Tuesday, November 01, 2011
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Welcome to the practice of law in Tennessee

About 200 new attorneys took part in admission ceremonies today at War Memorial Auditorium in Nashville. Between morning and afternoon sessions, the Tennessee Bar Association hosted an open house luncheon for new admittees and their families at the Tennessee Bar Center. The Tennessee Supreme Court also hosted an admissions ceremony yesterday in Knoxville and will hold additional programs in Jackson on Wednesday and Memphis on Thursday.

See photos from the ceremony and TBA Open House on TBAConnect
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
08 - TN Court of Appeals
03 - 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 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.
CHARLES BRAUN V. NITA LYNN BRAUN

Court: TCA

Attorneys:

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Charles Braun.

Lisa A. White, Knoxville, Tennessee, for the appellee, Nita Lynn Braun.

Judge: PER CURIAM

In this divorce case involving a minor child of the parties and the appellant Charles Braun's stepson, the record before us does not contain a permanent parenting plan certified by the trial court clerk as being entered by that court. Furthermore, the record affirmatively shows that the trial court has not yet made a final decision as to an amount of child support to be paid by Charles Braun. Therefore, we are persuaded that there is no final judgment in this case. Accordingly, the appellant's appeal is hereby dismissed.

http://www.tba2.org/tba_files/TCA/2011/braunc_110111.pdf
JEFF DAYTON, ET AL. v. JAMES ACKERMAN d/b/a HOME DESIGN, INC., ET AL.

Court: TCA

Attorneys:

Adam O. Knight, Nashville, Tennessee, for the appellants, James Ackerman d/b/a Home Design, Inc., Home Design, Inc., and James Ackerman and wife, Laureen Ackerman, Individually.

Donald N. Capparella, Candi Renee Henry, Nashville, Tennessee, for the appellees, Jeff Dayton and wife, Kasindra Dayton.

Judge: COTTRELL

Sellers of a house provided the purchasers with a Limited Warranty in which different aspects of the house were warranted to be without defects for a term not to exceed one year. The purchasers testified they complained two months following the closing that the windows did not operate properly, and the sellers testified the purchasers did not complain about the windows until after more than two years. The trial court found the purchasers' testimony more credible, and based on the purchasers' expert and other evidence, concluded the installation of the windows was defective. The court awarded the purchasers damages, consisting of the replacement cost for all the windows, even though not all the windows were defective. The sellers alleged the trial court erred by excluding its expert from testifying, by determining the window installation was defective, and in the way it calculated the purchasers' damages. We affirm the trial court's judgment as modified to correct a computational error in the calculation of damages.

http://www.tba2.org/tba_files/TCA/2011/daytonj_110111.pdf
CYNTHIA RHEA HELTON V. GREGORY HERBERT HELTON

Court: TCA

Attorneys:

Gregory Herbert Helton, Knoxville, Tennessee, appellant, pro se.

Patty Jane Lay, Knoxville, Tennessee, for the appellee, Cynthia Rhea Helton.

Judge: PER CURIAM

This is a divorce case. Gregory Herbert Helton appeals from the "final" judgment of divorce entered April 29, 2011. That judgment is not a final judgment. Accordingly, the appellant's appeal is hereby dismissed.

http://www.tba2.org/tba_files/TCA/2011/heltonc_110111.pdf
ICG LINK, INC. v. PHILIP STEEN ET AL. v. TN SPORTS, LLC v. ICG LINK, INC.

Court: TCA

Attorneys:

Jay R. Slobey, Nashville, Tennessee, for the appellants, Philip Steen, Nashville Sports Leagues, Nashville Sports Leagues LLC and TN Sports LLC.

Randall K. Winton, Nashville, Tennessee, for the appellee, ICG Link, Inc.

