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TODAY'S OPINIONS
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ANNIE B. COCHRAN v. ROBINHOOD LANE BAPTIST CHURCH, ET AL.

Court: TCA

Attorneys:

Reginald L. Eskridge, Janelle R.Eskridge, Memphis, TN, for Appellant.

Herschel L. Rosenberg, Memphis, TN, for Appellees Herschel L. Rosenberg, Memphis, TN, for Appellees.

Judge: HIGHERS

In this appeal, we are asked by the appellant to determine whether the chancery court erred when it granted summary judgment to the appellees, finding that there was no consideration to support the Pastor’s Spouse Benefits agreement between the parties and that the theory of promissory estoppel is inapplicable in this case. On appeal, the appellant asserts that her presence as first lady of the church, her loss of benefits previously received from the Church, and/or the restraint of marriage provision in the agreement constituted legally adequate consideration for the Agreement. In the alternative, the appellant asserts that the doctrine of promissory estoppel is applicable in this case. We affirm.

http://www.tba2.org/tba_files/TCA/2005/cochrana122705.pdf


MICHAEL JERRY COX v. PAMELA KAY COX

Court: TCA

Attorneys:

Edwin C. Lenow, Memphis, Tennessee, for the appellant, Michael Jerry Cox.

Jeffery L. Stimpson, Munford, Tennessee, for the appellee, Pamela Cox.

Judge: FARMER

This is a divorce case. Plaintiff Husband appeals the trial court’s award of alimony in futuro to Defendant/Counter-Plaintiff Wife. We affirm.

http://www.tba2.org/tba_files/TCA/2005/coxm122705.pdf


IN THE MATTER OF THE CONSERVATORSHIP OF DORIS DAVENPORT
DORIS DAVENPORT, ET AL. v. RUTH ADAIR, ET AL.


Court: TCA

Attorneys:

Matthew B. Frere, D. David Sexton, Knoxville, TN, for Appellant, Doris Davenport.

Paul T. Coleman, Irmie K. (Ike) Blanton, III, Knoxville, TN, for Appellant, Teddie J. Clark.

David O. Day, Edward M. Graves, III, Cookeville, TN, for Appellees.

Judge: HIGHERS

In this conservatorship case, we are asked to evaluate the probate court’s decision that an elderly female was mentally disabled and in need of the court’s assistance. The elderly female executed two powers of attorney for health care; one in 1996 and the other in 2003 after the nieces of the elderly female filed their petition in this case to appoint a conservator. The attorney-in-fact under both powers of attorney filed a counter-petition asking the probate court to appoint her conservator over the elderly female. The probate court ruled that the power of attorney executed in 1996 was void due to improper execution and that the power of attorney executed in 2003 was void because it was executed while the elderly female was mentally disabled. The probate court found that the elderly female’s nieces and the attorney-in-fact should not serve as conservators in this case. Instead, the probate court appointed the public guardian to serve as the elderly female’s conservator. The attorney-in-fact and the elderly female filed an appeal to this Court. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2005/davenportd122705.pdf


MELVIN FOSTER, ET AL. v. HAROLD COLLINS, ET AL.

Court: TCA

Attorneys:

Archie Sanders, Memphis, TN, for Appellants, Harold Collins, as Moderator of Mississippi Boulevard Christian Church, Inc., Kym Barnett, Eldredge Williams, Delores Flagg, Susie Williams, Julia Bennett, Edward Reid, Sheilah Easterling, Leroy Norton, Theodore Peasant, Tessera Martin Hardaway, Clyde Hunt, James Hudson, Ervin Isom, Anthony Brown and Veda Bankhead, as the Church Council of MBCC.

John S.Golwen, Kristen Wright, Memphis, TN, for Appellant, Dr. Frank Thomas as Senior Pastor of Mississippi Boulevard Christian Church.

Patricia A. Odell, Memphis, TN, for Appellees, Melvin Foster, Erma Foster, Laura Cade, Allene C. McGuire, Rholedia Morgan, Marie Brooks, James H. Banks, Nevada M. Banks, Bettye M. Friends, Edward J. Friends, Juanita H. McCoy, and Bettye Briggs, Concerned Members of Mississippi Boulevard Christian Church, Inc.

