Baker Laid to Rest at Funeral Services in Huntsville

Vice President Joe Biden, Senate Majority Leader Harry Reid, Minority Leader Mitch McConnell and Sens. Lamar Alexander and Bob Corker were among the dozens of dignitaries attending the funeral service for former Senate Majority Leader Howard H. Baker Jr.  today in his hometown of Huntsville, the Tennessean reports. Baker died last week following complications from a stroke. His body lay in repose yesterday at the Howard H. Baker Jr. Center for Public Policy at the University of Tennessee, Knoxnews reports. He was laid to rest with full military honors following the service.

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
05 - 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 Court of Appeals

DAVID N. HALBROOKS v. JACOBUS MARINUS DURIEUX

Court: TN Court of Appeals

Attorneys:

Amy J. Farrar, Murfreesboro, Tennessee, for the appellant, David N. Halbrooks.

Allston Vander Horst, Centerville, Tennessee, for the appellee, Jacobus Marinus Durieux.

Judge: BENNETT

Holder of easement (dominant estate) brought suit against owner of land (servient estate) alleging interference with his use of the easement by the servient estate’s construction of a building on the easement. The trial court found that the servient estate’s actions did not constitute unreasonable interference with the dominant estate’s use of the easement for ingress and egress. Because the evidence does not preponderate against the trial court’s findings, we affirm.


ESTATE OF MARY LOU LAMB v. D. JIMMY BRINIAS, ET AL.

Court: TN Court of Appeals

Attorneys:

J. Nolan Sharbel, Knoxville, Tennessee, for the appellant, the Estate of Mary Lou Lamb.

Dudley W. Taylor, Knoxville, Tennessee, for the appellee, Ernest L. Joyner.

Judge: SWINEY

The Estate of Mary Lou Lamb appeals a grant of summary judgment to defendant Ernest L. Joyner raising issues regarding whether the Chancery Court for Knox County (“the Trial Court”) erred in finding that the plaintiff’s response to the defendant’s motion for summary judgment was filed untimely and therefore was not considered by the Trial Court, and whether the Trial Court erred in granting summary judgment on the issue of adverse possession. We find and hold: (1) that the Trial Court did not err in finding that the plaintiff’s response was filed untimely; and (2) that Ernest L. Joyner failed to show that he was entitled to summary judgment as a matter of law. We vacate the grant of summary judgment on the issue of adverse possession and remand this case to the Trial Court for further proceedings.


MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF DAVID ROSE / MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF THOMAS W. SCHLATER, ET AL.
With Dissenting Opinion

Court: TN Court of Appeals

Attorneys:

Angello L. Huong, Lebanon, Tennessee, for the appellants, Mike Locke and Cvan Avian.

Andra J. Hedrick, Robert J. Hazard, Nashville, Tennessee, for the appellee, Louise R. Herbert, Executor of the Estate of David Rose.

Judge: COTTRELL

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), notpursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.


JEANNIE MCFARLAND v. BRANDON BASS

Court: TN Court of Appeals

Attorneys:

Misty D. Parks, Spring Hill, Tennessee, for the appellant, Jeannie McFarland.

Joe W. Henry, Jr., Pulaski, Tennessee, for the appellee, Brandon Bass.

Judge: DINKINS

Mother of two children appeals the denial of her petition to modify the parenting plan, the increase of her child support obligation, and the award of attorney fees to the Father. We reverse the increase in Mother’s child support obligation; we affirm the judgment in all other respects.


NATIONAL DOOR & HARDWARE INSTALLERS, INC. v. HASSAN MIRSAIDI ET AL.

Court: TN Court of Appeals

Attorneys:

Larry L. Crain, Brentwood, Tennessee, for the appellant, National Door & Hardware, Inc.

Jarrod W. Stone and J. Thomas Martin, Nashville, Tennessee, for the appellee, Hassan Mirsaidi d/b/a Mirsaidi Construction.

Judge: CLEMENT

A subcontractor filed this breach of contract action to recover damages against a general contractor for two types of damages: work performed but unpaid and damages resulting from delays caused by the general contractor. The plaintiff alleged the general contractor breached the contract by failing to make the appropriate progress payments and otherwise withholding payments without cause. It further alleged that the general contractor failed to properly supervise the project and failed to maintain proper working conditions on the job site which caused the construction to drag on for nine months beyond the agreed-upon completion date. While suit was pending, the general contractor was terminated by the owner and a different contractor was hired to complete the project; the new contractor hired the plaintiff to complete the job. The plaintiff completed its work for which it was paid more than the balance owing on the subcontract. Following a bench trial, the court found the former general contractor had breached the subcontract but the plaintiff had failed to prove damages flowing from these breaches. The trial court specifically determined that the subcontractor recouped its damages for work performed but unpaid through the completion subcontract, and that it did not prove damages flowing from the delay of construction. The plaintiff appeals. Having determined that the evidence does not preponderate against the trial court’s findings, we affirm the trial court in all respects.


