Final applicants file for Court of Appeals seat

Applicants for the Court of Appeals vacancy created by the death of Judge Cain had until close of business today to file. The final eight applicants are: Smynra General Sessions Judge Keta J. Barnes; Nashville attorney Sara Meredith DeVault, senior counsel in the Attorney General's Office; Davidson County Chancellor Richard H. Dinkins; Bone McCallister Norton attorney William Joseph Haynes III of Nashville; Administrative Law Judge Andrei Ellen Lee with the State Board of Equalization in Nashville; Middle Division Claims Commissioner Stephanie Renee Reevers of Antioch; Brentwood attorney Leon Vincent Williams in the Attorney General's Office; and Legal Aid Society Managing Attorney Marla Kaye Williams of Cookeville. A total of 20 attorneys applied for the position. See a full list of the applicants:

http://www.tsc.state.tn.us/

TODAY'S OPINIONS
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BIG CREEK LANDSCAPING, LLC v. HUDSON CONSTRUCTION COMPANY

Court: TCA

Attorneys:

Richard M. Smith, Nashville, Tennessee, for the appellant, Big Creek Landscaping, LLC.

Hugh C. Howser, Jr., Mary Ellen Morris and James A. Beakes, III, Nashville, Tennessee, for the appellee, Hudson Construction Company.

Judge: FARMER

This appeal involves a dispute between a contractor and a landscaping subcontractor over the subcontractor's installation of undersized trees and the contractor's subsequent invocation of the take over clause upon the landscaper's failure to cure the defect. Both parties asserted breach of contract, and the trial court awarded damages to the defendant contractor for the cost of completing the job through a third-party landscaper and for attorney's fees and expenses. Concurring with the trial court that the subcontractor breached the contract when it installed undersized trees and, despite sufficient notice and opportunity to cure, failed to do so, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2007/BigCreekLandscaping_102307.pdf


LINDA CHERRY, ET AL. v. ROBERT M. CHERRY, ET AL.

Court: TCA

Attorneys:

J. Thomas Caldwell of Ripley, Tennessee for Appellant, Robert M. Cherry.

T. D. Forrester of Covington, Tennessee for Appellees, Lindy Cherry, individually and as Next Friend of her minor children, Rebecca Lynn Cherry, James Franklin Cherry, Bessie Lorraine Cherry, and Maggie Elizabeth Cherry.

Judge: CRAWFORD

In this appeal, the trial court determined that a deed to the involved property created a resulting trust in favor of the family of the deceased grantor property owner. Grantee appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/cherryl_102307.pdf


CATHY A. CLARKSON v. WILLIAM C. CLARKSON

Court: TCA

Attorneys:

Rebecca E. Byrd, Kenneth J. Sanney, Lauren M. Spitz, Franklin, TN, for Appellant.

Phillip R. Newman, Franklin, TN, for Appellee.

Judge: HIGHERS

This appeal involves a mother's recovery of attorney's fees pursuant to a marital dissolution agreement ("MDA"). The father had filed a petition to modify his child support obligation, and the mother counterclaimed alleging that he had violated various provisions of the MDA and should be held in contempt. She also sought a restraining order against the father and alleged that he had intentionally, negligently, or recklessly inflicted emotional distress on her and the children, entitling them to compensatory and punitive damages. Following a hearing on a motion to strike, the trial court ordered that any tort claims be severed from this action. After another hearing, the court modified the father's child support obligation and found that he was in civil contempt of court for various violations of the MDA. The court granted the restraining order and awarded the mother a judgment for the unpaid support obligations and a portion of her attorney's fees. On appeal, the mother contends that the attorney's fee award was entered solely as punishment for the father's violations, and that she is entitled to an additional award of attorney's fees pursuant to a clause in the MDA. We affirm.

http://www.tba2.org/tba_files/TCA/2007/clarksonc_102307.pdf


KATHYRN MONTGOMERY v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

Court: TCA

Attorneys:

Kevin C. Klein, John L. Kennedy, Nashville, Tennessee, for the appellant, The Metropolitan Government of Nashville and Davidson County.

Alfred H. Knight, A. Russell Willis, Nashville, Tennessee, for the appellee, Kathryn Montgomery.