Judge: HIGHERS

Fourteen members of a church filed a complaint against the church leadership seeking an injunction to prevent the church from renewing the pastor’s contract and to enjoin the church leadership from utilizing church funds in a manner which displeased them. The parties ultimately settled the case by entering into a settlement agreement, which the chancery court incorporated into its order dismissing the case with prejudice. Shortly thereafter, the members filed a petition seeking to hold the church leadership in contempt for violating the terms of the settlement agreement. The chancellor found the church leadership to be in civil and criminal contempt of the order dismissing the case and imposed fines and jail time. The church leadership appealed to this Court. After reviewing the record in this case, we hold that the chancery court lacked subject matter jurisdiction over this case from the outset. Accordingly, the resulting order, which served as the basis for the chancery court’s finding of contempt, is void. We reverse the chancery court’s ruling in this case and dismiss the case in its entirety.

http://www.tba2.org/tba_files/TCA/2005/fosterm122705.pdf


JOE W. KING, JR., ET AL. v. GENERAL MOTORS CORPORATION, ET AL.

Court: TCA

Attorneys:

Jonathan Cole, Nashville, TN, for Appellants.

Philip L. Harris, Julie A. LaBunski, pro hac vice, Chicago, IL, for Appellants.

Stephen C. Knight, Nashville, TN, for Appellees.

Judge: HIGHERS

In this appeal, we are asked to determine whether (1) the jury based its awards of damages for lost earning capacity and future medical expenses on speculation; (2) the trial court erred when it denied the defendants’ motion in limine to exclude the testimony of the plaintiffs’ medical experts; and (3) the trial court erred when it denied an award of prejudgment interest to the plaintiffs. The defendants contend that there was no material evidence to support the jury’s awards of lost earning capacity and future medical expenses and that the trial court should have granted their motion in limine because the court was required to exclude the testimony of plaintiffs’ medical experts as a sanction for plaintiffs’ failure to include those medical experts as experts in the plaintiffs’ responses to interrogatories. With regards to prejudgment interest, the plaintiffs contend that the trial court erred when it refused to award prejudgment interest because this type of award is applicable to some awards from personal injury cases. We affirm in part, reverse in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2005/kingj122705.pdf


ARLIN & EDMONDSON, P.C. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., ET AL.

Court: TCA

Attorneys:

Richard Glassman and R. Douglas Hanson of Memphis, Tennessee for Appellant, National Union Fire Insurance Company of Pittsburgh, P.A.

Grant C. Glassford of Franklin, Tennessee for Cross-Appellant, Marlin & Edmondson Barry L. Howard and M. Kristin Selph of Nashville, Tennessee for Appellees, Maurice Pinson and Cooper, Love & Jackson, Inc.

Judge: CRAWFORD

This case involves a denial of coverage under a professional liability insurance policy. The gravamen of this case is whether the Appellant/insurance company received proper notice under the policy, of a claim by Appellee/accounting firm. Appellee/accounting firm purchased the Policy through its usual insurance broker, also an Appellee in this appeal. Appellee/accounting firm notified Appellee/insurance broker of its claim, but no written notice was forwarded to Appellant/insurance company. The trial court found, inter alia, that notice to the Appellee/insurance broker constituted notice to the Appellant/insurance company. Consequently, the trial court entered judgment against Appellant/insurance company and dismissed Appellee/accounting firm’s cause of action against Appellee/insurance broker. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2005/marlin122705.pdf


IN RE A.B., T.B., E.B., AND B.M.
STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v. BELINDA MEDLIN


Court: TCA

Attorneys:

Jeffery T. Washburn, Dresden, Tennessee, for the appellant, Belinda Medlin.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee Department of Children’s Services.

Judge: KIRBY

This is a termination of parental rights case. In 1999, DCS removed three of the four children living with mother from the mother’s home. They were found to be dependent and neglected, and placed in the custody of DCS. The children were in foster care until October 2002, when they were returned to the mother. By that time, the fourth child had been born. In May 2003, all four children were again removed from the mother’s custody based on reports that the mother had left the children unsupervised, and that the eighteen-month-old was found in the street and was almost hit by a car. Authorities later discovered that minors had been drinking alcohol in the mother’s home, and that the mother had struck one of the children in the eye and told her to lie about the resulting bruise. The trial court again found the children to be dependent and neglected. The mother and DCS entered into a permanency plan with several requirements for the mother to complete in order to regain custody of the children. Eight months later, DCS filed the instant petition to terminate the mother’s parental rights, alleging, inter alia, that the conditions which led to the removal of the children from the mother’s home persisted. The trial court granted the petition and terminated the mother’s parental rights. The mother now appeals. We affirm, finding ample evidence on the ground of persistent conditions, as well as clear and convincing evidence that termination of the mother’s parental rights was in the children’s best interest.

http://www.tba2.org/tba_files/TCA/2005/medlinb122705.pdf


DONNA RENEE MORGAN v. JEFFRIE W. MORGAN

Court: TCA

Attorneys:

Scarlett Beaty Latham, Albany, Kentucky, for the appellant, Jeffrie W. Morgan. Scarlett Beaty Latham, Albany, Kentucky, for the appellant, Jeffrie W. Morgan.

