Appellate court judges headline upcoming CLE

The next installment in the TBA YLD's Skills Enhancement Series is scheduled for May 9 from 3-5 p.m. local time in Chattanooga, Knoxville, Memphis and Nashville. The two-hour seminar will provide a review of the appellate process, both civil and criminal, and include tips on procedural rules and filing requirements. Don't miss the chance to hear directly from appellate court judges, including Court of Appeals Judges Holly Kirby and Michael Swiney, Court of Criminal Appeals Judge Joseph M. Tipton, and retired Court of Appeals Judge Ben Cantrell. Tennessee Appellate Court Clerk Michael Catalano also weighs in with his tips for appellate practice. Learn more or register now at:

https://www.tba2.org/TennBarU/skills_05_09_2007.html

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

IN RE A.A.W. and D.S.W.

Court: TCA

Attorneys:

Keith H. Grant, Dunlap, Tennessee, for the appellant, K.W.

Carol Ann Barron, Dayton, Tennessee, for the appellees, L.D.N. and M.B.N.

Judge: SUSANO

This is the second time that this Court has reviewed a judgment of the trial court terminating the parental rights of K.W. (Mother) with respect to her two minor sons, A.A.W. and D.S.W., who were 7 and 10 respectively at the time of the second trial in May 2006. In that proceeding, the trial court found, by clear and convincing evidence, that grounds for terminating Mother's parental rights existed and that termination is in the best interest of the children. Mother appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/aaw_041907.pdf


ANTHONY BOND #249793 v. TENNESSEE DEPARTMENT OF CORRECTION
This is a corrected opinion.


Court: TCA

Attorneys:

Anthony Bond, pro se Appellant.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Bradley W. Flippin, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Tennessee Department of Correction.

Judge: LEE

While an inmate at the South Central Correctional Facility, Anthony Bond was found guilty by the prison disciplinary board of assault on a visitor, placed in punitive segregation for 15 days, and ordered to pay a $5 fine. Mr. Bond challenged the conviction by filing a petition for writ of certiorari in the Wayne County Chancery Court. The trial court, after granting the petition and reviewing a certified copy of the disciplinary record, found that Mr. Bond was not entitled to any relief and dismissed the case. After careful review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2007/bondaCORR_041907.pdf


CYNTHIA STATHAM HEIMERMANN BOYER v. CHARLES WILLIAM HEIMERMANN
This is a corrected opinion.


Court: TCA

Attorneys:

J. L. Thompson, III, Ashland City, Tennessee, for the appellant, Cynthia Statham Heimermann Boyer.

D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellee, Charles William Heimermann.

Judge: KOCH

This appeal involves a custody and visitation dispute arising more than a decade after the parents were divorced. The original divorce decree provided that the three children, then between two and seven years of age, would reside with their mother during the school year and with their father during the summer. Because of the children's growing dissatisfaction with this arrangement, their mother filed a petition in the Circuit Court for Davidson County requesting that the length of the father's summer visitation be reduced. The trial court dismissed the petition at the close of the mother's case on the ground that she had failed to prove a material change in circumstances that would warrant a revision of the custody arrangement. The mother appealed. We have determined that the changing needs of the children related to their growing older constitute a material change in circumstances. Accordingly, we reverse the dismissal of the mother's petition and remand the case for further proceedings consistent with this decision.

http://www.tba2.org/tba_files/TCA/2007/boyercCORR_041907.pdf


IN THE MATTER OF: B.P.C.

Court: TCA

Attorneys:

Randy P. Lucas, Gallatin, Tennessee, for the appellant, D.L.C, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, Amy T. McConnell, Assistant Attorney General, for the State of Tennessee, Department of Children's Services.

