HCH March 25 2011 Legal - Chattanooga Bar Association

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4 Friday, March 25, 2011 www.hamiltoncountyherald.com HAMILTON COUNTY HERALD If you don’t eat, don’t worry about farmers going out of business I may be edging slowly into the early 60s of my age, but I’m not going to be left behind when it comes to learning something new. I know there are those who have the idea you can’t teach an old dog new tricks, but I just think they don’t have the patience to try. True, it does take us “old hounds” a little longer to find the trail than it use to for something new. However, you have to give it to us that we do have determination once we set our minds to the task at hand. And, social media is one thing that is something I’m trying to “tree” these days. Several months ago, I joined in the Facebook revolution that is now taking over the country and will have to tell you that it is better than a party line was for A musical request Have you ever watched a child cast one toy aside and reach for something else? A friend of mine once told me he had watched his grandchildren open gifts and cast each one aside looking for the next one while spending no time with the one they just opened. He shared with me that at that point he knew his grandchildren had come to expect too much, wanting more and more – rather than being satisfied with one gift, they wanted to rip through dozens and then simply cast them aside. I looked at my watch as The letter from a gang member in prison to a friend on the outside seemed normal enough. “Saludos loved one,” it began, and went on to describe the perils of drug use and the inmate’s upcoming visit from his children. But closer inspection by examiners in our Cryptanalysis and Racketeering Records Unit (CRRU) revealed that this seemingly ordinary letter was encoded with a much more sinister message: every fifth word contained the letter’s true intent, which was to green-light the murder of a fellow gang member. Breaking such codes is CRRU’s unique specialty. Despite the FBI’s extensive use of stateof-the-art computer technology to gather intelligence, examine evidence, and help solve crimes, the need to manually break “pen and paper” codes remains a valuable – and necessary – weapon in Read all about it ... B y P e t t u s L . R e a d Te n n e s s e e F a r m B u r e a u my grandmother several years ago. It is also an excellent tool to educate others about what you do, and being one in agriculture, it’s a good way to talk to that 98 percent who no longer have any connection to farming other than eating. Each day I have FB friends who are discussing food cost, what’s in their food, how to grow their own food and even how to grind their own grain for a healthier diet. With topics like these coming from my “friends” right into my home, I have a perfect opportunity to talk about my favorite subject, which is also my life-long career, agriculture. The only concern a Tennessee farmer had in past years when selling his crop or livestock and making a living was the price he would receive down at the local sale barn or grain elevator. He didn’t concern himself with what is being Southern Style B y R a n d a l l F r a n k s From the FBI mother drove by the old Colonial Grocery Store saying, “Hurry, Mom, we are going to be late.” Of course we were not going to be late. The piano store was just next door. I picked up my books and rushed inside. I was always amazed at a store filled with pianos – I really wanted to get there early so I could go through and try out several of them while I waited my turn with piano teacher Jean Stiles. I do not know what made me want to go from instrument to instrument playing. Perhaps it was the same desire that made those children my friend had described ripping through more the Bureau’s investigative arsenal. That’s because criminals who use cryptography – codes, ciphers, and concealed messages – are more numerous than one might expect. Terrorists, gang members, inmates, drug dealers, violent lone offenders, and organized crime groups involved in gambling and prostitution use letters, numbers, symbols, and even invisible ink to encode messages in an attempt to hide illegal activity. Bookies, pimps, and drug traffickers, for example, all keep records of their dealings, explained Dan Olson, chief of CRRU, which is part of the FBI’s Laboratory Division. “If there is money and credit involved in a transaction,” Olson said, “there has to be an accounting of that at every step of the way, even if it’s on a match pack, hotel sta- Continued on page 11 exported overseas, the need for soybeans in Asia, or even what is being bought on the west and east coasts. His primary concern was what was being paid for his product in his own hometown. Today that has all changed. Now even a post on Facebook can have an effect on his bottom line if he is selling locally. With the world population at 6.9 billion as of March 17, and expected to reach 9 billion by the year 2050, the Tennessee farmer has to focus on the global challenges as well as the local agricultural concerns. With exports from our state of agricultural commodities totaling $1.2 billion, international trade and continued changes in farming technology worldwide, trade issues have major impacts on Tennessee farms. A world event thousands of miles away from a Tennessee farm can change a farmer’s commodity prices immediately, such as the problems right now in Japan. Technology is allowing farms to get larger, which is a matter of have to rather than want to in many cases. Fewer farmers are producing more, and the