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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.

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

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

DAVID E. CLARK v. LOWE’S HOME CENTERS, ET AL.

Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Juan G. Villasenor, Assistant Attorney General, for the appellant, State of Tennessee Department of Labor, Second Injury Fund.

Debbie C. Holliman and Everett G. Holliman, Carthage, Tennessee, for the appellee, David E. Clark.

Judge: JANICE M. HOLDER

We granted this appeal to address whether a previous workers’ compensation award can be reconsidered under Tennessee Code Annotated section 50-6-241(a)(2) if the employee sustains subsequent work-related injuries for which he seeks compensation. Upon review, we hold that reconsideration of a prior award under Tennessee Code Annotated section 50-6-241(a)(2) is not precluded by a subsequent work-related injury for which the employee seeks compensation. Accordingly, we affirm the trial court’s judgment.

http://www.tba2.org/tba_files/TSC/2006/clarkd_082406.pdf


MARY WARREN KESSER v. PETER HALE KESSER

Court: TSC

Attorneys:

Allan J. Wade and Lori Hackleman Patterson, Memphis, Tennessee, for the appellant, Peter Hale Kesser.

Darrell D. Blanton, Memphis, Tennessee, for the appellee, Mary Warren Kesser.

Judge: JANICE M. HOLDER

The parties entered into a marital dissolution agreement that included both a provision requiring the husband to pay a fixed amount of child support each month and a provision requiring the husband to pay 21% of bonuses and all other income as child support. After careful review, we conclude that the 21% provision is legally enforceable as part of the parties’ agreement and that the 21% provision merged into the final decree of divorce and therefore became subject to modification. Although the trial court found that a modification of both the fixed amount provision and the 21% provision was warranted, the trial court erred in failing to apply the applicable statute and the child support guidelines in effect as of the date of the hearing and in failing to consider the husband’s adoption of three children in modifying the 21% provision. The trial court properly refused to consider the husband’s capital losses in calculating child support due from his capital gains. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/kesserp_082406.pdf


STATE OF TENNESSEE v. ALICE SMOTHERMAN

Court: TSC

Attorneys:

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Alice Smotherman.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Bledsoe and Mark A. Fulks, Assistant Attorneys General, for the appellee, State of Tennessee.

Judge: JANICE M. HOLDER

We granted this appeal to determine a certified question of law: whether the search of the defendant’s residence by law enforcement officers based upon an affidavit that included information from a confidential informant who was referred to as an “agent” should be suppressed. The Court of Criminal Appeals held that an inadequate appellate record prevented an examination of the issue. We conclude, however, that the absence of the transcript of the suppression hearing from the appellate record and any failure to enter the search warrant and the affidavit into evidence during the suppression hearing does not preclude appellate review under the circumstances of this case. We further conclude that the reference in the affidavit to the confidential informant as an “agent,” without more, is insufficient to establish that the informant was a law enforcement officer whose information is considered to be reliable and that the affidavit otherwise fails to establish probable cause for issuance of the search warrant. Accordingly, we reverse the judgment of the Court of Criminal Appeals, vacate the defendant’s conviction, and dismiss the charges.

http://www.tba2.org/tba_files/TSC/2006/smothermana_082406.pdf


COLUMBIA GULF TRANSMISSION COMPANY v. THE GOVERNORS CLUB PROPERTY OWNERS ASSOCIATION, ET AL.

Court: TCA

Attorneys:

Scott K. Haynes and Elizabeth L. Guenther, Nashville, Tennessee, for the appellants, The Governors Club Property Owners Association, G. C. Finance, LLC, and P. J. Management, LLC.

Lela M. Hollabaugh and Eileen Burkhalter Smith, Nashville, Tennessee, for the appellee, Columbia Gulf Transmission Company.

Judge: FRANK G. CLEMENT

The owner of a perpetual natural gas pipeline right-of-way easement filed this Declaratory Judgement action to resolve a dispute with the fee simple owners regarding its right of ingress and egress to replace, upgrade and maintain existing underground pipelines. The trial court declared the rights of the gas company were clearly and unambiguously stated in the grant of easement, that it had the right of ingress and egress stated in the Complaint and enjoined the defendants from obstructing or interfering with those rights. The defendants appeal contending the time and manner of the exercise of the right of easement was ambiguous in the grant, and that the court erred by failing to consider the undue burden on the defendants caused by the time the work was scheduled. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2006/columbiagulf_082406.pdf


CLAUDIA HENNEBERRY and husband, SCOTT HENNEBERRY v. JOHN (RANDY) SIMONEAUX and wife, MRS. JOHN (RANDY) SIMONEAUX

Court: TCA

Attorneys:

Niles S. Immo, Nashville, Tennessee, for Appellants.

William B. Jakes, III., Nashville, Tennessee, for Appellees.

Judge: HERSCHEL PICKENS FRANKS

Plaintiffs sued parents of minor child for damages for injuries caused by minor child. The Trial Court granted summary judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2006/henneberrys_082406.pdf


GEORGE JERLES, ET AL. v. MARGIE PHILLIPS, ET AL.

Court: TCA

Attorneys:

Joe Weyant of Clarksville, Tennessee for Appellants, George Jerles and Peggy Jerles

W. Sidney Vinson of Erin, Tennessee for Appellees, Margie Phillips and J. D. Phillips

Judge: W. FRANK CRAWFORD

This case arises from a foreclosure on real property. The Appellants purchased the property from Appellees. Appellees financed the property and the parties executed a promissory note and deed of trust. The Appellants fell behind on their payments and the Appellees accelerated the debt pursuant to the terms of the Note, and ultimately foreclosed on the property. The Appellants filed suit for, inter alia, wrongful foreclosure. The trial court granted partial summary judgment in favor of Appellees, and denied Appellants’ Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. Upon disposal of all other claims, the Judgment became final. Appellants appeal. We affirm

http://www.tba2.org/tba_files/TCA/2006/jerlesg_082406.pdf


KENNETH LEN JONES v. HEATHER MICHELE TAYLOR v. LELAND K. HATTABAUGH and JOY C. HATTABAUGH

Court: TCA

Attorneys:

Craig Northcott, Tullahoma, Tennessee, for Appellants/Intervening Petitioners Leland K. Hattabaugh and Joy C. Hattabaugh.

