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| Wednesday, December 28, 2011 |
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ABA decision could affect bar exam eligibility
Tennessee Supreme Court Justice Gary Wade says he anticipates the Tennessee Board of Law Examiners will reconsider its approval for Lincoln Memorial University's Duncan School of Law, now that it has not received provisional accreditation from the American Bar Association (ABA). Wade said that although the board approved the school -- allowing its graduates to sit for the Tennessee Bar Exam -- that approval was conditioned on ABA accreditation. The board did not comment on the report.
The News Sentinel has the story
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TODAY'S OPINIONS
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IN RE ESTATE OF THOMAS GRADY CHASTAIN
With Dissenting Opinion
Court: TCA
Attorneys:
Ginger Wilson Buchanan, Cleveland, Tennessee, for the appellant, June Chastain Patterson.
George McCoin, Cleveland, Tennessee, for the appellees, Trent Chastain, Adrian Chastain, Jamie Chastain Mann, Dana Chastain, Phillip Chastain, Amanda Chastain, Grady Patterson, Kari Patterson, Carter Mann and Shylee Mann.
Judge: SUSANO
We granted the application of June Chastain Patterson ("the Proponent"), which sought permission to appeal an order of the trial court holding, as a matter of law, that the "will" of Thomas Grady Chastain ("the Deceased") was not executed in compliance with Tenn. Code
Ann. section 32-1-104 (2007). The Deceased signed the affidavit of attesting witnesses on September 4, 2004, which affidavit was attached to the purported will of the same date; he also initialed the bottom of the first page of the "will," but did not sign the second page of
the two-page "will." The Proponent appeals. We reverse.
http://www.tba2.org/tba_files/TCA/2011/chastaint_122811.pdf
SWINEY dissenting
http://www.tba2.org/tba_files/TCA/2011/chastaint_DIS_122811.pdf
GRAND VALLEY LAKES PROPERTY OWNERS ASSOCIATION, INC. v. DENNIS BURROW
Court: TCA
Attorneys:
Matthew R. West, Jackson, Tennessee, for the appellant, Dennis Burrow.
Matthew R. Armour, Somerville, Tennessee, for the appellee, Grand Valley Lakes Property Owners Association, Inc.
Judge: STAFFORD
Appellant, the owner of several lots in a subdivision managed and maintained by the Appellee home owners association, appeals the trial court's grant of summary judgment in favor of Appellee on the question of whether Appellant owed an increase in dues and fees
on his lots, and the denial of his counter-claims for fraud, violation of the Tennessee Consumer Protection Act, outrageous conduct, and invalidity of the restrictive covenants on grounds that these causes of action were barred by the applicable statutes of limitation or the doctrine of laches. We conclude that the Appellee followed the correct procedure in
amending its restrictive covenants to increase the amount of dues. However, because the trial court did not make findings, as required by Tennessee Rule of Civil Procedure 56.04, concerning the grounds for its application of laches, we cannot review the question of
whether Appellant's counter-claims were properly dismissed. Vacated and remanded.
http://www.tba2.org/tba_files/TCA/2011/grandvalley_122811.pdf
GEOFFREY TODD KRASNER v. JOHN ARNOLD
Court: TCA
Attorneys:
Geoffrey Todd Krasner, Jackson, Tennessee for Plaintiff/Appellant, Pro Se.
John Arnold, Cedar Grove, Tennessee for Defendant/Appellee, Pro Se.
Judge: KIRBY
This appeal involves claims of defamation. After words were exchanged in the course of a parenting dispute, the plaintiff filed this lawsuit against the defendant father of the plaintiff's girlfriend's daughter. A bench trial was held in which both parties were self-represented. The trial court held in favor of the defendant father. The plaintiff now appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2011/krasnerg_122811.pdf
CHANDRA PEARSON v. VICTOR ROSS
Court: TCA
Attorneys:
Prince C. Chambliss, Jr., Memphis, Tennessee, for the Plaintiff/Appellant Chandra Pearson.
William G. Hardwick, II, Memphis, Tennessee, for the Defendant/Appellee Victor Ross.