Judge: FARMER

The father of a nineteen month old child appeals an order terminating his parental rights on grounds of abandonment, noncompliance with permanency plan requirements, and persistence of conditions. On April 5, 2006, the Department of Children's Services ("DCS") petitioned to terminate the parental rights of D.L.C. ("Father"), the nineteen year old father of B.P.C., on the foregoing grounds. As of the filing date, Father was incarcerated for the second time since B.P.C.'s birth for reasons related to his crack cocaine habit. He had visited his son only once, unannounced and unapproved by DCS, within the relevant four month "abandonment" period. On the day of the last approved visit attended by Father, the court ordered him to pay twenty-five dollars ($25) per week in child support, but he never remitted any support payments for the benefit of his son. At the termination proceedings on August 25, 2006, Father was newly released from jail and testified to being drug-free at that time. He proposed to care for B.P.C. in the home of his father, where he was living rent-free, until he could secure a job and housing. Father confirmed the child abuse he suffered at the hands of his father as well as his history of depression, including multiple suicide attempts. Following the termination proceeding, the court entered an order on September 15, 2006, terminating Father's parental rights on all of the grounds alleged by DCS and on a best interests determination in favor of termination. From this order, Father appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/bpc_041907.pdf


DANIEL BRADSHAW v. CHATTANOOGA RAILCAR SERVICES, LLV, and KINGSPORT RAIL CAR SERVICES, LLC.

Court: TCA

Attorneys:

Randall D. Larramore, Chattanooga, Tennessee, for appellant.

No attorney listed.

Judge: FRANKS

Plaintiff sued corporate defendants alleging that defendants failed to make proper distribution to shareholders under the operating agreements of each company. The Trial Court held that plaintiff received cash distributions from one of the companies or from KRS sufficient to pay his income tax liability under the terms of the operating agreement, but no distribution was made by CRS. On appeal, plaintiff argues that CRS, a separate entity from KRS, was required under the operating agreement to distribute to the plaintiff funds sufficient to pay his tax liability, since distributions were made to other members. Under the plain language of the agreement, we agree that plaintiff was due a distribution and we remand for the Trial Court to determine the proper amount.

http://www.tba2.org/tba_files/TCA/2007/bradshawd_041907.pdf


O'RANE M. CORNISH, SR. v. THE HOME DEPOT, INCORPORATION

Court: TCA

Attorneys:

O'Rane M. Cornish, Sr., Pro Se

Jay M. Atkins of Memphis, Tennessee for Appellee, The Home Depot

Judge: CRAWFORD

This case arises from the trial court's grant of summary judgment in favor of Defendant/Appellee on a malicious prosecution complaint filed by Plaintiff/Appellant. Defendant/Appellee certified that it mailed copies of its filings, including its motion for summary judgment, to an incorrect address for Plaintiff/Appellant. Under Tenn. R. Civ. P. 5.02, if by mail, service must be made to the last known address of the party. Because Defendant/Appellee mailed its notice to an incorrect address, Plaintiff/Appellant was not properly noticed. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/cornisho_041907.pdf


MADISON COUNTY, TENNESSEE V. DEE ANN CULBREATH, et al. AND CITY OF JACKSON, INTERVENOR

Court: TCA

Attorneys:

C. Jerome Teel, Jr., Jackson, Tennessee, for the appellant, Madison County, Tennessee.

Russell E. Reviere, Jackson, Tennessee, for the appellees, Dee Ann Culbreath, William Stanworth Harris, Greg Milam, Robert Huffman, Mary Louise William Slack, Kathryn Johnson Swindle, and Dr. Sharon Younger, in their official capacities as Jackson-Madison County Library Board of Trustees. J. Brandon McWherter and Lewis L. Cobb, Jackson, Tennessee, for the appellee-intervenor, City of Jackson, Tennessee.

Judge: KIRBY

This is a declaratory judgment action. The plaintiff county filed the instant lawsuit seeking a declaration that the defendant county library board of trustees has no authority under the pertinent Tennessee statute to contract with private entities for the management of the local library. The city intervened, arguing that the library board had the authority under the statute to enter into such contracts. Upon stipulated facts, the trial court held that the statute at issue authorizes the library board to contract with private entities for the management of the county library. The county now appeals. We affirm, concluding that the authority conferred upon the county library board in Tennessee Code Annotated Section 10-3-104 includes the authority to enter into private contracts for the management of the local library.

http://www.tba2.org/tba_files/TCA/2007/culbreathd_041907.pdf


MARGARET DAVIS, Administrator of the Estate of Tammy Ferry, v. BRETTANY M. MIRTS

Court: TCA

Attorneys:

William G. McPheeters, Dayton, Tennessee, for appellant.