Judge: CLEMENT

This is a dispute concerning payment for website development services. The plaintiff, a website development company, filed suit against the defendants, an LLC and its managing member in his individual capacity, alleging breach of contract and unjust enrichment. The trial court found there was no express contract between the parties due to a lack of mutual assent. The court found there was a quasi-contract and that plaintiff was entitled to the reasonable value of its services, minus the costs incurred by defendants in attempting to repair the defects in the website. Last, the court held the individual defendant personally liable for the judgment. We affirm the finding of a quasi-contract and the personal liability of the individual defendant; however, we modify the trial court's monetary award, finding the plaintiff is entitled to recover a judgment of $13,952.88. The court's holding is affirmed in all other respects.

http://www.tba2.org/tba_files/TCA/2011/icglink_110111.pdf
MAMAKEH MAMADI JAWARA v. LATOYA MICHELLE JAWARA

Court: TCA

Attorneys:

LaToya Michelle Jawara, Nashville, Tennessee, Pro Se.

Mamakeh Mamadi Jawara, Antioch, Tennessee, Pro Se.

Judge: PER CURIAM

This is an appeal from a divorce decree entered on August 5, 2008. Because the appellant voluntarily dismissed her first appeal from the same divorce decree in 2008, and did not file her current notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

http://www.tba2.org/tba_files/TCA/2011/jawaram_110111.pdf
GLORIA G. NEUENSCHWANDER V. ROY P. NEUENSCHWANDER

Court: TCA

Attorneys:

M. J. Hoover, III, Knoxville, Tennessee, appellant, Gloria G. Neuenschwander.

Lance A. Evans, Maryville, Tennessee, for the appellee, Roy P. Neuenschwander.

Judge: PER CURIAM

This appeal is being pursued from the trial court's order of August 9, 2011. That order is not a final order. Accordingly, the appellant Gloria G. Neuenschwander's appeal is hereby dismissed.

http://www.tba2.org/tba_files/TCA/2011/neuenschwanderg_110111.pdf
ROBERT R. SMITH, AS CONSERVATOR FOR THE ESTATE OF H. BOYD ISRAEL, WARD v. MARK ISRAEL

Court: TCA

Attorneys:

Harold Richard Donnelly, Nashville, Tennessee, for the appellant, Mark Israel.

Dudley Alexander Cheadle, Nashville, Tennessee, for the appellee, Robert R. Smith, as Conservator for the Estate of H. Boyd Israel, Ward.

Judge: COTTRELL

Petitioner sought to domesticate four orders entered by a probate court in Georgia for the payment of money pursuant to the Uniform Enforcement of Foreign Judgments Act, Tenn. Code Ann. section 26-6-101, et seq. The trial court granted the petitioner the relief he sought, and the debtor appealed, arguing Tennessee public policy should prevent the orders from being enforced based on the unusual circumstances surrounding the issuance of the orders and his attorney's misconduct in the Georgia proceedings. We affirm the trial court's judgment because the Georgia court had jurisdiction to enter the orders and Tennessee courts are not in a position to review the facts leading to a foreign court's judgment.

http://www.tba2.org/tba_files/TCA/2011/smithr_110111.pdf
TOWN OF SMYRNA, TENNESSEE v. PERRY BELL

Court: TCA

Attorneys:

Jeffrey L. Peach, Smyrna, Tennessee, for the appellant, Town of Smyrna, Tennessee.

Dicken E. Kidwell, Murfreesboro, Tennessee, for the appellee, Perry Bell.

Judge: COTTRELL

The Town of Smyrna annexed land in 1991 that included a retail furniture store. The owner of that business kept a number of tractor-trailers parked on his property to store some of his inventory. Several years after the annexation, the town cited the owner in an attempt to enforce a municipal ordinance regulating the parking of tractor-trailers on commercially zoned property. The municipal court ruled against the owner. He appealed to the Circuit Court, which held that the ordinance in question was a zoning regulation and that the owner's use of the tractor- trailers was protected by the grandfathering provisions of Tenn. Code Ann. section 13-7-208(b)(1). The town contends on appeal to this court that the ordinance is a property maintenance regulation rather than a zoning regulation and that the owner's use of the tractor-trailers is therefore not entitled to the protection of the grandfather clause. We agree, and we reverse the Circuit Court because the proof does not indicate that compliance with the ordinance would substantially interfere with the store owner's use of the property as a retail furniture business. Thus, it cannot be considered a zoning ordinance as applied to him under the standard established by our Supreme Court in Cherokee Country Club v. City of Knoxville, 152 S.W.2d 466 (Tenn. 2004).