H. Thomas Parsons, Manchester, Tennessee, for Appellee/Plaintiff/Respondent Kenneth Len Jones.

Cara E. Gruszecki-Smalley, Shelbyville, Tennessee, for Appellee/Defendant/Petitioner Heather Michele Taylor.

Judge: HOLLY M. KIRBY

This is a child custody dispute arising out of a divorce. The father filed a divorce petition in a Tennessee court seeking a divorce and full custody of the parties’ child. The same day, the child’s maternal grandparents filed a petition in an Indiana court seeking to be designated as temporary guardians of the child. Within a few days of the filing of the divorce action, the Tennessee court issued an injunction, enjoining the mother from interfering with the father’s custody of the child. Eleven days later, the Indiana court entered an order granting the grandparents’ petition for temporary guardianship. Subsequently, the grandparents filed a petition to intervene in the Tennessee divorce proceedings, seeking to have the custody dispute between mother and father dismissed on the basis that the Tennessee court lacked subject matter jurisdiction, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The Tennessee court denied the grandparents’ motion to dismiss, holding that it had jurisdiction to decide the custody issue. We affirm, finding that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the Tennessee court had exclusive, continuing jurisdiction over the child custody dispute.

http://www.tba2.org/tba_files/TCA/2006/jonesk_082406.pdf


Veterans’ Employment Statutes

TN Attorney General Opinions

Date: 2006-08-22

Opinion Number: 06-136

http://www.tba2.org/tba_files/AG/2006/ag_06-136.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
When will AG's office see the light on Sunshine laws?
Government officials would better serve citizens by spending less time and energy figuring out how to keep information away from them, Frank Gibson, the head of the Tennessee Coalition for Open Government says in an opinion piece in the Columbia Daily Herald. In his article, Gibson referred to recent remarks from Janet Kleinfelter of the attorney general's office, in which she told attendees of the National Conference of State Legislatures that "the press drives government underground when it asks for too many public records ... The response is to quit doing things in writing. Everything starts getting done orally."

"What an indictment of public officials," Gibson says.
Read the column.
Award named after Drowota surprised him
The Tennessee Bar Association recently honored former Tennessee Supreme Court Chief Justice Frank F. Drowota III with its inaugural Justice Frank F. Drowota III Award for Outstanding Judicial Service. In this interview, Drowota talks about how he came to be a lawyer, his life on the bench and how he defines success.
The Memphis Daily News has the story.
Knox officials to be sworn-in Aug. 31
Incumbent and newly-elected Knox County judges and chancellors are among judicial officials being sworn in during a ceremony at 4 p.m. Aug. 31 at the Supreme Court Building in Knoxville. Knoxville Bar Association President Steve Collins will preside over the 6th Judicial District event. Retiring Supreme Court Justice E. Riley Anderson will participate in the ceremony which is taking place on the final day of his judicial career. Among those Anderson will swear in is District Attorney General Randy Nichols. Court of Criminal Appeals Judge Gary R. Wade will swear in District Public Defender Mark Stephens. Wade has been appointed to the Supreme Court by Gov. Phil Bredesen effective Sept. 1.

Tennessee has come a long way in granting ex-cons the right to vote
During the last legislative session, Tennessee legislators streamlined the process so that former felons no longer were required to hire a lawyer and file for their rights in circuit court. "[Before the change] we had to hold training sessions for lawyers to explain the process because it raised so many questions," says Charles Grant, an attorney with Baker, Donelson, Bearman, Caldwell & Berkowitz, who won a 2004 award for helping felons re-enfranchise. To get the word out, the ACLU is hosting eight town hall forums across the state to inform ex-cons about the new, easier enfranchisement process.
Read the story in the Nashville Scene.
Bradley County's Judge Bennett retires
"It's been said that if you want to know what a person is like, give them some authority," writes Bradley County Bailiff William Wright. "Authority brought the best out in Judge Andrew F. Bennett. Bennett lives not by the letter of the law but the spirit of the law." Wright details Bennett's 24 years on the bench of the Division II General Sessions Court as he retires Aug. 31.
Read about Judge Bennett in the Bradley News Weekly.
Stutts is assistant DA and mayor at the same time
Sweetwater Mayor Jim Stutts said Monday night he does not plan to resign as mayor even though he has accepted a job as an assistant district attorney from incoming District Attorney General Steve Bebb. Read the story in the
Monroe County Advocate & Democrat.
Legislative News
Legislators question Cooper's chair post
The state lawmaker caught in a federal bank fraud case that involved an inflated appraisal on his lumber mill would not have the support of all of his colleagues should he fight to keep his role as chairman of a Senate committee that oversees those very industries. As chairman of the Senate's Commerce, Labor and Agriculture Committee, Jerry Cooper, D-Morrison, sets the agenda on much of the banking and real estate legislation that comes before the legislative body. He was indicted on Tuesday.
The Tennessean has more.
Justice gone astray at immigration bill hearing
Twenty one hearings are being held around the country concerning the Republican immigration reform bill that passed the House, but which remains in legislative limbo along with the Senate's own immigration reform bill. Democratic critics call the hearings "road shows" aimed at stirring public support for some of the more draconian measures in the House bill.
Read more in the Knoxville News Sentinel.
TBA Member Services
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