House set to start new legislative session on Monday

The 105th session of the Tennessee General Assembly will swing into action this coming week when House members return to Nashville to begin work. The Senate -- still working through the challenges of its first leadership change in more than 30 years -- will not return until the following week. Along with a changeover in committee makeup and leadership, Senate members are still deciding which offices that which members will occupy in the War Memorial building and Legislative Plaza.

For the first time in recent history, the Judiciary committees in both Houses will have new leadership. Mae Beavers, R-Mount Juliet, will lead the Senate committee, with Doug Jackson, D-Dixon, serving as vice chair and Jamie Woodson, R-Knoxville, serving as secretary. Other committee members will be senators Diane Black, Shea Flinn, Jim Kyle, Mark Norris, Paul Stanley and John Wilder. In the House, Rob Briley, D-Nashville, will be chair, with Kent Coleman, D-Murfreesboro, vice chair and Janis Sontany, D-Nashville, secretary. Also on the House committee will be representatives Eddie Bass, Frank Buck, Tom DuBois, Henry Fincher, Jon Lundberg, Judd Matheny and Eric Watson. Track legislation of interest with the TBA's bill tracker

http://www.tba.org/tba_legismain.html

TODAY'S OPINIONS
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JAMES M. BRAMBLETT ET AL. v. COFFEE COUNTY PLANNING COMMISSION ET AL.

Court: TCA

Attorneys:

Robert L. Huskey, Manchester, Tennessee, for the appellants, James M. Bramblett and Vincy Bramblett.

Robert F. Hazard, Tullahoma, Tennessee, for the appellee, Coffee County Planning Commission and Coffee County.

Judge: KOCH

This appeal involves a dispute arising out of the construction of duplexes on two tracts of real property in the Hillsboro community in Coffee County. The property owners filed suit in the Chancery Court for Coffee County seeking declaratory and injunctive relief to prevent the county from enforcing the restrictions in its newly enacted zoning resolution that prevented the construction of duplexes. The county counterclaimed for injunctive relief to require the property owners to comply with its zoning resolution. The trial court, sitting without a jury, determined that the property owners could maintain their existing duplex on one tract, but enjoined them from expanding this use except as provided for by Coffee County's zoning resolution. It also determined that the property owners could not build a duplex on the second tract. The property owners appealed. We have determined that the trial court correctly determined that the property owners could build a duplex on one tract but not the other tract. We have also determined that the trial court erred by prematurely enjoining the property owners' anticipated future use of the property where duplexes could be constructed because the property owners had not yet applied for a permit for this use and because the county had abandoned its request to enjoin the future use of this tract.

http://www.tba2.org/tba_files/TCA/2007/bramblettj_012507.pdf


DORIS BRITT v. JANNY RUSSELL CHAMBERS

Court: TCA

Attorneys:

Janny Russell Chambers, pro se.

Steven E. Farese, Jr., Ashland, Mississippi, for the appellee, Doris Britt.

Judge: KIRBY

This is a boundary line dispute. The parties are adjacent landowners. In April 2003, a dispute arose between the parties over the exact boundary line between their properties. The plaintiff erected a seven-foot privacy fence on what she perceived to be the proper boundary line. The defendant dismantled the fence and removed it. The plaintiff brought this action for the trial court to set the appropriate boundary line and for damages related to the defendant's removal of her fence. After a hearing, the trial court held in favor of the plaintiff, determining that the boundary line should be set according to a 1997 survey conducted when the plaintiff purchased her property and awarding the plaintiff damages for the removal of the fence. The defendant now appeals. We affirm, concluding that, in the absence of a trial transcript or a proper statement of the evidence, we must presume that the trial court's decision was supported by the evidence.

http://www.tba2.org/tba_files/TCA/2007/brittd_012507.pdf


DEBRA JANE BROOKS v. BOBBIE LEE BROOKS

Court: TCA

Judge: FRANKS

Appellant's action to void divorce decree was dismissed by the Trial Judge. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/brooksd_012507.pdf


C-WOOD LUMBER CO., INC. v. WAYNE COUNTY BANK

Court: TCA

Attorneys:

T. Jake Wolaver, Columbia, Tennessee, for the appellant, C-Wood Lumber Co., Inc.

George G. Gray, Waynesboro, Tennessee; Ben Boston and Ryan P. Durham, Lawrenceburg, Tennessee; and C. Anthony Edwards, Columbia, Tennessee, for the appellee, Wayne County Bank.