IN RE ESTATE OF JANE KATHRYN ROSS ET AL.

Court: TN Court of Appeals

Attorneys:

James G. Stranch, III, and Michael J. Wall, Nashville, Tennessee, for the appellants, Paul T. Sorace and David G. Rogers.

Eugene N. Bulso, Jr., and Paul Joseph Krog, Nashville, Tennessee, for the appellees, Estate of Jane Kathryn Ross and Joan Wildasin.

Judge: CLEMENT

This is the second appeal of an action to recover, under either the theory of unjust enrichment or a resulting trust, the value of improvements paid by the plaintiff for a house constructed on her son’s property. The plaintiff paid the construction costs to build a new home on her son’s land for both of them to reside. This action was commenced when the son refused to put his mother’s name on the deed after the house was constructed. Following the first trial, the trial court found that the plaintiff never intended to convey an inter vivos gift to her son, and, after considering the plaintiff’s alternative claims for relief, the court established a resulting trust in favor of the plaintiff in the amount of $417,000. In the first appeal, we ruled that a resulting trust was not an available remedy and remanded for further proceedings. On remand, the trial court awarded the estate a judgment against the son based on unjust enrichment. The son appeals again, this time contending the estate waived its unjust enrichment claim in the first appeal and that the estate did not prove the value of the improvements. We affirm.


SUSAN TAYLOR MOORE v. JOHN THOMAS TAYLOR

Court: TN Court of Appeals

Attorneys:

Susan Moore Taylor, Clarksville, Tennessee, Pro Se.

Patricia A. Rust, Clarksville, Tennessee, for the appellee, John Thomas Taylor.

Judge: CLEMENT

This is the second appeal in this divorce action. Husband appealed from the Final Decree of Divorce in 2012, and we affirmed the trial court in all respects in an opinion filed by this court on May 30, 2013. While the appeal was pending, the parties filed several motions in the trial court regarding a variety of financial obligations arising from the Final Decree of Divorce. Following one hearing, the trial court modified the division of the marital property; however, in our opinion which was filed a week earlier, we affirmed the division of the marital estate. Wife now appeals that ruling, and she raises several issues regarding, inter alia, the division of marital property, alimony, attorney’s fees, and civil contempt. Finding the trial court erred in modifying the division of the marital estate after we had affirmed that decision, we reverse that modification. As for all other issues raised, we affirm.


TN Court of Criminal Appeals

RONALD L. ALLEN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ronald L. Allen, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Michelle L. Consiglio-Young, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Ronald L. Allen, filed a petition for habeas corpus relief in the Lake County Circuit Court challenging his 2003 conviction of rape of a child. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.


STATE OF TENNESSEE v. ROMILUS CARAWAY

Court: TN Court of Criminal Appeals

Attorneys:

Phyllis Aluko (on appeal) and James Hale (at trial), Assistant District Public Defenders, for the appellant, Romilus Caraway.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Romilus Caraway, appeals his Shelby County Criminal Court jury convictions of aggravated robbery and aggravated kidnapping, claiming that the trial court erred by denying his motions to exclude certain evidence at trial and by permitting the jury to deliberate a second day. In addition, the defendant claims that the evidence is insufficient to support his convictions. Discerning no error, we affirm.


TYRONE CHALMERS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Paul J. Bruno, Nashville, Tennessee, for the appellant, Tyrone Chalmers.

Robert E. Cooper, Jr., Attorney General & Reporter; James E. Gaylord, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Tyrone Chalmers, appeals from the Shelby County Criminal Court’s denial of his petition for writ of error coram nobis in which he challenged his death sentence resulting from his 1997 conviction for first degree felony murder. On appeal, the petitioner contends that he is entitled to coram nobis relief because he is intellectually disabled and, therefore, ineligible for the death penalty. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. DONALD WAYNE McCALL

Court: TN Court of Criminal Appeals

Attorneys:

Patrick Dollar, Jackson, Tennessee, for the appellant, Donald Wayne McCall.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Garry Brown, District Attorney General; and Hillary Lawler Parham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Donald Wayne McCall, was convicted by a Crockett County Circuit Court jury of rape of a child, a Class A felony, and two counts of aggravated sexual battery, Class B felonies. See T.C.A. §§ 39-13-522, 39-13-504(a)(4) (2010). The trial court sentenced the Defendant as a Range II, multiple offender to forty years for child rape at 100% service and to twenty years for each aggravated sexual battery conviction at 100% service. The trial court ordered consecutive sentences, for an effective eighty-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by failing to exclude evidence related to one victim’s credibility, and (3) the trial court erred by permitting the State to impeach him with his previous convictions. We affirm the judgments of the trial court.