Judge: COTTRELL

On a petition for writ of certiorari, the trial court held that the Benefit Board misconstrued or failed to follow its policy when denying the petitioner's request for disability benefits. Consequently, the trial court granted petitioner's application for disability benefits. We reverse because we cannot conclude that the Benefit Board acted arbitrarily in how it construed and or applied its internal polity. We also conclude that the request for disability benefits is governed by Tenn. Code Ann. section 27-9-114, and, accordingly, the matter should be remanded to the Benefit Board to conduct a contested case hearing.

http://www.tba2.org/tba_files/TCA/2007/montgomeryk_102307.pdf


NASHVILLE POST COMPANY D/B/A NASHVILLE POST.COM ET AL. v. TENNESSEE EDUCATION LOTTERY CORPORATION ET AL.

Court: TCA

Attorneys:

Gerald E. Martin, Nashville, Tennessee, for the appellants, Nashville Post Company d/b/a NashvillePost.Com, and Kenneth S. Whitehouse.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M. Kleinfelter, Senior Counsel; and William N. Helou, Assistant Attorney General, for the appellees, Tennessee Education Lottery Corporation and Rebecca G. Paul.

Judge: COTTRELL

The Nashville Post appeals the trial court's refusal to award it attorneys' fees and costs under the Public Records Act against the Tennessee Education Lottery Corporation for failure to produce a letter terminating an employee's employment. Finding the trial court did not abuse its discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2007/nashvillepost_102307.pdf


KIMBERLY MORGAN SCHUERMAN v. WADE PATRICK SCHUERMAN

Court: TCA

Attorneys:

Charles Galloway Blackard, III and Robert Todd Jackson, Brentwood, Tennessee, for the appellant, Wade Patrick Schuerman.

Helen Sfikas Rogers and Lawrence James Kamm, Nashville, Tennessee, for the appellee, Kimberly Morgan Schuerman.

Judge: FARMER

This is a divorce action. On appeal, Husband asserts the trial court erred by awarding Wife alimony where she did not request it in her complaint for divorce. Husband further asserts the trial court erred in awarding Wife the marital home and certain stock without considering the factors enumerated in Tennessee Code Annotated section 36-4-121(c). We vacate and remand.

http://www.tba2.org/tba_files/TCA/2007/schuermank_102307.pdf


STATE EX REL. PAULA A. FLOWERS, COMMISSIONER OF COMMERCE AND INSURANCE FOR THE STATE OF TENNESSEE v. UNIVERSAL CARE OF TENNESSEE, INC.

Court: TCA

Attorneys:

William B. Hubbard, Nashville, Tennessee, for the appellant, Universal Care of Tennessee, in Liquidation.

David L. Steed, Nashville, Tennessee, for the appellant, Quest Diagnostics.

Robert E. Cooper, Jr., Attorney General and Reporter; and Janet Irene M. Kleinfelter, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: CLEMENT

This appeal involves a dispute between a provider of pathology testing services and the Liquidator of a TennCare managed care company in liquidation over the timeliness of the filing of a proof of claim form. After the Liquidator found the creditor's claim to be untimely, the creditor filed an objection in the liquidation proceeding pending in Chancery Court. The Chancellor determined the late filing was the result of excusable neglect and directed the Liquidator to classify the claim as timely filed. The Chancellor had the authority pursuant to Tenn. R. Civ. P. 6.02 to excuse the late filing of the claim on the basis of excusable neglect, and we find no error with the Chancellor's decision. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2007/universalcare_102307.pdf


STATE OF TENNESSEE v. CHRISTIAN FERNANDEZ

Court: TCCA

Attorneys:

A. Phillip Lomonaco, Knoxville, Tennessee, for the appellant, Christian Fernandez.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Christian Fernandez, entered a conditional guilty plea to possession of cocaine, a schedule II controlled substance, in excess of .5 grams with the intent to sell or deliver, a Class B felony, possession of marijuana, a schedule IV controlled substance, a Class A misdemeanor, and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced to eight years total, to serve one year in jail and the remainder on supervised probation. As part of his conditional guilty plea, the defendant reserved and submitted the following certified question of law: whether the trial court erred in denying the defendant's motion to suppress because the continued detention of the defendant and the subsequent search of his vehicle were conducted without a finding of probable cause or reasonable suspicion of criminal activity. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/fernandezc_102307.pdf


JAMES SWIGGETT v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

James E. Swiggett, Pro se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and Leslie E. Price, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Petitioner, James Swiggett, appeals the summary dismissal of his petition for the writ of habeas corpus. Swiggett is currently serving a sentence of life imprisonment as a result of his conviction for first degree murder. On appeal, he argues that the trial court erred in concluding that his petition failed to state a colorable claim for habeas corpus relief. After review, we affirm the judgment of the Johnson County Criminal Court dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2007/swiggettj_102307.pdf


TODAY'S NEWS

Legal News
Knox Term Limits
Legislative News
Upcoming
TennBarU CLE
TBA Member Services

