Opinion FlashOctober 4, 2004
Volume 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):
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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
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