Judge: KIRBY
This appeal involves a nuisance claim. The parties own adjoining homes in a neighborhood of zero-lot line homes. The defendant's air conditioning condenser unit is outside his home, between the parties' homes. The plaintiff filed this lawsuit against the defendant, alleging that the noise of the defendant's air conditioning unit constituted a nuisance, and seeking
abatement of the nuisance, money damages, and injunctive relief. After a bench trial, the trial court held in favor of the defendant. The plaintiff now appeals. We affirm.
http://www.tba2.org/tba_files/TCA/2011/pearsonc_122811.pdf
TISH WALKER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LISA JO ABBOTT v. DR. SHANT GARABEDIAN
Court: TCA
Attorneys:
Michael C. Skouteris and Milton E. Magee, Jr., Memphis, Tennessee, and Jason R. Creasy, Dyersburg, Tennessee for Plaintiff/Appellant Tish Walker, Individually and as Administrator of the Estate of Lisa Jo Abbott.
Jeffrey L. Lay, Dyersburg, Tennessee for Defendant/Appellee, Dr. Shant Garabedian.
Judge: KIRBY
This appeal concerns the application of the locality rule in a medical malpractice case. The trial court excluded the testimony of the plaintiff's medical expert, based on the locality rule. On this basis, the trial court granted summary judgment to the defendant physician. The plaintiff appeals. We vacate the order excluding the testimony of the plaintiff's expert and the grant of summary judgment, and remand for reconsideration in light of the Tennessee Supreme Court's recent decision Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).
http://www.tba2.org/tba_files/TCA/2011/walkert_122811.pdf
STATE OF TENNESSEE v. DAVID STEVEN AUSTIN
Court: TCCA
Attorneys:
Matthew R. Armour, Somerville, Tennessee, for the appellant, David Steven Austin.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Matt Hooper, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, David Steven Austin, was convicted by a Fayette County Circuit Court jury of driving under the influence, second offense, and was sentenced to eleven months and twenty-nine days, suspended to probation except for forty-five days. On appeal, he argues
that the evidence was insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/austind_122811.pdf
STATE OF TENNESSEE v. KEVIN D. BUFORD
Court: TCCA
Attorneys:
Jeremy W. Parham, Nashville, Tennessee, for the appellant, Kevin D. Buford.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Kathy Morante and Amy H. Eisenbeck, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
A Davidson County jury convicted the Defendant, Kevin D. Buford, of felony murder and attempted especially aggravated robbery. The trial court imposed concurrent sentences of life for the felony murder conviction and ten years for the attempted especially aggravated robbery conviction. On appeal, the Defendant asserts that there is insufficient evidence to support his convictions. After a thorough review of the record and applicable law, we affirm the trial court's judgments.
http://www.tba2.org/tba_files/TCCA/2011/bufordk_122811.pdf
STATE OF TENNESSEE v. ALVIN DORTCH
Court: TCCA
Attorneys:
Samuel L. Perkins, Rhonda Hooks, and Taurece Riley (at trial), and Juni S. Ganguli (on appeal), Memphis, Tennessee, for the appellant, Alvin Dortch.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Steve Jones and Nicole Germain, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Alvin Dortch, was convicted by a Shelby County Criminal Court jury of two counts of making a false report, a Class D felony. See T.C.A. section 39-16-502(a) (2010). The trial court merged the convictions and sentenced the Defendant as a Range I, standard offender to three years, with 120 days' confinement and the remainder on probation. On
appeal, the Defendant contends that the trial court erred by denying judicial diversion. We affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/dortcha_122811.pdf
STATE OF TENNESSEE v. JUSTIN GIBSON
CORRECTION: The opinion previously filed in this matter on November 22, 2011, is vacated and the attached opinion is substituted
Court: TCCA
Attorneys:
Jeremy W. Parham, Nashville, Tennessee, for the Defendant-Appellant, Justin Gibson.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kelly Lawrence, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
Defendant-Appellant, Justin Gibson, pled guilty to driving under the influence with a blood alcohol level of .08 percent or more, a Class A misdemeanor. He agreed to a sentence of eleven months and twenty-nine days, all of which was suspended after seven days'
incarceration. Gibson entered a conditional plea agreement and attempted to reserve a certified question of law under Tennessee Rule of Criminal Procedure 37. The certified question of law addressed whether the search of Gibson's home violated his constitutional rights and whether evidence obtained as a result should be suppressed. On appeal, he argues
that the warrantless search was not justified by either consent or exigent circumstances. We conclude that we are without jurisdiction to consider the appeal because the order stating the certified question was not filed until after Gibson filed his notice of appeal. The appeal,
therefore, is dismissed.
