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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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_072710.pdf


MICHAEL D. HERSHEY ET AL. v. WALLACE CATHEY ET AL.

Court: TCA

Attorneys:

Timothy A. Davis, Lebanon, Tennessee, for the appellants, Wallace Cathey and wife, Darlene Cathey.

Byron M. Gill, Lebanon, Tennessee, for the appellees, Michael D. Hershey and wife, Suzana Hershey, and Robert E. Black.

Judge: CLEMENT

This is an action to enforce a Declaration of Covenants, Conditions and Restrictions for a subdivision. The trial court found the defendant homeowners erected a fence without having obtained proper approval from the Architectural Control Committee, that the fence was in violation of restrictive covenants, and that the fence must be removed. We have determined the evidence does not preponderate against the trial court's findings that defendants failed to obtain the necessary approval to construct the fence and that the fence is in violation of restrictive covenants; thus, we affirm.

http://www.tba2.org/tba_files/TCA/2010/hersheym_072710.pdf


VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL.
CORRECTION on page 3 in the last paragraph of Section B changes the date June 17, 2007 to June 17, 2001


Court: TCA

Attorneys:

Larry D. Ashworth, Nashville, Tennessee, for the appellant, Vicki P. Jacobs, surviving spouse of Harris N. Jacobs, deceased, and for the benefit of herself and the minor children of Harris N. Jacobs.

E. Reynolds Davies, Jr., and John T. Reese, Nashville, Tennessee, for the appellees, K. James Schumacher, M.D., Associated Radiologists, P.C., and Radiology Alliance, P.C.

Robert E. Parker and Thomas W. Lawrence, Jr., Nashville, Tennessee, for the appellees, Stephen A. Mitchell, M.D., and Nashville Ear, Nose & Throat Clinic.

Judge: SUSANO

This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001. The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/jacobsv_CORR_072710.pdf


KAY AND KAY CONTRACTING, LLC v. TENNESSEE DEPARTMENT OF TRANSPORTATION
CORRECTION on page 9 changes the word "statue" to "statute"


Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Steven B. McCloud, Senior Counsel, Nashville, Tennessee, for the Appellant, Tennessee Department of Transportation.

Spencer D. Noe and Timothy C. Wills, Lexington, Kentucky, and Laurie H. Hallenberg, Knoxville, Tennessee, for the Appellee, Kay and Kay Contracting, LLC.

Judge: SWINEY

Kay and Kay Contracting, LLC ("Contractor") entered into a contract with the Tennessee Department of Transportation ("TDOT") to build a bridge in Campbell County, Tennessee. Contractor subsequently entered into a subcontract with Whitley County Stone, LLC ("Subcontractor") to provide the excavation and grading work on the project. Subcontractor does not have a written contract with TDOT. Both Contractor and Subcontractor filed claims with the Claims Commission alleging they were owed money by TDOT. Subcontractor was dismissed as a party because it did not have a written contract with TDOT, as required by Tenn. Code Ann. section 9-8-307(a)(1)(L). The Commissioner, however, determined that Contractor was allowed to prosecute Subcontractor's claim as a "pass-through" claim. The sole issue on this interlocutory appeal is whether Tenn. Code Ann. section 9-8-307(a)(1)(L) removes the State's sovereign immunity such that Contractor can assert a "pass-through" claim against TDOT on Subcontractor's behalf. We conclude that sovereign immunity from such a claim is not removed, and we reverse the judgment of the Claims Commission.

http://www.tba2.org/tba_files/TCA/2010/kaycontracting_CORR_072710.pdf


LENA MICHELLE SILVEY ROLEN v. CHARLES MARTIN WILSON

Court: TCA

Attorneys:

Lindsey Lander, Lenoir City, Tennessee, for the appellant, Charles Martin Wilson.

Annie S. Duncan, Knoxville, Tennessee, for the appellee, Lena Michelle Silvey Rolen.

Judge: SWINEY

In 2008, Lena Michelle Silvey Rolen ("Mother") sued Charles Martin Wilson ("Father") alleging, in part, that Father had failed to pay child support as ordered. Father responded and filed a counter-claim seeking custody. After a trial, the Trial Court entered an order finding and holding, inter alia, that Father was in contempt for willful failure to pay child support as ordered, and that no material change in circumstances had occurred to justify a change in custody. Mother was awarded a judgment against Father for the child support arrearage, among other things. Father appeals to this Court. Because the record on appeal contains no transcript and no Tenn. R. App. P. 24(c) statement of the evidence, we affirm.

http://www.tba2.org/tba_files/TCA/2010/rolenl_072710.pdf


STONEYBROOK GOLF COURSE, LLC v. CITY OF COLUMBIA

Court: TCA

Attorneys:

Matthew E. Wright, Brentwood, Tennessee, and Roger L. Myers, Howell, Michigan, for the appellant, Stoneybrook Golf Course, LLC.

