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Howard Vogel
TBALink Editor in Chief

Today's Opinions: April 7, 2005
Volume 11 — Number 065
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.
02 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
02 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


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

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.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/cherokeecountryclub.wpd

MAYLENE E. LEDBETTER v. BRYAN K. LEDBETTER

Court:TSC

Attorneys:                          

Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Maylene
E. Ledbetter.

James M. Webster, Clinton, Tennessee, for the appellee, Bryan K.
Ledbetter.

Judge: BIRCH

First Paragraph:

In this interlocutory appeal, we must determine whether the trial
court had the authority to enforce a mediated marital dissolution
agreement when one of the parties repudiated its terms prior to court
approval.  Here, the parties, Maylene and Bryan Ledbetter, reached,
through mediation, a marital dissolution agreement pursuant to
Tennessee Supreme Court Rule 31.  Shortly after the mediation, and
prior to presentation for court approval, Mr. Ledbetter repudiated the
agreement.  Mrs. Ledbetter then filed a motion to enforce the terms of
the agreement.  Following a hearing, the trial court overruled Mrs.
Ledbetter's motion, ruling that the oral agreement reached in
mediation was not binding and enforceable against the parties.  After
a thorough review of the record and relevant case law, we conclude
that because Mr. Ledbetter repudiated the terms of the agreement prior
to its presentation to the court, the trial court lacked authority to
enter a judgment on the agreement.  Further, because the agreement had
not been reduced to writing and signed by the parties, it is not an
enforceable contract.  Accordingly, we affirm the judgment of the
trial court.

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

WILLIAM EDWARD HARGROVE v. MERRIELLEN HARGROVE 

Court:TCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, TN, for the appellant Merriellen
(Hargrove) Warstler

Michael U. King, Huntingdon, TN, for the appellee William Edward
Hargrove

Judge: KIRBY

First Paragraph:

This case is about post-divorce modification of child support.  At the
time of the parties' divorce, they adopted a permanent parenting plan
which designated the father as the primary residential parent of the
parties' son and the mother as the primary residential parent of the
parties' daughter.  Each had a child support obligation to the other,
which was offset with the father paying the difference to the mother. 
The daughter graduated from high school.  As a result, the father's
child support obligation to the mother was terminated, and the mother
was ordered to pay increased child support to the father for their
son.  The trial court also ordered the mother to reimburse the father
for the son's health insurance premiums and to pay the father's
attorney's fees.  The mother appeals, arguing that her child support
obligation could not be modified because the evidence did not indicate
a significant variance in the mother's income as required by Tennessee
law.  We affirm the ruling of the trial court as modified.

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

IN THE MATTER OF: THE ESTATE OF FRANCES E. MILAM, DECEASED

Court:TCA

Attorneys:                          

Joseph Michael Cook, Memphis, TN, for Appellants

G. Rice Byars, Jr., Roberta Nevil Kustoff, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves the construction of a holographic will. 
Following the decedent's death, two documents in her own handwriting
were found among her papers which the probate court admitted as her
holographic will.  The will contained devises of real and personal
property to named individuals and charities.  At her death, however,
the decedent owned property in excess of the devises made in her will.
 The executor filed three separate petitions to construe the
decedent's will.  The children of the decedent's sister argued that
the decedent died intestate as to the excess personal property and her
personal residence, which the decedent did not specifically devise in
her will.  The probate court held that the decedent's will contained a
residuary clause, therefore, all of the decedent's remaining assets
passed through the residuary clause to the individuals and charities
named in her will on a pro rata basis.  In addition, the probate court
held that the decedent died intestate as to her residence, which
passed to her sister's children by intestate succession.  We affirm in
part, reverse in part, and remand this case to the probate court for
further proceedings consistent with this opinion.

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

MIKE LITTLES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr.(on appeal); Gary F. Antrican, District Public
Defender and Julie K. Pillow, Assistant Public Defender (counsel at
trial and of counsel on appeal), for the appellant, Mike Littles.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Mike Littles, appeals the trial court's denial of his
petition for post-conviction relief.   The sole issue presented for
review is whether the petitioner entered an involuntary plea due to
ineffective assistance of counsel at trial.  After reviewing the
matter, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. RODNEY SOUTHERS

Court:TCCA

Attorneys:                          

Mike A. Little, Chattanooga, Tennessee, for the appellant, Rodney
Southers.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; and Boyd Patterson, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Rodney Southers, originally charged with aggravated
robbery, was convicted of robbery.  The trial court imposed a Range I,
six-year sentence.  In this appeal, the defendant asserts (1) that the
trial court erred by refusing to suppress his pretrial statement and
(2) that the trial court erred by denying his request for a special
jury instruction.  The judgment of the trial court is affirmed

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

Petitioning for Additional Personnel

Date: April 5, 2005

Opinion Number: 05-042

http://www.tba.org/tba_files/AG/2005/op42.pdf

Authority of Municipal Legislative Body to Extend Its Members' Terms

Date: April 5, 2005

Opinion Number: 05-043

http://www.tba.org/tba_files/AG/2005/op43.pdf

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