http://www.tba2.org/tba_files/TCCA/2011/gibsonj_122811.pdf
STATE OF TENNESSEE v. RYAN LOVE
Court: TCCA
Attorneys:
Jerry J. Fabus, Jr., Gray, Tennessee (on appeal); Donald Spurrell, Johnson City, Tennessee, (at trial) for the Defendant-Appellant, Ryan Love.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Erin McArdle, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
A Washington County jury convicted the Defendant-Appellant, Ryan Love, of reckless aggravated assault, a Class D felony. He received a suspended sentence of two years. The sole issue presented for our review is whether the evidence was sufficient to prove the
element of serious bodily injury. Upon review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/lover_122811.pdf
STATE OF TENNESSEE v. PATSY LYNN McCOY
Court: TCCA
Attorneys:
David N. Brady, District Public Defender; Allison M. Rasbury, Assistant Public Defender, Cookeville, Tennessee, for the Defendant-Appellant, Patsy Lynn McCoy.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Randall A. York, District Attorney General; and Amanda Hunter, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Defendant-Appellant, Patsy Lynn McCoy, appeals the DeKalb County 1 Criminal Court's revocation of her probation in two cases. She originally pled guilty to aggravated burglary, burglary, and theft under $500. She received an effective seven-year sentence, all of which was suspended to probation after sixty days' incarceration. On appeal, McCoy argues that (1) Tennessee's statutory scheme allowing incarceration after a revocation of probation based on judicial fact-finding by a preponderance of the evidence is unconstitutional, and (2) the trial court erred in revoking her probation and ordering her to serve the sentences in confinement. Upon review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/mccoyp_122811.pdf
STATE OF TENNESSEE v. CEDRIC LAMAR MOSES
Court: TCCA
Attorneys:
Noel H. Riley, II, Dyersburg, Tennessee, for appellant, Cedric Lamar Moses.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
On appeal, the appellant challenges the trial court's order denying his motion to reinstate probation. Upon review, we conclude that the appellant does not have a Rule 3, Tennessee Rules of Appellate Procedure, appeal as of right from the order. Therefore, the appeal is dismissed.
http://www.tba2.org/tba_files/TCCA/2011/mosesc_122811.pdf
STATE OF TENNESSEE v. MIGUEL SALINAS
Court: TCCA
Attorneys:
Robert C. Richardson, Jr., Columbia, Tennessee, for the appellant, Miguel Salinas.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The defendant, Miguel Angel Salinas, entered a best-interest plea to one count of possession of marijuana, a Class D felony, and one count of attempted possession of cocaine with intent to sell over 300 grams, a Class B felony. Pursuant to the negotiated agreement, the defendant received an effective sentence of ten years in the Department of Correction. The only issue
which remained undetermined by the agreement was whether the defendant's ten-year sentence would be served concurrently with or consecutively to a twenty-five year Georgia sentence which he had received in 2004. After a hearing, the trial court ordered that the separate sentences be served consecutively. On appeal, the defendant contends that this was error. Following review of the record, we affirm the sentences.
http://www.tba2.org/tba_files/TCCA/2011/salinasm_122811.pdf
STATE OF TENNESSEE v. RANDALL KEITH SMITH AND NICHOLAS RYAN FLOOD
Court: TCCA
Attorneys:
Paul Hessing, Paris, Tennessee, for the appellant, Randall Keith Smith.
