Deadline nears for Supreme Court admissions event

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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
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.

FEDERAL INSURANCE COMPANY A/S/O ROBERT AND JOANIE EMERSON v. MARTIN EDWARD WINTERS, D/B/A WINTERS ROOFING COMPANY

Court: TSC

Attorneys:

John Tate Rice, Chattanooga, Tennessee, for the appellants, Martin Edward Winters and Winters Roofing Company.

Michael A. Durr, Charlotte, North Carolina, for the appellee, Federal Insurance Company.

Judge: WADE

The defendant contractor entered into a contract to replace a roof. When the newly installed roof developed leaks, the defendant hired an independent contractor to make the necessary repairs. While performing the work, the independent contractor caused a fire, resulting in an $871,069.73 insurance claim by the homeowners. As subrogor to the homeowners' rights and claims arising out of the fire, the plaintiff insurance company sued the defendant in both tort and in contract. The defendant filed a motion for summary judgment, asserting that because he had subcontracted the work, he could not be liable. The trial court granted the motion on both the negligence and breach of contract claims. The Court of Appeals reversed, holding that the defendant had a non-delegable contractual duty to perform the roofing services in a careful, skillful, and workmanlike manner. This Court granted the defendant's application for permission to appeal in order to determine the propriety of the claim under the theory of contract. Because the defendant had an implied non-delegable duty to install the roof in a careful, skillful, diligent, and workmanlike manner, the judgment of the Court of Appeals is affirmed. The case is remanded to the trial court for proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2011/federalinsurance_102411.pdf


FIRST TENNESSEE BANK, N.A. v. HAROLD WOODWARD ET AL.

Court: TCA

Attorneys:

T. Turner Snodgrass, Nashville, Tennessee, for the appellant, Andrea Woodward.

Wayne R. Kramer, Knoxville, Tennessee, for the appellee, First Tennessee Bank, N.A.

Amanda M. Busby, Knoxville, Tennessee, for the appellee, Harold Woodward.

Judge: SUSANO

First Tennessee Bank, N.A. ("the Trustee") is the trustee of a testamentary trust established under the will of Steve Woodward ("the Deceased") for the benefit of his son, Jeffrey Clinton Woodward ("the Son"). Steve Woodward died in 2005. The Deceased's will ("the Will") provides that at his death a trust was to be created for the benefit of the Son. The Son is to receive a monthly payment from the trust and, at age 50, the Son is to receive the corpus of the trust. The Deceased's brother, Harold Woodward ("the Brother"), is the recipient under the Will of "all of the property that would make up my residual estate and not named herein. . . ." The trust was created and payments were being made to the Son until he died in 2009 at the age of 33. The Trustee filed this action asking the court to determine its obligations as trustee with respect to the corpus of the trust. The suit named all parties with a possible interest in the outcome as defendants, including the Son's estranged wife, Andrea Woodward ("the Wife"). The trial court ordered the Trustee to distribute the corpus of the trust to the Brother. The Wife appeals. We reverse.

http://www.tba2.org/tba_files/TCA/2011/firsttennessee_102411.pdf


STEPHEN W. MENCER v. DAVID V. LEE

Court: TCA

Attorneys:

Stephen W. Mencer, Spring Hill, Tennessee, Pro Se.

David V. Lee, Lewisburg, Tennessee, Pro Se.

Judge: COTTRELL

The plaintiff in this automobile accident case has filed a notice of appeal from an order entered on July 26, 2011, granting him a judgment in the amount of $250,000. Because the trial court has set aside the judgment and set the case for a jury trial, we dismiss the appeal for lack of a final judgment.

http://www.tba2.org/tba_files/TCA/2011/mencers_102511.pdf


U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE v. RODNEY T. RZEZUTKO, ET AL.

Court: TCA

Attorneys:

James R. Moore, Knoxville, Tennessee, for the appellants, Rodney T. Rzezutko, and Sandra Rzezutko.

Daniel L. Bell, and F. Scott Milligan, Knoxville, Tennessee, for the appellee, U.S. Bank National Association.

