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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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TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

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

KAITLYN CALAWAY EX REL. KATHLEEN CALAWAY v. JODI SCHUCKER, M.D.

Court: TSC

Attorneys:

Carroll C. Johnson, III, and Timothy Holton, Memphis, Tennessee, for the appellant, Kaitlyn Calaway, ex rel. Kathleen Calaway

Whitt, Memphis, Tennessee, for the appellee, Jodi Schucker, M.D.

Darrell E. Baker, Jr., David Shaw Sadlow, and Deborah Craig P. Sanders and Marty R. Phillips, Jackson, Tennessee, for Amicus Curiae, Tennessee Medical Association

John A. Day, Brentwood, Tennessee, for Amicus Curiae, Tennessee Trial Lawyers Association

Judge: WILLIAM M. BARKER, C.J.

Pursuant to Rule 23, we accepted four certified questions of law from the United States District Court for the Western District of Tennessee. The third certified question is the central question of the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled during a plaintiff’s minority? Our answer is that the three-year statute of repose for medical malpractice actions is not tolled during the plaintiff’s minority. Giving effect to the plain language of the statute and finding no exception for minority among the two express exceptions in it—and cognizant of our constitutional role as interpreters, not makers, of the law—we hold that plaintiffs in their minority are bound by the three-year medical malpractice statute of repose.

http://www.tba2.org/tba_files/TSC/2005/calawayk122905.pdf


IN THE MATTER OF: J.L.C., V.R.C. and E.R.C.

Court: TCA

Attorneys:

Connie Reguli, Brentwood, TN, for Petitioner/Appellants, John Richard Simmons and Kimberly Dawn Simmons

R. Dee Hobbs, Chattanooga, TN, for Respondent/Appellee James L. Cordell

Judge: HOLLY M. KIRBY

This is a child support case. Custody of the minor children was removed from the biological father, and he was convicted of and incarcerated for aggravated sexual battery of his child and the manufacture of methamphetamine. The custodians of the children petitioned to terminate the father’s parental rights, adopt the children, and obtain back child support from the father. The father owned 1500 acres of farmland. The trial court terminated the father’s parental rights, assessed back child support against him, found him voluntarily underemployed and, based on the income-producing farmland, imputed an earning potential of $45,000. The custodians appeal, arguing that the trial court erred by not imputing a higher earning capacity to the biological father. We affirm.

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

DISSENTING OPINION
http://www.tba2.org/tba_files/TCA/2005/jlc122905DIS.pdf


RHONDA FAY DEMONBREUN v. RICHARD AUSTIN DEMONBREUN

Court: TCA

Attorneys:

Richard Austin Demonbreun, Nashville, Tennessee, Pro Se.

Rose Palermo, Nashville, Tennessee, for the appellee, Rhonda Fay Demonbreun.

Judge: CHARLES D. SUSANO, JR.,

In this post-divorce case, Richard Austin Demonbreun (“Father”), filed a petition to modify the parties’ visitation arrangement, seeking additional time with one of the parties’ three children. Rhonda Fay Demonbreun (“Mother”), the primary residential parent of the children, countered with a petition requesting an increase in child support and the imposition of an obligation upon Father to pay the children’s unreimbursed medical expenses. In addition, Mother sought one-half of the refund associated with the parties’ 1998 income tax return, and an award of her attorney’s fees and court costs. Following a bench trial, the trial court (1) denied Father’s petition to modify visitation with his oldest son; (2) increased Father’s child support obligation and his share of non-covered medical expenses; (3) awarded Mother one-half of the 1998 income tax refund; (4) awarded Mother $5,000 in attorney’s fees; and (5) ordered Father to pay all court costs. Father appeals all of the trial court’s decrees, and Mother seeks an award of attorney’s fees for the filing of a frivolous appeal. We affirm in part and reverse in part, but do not find this appeal to be frivolous in nature.

http://www.tba2.org/tba_files/TCA/2005/demonbreunr122905.pdf


LDI DESIGN, LLC, v. GLENN G. DUKES, ET AL.

