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Tuesday, August 29, 2006

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4 new applicants round out field for Supreme Court seat

There are now 17 applicants for the vacant seat on the state's high court, including four attorneys who just met today's deadline: Criminal Court Judge Steve Dozier of Nashville, Administrative Law Judge Andrei Lee of Nashville, Circuit Court Judge Charles Creed McGinley of Savannah and Criminal Court Judge Lillie Ann Sells of Cookeville. Four candidates previously considered for the vacancy who were allowed to reapply by the Judicial Selection Commission include: Court of Appeals Judge Frank C. Clement Jr. of Nashville, J. Houston Gordon of Covington, Court of Appeals Judge William C. Koch Jr. and George T. "Buck" Lewis of Memphis. Download a final list of candidates:

http://www.tba2.org/tbatoday/news/2006/sc_vacancy_list.pdf

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

ESTATE OF IRENE C. DOOLEY, ET AL. v. RENEE HICKMAN

Court: TCA

Attorneys:

J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Renee Hickman.

William G. McPheeters, Dayton, Tennessee, for the appellees, Estate of Irene C. Dooley, Wayne Copeland and William G. McPheeters.

Judge: SUSANO

Following the death of Irene C. Dooley (the decedent), the co-executors of her estate filed this petition against the decedent's attorney in fact, Renee Hickman (the respondent). The estate's petition seeks an accounting for all monies received by the respondent from the decedent's accounts and the reimbursement of any money found to have been wrongfully received by the respondent. Particularly at issue is a $21,000 check written by the respondent on the decedent's account and cashed by the respondent for her personal benefit. The respondent claims that the decedent instructed her to write the check and to take the money as payment for her services. The trial court ruled that the Dead Man�s Statute (the Statute) precluded the respondent from testifying with respect to this alleged conversation with the decedent. At the hearing below, the estate called the respondent as a witness and inquired into what was done with the proceeds of the $21,000 check. After answering the estate's questions on the subject, the respondent raised an objection, arguing, as she does on this appeal, that the estate waived the application of the Statute by calling her as a witness and by specifically soliciting testimony regarding the disposition of the proceeds from the $21,000 check. The trial court held that the limited scope of the estate's questioning did not constitute a waiver of the restrictions of the Statute. In its judgment, the trial court ordered the respondent to reimburse the estate for the $21,000. The respondent appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2006/dooleyi_082906.pdf

STEPHANIE ANN THURMAN HARTMAN v. DARYL O'BRIEN HARTMAN

Court: TCA

Attorneys:

Lucy C. Wright, Chattanooga, Tennessee, for the appellant, Stephanie Ann Thurman Wallace.

Mechelle Story, Spring City, Tennessee, for the appellee, Daryl O�Brien Hartman.

Susan E. Arnold, Dayton, Tennessee, Guardian Ad Litem for the children, Grayson McKenna Hartman and McKenzie Daryl Emerson Hartman.

Judge: SUSANO

In this post-divorce proceeding, Daryl O'Brien Hartman (Father) and Stephanie Ann Thurman Wallace, formerly Hartman (Mother), sought to modify the parties' residential schedule pertaining to their children. That schedule, which was a part of the parties' Marital Dissolution Agreement (the MDA), provided that Grayson McKenna Hartman and McKenzie Daryl Emerson Hartman (collectively the children) would reside with Father in Rhea County during the time Mother was working in Atlanta. The MDA stipulated that when Mother was not working in Atlanta, she would have custody of the children. Two years after the divorce, Father filed a petition seeking primary custody, alleging that, contrary to the contemplation of the parties at the time of the divorce, Mother had failed to return to Tennessee and assume equal parenting time with the children. Father also requested that Mother be required to pay child support. Mother responded by filing a counterclaim seeking a modification of the custody arrangement. She alleged that Father's excessive drinking and lack of steady employment justified a modification. The trial court awarded Father custody, a judgment which we later vacated. This case was remanded back to the trial court with instructions to conduct a hearing on the comparative fitness of the parents. After a hearing, the trial court again awarded primary custody to Father. Mother appeals, arguing (1) that the trial court abused its discretion in concluding that Father was the more fit parent; and (2) that the trial court unreasonably delayed the proceedings that followed this Court's remand. We affirm.

http://www.tba2.org/tba_files/TCA/2006/hartmans_082906.pdf

FLETCHER WHALEY LONG v. JESSICA L. McALLISTER-LONG

Court: TCA

Attorneys:

George E. Copple, Jr., Nashville, Tennessee, for the appellant, Jessica L. McAllister-Long.