William N. Bates and Brandt M. McMillan, Nashville, Tennessee, for the appellee, City of Columbia.

Judge: SUSANO

Stoneybrook Golf Course, LLC, purchased approximately 190 acres of land ("the Property") - on part of which was located a golf course - with plans to develop the vacant land surrounding the course. Before purchasing the Property, Stoneybrook met with the mayor and other officials of the City of Columbia and received their verbal assurances of strong support for the annexation of the 190 acres into the City and the re-zoning of the area to permit the building of condominiums. After Stoneybrook purchased the Property, the city council of Columbia refused to go forward with the annexation and re-zoning until a comprehensive land use plan could be completed against which to evaluate the proposed re-zoning. Stoneybrook filed this action against the City, claiming, in essence, that the City's refusal to act promptly in accord with the verbal "commitment" constitutes an unconstitutional moratorium and, alternatively, that the City is estopped from refusing to re- zone the Property. The trial court dismissed the complaint on the pleadings. Stoneybrook appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/stoneybrook_072710.pdf


STEVEN DOUSAY v. DWIGHT A. BARBEE, WARDEN

Court: TCCA

Attorneys:

Steven Dousay, Pro se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Lacy Wilber, Assistant Attorney General, Kim R. Helper, District Attorney General, and Mary Katherine White, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Steven Dousay, pled guilty in Williamson County to theft over $10,000, and the trial court sentenced him to six years in the Tennessee Department of Correction. He filed a petition in the Williamson County Circuit Court for a writ of habeas corpus, which the habeas corpus court dismissed. The Petitioner appeals, and, after a review of the record in this case, we conclude the habeas court properly dismissed the petition for habeas corpus relief. Accordingly, we affirm its judgment.

http://www.tba2.org/tba_files/TCCA/2010/dousays_072710.pdf


JIMMY GRAY v. STATE OF TENNESSEE
UPDATE: Concurring opinion was not included with majority opinion originally published on July 26, 2010


Court: TCCA

Attorneys:

Jimmy Gray, Pro Se, Pikeville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and James H. Stutts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Jimmy Gray, stands convicted of four counts of aggravated rape and is serving a sentence of eighty years in the Tennessee Department of Correction. On September 14, 2009, the petitioner filed a petition for writ of error coram nobis on the basis of newly discovered evidence. The trial court summarily dismissed the petition as filed outside the statute of limitations. On appeal, the petitioner claims that (1) due process requires tolling of the statute of limitations; (2) he filed his petition within one year of discovering new evidence; and (3) the trial court erred by summarily dismissing his petition. Following our review of the parties' briefs, the record on appeal, and the applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/grayj_072710.pdf

TIPTON concurring
http://www.tba2.org/tba_files/TCCA/2010/grayj_CON_072710.pdf


ORLANDO KNOX v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph T. Howell, Jackson, Tennessee, for the appellant, Orlando Knox.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Orlando Knox, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief. The petitioner entered best interest pleas to two counts of aggravated burglary, a Class C felony; one count of burglary, a Class B felony; two counts of vandalism, a Class A misdemeanor; and one count of theft, a Class A misdemeanor. The agreement prescribed an eight-year sentence, which was to be suspended following service of six months. On appeal, the petitioner contends that his guilty plea was not knowingly and voluntarily entered due to the ineffective assistance of counsel. Specifically, he contends that trial counsel was ineffective in failing to adequately investigate the case and prepare for trial. Following review of the record, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2010/knoxo_072710.pdf


STATE OF TENNESSEE v. JOCELYN D. MIMS

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee, for the appellant, Jocelyn D. Mims.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; and Lawrence Ray Whitley, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Jocelyn D. Mims, pleaded guilty to one count of conspiracy to introduce contraband into a penal institution and one count of attempted introduction of contraband into a penal institution, Class D felonies. She received concurrent terms of two years as a Range I, standard offender for these convictions. After a sentencing hearing, the trial court denied the Defendant's request for judicial diversion. She challenges that ruling on appeal. After a review of the record, we affirm the judgments of the Sumner County Criminal Court.