trend has no visible end. Less than two percent of our population today produces the food we eat. More than three mil- and more presents. Although the pianos were not mine and would not be. I was intrigued by the talents of gospel pianist Hovie Lister, Eva Mae LeFevre, and classical pianist Victor Borge. Several of my cousins had the knack to play piano along with their singing, so I had hoped the gene passed to me as well. Of course, as a child of eight, my repertoire was a bit slim. In spite of the best efforts of my teacher, I was not the most proficient student who worked through “Minuet” and “The Entertainer.” No matter my deficiencies, I had a true desire and my mother supported that to no end. She worked overtime to afford a walnut Currier Spinet piano and pay for my lessons. One day while sitting in my elementary school room, the entire course of my life changed. Dr. Donald Grisier, DeKalb County orchestra teacher, came into the room and played lion people farm or ranch in the United States. More than 78,000 farms are located in Tennessee alone with 43 percent of the state’s total land area used for farmland. Individuals, family partnerships or family corporations operate almost 98 percent of U.S. farms. Over 22 million people are employed in farm or farm-related jobs, including production agriculture, farm inputs, processing and marketing, and wholesale and retail sales. Farm equipment has evolved dramatically from the team of horses used in the early 1900s. A new technique called “precision farming” boosts crop yields and reduces waste by using satellites and computers to match seed, fertilizer and crop protector applications to local soil conditions. Today’s four-wheel drive tractors have the power of 40 to 300 horses. This makes for a large capital investment, as farmers pay anywhere from $97,000 for an average 160 horsepower tractor to over $170,000 for a four-wheel drive model. As the amount of mechanization and horsepower in farm machinery has continued to increase, the time needed to complete tasks has decreased. Combines, huge machines used Chubby Wise and Ervin Rouse’s “Orange Blossom Special” on the violin. I have not been worth shooting since. I had heard my great Uncle Tom Franks play the violin like his father had done before him at family gatherings, but now there was someone willing to sit and teach me. After convincing my parents that I wanted to learn violin, I signed up. My mother once again went out of her way to see that I got the opportunity by renting an instrument. I also continued my piano study, but eventually it did fade away in the shadow of the fiddle. I realized I was not going to be the next Hovie Lister or Victor Borge. The fiddle would stick and lead me to some amazing places. While I would never consider myself a pianist, the knowledge I gained while learning about the instrument has served me extremely well in every musical endeavor. The experience prepared me for a lifetime of les- to harvest grains such as corn, soybeans and wheat, have dramatically changed farming. In the 1930s and 40s, a farmer could harvest an average of 100 bushels of corn by hand in a ninehour day. Today’s combines can harvest 900 bushels of corn per hour or 100 bushels of corn in less than seven minutes! With modern methods, one acre of land in the U.S. (about the size of a football field) can produce: 42,000 pounds of strawberries; 11,000 heads of lettuce; 25,400 pounds of potatoes; 8,900 pounds of sweet corn; or 640 pounds of cotton lint. The efficiency of U.S. farmers benefits the Tennessee consumer in the pocketbook. Americans spend less on food than any other developed nation in the world. The other day, I saw a bumper sticker that sums up the importance of a Tennessee farmer very well. It said, “If you don’t eat, don’t worry about farmers going out of business.” In fact, that would be a good quote to share on my Facebook wall. Pettus L. Read is editor of the Tennessee Farm Bureau News and Director of Communications for the Tennessee Farm Bureau Federation. He may be contacted by e-mail at pread@tfbf.com v sons in almost every pursuit I’ve chosen to follow. So, while at times children may be spoiled by piles and piles of material gifts that simply get laid aside, if a child shows interest in music, even if the child has absolutely no talent for it and may someday lay the expensive instrument aside for other pursuits, remember, as the child’s practicing causes the paint to peel in the family room, love of music is a gift that will last a lifetime and can span the generations. Randall Franks is an awardwinning musician, singer and actor. He is best known for his role as “Officer Randy Goode” on TV’s “In the Heat of the Night” now on WGN America. His latest CD release, “An Appalachian Musical Revival,” is by www.shareamericafoundation.org. He is a member of the Atlanta Country Music Hall of Fame. He is a syndicated columnist for http://randallfranks.com/ and can be reached at rfrankscatoosa@ gmail.com. v