John E. Herbison, Nashville, Tennessee, for the appellee, Fletcher Whaley Long.

Judge: KOCH

This appeal involves a post-divorce criminal contempt petition. Approximately four years after the divorce, the former wife filed a petition in the Chancery Court for Robertson County seeking to hold the former husband in criminal contempt for willfully breaching the provisions in the parties' marital dissolution agreement requiring him to pay and to indemnify her for certain marital debts. The husband moved to dismiss the petition for failure to allege that he had violated a court order and for failure to comply with Tenn. R. Crim. P. 42(b). The trial court denied the wife's motion to amend her petition and dismissed the petition because it did not contain an explicit allegation that he had willfully violated a court order. We have determined that the wife's petition alleges willful violations of the parties' divorce decree and that it also satisfies all the requirements of Tenn. R. Crim P. 42(b). Therefore, we conclude that the trial court erred by dismissing the wife's contempt petition.

http://www.tba2.org/tba_files/TCA/2006/longf_082906.pdf

JOHN LYKINS, ET AL. v. KEY BANK USA, NA, ET AL.

Court: TCA

Attorneys:

Michael D. Kellum, Johnson City, Tennessee, for the appellants, John Lykins and Cathy Lykins.

Lawrence W. Kelly, Atlanta, Georgia, for the appellees, Key Bank, USA, NA, and Premiere Asset Services.

Judge: SUSANO

John Lykins and Cathy Lykins (the plaintiffs) entered into a lease-to-purchase agreement for real property owned by Martha Sadler. The plaintiffs took possession of a house on the property and began making Sadler's mortgage payments to the defendant Key Bank, USA, NA (the bank). Later, Martha Sadler died. Thereafter, the plaintiffs had discussions with the administratrix of Sadler's estate. They reached an understanding with her regarding the property. The plaintiffs claim that when they tried to secure financing to purchase the property, they were informed that Sadler owed the bank more than the administratrix had indicated. The plaintiffs ceased making payments in October, 2003. While they were attempting to ascertain exactly how much was owed on the mortgage, the bank initiated foreclosure proceedings and sold the house. The plaintiffs filed suit and obtained an injunction prohibiting the bank from evicting the plaintiffs pending a hearing. Approximately 11 months later, the trial court dismissed the plaintiffs' complaint with prejudice based upon a finding that the plaintiffs had failed to respond to discovery requests and had failed to prosecute their action. The plaintiffs appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2006/lykinsj_082906.pdf

JAMES W. MCDONNELL, JR., ET AL. v. CONSECO LIFE INSURANCE COMPANY, ET AL.

Court: TCA

Attorneys:

Glen Reid, Jr., and Douglas A. Black, Memphis, Tennessee, for the appellants, James W. McDonnell, Jr., Faith McDonell Campbell, Annie McDonnell Durell and James W. McDonnell, III.

Martin B. Bailey, Knoxville, Tennessee, for the appellee, Conseco Life Insurance Company.

Eugene J. Podesta, Jr., Memphis, Tennessee for the appellee, McDonnell Insurance, Inc.

