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Today's Opinions: July 8, 2005
Volume 11 — Number 129
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
01 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

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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: PETITION TO AMEND RULE 21, RULES OF THE TENNESSEE SUPREME COURT
ORDER WITH APPENDIX

Court:TSC - Rules

Judge: PER CURIAM

First Paragraph:

On June 3, 2005, the Tennessee Commission on Continuing Legal
Education and Specialization has petitioned this Court to amend Rule
21 of the Rules of the Supreme Court. The petition and proposed
amendments are attached hereto as Exhibit A.

http://www.tba.org/tba_files/TSC_Rules/2005/rule21_ord7805.pdf

APPENDIX
http://www.tba.org/tba_files/TSC_Rules/2005/rule21_apx7805.pdf

NANCY CRITTENDEN v. JERRY GREEN

Court:TCA

Attorneys:                          

Robert S. Burns of Sewanee, Tennessee for Appellant, Jerry Green 

Nancy Crittenden, Pro Se

Judge: CRAWFORD

First Paragraph:

This is a boundary line case. Appellant appeals from the judgment of
the Hamilton County Chancery Court establishing the boundary line as
shown by the survey of Appellee's expert. Finding that the survey
adopted by the trial court is not in line with Appellee's deed and/or
Appellant's deed conveying an additional triangular piece of land, we
affirm in part, reverse in part, and remand.

http://www.tba.org/tba_files/TCA/2005/crittendenn7805.pdf

SHAVA LYNN KENDRICK v. LARRY BERT KENDRICK

Court:TCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant, Larry
Bert Kendrick.

Markley Runyon Gill, Erin, Tennessee, for the appellee, Shava Lynn
Kendrick.

Judge: KOCH

First Paragraph:

This case involves a father's efforts to protect his children from
their mother's sexually abusive relatives. When the mother filed for
divorce in the Chancery Court for Houston County, she also filed a
notice of intent to relocate with the children to the State of New
York to be closer to her family, including a stepfather who had
sexually abused and raped her when she was a child. Following a bench
trial, the trial court declared the parties divorced, designated the
mother as the primary residential parent, and permitted the mother to
move to the State of New York with the parties' children. The father
has appealed, arguing first that the trial court's custody and
relocation decisions have exposed the children to an unreasonable risk
of sexual abuse and second, that the trial court erred by refusing to
designate which of the parties should be permitted to claim the
children as tax exemptions. We have determined that the trial court
erred by allowing the mother and the children to move to the State of
New York without sufficient proof regarding their safety. We have also
concluded that the court erred by refusing to address the parties' tax
exemption issues.

http://www.tba.org/tba_files/TCA/2005/kendricks7805.pdf

MICHAEL WILLIAM KWASNIK v. SUSAN MARIE GILLMAN KWASNIK

Court:TCA

Attorneys:                          

Phillip C. Lawrence of Chattanooga, Tennessee for Appellant, Michael
Williams Kwasnik

Charles D. Paty of Cahttanooga, Tennessee for Appellee, Susan Marie
Gillman Kwasnik

Judge: CRAWFORD

First Paragraph:

In this divorce case, Husband/Appellant appeals and raises issues
involving valuation and division of marital property, rehabilitative
alimony, and attorney fees. We affirm in part, reverse in part, and
remand.

http://www.tba.org/tba_files/TCA/2005/kwasnikm7805.pdf

ROGER MCGEE ON BEHALF OF BRIDGEWOOD BAPTIST CHURCH v. POLLY HOLMES,
KENNETH HOLMES AND TONI COX

Court:TCA

Attorneys:                          

Stuart B. Breakstone, Memphis, for plaintiff/appellant Roger McGee

W. Clark Washington, Memphis, for defendants/appellees Ken and Polly
Holmes John D. Horne, Memphis, for defendant/appellee Toni Cox

Judge: KIRBY

First Paragraph:

This is a church dispute. The plaintiff, acting on behalf of the
unincorporated church, sued several church members for fraud,
conversion, and breach of fiduciary duty. The trial court ordered a
vote by the remaining church members on whether to pursue the lawsuit,
conducted by a special master. The thirty-five church members voted to
pursue a claim against three defendants. After years of litigation,
and the addition and deletion of certain defendants, the trial court
ordered a second vote by church members on whether to continue the
lawsuit. The five remaining church members, two of whom were
defendants in the original suit, voted to dismiss the lawsuit. The
trial court then dismissed the lawsuit. The plaintiff appealed,
arguing that the trial court erred in ordering a second vote. We
affirm, finding that the trial court's actions were reasonable and
within the scope of its authority.

http://www.tba.org/tba_files/TCA/2005/mcgeer7805.pdf

LARRY N. MENDELSON v. BERT H. BORNBLUM, ET AL.

