UNDERSTANDING THE NEW CHILD SUPPORT GUIDELINES
UNDERSTANDING THE NEW CHILD SUPPORT GUIDELINES

This new TennBarU course will help you learn just what the new Child
Support Guidelines will mean to your clients and your practice. Each
seminar location features presentations by the most knowledgeable
people in the field and will also include two panel discussions
involving local judges and practitioners. Leading the programs will be
Laura Morgan, who literally wrote the book on child support
guidelines, economist Jane Venohr, who designed Tennessee's new Income
Shares Guidelines, and DHS Assistant General Counsel Kim Beals.

Dec. 6 in Memphis
Dec. 7 in Jackson
Dec. 8 in Nashville
Dec. 9 in Chattanooga
Dec. 10 in Knoxville
Dec. 14 in Johnson City

Today's Opinions: November 23, 2004
Volume 10 — Number 226
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.
05 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 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
00 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

CHEROKEE COUNTRY CLUB, INC. v. CITY OF KNOXVILLE, ET AL.

Court:TSC

Attorneys:                          

Charles A. Wagner, III, and W. Turner Boone, Knoxville, Tennessee, for
the Appellant, Cherokee Country Club, Inc.

Ronald E. Mills, Knoxville, Tennessee, for the Appellee, City of
Knoxville.

Charles W. Swanson, Knoxville, Tennessee, for the Appellees, Members
of the City Council.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine the validity of a permanent city
ordinance that prohibited the issuance of all demolition permits for
property under consideration for designation as a historical overlay
district.  After finding that the ordinance was an invalid zoning
ordinance because the City of Knoxville failed to comply with
statutory planning, notice, and hearing requirements, see Tenn. Code
Ann. SS 13-7-201-211 (1999 & Supp. 2004), the trial court issued a
peremptory writ of mandamus requiring the issuance of a demolition
permit to the appellant, Cherokee Country Club, Inc.  The Court of
Appeals reversed the trial court's judgment, holding that the
ordinance was a building regulation not subject to the statutory
zoning requirements.  After reviewing the record and authority, we
hold that the ordinance was a zoning regulation that was not enacted
in accordance with statutory zoning requirements or the Tennessee
Historic Zoning Act.  We also conclude that there was no error in
failing to join necessary parties, that there was no error in granting
the motion for judgment on the pleadings, and that there was no error
in issuing a writ of mandamus.  Accordingly, we reverse the Court of
Appeals' judgment and reinstate the trial court's judgment.

http://www.tba.org/tba_files/TSC/cherokeecountyclub.wpd

WILLIAM A. COHN v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME
COURT OF TENNESSEE
WITH APPENDIX

Court:TSC

Attorneys:

William A. Cohn, Memphis, Tennessee, Pro Se.

Jesse D. Joseph, Nashville, Tennessee, for the Appellee, Board of
Professional Responsibility.

Judge: ANDERSON

First Paragraph:

This is a direct appeal in an attorney discipline case.  For seven
years, the appellant, an experienced bankruptcy attorney, collected
post-confirmation attorney's fees from his debtor clients using a 
creditors' procedure which the Bankruptcy Court for the Western
District of Tennessee found improper.  Following the bankruptcy
court's ruling, the Board of Professional Responsibility ("BPR") filed
a petition for discipline alleging that the appellant had violated a
number of ethical rules.  A BPR hearing panel agreed and ordered a
public censure, disgorgement of certain fees, and suspension until
such time as disgorgement was made.  Both the attorney and the Board
appealed to the chancery court, which affirmed the public censure,
modified the disgorgement order, and reversed the suspension.  Both
parties appealed to this Court.  After our review of the record and
applicable authority, we conclude that the chancery court properly
affirmed the hearing panel's findings with regard to the appellant's
violation of the disciplinary rules and that it correctly required
disgorgement of post-confirmation attorney's fees, but that it erred
in declining to impose a suspension.  Accordingly, we affirm the
chancery court's judgment in part, but we modify the judgment to
vacate the public censure and instead impose a ninety-day suspension.

http://www.tba.org/tba_files/TSC/cohnwilliama.wpd

Appendix
http://www.tba.org/tba_files/TSC/cohnwilliama_apx.wpd

STATE OF TENNESSEE v. BENJAMIN DAMRON

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth T. Ryan, Senior Counsel; Charles M.
Layne, District Attorney General; and Jason M. Ponder, Assistant
District Attorney General, for the appellant, State of Tennessee.