Judge: FARMER

Plaintiffs James W. McDonnell, Jr., Faith McDonnell Campbell, Anne McDonnell Durell, and James W. McDonnell, III, appeal the trial court's grant of summary judgment holding that their causes of action are barred by applicable statutes of limitation. Because we find that the trial court failed to execute a final order disposing of all of Plaintiffs' asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule 3(a) of the Tennessee Rules of Appellate Procedure.

http://www.tba2.org/tba_files/TCA/2006/mcdonnellj_082906.pdf

JOHN MICHAEL SHEALY, ET AL. v. POLICY STUDIES, INC. d/b/a CHILD SUPPORT SERVICES OF TENNESSEE, ET AL.

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, Stuart F. Wilson-Patton, Senior Counsel, and Warren A. Jasper, Assistant Attorney General, Nashville, Tennessee, for the appellants Tennessee Department of Human Services and Gina Lodge, Commissioner.

Bridget J. Willhite, Athens, Tennessee, for the appellants Policy Studies, Inc., and Connie Bell.

William J. Brown, Cleveland, Tennessee, for the appellees John Michael Shealy and David Lebron Reagan.

Judge: SUSANO

In two separate and unrelated divorce cases, the plaintiffs in the instant case - John Michael Shealy and David Lebron Reagan - were each paying child support to their respective former spouses as required by court orders. Pursuant to the provisions of Tenn. Code Ann. Section 36-5- 103(f), certain child support orders in Tennessee are subject to review by the Department of Human Services (DHS) at least once every three years. When the plaintiffs' child support orders were reviewed in accordance with the statute, DHS issued administrative orders in each case summarily increasing the amount of the plaintiffs' child support obligations and implementing wage assignments. The plaintiffs then "joined forces" and filed this action challenging the constitutionality of Tenn. Code Ann. Sections 36-5-103(f) and 36-5-501 on the basis that these statutes violate both due process and the separation of powers doctrine. The plaintiffs successfully obtained a restraining order enjoining enforcement of the administrative orders. Thereafter, the plaintiffs' former wives filed petitions in their respective divorce proceedings seeking an increase in child support. The petitions were eventually resolved by the entry of agreed orders which increased the amount of each of the plaintiffs' child support payment and decreed payment of same by way of wage assignment. After entry of the agreed court orders, DHS entered administrative orders dismissing all of its previous administrative orders and decreeing that the latter orders were held "for naught." Tenn. Code Ann. Section 36-5-103(f) was substantially amended effective January 1, 2005. On April 21, 2005, the trial court entered an order holding that Tenn. Code Ann. Section 36-5-501 and the pre-January 1, 2005, version of Section 36-5- 103(f) were unconstitutional. DHS appeals. We conclude that all of the plaintiffs' claims are moot, vacate the judgment of the trial court, and remand with instructions to dismiss this case.

http://www.tba2.org/tba_files/TCA/2006/shealyj_082906.pdf

Diane V. Vannucci, Individually and as Executrix of the Estate of Julie Vannucci Barney, Deceased, ET AL. v. MEMPHIS OBSTETRICS AND GYNECOLOGICAL ASSOCIATION, P.C., ET AL. AND DIANE V. VANNUCCI, Individually, and as Executrix of the Estate of Julie Vannucci Barney, Deceased and DIANE V. VANNUCCI for the use and benefit of the heirs at law of Julie Vannucci Barney, Dec'd., and DIANE V. VANNUCCI, for the use and benefit of ROBERT ALLEN BARNEY, III, A Minor v. W. B. MOSS, INDIVIDUALLY, and W. B. MOSS, M.D., P.C.
Corrected Case