Court:TCA

Attorneys:                          

Joseph T. Getz and Charles A. Ray, IV, Memphis, Tennessee, for the
appellant, Larry N. Mendelson.

Allan J. Wade, Lori Hackleman Patterson and Brandy S. Parrish,
Memphis, Tennessee, for the appellees, Bert H. Bornblum, Joshua G.
Brown, III, Trudy R. Brown, Lucile B. Buchignai, Adriana Cervetti,
Lawrence R. Cervetti, Donna Clark, Isabel Coulter, Ronald Coulter,
Stephen R. Davis, Charles W. Dean, Eleanor G. Dean, George Dupont, II,
Rosalie W. Epstein, Anthony J. Evangilisti, Charles Fisher, III, Nancy
H. Fisher, Stephen J. Ford, Kathy R. Ford, Bettie W. Golwen, Howard L.
Golwen, Cynthia R. Gratz, John F. Gratz, Jr., Charles R. Hardee, Gayle
W. Hardee, Luanne Harris, Helen Hoffman, Jan Jasper, Jeffrey Jasper,
Frank P. Lamanna, Kelly F. Lamanna, Carol I. Lynn, William R. Lynn,
Flinn Maxwell, Gwen Maxwell, Robert McBurney, Vivian McBurney, Linda
Montgomery, June M. Parker, Lloyd V. Parker, Daniel D. Pendergrass,
Christopher S. Pettit, Suzanne Pettit, Rebecca B. Phillips, Anna S.
Prest, Robert R. Prest, Jr., Basil Ratiu, Delores Ratiu, Leroy Sanes,
Sonja Sanes, Michael S. Seligman, Mona Seligman, The Raymond D.
Lovvorn Revocable Trust and Frances Tate.

Judge: FARMER

First Paragraph:

This case involves a dispute over the subdivision of a lot within a
residential neighborhood restricted by protective covenants. The
plaintiff purchased a lot within a neighborhood in Memphis. Although
not required under the then-existing protective covenants, he obtained
majority consent of the other neighborhood lot owners to subdivide his
lot into two separate lots. The Land Use Control Board denied the
side-by-side configuration as well as a previously recommended
flag-lot configuration. The plaintiff appealed to the Memphis City
Council, and the council overturned the Land Use Control Board's
rejection of the plaintiff's application. Before the council's
decision was formally issued, however, the lot owners amended the
neighborhood's restrictive covenants so that the plaintiff's proposed
re-subdivision, as well as any further subdivision of lots within the
neighborhood, would be prohibited. The plaintiff filed an action for
declaratory judgment. At the hearing on cross-motions for summary
judgment, the parties agreed to submit the case on stipulated
evidence, and the trial court denied the plaintiff's request for
declaratory relief. The plaintiff appeals. We reverse.

http://www.tba.org/tba_files/TCA/2005/mendelsonl7805.pdf

STATE OF TENNESSEE v. JERRY WAYNE PATTERSON
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

W. Jeffery Fagan, Assistant District Public Defender, for the
appellant, Jerry Wayne Patterson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Robert Radford, District Attorney General;
and Steven L. Garrett, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Jerry Wayne Patterson, was convicted by jury of
attempted first degree murder, a Class A felony, and sentenced to
forty years in the Tennessee Department of Correction as a Range II,
multiple offender. On appeal, the defendant presents three issues for
review: (1) whether the trial court erred by denying the defendant's
motion to suppress his confession; (2) whether the trial court erred
by denying the defendant's motion for judgment of acquittal; (3)
whether the evidence was sufficient to support a guilty verdict for
attempt to commit first degree murder. Upon review of the record and
applicable law, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/pattersonj7805.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/pattersonj_con7805.pdf

STATE OF TENNESSEE v. RONALD TERRY WILMORE

Court:TCCA

Attorneys:                          

DonaldCapparella, Nashville, Tennessee (on appeal), and Steven
R.Roller, McMinnville,Tennessee (at trial), for the appellant, Ronald
Terry Wilmore.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Clement Dale Potter, District Attorney
General; and Larry G. Bryant, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Warren County Criminal Court jury convicted the defendant, Ronald
Terry Wilmore, of driving on a revoked license, a Class B misdemeanor,
and the trial court sentenced him to a term of six months with twenty
days to be served in jail and the remainder on probation. The
defendant appeals, claiming the evidence is insufficient. We affirm
the trial court.

http://www.tba.org/tba_files/TCCA/2005/wilmorer7805.pdf

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