Robert S. Peters, Winchester, Tennessee, for the appellee, Benjamin
Damron.

Judge: DROWOTA

First Paragraph:

We granted the State's application for permission to appeal to
determine whether the trial court and the Court of Criminal Appeals
erred by suppressing potentially incriminating statements given by the
defendant during the post-instrument phase of a polygraph test.  Upon
due consideration, we conclude that the lower courts erred by
suppressing the statements.  Although polygraph test results,
testimony concerning such test results, and offers or refusals to
submit to polygraph tests are not admissible into evidence, voluntary
statements made before, during, or after a polygraph test may be
admitted into evidence, provided that the statements also are
consistent with other applicable constitutional and evidentiary rules.
 Accordingly, the judgment of the Court of Criminal Appeals is
reversed, and this case is remanded to the trial court for further
proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/damronbenjamin.wpd

STATE OF TENNESSEE v. LATRECE JONES

Court:TSC

Attorneys:                          

Ardena J. Garth, District Public Defender, and Donna Robinson Miller,
Assistant District Public Defender, Chattanooga, Tennessee, for the
Appellant, Latrece Jones.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General;
William H. Cox, III, District Attorney General; and C. Parke
Masterson, Jr., Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether the evidence supported the
defendant's conviction for criminally negligent homicide in the death
of her two-year-old son.  The child was riding on the defendant's lap
in the front passenger seat of a rental car and was killed when the
passenger-side air bag deployed in a collision.  The Court of Criminal
Appeals upheld the conviction, concluding that the evidence was
sufficient to sustain the jury's verdict, that the defendant's conduct
was the proximate cause of the victim's death, and that the trial
court did not err in admitting evidence regarding car seat safety. 
After carefully reviewing the record and the evidence, we conclude
that the trial court did not abuse its discretion in admitting
evidence regarding car seat safety.  However, we conclude that the
evidence was insufficient to support the conviction because the
defendant's conduct did not constitute a gross deviation from the
standard of care.  Accordingly, we reverse the judgment of the Court
of Criminal Appeals and dismiss the conviction.  Because we dismiss
the defendant's conviction due to insufficient evidence, we do not
reach her arguments that her conduct was not the proximate cause of
her son's death and that the trial court's instruction to the jury on
proximate cause was error.

http://www.tba.org/tba_files/TSC/joneslatrece.wpd

DONALD R. LACY v. WESLEY B. COX, et al.

Court:TSC

Attorneys:

George R. Garrison, Sevierville, Tennessee, for the appellant, Donald
R. Lacy.

Dana Holloway, Knoxville, Tennessee, for the appellee, Jennifer L.
Brandon.                          

Judge: DROWOTA

First Paragraph:

In a jury trial, the plaintiff moved for and was granted voluntary
dismissal without prejudice as of right while the jury was
deliberating, and the jury was discharged before returning a verdict. 
The trial court later acknowledged that it had erred by granting the
voluntary dismissal in contravention of Tennessee Rule of Civil
Procedure 41.01.  However, the trial court nevertheless sustained the
voluntary dismissal without prejudice, denying both the defendant's
post-trial motion to deem the dismissal to be with prejudice and the
plaintiff's motion for a new trial.  On appeal, the Court of Appeals
held that although a plaintiff's free and unrestricted right to
voluntary dismissal ends upon the jury's retirement, a trial court has
discretion to grant a voluntary dismissal without prejudice after the
jury has retired.  However, the Court of Appeals deemed the
plaintiff's voluntary dismissal to be with prejudice because the
plaintiff had sought and was improperly granted voluntary dismissal as
of right after the jury had retired.  Reversing the Court of Appeals,
we hold that a trial court has no authority to grant a voluntary
dismissal without prejudice while the jury is deliberating.  The
unique aspects of Tennessee Rule of Civil Procedure 41.01, in
particular the provision of up to two voluntary dismissals as of right
which are available until a significantly late procedural stage,
warrant more restriction of a trial court's discretion to grant
voluntary dismissal than is required under Federal Rule of Civil
Procedure 41and parallel state rules.   Plaintiffs have other
procedural avenues, such as the motion for a new trial, to remedy
errors which may occur during jury deliberation.  Further, allowing
trial courts the discretion to grant voluntarily dismissal without
prejudice while the jury is deliberating could allow plaintiffs to
manipulate the forum and could waste judicial resources, and a trial
court's abuse of discretion in that regard would be problematic to
remedy adequately.  Based on the foregoing, we affirm the judgment of
the Court of Appeals that plaintiff's voluntary dismissal in this case
shall be with prejudice.

http://www.tba.org/tba_files/TSC/lacydonaldr.wpd

CHARLES NICHOLAS GRIFFITH v. JESSICA LYNN GRIFFITH

Court:TCA

Attorneys:                          

John D. Kitch, Nashville, Tennessee, for the appellant, Charles
Nicholas Griffith.

