Quarterly Litigation Upate: Recent Developments in Litigation for
Tennessee Attorneys
March 25 Teleseminar

The TBA Litigation section presents this fast-paced, quarterly update
on recent developments in litigation for Tennessee attorneys. This
update will cover breaking developments in Commercial Law and Consumer
Protection, Contracts and Insurance. Listen in from the comfort of
your own office.

Today's Opinions: March 10, 2005
Volume 11 — Number 046
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
02 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • 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. • 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. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


WILLIAM A. COHN v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME
COURT OF TENNESSEE
CORRECTED OPINION

Court:TSC

Attorneys:                          

William A. Cohn, Memphis, Tennessee, Pro Se.

Jesse D. Joseph, Nashville, Tennessee, for the Appellee, Board of
Professional Responsibility.

Judge: ANDERSON

First Paragraph:

This is a direct appeal in an attorney discipline case.  For seven
years, the appellant, an experienced bankruptcy attorney, collected
post-confirmation attorney's fees from his debtor clients using a 
creditors' procedure which the Bankruptcy Court for the Western
District of Tennessee found improper.  Following the bankruptcy
court's ruling, the Board of Professional Responsibility ("BPR") filed
a petition for discipline alleging that the appellant had violated a
number of ethical rules.  A BPR hearing panel agreed and ordered a
public censure, disgorgement of certain fees, and suspension until
such time as disgorgement was made.  Both the attorney and the Board
appealed to the chancery court, which affirmed the public censure,
modified the disgorgement order, and reversed the suspension.  Both
parties appealed to this Court.  After our review of the record and
applicable authority, we conclude that the chancery court properly
affirmed the hearing panel's findings with regard to the appellant's
violation of the disciplinary rules and that it correctly required
disgorgement of post-confirmation attorney's fees, but that it erred
in declining to impose a suspension.  Accordingly, we affirm the
chancery court's judgment in part, but we modify the judgment to
vacate the public censure and instead impose a ninety-day suspension.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/cohnwilliama.wpd

STATE OF TENNESSEE v. LATRECE JONES

Court:TSC

Attorneys:                          

Ardena J. Garth, District Public Defender, and Donna Robinson Miller,
Assistant District Public Defender, Chattanooga, Tennessee, for the
Appellant, Latrece Jones.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General;
William H. Cox, III, District Attorney General; and C. Parke
Masterson, Jr., Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether the evidence supported the
defendant's conviction for criminally negligent homicide in the death
of her two-year-old son.  The child was riding on the defendant's lap
in the front passenger seat of a rental car and was killed when the
passenger-side air bag deployed in a collision.  The Court of Criminal
Appeals upheld the conviction, concluding that the evidence was
sufficient to sustain the jury's verdict, that the defendant's conduct
was the proximate cause of the victim's death, and that the trial
court did not err in admitting evidence regarding car seat safety. 
After carefully reviewing the record and the evidence, we conclude
that the trial court did not abuse its discretion in admitting
evidence regarding car seat safety.  However, we conclude that the
evidence was insufficient to support the conviction because the
defendant's conduct did not constitute a gross deviation from the
standard of care.  Accordingly, we reverse the judgment of the Court
of Criminal Appeals and dismiss the conviction.  Because we dismiss
the defendant's conviction due to insufficient evidence, we do not
reach her arguments that her conduct was not the proximate cause of
her son's death and that the trial court's instruction to the jury on
proximate cause was error.

http://www.tba.org/tba_files/TSC/joneslatrece.wpd

IN RE A.Y.M., AND A.N.W, JR. 
CORRECTED OPINION

Court:TCA

Attorneys:                          

Debra L. Dishmon, Lebanon, Tennessee, for the appellant, A.N.W., Sr.

Paul G. Summers, Attorney General and Reporter; Juan G. Villasenor,
Assistant Attorney General, for the appellee, State of Tennessee
Department of Children's Services.

David Kennedy, Lebanon, Tennessee, guardian ad litem for A.Y.S. and
A.N.W., Jr.

Judge: CAIN

First Paragraph:

A.N.W., Sr., father, alone appeals the termination of his parental
rights as to two children, A.Y.M. and A.N.W., Jr., the youngest of
which had been removed from parental custody at birth due to the
child's addiction to cocaine.  A.N.W., Sr., challenges the trial
court's findings that DCS exercised reasonable efforts to provide
family services, that A.N.W., Sr., failed to substantially comply with
permanency plan goals, that A.N.W., Sr., had abandoned these two
children, and that the best interest of the children required
termination of parental rights.  We affirm the trial court's findings
in all respects and remand the case for such other proceedings as may
be necessary.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/aymanw.wpd

WARREN E. HEATHERLY v. CAMPBELL COUNTY BOARD OF EDUCATION, et al.

Court:TCA

Attorneys:                          

David Scott Bennett, Chattanooga, Tennessee and Dail Cantrell,
Clinton, Tennessee, for the appellants, Campbell County Board of
Education and Jeff Marlow, Campbell County Financial Director.

Michael G. Hatmaker, Jacksboro, Tennessee, for the appellee, Warren E.
Heatherly.

Judge: LEE

First Paragraph:

The plaintiff in this case was employed as the director of schools for
Campbell County, Tennessee, under a contract of employment which was
deemed by the defendant Campbell County Board of Education to have
terminated after four years.  The plaintiff sued the Board for breach
of contract asserting that the contract contained a clause which
provided that if the Board took no action by April 15 of each year of
the contract to either extend or non-renew, the contract was
automatically extended one year.  The plaintiff contended that, in
view of this clause and accompanying non-action by the Board, the
contract did not terminate upon the expiration of four years, but
rather extended beyond that period of time.  The plaintiff
alternatively asserted that, pursuant to a prior order of the trial
court entered in a matter unrelated to the present case, he was
entitled to an annual salary of not less than ten percent below that
of the director of schools.  The Board filed a motion for summary
judgment requesting a ruling that the automatic extension clause of
the contract was invalid and that the contract expired according to
its terms.  The Board's motion also requested that the trial court
rule that, upon expiration of the contract, the plaintiff enjoys no
rights to salary beyond those of a classroom teacher.  The trial court
denied the Board's motion with respect to the automatic extension
clause, declaring the clause to be valid and enforceable; however, the
Board's motion was granted with respect to the matter of the
plaintiff's rights to salary granted by the court's prior order.  We
hold  that the automatic extension clause is invalid, but that the
plaintiff retains those rights granted him under the prior order of
the trial court subject to further review by the trial court. 
Accordingly, we reverse the judgment of the trial court  and remand.

http://www.tba.org/tba_files/TCA/heathewarrene.wpd

KELVIN WADE CLOYD v. HOWARD CARLTON, WARDEN

Court:TCCA

Attorneys:                          

Kelvin Wade Cloyd, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; and John H. Bledsoe and
Kathy D. Aslinger, Assistant Attorneys General, for the appellee,
State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Kelvin Wade Cloyd, appeals the summary dismissal of
his petition for habeas corpus relief.  He alleges that he was denied
the effective assistance of counsel, claims that the state knowingly
used false testimony during his trial, and asserts that he was
erroneously assessed costs.  The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/cloydkelvinw.wpd

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association