Register now! TBA Convention coming soon to Memphis

It's not too late to join your colleagues from the Tennessee legal community at the state's largest and longest-running gathering - the annual Tennessee Bar Association convention. This year's event will be in Memphis, June 14-17 at the Peabody Hotel. The event will again be held in conjunction with gatherings of the Tennessee Judicial Conference, the Tennessee Trial Lawyers Association and the Tennessee Lawyers' Association for Women. Register or find out more now.

http://www.tba.org/convention2006/index.html

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.

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

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

RUTH CANTRELL v. CARRIER CORPORATION, ET AL.

Court: TSC

Attorneys:

Bruce Timothy Pirtle, McMinnville, Tennessee, for the Appellant-Defendant, Carrier Corporation.

Barry H. Medley, McMinnville, Tennessee, for the Appellee-Plaintiff, Ruth Cantrell.

Judge: HOLDER

The plaintiff developed carpal tunnel syndrome in both arms while employed by the defendant. We granted this appeal to determine whether an eight-week leave of absence during which the defendant paid the plaintiff short-term disability benefits unrelated to the carpal tunnel syndrome should be included in the average weekly wage calculation. We conclude that the days during which the plaintiff was on leave of absence should be excluded from the average weekly wage calculation. We further conclude that the record supports the trial court's permanent disability award of 50% to the left arm and 45% to the right arm but that the separate awards should be combined and averaged to equal 47.5% for the loss of two arms. Accordingly, the findings of the Special Workers' Compensation Appeals Panel are adopted in part and rejected in part. The trial courtís judgment is affirmed in part, modified in part, and reversed in part, and the case is remanded for further proceedings in accordance with this opinion.

http://www.tba2.org/tba_files/TSC/2006/cantrellr053006.pdf


SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2006/certlist053006.pdf


SANDRA DAVID v. SATURN CORPORATION
Corrected Case


Court: TWCA

Attorneys:

Richard A. House, Nashville, Tennessee, attorney for appellant, Sandra David.

Marcia McShane Watson, Nashville, Tennessee, attorney for appellee, Saturn Corporation.

Judge: INMAN

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Saturn's employer-funded disability plan paid the Plaintiff disability benefits after reaching maximum medical improvement when she was placed out of work because her physician-ordered restrictions could not be accommodated. The Plaintiff claims error in the offsetting of these disability payments. The judgment of the trial court is affirmed.

Correction: Case corrected to remove Justice Clark from the judgment order as she did not participate in that decision.

http://www.tba2.org/tba_files/TSC_WCP/2006/davids_corr053006.pdf


ESTATE OF DENNIS MCFERREN v. INFINITY TRANSPORT, LLC

Court: TWCA

Attorneys:

Keith M. Alexander, Southhaven, Mississippi, for the Plaintiff-Appellant, Estate of Dennis McFerren.

Lori Dale Parish, Memphis, Tennessee, for the Defendant-Appellee, Infinity Transport, LLC.

Judge: PEEPLES

This workers' compensation appeal has been referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. We find that the trial court did not have jurisdiction over the defendant in the first lawsuit due to insufficient service of process pursuant to Tennessee Rule of Civil Procedure 4.03. The doctrine of prior suit pending does not apply, and the second lawsuit was not barred. The trial court erred in setting aside the default judgment against the defendant and dismissing the plaintiff's complaint. Accordingly, we reverse the judgment of the trial court and remand the case to the trial court for reinstatement of the default judgment against the defendant.

http://www.tba2.org/tba_files/TSC_WCP/2006/mcferrend053006.pdf


RANDALL BIRCHFIELD dba RANDALL BIRCHFIELD REAL ESTATE AND AUCTION v. MICHAEL L. PHILLIPS, ET AL.

Court: TCA

Attorneys:

Ronald D. Arnold, Johnson City, Tennessee, for the appellants, Jimmy B. Phillips and Judy H. Phillips.

Kathryn J. Dugger-Edwards, Elizabethton, Tennessee, for the appellee, Randall Birchfield dba Randall Birchfield Real Estate and Auction.