Donald W. Strickland, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

Plaintiff's deceased filed suit for damages against defendant in General Sessions Court, which suit was ultimately non-suited, and the action re-brought in Circuit Court. The Circuit Court dismissed that action on the basis that the plaintiff failed to comply with Tenn. Code Ann. Section 16-15-710 in the Sessions Court action and Tenn. Code Ann. Section 28-1-105, the savings statute, did not apply to the facts of this case. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/davism_041907.pdf


ROBERT J. DENLEY CO., INC. v. NEAL SMITH CONSTRUCTION COMPANY, INC., ET AL.

Court: TCA

Attorneys:

Ted M. Hayden, Germantown, TN, for Appellants

Julie C. Bartholomew, Somerville, TN, for Appellee

Judge: HIGHERS

The parties to a construction contract dispute the enforceability of its arbitration provision. The trial court refused to enforce the arbitration provision. The construction company appealed. The developer argues that the arbitration provision is unenforceable because it did not assent to arbitration, or alternatively, the arbitration provision was induced by fraud or unconscionable. The developer also claims that the defendants waived their right to arbitrate, and that they lack standing to enforce the right to arbitrate. For the following reasons, we reverse the decision of the chancery court and remand for entry of an order compelling arbitration.

http://www.tba2.org/tba_files/TCA/2007/denleyr_041907.pdf


IN THE MATTER OF NRG AND DJG, Children Under Eighteen Years of Age, DAVID FOLAND and JANET FOLAND, V. FORREST DEXTER BRADFORD, DAVEEDA GEARIN BRADFORD, CINDY MICHELE GREEN and TRACY GREEN

Court: TCA

Attorneys:

Jennifer E. Raby, Rockwood, Tennessee, for appellants.

Robert W. Wilkinson, Oak Ridge, Tennessee, for appellees.

Judge: FRANKS

This is a custody dispute between non-parents - the petitioners, who sought custody of the children with the parents' approval, and the children's grandparents who intervened, asking for custody. After a trial the Trial Court awarded custody to petitioners. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/folandd_041907.pdf


FRANK H. McNIEL v. SUSAN R. COOPER
This is a corrected opinion.


Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, for the appellant, Susan R. Cooper, Commissioner of Health.

Frank J. Scanlon, Nashville, Tennessee, for the appellee, Frank H. McNiel.

Judge: KOCH

This appeal involves the authority of the Tennessee Board of Medical Examiners to review the medical records of a physician's patients. After the Board requested access to his patients' records in accordance with Tenn. Code Ann. section 63-1-117 (2004), the physician filed a declaratory judgment action in the Chancery Court for Davidson County challenging the constitutionality of the statute. The physician asserted that the statutory procedure for gaining access to medical records amounted to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial review of the reasonableness of the Board's request. He also claimed that the statute's notice provisions violated due process. Both the physician and the Board filed motions for summary judgment. The trial court concluded that the physician received adequate notice of the purpose of the request for medical records. It also determined that Tenn. Code Ann. section 63-1-117(a)(3), the portion of the statute authorizing disciplinary sanctions against physicians who willfully fail to produce requested records, was unconstitutional and awarded the physician $20,916 in attorney's fees. The Board perfected this appeal. We concur with the trial court's conclusion that the physician received adequate notice of the reasons for the request for medical records. However, we have determined that physicians in Tennessee have no reasonable expectation that they can shield their patients' records from the Board's regulatory oversight and that the Board may discipline physicians who willfully refuse to comply with lawful requests for patient records that comply with Tenn. Code Ann. section 63-1-117.

http://www.tba2.org/tba_files/TCA/2007/mcnielfCORR_041907.odf.pdf


DOUG SATTERFIELD, As Personal Representative of the Estate of Amanda Nicole Satterfield, Deceased v. BREEDING INSULATION COMPANY, INC., and ALCOA INC., f/k/a ALUMINUM COMPANY OF AMERICA

Court: TCA

Attorneys:

Gregory F. Coleman, Knoxville, Tennessee, for appellant.

John A. Lucas, John T. Winemiller, and Thomas Hale, Knoxville, Tennessee, and John Charles Thomas, Hunton & Williams, LLP., Richmond, Virginia, for appellee.

