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Today's Opinions: June 28, 2005
Volume 11 — Number 122
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.
01 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
04 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. 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


JAMES L. MILLIGAN, Jr. v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE
SUPREME COURT OF TENNESSEE

Court:TSC

Attorneys:                          

William Walter Hunt, III, Nashville, Tennessee, for the appellant,
Board of Professional Responsibility.

Stephen W. Gibson and Ronald L. Grimm, Knoxville, Tennessee, for the
appellee, James L. Milligan, Jr.

Judge: BIRCH

First Paragraph:

Pursuant to the provisions of Tennessee Supreme Court Rule 9, section
1.3, the Tennessee Board of Professional Responsibility ("the Board")
appeals from an order of the Chancery Court for Knox County imposing
the sanction of public censure upon James L. Milligan, Jr., Esq.
("Milligan"). The Board contends that the Chancery Court erred in
concluding that: (1) Milligan did not misappropriate funds; (2) Milligan's use of a
client's funds for personal purposes was not a serious violation; and
(3) public censure is the appropriate sanction. Because we conclude
that Milligan did misappropriate funds and did otherwise conduct
himself in a manner inconsistent with the Rules of Professional
Conduct, as will be hereinafter detailed, we have determined that
suspension for a period of two years is appropriate.

http://www.tba.org/tba_files/TSC/2005/milliganj62805.pdf

GENUINE AUTO PARTS COMPANY v. CONVENIENT CAR CARE, INC., DAN BABB
ENTERPRISES, INC., AND DAN BABB, INDIVIDUALLY

Court:TCA

Attorneys:                          

Joseph E. Garrett, Memphis, Tennessee, for the appellant, Dann Babb.

Larry E. Killebrew, Memphis, Tennessee, for the appellee, Genuine Auto
Parts Company.

Judge: KIRBY

First Paragraph:

This is a collection action.  The defendant corporation owned an
automotive repair shop.  In order to obtain a line of credit to
purchase automobile parts from the plaintiff auto parts supply
company, the sole shareholder of the defendant corporation signed a
personal guaranty.  After the corporation had incurred about $20,000
on its line of credit, the plaintiff supply company filed this lawsuit
against the corporation and the individual shareholder to recover that
debt.  The shareholder argued that, before the debt was incurred, he
sold the business to a third party and canceled his personal guaranty
on the debt of the corporation.  The trial court rejected that
argument and entered a judgment in favor of the plaintiff against both
the corporation and the shareholder.  The shareholder now appeals.  We
affirm, concluding that holding the shareholder liable for the debt of
the corporation is appropriate under these circumstances, regardless
of whether his personal guaranty remained intact.

http://www.tba.org/tba_files/TCA/2005/genuineap62805.pdf

ESTATE OF CHARLES THOMAS MCCRAW, Deceased v. JOAN LIKINS

Court:TCA

Attorneys:                          

Thomas M. Minor, Somerville, for petitioner/appellant Estate of
Charles Thomas McCraw, deceased, Beverly McCraw, Executrix

Lee S. Saunders, Somerville, for respondent JoAn Likins

Judge: KIRBY

First Paragraph:

This case involves codicils to a will. The decedent died testate. His
will included one typed codicil and two handwritten codicils. The
typed codicil, pursuant to a marital dissolution agreement, granted
the decedent's former spouse a life estate in his real property with
the remainder to their children, and devised all of the personal
property to the children as well. The decedent later handwrote two
codicils addressing the disposition of certain personal property and
debts. After his death, the devisee under the handwritten codicils
intervened in the probate proceedings to enforce the codicils. The
trial court ruled that the handwritten codicil addressing the personal
property violated the marital dissolution agreement and was therefore
invalid. It held that the codicil addressing the debt did not violate
the marital dissolution agreement and that the estate should pay for
the debt, as set forth in the codicil. Other matters remained
outstanding, and the trial court, under Tennessee Rules of Civil
Procedure 54.02, made the order final. Because the outstanding matters
could render this Court's ruling moot, we find that the order was
improvidently made final and dismiss the appeal. Tenn. R. App. P. 3
Appeal as of Right; Appeal is Dismissed and Cause is Remanded


http://www.tba.org/tba_files/TCA/2005/mccrawc62805.pdf

IN RE ESTATE OF LEVESTA MEASLES, DECEASED

Court:TCA

Attorneys:                          

Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellant, Estate
of Levesta Measles. Dale Bohannon, Cookeville, Tennessee, for the
appellees, Lee Roy Shofner and Josie Shofner.

Judge: KIRBY

First Paragraph:

This is a claim against an estate for personal services rendered to
the decedent. The decedent's stepson and his wife provided personal
services to the decedent for several years prior to her death. The
decedent died intestate, leaving no issue. The decedent's nephew was
appointed as administrator of the decedent's estate. The stepson and
his wife filed claims against the estate on the theory of implied or
quasi contract, seeking reimbursement for the expenses incurred in
providing the personal services for the decedent. The decedent's
estate filed an exception to those claims. After a hearing, the trial
court granted a portion of the stepson's and his wife's claims for
personal services, finding that an implied contract existed with the
decedent as to those items. The estate now appeals. We reverse,
finding that the evidence preponderates against the trial court's
finding of an implied contract between the decedent and the claimants
that the claimants would be paid for their services at the time the
services were rendered.

http://www.tba.org/tba_files/TCA/2005/measlesl62805.pdf

DAVID LESLIE MITCHELL v. CATHY RENAE MITCHELL

Court:TCA

Attorneys:                          

Clark L. Shaw, Nashville, Tennessee, and Steven Qualls, Cookeville,
Tennessee, for the appellant, Cathy Renae Mitchell.

Rankin P. Bennett, Cookeville, Tennessee, for the appellee, David
Leslie Mitchell.

Judge: CLEMENT

First Paragraph:

Cathy Mitchell, mother and primary residential parent for the parties'
nine-year-old child, seeks to relocate with the child to California.
Her stated reasons are to live with her new husband and to be near his
family, to seek a better job and better education for herself and her
child. The father, David Mitchell, opposes the move. The mother spends
substantially more time with the child and thus Tenn. Code Ann. S
36-6-108(d) applies. The trial court held there was no reasonable
purpose for moving to California, such a move would pose a threat of
specific and serious harm to the child, and the move was not in the
child's best interest. Therefore, it denied the requested relocation.
Mother appealed. Finding no error, we affirm.

http://www.tba.org/tba_files/TCA/2005/mitchelld62805.pdf

STATE OF TENNESSEE v. DAVID WAYNE FOUNTAIN

Court:TCCA

Attorneys:                          

Larry G. Roddy, Sale Creek, Tennessee, for the Appellant, David Wayne
Fountain.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Jim Pope, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, David Wayne Fountain, appeals from the Rhea County
Circuit Court's revocation of his probation.  Because the record
supports the revocation of probation, we affirm the revocation;
however, to avoid a length of confinement that exceeds the defendant's
release eligibility as a Range I offender, we modify the
post-revocation terms of the manner of service of the defendant's
two-year sentence.

http://www.tba.org/tba_files/TCCA/2005/fountaind62805.pdf

ARCHIE L. MILLER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Raymond C. Conklin, Jr., Kingsport, Tennessee, for the Appellant,
Archie L. Miller.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and J. Lewis Combs, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Archie L. Miller, appeals the Sullivan County Criminal
Court's dismissal of his petition for post-conviction relief in which
he challenged his three 2002 convictions of selling cocaine. The
post-conviction court appointed counsel, who filed an amended
petition, and the court conducted an evidentiary hearing.  Following
the hearing, the court found that the petitioner failed to establish
the ineffective assistance of trial counsel and denied post-conviction
relief.  We affirm the action of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/millera62805.pdf

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