http://www.tba2.org/tba_files/TCA/2011/townofsmyrna_110111.pdf
TIMOTHY CASTERLOW v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Timothy Casterlow, Henning, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Amy P. Weirich, District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Timothy Casterlow, appeals from the summary dismissal of his petition for post-conviction relief as time- barred. In this appeal, he contends that principles of due process require the tolling of the statute of limitations. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2011/casterlowt_110111.pdf
STATE OF TENNESSEE v. MARK EDWARD COFFEY

Court: TCCA

Attorneys:

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Mark Edward Coffey.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeler Wells, District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Pursuant to a negotiated plea agreement, Defendant, Mark Edward Coffey, pled guilty to facilitation of second degree murder. Defendant was sentenced as a Range I standard offender to eight years, suspended and placed on probation. Defendant was charged with a violation of probation, and after a hearing, the trial court revoked his probation and ordered him to serve his original sentence in confinement. Defendant appeals. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/coffeym_110111.pdf
STATE OF TENNESSEE V. TIMOTHY J. TURNER

Court: TCCA

Attorneys:

Darwin K. Colston, Murfreesboro, Tennessee (on appeal), and Richard T. Roney and Kathy A. Sittloh, Murfreesboro, Tennessee (at trial), for the appellant, Timothy J. Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General, William C. Whitesell, Jr., District Attorney General; and Laural Hemenway, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Timothy J. Turner, was convicted of four counts of sexual battery, a Class E felony, and four counts of sexual battery by an authority figure, a Class C felony. The trial court imposed a sentence of eighteen months for each count of sexual battery and four years for each count of sexual battery by an authority figure. The trial court ordered two counts of sexual battery by an authority figure to run consecutively to each other and the remaining counts to run concurrently for an effective eight-year sentence in the Department of Correction as a Range I offender. On appeal, defendant argues: (1) that the original judge failed to perform his role as thirteenth juror; (2) that the trial court erred in refusing to hear his motion for new trial; and (3) that the evidence was insufficient to support his convictions. After a thorough review of the record, we conclude that Defendant's dual convictions for sexual battery and sexual battery by an authority figure in counts five, six, and seven of the indictment violate double jeopardy principles. We accordingly merge his convictions for sexual battery into his convictions for sexual battery by an authority figure in counts five, six, and seven and remand to the trial court for entry of corrected judgments. We otherwise affirm the judgments of the trial courts, including the effective sentence of eight years imposed by the trial court.

