TennBarU & the TBA Young Lawyers Division present … Introduction to
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• July 26 in Knoxville
• July 27 in Memphis
• July 27 in Nashville
• July 28 in Chattanooga

Mark your calendars for a new YLD Transactional Law CLE coming to a
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include contract drafting, estate planning, mediation, intellectual
property, real estate transactions and business entity formation.

Today's Opinions: July 7, 2005
Volume 11 — Number 128
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
06 New Opinion(s) from the Tennessee Court of Appeals
03 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 MERLE JEFFERS McFARLAND
WITH DISSENTING OPINION

Court:TSC

Attorneys:                          

Gene Paul Gaby, Greeneville, Tennessee, for the appellee, James Cox.

James Robert Walker, Knoxville, Tennessee, for the appellee, The
University of Tennessee.

Patrick Ledford, Kingsport, Tennessee, for Amicus Curiae, Elizabeth
Walker, Administratrix C.T.A. of the Estate of Charles Dow Chase.

Daniel B. Minor, Kingsport, Tennessee, for Amicus Curiae, Jackie Terry
Olinger.

Judge: BARKER

First Paragraph:

We granted review in this case to determine the appropriate manner of
distributing lapsed residuary gifts in a will. Specifically, we are
confronted with a holographic will containing a residuary clause which
devised percentages of the testatrix's estate to certain named
beneficiaries. Three of these beneficiaries predeceased the testatrix,
causing their gifts to lapse. Because these beneficiaries also died
without issue, the Tennessee anti-lapse statute is not applicable.1
Thus, the question presented is whether the lapsed residuary gifts are
to be divided among the remaining residuary beneficiaries or pass
through intestate succession to the testatrix's heirs at law. The
probate court concluded that the lapsed gifts created a partial
intestacy, and the lapsed gifts passed to the heirs at law. The Court
of Appeals affirmed. Upon review, we affirm the judgment of the Court
of Appeals.

http://www.tba.org/tba_files/TSC/2005/mcfarlandm7705.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/2005/mcfarlandm_dis7705.pdf

IN RE A.L.B., N.W.B. AND C.B.B.

Court:TCA

Attorneys:                          

Glen A. Isbell, Winchester, Tennessee, for the appellants, N.W.B. and
R.D.B.

Paul G. Summers, Attorney General and Reporter; Douglas Earl Diamond,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Trudy McKelvey Edwards, Winchester, Tennessee, Guardian Ad Litem for
A.L.B., N.W.B. and C.B.B.

Judge: CAIN

First Paragraph:

This is a termination of parental rights case involving rights of both
parents to their three young children. Parental rights of both parents
were terminated after the trial court found substantial noncompliance
with the permanency plan and persistence of conditions that led to the
removal under Tennessee Code Annotated section 36-1-113 (g)(3), those
conditions being filthy and unsanitary living conditions in the home.
The court also found that termination was in the children's best
interests. We reverse this decision and remand the case for further
proceedings.

http://www.tba.org/tba_files/TCA/2005/alb7705.pdf

DAVID A. BROOKS v. CATHERINE D. BROOKS

Court:TCA

Attorneys:                          

Larry Hayes, Jr., Nashville, Tennessee, for the appellant, David A.
Brooks.

Helen Sfikas Rogers, Robin K. Barry, Nashville, Tennessee, for the
appellee, Catherine D. Brooks.

Judge: COTTRELL

First Paragraph:

Husband appeals in futuro alimony awarded Wife at the end of a
thirty-one (31) year marriage. Because the evidence does not
preponderate against the trial court's findings and the trial court
acted within its discretion in applying relevant legal principles, we
affirm.

http://www.tba.org/tba_files/TCA/2005/brooksd7705.pdf

W. MICHAEL BYRD v. MARY ETTA BYRD

Court:TCA

Attorneys:                          

Jeffrey L. Levy, Nashville, Tennessee, for the appellant, W. Michael
Byrd.

Mary Etta Byrd, Washington, D.C., Pro Se.

Judge: CLEMENT

First Paragraph:

Husband appeals the denial of his third petition to terminate or
reduce his in futuro alimony obligations. He contends he is unable to
work due to a medical disability, that Wife has experienced an
increase in her earning capacity, and that she no longer has a need
for alimony. He also contends that his current alimony obligation
exceeds 50% of his income in violation of 15 U.S.C. B 1673. Finding
the evidence preponderates in favor of a reduction of alimony, we
modify the judgment and remand with instructions to reduce Husband's
alimony in futuro obligation. We affirm the trial court in all other
respects.

http://www.tba.org/tba_files/TCA/2005/byrdw7705.pdf

CAPITAL MANAGEMENT PARTNERS v. WILLIAM J. EGGLESTON, III

Court:TCA

Attorneys:                          

Robert F. Miller of Memphis for Appellant, Capital Management Partners

John R. Branson of Memphis for Appellee William J. Eggleston, III

Judge: CRAWFORD

First Paragraph:

Plaintiff-corporation sued defendant, a stockholder, officer, and
director of a corporation engaged in the design and manufacture of
stereo speakers, to recover the amount due on loans made to the
corporation allegedly based on negligent and fraudulent
misrepresentations of the defendant. The pleadings also seek to pierce
the corporate veil and hold the defendant personally liable for the
corporation debts. The trial court found no fraud or misrepresentation
on the part of the defendant and entered judgment for the defendant.
Plaintiff appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/capitalm7705.pdf

CARL ROBERSON, ET AL. v. MOTION INDUSTRIES, INC., ET AL.