Jimmy W. Bilbo, Cleveland, Tennessee, for the appellee, Donna Renee Morgan.

Judge: SUSANO

Donna Renee Morgan (“Mother”) filed a complaint for divorce from her husband of 11 years, Jeffrie W. Morgan (“Father”). The trial court awarded Mother a divorce and designated her as the primary residential parent of the parties’ minor child. In addition, the trial court divided the parties’ property and awarded Mother alimony and child support, basing its child support award on an annual salary for Father of $110,000. Father appeals, arguing that he should have been awarded primary residential parent status and contending that the trial court erred in its determination of his annual income. We affirm.

http://www.tba2.org/tba_files/TCA/2005/morgand122705.pdf


RETAIL BUILDERS, INC. v. MARGARET LATHAM

Court: TCA

Attorneys:

Robert L. DeLaney, Nashville, Tennessee, for the appellant, Retail Builders, Inc.

Curtis M. Lincoln, Hendersonville, Tennessee, for the appellee, Margaret Latham.

Judge: KIRBY

This is a construction case. The plaintiff construction manager agreed to manage the construction of a restaurant for the defendant restaurant owner. Preliminary documents showed that the construction manager agreed to provide its services for a guaranteed maximum price. During construction, there were unanticipated problems that increased costs. After construction was completed, the construction manager sought payments from the restaurant owner over and above the guaranteed maximum price, but the restaurant owner refused to pay more. The construction manager filed this lawsuit against the restaurant owner, claiming that the parties did not enter into an enforceable contract, and that the restaurant owner should pay the construction manager the reasonable value of its services under a theory of quantum meruit. After a bench trial, the trial court held in favor of the restaurant owner, determining that the parties had entered into a binding fixed price contract. The construction manager now appeals. We affirm in part and reverse in part the trial court’s determination and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2005/retailbuild122705.pdf


MAY SLONE v. JAMES M. MITCHELL, ET AL.

Court: TCA

Attorneys:

Mitzi L. Sweet, Morristown, Tennessee, for the appellant, May Slone.

Jeffrey M. Ward, Greeneville, Tennessee, for the appellees, James M. Mitchell and SE Emergency Physicians.

Edward G. White, II, and E. Michael Brezina, III, Knoxville, Tennessee, for the appellee, Jefferson Memorial Hospital, Inc.

Gary Spangler and Travis J. Ledgerwood, Knoxville, Tennessee, for the appellees, F. Gregory Curtin, M.D., and Abercrombie Radiological Consultants, Inc.

Judge: SUSANO

This medical malpractice case focuses on the correct interpretation of Tenn. R. Civ. P. 3 as we attempt to ascertain whether this suit, filed pursuant to the saving statute, was pursued so as to “toll the running of [the] statute of limitations.” The trial court held that, since no process was issued within 30 days of the filing of the plaintiff’s complaint and since the process that was eventually issued and later served on the defendants was not issued within one year of the filing of the complaint, the plaintiff’s suit was filed outside the one-year statute of limitations. The trial court dismissed the plaintiff’s complaint. She appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2005/slonem122705.pdf


SOUTHERN SECURITY FEDERAL CREDIT UNION v. CUMIS INSURANCE SOCIETY, INC.

Court: TCA

Attorneys:

Fred C. Statum, III, Jeffrey S. Price, Nashville, TN, for Appellant.

