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Today's Opinions: December 16, 2004
Volume 10 — Number 241
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.
04 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
05 New Opinion(s) from the Tennessee Court of Appeals
00 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


TORIAN BENSON a.k.a. MARCUS TERRY a.k.a. MARCUS BENSON v. STATE OF
TENNESSEE

Court:TSC

Attorneys:                          

Ronald D. Krelstein, Germantown, Tennessee, for the appellant, Torian
Benson.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; and J. Ross Dyer, Assistant Attorney General, for
the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

This case comes before us on petitions for habeas corpus relief. 
Although several arguments are raised on appeal, the dispositive issue
presented is whether the petitioner is "imprisoned or restrained of
liberty" by the challenged judgments and thus eligible to seek habeas
corpus relief, when the petitioner's sentences expired prior to filing
for relief.  We hold that he is not.  The petitioner was convicted of
numerous criminal offenses from 1986 to 1993.  In 2002, the petitioner
filed three pro se habeas corpus petitions challenging the validity of
these convictions.  The trial court dismissed the petitions.  Upon
appeal to the Court of Criminal Appeals, the dismissal of the
petitions was affirmed.  In addition to affirming the trial court's
initial findings, the intermediate court also held that the petitioner
was ineligible for habeas corpus relief because he was currently
incarcerated on unrelated charges and thus had no standing to claim he
was being illegally restrained by the challenged convictions.  For the
reasons stated herein, we affirm the judgment of the Court of Criminal
Appeals.  Applying the rule recently announced in Hickman v. State, --
S.W.3d -- (Tenn. 2004), we hold that the petitioner is not currently
"imprisoned or restrained of liberty" by the challenged convictions
because they expired prior to his filing for relief; therefore, he is
not entitled to habeas corpus relief.

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

TOWN OF NOLENSVILLE v. RONALD M. KING

Court:TSC

Attorneys:                          

John E. Herbison, Nashville, Tennessee, for the appellant, Ronald M.
King.

Robert J. Notestine III, Nashville, Tennessee, for the appellee, Town
of Nolensville.

George E. Barrett and Gerald E. Martin, Nashville, Tennessee, for
Amicus Curiae, Tennessee Municipal League.

Judge: BARKER

First Paragraph:

The issue presented in this case is whether a fine imposed by a
municipal court judge in violation of Article VI, section 14 of the
Tennessee Constitution, which prohibits the laying of fines in excess
of fifty dollars unless assessed by a jury, is nevertheless
constitutionally permissible if the person so fined has a right to a
de novo appeal and jury trial in a higher court.  We hold that it is
not.  After concluding that this issue had been left unresolved by
this Court's prior decisions, the Court of Appeals held that the right
to a de novo appeal and jury trial in circuit court satisfied the
constitutional requirements of Article VI, section 14.  We
respectfully disagree.  We conclude that our decision in City of
Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001), in which we held
that Article VI, section 14 was applicable to proceedings for
violations of municipal ordinances, compels a contrary result. 
Accordingly, we hold that Article VI, section 14 of the Tennessee
Constitution prohibits a municipal court judge from imposing fines in
excess of fifty dollars for the violation of a municipal ordinance,
irrespective of any right afforded the defendant to obtain a jury
trial upon appeal to a higher court.  Therefore, for the reasons
stated herein, the judgment of the Court of Appeals is reversed.

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

DENNY LEE RHODES  v.  CAPITAL CITY INSURANCE COMPANY AND JAMES FARMER,
DIRECTOR, DEPARTMENT OF LABOR, SECOND INJURY FUND

Court:TSC

Attorneys:                          

Ricky L. Boren and Jeffrey P. Boyd, Jackson, Tennessee, for the
appellant, Denny Lee Rhodes.

David J. Deming and Michael L. Haynie, Nashville, Tennessee, for the
appellee, Capital City Insurance Company.

Paul G. Summers, Attorney General and Reporter; and Richard M.
Murrell, Assistant Attorney General, for appellee, Second Injury Fund.

Judge: BARKER

First Paragraph:

The issue in this case is whether an award of permanent total
disability should commence when the employee reaches maximum medical
improvement or on the last day that the employee is able to work due
to the injury.  The trial judge ordered permanent total benefits to be
paid as of the day the employee last worked.  The employee appealed,
arguing that he was totally disabled from the time that he reached
maximum medical improvement, and because he was only able to work in a
limited capacity thereafter, he should be able to collect benefits for
the period between his reaching maximum medical improvement and the
time he ultimately stopped work.  Because the employee was working
during the three years at issue and because there was no evidence
presented that he was unemployable in the general workforce, the
evidence supports the trial court's decision that he did not meet the
statutory definition of permanent total disability until he stopped
work.

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

XI PROPERTIES, INC., LARRY W. NICHOLS, and JIMMY C. STOUT v. RACETRAC
PETROLEUM, INC.

Court:TSC

Attorneys:                          

Todd A. Rose, Paris, Tennessee, and John E. Acuff, Cookeville,
Tennessee, for the appellant, RaceTrac Petroleum, Inc.

Peter H. Curry, Nashville, Tennessee, for the appellees, XI
Properties, Inc., Larry W. Nichols, and Jimmy C. Stout.