Court: TCA

Attorneys:

K. Harlan Dodson, III and Michael B. Bressman, Nashville, Tennessee, for the appellants, Glenn G. Dukes, Dukes & Co., and Spencer Hall, LLC.

Helen F. Bean and Mark A. Baugh, Nashville, Tennessee, for the appellee, LDI Design, LLC.

Judge: FRANK G. CLEMENT, JR.

This appeal arises from a multi-faceted business dispute. LDI Design, LLC, an engineering firm, was engaged by Dukes & Co., a real estate developer, to design plans for Spencer Hall, a planned subdivision in Franklin, Tennessee. LDI provided its engineering services, however, Dukes failed to fulfill its financial obligation to LDI. The parties negotiated a new agreement in April 1999 compromising a claim for damages by Dukes in consideration of a reduced fee for LDI’s services. After Dukes failed to honor the new agreement, LDI filed this action. Dukes filed an answer denying liability and filed a counter complaint for damages due to deficiencies in the plans prepared by LDI. Spencer Hall, LLC, owner of the Spencer Hall subdivision, while not a party to the contract, joined in the counter complaint claiming to be a co-developer of the project and the third-party beneficiary of the contract between LDI and Dukes. The trial court dismissed the counterclaim finding the renegotiated agreement between LDI and Dukes constituted an accord and satisfaction that barred Duke’s claims, and the evidence insufficient to prove any claim for damages against LDI. Although we find the new agreement did not bar Dukes’ claim, we affirm the trial court’s finding that the evidence failed to prove any claim for damages against LDI. We, therefore, affirm the dismissal of all claims against LDI.

http://www.tba2.org/tba_files/TCA/2005/ldi122905.pdf


MARY TAYLOR LOPEZ v. DANNY HOLBROOK TAYLOR ET AL.

Court: TCA

Attorneys:

Brad W. Hornsby and Aaron S. Guin, Murfreesboro, Tennessee, for the appellant, Mary Taylor Lopez.

Gregory D. Smith, Nashville, Tennessee, for the appellees, Danny Holbrook Taylor, Adam Holbrook Taylor, and Phillip Anthony Taylor.

Judge: WILLIAM C. KOCH, JR.

This appeal involves a dispute between divorced parents over one of their son’s college expenses. Their older son became eligible for a substantial tuition discount after his father was employed by the university where he was enrolled. However, the father and son concealed the father’s employment and the son’s discount from the mother and actually sent her statements that did not reflect the discount. The mother paid one-half of the expenses reflected in these statements until she discovered the tuition discount. She then filed suit against her former husband and her son in the Circuit Court for Wilson County alleging breach of contract and fraud. She also sought a declaration regarding her continuing obligation to pay her son’s college expenses. Following a bench trial, the trial court concluded that the father had breached the marital dissolution agreement and ordered the father to pay the mother $2,737.01. The court also found that the mother had breached the marital dissolution agreement by declining to pay her son’s college expenses after discovering the tuition discount and ordered her to resume paying her share of these expenses. The mother appealed. We have concluded (1) that the father committed a material breach of the marital dissolution agreement, (2) that the father and the son engaged in fraudulent conduct by concealing the tuition discount from the mother and then pocketing her overpayments, (3) that the mother did not breach the marital dissolution agreement when she stopped paying her son’s college expenses, and (4) that the trial court erred in calculating the amount of the mother’s overpayment. Accordingly, we have determined that the mother is entitled to recover $3,590 from the husband and that the actions of the father and son warrant terminating her obligation to pay the son’s college expenses.

http://www.tba2.org/tba_files/TCA/2005/lopezm122905.pdf


VICKI LYNN GASS NICHOLS v. LYNN ALLEN SCHUBERT, ET AL.