http://www.tba2.org/tba_files/TCCA/2011/turnert_110111.pdf
TODAY'S NEWS
Legal News
General Assembly News
Upcoming
Disciplinary Actions
TBA Member Services
Legal News
No one hurt in shooting at A.A. Birch building
A gunshot was fired this morning at two people who were on a sidewalk outside the Justice A.A. Birch Building in Nashville. A police officer at the scene said someone in the car yelled "Snitch!" while opening fire on a person walking out of court. The officer said he believes the victim had just finished testifying in a case. The bullet hit the building but not any people.
WSMV.com has the story
Haslam: Goal is 'safe environment' for protest
Gov. Bill Haslam, in the wake of yesterday's temporary restraining order against a curfew in the area, says his goal for the Occupy Nashville protesters camping out at Legislative Plaza is just to provide a safe environment. "Our goal is not to remove people from the plaza. Never has been. Never will be, period."
The Commercial Appeal reports
Opinion: Arresting reporter violated all our rights
In an opinion piece, the First Amendment Center writes that when a journalist was arrested along with the Occupy Nashville protesters at Legislative Plaza Friday morning, it violated more than one person's rights. "They attack our collective, constitutional right to know from a free and independent source what our government is doing so that we may hold it accountable." A police policy of "'arrest 'em now, sort 'em out later' in dealing with demonstrators -- and journalists who report on behalf of the rest of us -- falls woefully short" of the Constitution's guiding principles.
Read more from the center
Sentencing report: reassess mandatory minimums
In a report to Congress, the U.S. Sentencing Commission says almost half (46.7 percent) of all offenders convicted of a crime carrying a mandatory minimum penalty were relieved from the penalty by assisting the government, qualifying for the so-called "safety valve," or both. Black offenders received relief from mandatory minimum penalties in 34.9 percent of cases, compared to 46.5 percent for whites, 55.7 percent for Hispanics and 58.9 percent for other races. The report, the commission's first in 20 years, recommends that Congress reassess certain statutory provisions for drug offenses and apply the "safety valve" relief mechanism to other low-level, nonviolent offenses carrying mandatory minimum penalties.
The National Law Journal has the story [free registration required]
Feds seek to block South Carolina immigration law
The U.S. Department of Justice sought on Monday to block parts of South Carolina's new immigration law, arguing that the federal government had preeminent authority over immigration matters. The move sought an injunction against enforcement of portions of the state law, which toughens measures against undocumented immigrants and is set to take effect on Jan. 1, 2012.
WREG.com has this Reuters story
Convicted murderer, escapee, released today
Margo Freshwater, a 63-year-old Ohio native, pleaded guilty to first-degree murder Friday in the 1966 murder of liquor-store clerk Hillman Robbins and was sentenced to 25 years in prison. Today she was released. She originally was convicted in 1969 and was sentenced to 99 years in prison. Freshwater escaped from prison in 1970 and was at large for 32 years before her recapture in Columbus, Ohio, where she had married, changed her name and raised a family.
Read more in the Commercial Appeal
General Assembly News
Todd declines plea, apologizes
Tennessee state Rep. Curry Todd appeared in a Davidson County General Sessions court today for a settlement hearing on gun and drunken driving charges. He declined a plea deal, and a new hearing date was set for Jan. 10, 2012. Appearing with his attorney Worrick Robinson, Todd apologized for his actions.
The Tennessean has this story
Upcoming
Law library hosts fundraiser
The Sharon J. Bell Governmental Law Library in Knoxville will hold an open house and fundraiser on Thursday from 9 a.m. to 4:30 p.m. The library, located on the main level of the City-County Building, provides access to legal resources and services for the Knox County courts, judges, elected officials, government employees, local lawyers and the general public. For more information about the fundraiser, contact attorney Chris Irwin at (865) 257-4029. For information about the library contact Meredith Douglas at meredith.douglas@knoxcounty.org or (865) 215-2368.
Support community mediation in Knoxville
The Community Mediation Center of Knoxville is holding its annual fundraiser this Thursday from 5:30 to 7:30 p.m. at the Foundry at World's Fair Park. The event will feature a silent auction, cocktails and dinner, live music and awards ceremony. A special award presentation and address by Knox County Circuit Court Judge Bill Swann also is planned. Tickets are $50 each, while a table for 10 may be purchased for $450.
Learn more or make a reservation
Disciplinary Actions
Perry County lawyer disbarred
Perry County lawyer Bobby A. McGee was disbarred by the Tennessee Supreme Court on Oct. 25 after he had been convicted of two counts of using interstate commerce to induce a minor to engage in sexual activity and knowingly possessing 185 electronic images of child pornography. The court also ordered McGee to pay the cost of his disciplinary proceeding.
Download the BPR notice
Memphis lawyer suspended
On Oct. 25, the state Supreme Court suspended Memphis lawyer Ruchee Patel for nine months for repeatedly failing to file briefs in criminal appeals cases and ignoring the rules and orders of the Court of Criminal Appeals. However, the court allowed Patel to serve the entire time on probation so long as she engages a practice monitor to review office management practice, case deadlines and client communication on a monthly basis. Failure to comply with these requirements will result in revocation of the probation and imposition of the suspension. Patel also was ordered to pay the cost of the disciplinary proceeding.
Read the BPR release
Davidson County lawyer censured
On Oct. 27, Davidson County lawyer Marvin D. Himmelberg received a public censure for failing to file a client's appeal of a workplace suspension within the required 15 days. After Himmelberg learned that the appeal was not perfected, he submitted an undated letter requesting an appeal. The letter was received 99 days after notification of the suspension and almost two months after discovering the appeal had not been perfected, thus the judge dismissed the appeal as time-barred.
Learn more from the BPR
TBA Member Services
Secure, compliant data backup now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
Learn why lawyers trust i365 for online data backup solutions

 
 
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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.
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