2nd Annual Intellectual Property Law Forum
Presented by the TBA Intellectual Property Law Section.

April 28, 29 - Tennessee Bar Center, Nashville

The program begins April 28 with afternoon presentations on the basics
of intellectual property law. On April 29, a panel of speakers —
including the Hon. David Sams, Chief Judge of the Trademark Trial and
Appeal Board — will address a wide range of advanced topics, primarily
geared to the intellectual property specialist. Ten hours of CLE
credit (including one hour of ethics) will be provided for those who
attend the entire forum. For anyone with an interest in this dynamic
area, it is not an event to be missed.


Today's Opinions: March 28, 2005
Volume 11 — Number 057
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
06 New Opinion(s) from the Tennessee Court of Appeals
07 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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


IN RE: ESTATE OF EDDIEHUE MORRIS BRANCH, DECEASED

Court:TCA

Attorneys:                          

Jeffrey Jones, Bartlett, TN, for Appellants

Rex L. Brasher, Jr., Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case arises out of a will contest filed by Appellants.  At trial,
Appellants alleged that Appellee unduly influenced Decedent and that
Decedent's Last Will and Testament is a product of that undue
influence rendering the Will invalid.  After a hearing, the trial
court determined that Decedent's Will was not the product of undue
influence and dismissed the will contest.  Appellants now seek review
by this Court, and, for the following reasons, we affirm.

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

KATHY BROWN, ET AL. v. CLINT SEAL, ET AL.

Court:TCA

Attorneys:                          

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellants Kathy
Brown, Deanna Trent, Rodney Seal, Norman Seal, Tener Clemons, Louise
Welch, and Dennis Davis.

Floyd W. Rhea, Sneedville, Tennessee, for the Appellees Clint Seal,
Tony H. Seal, and Patricia G. Seal.

Judge: SWINEY

First Paragraph:

In the 1940's, Tyler Seal received a life estate interest in a parcel
of land with the remainder going to his heirs at law upon his death. 
In 1968, Tyler Seal conveyed his interest in the property to his
brother, Clint Seal, via a deed which purported to convey a fee simple
interest.  This deed was not recorded until 1991.  Tyler Seal passed
away in March of 1996.  Clint Seal deeded the property in fee simple
to his son and daughter-in-law, Tony and Patricia Seal, the following
year.  This lawsuit was filed by various persons claiming an interest
in the land because they were remaindermen pursuant to the will which
originally conveyed the life estate to Tyler Seal.  Suit was brought
against Clint Seal as well as Tony and Patricia Seal ("Defendants"). 
Defendants claimed they were the rightful record owners of the
property or, alternatively, that they were entitled to ownership of
the property based on adverse possession.  The Trial Court concluded
Defendants were entitled to ownership of the property because they had
adversely possessed the property for the requisite number of years and
further that Plaintiffs' seven year statute of limitations to file
suit had expired.  We reverse.

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

LORENZO CHILDRESS, JR., d/b/a SOUTHGATE MEDICAL GROUP v. UNION REALTY
COMPANY, LTD.

Court:TCA

Attorneys:                          

R. Douglas Hanson, Memphis, TN, for Appellant

Bruce D. Brooke, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises out of an action for damages by a commercial tenant
against a landlord.  After a jury awarded the appellee the sum of
$168,000 in damages, the appellee sought pre-judgment interest,
post-judgment interest, and attorney's fees.  The trial court awarded
the appellee pre-judgment and post-judgment interest calculated on the
entire award of damages but denied the appellee's request for an award
of attorney's fees.  The appellant seeks review of the award of
pre-judgment and post-judgment interest, and the appellee cross
appeals, seeking review of the trial court's denial of attorney's
fees.  For the following reasons, we affirm and remand for any further
proceedings consistent with this opinion.

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

KEVIN EASLEY v. LARRY C. BAKER AND GARY H. BAKER d/b/a LEGEND'S BAR
AND GRILL

Court:TCA

Attorneys:                          

Tusca R.S. Alexis and Luvell L. Glanton, Nashville, Tennessee,
attorneys for the appellant, Kevin Easley.

Randolph A. Veazey, Nashville, Tennessee, attorney for the appellees,
Larry C. Baker and Gary H. Baker d/b/a Legend's Bar and Grill.

Judge: CAIIN

First Paragraph:

The unsuccessful Plaintiff, Kevin Easley, appeals the trial court's
grant of summary judgment in favor of Larry G. and Gary H. Baker,
d/b/a Legend's Bar and Grill.  On appeal, Easley argues that the
record presents a genuine issue of fact on the question of whether
Defendants provided adequate notice of a dangerous condition.  We
affirm the trial court.