Court: TCA

Attorneys:

Dennis L. Tomlin, Hendersonville, TN, for Appellant

Andra J. Hedrick; Jennifer Orr Locklin, Nashville, TN, for Appellees

Judge: ALAN E. HIGHERS

The wife died in 1998, and her holographic will was admitted to probate and the estate closed. In 2002, the husband died, and his formally executed will was admitted to probate. Thereafter, his executrix determined that a question existed concerning the ownership interest in the marital residence held by the husband at his death. As a result, the executrix filed a declaratory judgment action in the probate court to construe the wife’s holographic will. At trial, the wife’s daughter by a previous marriage attempted to prove that the wife’s holographic will was a forgery. The trial court determined that the daughter’s proof was not credible, and the court ruled that the wife’s holographic will vested fee simple title of the marital residence in the husband following her death. The wife’s daughter filed a motion for a new trial. While the motion was pending, the daughter filed an action in the chancery court against the husband’s children from a previous marriage asserting, in essence, the same allegations she raised in the probate court action. The probate court subsequently denied the daughter’s motion for a new trial. In turn, the chancery court transferred the complaint to the probate court, and the probate court entered an order dismissing the complaint. The daughter filed an appeal to this Court raising numerous issues related to the declaratory judgment action and the compliant filed in chancery court. As for the declaratory judgment action, we are without jurisdiction to entertain issues related to that case since the daughter failed to file a timely appeal. As for the complaint the daughter filed in chancery court, we find that it is, in essence, an action to contest the validity of the holographic will of her mother. As such, it is barred by the applicable statute of limitations. Therefore, the probate court was correct in dismissing the complaint. Moreover, we remand this case to the trial court for the entry of an award of damages to the Appellees for the Appellant’s filing of a frivolous appeal.

http://www.tba2.org/tba_files/TCA/2005/nicholsv122905.pdf


MARILYN STAVELY v. AMSOUTH BANK (MILAN, TN) and MARY JANE MILLER

Court: TCA

Attorneys:

Marilyn Stavely, Milan, Tennessee, pro se.

Jonathan O. Steen, Jackson, Tennessee, for appellees AmSouth Bank and Mary Jane Miller.

Judge: HOLLY M. KIRBY

This is an action to recover damages for the alleged improper disposition of funds in a conservatorship account, conspiracy, and false advertising. The plaintiff’s mother was placed under a conservatorship, and the conservator opened an account at the defendant bank for the conservatorship. After the plaintiff’s mother died, the account was settled and the accounting was approved by the Gibson County Chancery Court. The plaintiff sought to recover funds from the account, but was informed that the account was settled. The plaintiff sued the bank and its branch manager for conspiracy, false advertising, and disappearing funds. The trial court granted the defendants’ motion to dismiss. We affirm.

http://www.tba2.org/tba_files/TCA/2005/stavelym122905.pdf


IN THE MATTER OF: T.M.C.

Court: TCA

Attorneys:

D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellant, Michelle Terry.

Paul G. Summers, Attorney General and Reporter; and Douglas Earl Dimond, Assistant Attorney General, for the State of Tennessee.

Deana C. Hood, Franklin, Tennessee, for the appellee, Sonja and Michael Creighton.

Robert Harry Plummer, Jr., Franklin, Tennessee, Guardian ad litem.

Judge: WILLIAM B. CAIN

Mother appeals custody order of the Juvenile Court of Williamson County relative to her oldest child who had been previously determined by that Court to be a dependent and neglected child. The appeal is dismissed for lack of subject matter of jurisdiction and the case remanded to the Williamson County Juvenile Court.

http://www.tba2.org/tba_files/TCA/2005/tmc122905.pdf


STATE OF TENNESSEE v. RICHARD LEE FRAZIER

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender, and Leslie S. Hale, Assistant Public Defender, for the appellant, Richard Lee Frazier.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

The defendant, Richard Lee Frazier, appeals the Sullivan County Criminal Court’s order revoking his probation. On appeal, the defendant claims that although he violated his probation, the trial court abused its discretion by revoking his probation and ordering him to serve his sentence in confinement. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/frazierr122905.pdf


BRIAN ALAN HANNA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Harry A. Christensen, Lebanon, Tennessee, for the appellant, Brian Alan Hanna.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Howard Lee Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