Judge: FRANKS

Plaintiff's Action alleged that as a child she was exposed to her father's clothing which was contaminated in his workplace with defendant, and that defendant knew the contamination was toxic and would cause injuries. She further alleged that as a child she was exposed to her father's contaminated clothing on a regular basis, causing her terminal illness. After the Complaint was filed plaintiff died and her father was named as party-plaintiff as the personal representative of her Estate. The pleadings were amended to plead a wrongful death action. The Trial Court, responding to a Tenn. Rules Civ. P. 12 Motion, dismissed the action for failure to state a cause of action and plaintiff has appealed. On appeal, we reverse the Trial Court and reinstate the action for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/satterfieldd_041907.pdf


TRI-STATE HOME IMPROVEMENT v. MARILYN STARKS

Court: TCA

Attorneys:

Marilyn Starks, Memphis, TN, pro se

Joseph E. Garrett, Memphis, TN, for Appellee

Judge: HIGHERS

The plaintiff contractor filed a complaint in Shelby County General Sessions Civil Court against the defendant for a debt owed for various house repairs performed according to a service contract. The case was appealed to the Shelby County Circuit Court. Discovery was conducted, and the defendant filed a motion for leave to file a counter-complaint, which the trial court granted. In her counter-complaint, the defendant alleged that the contractor had not fulfilled the terms of the contract within the specified time period, that the contractor had failed to make repairs in compliance with local building codes as provided by the contract, and that the contractor had failed to perform repairs in a workmanlike manner. A bench trial was held, and the trial court found that the defendant was entitled to offset the original contract price of $14,981 by $5,500, and it entered judgment in favor of the contractor for $9,481 representing the remaining contract price. The trial court denied the contractor any award of attorney's fees, and it assessed court costs against the defendant. The defendant appealed to this Court. We affirm in part, reverse in part, and remand.

http://www.tba2.org/tba_files/TCA/2007/tristatehomeimprove_041907.pdf


CALVIN WESTERVELT v. STATE OF TENNESSEE

Court: TCA

Attorneys:

John A. Day, Rebecca C. Blair and Brandon E. Bass, Brentwood, Tennessee and Joe F. Gillespie, Jr., Joelton, Tennessee, for the appellant, Calvin Westervelt.

Robert E. Cooper, Jr., Attorney General, Michael E. Moore, Solicitor General and Martha A. Campbell, Associate Deputy Attorney General, for the State of Tennessee.

Judge: FARMER

Claimant sought to recover for injuries allegedly caused by an agency of the State. The Claims Commission found claimant to be 65% at fault. Therefore, under the rule of comparative fault adopted in McIntyre v. Ballentine, Claimant was precluded from an award of damages. Claimant asks this Court to affirm in order that he may proceed with the appellate process. We affirm.

http://www.tba2.org/tba_files/TCA/2007/westerveltc_0411907.pdf


STATE OF TENNESSEE v. TONY BELL

Court: TCCA

Attorneys:

Tony N. Brayton and Robert Wilson Jones (on appeal) and Trent Hall (at trial), Memphis, Tennessee, for the appellant, Tony Bell.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

After a bench trial, the Shelby County Criminal Court convicted the appellant of burglary of a building, a Class D felony, and sentenced him as a career offender to twelve years in the Department of Correction. On appeal, the appellant claims the evidence is insufficient to support the conviction. Upon review of the record and the parties briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/bellt_041907.pdf


STATE OF TENNESSEE v. DAVID ROBERT BLEVINS, ALIAS

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender and Robert C. Edwards, Assistant Public Defender, for the appellant, David Robert Blevins, Alias.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, David Robert Blevins, alias, was convicted by a Knox County jury of Class D felony theft. He received a two-year probated sentence, and the trial court ordered restitution in the amount of $1887.00. In this appeal as of right, the Defendant argues that: (1) the evidence is insufficient to support his conviction and (2) the amount of restitution is excessive. After a review of the record, we conclude that the evidence is sufficient to support the Defendant's conviction for theft. However, restitution is reduced from $1887.00 to $1358.00. Otherwise, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/blevinsd_041907.pdf


STATE OF TENNESSEE v. JONATHAN P. TAYLOR

Court: TCCA

Attorneys:

Larry E. Fitzgerald, (on appeal and at trial), Memphis, Tennessee, and Ramsdale O'Deneal (at trial), Jackson, Tennessee, for the appellant, Jonathan P. Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Charles T. Dyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Jonathan P. Taylor, was convicted by a Dyer County jury of aggravated robbery and was sentenced to eight years incarceration. On appeal, he challenges the sufficiency of the convicting evidence. Following our review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/taylorj_041907.pdf