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

DONNA MULHERN v. PULTE HOMES

Court:TCA

Attorneys:                          

Malcolm L. McCune and Michael D. Hornback of Nashville for Appellant,
Donna Mulhern

Carol M. Hayden of Memphis for Appellee, Pulte Homes

Judge: CRAWFORD

First Paragraph:

Appellant/Homeowner appeals from the trial court's grant of summary
judgment in favor of Appellee/Homebuilder.  Appellant/Homeowner sued
Appellee/Homebuilder on theories of faulty installation and
construction of Appellant/Homeowner's roof and under the Tennessee
Consumer Protection Act.  The trial court found that
Appellant/Homeowner's claims were time barred under both T.C.A.
S28-3-202 and T.C.A. S47-18-110.  We affirm.

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

BRETT W. WOODROOF v. NATHAN E. FISHER, ET AL.

Court:TCA

Attorneys:                          

Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Brett W.
Woodroof.

Mark D. Harris, Kingsport, Tennessee, and Phillip Larry Boyd,
Rogersville, Tennessee, for the Appellee, Nathan E. Fisher.

Paul R. Wohlford, Bristol, Tennessee, for Intervening Petitioners,
Robert R. Barnett and Carolyn Kay Barnett.

Polly A. Peterson, Johnson City, Tennessee, guardian ad litem for
Taylor Leigh Fisher.

Judge: LEE

First Paragraph:

This appeal involves a dispute between the biological father, Brett W.
Woodroof, who filed a petition to establish paternity of the nine year
old child, Taylor Leigh Fisher, and the stepfather, Nathan E. Fisher,
with whom the child has lived since she was two years old.  The trial
court determined that Mr. Woodroof was the natural father and awarded
him visitation rights, but did not award him custody.  A review of the
record indicates that Mr. Woodroof asked for custody initially in his
petition to determine parentage, but subsequently withdrew his request
in his amended petition, and repeatedly advised the court throughout
the lengthy court proceedings that spanned sixteen months that he
sought only visitation with the child, and not custody.  Mr. Woodroof
requested custody only at the end of the trial process, after the
testimony of the medical experts and other persons had been presented,
and after numerous assertions in court that he was not presently
seeking custody.  We hold that his request for custody came too late
and therefore we affirm the judgment of the trial court and remand for
further action consistent with this opinion.

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

STATE OF TENNESSEE v. GUSTAVO CHAVEZ
DISSENTING OPINION

Court:TCCA

Judge: HAYES

First Paragraph:

The majority concludes that modification of the defendant's sentence
is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct.
2531 (2004).  I must respectfully dissent. Any sentencing challenge
available to the defendant under Blakely is now waived because the
defendant did not object at trial to what he now contends is a
constitutionally invalid sentencing scheme.  See Tenn. R. App. P.
36(a).  Our rules of appellate procedure provide that an issue may not
be raised for the first time on appeal.  Tenn. R. App. P. 36(a).  I
see no valid reason to carve out an Apprendi/Blakely exception to this
established rule.  In United States v. Cotton, 535 U.S. 625, 631-34,
122 S. Ct. 1781, 1785-87 (2002), the Supreme Court held, after its
decision in Apprendi, that the defendant's claim of right to a trial
and finding by a jury on a fact used to enhance the defendant's
sentence was forfeited because it was not raised at trial. Similarly,
I find the Supreme Court's ruling in Cotton applicable to the review
of Blakely claims raised on appeal in this State

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/chavezgustavo_dis.wpd

STATE OF TENNESSEE v. KEVIN DEWITT FORD AND CLIFFORD SYLVESTER WRIGHT

Court:TCCA

Attorneys:                          

Peter J. Strianse, Nashville, Tennessee, for the appellant, Keven
Dewitt Ford.

Michael H. Sneed (at trial and on appeal) and Ron Munkeboe (at trial),
Nashville, Tennessee, for the appellant, Clifford Sylvester Wright.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Sharon Brox and James Todd, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellants, Kevin Dewitt Ford and Clifford Sylvester Wright, each
pled guilty in the Davidson County Criminal Court to multiple counts
of aggravated robbery.  Appellant Ford received a total effective
sentence of fifty years incarceration in the Tennessee Department of
Correction.  Appellant Wright received a total effective sentence of
forty-five years incarceration.  As a condition of their pleas, the
appellants attempted to reserve certified questions of law concerning
the trial court's ruling on their motions to suppress.  Upon review of
the record and the parties' briefs, we conclude that Appellant Wright
failed to properly reserve a certified question of law.  Additionally,
we conclude that the trial court properly denied Appellant Ford's
motions to suppress.  Therefore, we affirm the judgments of the trial
court.