The petitioner, Brian Alan Hanna, appeals from the Wilson County Criminal Court’s summary dismissal of his petition for post-conviction relief from his conviction of theft of property valued over $1000, six forgery convictions, and effective sentence of eight years. He contends that the trial court erred in concluding that his petition was untimely filed and in denying his motion to discharge fines and costs. We affirm the trial court regarding the forgery convictions, but reverse the dismissal regarding the theft and remand the case to the trial court.

http://www.tba2.org/tba_files/TCCA/2005/hannab122905.pdf


STATE OF TENNESSEE v. SLEDA RICHARDS, a.k.a. SLEDA BRAGG

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender, and William A. Kennedy, Assistant Public Defender, for the appellant, Sleda Richards, a.k.a. Sleda Bragg.

Paul G. Summers, Attorney General and Reporter; Jane L. Beebe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Ricky A.W. Curtis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

The defendant, Sleda Richards, pled guilty to two counts of reckless aggravated assault, a Class D felony, one count of running a stop sign, a Class C misdemeanor, one count of driving under the influence, a Class A misdemeanor, one count of driving on a revoked license, a Class B misdemeanor, and one count of failure to appear, a Class E felony. The Sullivan County Criminal Court sentenced her to a total effective sentence of six years as a Range I, standard offender to be served in the Department of Correction. The defendant appeals, contending that the trial court erred in denying her probation or alternative sentencing. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/richardss122905.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: GARY R. WADE

The defendant, Melissa Roberts, was convicted of driving under the influence and was also found to have violated 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 judgment of the trial court is affirmed but modified to the extent that violation of the implied consent law is not a criminal conviction or a Class A misdemeanor.

http://www.tba2.org/tba_files/TCCA/2005/robertsm122905.pdf


STATE OF TENNESSEE v. ROBERT K. WARD

Court: TCCA

Attorneys:

James R. Hickman, Jr., Sevierville, Tennessee, for the Appellant, Robert K. Ward.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Al C. Schmutzer Jr., District Attorney General; and Joseph A. Baker, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant was convicted of aggravated rape, and the trial court sentenced him to sixty years, as a Range III, persistent, violent offender. The Defendant appeals, contending that: (1) the trial court erred when it denied his motion to suppress his written statement to the police; (2) the record contains insufficient evidence to support his conviction; (3) the trial court improperly commented upon the testimony of a witness; and (4) the trial court improperly sentenced him. After reviewing the record and the applicable law, we conclude that there exists no reversible error. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/wardr122905.pdf

JOSEPH M. TIPTON, J., concurring
http://www.tba2.org/tba_files/TCCA/2005/wardr122905CON.pdf


DCS' Authority to File CICA Claim on Behalf of Children in State Custody

TN Attorney General Opinions

Date: 2005-12-29

Opinion Number: 05-185

http://www.tba2.org/tba_files/AG/2005/ag_05-185.pdf

Procedures Governing Amendments to the BEP Equalization Formula Pursuant to Tenn. Code Ann. §49-3-356

TN Attorney General Opinions

Date: 2005-12-29

Opinion Number: 05-186

http://www.tba2.org/tba_files/AG/2005/ag_05-186.pdf

Ability of T.C.R.S. Group 2 Retirees to Continue Drawing Benefits While Serving as Circuit Court Clerk

TN Attorney General Opinions

Date: 2005-12-29

Opinion Number: 05-187

http://www.tba2.org/tba_files/AG/2005/ag_05-187.pdf

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New law simplifies clerk fees, strengthens courthouse security
A new state law, effective Jan. 1, could generate millions of dollars to bolster courthouse security in 94 counties.
clerkfees_122905.pdf
Editorial view: courts are cluttered with frivolity
An editorial in the Chattanooga Times Free Press this week argues that courts are cluttered with frivolity.
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BPR Actions
Greeneville attorney suspended
The Supreme Court of Tennessee on Dec. 19 entered an Order suspending Lawrence A. Welch, Jr. for three years.
welch_12_29_05.pdf
Nashville attorney censured
Nashville attorney C. LeAnn Smith received a public censure by the Board of Professional Responsibility on Dec. 27.
smith_12_29_05.pdf
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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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