Judge: SWINEY

Rodney T. Rzezutko and Sandra Rzezutko ("Defendants") appeal a Circuit Court order dismissing Defendants' appeal of a General Sessions Court interlocutory order dated September 21, 2010. U.S. Bank National Association, as trustee ("Plaintiff") raises an issue on appeal with regard to the Circuit Court vacating the General Sessions Court's September 21, 2010 order. We find and hold that the Circuit Court lacked jurisdiction to hear an interlocutory appeal of a General Sessions Court order. The Circuit Court, therefore, correctly dismissed Defendants' appeal. We affirm this dismissal. However, as the Circuit Court lacked jurisdiction, it was error to vacate the September 21, 2010 General Sessions Court order. We, therefore, vacate that portion of the Circuit Court order vacating the September 21, 2010 order, and reinstate the September 21, 2010 General Sessions Court interlocutory order.

http://www.tba2.org/tba_files/TCA/2011/usbank_102511.pdf


MARQUETTE WEAVER v. FOUR MAPLES HOMEOWNERS ASSOCIATION and WESTWOOD MANAGEMENT CORPORATION

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Marquette Weaver.

Thomas J. Smith, Nashville, Tennessee, for the appellees, Four Maples Homeowners Association and Westwood Management Corporation.

Judge: STAFFORD

This is a premises liability case in which the Plaintiff/Appellant, a resident of Defendants/Appellees' condominium complex, was assaulted by unknown individuals. Appellant filed suit, asserting negligence on the part of Appellees in failing to timely repair a vehicle access gate on the property. The trial court granted summary judgment to Appellees, finding that Appellees owed no duty to Appellant as the harm was not reasonably foreseeable. We conclude that the evidence creates a dispute as to whether the underlying assault was foreseeable and, therefore, the grant of summary judgment was erroneous. Reversed and remanded.

http://www.tba2.org/tba_files/TCA/2011/weaverm_102511.pdf


IN RE ZEYLON T.S.

Court: TCA

Attorneys:

Andrew J. Crawford, Esq., Knoxville, TN for the Appellant, D.A.S.

Robert E. Cooper, Jr., Attorney General and Reporter, Joshua Davis Baker, Assistant Attorney General, for the Appellee, Tennessee Department of Children's Services.

Judge: KIRBY

This appeal concerns the termination of parental rights. The mother is appealing the juvenile court's judgment terminating her parental rights. The child at issue was initially taken from his mother's custody by the Tennessee Department of Children's Services after his school reported excessive tardiness and absences. The juvenile court determined that the child was homeless, and that the mother would not provide for his needs. The child was placed with a relative. Lengthy proceedings ensued. The Department filed a petition to terminate the mother's rights, which was eventually tried by the juvenile court. The juvenile court terminated the mother's parental rights, and the mother now appeals, arguing that the State failed to prove by clear and convincing evidence any statutory grounds for termination, failed to prove that it made reasonable efforts to reunify, and failed to prove that the termination of her parental rights was in the best interest of the child. We affirm.

http://www.tba2.org/tba_files/TCA/2011/zeylonts_102511.pdf


JERRIE BRYANT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jennifer Austin Mitchell, Dunlap, Tennessee, for the Appellant, Jerrie Bryant.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Lisa Zaviogiannis, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Van Buren County jury convicted the Petitioner, Jerrie Bryant, of second degree murder. This Court affirmed the Defendant's convictions, but we vacated her sentences and remanded the case for resentencing. State v. Jerrie Bryant, No. M2007-02057-CCA-R3-CD, 2008 WL 544650, *1-13 (Tenn. Crim. App., at Nashville, Feb. 20, 2008), no Tenn. R. App. P. 11 application filed. The Petitioner filed a petition for post-conviction relief alleging she received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/bryantj_102511.pdf