HAMILTON COUNTY HERALD www.hamiltoncountyherald.com Friday, March 25, 2011 5 Case Digests VerdIcts and settlements ‘Empty-chair’ trial nets $30 million bench verdict for jilted Raleigh woman. Raleigh, N.C. – A North Carolina judge has awarded the jilted spouse of Donald Puryear $30,162,000 in her suit against the woman she accused of stealing his affections. The wealthy owner of a Raleigh trucking company is now married to the woman, Betty Devin, according to the lawyer who represented his ex-wife, Carol Puryear, in the case. The lawyer, Stephanie Jenkins of Raleigh, N.C., said two different attorneys represented Devin at various times during the lawsuit. One showed up on the trial date to argue an issue, but left before arguing damages because the lawyer had not been retained to represent Devin on that issue. Donald Puryear was properly served with notice of the lawsuit and applicable hearing dates, but failed to appear at trial. Jenkins said she didn’t suggest a damages figure to Superior Court Judge Carl Fox. “I relied on him to come up with a number,” she said. Jenkins said Judge Fox had not yet reduced the ruling to a written order at press time. She said the case was unique because of the loss of lifestyle Carol Puryear suffered as a result of the alienation of the affec- Wise Construction, LLC, et al v. Thomas Boyd, et al. Hamilton County – This appeal involves a home construction dispute between an LLC contractor and the homeowners. The contractor entered into a written contract with the homeowners for the construction of a 6,000 square foot home. Upon the relationship between the parties becoming strained, the homeowners claim the contractor told them to find another builder. The contractor contends it was fired from the project. The instant action was commenced by the contractor to enforce a lien. The trial court found in favor of the contractor. The homeowners appeal. We affirm. Lucas F. McCombs v. Anna M. Davidson. Roane County – This appeal is from the General Sessions Court of Roane County. It is the opinion of this Court that the appeal is premature as there is no final judgment as provided in the applicable rules. It is therefore ordered and adjudged by this Court that the appeal is dismissed for lack of jurisdiction. Costs on appeal are taxed to the Appellant, Brett D. Stokes, and his surety, for which execution may issue, if necessary. Martha Duke, as next of kin of William Jerry Duke, Deceased, and on behalf of the wrongful death beneficiaries of William Jerry Duike v. Kindred Healthcare Operating, Inc., et al. Carroll County – This appeal involves an arbitration tions of her husband. “I told [Judge Fox] that there were a number of intangibles to consider in this case,” she said. Jenkins also represents Carol Puryear in a domestic case against her ex-husband. While Jenkins conceded that sometimes parties use heartbalm claims as leverage in underlying domestic actions, over the course of her nearly 20-year legal career she has come to see the devastating effects that adulterous relationships can have on families. “My attitude towards the tort has evolved,” she said. “When a party interferes with or destroys a genuine marital relationship, there are some significant losses suffered by aggrieved spouses and families.” The only means by which the law may compensate aggrieved spouses for that loss is money, Jenkins said. “It is the law in North Carolina, and I prosecute and defend these cases,” she said. Plaintiff’s attorney: Stephanie Jenkins of Gailor Wallis Hunt in Raleigh, N.C. Defense attorney: Defense did not appear. The case: Puryear v. Devin; March 14, 2011; Wake County Superior Court; Judge Carl Fox. Carrier claims termination of attendant care benefits justified agreement that was executed when a patient was admitted to a nursing home. The arbitration agreement was signed by the patient’s sister, who had presented a power of attorney document to the admissions staff that designated her as the patient’s attorney-in-fact. The patient’s representative in this lawsuit contends that the patient was incompetent when he executed the power of attorney document, and therefore, the sister lacked authority to sign the arbitration agreement on his behalf. The trial court found by clear and convincing evidence that the patient was incompetent when he signed the document and denied the defendants’ motion to compel arbitration. We affirm and remand. Michael Adler v. Double Eagle Properties Holdings, LLC, et al. v. Airways Commons, LLC. Shelby County – In this declaratory judgment action, the parties sought interpretation of a real estate purchase contract. The contract between the buyer and the seller provided for the assignment of all leases on the property and proration of rents to the buyer. The parties disputed whether these provisions contemplated a separate agreement between the seller and a third party. At the behest of the parties, the trial court construed both agreements and granted summary judgment to the buyer. On appeal, we raise, sua sponte, the question of whether all necessary parties were before the trial court pursuant to Tenn. Detroit, Mich. – In a lawsuit filed in Wayne County Cir- cuit Court, plaintiff Eugene Marshall sought reimbursement from defendant State Farm Mutual Automobile Insurance Co. for first-party, no-fault PIP benefits for medical and attendant care. Marshall sustained a traumatic brain injury in an August 1995 car-versus-bicycle accident. He was eight years old at the time. He was provided attendant care by immediate family members, as prescribed by his physicians. State Farm paid the benefits until it was determined that attendant care was no longer necessary. On Nov. 6, 2009, Marshall was referred to neuropsychologist Dr. Renee Applebaum, who testified that Marshall’s results on testing she performed placed him in the mildly impaired range overall. She recommended that he be treated with psychotherapy and pharmacotherapy to address his depression and abnormalities in behavior, and that eight hours of daily attendant care would address his cognitive dysfunction, difficulty with initiation, apathy and poor self-monitoring. In addition, in June 2010 Marshall was examined by forensic medical case management specialist