CHIVOUS S. ROBINSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Chivous S. Robinson, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Deshea Dulany Faughn, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Chivous S. Robinson, filed a petition for habeas corpus relief in the Hardeman County Circuit Court challenging his 2000 convictions of second degree murder and solicitation of first degree murder. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.


U.S. Appeals Court Dismisses Challenge to 'Tennessee Plan'

The Sixth Circuit Court of Appeals has affirmed dismissal of a federal lawsuit challenging the constitutionality of the "Tennessee Plan" under which the justices of the Tennessee Supreme Court and judges of the intermediate appellate courts will stand for retention election on Aug. 7. The lawsuit, brought by Knoxville lawyer Herbert Moncier, is the second unsuccessful federal challenge to the plan, which has been upheld by every state and federal court to examine the issue.


Judge: Guardians Not Entitled to Absolute Immunity

Davidson County Circuit Court Judge Hamilton Gayden has ruled that a Hendersonville woman placed in a conservatorship without her knowledge can sue her former public guardian for not acting in her best interests. The decision clears the way for Ginger Franklin to sue her former public guardian Jeanan Stuart, the Tennessean reports. Gayden had previously ruled that Franklin could not sue based on allegations that Stuart mishandled her financial affairs, but found this week that guardians are “not entitled to absolute judicial immunity for [their] alleged actions (or inactions)” and allowed a suit based on "best interest" grounds to proceed.


TALS Announces New Award Named for Justice Holder

The Tennessee Alliance for Legal Services (TALS) announced today that it has created the Janice M. Holder Access to Justice Award to honor the state’s first female Supreme Court chief justice, a passionate leader in Tennessee's Access to Justice efforts and a dedicated public servant. The award will be presented each year to an individual who has made significant contributions to expanding access to justice in Tennessee. The group is accepting applications for this and other awards through July 18. The awards will be presented Sept. 10 during TALS' Equal Justice University.


Stites & Harbison Adds 2 to IP Practice

The Nashville firm of Stites & Harbison has expanded its Intellectual Property & Technology Practice with the addition of two registered patent partners previously with Waller. Kelly Hollowell holds a doctorate from the University of Miami School of Medicine and law degree from Regent University Law School. She focuses her practice on life sciences and mechanical arts. Justin McNaughton, a graduate of Washington University Law School in St. Louis, focuses on life sciences, mechanical arts, software and technology licensing. They join a team of eight others to create one of the largest life sciences practices in Tennessee.


Waller Finalizes Lease in Memphis Building

Nashville-based Waller law firm is moving into permanent space at the Renaissance Center office building, the Memphis Daily News reports. The firm opened a Memphis office in February and was using an executive suite at the Renaissance Center while negotiating its lease. The new space will provide 10,000 square feet in the East Memphis office building at 1715 Aaron Brenner Drive.


Judge Stafford Honored with Portrait Unveiling

Judicial and other officials from across the state gathered at the Dyer County Courthouse yesterday to recognize the contributions of Tennessee Court of Appeals Judge J. Steven Stafford and witness the unveiling his official portrait. Stafford has been a member of the judiciary since 1993, first serving as 29th Judicial District chancellor in Dyer and Lake counties. He was named to the appeals court in 2008. The Dyer County Bar Association sponsored the portrait presentation. The Dyersburg State Gazette has more details and photos from the event.


Prosecutors Seek Contempt Charges in Vandy Rape Case

Monday's hearing in the Vanderbilt University rape case was “heavy on bluster, light on results,” the Tennessean reports. In the ongoing battle between prosecutors and attorneys for Brandon Vandenburg, one of four former football players accused of rape, an assistant district attorney “upped the ante” by accusing the defense of “outrageous, egregious" violations of court rules and privacy laws, and calling on the judge to hold all four defense attorneys in criminal contempt.


TLAW Installs New Officers

The Tennessee Lawyers’ Association for Women (TLAW) installed new officers during its recent annual meeting in Gatlinburg. Tennessee Supreme Court Chief Justice Gary L. Wade was on hand to administer the oath and swear in the officers and directors. The 2014-2015 leaders are President Cheryl Rice with Egerton, McAfee, Armistead & Davis in Knoxville; Vice President Beth Bates with West Tennessee Legal Services in Jackson; Treasurer Linda Knight with Gullett, Sanford, Robinson & Martin in Nashville; Recording Secretary Ijeoma Ike with West Tennessee Legal Services in Jackson; Corresponding Secretary Kristi Rezabek with the Tennessee Court of Appeals, Western Division; and Immediate Past President Wendy Longmire with Ortale, Kelley, Herbert & Crawford in Nashville.