Judge: SUSANO

Randall Birchfield (the auctioneer) operates a realty and auction business under the trade name of Randall Birchfield Real Estate and Auction. He entered into a written contract (the auction contract) with Jimmy B. Phillips and his wife, Judy H. Phillips (the sellers), by the terms of which he agreed to sell at auction certain tracts of real property owned by the sellers. At the auction, Michael L. Phillips, who is Jimmy's brother, along with Michael's wife, Elizabeth Phillips (the buyers), were the successful bidders. The sellers and the buyers then executed a contract entitled "Offer to Purchase with Acceptance" (the purchase contract), which contract was also signed by the auctioneer. Despite the existence of a facially-valid contract, the buyers failed to carry through with their contractual obligations. As a consequence, the sale did not close. The auctioneer filed suit against the sellers and the buyers. The trial court held that the sellers are liable to the auctioneer for the 10% commission specified in the auction contract and for prejudgment interest at a rate of 2.25%. The auctioneer's claim against the buyers was dismissed. The sellers appeal and both sides raise issues. We affirm the trial court's judgment with respect to the auctioneer's commission, but vacate the trial court's determination that 2.25% is the appropriate rate of prejudgment interest. On the subject of prejudgment interest, we remand this case to the trial court with instructions.

http://www.tba2.org/tba_files/TCA/2006/birchfieldr053006.pdf


TERRY L. HARRIS, ET AL. v. JEFFREY L. STOVER and NATIONWIDE MUTUAL FIRE INSURANCE COMPANY

Court: TCA

Attorneys:

Parks T. Chastain, David M. Hannah, Nashville, TN, for Appellant, Nationwide Mutual Fire Insurance Company.

Randall N. Songstad, Cordova, TN, for Appellees.

Judge: HIGHERS

In this appeal, we are asked to determine whether the chancery court properly granted the plaintiffs' motion for summary judgment. In this case, a lessor and his insurance company brought a direct action against a lessee and the lessee's insurance company seeking a declaration of the parties' rights under the lease agreement and reimbursement to the lessor's insurance company for amounts paid to the lessor for damages to the rental property as a result of a fire while the lessee resided on the property. On appeal, the appellant argues that under the terms of the insurance policy maintained by the lessee, no obligation to pay the lessor or his insurance company arose as a matter of law. We reverse the decision of the chancery court and remand to the chancery court for the entry of an order granting summary judgment to the appellant.

http://www.tba2.org/tba_files/TCA/2006/harrist053006.pdf


IN RE MEAGAN E.

Court: TCA

Attorneys:

Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, Heather E.

Paul G. Summers, Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services.

Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, Janice Beasley.

Judge: SUSANO

The trial court terminated the parental rights of Heather E. (Mother) to her child, Meagan E. (DOB: March 28, 2000), upon finding, by clear and convincing evidence, that grounds for termination existed and that termination was in the best interest of the child. Mother appeals. We affirm in part and vacate in part.

http://www.tba2.org/tba_files/TCA/2006/meagane053006.pdf


CONNIE SUE CRAIG MILLS v. THOMAS V. MILLS

Court: TCA

Attorneys:

Marvin Berke and Megan C. England, Chattanooga, Tennessee for the Appellant, Thomas V. Mills.

William H. Horton, Chattanooga, Tennessee for the Appellee, Connie Sue Craig Mills.

Judge: SWINEY

Connie Sue Craig Mills (Wife) filed a Petition for Contempt and Complaint for Damages against Thomas V. Mills (Husband) claiming, in part, that Husband had failed to disclose a judgment lien and rent concessions due to a tenant on property that Husband was ordered to transfer to Wife pursuant to the parties' marital dissolution agreement. Wife also claimed that Husband tortiously interfered with a contract Wife had to refinance the property. After a bench trial, the Trial Court found and held, inter alia, that Wife would have to pursue her claim for repayment of the rent concessions in a separation action against the tenant, that Wife was entitled to a judgment against Husband to recover the amount of the discount offered to Wife by the prior note holder, and that Wife was entitled to an award of attorney's fees. Husband appeals claiming that he was not in contempt of any court order and that Wife did not state a valid claim for, or prove, tortious interference with contract. We reverse.

http://www.tba2.org/tba_files/TCA/2006/millsc053006.pdf


LATREAYL MITCHELL v. MICHAEL GREEN

Court: TCA

Attorneys:

Britton J. Allan, Memphis, TN, for Appellant.