Life Tenant Conveying Property for Public Right of Way

TN Attorney General Opinions

Date: 2007-04-18

Opinion Number: 07-52

http://www.tba2.org/tba_files/AG/2007/ag_07-52.pdf

TODAY'S NEWS

Supreme Court Watch
Legal News
Legislative News
TBA Member Services

Supreme Court Watch
CA says pick a justice already
The Commercial Appeal advises the governor in an editorial today to get on with selection of the fifth justice for the Supreme Court. "Bredesen said the commission didn't pick the best available candidates, but he's 'stuck' with them. Be that as it may, the commission followed the law, as it currently reads, and he's obligated to do the same."
Read the editorial
Legal News
Winkler found guilty of voluntary manslaughter
A jury has convicted Mary Winkler of voluntary manslaughter this afternoon in connection with the shooting death of her preacher husband, NewsChannel 5 reports. The jury deliberated eight hours. The conviction can carry a sentence to three to six years in prison, and she could be eligible for parole after serving 30 percent of the sentence, the television station reports.
NewsChannel 5 has detailed coverage
Gonzalez says his involvement small, senators skeptical
Questioning Attorney General Alberto Gonzales this morning, Sen. Arlen Specter got to the point: "We have to evaluate whether you are really being forthright." And that's how it went for Gonzalez during his testimony before the committee as he insisted that his part of the firings of the eight U.S. attorneys was small and that he would not resign.
Read about it on Law.com
FBI agent says Ford threatened to kill him
An FBI informant testified Wednesday -- his last of five days on the stand -- that former Sen. John Ford threatened to kill him if Ford discovered that the man was part of an undercover investigation. "He said, 'If I find out you're working for the FBI you gonna die right now,'' said Tim Willis, a paid informant who helped launch the FBI's Tennessee Waltz undercover sting.
Follow the trial in the Commercial Appeal
Age-bias case will go on,
judge says
A federal judge will not dismiss an age-discrimination law suit filed against the U.S. Department of Justice, claiming that former U.S. Attorney Jim Vines fired Larry Moon as part of an effort to drive older attorneys out of the U.S. Attorney's Office for the Middle District of Tennessee. A jury trial is set to begin Aug. 14.
The Nashville Scene has the story
Jail time for interrupting judge possible
Knoxville lawyer Herbert S. Moncier will be in U.S. District Court in Greeneville next week on a criminal contempt of court charge stemming from interrupting a judge one too many times. Moncier is facing a possible jail term if Judge Ronnie Greer decides he is guilty.
Read more in the News Sentinel
Firm tries new angle
on pro bono
Adams and Reese LLP is beefing up its pro brono program in a less than traditional way -- the firm wants attorneys to provide support services for other pro bono agencies or lobby the legislature. Partnering with the Washington-based nonprofit Appleseed, Adams Reese has provided the agency with a lawyer from its New Orleans office, Christy Kane, who will work for one year with Louisiana Appleseed. "It is more geared toward policy-minded changes such as perhaps drafting legislation, tracking legislation, lobbying the legislature or perhaps doing a study," Kane said.
The Memphis Daily News has more
New Orleans inmates released for lack of public defenders
A judge in New Orleans released 42 inmates suspected of drug crimes, because they lack legal counsel and cannot be tried. National Public Radio explored the crises stemming from a lack of public defenders in the city today on Morning Edition.
Listen to the story on NPR
Legislative News
Cooper back to Senate
State Sen. Jerry Cooper made his first appearance on Capitol Hill Wednesday since being seriously injured in a single-vehicle accident two months ago, the AP reports. Cooper was charged with driving under the influence following the accident. He also is facing charges in a federal land fraud trial scheduled to begin in June. Cooper returned to his seat on the Senate Transportation Committee yesterday but did not plan to attend the Senate floor session this morning.

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TBA members are entitled to discounts up to 21% on select FedEx shipments -- another great benefit of your membership in TBA. For more information or to enroll, simply call a FedEx Advantage customer specialist at 1.800.923.7089. For a limited time, you can enter the FedEx Drive Sweepstakes for a chance to win a $10,000 American Express Business Card statement credit and other prizes.
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