HCH August 6 2010 Legal - Chattanooga Bar Association

4 Friday, August 6, 2010 HAMILTON COUNTY HERALD
It may be pretty and green,
but it is deadly to an ash tree
Just when you thought we
had made it through the summer
without the usual “Lost In
Space” warning from a robot
waving his arms and demanding
“danger Will Robinson,” out
of the forests of East Tennessee
comes the report that a bug that
has sent terror throughout the
Northeast has now made its way
into our beautiful mountains of
Tennessee.
The ash trees located in our
state’s forests are in the sights of
a beetle all decked out in emerald
green resembling something from
a leftover St. Patty’s Day party
that went totally wrong. The
Emerald Ash Borer is about as
destructive a bug as it gets and it
has made a major mark up North.
And, just like General Sherman
did many years ago during the
War of Northern Aggression, it is
wanting to make a march on our
woodlands, but our Department
of Agriculture has other plans for
this green menace.
The Tennessee Department
of Agriculture recently made the
announcement that the Emerald
Ash Borer was detected during
the middle of July at a truck stop
in Knox County near the Loudon
County line, and their report said
it was the first detection of the
insect in the state.
“We knew the Emerald Ash
beetle could potentially reach
Tennessee, and we’re prepared
to help slow the spread of the
infestation and protect our forest
resources,” the announcement
quoted state Agriculture
Commissioner Ken Givens. “We
will be working closely with fed-
eral officials and other stakeholders
to determine the extent of the
infestation and to take steps to
limit its spread.”
They went on to say that
after receiving a report of a suspected
find, state and federal officials
collected specimens from
infested logs for submission to the
U.S. Department of Agriculture
for positive identification. The
USDA confirmed the find.
The good news is that the
Emerald Ash Beetle attacks only
Ash trees. The bug that takes
living green to the wrong level, is
thought to have been introduced
into the Detroit, Mich. area 15
to 20 years ago on wood packing
material from Asia. Guess that
is another reason to try to buy
your pallets locally. Since then,
it also has been found also in
Illinois, Indiana, Iowa, Kentucky,
Maryland, Minnesota, Missouri,
New York, Ohio, Pennsylvania,
Virginia, West Virginia and
Wisconsin.
The Tennessee Department
of Agriculture plans to issue a
quarantine in Knox and Loudon
counties prohibiting the movement
of firewood, ash nursery
stock, ash timber and other material
that can spread the beetle to
Case Digests
tennessee Court of appeals syllabus
Berkeley Park Homeowners
Association, Inc., et al v. John
Tabor, et al
Knox County – Berkeley
Park Homeowners Association,
Inc., and Southern Traditions
Partners, LLC (collectively
referred to as “Berkeley Park”)
filed a motion for contempt
against John Tabor and Tabor
Construction, Inc. (collectively
called “Tabor”), seeking to
enforce a 2006 mediated settlement
agreement governing the
construction of a house being
built by Tabor in Southern
Traditions’ development known
as Berkeley Park Subdivision.
Berkeley Park alleged that
Tabor was in violation of numerous
provisions of the mediated
agreement, while Tabor contended
that the parties had
reached another agreement in
2007 that superseded the earlier
agreement. Following a bench
trial, the court held that there
was no superseding agreement
and that the evidence clearly
and convincingly showed Tabor
had violated the provisions of
the mediated agreement. The
court entered judgment in favor
“It was good work, but it
wasn’t what I had planned on
doing. I had won the mock trial
competition in law school! I had
been named best advocate! I
thought I was destined to be a
litigator,” she says. So Carter left
the debtor’s council and went to
work with her father as a trial
lawyer.
Then destiny played the two
aces it had been holding up its
sleeve: Carter met the man who
would become her husband, and
Chapter 13 bankruptcy trustee
Kenneth Steel decided to hire a
staff attorney.
“Greg and I were talking
about getting married, and as
much as I hated the idea of not
being a litigator, he had three
children from a previous marriage,
so we were going to be
putting together a family. With
Read all
about it ...