Court: TCA

Judge: ALAN E. HIGHERS

Following the untimely diagnosis of her cervical cancer, the plaintiff filed a medical malpractice suit against several doctors and the laboratory that interpreted her test results. In addition to her individual suit, the plaintiff sued on behalf of her minor son for loss of consortium. Shortly after filing the lawsuit, the plaintiff died. The executrix of her estate was substituted as a plaintiff in the case. Some of the named defendants sought to enter into a settlement with the minor, who was the only beneficiary of any proceeds to be derived from the suit. Pursuant to section 34-1-121 of the Tennessee Code, the settling parties petitioned the trial court to approve the settlement. At the hearing, the trial court excluded the non-settling defendants from participating in the hearing. The trial court subsequently entered an order approving the settlement, but the court sealed the contents of the settlement. Thereafter, the non-settling defendants moved the trial court judge to recuse herself, arguing that she could no longer impartially preside over the remainder of the case by virtue of having heard disputed facts during the ex parte settlement hearing. When the trial court denied their motion, the non-settling defendants applied for and received the trial court's permission to seek an interlocutory appeal to this Court. We decided to grant the non-settling defendants' application for an interlocutory appeal to address the narrow issue of whether the trial court erred when it denied the motion to recuse. After reviewing the record, we affirm the trial court's decision to deny the Appellants' motion for recusal.

Description of Correction: The opinion has been changed to correct the spelling of "Canon" on pages 8 and 10.

http://www.tba2.org/tba_files/TCA/2006/vannuccid_corr082906.pdf

JESSIE MARCELLA VITTETOE (TEFFT) v. JOHNNY DWAIN VITTETOE

Court: TCA

Attorneys:

William A. Mynatt, Jr., Knoxville, Tennessee, for Appellant, Jessie Marcella Vittetoe (Tefft).

Carl R. Ogle, Jr., Jefferson City, Tennessee, for Appellee, Johnny Dwain Vittetoe.

Judge: LEE

This appeal involves a post-divorce dispute between the parents of three minor children. A year after the parties were divorced, the noncustodial father petitioned to modify the final decree to reduce his child support payment, to relieve him from the obligation to reimburse the mother for the children's health insurance premiums, and to claim the children as exemptions on his federal tax return. After a hearing, the chancellor found that there had been no material and substantial change in circumstances and denied the father's requests to modify the decree regarding child support and health insurance premiums, but modified the decree to grant the father the right to claim one child as a tax exemption every year and to claim one child in alternating years. After careful review of the evidence and the applicable law, we hold that because the chancellor found no material and substantial change in father's circumstances, he erred in modifying the final decree of divorce as to the income tax dependency exemptions. Accordingly, we reverse and vacate the decision of the chancellor.

http://www.tba2.org/tba_files/TCA/2006/vittetoej_082906.pdf

STATE OF TENNESSEE v. EARNEST BANKS

Court: TCCA

Attorneys:

Garland Erguden, (on appeal) and Jennifer Johnson and Harry Sayle (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Earnest Banks.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Earnest Banks, was convicted by a Shelby County jury of aggravated burglary and sentenced to nine years in the Department of Correction as a Range II multiple offender. On appeal, he challenges the sufficiency of the convicting evidence. Following our review of the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/bankse_082906.pdf

TODAY'S NEWS

Legal News
Legislative News
Election 2006
BPR Actions

Legal News

TBA files supplemental comment on fee dispute rule

In a supplemental comment filed today with the Supreme Court, the TBA responded to concerns about the constitutionality of a new fee dispute resolution rule. The TBA cited cases from four other state appellate courts and two federal courts in support of the position that the fee dispute resolution rule is constitutional.

Download the filing here

Justice Anderson to continue sitting with Supreme Court

Just days after retiring from a long legal and judicial career, Justice E. Riley Anderson will don his robe and sit as a special judge on the Tennessee Supreme Court when it meets Sept. 6 - 7 in Knoxville. The docket lists 11 cases, including arguments concerning the validity of the Knox County charter. Also joining the court in Knoxville will be its newest justice, Judge Gary R. Wade of Sevierville, who will be sworn in Sept. 1.

Read the court's press release

Attorney questions ethics of ethics law

Lebanon City Attorney Andy Wright is seeking a legal opinion from the Board of Professional Responsibility as to whether he can serve as both the city attorney and the city ethics compliance officer. He was named to the ethics position in an ordinance passed by the city last week. The BPR's response will have statewide ramifications. All Tennessee cities and counties must pass a model ethics ordinance by the middle of next year. The model ordinance developed to guide localities designates the city attorney as the ethics compliance officer, though it does allow local governments to designate the individual of their choice.