Judge: KOCH

This appeal involves a dispute between a lumber company and a bank in the aftermath of the company's discovery that its secretary/treasurer had embezzled approximately $500,000 by depositing checks payable to the company into her own and her children's personal accounts at the bank. The company filed a complaint in the Chancery Court for Wayne County seeking to recover the embezzled funds from the bank on the grounds of negligence and conversion. The bank responded that the company had executed a corporate resolution expressly authorizing the deposits. The trial court determined that the company's only viable claim was its negligence claim. Following a bench trial, the court entered a judgment for the bank after concluding that the company's negligence exceeded that of the bank. The company has appealed. We have determined that company's only viable claim against the bank is its conversion claim under the Uniform Commercial Code. We have also determined that while the trial court correctly dismissed the company's claims involving the deposits in the secretary/treasurer's personal accounts because the company had expressly authorized them, the court erred by dismissing the company's claims based on the deposits into the accounts of the secretary/treasurer's children between July 1, 1996 and September 11, 1996.

http://www.tba2.org/tba_files/TCA/2007/c-woodlumber_012507.pdf


JAMES A. CARSON v. THE CHALLENGER CORPORATION and DANIEL R. JONES, M.D.

Court: TCA

Attorneys:

Bill M. Wade, J. Jeffrey Coons, Memphis, TN, for Appellants

Jeffrey A. Land, Kristin M. Marks, Nashville, TN, for Appellee

Judge: HIGHERS

This case involves a commercial lease. During the lessor's divorce, his wife brought suit against the tenant to collect its current rent payments. The wife claimed that the underlying realty was marital property and she was entitled to the rent. The husband-lessor filed a motion to intervene in that case, but the trial court never addressed his motion. The husband signed some consent orders in the case and filed a motion on his own behalf, but he was never formally named as a party. After that case had concluded, the husband brought suit against the tenant for past due rent and other damages under the lease. The tenant claimed that his suit was barred by res judicata and collateral estoppel, but the trial court disagreed. After the trial court entered a judgment for the husband-lessor, the tenant appealed to this Court. For the following reasons, we affirm.

http://www.tba2.org/tba_files/TCA/2007/carsonj_012507.pdf


PAULETTE DOBBINS v. JEFFERY F. DABBS, JR., JEANETTE DABBS, JEFFERY F. DABBS, SR., AND ACCREDITED HOME LENDERS, INC., A CALIFORNIA CORPORATION

Court: TCA

Attorneys:

Radford H. Dimmick, Nashville, Tennessee, for the appellant, Paulette Dobbins.

Lloyd R. Tatum, Henderson, Tennessee, for the appellees, Jeffery Dabbs, Jr., and Jeanette Dabbs.

Judge: KIRBY

This case involves accord and satisfaction. The defendants fraudulently transferred real property owned by the plaintiff. The plaintiff filed this lawsuit against the defendants for damages related to the fraudulent transfer. The parties later agreed to settle the matter for approximately $6,000. The defendants initially paid the plaintiff $3,000 pursuant to the settlement agreement. Before the remainder was paid, the plaintiff repudiated the agreement in writing. Later, the defendants sent the plaintiff a check for the remainder of the settlement. The plaintiff kept the second payment, but told the defendants that she did not consider the payment to satisfy the debt and stated her intent to set the case for trial. At the subsequent trial, the defendants did not appear. A judgment was entered in favor of the plaintiff for $58,000. The defendants filed a motion to set aside the judgment as well as a motion to dismiss the case, based on the original settlement agreement. The trial court granted the defendants' motions and dismissed the case on that basis. The plaintiff now appeals. We affirm, concluding that the parties' settlement agreement was an executory accord which was not effectively repudiated and was properly enforced under the circumstances.

http://www.tba2.org/tba_files/TCA/2007/dobbinsp_012507.pdf


BETH FREEMAN, individually and on behalf of all others similarly situated, v. BLUE RIDGE PAPER PRODUCTS, INC.