B y P e t t u s L . R e a d
T e n n e s s e e F a r m B u r e a u
of Berkeley Park, awarding it
damages of $34,042.11, including
attorney’s fees. Tabor appeals.
We affirm.
Deborah Miller Gentile v.
Michael Charles Gentile
Williamson County –
Husband appeals the trial court’s
order under Rule 35 requiring
the parties in this divorce action
to undergo a mental examination
and the court’s alleged reliance
on that examination. He
also appeals the trial court’s finding
that the home titled solely
to husband had transmuted to
marital property. We affirm the
trial court.
Teresa Lynn Stanfield, et
al. v. John Neblett, Jr., M.D.,
et al.
Madison County – This is
a medical malpractice case. The
jury returned a verdict, finding
that the Appellee/Doctor deviated
from the standard of care,
but that his deviation was not
the legal cause of the injury.
Appellant contends that
the trial court erred in denying
her motion for a directed
verdict, erred in ruling on her
that in mind, I wanted a job with
regular hours,” she says.
So Carter took the job with
Steel, and would not seek work
as a trail lawyer again. Although
she parted ways with the trustee
nine years later, it was to pursue
a career in sales, purely for logistical
reasons. Carter did well,
climbing the ranks in each of
the territories in which she was
placed, but the job was not the
best fit for her.
“I was good at sales, but I’m
better at this. Plus, I couldn’t
see who I was benefitting, so
it wasn’t satisfying personally.
Here, I can see the benefits I
provide. Someone will walk in
upset, and they’ll walk out a little
calmer. I feel like I’m helping
people,” she says.
Carter says working with a
client is like performing an act
objections to Appellee’s experts
and the impeachment of her
experts, that she was prejudiced
by the language used on the
verdict form, and that the trial
court abused its discretion in
allowing Appellee to make a
powerpoint presentation during
opening statements and closing
arguments. Finding no error, we
affirm.
Rob Matlock d/b/a Rob
Matlock Construction v. Regina
M. Rourk
Franklin County – A homeowner
and a contractor agreed to
use mediation to resolve their disagreement
over the contractor’s
bill for home renovations. The
mediation resulted in an agreement,
signed by both parties and
their attorneys, which provided
that the homeowner would pay
the contractor $14,000 and that
the parties would release each
other from any and all claims.
The homeowner paid
$11,000, but refused to pay the
rest. The contractor sued for the
deficiency and filed a motion for
summary judgment. The homeowner
argued that she did not
owe the money because the medi-
in which she balances sympathy
with firmness. While she lends
an understanding ear to her clients,
she also helps them realize
where they stand according to
the law.
“Most people who are
declaring bankruptcy feel like a
failure, so I try to impress upon
my clients that they are not a
failure because their finances are
in a shambles. They are not a
failure because the economy has
been bad; they are not a failure
because they assumed it would
get better and it didn’t; and they
are not a failure because they
can’t dig themselves out,” she
says.
“Maybe they took pay cuts;
maybe they had an interruption
in employment; maybe they
made bad decisions, which is not
a crime. I try to bring my clients
other areas of the state. The
department reports that its plant
inspectors and foresters will conduct
a thorough survey of trees
in the areas to assess the extent
of the infestation.
It takes the beetles around
three years to kill an ash tree
once they infest a tree. The
department describes the beetles
as dark green, one-half inch in
length and one-eighth inch wide,
and fly only from April until
September, depending on the climate
of the area. In Tennessee,
most EAB adults would fly in
May and June. They report that
the larvae spend the rest of the
year beneath the bark of ash
trees. When they emerge as
adults, they leave D-shaped holes
in the bark about one-eighth
inch wide.
The ash tree is very important
to our state and this insect
could have a major impact
on not only our forest, but to
trees located within our cities.
The Tennessee Department of
Agriculture Division of Forestry
estimates that 10 million urban
ash trees in Tennessee are potentially
at risk from the insect.
