, for the appellant, Mark D. Talley.

Randall J. Spivey, Disciplinary Counsel, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.

Judge: KOCH

This appeal involves a disciplinary proceeding against a Memphis lawyer who pleaded guilty in the Criminal Court for Shelby County to facilitating the felonious violation of the Tennessee Securities Act. After a Board of Professional Responsibility hearing panel recommended that he be disbarred, the lawyer filed a petition for writ of certiorari in the Chancery Court for Shelby County seeking judicial review of the hearing panel's decision. The trial court affirmed the recommendation of the hearing panel, and the lawyer appealed to this Court. On appeal, the Board of Professional Responsibility asserts that the lawyer's petition should be dismissed because his petition for writ of certiorari did not contain the recitation required by Tenn. Code Ann. section 27-8-106 (2000). For his part, the lawyer asserts that the punishment of disbarment is excessive. We have determined that the lawyer's deficient petition for writ of certiorari does not prevent the courts from reviewing the hearing panel's decision. We have also determined that the record fully supports the hearing panel's findings and that disbarring the lawyer is not an excessive punishment in light of the facts and circumstances of this case.

http://www.tba2.org/tba_files/TSC/2011/talleym_102611.pdf

HOLDER concurring
http://www.tba2.org/tba_files/TSC/2011/talleym_CON_102611.pdf

IN RE: ELAINA M.

Court: TCA

Attorneys:

Jonathan L. Miley, Nashville, Tennessee, for the appellant, Stacey M.

Jedidiah L. Cochran, Nashville, Tennessee for the appellee, Ricardo H.

Judge: STAFFORD

In this modification of child custody case, Father petitioned the court to change custody based on Mother's relocation and the subsequent interference with his visitation. Finding a material change in circumstances, the juvenile court named Father primary residential parent. Mother appeals. Concluding that a material change in circumstances existed and the change in custody was in the child's best interest, we affirm.

http://www.tba2.org/tba_files/TCA/2011/alainam_102611.pdf

WILLIAM JAMES JEKOT v. PENNIE CHRISTINE JEKOT

Court: TCA

Attorneys:

Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellant, Pennie Christine Jekot.

William Kennerly Burger, Murfreesboro, Tennessee, for the appellee, William James Jekot.

Judge: CLEMENT

Wife appeals the trial court's decision to substantially reduce her alimony, contending there has not been a substantial and material change of circumstances. The parties were divorced in 2005 following a thirty year marriage. In 2008, Husband filed a petition for modification of alimony. The trial court held that a decrease in Husband's income constituted a substantial and material change of circumstance, which warranted the reduction in alimony. The trial court also held that Husband was entitled to interest on overpayments of alimony. Wife appealed. We reverse based on the finding that there was not a substantial and material change of circumstance. We also find that although Husband is entitled to recover overpayments of alimony following the first appeal, he is not entitled to interest on the overpayments. Wife has requested her attorney's fees. Applying the principles stated in Gonsewski v. Gonsewski, __S.W.3d __, 2011 WL 4116654 (Tenn. Sept. 16, 2011), we find Wife is not entitled to recover her attorney's fees on appeal.

http://www.tba2.org/tba_files/TCA/2011/jekotw_102611.pdf

WHITNEY MARIE MACRAE v. THOMAS PAUL MACRAE

Court: TCA

Attorneys:

Brett D. Stokes, Knoxville, Tennessee, for the appellant, Thomas Paul MacRae.

Shelley S. Breeding,David L. Dothard, and Allison Starnes-Anglea, Knoxville, Tennessee, for the appellee, Whitney Marie MacRae.

Judge: SUSANO

The trial court granted Whitney Marie MacRae ("Wife") a divorce by default against Thomas Paul MacRae ("Husband"). The default was based upon Husband's failure to comply with an order compelling him to respond to Wife's discovery requests. Shortly after Wife remarried - which was nearly a year after the divorce judgment was entered - Husband filed a motion pursuant to Tenn. R. Civ. P. 60.02 to set aside the judgment. The trial court denied the motion. Husband appeals from that denial. Wife argues that the judgment should not be set aside; she seeks damages for a frivolous appeal. We affirm the judgment of the trial court. We also find the appeal to be frivolous and remand to the trial court for a determination of the damages due Wife pursuant to the provisions of Tenn. Code Ann. section 27-1-122 (2000).

http://www.tba2.org/tba_files/TCA/2011/macraew_102611.pdf

EVA WEAVER v. PRISCILLA DEVERELL, ET AL.

Court: TCA

Attorneys:

Barry J. McWhirter, Memphis, Tennessee, for the appellant, Priscilla Deverell.