Gail W. Horner, Germantown, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the juvenile court erred when it increased the amount of child support the father was required to pay the mother for their child born out of wedlock. The father originally filed a petition to modify child support seeking to decrease his child support obligation based on the fact that he had another child with another woman that currently resides with him. The juvenile court increased his child support obligation finding that he failed to visit his child after the mother moved to Knoxville, Tennessee, including certain periods of time when the mother brought the child to Memphis, Tennessee to visit the father. The father contends that it was error for the juvenile court to increase his child support obligation because the mother was in violation of the parental relocation statute, Section 36-6-108 of the Tennessee Code, and that the father was prevented from visiting his child due to the distance and his medical condition. We affirm.

http://www.tba2.org/tba_files/TCA/2006/mitchelll053006.pdf


STATE OF TENNESSEE, ex rel. LINDA OAKES v. CHARLES J. WALDO

Court: TCA

Attorneys:

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Charles J. Waldo.

Paul G. Summers, Attorney General and Reporter, and Juan G. Villase_or, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Linda Oakes.

Judge: SUSANO

This is a post-divorce case addressing the subject of child support. Charles J. Waldo (Father), the obligor parent, appeals the trial court's order, which found him in contempt for willful failure to pay child support and required him to pay an arrearage of $36,243 to the Central Child Support Receipting Unit of the Department of Human Services (DHS). Father argues that the trial court should have ordered the arrearage to be deposited in certificates of deposit titled jointly in the name of Father and the child for whose benefit the support had been ordered. His underlying argument is that that the arrearage should go to the child, not the obligee parent, Linda Oakes (Mother). We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2006/oakesl053006.pdf


RONALD K. PENDERGRAPH v. JULIANA T. (BATES) PENDERGRAPH

Court: TCA

Attorneys:

Ronald K. Pendergraph, Pikeville, Tennessee, Pro Se Appellant.

Juliana T. (Bates) Pendergraph, Smithville, Tennessee, Pro Se Appellee.

Judge: SWINEY

Ronald K. Pendergraph (Husband) sued Juliana T. (Bates) Pendergraph (Wife) for a divorce by filing a complaint in the Chancery Court for Bledsoe County (the Chancery Court). Wife made no appearance in the case. Husband filed a motion for a default judgment and numerous other motions. The Chancery Court dismissed the case for lack of venue. Husband appeals to this Court claiming, in part, that the Chancery Court erred in dismissing his case and in failing to rule on Husband's pending motions. We affirm.

http://www.tba2.org/tba_files/TCA/2006/pendergraphr053006.pdf


BROOKE RATHNOW b/n/f/ RICH and DIANE RATHNOW v. KNOX COUNTY, ET AL.
With Concurring Opinion


Court: TCA

Attorneys:

Martha Haren McCampbell, Knoxville, Tennessee, for the appellants Knox County and the Knox County Board of Education.

William S. Lockett, Knoxville, Tennessee, for the appellee Brooke Rathnow b/n/f Rich and Diane Rathnow.

Judge: LEE

A high school student was injured when she fainted after viewing a first aid instructional video depicting simulated wounds that was being shown in one of her classes. The student, through her parents, sued Knox County and the Knox County Board of Education under the Tennessee Governmental Tort Liability Act, alleging that the teacher supervising the class was negligent in allowing her to leave the classroom unattended because it was foreseeable that she might be suffering a physical reaction to the video and that she might faint. The trial court entered judgment in favor of the plaintiff and awarded her damages in the amount of $30,000. The defendants appeal, arguing that plaintiff's fainting was not foreseeable and that, even if the trial court was correct in its finding of negligence, the trial court awarded excessive damages. Upon our determination that the harm suffered by the student was not reasonably foreseeable, we reverse the judgment of the trial court and dismiss this case.

http://www.tba2.org/tba_files/TCA/2006/rathnowb053006.pdf

SUSANO CONCURRING
http://www.tba2.org/tba_files/TCA/2006/rathnowb_con053006.pdf


GRENDA RAY HARMER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Douglas A. Blaze, Knoxville, Tennessee, for the petitioner, Grenda Ray Harmer.