Court: TCA

Attorneys:

W. Kyle Carpenter and Robert L. Vance, Knoxville, Tennessee, for appellant.

Gordon Ball and Thomas S. Scott, Jr., Knoxville, Tennessee, for appellee.

Judge: FRANKS

In this class action, the jury returned a verdict for plaintiff's class which the Trial Judge approved. Defendant appealed and we affirm the Trial Court's Judgment.

http://www.tba2.org/tba_files/TCA/2007/freemanb_012507.pdf


STUART WATSON MCBRAYER v. ELIZABETH SMITHERMAN- MCBRAYER

Court: TCA

Attorneys:

Christine Mahn Sell, Valerie H. Richardson, and Elizabeth Dickson, Chattanooga, Tennessee, for the appellant, Stuart Watson McBrayer.

John R. Morgan, Chattanooga, Tennessee, for the appellee, Elizabeth Smitherman-McBrayer.

Judge: SUSANO

This is a post-divorce dispute regarding the custody of three minor children. Elizabeth Smitherman-McBrayer ("Mother"), by agreement of the parties, had been designated as the children's primary residential parent at the time of the parties' divorce. In response to a post-divorce "emergency" petition for change of custody filed by Stuart Watson McBrayer ("Father"), the trial court, Judge W. Neil Thomas, III, presiding, entered an ex parte order awarding Father the designation of primary residential parent. Following the subsequent recusal of Judge Thomas, Judge L. Marie Williams conducted a plenary hearing on the subject of the children's custody. The trial court undertook a comparative fitness analysis of the parties, after which it returned primary residential custody back to Mother. On appeal, Father challenges the propriety of Judge Williams' ruling. We affirm.

http://www.tba2.org/tba_files/TCA/2007/mcbrayers_012507.pdf


STATE OF TENNESSEE, EX REL. JULIE POLLARD v. JAMES CASTLEMAN

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Warren Jasper, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee ex rel. Julie Pollard.

Steven L. West, McKenzie, Tennessee, for the appellee, James Castleman.

Judge: KIRBY

This is a petition for contempt for failure to pay child support. After a hearing, the trial court entered an order dismissing the petition and reducing the respondent's child support arrearage by $2,000. The petitioner now appeals, arguing that the trial court erroneously ordered a retroactive modification of the original child support order. We reverse.

http://www.tba2.org/tba_files/TCA/2007/pollardj_012507.pdf


TINA LOU RICHARDS v. JERRY ALAN RICHARDS

Court: TCA

Attorneys:

Robert W. White, Maryville, Tennessee, for the Appellant, Jerry Alan Richards.

Rebecca D. Slone and J. Derreck Whitson, Dandridge, Tennessee, for the Appellee Tina Lou Richards.

Judge: SWINEY

Tina Lou Richards ("Mother") and Jerry Alan Richards ("Father") were divorced in February of 2003. At the time of the divorce, the parties agreed that they each would have physical custody of the parties' minor son on alternating weeks. Both Mother and Father subsequently filed petitions to modify the custody agreement. Each party claimed there had been a material change in circumstances justifying a change in the current custody arrangement. Following a trial, the Trial Court designated Mother as the primary residential parent and awarded Father standard co-parenting time. The Trial Court also ordered Father to pay child support and certain outstanding expenses incurred by Mother toward the child's care. The Trial Court also awarded Mother attorney fees. We reverse the Trial Court's modification of the original custody arrangement and reinstate that original arrangement. We also vacate the Trial Court's order as to child support, the payment by Father of expenses incurred by Mother, and the award of attorney fees to Mother, and remand this case to the Trial Court for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2007/richardst_012507.pdf


ANGIE SORHAGEN v. WILLIAMSON COUNTY ANIMAL SHELTER, A DIVISION OF THE WILLIAMSON COUNTY GOVERNMENT

Court: TCA

Attorneys:

Dan R. Alexander, Nashville, Tennessee, for the appellant, Angie Sorhagen.