David F. Kustoff, Memphis, Tennessee, for the appellee, Eva Weaver.

Judge: STAFFORD

This is a case involving life insurance and a Power of Attorney. After Decedent named Appellant as his attorney-in-fact through a Power of Attorney, the Appellant changed Decedent's life insurance policy to name herself as primary beneficiary. Appellee, the previous beneficiary of the policy, filed this action to prevent Appellant from receiving the proceeds, alleging fraud. The trial court found that the Uniform Durable Power of Attorney Act prevented Appellant from changing the beneficiary of the policy. Further, the trial court held that Appellant's argument that she had actual authority to make the change was an affirmative defense that was waived by Appellant's failure to specifically plead it. Based on the foregoing, we affirm in part, reverse in part and remand.

http://www.tba2.org/tba_files/TCA/2011/weavere_102611.pdf

JANICE W. WINKLER v. CHARLES S. WINKLER

Court: TCA

Attorneys:

Charles G. Blackard, III, Franklin, Tennessee, for Defendant/Appellant Charles S. Winkler.

David W. Garrett and Jacob T. Thorington, Franklin, Tennessee for Plaintiff/Appellee Janice W. Winkler.

Judge: KIRBY

This is a divorce case. The parties had a long marriage and one minor child. The wife obtained an order of protection against the husband on behalf of herself and the child and filed for divorce. After a trial, the trial court granted the wife a divorce, extended the order of protection against the husband, and divided the marital assets. The trial court did not award the husband parenting time, and required the husband to attend anger management classes and pay child support. The wife was awarded the marital home subject to a lien in favor of the husband. The husband appeals the child support and the failure to award him parenting time. The wife appeals the trial court's award of a lien on the parties' marital residence in favor of the husband. We affirm as to parenting time and child support, and reverse as to the lien on the marital residence.

http://www.tba2.org/tba_files/TCA/2011/winklerj_102611.pdf

STATE OF TENNESSEE v. JAMES BEELER

Court: TCCA

Attorneys:

Larry R. Dillow and Katherine L. Tranum, Kingsport, Tennessee, for the appellant, James Beeler.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Janet Hardin, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, James Beeler, an attorney, was cited for contempt of court in the Washington County Criminal Court because, during a court proceeding, he communicated with his client's co-defendant who was represented by other counsel. Following a hearing, the trial court found Defendant in contempt of court and imposed a fine and a sentence of ten days in jail. At a subsequent hearing, the trial court suspended Defendant's sentence. Defendant now appeals his conviction and asserts that the evidence was insufficient to support his conviction for contempt of court. He specifically argues that it was error for the trial court to enforce Tennessee Supreme Court Rule 8 or to charge Defendant with criminal contempt for a violation of Supreme Court Rule 8. After a careful review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/beelerj_102611.pdf

TODAY'S NEWS

Legal News
Celebrate Pro Bono
Upcoming
TBA Member Services

Legal News

Recall effort draws legal questions

A recall effort in Wilson County may test whether the state's recall provisions are constitutional. The recall campaign -- an effort to remove Lebanon councilwoman Kathy Warmath from office -- is bringing to the forefront questions about whether signatures collected citywide can be used in the recall of a councilwoman from a single district or whether that violates the "one man, one vote" principle.

Court to review three cases

The Tennessee Supreme Court granted review in three cases this week. The two criminal cases address impeachment with prior convictions and reasonable suspicion to detain and probable cause to arrest. The civil case concerns the doctrine of exhaustion of administrative remedies in zoning and land use litigation

Read analysis from the Raybin and Perky Hot List

Loan relief program helps prosecutors, public defenders

Attorneys working as prosecutors and public defenders can apply now to get loan repayment assistance through the John R. Justice program, sponsored by the U.S. Department of Justice. The program provides loan repayment assistance for local, state, and federal public defenders and local and state prosecutors who commit to continued employment as public defenders and prosecutors for at least three years. The deadline to apply is Dec. 9.

Learn more about the program now

Law prof says feds have too much power

A Georgetown University law professor speaking Tuesday in Memphis attacked the federal law that agents used to enter Gibson guitar factories and confiscate documents, computer data, pallets of wood and guitar parts. John S. Baker told a gatherings of the Federalist Society at the University of Memphis Cecil C. Humphreys School of Law that the law, known as the Lacey Act, is an example of vague criminal laws that allow the federal government to pursue practically any adult.

Read the full story

Court clerk resigns over missing money

Germantown Deputy Court Clerk Janet Donnell resigned Tuesday after city officials say she admitted to stealing court funds. Germantown police and Watkins Uiberall, a certified public accounting firm, are investigating the loss. Once the investigation is complete, the case will be turned over the Shelby County District Attorney's Office.