Monday, February 27th, 2012

 
 

Watch Entries from TBA Video Contest

Middle and high school students from across the state submitted original videos exploring the constitutional right to freedom of communication in an annual contest sponsored by the Tennessee Bar Association. Winners will be announced on Law Day, May 1. You can see the entries, now available online. First-prize winners from each age category will have their winning videos shown to leaders of the state’s legal community at the 2012 Tennessee Bar Association Convention on June 8 in Memphis.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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.


TN Supreme Court

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


NORMAN REDWING v. CATHOLIC BISHOP FOR THE DIOCESE OF MEMPHIS

Court: TN Supreme Court

Attorneys:

Gary K. Smith and Karen M. Campbell, Memphis, Tennessee, for the appellant, Norman Redwing.

John H. Dotson and Casey Shannon, Memphis, Tennessee, for the appellee, Catholic Bishop for the Diocese of Memphis.

Judge: KOCH

This appeal involves a dispute regarding the civil liability of the Catholic Diocese of Memphis for acts of child sexual abuse allegedly perpetrated by one of its priests in the 1970s. A victim of this alleged abuse filed suit against the Bishop of the Catholic Diocese of Memphis in the Circuit Court for Shelby County seeking monetary damages. The Diocese moved to dismiss the complaint, arguing that the ecclesiastical abstention doctrine deprived state courts of subject matter jurisdiction and that the victim’s claims were barred by the statute of limitations. The trial court denied the Diocese’s motion. The Court of Appeals held that the statute of limitations had run on the victim’s claims and that the ecclesiastical abstention doctrine barred state courts from considering the victim’s negligent hiring and retention claims but not the negligent supervision claims. Redwing v. Catholic Bishop for Diocese of Memphis, No. W2009-00986-COA-R10-CV, 2010 WL 2106222 (Tenn. Ct. App. May 27, 2010). We granted the victim’s Tenn. R. App. P. 11 application for permission to appeal. We have concluded that the Court of Appeals erred by concluding that the state courts lack subject matter jurisdiction over the victim’s claims and that the victim’s claims are barred by the statute of limitations.


TN Court of Appeals

WILLIAM ROBERT LINDSLEY v. LISA WHITMAN LINDSLEY

Court: TN Court of Appeals

Attorneys:

Brett D. Stokes, Knoxville, Tennessee, for the appellant, William Robert Lindsley.

Damon Wooten, Maryville, Tennessee, for the appellee, Lisa Whitman Lindsley.

Judge: SUSANO

William Robert Lindsley (“the plaintiff’) filed this action for divorce against Lisa Whitman Lindsley (“the defendant”). The defendant, along with her answer, asserted a counterclaim asking that the marriage be declared void for bigamy predicated upon the fact that the plaintiff was married when he purported to marry her. The plaintiff obtained a divorce from his previous wife before the parties to this action separated. The defendant filed a motion for summary judgment asking that their marriage be declared void. The trial court granted the defendant summary judgment and the plaintiff appealed. In Lindsley v. Lindsley, No. E2008-02525-COA-R3-CV, 2010 WL 2349200 (Tenn. Ct. App. E.S., filed June 11, 2010) (“Lindsley I”) we held that “under Texas law where [the parties were] married, . . . they could, under the [Texas] statute, enter into a common-law marriage after the spouse was divorced in the prior marriage.” Id. at *1. Accordingly, we reversed the trial court upon finding that there was a “disputed issue of fact . . . whether the parties entered into a common-law marriage after the plaintiff’s prior marriage ended.” Id. We remanded “for a determination of this factual issue.” Id. On remand, the trial court heard evidence and held that the plaintiff did not satisfy his burden of showing that the parties’ cohabitation established the elements of a common law marriage under Texas law. The plaintiff appeals. We affirm.


MARY CATHERINE GENTRY v. TAGNER H. BAILEY ET AL.

Court: TN Court of Appeals

Attorneys:

Sean W. Martin and Blair Bennington Cannon, Chattanooga, Tennessee, for the appellants, Gina Sakich and Realty Center of Chattanooga, Inc.