Guy T. Wilkinson, District Public Defender, and W. Jeffrey Fagan, Assistant District Public Defender, for the appellant, Nicholas Ryan Flood.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Hansel J. McCadams, District Attorney General; and James Williams, III, and Beth B. Hall, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: WILLIAMS
Following the discovery by police of numerous materials commonly used in the manufacture of methamphetamine on property controlled by Defendant Randall Keith Smith, he was convicted of manufacturing methamphetamine, a Class C felony, and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced as a Range II, multiple offender to ten years in the Department of Correction for manufacturing methamphetamine and to a concurrent eleven months and twenty-nine days for possession of drug paraphernalia. Defendant Nicholas Ryan Flood, who was in the company of Defendant Smith when the
materials commonly used in the manufacture of methamphetamine were discovered on the property, was convicted of a single count of manufacturing methamphetamine. Defendant Flood was sentenced as a Range II, multiple offender to nine years in the Department of Correction. On appeal, Defendant Smith claims that the trial court erred by admitting certain
evidence seized from his property under the auspices of a search warrant. Defendant Flood claims that there was insufficient evidence to support his conviction and that the sentence imposed by the trial court was excessive. After carefully reviewing the record and the
defendants' arguments, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/smithr_122811.pdf
STATE OF TENNESSEE v. ANTHONY WHITED
Court: TCCA
Attorneys:
G. Jeff Cherry (on appeal), David H. Veile (at trial and on appeal) and B. F. Jack Lowery (at trial), Lebanon, Tennessee, for the appellant, Anthony Whited.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Tom P. Johnson, District Attorney General; and Brian W. Fuller and Linda D. Walls, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
A Wilson county jury convicted the Defendant, Anthony Whited, of second degree murder, a Class A felony. The trial court sentenced him as a violent offender to serve twenty years at 100% in the Tennessee Department of Correction. On appeal, the Defendant argues that
(1) the evidence was insufficient to support his conviction; (2) the trial court erroneously ruled that the State could cross-examine the Defendant about two prior misdemeanor convictions if the Defendant chose to testify; (3) the trial court erred by allowing a witness
to give evidence in the form of an opinion when (a) the State did not tender the witness as an expert and (b) the testimony was outside any area of expertise possibly attributable to the witness; (4) the trial court erroneously overruled the Defendant's motion for judgment of acquittal; (5) the trial court's jury instructions illegally shifted the burden of proof to the
Defendant; and (6) the trial court erred by using the Defendant's prior convictions to determine the length of the Defendant's sentence. Following our review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/whiteda122811.pdf
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| TODAY'S NEWS |
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Court of the Judiciary
Legal News
General Assembly News
Passages
TennBarU CLE
TBA Member Services
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| Court of the Judiciary |
| General sessions judge reprimanded |
| On Dec. 21, the Court of the Judiciary issued a public reprimand to Pickett County General Sessions Court Judge Ronnie Zachary in response to a complaint filed against him. The complaint alleged that Zachary violated Canon 1A, 2A and 3B(2) by imposing an improper and inappropriate sentence when he ordered a father and son be handcuffed together. Zachary admitted the punishment was inappropriate.
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Download the court's letter to Judge Zachary
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| Legal News |
| Opinion: Beware the coming law school crisis |
| In an article in the January 2012 issue of the ABA Journal Magazine, Indiana University law professor William Henderson and lawyer Rachel M. Zahorsky suggest that federal student loan policies, combined with a weak economy and slim job prospects for law school graduates, are creating "a financial crisis strikingly similar to the mortgage crisis that cratered the economy in 2008." Citing statistics on law school graduation rates, number of graduates with debt, average amount of debt, employment rates, and changes in how the government makes and collects loans, the authors argue that loan default rates likely will increase -- leading to funding shortages for future applicants and "an enormous financial liability" for the government.
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Read more here
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| New MBA president talks about year ahead |
| Memphis Bar Association (MBA) President Gary K. Smith, who took office earlier this month, sat down recently with the Memphis Daily News to talk about his priorities for the year. Among the "hot" issues he will be following, he says, is the debate over how appellate judges are selected. He said the MBA will be very vocal in its opposition to changing the current process, and that he hopes to present his reasons for that opposition to 200 groups over the course of the year. Smith also pledged to continue the association's focus on encouraging and expanding pro bono participation among area lawyers.