New Law Leads Lawsuit Loan Company to Leave State

A new Tennessee law targeting loans to finance the costs of lawsuits is leading an Illinois company to leave the state, WDEF reports. Oasis Legal Finance, one of the country’s largest consumer legal funding services, issues loans to consumers while they wait for settlements in their case. The company announced it is leaving the Tennessee market as the law goes into effect this week.


Women Executives Question Politicization of Judicial Elections

Knoxville women executives gathered yesterday for a panel discussion on the upcoming judicial retention elections and a reception to honor new U.S. District Court Judge Pamela Reeves. The program included remarks by Supreme Court Justices Connie Clark and Sharon Lee and former justice Penny White. Several area businesswomen in attendance criticized the effort to politicize the retention election. Sharon Pryse, president/CEO of The Trust Co. and a University of Tennessee trustee appointed by Gov. Bill Haslam, said comments about the justices by Senate Speaker Ron Ramsey offended her. Ann Hansen, an engineering consultant, and Christi Branson, deputy to Knoxville Mayor Madeline Rogero, expressed similar concerns. Read more about the event in Knoxnews.


NBA Joins Coalition for Fair Courts

The Nashville Bar Association Board of Directors recently approved a motion to join the Coalition for Fair Courts, which was established by the Marion Griffin Chapter of the Lawyers’ Association for Women in Nashville. The chapter announced the new group in May to raise public awareness about the upcoming retention elections, educate voters on the role of the appellate courts and the importance of a fair and impartial judiciary, and support women judges. Other members of the coalition include the Anne Schneider Chapter of the Lawyers’ Association for Women in Jackson, the Napier-Looby Bar Association, the Tennessee Alliance of Black Lawyers and the League of Women Voters of Nashville.


Kelsey: Bebb Case Shows Need for Judicial Reform

Sen. Brian Kelsey writes in the Chattanooga Times Free Press this week that the case of Steve Bebb, former district attorney for Bradley, McMinn, Monroe and Polk counties, “shows the need for judicial reform in Tennessee.” Bebb, who resigned yesterday, had faced allegations of misusing his office, though investigations by the TBI, Senate Judiciary Committee and Board of Professional Responsibility (BPR) failed to lead to any charges. Kelsey, who filed the BPR complaint, nonetheless concluded that “the mechanisms we have in place for disciplining corruption and unethical behavior in Tennessee are not working.” He recommends two specific reforms: giving the attorney general the power to prosecute all cases of public corruption and changing how the attorney general is selected.


Court Issues Final Orders Before Recessing

The U.S. Supreme Court issued several order today before recessing for the end of its current term. The actions today included confirming that its decision in the Hobby Lobby case applies broadly to the contraception coverage requirement in the health care law, not just the handful of methods considered in the case; and ordering two appeals courts to reconsider cases decided by the National Labor Relations Board in light of its recent decision on recess appointments to that board. The court also announced eight cases it will consider in the fall term. These include whether a local Arizona law violates the First Amendment by restricting where a church can advertise its Sunday services; whether a group of energy companies can be sued under California antitrust laws for manipulating natural gas prices; discrimination claims by a pregnant employee; and whether a whistleblower can sue a defense contractor over claims it falsely billed the government for work in Iraq. WRCB-TV has AP stories on these, while SCOTUSblog has a summary of all new grants.


‘Soundtrack for a Revolution’ Screening Wednesday

The Nashville Public Library will show the documentary “Soundtrack for a Revolution” tomorrow from 11:30 a.m. to 2 p.m. The film celebrates freedom songs and explores how these anthems had the power to sustain the civil rights movement during its darkest hours. It is a unique mix of archival footage, interviews with civil rights leaders and musical performances from artists such as John Legend, Joss Stone, Wyclef Jean and The Roots.


Retirement Reception Planned for Judge Wilson

A retirement reception will be held for Third Judicial District Circuit Court Judge John K. Wilson July 11, from 4 to 6 p.m. at the Greene County Courthouse. The courthouse is located at 101 S. Main St. in Greeneville. Wilson has served on the court, which covers Greene, Hamblen, Hancock and Hawkins counties, since 1979. RSVP to Vickie Shipley.


Reduced-Rate Display Ads Available for Lawyers

Lawyers and firms now may promote outstanding achievements, new associates, new partners, mergers, awards or any other news in the Tennessee Bar Journal. These Professional Announcements are display ads, available at special, lower-rate pricing. Show your peers across the state about your accomplishments by placing an announcement in the Journal. For information, contact Debbie Taylor at (503) 445-2231 or Debbie@llm.com. To have an announcement placed in the next issue, please contact her as soon as possible.


 
 

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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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