Barry L. Abbott, Chattanooga, Tennessee, for the appellants, Tagner H. Bailey and Battery Place Condominiums, LLC. Attorney 3:Pamela R. O’Dwyer and Randall D. Larramore, Chattanooga, Tennessee, for the appellee, Mary Catherine Gentry.

Judge: SUSANO

A jury awarded Mary Catherine Gentry (“the Plaintiff”) compensatory damages of $80,000 against four defendants involved in the sale to her of a condominium. It also awarded punitive damages in the amount of $30,000 – $10,000 each against three of the four defendants. The defendants (collectively referred to herein as “the Defendants”) are Battery Place Condominiums, LLC, the owner of the complex (“the Owner”); Tagner H. Bailey, the builder of the complex (“the Builder”); Gina Sakich, the realtor who handled the transaction (“the Realtor”); and Realty Center of Chattanooga, Inc., the agency for which the Realtor worked (“the Agency”). Before the trial court entered judgment on the verdict, the Builder and the Owner renewed their motion for directed verdict. The trial court entered an order on March 10, 2010, that purports to (1) grant a directed verdict on the issue of punitive damages; (2) grant the motion for directed verdict on the issue of compensatory damages; (3) grant a new trial limited to compensatory damages; and (4) deny the motion for directed verdict as to reasonable reliance. Thereafter the chancellor who presided over the trial retired and a new chancellor was appointed. Numerous motions and hearings later, the new chancellor entered an order setting the case for trial; the order also modified, pursuant to Tenn. R. Civ. P. 60.01, the first chancellor’s March 10, 2010, order by deleting the earlier order’s grant of a directed verdict as to compensatory damages. The trial court later granted the Tenn. R. App. P. 9 application of the Defendants and stayed all proceedings pending appeal. We likewise granted the Defendants’ request for an interlocutory appeal. Finding no error in the trial court’s judgment, we affirm.


ARLIE “MAX” WATSON ET AL. v. LARRY WATERS ET AL.

Court: TN Court of Appeals

Attorneys:

Herbert S. Moncier and David S. Wigler, Knoxville, Tennessee, for the appellants, Arlie “Max” Watson, Peggy Marshall, John A Meyers, and Gerra Davis-Mary.

Rhonda L. Bradshaw, Knoxville, Tennessee, for the appellees, Larry Waters, Sevier County Board of Commissioners, and Sevier County Tennessee.

Judge: SUSANO

This action was filed by Arlie “Max” Watson, an elected county commissioner of Sevier County, and three other citizens and taxpayers of Sevier County, Peggy Marshall, John A. Meyers and Gerra Davis-Mary (collectively “the Plaintiffs”). They purported to act both individually and on behalf of the State of Tennessee. They named as defendants the county mayor, Sevier County, and the county commission as a body (collectively “the Defendants”). They sought to invalidate certain actions – primarily the commission’s adoption of certain procedural rules at a meeting held June 23, 2008 – and to disgorge the mayor of benefits he “wrongly” received. The trial court initially dismissed all claims – except those made under the Open Meetings Act – for lack of standing. It ordered that the caption be amended to reflect that the Plaintiffs were acting individually and not on behalf of the State. The trial court allowed the Open Meetings Act claims to proceed through discovery. Both sides of the dispute filed a motion for summary judgment. With the exception of a finding that minutes of some committee meetings were not properly filed in both the office of the county clerk and the county mayor as required by a local rule, the court found no deficiencies in the challenged actions. It granted the Defendants summary judgment as to all of the Open Meetings Act claims. The Plaintiffs appeal. We affirm.


PATRICK EDWARD REEDER v. JO BETH (CURTIS) REEDER

Court: TN Court of Appeals

Attorneys:

Michael R. Jennings, Lebanon, Tennessee, for the appellant, Patrick Edward Reeder.

William E. Farmer, Lebanon, Tennessee, for the appellee, Jo Beth Reeder (Caldwell).