Court:TCA

Attorneys:                          

Richard P. Jahn, Jr., Chattanooga, Tennessee, for the Appellants Carl
and Vicki Roberson.

Douglas M. Campbell, Chattanooga, Tennessee, for the Appellee Motion
Industries, Inc.

Judge: SWINEY

First Paragraph:

The jury returned a verdict in this car wreck lawsuit for Carl and
Vicki Roberson ("Plaintiffs") in the amount of $900,000. However, the
jury assessed 38% of the fault to Carl Roberson, thereby reducing the
total verdict to $558,000 under comparative fault principles.
Onappeal, Plaintiffs claim the Trial Court erred when it denied their
motion for a directed verdict made at the close of proof and in their
Rule 50.02 motion. In their motion for directed verdict, Plaintiffs
argued there was no material evidence to support defendant Motion
Industries' claim that Mr. Roberson was guilty of comparative fault.
The Trial Court denied the motion and allowed the jury to decide the
comparative fault issue. Thereafter, Plaintiffs filed a motion for new
trial which the Trial Court denied after specifically approving the
amount of damages awarded by the jury as well as the jury's allocation
of fault. Plaintiffs appeal claiming the Trial Court erred when it
denied their motion for directed verdict. We affirm.

http://www.tba.org/tba_files/TCA/2005/robersonc7705.pdf

BERT VIAR, JR. v. JOHN W. PALMER

Court:TCA

Attorneys:                          

Michael W. Whitaker of Covington, Tennessee for Appellant, Bert Viar,
Jr.

Tim Edwards and James F. Horner, Jr. of Memphis, Tennessee for
Appellee, John W. Palmer

Judge: CRAWFORD

First Paragraph:

This is a legal malpractice case. Client/Appellant sued
Attorney/Appellee for legal malpractice for failure to respond to a
motion for partial summary judgment filed by the defendant in the
underlying case. Attorney's Motion for Summary Judgment was granted
and Attorney was awarded attorney fees on his Cross-Complaint. Client
appeals. We reverse and remand.

http://www.tba.org/tba_files/TCA/2005/viarb7705.pdf

ROY ALLEN BURCH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul Whetstone, Mosheim, Tennessee, for the Appellant, Roy Allen
Burch.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Kimberly L. Lane, Assistant District
Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Roy Allen Burch, appeals the Hawkins County Criminal
Court's summary dismissal of his petition for post-conviction relief.
In his petition, Burch seeks relief from his 1989 life sentence for
aggravated rape. He contends that the sentence violates the recent
Supreme Court decision in Blakely v. Washington, 524 U.S. __, 124 S.
Ct. 2531 (2004), because the trial court applied enhancement factors
not found by the jury in increasing his sentence. On appeal, Burch
argues that the Blakely holding announces a new rule of law and is,
thus, entitled to retroactive application in a post-conviction
proceeding. After review, we conclude that the issue has been rendered
moot by the recent Tennessee Supreme Court opinion, State v. Edwin
Gomez and Jonathan S. Londono, No. M2002-01209-SC-R11-CD (Tenn. Apr.
15, 2004), reh'g denied, (May 18, 2005), holding that the Tennessee
Sentencing Reform Act of 1989 is not violative of the Sixth Amendment
right to a jury trial. Accordingly, the summary dismissal is affirmed.

http://www.tba.org/tba_files/TCCA/2005/burchr7705.pdf

STATE OF TENNESSEE v. DAN E. DURELL

Court:TCCA

Attorneys:                          

Dan E. Durell, Coleman, Florida, Pro se.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Dan E. Durell, appeals the trial court's order
dismissing his petition for postconviction relief. The pleading is
barred by the statute of limitations and was properly dismissed.
Accordingly, this court affirms the trial court's denial of relief
pursuant to Rule 20, Tenn. Ct. Crim. App. R.

http://www.tba.org/tba_files/TCCA/2005/durrelld7705.pdf

GREGORY SCOTT SPOONER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory Scott Spooner, Mountain City, Tennessee, Pro se.

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

Judge: WITT

First Paragraph:

The petitioner, Gregory Scott Spooner, appeals from the trial court's
order dismissing his petition for writ of habeas corpus. The state has
filed a motion requesting that this court affirm the trial court's
denial of relief pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. The petition fails to establish a cognizable claim
for habeas corpus relief. Accordingly, the state's motion is granted
and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/spoonerg7705.pdf

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