Lisa M. Carson, Franklin, Tennessee, for the appellee, Williamson County Animal Shelter, a Division of Williamson County Government of Tennessee.

Judge: CLEMENT

The plaintiff filed this action against Williamson County alleging the County failed and/or refused to return her dog and cat for which she sought monetary damages. The County filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss, contending the negligence claim asserted pertained to a discretionary function for which the County was immune from suit under the Tennessee Governmental Tort Liability Act. The trial court granted the motion to dismiss. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2007/sorhagena_012507.pdf


RACHAEL AMANDA THOMPSON v. JACKIE LEE THOMPSON

Court: TCA

Attorneys:

Kimberley L. Reed-Bracey, Goodlettsville, Tennessee, for the appellant, Rachael Amanda Thompson

Jackie Lee Thompson, Hendersonville, Tennessee, Pro Se.

Judge: CLEMENT

The mother of the parties' only child appeals the dismissal of her post-divorce petition to modify the permanent parenting plan. The trial court held that the mother failed to carry her burden of proof to show a material change of circumstances since the divorce. We affirm.

http://www.tba2.org/tba_files/TCA/2007/thompsonr_012507.pdf


CAROLYN LOUISE POSS v. CHARLES DANIEL TURNER, ET AL.

Court: TCA

Attorneys:

Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellant, Charles Daniel Turner.

Robert F. Hazard, Tullahoma, Tennessee, for the appellee, Carolyn Louise Poss, Personal Representative of the Estate of Louise W. Turner.

Judge: CLEMENT

The executrix of a decedent's estate brought this action against the decedent's son seeking a judgment for three alleged outstanding debts owed to the decedent. The trial court found in favor of the estate on all three debts and awarded the estate a judgment of $138,747. We have concluded the evidence supports two of the claims but preponderates against the third. We therefore affirm in part and vacate in part.

http://www.tba2.org/tba_files/TCA/2007/turnerc_012507.pdf


JAMES EDWARD WILLIAMS v. BRENT R. WATSON, ET AL.

Court: TCA

Attorneys:

Mary Ann Reese and Thomas F. Bloom, Nashville, Tennessee, for the appellant, James Edward Williams.

Darryl G. Lowe, Knoxville, Tennessee, for the appellees, John K. Harber, Robert E. Pryor, Sr., Timothy A. Priest, and the law firm of Pryor, Flynn, Priest & Harber.
Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees, Brent R. Watson, Norman D. McKellar, Suzanne Nicole Price,, Nick D. Bunstine, Louis Andrew McElroy, II, and the law firm of Bunstine, Watson & McElroy.

Judge: CAIN

James Edward Williams and Gladys Pineda Williams were divorced on December 13, 2004, following a very contentious proceeding in the Chancery Court of Knox County. Mr. Williams filed the action at bar against his former attorneys and also against attorneys representing his former wife. He alleges against these attorneys various acts of tortious activities, malpractice and violation of the Tennessee Consumer Protection Act. The trial court dismissed all of his claims, and Mr. Williams appeals. We affirm the action of the trial court.

http://www.tba2.org/tba_files/TCA/2007/williamsj_012507.pdf


STATE OF TENNESSEE v. TERESA SUE SKIPPER

Court: TCCA

Attorneys:

Kent L. Booher, Lenoir City, Tennessee, for the appellant, Teresa Sue Skipper.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James Scott McCluen, District Attorney General; and Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Teresa Sue Skipper, was convicted of assault, resisting arrest, and obstruction of the execution of an arrest warrant. The Defendant filed a timely motion for a new trial, asserting that the trial judge infringed upon her constitutional rights by not properly instructing the jury. The motion for a new trial was denied. On appeal, the Defendant continues to assert that the jury instructions were erroneous. Furthermore, the Defendant now argues that her constitutional rights were violated because the law enforcement officers entered her home unlawfully and, but for the illegal entry of the officers, she would not have used force against them to protect and defend herself. We conclude that the trial judge properly instructed the jury and that the Defendant waived any claims regarding an unlawful search. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/skippert_012507.pdf


