Opinion Flash

October 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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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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