Judge: BARKER

First Paragraph:

We granted this appeal to address whether a landowner has a duty to
provide lateral support to adjoining land that has been altered from
its natural state.  In a case of first impression for this Court, we
hold that no such duty is owed.  We conclude that the duty to provide
lateral support encompasses only the naturally necessary support of
adjoining land in its natural state. The trial court granted
plaintiffs' motion for summary judgment on this issue, concluding, as
do we, that the duty to provide lateral support did not extend to
adjoining land that had been altered or improved.  Therefore, as both
the plaintiffs' and defendant's property in question had been altered
from its natural state, the trial court concluded that the plaintiffs
had no duty to replace the lateral support of the improved portion of
the defendant's property when the plaintiffs made excavations.  The
Court of Appeals affirmed but further held that the plaintiffs could
not negligently excavate the property.  We granted permission to
appeal in order to clarify the law on this issue.  For the reasons
stated herein, the judgment of the Court of Appeals is affirmed.

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

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. D.H.H.

Court:TCA

Attorneys:                          

Brian J. Hunt, Clinton, Tennessee, for the Appellant, D.H.H.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C.
Driver, Assistant Attorney General, Nashville, Tennessee, for the
Appellee, State of Tennessee Department of Children's Services.

Judge: LEE

First Paragraph:

The issue in this case is whether the trial court erred in terminating
the parental rights of the biological father of a minor child. We find
that sufficient grounds for termination of parental rights were
established under Tenn. Code Ann. S 36-1-113(g)(4) in that a prior
order of the trial court includes a finding that the father engaged in
severe abuse of the child. Upon these grounds and the trial court's
further finding that termination of the father's parental rights is in
the child's best interest, we affirm the judgment of the trial court
and remand.

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

ARVELL EZELL, ET AL. v. ALVIN E. DUNCAN, ET AL.

Court:TCA

Attorneys:                          

Bobby A. McGee, Linden, Tennessee, for the appellants Alvin E. Duncan
and Wife, Hazel Duncan.

Douglas Thompson Bates, III, Centerville, Tennessee, for the
appellees, Arvell Ezell and Lance Duncan.

Judge: COTTRELL

First Paragraph:

This appeal involves a boundary line dispute between neighbors.  The
trial court found in favor of the plaintiffs' boundary line
description, and defendants appeal.  We affirm the decision of the
trial court.

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

RICHARD and FAYE ANDERSON, JIMMY B. AND JUDY PHILLIPS, JAMES AND MARY
LOU KRAUSE v. AMERICAN LIMESTONE COMPANY, INC., HYDER CONSTRUCTION
COMPANY, INC., AND CONSTRUCTION AND PAVING SERVICES, INC.

Court:TCA

Attorneys:                          

Thomas C. Jessee, Jessee & Jessee, Johnson City, Tennessee for the
Appellants.

Ronald S. Range, Jr., Jennifer P. Keller, Baker, Donelson, Bearman,
Caldwell & Berkowitz, Johnson City, Tennessee and Gary C. Shockley,
Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville, Tennessee
for Appellee, American Limestone Company.

Steven C. Rose, West & Rose, Kingsport, Tennessee, Lanny R. Norris,
Norris, Bush & Byrd, Elizabethton, Tennessee, and Richard Norris,
LaPorte & Norris, Elizabethton, Tennessee for Appellees, Hyder
Construction Company, Inc. and Construction and Paving Services, Inc.

Judge: PEOPLES

First Paragraph:

Appellants appeal (1) a jury determination that a rock quarry, an
asphalt plant, and trucking activities did not create a nuisance and
(2) the allowance of discretionary costs.   We affirm.

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

STATE EX REL. JUANITA WILLIAMS, ET AL. v. TOWN OF MIDTOWN, ET 

Court:TCA

Attorneys:                          

Gerald Largen, Kingston, Tennessee, for the Appellant, Town of
Midtown, Tennessee.

John McFarland, Kingston, Tennessee, for the Appellees, State of
Tennessee ex rel. Juanita Williams, et al.

Paul G. Summers, Michael E. Moore, and Ann Louise Vix, Nashville,
Tennessee, for the Appellee, Tennessee Attorney General and  Reporter.

Judge: LEE

First Paragraph:

The issue in this case is the constitutionality of Tenn. Code Ann. S
6-1-201 which sets population and distance limitations on the
incorporation of cities. The town of Midtown, Tennessee claims the
statute deprives it of equal protection of the laws guaranteed by the
United States Constitution and Article XI, Section 8 of the Tennessee
Constitution.  The Chancellor granted the Tennessee Attorney General's
motion to dismiss Midtown's counter-complaint under Tenn. R.Civ.P.
12.02(6) for failure to state a claim upon which relief can be
granted. We hold that the statue is constitutional and affirm the
judgment of the trial court.

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

THELMA WILLIAMS v. JEFF TROYER, ET AL.

Court:TCA

Attorneys:                          

Trippe S. Fried, Nashville, Tennessee, for the appellants, Jeff and
Sherry Troyer.

Scott C. Williams and Stephanie S. Maxwell, Columbia, Tennessee, for
the appellee, Thelma Williams.

Judge: CLEMENT

First Paragraph:

Plaintiff filed suit asserting that she was the owner by adverse
possession of four acres of farmland in Maury County.  Defendants, who
purchased adjoining property in 2001, assert that they are by deed the
true and rightful owners of the disputed parcel.  The trial court
ruled that Plaintiff was the owner of  the property by adverse
possession based on a finding that she and her predecessors in
interest had possessed the property visibly, exclusively, actually,
continuously, openly, and notoriously for twenty years.  We affirm.

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

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