Today's Opinions: December 28, 2004
Volume 10 — Number 247
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.
00 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
02 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


JERRY BIGGS v. REINSMAN EQUESTRIAN PRODUCTS, INC.

Court:TCA

Attorneys:                          

Michael A. Anderson, Chattanooga, Tennessee, for Appellant.

Charles D. Lawson, Chattanooga, Tennessee, for Appellee

Judge: FRANKS

First Paragraph:

Plaintiff sued for breach of employment contract.  The Trial Court
found a breach and awarded damages.  On appeal we hold the employer
had just cause to terminate, and reverse Judgment.

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

JULIA V. LEE and ROBERT JOE LEE v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Ronald C. Leadbetter, Knoxville, Tennessee, for Appellant.

Charles C. Burks, Knoxville, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

The Commissioner entered Judgment for plaintiffs and defendant has
appealed.  Defendant failed to perfect its appeal by not filing a
timely notice of appeal.

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

ROBERT STEWART SHOFNER v. ANN MARGARET KALISZ SHOFNER

Court:TCA

Attorneys:                          

John E. Herbison, Nashville, Tennessee, for the appellant, Ann
Margaret Kalisz Shofner.

John J. Hollins, Sr., and James L. Weatherly, Jr., Nashville,
Tennessee, for the appellee, Robert Stewart Shofner.

Judge: KOCH

First Paragraph:

This appeal involves an acrimonious dispute over the custody of three
children between the ages of eight and twelve.  Following a
contentious ten-year marriage, the children's parents both sought a
divorce and custody of the children in the Circuit Court for Davidson
County.  The trial judge originally assigned to the case devised a
temporary parenting plan that placed the eldest child with his mother
and the two youngest children with their father.  Thereafter the
original trial judge disqualified herself, and the case was assigned
to a new trial judge.  The newly assigned trial judge declined to
revisit her predecessor's custody and support order and eventually
entered a final decree (1) declaring the parents divorced in
accordance with Tenn. Code Ann. S 36-4-129(b) (2001), (2) approving
the parent's marital dissolution agreement, and (3) making the
temporary parenting plan permanent.  On this appeal, the mother takes
issue with the decision to designate the father the primary
residential parent of the two youngest children.  We have determined
that the successor trial judge erred by (1) failing to comply with the
requirements of Tenn. R. Civ. P. 63 after the case was reassigned, (2)
declining to consider the pending post-trial motions, and (3) refusing
to permit the mother to make an offer of proof regarding the
circumstances of the children.  Despite these serious procedural
errors, we have conducted our own independent review of the record and
have determined that it contains no factual or legal basis for
overturning the parenting plan at this time.

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

LISA KAREN STOWERS SMITH v. MARK EDWARD SMITH

Court:TCA

Attorneys:                          

Roger E. Jenne, Cleveland, Tennessee, for the appellant, Mark Edward
Smith.

B. Prince Miller, Jr., Cleveland, Tennessee, for the appellee, Lisa
Karen Stowers Hoffer, formerly Smith.

Judge: SUSANO

First Paragraph:

Lisa Karen Stowers Hoffer, formerly Smith ("Mother"), filed a petition
against her former husband, Mark Edward Smith ("Father"), seeking to
modify the provisions of the parties' judgment of divorce, which
judgment required Father to pay $1,200 per month in child support. 
The trial court, finding that, in the most recent three years, Father
had had an average annual income of $117,238, held that there had been
a substantial and material change in circumstances justifying an order
requiring Father to pay child support of $2,803 per month.  Father
appeals, arguing that the trial court erred in its calculation of his
income.  We affirm in part and vacate in part.

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

STATE OF TENNESSEE, ET AL. v. 1998 DELINQUENT TAXPAYERS

Court:TCA

Attorneys:                          

Terry L. McGhehey, Chattanooga, Tennessee, for the appellant, State of
Tennessee, in its own behalf and for the use and benefit of Hamilton
County, Town of East Ridge, Lookout Mountain, Ridgeside, Red Bank,
Lakesite, Soddy Daisy, Collegedale, and Walden, Tennessee.

Hallie H. McFadden, Chattanooga, Tennessee, for the appellees, Carlton
J. Ditto and Positive Impact, Inc.

Judge: SUSANO

First Paragraph:

This appeal stems from an action filed by the State of Tennessee, in
its own behalf and for the use and benefit of Hamilton County and
certain municipalities ("the state"), against property owners
(collectively "the defendants") who had not paid their 1998 real
estate taxes.  Following the entry of a default judgment as to certain
property, a delinquent tax sale was conducted at which Carlton Ditto
and Positive Impact, Inc. ("the purchasers") bought a parcel of land. 
The purchase, however, was subsequently voided because the Hamilton
County Property Assessor ("the Property Assessor") inadvertently
reflected someone other than the true owner on its property rolls.  As
a consequence of this mistake, the true owner of the property was
never made a party to the delinquent tax suit.  The purchasers sought
compensation for interest on the bid amount and the cost of recording
the decree of sale.  The purchasers also sought damages for the
state's negligence.  The trial court awarded interest on the bid
amount and the cost of recording the decree, but refused to award
damages for negligence.  The state appeals.  We affirm.

http://www.tba.org/tba_files/TCA/taxpyrs98.wpd

LACONIA LAMAR BOWERS V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Laconia
Lamar Bowers.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Randall E. Nichols, District
Attorney General; and Philip H. Morton, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Laconia Lamar Bowers, was convicted by a jury of
second degree murder.  The conviction was affirmed on direct appeal,
see State v. Laconia Lamar Bowers, No. E1999-00170-CCA-R3-CD, 2000 WL
15020 (Tenn. Crim. App. at Knoxville, Jan. 11, 2000), and on appeal to
the Supreme Court of Tennessee.  See State v. Ely, 48 S.W.3d 710
(Tenn. 2001).  The petitioner now seeks post-conviction relief on the
basis of ineffective assistance of counsel.  For the following
reasons, we affirm the post-conviction court's dismissal of the
post-conviction petition.

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

STATE OF TENNESSEE v. LESLIE CARL CLARK

Court:TCCA

Attorneys:                          

Danny Hill, Chattanooga, Tennessee, for the appellant, Leslie Carl
Clark.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Rodney C. Strong, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Leslie Carl Clark, pled guilty to driving on a revoked
license, violation of the implied consent law and driving under the
influence of an intoxicant.  Sentencing was left to the discretion of
the trial court.  After a sentencing hearing, the trial court ordered
the Defendant to serve eleven months and twenty-nine days for each
offense, said sentences to be served concurrently in the local
workhouse.  It is from this order that the Defendant appeals.  We
affirm the judgments of the trial court.

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

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