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. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

ALLSTATE INSURANCE COMPANY v. ARVEAL DRUMMER d/b/a TRIPPLITE

Court: TCA

Attorneys:

Darrell G. Townsend and Neil M. McIntire, Nashville, Tennessee, for the appellant, Arveal Drummer d/b/a TrippLite.

John R. Cheadle, Jr., Nashville, Tennessee, for the appellee, Allstate Insurance Company.

Judge: DAVID R. FARMER

Allstate brought this subrogation action to recover amounts it paid to its insured for damages to a computer and printer following a power surge against which a surge protector manufactured by TrippLite allegedly failed to protect. The trial court denied TrippLite’s Rule 41.02 motion for involuntary dismissal and entered judgment for Allstate. TrippLite appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2005/allstate121205.pdf


DEANE ELIZABETH CHURCH v. THOMAS NEAL CHURCH

Court: TCA

Attorneys:

John M.L. Brown, Nashville, Tennessee, for Appellant.

Phillip R. Newman, Franklin, Tennessee, for Appellee.

Judge: HERSCHEL PICKENS FRANKS

The Trial Court granted the parties’ divorce, divided the marital property, awarded alimony and fees. Issues on appeal are division of marital property, alimony award and fees. We affirm the Trial Court’s Judgment, with modifications.

http://www.tba2.org/tba_files/TCA/2005/churchd121205.pdf


CONSUMER FINANCIAL SERVICES (MANAGEMENT), INC., G. RONALD HALL, and JACQUELENE O'ROURKE HALL v. CONSUMER FINANCIAL SERVICES MANAGEMENT, L.L.C., and GABRIEL, L.L.C.

Court: TCA

Attorneys:

John R. Reynolds, Nashville, and Mark E. Ellmore, Nashville, for Appellants Consumer Financial Services (Management), Inc., G. Ronald Hall, and Jacquelene O’Rourke Hall.

Mary A. Parker, Nashville, for Appellees Consumer Financial Services Management, L.L.C., and Gabriel, L.L.C.

Judge: HOLLY M. KIRBY

This is a contract action. The sellers sold to the purchasers a loan company dealing in sub-prime residential loans and mortgages and third-party finances, as well as equity interests in a related limited liability company. After closing the transaction, numerous financial and operational problems became apparent. The purchasers attempted to rescind the transaction, as the business foundered. Eventually, the sellers took back the business and sued the purchasers for breach of contract. The purchasers filed a counter-complaint, alleging that the sellers fraudulently induced the contract through multiple oral and written misrepresentations. After a bench trial, the trial court found that the sellers had committed fraud in inducing the contract. The purchasers were granted rescission of the sale agreement, as well as compensatory damages. The trial court dismissed the sellers’ breach of contract complaint. The sellers appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2005/consumerf121205.pdf


IN RE: D.A.J.

Court: TCA

Attorneys:

Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for the Appellant Romina Jessica Clifton.

Stacy Turner Olson, Clarksville, Tennessee, for the Appellee Dwight Cain Jemison.

Judge: D. MICHAEL SWINEY

Romina Jessica Clifton (“Mother”) and Dwight Cain Jemison (“Father”) are the parents of a six year old daughter. In 2004, Father filed a petition to modify custody of the child by seeking to be designated the child’s primary residential parent. Following a hearing, the Juvenile Court concluded that there had been a material change in circumstances and that it was in the child’s best interest to designate Father the primary residential parent. The Juvenile Court also set forth Mother’s co-parenting schedule as well as her monthly child support payments. Mother appeals challenging the propriety of the Juvenile Court’s decision to designate Father the primary residential parent as well as the amount of her child support. We affirm the designation of Father as the primary residential parent but modify the amount of Mother’s monthly child support.

http://www.tba2.org/tba_files/TCA/2005/d.a.j.121205.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v. D.M.E. and R.W.E., IN THE MATTER OF: R.W.E., JR., A.E.E. and D.D.E., CHILDREN UNDER 18 YEARS OF AGE

Court: TCA

Attorneys:

John W. Cleveland, Sweetwater, Tennessee, for appellant, D.M.E.