Michael G. McLaren, William E. Cochran, Jr., Memphis, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are called upon to review the trial court’s order entering summary judgment in favor of the bank. After one of its customers deposited a counterfeit check into its account at the bank, the bank filed a claim with its insurance company to recover for its loss under a bond. Specifically, the bank sought coverage under two provisions in the bond. The bank filed its first motion for summary judgment on one of the bond’s provisions. The insurance company responded by agreeing that, for purposes of ruling on the motion for summary judgment, the bank’s customer intended to commit a fraud when he deposited the check. By doing so, the insurance company sought to trigger an exclusion provision in the bond. Thereafter, the bank filed a second motion for summary judgment on the other provision in the bond. In response, the insurance company, in an effort to create a disputed issue of material fact as to this provision, asserted that the customer did not intended to commit fraud when he deposited the check. The trial court granted the bank’s motions for summary judgment. In regards to the bank’s motions for summary judgment, we reverse the trial court’s award of summary judgment to the bank and find that genuine issues of material fact remain to be decided, therefore, summary judgment is inappropriate.

http://www.tba2.org/tba_files/TCA/2005/southerncu122705.pdf


ANTHONY TIGG ET AL. v. PIRELLI TIRE CORPORATION ET AL.

Court: TCA

Attorneys:

F. Dulin Kelly, Clint Kelly, and Andy L. Allman, Hendersonville, Tennessee, for the appellants, Anthony Tigg, Levance Madden, Jr., Ronald Elliott, Vickie Dillworth, Daphney Cecil, Herschel D. Brooks, Jr., Eugene O. Coffman, Jr., Donald Elliot, Eric Thompson, Karz Miller, and Terrance Bryson.

Richard L. Colbert, Nashville, Tennessee, for the appellee, Pirelli Tire Corporation.

George E. Barrett and Gerald E. Martin, Nashville, Tennessee, for the appellees, United Steelworkers of America, and URW Local Union 670.

Judge: KOCH

This appeal involves a dispute between workers who were hired to replace striking workers and the employer as well as the international and local unions representing the striking workers. After a class action purportedly filed on their behalf was dismissed before the class was certified, some of the replacement workers who would have been members of the class filed another class action complaint in the Circuit Court for Davidson County against the employer and the unions. The employer moved to dismiss the complaint based on the statute of limitations and the doctrine of laches. The trial court granted the motion, and the replacement workers appealed. We have determined that the trial court erred by concluding that the replacement workers’ claims for breach of contract and interference with contract are time-barred and that the doctrine of laches prevented them from maintaining these claims against the employer and the unions.

http://www.tba2.org/tba_files/TCA/2005/tigga122705.pdf


DONNA LYNAE WATSON v. HAROLD GUY WATSON

Court: TCA

Attorneys:

Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Harold Guy Watson.

Mark A. Cowan, Morristown, Tennessee, for the appellee, Donna Lynae Watson.

Judge: SUSANO

This is a divorce case. The parties, Donna Lynae Watson (“Wife”) and Harold Guy Watson (“Husband”), ultimately stipulated to the existence of grounds for divorce and reached an agreement pertaining to the disposition of much of their marital property. A bench trial was held to resolve the parties’ disputed issues, which, among other things, included the issue of how the marital real property should be disposed of in the overall division of the parties’ marital property. The trial court awarded the marital real property to Wife, subject, however, to the mortgage on the property; Husband appeals this action by the trial court. We affirm.

http://www.tba2.org/tba_files/TCA/2005/watsond122705.pdf


BRUCE WOOD v. METROPOLITAN NASHVILLE & DAVIDSON COUNTY GOVERNMENT ET AL.

Court: TCA

Attorneys:

Bruce Wood, Nashville, Tennessee, Pro Se.

Karl F. Dean, Margaret Holleman, and John L. Kennedy, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County, Metropolitan Board of Health, and Metropolitan Public Health Department.

Sharon O. Jacobs, Nashville, Tennessee, for the appellee, Nashville Thermal Transplant Corporation.

Judge: KOCH

This appeal involves a dispute between a citizen and the Metropolitan Government of Nashville and Davidson County regarding the regulatory oversight of the now defunct Nashville Thermal Transfer plant. The Metropolitan Department of Health decided to reopen the plant’s operating permit and to assess monetary penalties for the plant’s violations of air quality regulations. The plant appealed these decisions to the Metropolitan Board of Health. While the administrative appeal was pending, the plant and the Department of Health settled their dispute. The Board of Health approved the settlement and even reduced the monetary penalties assessed against the plant over the objections of a private citizen who had unsuccessfully sought to intervene in the proceeding. The citizen then filed a petition for a common-law writ of certiorari in the Chancery Court seeking judicial review of the Board of Health’s decision. After the plant was totally destroyed by fire, the trial court dismissed the citizen’s petition on the ground that it was moot. We affirm the dismissal because the citizen lacked standing to file the petition for a common-law writ of certiorari.

http://www.tba2.org/tba_files/TCA/2005/woodb122705.pdf


STEPHEN LAJUAN BEASLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stephen Lajuan Beasley, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for appellee, State of Tennessee.