Mike W. Binkley, Nashville, Tennessee, for the appellee, Jessica Lynn
Griffith.

Judge: CAIN

First Paragraph:

The sole issue before the court in this protracted domestic relations
litigation is the finding by the trial court that Appellant was in
criminal contempt for failure to make mortgage and tax payments on the
marital residence.  Appellant asserts on appeal that the trial court
did not set a specific deadline for payment and that the uncontested
proof shows that Appellant lacked the ability to pay when the debt
became due.  We reverse the trial court action finding that the
evidence does not establish beyond a reasonable doubt that Appellant
had the ability to pay.

http://www.tba.org/tba_files/TCA/griffithcharles.wpd

MARY B. HARRIS v. STEVEN R. ABRAM, ET AL.

Court:TCA

Attorneys:                          

Hugh P. Garner, Chattanooga, Tennessee, for the appellant, Mary B.
Harris.

C.J. Gideon and Edward A. Hadley, Nashville, Tennessee, for the
appellees, Steven R. Abram, and Neurological Surgeons, P.C.

Judge: CANTRELL

First Paragraph:

The plaintiff filed this medical malpractice action against her
neurosurgeon and his practice  after her colon was perforated during a
surgical procedure on her spine.  The defendants filed a motion for
summary judgment supported by an affidavit of the neurosurgeon stating
that he complied with the recognized standard of acceptable
professional practice applicable to neurosurgeons.  The plaintiff
filed a response relying on the depositions of her own expert to
refute the neurosurgeon's affidavit.  The trial court determined that
the opinion of the plaintiff's expert failed to meet the requirements
of Tenn. Code Ann. S 29-26-115(a)(1) and (2) and granted the motion
for summary judgment.  We affirm.

http://www.tba.org/tba_files/TCA/harrismaryb.wpd

GARY MOSLEY v. TENNESSEE DEPARTMENT OF COMMERCE AND INSURANCE

Court:TCA

Attorneys:

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General, and Sarah Ann Hiestand, Senior Counsel, Financial
Division, Office of the Attorney General, for the appellant, Tennessee
Department of Commerce and Insurance.

Ernest W. Williams, Anna Elizabeth Freeman, and D. Scott Porch, IV,
Franklin, Tennessee, for the appellee, Gary Mosley.                          

Judge: CAIN

First Paragraph:

This appeal involves a decision by the Tennessee Department of
Commerce and Insurance to revoke the license of an insurance agent
after finding that he had repeatedly sold insurance policies in states
where he was not licensed.  The agent filed a petition for review in
the Chancery Court for Davidson County arguing that the licensing
statute was unconstitutionally vague and that the record did not
support the Department's decision.  The trial court found that the
record supported the Department's conclusion that the agent had sold
policies in states where he was not licensed but determined that the
agent's license should be suspended for six months rather than
revoked.  The Department appealed to this court.  We reverse the
judgment and reinstate the Department's revocation order.

http://www.tba.org/tba_files/TCA/mosleygary.wpd

STATE OF TENNESSEE v. MICHAEL L. WALLACE

Court:TCCA

Attorneys:                          

Martha J. Yoakum, District Public Defender; and Charles A. Herman,
Assistant District Public Defender, for the Appellant, Michael L.
Wallace.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Scarlett W. Ellis, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Michael L. Wallace appeals from his Campbell County Criminal Court
convictions of four counts of rape of a child and one count of
aggravated sexual battery.  He claims that his convictions are not
supported by sufficient evidence, that the lower court erred in
failing to grant a motion for judgment of acquittal on three of the
five counts, and that he should not have received a 90-year sentence. 
Because three of the defendant's five convictions are based upon
uncorroborated inculpatory statements, we reverse those convictions
and dismiss those charges.  In all other respects, we affirm.

http://www.tba.org/tba_files/TCCA/wallacemichaell.wpd

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