Update your contact information! Now you can let the TBA know of your new contact information over the web. Just follow the link below and we'll update your record in our database. http://www.tba.org/address/index.mgi    TODAY'S OPINIONS: Wednesday, October 05, 2005 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 - TN Supreme Court 00 - TN Worker's Comp Appeals 00 - TN Supreme Court - Rules 04 - TN Court of Appeals 08 - TN Court of Criminal Appeals 05 - TN Attorney General Opinions 00 - Judicial Ethics Opinions 00 - Formal Ethics Opinions - BPR 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 SHELBY ABBOTT, ET AL. v. BLOUNT COUNTY, TENNESSEE, ET AL. Court: TCA Attorneys: Norman H. Newton and LaJuana G. Atkins, Maryville, Tennessee, for the appellant, BlountCounty, Tennessee. Joe Costner, Maryville, Tennessee, for the appellees, Shelby Abbott and husband, CharlesAbbott. Judge: FARMER Plaintiffs filed a declaratory judgment action seeking a declaration that they had not been ãmadewholeä in a settlement agreement with third-party tortfeasors and that any subrogation claim by Defendant insurer should be denied. The trial court awarded Plaintiffs summary judgment.Defendant insurer appeals. We reverse the award of summary judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/2005/abbotts10505.pdf EDWARD EARL DeWERFF v. CHRISTINE CONNIE DeWERFF (now HAND) Court: TCA Attorneys: Larry B. Watson, Clarksville, Tennessee, for the appellant, Edward Earl Dewerff. Thomas R. Meeks, Clarksville, Tennessee, for the appellee, Christine Connie Dewerff Hand. Judge: FARMER The trial court denied Fatherâs petition to decrease child support upon finding Father was voluntarily underemployed. It also determined Fatherâs previous payments of child support in excess of the court ordered amount were a gift and refused to credit them to Fatherâs subsequent arrearage. Father appeals. We affirm. http://www.tba.org/tba_files/TCA/2005/dewerffe10505.pdf LASCHINSKI T. EMERSON v. OAK RIDGE RESEARCH, INC., a/k/a OAK RIDGE REALTY HOLDING, INC., and NATHANIEL REVIS WITH CONCURRING/DISSENTING OPINION Court: TCA Attorneys: Stephen G. Anderson, Knoxville, Tennessee, and Lyle Reid, Covington, Tennessee, for appellants. Katherine A. Young, Dale J. Montpelier, and Kevin B. Fox, Knoxville, Tennessee, and April Carroll Meldrum, Clinton, Tennessee, for appellee. Judge: FRANKS Plaintiff sued defendants for sexual harassment, assault and battery and retaliatory discharge. A jury returned a verdict for various damages, as well as punitive damages. The Trial Judge, acting as 13 th juror, essentially approved the juryâs verdict, but reduced the punitive damages from $500,000.00 to $150,000.00, and awarded plaintiff attorneyâs fees in the amount of $282,964.50, as well as discretionary costs. On appeal, we affirm in part, vacate in part and remand with instructions. http://www.tba.org/tba_files/TCA/2005/emersonl10505.pdf CONCURRING/DISSENTING OPINION http://www.tba.org/tba_files/TCA/2005/emersonl_con10505.pdf IN THE MATTER OF K. C., JR. Court: TCA Attorneys: J. Stephen Mills, Nashville, Tennessee, for the appellant, S. B. Kelli Barr Summers, Brentwood, Tennessee, for the appellees, A. C. and J. C. Judge: COTTRELL This case involves a boy whose mother placed him in the care and custody of an aunt when he was two months old because she could not take care of him. The aunt furnished all the childâs needs and raised him as if he were her own. After he reached the age of ten, the mother filed a petition to have custody of the child restored to her. The aunt subsequently filed a petition to terminate the motherâs parental rights on the grounds of abandonment and persistence of conditions. After a hearing, the trial court denied the motherâs petition for custody and terminated her parental rights. We affirm the denial of the petition for custody, but we reverse the termination of parental rights because the grounds were not proved by clear and convincing evidence. http://www.tba.org/tba_files/TCA/2005/kcjr10505.pdf ERIC CARTER v. WARDEN GLEN TURNER Court: TCCA Attorneys: Eric Carter, pro se. Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General,for the appellee, State of Tennessee. Judge: WILLIAMS This matter is before the Court upon the Stateâs motion to affirm the judgment of the trial courtby opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the trial court's denial of habeas corpus relief. A review of the record reveals that thePetitioner is not entitled to 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/cartere10505.pdf JAMES AARON EARNEST v. STATE OF TENNESSEE Court: TCCA Attorneys: James Aaron Earnest, pro se. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General,for the appellee, the State of Tennessee. Judge: GLENN The Petitioner, James Aaron Earnest, appeals the trial court's denial of his motion toreopen his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of CriminalAppeals. Because this Court is without jurisdiction to entertain this appeal, the above-captioned matter is dismissed. http://www.tba.org/tba_files/TCCA/2005/earnestj10505.pdf STATE OF TENNESSEE v. NELIUS O. ELLIS Court: TCCA Attorneys: Cynthia M. Fort, Nashville, Tennessee (on appeal), and Glenn Funk, Nashville, Tennessee (attrial), for the appellant, Nelius O. Ellis. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE The defendant, Nelius O. Ellis, contests the trial court's order revoking his probation andreinstating his original sentence. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/2005/ellisn10505.pdf MARK GRIMES v. STEPHEN DOTSON, WARDEN Court: TCCA Attorneys: Mark Grimes, pro se. Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General,for the appellee, the State of Tennessee. Judge: MCLIN The Petitioner, Mark Grimes, appeals the trial court's denial of his petition for habeas corpusrelief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed toallege any ground that would render the judgment of conviction void. Accordingly, we grant the Stateâs motion and affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/2005/grimesm10505.pdf DANNY JAMES MCALPIN v. STATE OF TENNESSEE Court: TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Danny James McAlpin. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE The petitioner, Danny James McAlpin, appeals the denial of post-conviction relief. The singleissue presented for review is whether he was denied the effective assistance of counsel. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/2005/mcalpind10505.pdf HARRY MCLEMORE v. DAVID MILLS Court: TCCA Attorneys: Harry McLemore, pro se. Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General,for the appellee, State of Tennessee. Judge: HAYES This matter is before the Court upon the Stateâs motion to affirm the judgment of the trial courtby opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the trial court's denial of habeas corpus relief. A review of the record reveals that thePetitioner is not entitled to 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/mclemoreh10505.pdf TERRY STEPHENS v. RICKY BELL, WARDEN Court: TCCA Attorneys: Terry Stephens, Nashville, Tennessee, pro se. Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant AttorneyGeneral; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE The petitioner, Terry Stephens, appeals the trial court's denial of his petition for habeas corpusrelief. In this appeal, he alleges that his judgment is void because his sentence was imposed by the trial judge rather than a jury, in violation of the requirements of Blakely v. Washington, 542U.S. 296, 124 S. Ct. 2531 (2004). The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/2005/stephenst10505.pdf STATE OF TENNESSEE v. BRANDON MILLER WAIRE Court: TCCA Attorneys: Robin Farber, Assistant Public Defender, Columbia, Tennessee, for the appellant, BrandonMiller Waire. Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General;and Brent Cooper, District Attorney General, for the appellee, State of Tennessee. Judge: WADE The defendant, Brandon Miller Waire, was convicted of possession of cocaine with intent toresell and possession of marijuana with intent to resell. The trial court imposed Range I sentences of six years and two years, respectively, which were ordered to be servedconsecutively to each other and consecutively to a previously imposed sentence. The defendant was fined two-thousand dollars in each case and ordered to serve his sentence on intensiveprobation. Later, the probation was revoked and the defendant was ordered to serve his sentence in the Department of Correction. The single issue presented for review is whether the trial courtproperly revoked probation. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/2005/waireb10505.pdf Additional Compensation for Court Clerk TN Attorney General Opinions Date: 2005-09-29 Opinion Number: 05-147 http://www.tba.org/tba_files/AG/2005/op147.pdf Application of UAPA TN Attorney General Opinions Date: 2005-09-29 Opinion Number: 05-148 http://www.tba.org/tba_files/AG/2005/op148.pdf Newspaper of General Circulation TN Attorney General Opinions Date: 2005-09-29 Opinion Number: 05-149 http://www.tba.org/tba_files/AG/2005/op149.pdf Retention of Expungement Order TN Attorney General Opinions Date: 2005-09-30 Opinion Number: 05-150 http://www.tba.org/tba_files/AG/2005/op150.pdf Term of Mayor of Spring Hill TN Attorney General Opinions Date: 2005-09-30 Opinion Number: 05-151 http://www.tba.org/tba_files/AG/2005/op151.pdf   PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! 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