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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

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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

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 ćmadewholeä 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 Fatherās petition to decrease child support upon finding Father was voluntarily underemployed. It also determined Fatherās previous payments of child support in excess of the court ordered amount were a gift and refused to credit them to Fatherās 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 juryās verdict, but reduced the punitive damages from $500,000.00 to $150,000.00, and awarded plaintiff attorneyās 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 childās 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 motherās parental rights on the grounds of abandonment and persistence of conditions. After a hearing, the trial court denied the motherās 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 Stateās 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 Stateās 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 Stateās 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

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