They say the risk represents an
estimated value loss of $2 bil-
ation procedure was unfair and
because it did not comply with
the requirements of Supreme
Court Rule 31. The trial court
granted summary judgment to
the contractor and ordered the
homeowner to pay him $3,000.
We affirm the trial court.
Danielle Christine Reinagel
v. Alan N. Reinagel
Dickson County – After
the parties were divorced for two
years, the father sought to reduce
his child support obligation and
change the custody of the child
which had been agreed upon at
the time of the divorce. The trial
court heard evidence and modified
the visitation schedule, but
vested the mother with primary
custody all based on Tenn. Code
Ann. §36-6-101(a)(2)(C). He
also increased the child support
obligation of the father, and the
father has appealed. We affirm
the Judgment of the trial court.
Gary Cooper v. Clinton
Utilities Board
Anderson County – Plaintiff
brought this action, charging
defendant utility breached its
contract with plaintiff to construct
a line and deliver electric-
to the point where they stop
beating themselves up so we can
move forward.”
At the same time, Carter
says she must temper sympathy
with a legal analysis of their
case so her clients leave with
an understanding of how the
law will apply to their situation.
And she must be resolute. “You
will have clients who will want
something they are not justified
in having,” she says.
Carter also tries to help her
clients walk away with a new
definition of success.
“A lot of people judge themselves
according to what they
own, where they live and the
kind of car they drive. And
while it’s important to keep a
roof over your head and food on
your table, your relationship with
your family, not how you spend
lion. There are an estimated 261
million ash trees on Tennessee
public and private timberland
potentially valued as high as $9
billion.
Individuals can help by
not transporting firewood, even
within Tennessee. With a lot
of Tennesseans now enjoying
camping, it is important they buy
their campsite wood from a local
source. Above all, don’t transport
or buy firewood from outside
the state. And, don’t bring wood
home with you once your camping
vacation is over.
Since this green bug of terror
has reached our state we all need
to keep an eye on our own Ash
trees for signs of infestations. If
you see anything suspicious, you
can visit www.TN.gov/agriculture/eab
for an online symptoms’
checklist and report form or call
the TDA’s Regulatory Services
Division at 1-800-628-2631.
We can stop this bug only
with the help of everyone. Let’s
keep Tennessee green with trees,
not Emerald Ash Beetles.
Pettus L. Read is Director of
Communications for the Tennessee
Farm Bureau Federation. He may
be contacted by e-mail at pread@
tfbf.com v
ity to his property. Defendant
filed a Motion for Summary
Judgment and the trial judge
held that there was no meeting
of the minds between the parties
and defendant was not obligated
to construct a line to deliver
electricity to plaintiff’s dwelling.
On appeal, we affirm.
James Q. Holder, et al
v. Westgate Resorts Ltd., a
Florida Limited Partnersyip d/
b/a Westgate Smoky Mountain
Resort at Gatlinburg
Sevier County – Plaintiff
sustained personal injuries
resulting from a fall on defendant’s
premises and brought
this action for damages, which
resulted in a jury verdict in
favor of plaintiff for damages
against defendant. Defendant
appealed, and asserted that the
trial judge erred when he refused
to allow defendant’s expert to
testify to his conversation with a
third party.
On appeal, we hold that
the trial court erred in refus-
ing to allow the proffered testimony,
but the error was harmless.
We affirm the Judgment of
the trial court. v
Consumer Continued from page 1
your money, is the true measure
of your success,” she says.
While fate eventually had its
way with Carter, her deviations
from the path it had set before
her were not without benefit.
In learning to stand on her own
two feet, she earned the right to
show others how to do the same.
By leaving the law temporarily to
place her family first, she gained
the ability to tell a client that the
measure of their success can be
found in their relationships.
And because she gave up
her dream of being a litigator to
serve people in a different way,
she can look a client square in
eyes and say, without a shred of
fabrication, that they can give up
something they want in order to
make a better life for themselves
and others.
Destiny must be smiling. v