Legal News
Cantrell wins B. Riney Green Award
Memphis Area Legal Services staff attorney Frank S. Cantrell has been awarded the 2007 B. Riney Green Award for his work on the Auto Credit of Nashville vs. Melissa Wimmer case before the Tennessee Supreme Court. The B. Riney Green Award is given by the Tennessee Alliance of Legal Services each year to the attorney who works the most toward promoting inter-program cooperation and strengthening the provision of legal aid in Tennessee.
Read more here
McMinn jail may be decertified
A state jail inspector has recommended that the McMinn County jail be decertified because of overcrowding. The county is planning a new court complex, but no construction plans or contracts have been approved. The state control board, which votes on these issues, meets next on Dec. 5.
Read more in the News Sentinel
Former magistrate's trial may be moved
If the Tennessee Administrative Office of the Courts agrees, the trial of former Blount County Magistrate Dustin Hatcher will be moved to Sevier County. Hatcher has been charged with taking lewd pictures of a 17-year-old girl. The request for a move was based on conflict of interest concerns: Hatcher's father is the county circuit court clerk.
The Maryville Daily Times reports
Substance sent to justice center was harmless
An envelope sent to the office of District Attorney General Bill Gibbons at the Shelby County Criminal Justice Center yesterday reportedly contained a white powder, leading authorities to call in a hazardous materials response team. They now say it was only baking soda, according to the Associated Press.

Movement in the Blount circuit court race
Blount County General Sessions Judge Mike Gallegos announced this week that he would not run for circuit court judge, while his colleague Judge David R. Duggan said he would seek the Republican nomination. Gallegos had previously considered joining the race, but cited his desire to spend time with his young children as the reason for not pursuing the seat. The nominee will face incumbent Judge Mike Meares, a Democrat.
For more see the Maryville Daily Times
New assistant PD on the job
Allison Rasbury, a native of Lewis County, was recently sworn in as a new assistant public defender for the 13th Judicial District. Rasbury graduated from the University of Tennessee College of Law in May and had been working as a law clerk with Legal Aid of East Tennessee in Maryville. The Cookeville Herald Citizen announced the news.

Nicaraguan woman appeals judge's ruling
Ana Calixto has appealed Blount County Circuit Court Judge W. Dale Young's dismissal of her request for an order of protection from her estranged husband. In September, Young reportedly told her she had no rights in his courtroom and that she should go back to Nicaragua. Calixto is being represented on appeal by two pro bono lawyers.
Learn more in the Maryville Daily Times
Mid-size firms cap billable hours
Mid-size law firms may well be at the forefront of big changes in the profession. In recent weeks, several have implemented drastic reductions to their billable-hour requirements for first-year associates in order to enhance training and appease clients who do not want to pay for new lawyers' starts and stumbles.
The National Law Journal story is available on Law.com
Knox Term Limits
Special election hearing Monday
Knox County Chancellor Daryl R. Fansler will hear arguments on Monday from those who want him to order a special election to fill 12 county vacancies.
Read the latest in the News Sentinel
Legislative News
Local officials call for less restrictive meetings laws
City and county government representatives say a court ruling against the Knox County Commission illustrates the need for changes in the state's open meetings law. And they want more private meetings for elected officials. On the other side, advocates of greater openness are seeking to tighten the law and add criminal penalties. Both camps appeared before the Open Meetings Subcommittee today.
The News Sentinel has details
Lobbyist linked to Briley leaves post
The Tennessee Association for Justice's Capitol Hill lobbyist, who has been linked in press reports with embattled state Rep. Rob Briley, has left the organization, the City Paper reports.
Read more
Upcoming
TNVLA celebrates one-year anniversary
Tennessee Volunteer Lawyers for the Arts will celebrate its one-year anniversary with a reception and art showing on Oct. 25 from 5 to 7 p.m. at Vanderbilt University Law School. During its first year, the group has helped over 175 low-income artists and nonprofit arts organizations with legal issues.
Learn more on the web
TennBarU CLE
Learn the art: Don't miss out on growing use of arbitration
Arbitration is fast becoming not an alternative to litigation, but a required and recommended way to reach final resolution of disputes. The TennBarU Art of Arbitration seminar will help lawyers who are new to this field, or who are experienced, learn more about the various aspects of arbitration, from considerations in drafting arbitration clauses, choosing an arbitrator, what rules should apply, preparing for a hearing and the law of appeals. Nov. in Nashville, Nov. 9 in Knoxville and Nov. 30 in Memphis.
Register now or find out more
TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
Find out more

 
 
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