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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