Paul G. Summers, Attorney General and Reporter; Renee Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and John Halstead, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Grenda Ray Harmer, appeals the post-conviction court's denial of post-conviction relief. On appeal, he alleges that (1) he received the ineffective assistance of counsel with respect to his suppression hearing; and (2) his constitutional rights were violated by the loss and destruction of evidence relevant to the suppression hearing. Following our review of the record and the parties' briefs, we affirm the order of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/harmerg053006.pdf


GARY WAYNE SUTTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Susan E. Shipley and Gerald L. Gulley, Knoxville, Tennessee, for the appellant, Gary Wayne Sutton.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Alice B. Lustre, Senior Counsel; Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Gary Wayne Sutton, appeals as of right from the order of the Blount County Circuit Court denying his petition for post-conviction relief from his 1992 conviction for first degree murder and resulting death sentence. The petitioner claims (1) that he received the ineffective assistance of trial counsel because counsel (a) lacked the necessary experience and qualifications to handle a capital case, (b) were deficient in their choice of defense strategy and decision to share information and responsibilities with counsel for the co-defendant, (c) failed to present a coherent defense, (d) failed to obtain adequate expert assistance in his defense, and (e) failed to prepare adequately for the penalty phase of his trial; (2) that he received the ineffective assistance of appellate counsel because counsel (a) failed to challenge the trial court's denial of a requested jury instruction on residual doubt at sentencing and (b) failed to provide a complete record for purposes of appellate review as to whether the trial court complied procedurally with Tennessee Rule of Evidence 404(b) in admitting evidence of another crime at trial; (3) that the prosecution failed to disclose exculpatory evidence regarding another possible suspect; (4) that the failure to include in the indictment the aggravating circumstance that the petitioner had a previous felony conviction involving violence invalidates his death sentence; and (5) that the cumulative effect of errors at the trial violates his rights to due process. We conclude no reversible error of law exists, and we affirm the judgment of the trial court denying post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2006/suttong053006.pdf


TODAY'S NEWS

Legal News
Election 2006
BPR Actions

Legal News
Trial begins for Roscoe Dixon
The federal bribery and extortion trial of former state Sen. Roscoe Dixon began today as other Tennessee Waltz defendants anxiously watch to see how the proceeding unfolds. Seven of the 10 defendants have opted for jury trials rather than negotiate plea agreements. The Memphis Commercial Appeal explores possible trial tactics in the case.
Read more here
Bradley County bar officers named
The Bradley County Bar Association has elected new leadership, which will take office on June 1. President is Douglas N. Blackwell II of Cleveland. John Kimball of Bell & Associates in Cleveland takes the reigns as vice president. M. Keith Roberts of Starnes, Roberts & Associates PLLC in Cleveland assumes the office of secretary and Joshua H. Jenne of Chattanooga's Spears, Moore, Rebman & Williams becomes secretary.

650 boys participate in Supreme Court program
Boys State delegates from high schools around the state will participate in the Supreme Court Advancing Legal Education for Students (SCALES) Program, an initiative designed to educate young Tennesseans about the judicial branch of government. The students will hear oral arguments in two actual Supreme Court cases on Wednesday as part of a weeklong program sponsored by the American Legion, the court announced today.

U.S. Supreme Court rejects free speech protection for officials
The nation's high court today made it harder for government employees to claim they were retaliated against for disclosing official misconduct. By a 5-4 vote, justices said the nation's 20 million public employees do not have unfettered free speech rights to disclose the government's inner-workings.
Read more about the case in this AP story
Election 2006
Hearing set for tomorrow in Knox County term limits case
Knox County Chancellor John Weaver has agreed to speed up legal proceedings questioning the county's charter and application of term limits to certain officers. He has scheduled a hearing tomorrow but election watchers are wondering if the suit can be resolved in time for the Aug. 3 general election.
Read more in the News Sentinel
AG opinion allows deputy to seek office
The Tennessee Attorney General has reversed a decades-old opinion, and said it's alright for sheriffs' deputies covered under civil-service guidelines to run for office, the Knoxville News Sentinel reports.
Read how the ruling is affecting the Anderson County sheriff's race
BPR Actions
Memphis lawyer held in contempt
On May 19, the Tennessee Supreme Court found Warner Hodges III in willful criminal contempt for practicing law while suspended. He was ordered to serve 10 days in jail, be fined $50 and pay the costs of the disciplinary proceeding. His jail time was suspended, however, pending compliance with a TLAP contract.
Read the BPR's presss release
Memphis attorney placed on disability
On May 23, the Supreme Court transferred the law license of Keith C. Kyles of Memphis to disability inactive status while he recovers from brain surgery.
Read the BPR's notice

 
 
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