http://www.tba2.org/tba_files/TCCA/2010/mimsj_072710.pdf


STATE OF TENNESSEE v. TARRENCE PARHAM

Court: TCCA

Attorneys:

Lance R. Chism (on appeal and at trial) and Claiborne Ferguson (at trial), Memphis, Tennessee, for the appellant, Tarrence Parham.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Tarrence Parham, stands convicted of attempted second degree murder, a Class B felony, and reckless aggravated assault, a Class D felony. The trial court sentenced him as a Range II multiple offender to an effective sentence of twenty years in the Tennessee Department of Correction. On appeal, the defendant challenges (1) the trial court's admission of his prior conviction of reckless homicide for impeachment purposes and (2) the sufficiency of the evidence. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court as modified to reflect that the defendant's conviction for reckless aggravated assault is merged into his conviction for attempted second degree murder.

http://www.tba2.org/tba_files/TCCA/2010/parhamt_072710.pdf


TODAY'S NEWS

Legal News
Career Opportunities
Disciplinary Actions
TBA Member Services

Legal News
Pierce named director of Baker Center
UT College of Law professor Carl Pierce has been named the new director of the Howard H. Baker Jr. Center for Public Policy on the UT campus in Knoxville. Pierce, a faculty member since 1972 and former assistant dean, has served as interim director of the center since June 2009. "The Baker Center -- just like Sen. Baker himself -- is an incredible asset to the university, our local community, our state, our nation and, indeed, to the world," Pierce said in accepting the position.
Read more from the University of Tennessee
Video conferencing coming soon to Davidson Criminal courts
Attorneys with criminal cases pending before Davidson County courts will be able to communicate with their clients through video conferencing at any Tennessee Department of Corrections site beginning Aug. 2, the Nashville Bar Association reports. Contact Ted Wallace with Davidson County Trial Courts at 880-2558 or 880-1433 to set up a conference. There are two rooms set up for video conferencing in the Birch building

Stranch appointment likely focus of Obama comments
President Barack Obama called on the Senate today to vote on long-stalled nominees for the federal judiciary. He did not name any individual nominees, but the Blog of Legal Times suggests that he was referencing Nashville labor lawyer Jane Stranch when he said nominees have been waiting as long as eight months to be confirmed. Obama nominated Stranch in August 2009 to the U.S. Court of Appeals for the 6th Circuit. Although she has bipartisan support and there's no organized, public effort to block her, she's been waiting since November for a confirmation vote by the full Senate.
Read more from the Legal Times' blog
10 Commandments display on hold in Hawkins County
Hawkins County Commissioners discussed a "Foundations of American Law and Government" display for the new Justice Center on Monday, but delayed at least until August any decision. The delay came after the commission received a letter from the Wisconsin-based Freedom From Religion Foundation claiming that the proposed display is unconstitutional and violates separation of church and state.
Read more from the Kingsport Times News
More than 200 turn out for Carbolic Smoke Ball
More than 200 lawyers helped raise money for Court Appointed Special Advocates and Hands On Nashville at the annual Carbolic Smoke Ball hosted by the Nashville Bar Association's Young Lawyers Division on Saturday.
See photos from the Carbolic Smoke Ball
Career Opportunities
ACLU seeks managing attorney
The American Civil Liberties Union of Tennessee (ACLU-TN) seeks a managing attorney to coordinate its legal program in its Nashville office. The lawyer will also personally engage in litigation about half the time. Beginning Aug. 15, applications will be reviewed on a rolling basis until the position is filled. For a list of job responsibilities and more information,
download the job description
Disciplinary Actions
Nashville lawyer suspended
The Tennessee Supreme Court on July 21 temporarily suspended the law license of Ivan Omar Lopez for his failure to comply with his Tennessee Lawyers Assistance Program monitoring agreement.
Read more from the BPR
TBA Member Services
TBA expands insurance services for members
The TBA Member Insurance Solutions Program has been expanded to offer assistance to members in meeting their health, life, disability and other insurance needs. Working with Graham Swafford III of Capital Financial Group, the TBA is now able to provide members with exclusive benefits, personalized service, and pricing discounts. Services and products offered include: disability income insurance, business overhead expense insurance, group life, long-term and short-term disability income insurance, long-term care insurance, and group health, dental and vision insurance along with other employee related benefits.
Learn more about TBA Insurance Solutions now

 
 
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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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