Judge: WADE

The petitioner, Stephen Lajuan Beasley, appeals the summary dismissal of his petition for habeas corpus relief. In this appeal, he alleges that his conviction is void because the indictment was defective and because the sentence was illegal. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2005/beasleys122705.pdf


STATE OF TENNESSEE v. MELISSA ROBERTS

Court: TCCA

Attorneys:

Robert N. Meeks, Collegedale, Tennessee, for the appellant, Melissa Roberts.

Paul G. Summers, District Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Melissa Roberts, was convicted of driving under the influence and violating the implied consent law. See Tenn. Code Ann. §§ 55-10-401, -406 (2003). For the driving under the influence offense, the trial court imposed a sentence of eleven months and twenty-nine days to be suspended after the service of four days of confinement, with supervision until payment of fine and costs. Her driver's license was suspended for one year. The trial court imposed a concurrent one- year suspension of her driver's license for her violation of the implied consent law. In this appeal as of right, the defendant argues that the evidence was insufficient to support her convictions. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2005/robertsm122705.pdf


STATE OF TENNESSEE v. JOSHUA SCHAEFFER

Court: TCCA

Attorneys:

Paul Whetstone, Mosheim, Tennessee, for the appellant, Joshua Schaeffer.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General; and Victor Vaughn and Paige Collins, Assistant District Attorneys General for the appellee, State of Tennessee.

Judge: WADE

The defendant, Joshua Schaeffer, was convicted of aggravated robbery. The trial court imposed a Range I sentence of eight years in the Department of Correction. In this appeal as of right, the defendant alleges (1) that the evidence is insufficient; (2) that the trial court provided an incorrect definition of the term "deadly weapon" in its instructions to the jury; (3) that the trial court committed plain error by giving the "result-of-conduct" definition of "knowingly" in its instructions to the jury; (4) that the trial court improperly allowed into evidence a newspaper headline related to the offense; (5) that a detective impermissibly referred to the crime as "robbery" during his testimony; (6) that the prosecutor's closing argument was improper; and (7) that the cumulative effect of the errors deprived him of the right to a fair trial. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2005/schaefferj122705.pdf


TODAY'S NEWS

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Candidates for judicial posts picked up election petitions in Sullivan County last week. The Kingsport Times News reports on who is in the running.
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Robertson county commission votes down second court
After deferring the issue once already, the Robertson County Commission overwhelmingly decided against adding a second general sessions court last week, the Robertson County Times reports.
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Sullivan County prosecutor honored by peers
Sullivan County prosecutor Robert Montgomery has received the president’s award -- the highest honor given by the Tennessee District Attorney Generals Conference. Montgomery was honored for his work in training other prosecutors and his community involvement, according to the Kingsport Times-News.
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Judge Birch to speak at MLK lunch
Tennessee Supreme Court Justice Adolpho A. Birch Jr. will deliver the keynote address at a Martin Luther King Day brunch on Saturday, Jan. 14. The event, which is sponsored by the NAACP, will be held at the MTSU James Union Building, the Murfreesboro Daily News Journal reports.

Judicial Council seeks to add court in 22nd district
The Tennessee Judicial Council has recommended that an additional judge be added to the 22nd Judicial District, which includes Lawrence, Maury and Wayne counties. The district currently has four judges, according to the Columbia Daily Herald.
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Cocke County assistant DA seeks 4th District post
Cocke County Assistant District Attorney James “Jimmy” Dunn is seeking the office of district attorney general for the fourth judicial district, which also includes Sevier, Jefferson, and Grainger counties, Newport Plain Talk reports.
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Online CLE
New online video courses focus on legal malpractice
Learn about current developments in the area of legal malpractice and common (but often avoidable) mistakes lawyers make in a new online video course from TennBarU. A second new courses focuses on emerging issues in legal malpractice.
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Disaster Recovery: Your Ethical Duty
Tornados, fires and hurricanes happen. This new TennBarU online course will help you prepare for and respond to a disaster with the purpose of improving your chance to successfully recover from it.
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TennBarU CLE Programs
TennBarU End-of-Year CLE Blowout offers 150+ courses
If you still need a few hours of CLE credit to meet your 2005 obligations, TennBarU is ready to help. Now through Dec. 30, TennBarU will be showing videos of our top CLE programs from 7 a.m. to 7 p.m. every day. Drop in and take as many hours as you need. Four programs will be showing at all times.
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