TODAY'S NEWS

Legal News
Celebrate Pro Bono
Tenn. Government
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
ABA president urges deficit committee to reject cuts
American Bar Association President Bill Robinson is urging the Joint Select Committee on Deficit Reduction to maintain adequate funding for civil legal services and the federal courts "even during this most difficult economic time." In a letter to the committee, Robinson called on members to recognize that access to justice is essential for preserving freedom and the rule of law in the country and that additional cuts would "gravely undermine the ability for those Americans who are most in need...to access legal assistance."
Read more here
Opinion: Youth Courts needed, worthwhile
Writing that "juvenile justice is a field where the cure aggravates the disease," a New York Times columnist details the positive points of Youth Courts and why they work and are needed. Youth Courts -- including Tennessee's program -- are designed to give first-time non-violent offenders a way to stay out of the formal juvenile justice system, with cases heard by juries composed of the offenders' peers. "The idea is to take that first encounter with the law, especially for minor things, and use it to put them back on the right track, turn it into something positive," said Carolyn Dallas, the D.C. Youth Court's executive director.
Read it in The New York Times
Religious harassment claims on the rise
Statistics from the Equal Employment Opportunity Commission and Department of Justice indicate that complaints of religious harassment in the workplace are on the rise, and now are second only to sexual harassment claims. According to University of Tennessee professor Rosalind Hackett, globalization and a more mobile society have increased diversity in the workplace while many businesses are not prepared to deal with issues regarding different holidays, attire, diet, values and practices. Commenting on the trend, Knox County Law Director Joe Jarret says employers should educate themselves on various religions and not make value judgments about other faiths.
The News Sentinel reports
Judge releases his own son
Obion County General Sessions Judge Jimmy Smith sparked controversy after he signed an order releasing his son on his own recognizance after a DUI arrest. Smith defended the decision saying, "...whether it's my son or anybody else...if a person is charged with a misdemeanor and they have ties to the community they [will] be released on their own recognizance." However, Smith has requested a special judge to hear the substance of the case.
WBBJ News 7 reports
Renovations complete at clerk's offices
The Hamblen County Circuit and General Sessions clerk offices recently received a facelift after 30 years of service. Renovations included removing loose wires from the floor and ceiling, replacing stained and deteriorated carpet with tile flooring, installing shelving to hold files, upgrading technology and security systems, and building cubicles for staff.
Read more in the Citizen Tribune
'West Memphis 3' lawyer to teach course
Stephen Braga, a lawyer who represented one of the "West Memphis Three" defendants plans to teach a two-week course on the case at the University of Virginia School of Law. The class will cover the 17-year effort to overturn the murder convictions of three teenagers.
WREG-TV Memphis reports
Celebrate Pro Bono
Advance directive outreach set for Thursday
Memphis Area Legal Services will host an advance directives outreach at Plough Towers in Germantown this Thursday, Oct. 27, from 9:30 to 11:30 a.m. Contact Linda Warren Seely at (901) 523-8822 x417 or lseely@malsi.org for more information or to volunteer.
See a full schedule of Celebrate Pro Bono Month events
Legal clinic scheduled for Murfreesboro
On Thursday, Oct. 27, the Rutherford County Bar Association will hold a legal advice clinic at Greenhouse Ministries in Murfreesboro. The event will run from 4 to 6 p.m., although members of the public seeking free legal assistance may sign in beginning at 3:30 p.m. Contact John Blankenship at john@blankenshiplawffice.com or (615) 893-4160 for more information.

Tenn. Government
Black caucus threatens redistricting suit
Black legislative leaders said today their caucus would file a lawsuit challenging Republican redistricting plans if they feel the map violates the federal Voting Rights Act. Rep. G.A. Hardaway, chairman of the state legislature's Black Caucus, called on Republicans to include caucus members in helping shape the plan that reapportions and redraws House and Senate seats. "We will sue if it's not in compliance with the Voting Rights Act as the Black Caucus sees it," Hardaway said.
The Times Free Press reports
Upcoming
Event raises awareness of domestic abuse
Monica Aistrop suffered at the hands of an abusive spouse for 10 years. Now free from that relationship, she uses her experience as a victim and survivor to help others as the domestic violence victims' advocate with the Blount County District Attorney's Office. On Tuesday, the Blount County Task Force Against Domestic Violence will hold its annual Candlelight Vigil at the Blount County Justice Center to raise awareness of this critical problem.
The Daily Times has more
Disciplinary Actions
Knox lawyer censured
On Oct. 25, Knox County lawyer Hillary Ellen Dewhirst received a public censure from the Tennessee Supreme Court for billing the Administrative Office of the Courts for a non-lawyer assistant that helped her in her role as a Guardian Ad Litem for the Knox County Juvenile Court. Dewhirst self-reported the mistake after learning that Tennessee Supreme court Rule 13 does not permit compensation for a non-lawyer assistant. She has agreed to make full restitution for the overpayment.
Download the BPR release
Madison County lawyer censured
Madison County lawyer Angela LaShandra Jenkins-Hines received a public censure from the Tennessee Supreme Court on Oct. 25 after the court found she deposited personal funds in her trust account and used those funds to pay personal and business expenses.
Read the BPR notice
Davidson County lawyer censured
On Oct. 25, Davidson County lawyer Ivan Omar Lopez received a public censure from the Tennessee Supreme Court. The court found that he allowed clients to pay filing fees into his business account and later transfered the money to his trust account. This co-mingling of funds violated Rule of Professional Conduct 1.15. The court did note, however, that no client funds were adversely affected.
Read more from the BPR
Shelby County lawyer censured
Shelby County attorney Mimi Phillips was censured by the Tennessee Supreme Court on Oct. 25 after the court found she failed to disclose a client's substantial child support arrearage and her own disciplinary history.
Download the BPR release
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click 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.

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