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

STATE OF TENNESSEE v. MIGUEL GARCIA

Court:TCCA

Attorneys:                          

Greg W. Eichelman, District Public Defender, and Ethel P. Rhoades,
Assistant Public Defender, for the appellant, Miguel Garcia.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; Jonathan Holcomb, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Hamblen County Criminal Court Jury convicted the defendant, Miguel
Garcia, of possession of more than three hundred grams of cocaine with
the intent to deliver, a Class A felony, and the trial court sentenced
him as a Range I, standard offender to twenty-two years in the
Department of Correction.  The defendant appeals, claiming that the
trial court erred in denying his motion to suppress and that his
sentence is excessive.  We affirm the defendant's judgment of
conviction, but we modify his sentence under the rule announced in
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), from
twenty-two years to twenty years.

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

STATE OF TENNESSEE v. STEVEN NELORN HAMPTON, JR.

Court:TCCA

Attorneys:                          

John H. Richardson, Jr., Fayetteville, Tennessee, for the appellant,
Steven Nelorn Hampton, Jr.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, Steven Nelorn Hampton, Jr., was
found guilty in count one of especially aggravated robbery, a Class A
felony, and in count two of burglary of an automobile, a Class E
felony.  The trial court sentenced Defendant to concurrent sentences
of twenty years for the especially aggravated robbery conviction and
one year for the burglary conviction.  Following a hearing on
Defendant's motion for new trial, the trial court, acting in its
capacity as thirteenth juror, found that the jury's verdict of guilty
on the automobile burglary charge was contrary to the weight of the
evidence and set aside Defendant's conviction for this offense.  The
trial court denied Defendant's motion for a new trial on the
especially aggravated robbery conviction.  On appeal, Defendant
challenges the sufficiency of the evidence supporting his conviction
of especially aggravated robbery and the length of his sentence. 
After a review of the record in this matter, we affirm the judgment of
the trial court.

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

FRANKIE DONALD RELEFORD v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Gene Scott, Jr., Johnson City, Tennessee, Attorney for the Appellant,
Frankie Donald Releford.

Paul G. Summers, Attorney General and Reporter; Michalle Chapman
McIntire, Assistant Attorney General; and Joseph E. Perrin, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Frankie Donald Releford, appeals the judgment of the
Sullivan County Criminal Court denying his petition for
post-conviction relief.  On appeal, Releford argues that he was denied
the effective assistance of counsel at trial and that the
post-conviction court erred in allowing trial counsel to remain in the
courtroom during the post-conviction proceeding.  After review of the
record, we affirm the denial of post-conviction relief.

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

STATE OF TENNESSEE v. JONES EVERETT TRAVIS

Court:TCCA

Attorneys:                          

Steven E. Farese, Sr., Ashland, Mississippi, for the appellant, Jones
Everett Travis.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant
Attorney General; Robert  Radford, District Attorney General; and John
W. Overton, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Jones Everett Travis, was indicted for Adult Driving
While Impaired.  On January 15, 2004, the defendant was to enter a
nolo contendere plea to that charge when the district attorney's
office served notice of an Implied Consent Law violation.  The parties
agreed to a continuance on the Implied Consent Law violation and the
defendant's nolo contendere plea was entered.  On February 10, 2004,
the trial court held a hearing on the Implied Consent Law violation. 
The trial court first denied the defendant's motion to dismiss the
proceeding due to insufficient notice at the conclusion of the
hearing.  The trial court suspended the defendant's driver's license. 
The defendant now appeals this decision arguing that he was given
insufficient notice that the district attorney's office was going to
allege an Implied Consent Law violation.  We affirm the decision of
the trial court.

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

DANNY WORTHINGTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kenneth F. Irvine, Jr. and John H. Rion, Attorneys for the Appellant,
Danny Worthington.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; John W. Galloway, Jr., Assistant District
Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Danny Worthington, appeals the judgment of the Scott
County Criminal Court denying post-conviction relief.  On appeal,
Worthington argues that trial counsel was ineffective for providing
erroneous advice and, as a result, his guilty plea was not knowingly
and voluntarily entered.  After review, the judgment of the
post-conviction court is affirmed.

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

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