Judge: CLEMENT

In this post-divorce action, a father seeks to have his child support obligation reduced following the emancipation of the parties’ older child. Mother opposes a reduction due to the expense of the younger child’s extracurricular activities and Father’s failure to exercise visitation with the younger child. Mother also seeks payment for unpaid child support from 2002. The trial court held Father was entitled to a reduction in his child support obligation, and that the circumstances justified the creation of a new parenting plan with less visitation time for Father, and an upward deviation from the Child Support Guidelines for Father’s child support obligation for the younger child. Further, the court held Father in “willful civil contempt” for the unpaid support from 2002, and ordered Father to pay the arrearage and a portion of Mother’s attorney fees. We affirm the trial court in all but two respects. We reverse the decision holding Father in contempt for failing to satisfy his support obligation in 2002, because it was not willful. Father was out of work due to an injury. We also reverse the decision denying prejudgment interest on the child support arrearage from 2002, finding that Tennessee Code Annotated § 36-5-101(f)(1) mandates that interest on unpaid child support shall accrue from the date the ordered support was due, at a rate of 12% per year. We also find Mother is entitled to recover reasonable and necessary attorney fees incurred on appeal and remand for determination of the amount.


ALYSON LEIGH AMONETTE EBERTING v. JEFFREY JENNINGS EBERTING

Court: TN Court of Appeals

Attorneys:

Jerrold L. Becker, Knoxville, Tennessee, for the appellant, Jeffrey Jennings Eberting.

Alyson Amonette Eberting, Esq., Knoxville, Tennessee, pro se appellee.

Judge: SWINEY

After fourteen years of marriage, Alyson Leigh Amonette Eberting (“Wife”) sued Jeffrey Jennings Eberting (“Husband”) for divorce. After a trial, the Trial Court entered its Final Judgment for Divorce on August 12, 2010, which, inter alia, awarded Wife a divorce, distributed the marital property, entered a Permanent Parenting Plan, awarded Wife transitional alimony, and awarded Wife attorney’s fees as alimony in solido. Husband appeals raising issues regarding the valuation of his orthodontic practice, the parenting plan, and the award of Wife’s attorney’s fees. Wife raises issues concerning the overall property division, and the amount of attorney fees and expenses awarded to Wife as alimony in solido. We affirm.


TISH WALKER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LISA JO ABBOTT v. DR. SHANT GARABEDIAN
CORRECTION: This opinion was was withdrawn on 2/22 and re-filed today with the same filed date as before. The only change was to change the designation as "Memorandum Opinion" to "Opinion".

Court: TN Court of Appeals

Attorneys:

Michael C. Skouteris and Milton E. Magee, Jr., Memphis, Tennessee, and Jason R. Creasy, Dyersburg, Tennessee for Plaintiff/Appellant Tish Walker, Individually and as Administrator of the Estate of Lisa Jo Abbott.

Jeffrey L. Lay, Dyersburg, Tennessee for Defendant/Appellee, Dr. Shant Garabedian.

Judge: KIRBY

This appeal concerns the application of the locality rule in a medical malpractice case. The trial court excluded the testimony of the plaintiff’s medical expert, based on the locality rule. On this basis, the trial court granted summary judgment to the defendant physician. The plaintiff appeals. We vacate the order excluding the testimony of the plaintiff’s expert and the grant of summary judgment, and remand for reconsideration in light of the Tennessee Supreme Court’s recent decision Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).


TN Court of Criminal Appeals

CHRIS ALLEN DYKES v. DAVID A. SEXTON, WARDEN
CORRECTION: In the 3rd paragraph, line 7 "pled to", was changed to "plead to."