Charles W. Pope, Jr., Athens, Tennessee, for appellant, R.W.E.

Paul G. Summers, Attorney General and Reporter, and Amy T. Master, Assistant Attorney General, Nashville, Tennessee, for appellee.

Judge: HERSCHEL PICKENS FRANKS

The Trial Court terminated the parental rights of both parents to the three minor children. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2005/d.m.e.121205.pdf


THAD GUERRA, ET AL. v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Timothy W. Burrow, Nashville, Tennessee, for the Appellants, Thad and Darlene Guerra.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Kimberly J. Dean, Deputy Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee.

Judge: SHARON G. LEE

The issue presented in this appeal is whether the homeowners’ suit against the State of Tennessee was timely filed. The homeowners filed a complaint with the Tennessee Claims Commission against the State of Tennessee for the alleged unconstitutional taking of their property in connection with the State’s issuance of a permit to the homeowners to install a subsurface sewage disposal system. The Claims Commission ruled in favor of the State, finding among other things that the homeowners’ claim was time barred. The applicable statute of limitations allows a landowner one year within which to commence an action for the taking of land after the landowner realizes or reasonably should realize that his or her property has sustained an injury that is permanent in nature. The homeowners contend that they did not realize that they had suffered permanent injury until the State eliminated the possibility that the injury to their property could be resolved. We affirm the judgment of the Claims Commission upon our finding that the homeowners should have reasonably realized that the injury to their property was permanent over one year prior to the time they filed their claim.

http://www.tba2.org/tba_files/TCA/2005/guerrat121205.pdf


STATE OF TENNESSEE v. DONTE COLLINS

Court: TCCA

Attorneys:

Jeffrey A. Devasher, Nashville, Tennessee (on appeal) and Richard Tennent, Nashville, Tennessee (at trial) for the Appellant, Donte L. Collins.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Kristen Shea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, Donte Collins, was convicted of driving under the influence (“DUI”) and DUI per se. The trial court found that the Defendant had three previous DUI convictions and sentenced him for DUI, fourth offense, a Class E felony. The Defendant now appeals, contending that: (1) that the evidence contained in the record is insufficient to sustain his convictions for DUI and DUI per se; (2) the trial court erred when it allowed a police officer to testify about “clues” he gleaned from field sobriety tests because that was improper scientific testimony; (3) the trial court erred when it allowed the State to impeach the Defendant with his prior conviction for “a felony involving theft”; and (4) the trial court erred when it instructed the jury that it could infer that the Defendant was intoxicated based solely on his blood alcohol level. Finding no reversible error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/collinsd121205.pdf


STATE OF TENNESSEE v. SHERI LYNN COX, ALIAS

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Randall E. Nichols, District Attorney General; and C. Lewis Walton, III, Assistant District Attorney General, for the appellant, State of Tennessee.

Mike Whalen, Knoxville, Tennessee, for the appellee, Sheri Lynn Cox, alias.

Judge: NORMA MCGEE OGLE

The appellee, Sherri Lynn Cox, was charged by presentment with theft of property valued between $1,000 and $10,000. The appellee moved to dismiss the presentment against her because a portion of the evidence against her had been lost. The trial court granted the motion, and the State appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/coxs121205.pdf


STATE OF TENNESSEE v. JONATHAN D. TEARS

Court: TCCA

Attorneys:

Andrew Jackson Dearing, Jr., Shelbyville, Tennessee (on appeal) and Don Himmelburg and Lance B. Mayes, Nashville, Tennessee (at trial), for the Appellant, Jonathan D. Tears.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; W. W. Michael McCown, District Attorney General; Weakley A. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