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Read more about his plans
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| AG recognized for substance abuse work |
| The Substance Abuse Prevention Action Team of Blount County presented its Substance Abuse Prevention Excellence Awards earlier this month, recognizing Blount County Attorney General Mike Flynn with the Lifetime Achievement Award for his work establishing the Blount County Drug Court, working with the governor to promote and develop educational programs and joining an effort by the Fifth Judicial Drug Task Force to fight synthetic drugs.
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Learn more about Flynn's efforts in the Daily Times
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| NBA chapter recognizes award recipients |
| The National Bar Association's Ben F. Jones Chapter in Memphis recently presented awards at its annual Barristers Ball. Honorees included Sixth Circuit U.S. Court of Appeals Judge Bernice B. Donald, who received the A. A. Latting Award for Outstanding Service in the legal community; Gregory M. Duckett with Baptist Memorial Healthcare Corporation, who received the A. A. Latting Award for Outstanding Service to the community at large; and Yolanda Ingram, dean of student affairs for the University of Memphis School of Law and director of the Tennessee Institute for Pre-Law, who received the Chapter President's Award. The annual ball helps fund scholarships for minority students at the University of Memphis School of Law. Earning those scholarships this year were Shalondra Grandberry, Jayniece Higgins and Jonathan Mosley.
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Read more and see photos in the Commercial Appeal
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| Nashville immigration case 'plods along' |
| An encounter between a pregnant Mexican immigrant and a Nashville area police officer in 2008 became the flagship case for opponents of the federal 287(g) program that allows local police to perform certain immigration-related law enforcement functions. Earlier this year, the federal district court ruled that officers violated the woman's right to due process. In August, a jury awarded her $200,000. Within 24 hours, the city filed its notice of appeal.
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The Nashville City Paper looks at what has happened since then
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| New iPhone app released for Pacer |
| Lawyers who want to search and view federal court records on their iPhones can use a new application developed by a recent law school graduate The product -- FedCtRecords -- will cost $19.99 but is free for now while the designer works out minor kinks. According to the Wall Street Journal Law Blog, the app takes the "Pacer desktop experience and replicates it on the iPhone, with no major loss in translation." There are a few negatives though -- users can't file documents from their phones, search all cases at once, or access bankruptcy files.
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Read more about the product
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| General Assembly News |
| Redistricting plan to be unveiled next week |
| A special Tennessee State House redistricting committee will unveil its proposal for redrawing voting districts at an open meeting on Jan. 4. House Speaker Beth Harwell has said she expects a vote to be held within a week or two of that meeting. Changes to state senate districts and congressional boundaries have yet to be announced.
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Nashville Public Radio reports
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| Passages |
| Memphis attorney dies |
| Memphis attorney William E. Walsh Jr., 89, died Dec. 17. A Memphis native and graduate of Christian Brothers High School, Walsh served in the Navy during World War II and then attended law school. He earned his law degree in 1949 from Vanderbilt University Law School and moved back to Memphis to begin his practice. Services for Walsh were held on Dec. 22. Post condolences online with Memphis Funeral Home and Memorial Gardens.
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The Commercial Appeal has more
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| TennBarU CLE |
| Two days left for CLE Blast |
You can still get all 15 hours of the CLE you need for 2011 this week at the Tennessee Bar Center in Nashville. This year's CLE Blast continues Thursday and Friday from 7 a.m. to 7 p.m. Each day provides 11 hours of general and dual credit. There is no need to register. Just show up!
SPECIAL FRIDAY PROGRAMMING: Nashville attorney Perry Craft will present a four-hour live session covering the latest updates from the U.S. Supreme Court. Running from 9 a.m. to 1:15 p.m. during the CLE Blast, this session will look at:
-- Constitutional developments and enforcement
-- The justices
-- Ethical issues arising in high court decisions
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Learn more
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| TBA Member Services |
| Use the TBA rewards card |
| A Tennessee Bar Association Platinum Plus MasterCard credit card from Bank of America rewards you for the things you buy anyway. You also have the chance to show your support for Tennessee Bar Association every time you present your card. To apply, call toll-free (866) 438-6262 or learn more here |
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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.
© Copyright 2011 Tennessee Bar Association
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