Court: TN Court of Criminal Appeals

Attorneys:

Chris Allen Dykes, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel West Harmon, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Chris Allen Dykes, appeals as of right from the Johnson County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends (1) that the habeas corpus court erred by dismissing his petition on procedural grounds and (2) that the judgments against him are void because they reflect a conviction of criminal responsibility for first degree murder when he was indicted for criminal responsibility for attempted first degree murder. Following our review, we conclude that the habeas corpus court erred by summarily dismissing the petition on the grounds stated in its order. However, we affirm the summary dismissal based upon other grounds stated in this opinion.


Legislative Reference Updated for iPhone

For more than 30 years, Capitol Hill insiders have relied upon a booklet published by the Tennessee Electric Cooperative Association to provide a quick and easy reference to who is who in the General Assembly. Now you can get the information on your iPhone -- and soon your iPad and Droid, too. It’s available at iTunes for $4.99.


Vanderbilt Ranks High on 2011 Grads in Top Firms

While most law schools sent smaller percentages of their 2011 classes into first-year associate jobs at the nation's largest 250 law firms than they did in 2010, The National Law Journal reports that Vanderbilt University still ranks among the top 20 schools in percentage placement with NLJ 250 firms. The school also ranked near the top -- number seven -- in the number of graduates promoted to partner in 2011. The University of Tennessee's law school also placed in the top 50 schools in that category. See the details.


Security Tight in Third Week of Federal Memphis Trial

The third week of testimony began today in the trial of two cousins in Memphis who are charged with drug trafficking, murder and money laundering. Because they are also charged with racketeering under a federal law designed to decimate the Mafia, much testimony has focused on crimes of the organization as a whole, not just on the alleged roles of the cousins. Security for the trial has been heightened, with court officials shielding jurors' identities and manning extra checkpoints. Armed U.S. Marshals pick jurors up daily from a secret location and escort them to and from the Memphis courthouse. Follow it in the Commercial Appeal.


Judge Gasaway Moves Harassment Claim to Other Judge

Personal conflict among attorneys who were prior employees at Clarksville’s Gasaway and Farmer law practice, and attorney Carrie Gasaway, have led to a battle that is playing publicly in the court system. Carrie Gasaway is the wife of Judge John H. Gasaway, who has been asked to recuse himself in matters involving Kimberly Turner's complaints of harassment she has made against Carrie Gasaway. Judge Gasaway denied Turner’s motion, which he said was erroneous on many levels, but he agreed to transfer Turner's and other related cases to Division II, Mike R. Jones’ court. The Leaf Chronicle has more.


Taylor Takes 5th

Hawkins County Sessions Court Judge James “Jay” Taylor has invoked his Fifth Amendment right against self incrimination in his written response to four theft related charges made last month by the Tennessee Court of the Judiciary. The Times News reports.


Pinnacle Hires Exec to Market to Lawyers

Pinnacle Financial Partners has hired a former SunTrust Bank executive to focus on marketing to law firms and attorneys. NashvillePost.com has more.


New Video Added to TBA Network

The TBA’s All Access Video Network (TAAN) has a new professional development program available from Nashville attorney Rebecca McKelvey. The free program offers tips on marketing, referrals and more. It is part of a lineup that offers short videos in three major categories: professional development, advice for going solo, and basic information on practice areas. Most of the videos are five to 10 minutes long. See the full program lineup


Onsite CLE Available 7 to 7 on Wednesday

Need a few CLE hours fast? The Tennessee Bar Association is offering programs from 7 a.m. to 7 p.m. on Wednesday. The Mid-Winter CLE Blast will offer 11 hours of dual CLE credit. Take as many or as few hours as you need. The registration desk will be open all day. Learn more from TennBarU.


Law Firm Hosts St. Patrick's Day Event for Charities

The law firm of Hall Booth Smith & Slover PC is hosting its second annual St. Patrick’s Day Celebration at Rooster’s Texas Style BBQ and Steakhouse in Nashville. The event, March 15 from 5 to 8 p.m., will unite members of the legal community from across Nashville, while benefiting Hands On Nashville, Hospital Hospitality House and Big Brothers/Big Sisters of Middle Tennessee. Heavy hors d’oeuvres and beer will be available with a $10 donation at the door.


 
 

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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