A Marshall County jury convicted the Defendant of possession of .5 grams of cocaine with intent to sell, possession of .5 grams of cocaine with intent to deliver and possession of marijuana. The trial court merged the cocaine convictions into a single conviction for possession of cocaine with intent to sell and sentenced the Defendant to twelve years for that offense and to a concurrent sentence of eleven months, twenty-nine days for possession of marijuana. On appeal, the Defendant asserts that the evidence was insufficient to support his convictions and that the trial court erred when it denied him alternative sentencing. We find no error, thus, we affirm the judgements of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/tearsj121205.pdf


TONY DUANE WADE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick G. Frogge (on appeal), Nashville, Tennessee, Collier Goodlett (at guilty plea hearing) for the Appellant, Tony Duane Wade.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;John W. Carney, Jr., District Attorney General; John E. Finklea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

In three separate cases, the Defendant, Tony Duane Wade, pled guilty to two counts of forgery and two counts of aggravated burglary. In accordance with a plea agreement, the trial court sentenced the Defendant to an effective sentence of ten years, to be served on community corrections. Subsequently, the trial court found that the Defendant had violated his community corrections and ordered him to serve ten years. The Defendant now appeals contending that the trial court abused its discretion when it revoked his community corrections sentence. Finding no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/wadet121205.pdf


CAROLYN WOOSTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Geoffrey Coston, Franklin, Tennessee for the Appellant, Carolyn Wooster

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

A Dickson County jury convicted the Petitioner, Carolyn Wooster, of aggravated child abuse and neglect and she was sentenced to fifteen years in prison. This court affirmed the conviction on direct appeal and the Tennessee Supreme Court denied review. The Petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel, and the post-conviction court dismissed her petition. The Petitioner appeals, contending that her trial counsel rendered ineffective assistance of counsel at trial by failing to adequately investigate her case. After thoroughly reviewing the record and the applicable law, we conclude that there exists no reversible error. Accordingly, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2005/woosterc121205.pdf


Application of TCA §2-10-206(a)(4) to Statements of Local Candidates

TN Attorney General Opinions

Date: 2005-12-12

Opinion Number: 05-172

http://www.tba2.org/tba_files/AG/2005/ag_05-172.pdf

Limits on State Officials

TN Attorney General Opinions

Date: 2005-12-12

Opinion Number: 05-173

http://www.tba2.org/tba_files/AG/2005/ag_05-173.pdf

TODAY'S NEWS

Legal News
BPR Actions
Upcoming CLE Programs

Legal News
2 express interest in Knox judgeship
Two Republicans - Tim Irwin, lawyer and former University of Tennessee and National Football League player, and Cynthia Chapman, chief referee in the juvenile court - have expressed interest in the juvenile court judgeship left open by the death of Juvenile Court Judge Carey Garrett, the Knoxville News Sentinel reports.
0,1406,KNS_356_4304426,00.html
Washington County Bar selects new president
Samuel McPeak of Herrin and Booze in Johnson City has been elected as Washington County Bar President for 2006. He can be reached at P. O. Box 629, Johnson City, TN 37605, (423) 929-7113.

BPR Actions
Memphis attorney disbarred
Alan L. Pyron of Memphis was disbarred from the practice of law by a Supreme Court of Tennessee order entered on Dec. 7. Disciplinary Counsel filed a Petition for Discipline pursuant to Rule 9, Rules of the Supreme Court of Tennessee. Mr. Pyron filed no answer to the Petition nor did he appear at the hearing in the matter.
pyron_12_12_05.pdf
Upcoming CLE Programs
Special offer for last-minute CLE program
TennBarU is offering more than 150 hours of video replays (100+ ethics hours) between Dec. 27 and Dec. 30 at the Tennessee Bar Center in Nashville. We still need moderators to fill some of the three hour shifts -- moderators will earn 6 hours credit for each shift. Interested? Call TennBarU Administrator Kathleen Caillouette at (615) 383-7421 and schedule your shift today.
endofyear_2005.html

 
 
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