TODAY'S NEWS

Politics
Legal News
Passages
Upcoming
TBA Member Services

Politics
Ford gets free defender, pleads not guilty
Former state Sen. John Ford pleaded not guilty today to charges stemming from consulting deals he had with state contractors while he was in the legislature. He was assigned a publicly funded lawyer to represent him.
The Commercial Appeal carried this AP story
Legal News
Nifong now accused of lying, could be disbarred
The North Carolina State Bar lodged new and more serious ethics charges Wednesday against the district attorney in the Duke lacrosse case, accusing him of withholding evidence from the defense and lying to both the court and bar investigators. Mike Nifong -- who withdrew from the case earlier this month -- could be disbarred if convicted by a disciplinary board.
The Commercial Appeal carried this AP story
'We need guns in county courthouse like we need a hole in the head'
Oak Ridger Publisher Richard B. Esposito takes note of the end of a one-year "cooling off period" where guns were banned from the Anderson County Courthouse, but some commissioners didn't want this ban to become permanent for fear of being labeled anti-gun. "Allowing firearms in the county courthouse by anyone but law enforcement is sheer stupidity," he writes.
Read his editorial in The Oak Ridger
Ex-deputy arrested in
'64 race case
A white former sheriff's deputy who was once thought to be dead was arrested on federal charges Wednesday in one of the last major unsolved crimes of the civil rights era -- the 1964 killings of two black men who were beaten and dumped alive into the Mississippi River, the Associated Press reports. James Ford Seale, a 71-year-old reputed Ku Klux Klansman from the town of Roxie in southwest Mississippi, was charged with kidnapping hitchhikers Charles Eddie Moore and Henry Hezekiah Dee, both 19. He was expected to be arraigned today in Jackson.
Read more in the Commercial Appeal
Drug Court works to get offenders back on track
In this court of law, the judge, the public defender, the district attorney and law enforcement all work together to dole out a punishment that includes a rehabilitation program. It's the 21st Judicial Drug Court, which covers Williamson, Hickman, Perry and Lewis counties. Since 2002, they've made decisions that both punish and assist participants in their recovery from substance abuse.
The Williamson Herald has the story
New justice center to open in Jefferson County
A new, $16 million Justice Center is set to open its doors in Jefferson County. The facility brings the county Sheriff's Department, the jail and most of the court system under one roof. Learn more about this facility that officials call "long overdue"
from WATE Channel 6
Public funding studied for judge elections in Georgia
On the same day that the Georgia Supreme Court's chief justice told legislators that judges should be free from "election-focused" politics, a state representative pushed a measure to allow the use of public funds for judicial campaigns.
The Chattanooga Times Free Press has more
Students, inmates take
class in prison
A new program offered by David Lipscomb University teaches its classes at the Tennessee Prison for Women -- and half of those enrolled are prisoners. The other half are "traditional" students, both men and women. The classes, which are free, are benefitting both sets of students.
Read how in the Tennessean
Passages
Roy, 1st female judge in 8th Circuit, dies at 90
Elsijane Trimble Roy, the first woman to serve as a judge in the Eighth U.S. Circuit and on the Arkansas Supreme Court -- and who presided for 21 years in the same federal courtroom that her father used -- has died. She was 90.
WMC-TV Memphis has more
Knoxville lawyer Rosenthal dies in car crash
Knoxville lawyer and jazz club owner Melissa E. Rosenthal, 37, died Wednesday in a single-vehicle wreck when her car "left the roadway and struck a telephone pole." Her passenger, 31-year-old John Heiser of Clinton, the club's manager, was ejected when the car split in two. Both were pronounced dead at the scene. Rosenthal was a 1995 graduate of the University of Tennessee and a 2001 graduate of the Cardozo School of Law in New York.
Read more in the Knoxville News Sentinel
Upcoming
Panel takes on death penalty issues at Vanderbilt
Vanderbilt University Law School will present "The Press, the Public and the Death Penalty," a discussion with Kenneth Starr, Judge Gilbert Merritt, former Tennessee Supreme Court Justice A.A. Birch Jr., and professor Bradley MacLean on Friday at 3 p.m. in the Seigenthaler Center on Vanderbilt's Peabody Campus.
Learn more
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