Opinion FlashOctober 4, 2004Volume 10 — Number 191 Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion. This Issue (IN THIS ORDER):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1004.wpd DAVID L. BUCK AND CHRISTOPHER L. BUCK V. JAMES W. AVENT AND WIFE, BERNADINE AVENT, AND TIMMY AVENT Court:TCA Attorneys: T. Holland McKinnie, Franklin, Tennessee, for the appellants, James W. Avent and wife, Bernadine Avent, and Timmy Avent. H. Morris Denton, Bolivar, Tennessee, for the appellees, David L. Buck and Christopher L. Buck. Judge: KIRBY First Paragraph: This is an action to establish an easement. The plaintiffs' property adjoins the northern boundary of the defendants' property. The plaintiffs' property is landlocked. To access the property, the plaintiffs historically used an old logging road on the northeastern corner of the defendants' property. In 1998, the defendants made improvements that effectively blocked the plaintiffs' passage over the old logging road. The plaintiffs filed this lawsuit to establish an easement over the old logging road and to enjoin the defendants from further impeding their use of the easement. After a bench trial, the trial court determined that the plaintiffs had established prescriptive easement and an implied easement over the defendants' property. The trial court directed the plaintiffs' expert, a surveyor, to establish the exact property lines between the parties' properties, and ordered the defendants to restore the plaintiffs' property to its original state according to those boundaries. From that order, the defendants now appeal. We affirm the trial court's conclusion that the plaintiffs established a prescriptive easement and an implied easement, and reverse in part and remand for the trial court to allow the parties an opportunity to submit further evidence on the exact boundary line between their properties. http://www.tba.org/tba_files/TCA/buckdavidl.wpd KENNETH MORGAN JOHNSON v. DOROTHY LYNN JOHNSON (HOLT)
WITH CONCURRING OPINION
Court:TCA
Attorneys:
Roger J. Bean and John R. LaBar, Tullahoma, Tennessee, for the
Appellant Kenneth Morgan Johnson.
Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the Appellee Dorothy
Lynn Johnson (Holt).
Judge: SWINEY
First Paragraph:
Kenneth Morgan Johnson ("Father") and Dorothy Lynn Johnson ("Mother")
were divorced in 1998. The parties have two minor children and
initially agreed to equal co-parenting time and that neither party
would seek child support from the other. A house owned by Father was
severely damaged if not destroyed by fire, and the proceeds from a
fire insurance policy were deposited with the Trial Court in a
separate lawsuit. After Father was sentenced to be incarcerated for
seven years for federal drug violations, Mother filed a petition
claiming entitlement to the insurance funds being held by the Trial
Court because the minor children were in need of support. The Trial
Court concluded Mother should be paid $1,034 per month out of the fire
insurance proceeds as child support for the parties' two minor
children. Father appeals claiming the Trial Court erred in
determining the amount of child support he should be required to pay
each month out of the fire insurance proceeds. We affirm the decision
of the Trial Court.
http://www.tba.org/tba_files/TCA/johnsonkennethm_opn.wpd
CONCURRING OPINION
http://www.tba.org/tba_files/TCA/johnsonkennethm_con.wpd
PRIME COMPANY AND JERRY SALEMI V. WILKINSON & SNOWDEN, INC., AND EUGENE WOODS Court:TCA Attorneys: Edward M. Bearman, Memphis, Tennessee, for the appellants, Prime Company and Jerry Salemi. Dawn Davis Carson, Memphis, Tennessee, for the appellees, Wilkinson & Snowden and Eugene Woods. Judge: KIRBY First Paragraph: This case involves a claim for procurement of breach of contract. The plaintiff real estate firm sued the defendant real estate firm for procurement of breach of a real estate listing contract. A bench trial was conducted. At the close of the plaintiffs' proof, the defendants moved to dismiss the plaintiffs' claims. The trial court noted that, in order to prove procurement of breach of contract, the plaintiffs were required to prove that the defendants acted with "malice." In order to prove "malice," the trial court held that the plaintiffs were required to prove that the defendants were "motivated by ill will, hatred or spite." The trial court found that the plaintiffs had not submitted evidence that the defendants were motivated by ill will, hatred or spite, and therefore held that the plaintiffs could not prove that element of their claim. The plaintiffs' claim for procurement of breach was dismissed. The plaintiffs now appeal. We reverse, finding that in order to prove malice in this context, the plaintiffs were not required to prove ill will, hatred or spite. http://www.tba.org/tba_files/TCA/primeco.wpd STATE OF TENNESSEE v. MORGAN JOHNSON Court:TCCA Attorneys: Randall B. Tolley, Memphis, Tennessee, for the appellant, Morgan Johnson. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Steven Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Morgan Johnson, was convicted of resisting arrest. He was acquitted of two counts of assault. The trial court imposed a sentence of two days, to be served as one day of incarceration and ninety days' probation. In this appeal, the defendant asserts (1) that his conviction should be dismissed because his arrest was unlawful; (2) that the evidence was insufficient to support his conviction; (3) that the trial court erred by refusing to instruct the jury on self-defense; and (4) that the trial court erred by denying his request for judicial diversion. Because the evidence adduced at trial fairly raised the issue of self-defense, the trial court erred by refusing to provide a corresponding instruction to the jury. The error cannot be classified as harmless beyond a reasonable doubt. The judgment of the trial court is, therefore, reversed and the cause is remanded for a new trial. http://www.tba.org/tba_files/TCCA/johnsonmorgan.wpd Amendment of County Tax Rates Date: October 1, 2004 Opinion Number: 04-149 http://www.tba.org/tba_files/AG/2004/op149.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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