Renee LaPorte. Her analysis was that Marshall needed a life-skills trainer at a market Code Ann. § 29-14-107(a) and Tenn. R. Civ. P. 19. After concluding that all necessary parties were not included in this action, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion. Rocky Glen Ross v. Donna Angela Ross. Morgan County – The order from which the appellant Donna Angela Ross seeks to appeal was entered on Monday, August 2, 2010. A notice of appeal was filed by the appellant on Friday, September 3, 2010, the 32nd day following the entry of the trial court’s order. Because the notice of appeal was not filed timely, we have no jurisdiction to consider this appeal. Accordingly, this appeal is dismissed. Helen M. Land v. Jack Casteel. McMinn County – The appellant appeals the trial court’s issuance of orders of protection against him. The appellant’s sister and brother-in-law filed petitions for ex parte orders of protection and alleged that on two separate occasions, the appellant fired shots toward their home. The appellant denies the allegations. After a hearing, the trial court found by a preponderance of the evidence that entry of the orders of protection was necessary. We affirm. Elma Lou Hale v. Gerald D. Hale, et al. Van Buren County – This is the second appeal of an action to partition 74 acres. Plaintiff is a widow who owns a one-half value of $30-$35 an hour as part of attendant care. However, in her March 2010 evaluation, defense medical expert Dr. Lisa Metler, a neuropsychologist, noted test results that showed an individual who was functioning in the low average range of intelligence. She had questions whether he was putting forth his best effort on memory measures, given his performance on other tests. In addition, she found that his executive/frontal lobe abilities were all within normal limits and that fine motor dexterity was mildly impaired with the right hand. Metler also found improvements in Marshall’s neuropsychological functioning from her prior evaluation –including attention, information-processing speed, novel problem solving, and visual constructional ability – and did not feel there was any need for attendant care services. She did suggest a limited number of sessions with an occupational therapist, which State Farm offered to provide, to help develop routines at home to compensate for any functional memory difficulties. Defendant asserted that numerous rounds of surveillance dating back to June 2000 showed plaintiff, then 13, riding his bike, Case Digests tennessee court oF appeals syllaBus interest in the land as a tenant in common with Defendants, Plaintiff’s stepson and his wife. Plaintiff filed this action in 2008 to partition the property by sale. Defendants opposed a sale and sought partition in kind. The trial court ordered the property sold upon findings that a partition in kind was impractical and that the two tracts were more valuable if sold together. Defendants appealed, and we affirmed with instructions that the property be sold on remand. Before the sale, a survey was conducted which revealed that Defendants’ home, located on a one-acre tract owned separately by Defendants, encroached on the property held by the parties without a helmet, for hours at a time with no supervision. It also was contended that, despite the fact plaintiff has never had a driver’s license, he was titled owner of a 1997 Thunderbird, and had a long list of moving violations. In addition, Sherrie Marshall-Ware, his primary attendant care provider, had been permanently disabled for years by the Social Security Administration because of her sickle cell anemia. The jury issued a no-causeof-action verdict in favor of defendant. Type of action: No-fault PIP benefits Type of injuries: Closedhead injury Name of case: Marshall v. State Farm Mutual Automobile Insurance Co. Court/Case no.: Wayne County Circuit Court; 08- 019103-NF Tried before: Jury Name of judge: John A. Murphy Verdict: No cause of action Special damages: $60,000 to defendant in case evaluation sanctions and taxable costs Insurance carrier: State Farm Attorney for plaintiff: Robert D. Tenbrunsel Attorney for defendant: John P. Lewis v as tenants in common. In order to resolve the encroachment issue, the trial court ordered Plaintiff to quitclaim a mere 0.168 acres to Defendants and ordered Defendants to quitclaim a like-sized portion of the property of equal value to Plaintiff. Although this remedy was favorable to Defendants, they nonetheless appealed, claiming the trial court had no legal authority to order them to quitclaim any property to Plaintiff. We have determined the trial court is authorized to partition a portion of the property in kind, pursuant to Tenn. Code Ann. § 29-27-104, and to order that the remaining property be partitioned by sale. Thus, we affirm. v IOLTA Participant Membership in Foundation In an effort to identify a representative body of “Participant” membership, the Tennessee Bar Foundation Board of Trustees announces the following opportunity: Any lawyer licensed in Tennessee who participates in the IOLTA (Interest On Lawyers’ Trust Accounts) program, whether as an individual or as a member (principal, employee, or other member) of a law firm, and who is not currently a Fellow of the Foundation, is eligible to serve as a voting “Participant” member of the Foundation. To enroll as a “Participant” member and for more information, visit the Foundation’s Web site at www.tnbarfoundation.org.
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HCH March 25 2011 Legal - Chattanooga Bar Association

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