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Monday, April 30, 2007

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TBA Board picks nominees to Judicial Evaluation Commission, selections for Court of Judiciary

The Tennessee Board of Governors meeting Saturday in Dandridge selected three members -- one from each grand division -- to serve on the Tennessee Court of the Judiciary. Chosen for four-year terms were: David Cook of The Hardison Law Firm in Memphis; Mary Martin Schaffner of Howell & Fisher in Nashville, and Pamela Reeves of Anderson, Reeves & Herbert in Knoxville. The Court of the Judiciary hears matters under the Code of Judicial Conduct.

The Board of Governors also chose three nominees for a position on the Tennessee Judicial Evaluation Commission. These three nominees -- one from each grand division -- will be submitted to House Speaker Jimmy Naifeh, who will appoint one for a six-year term. Those chosen as nominees were: Ardena Garth, the 11th Judicial District Public Defender in Chattanooga; Antonio Matthews of Baker, Donelson, Bearman, Caldwell & Berkowitz in Memphis and Susan McGannon, city attorney for the City of Murfreesboro. The evaluation commission issues the evaluation reports in appellate retention elections.

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.

01 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
11 - TN Court of Appeals
01 - 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

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2007/certlist_043007.pdf

KEITH ALAN JORDAN v. QW MEMPHIS CORP., QUEBECOR WORLD DICKSON, INC., AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS

Court: TWCA

Attorneys:

Lee Anne Murray, Feeney & Murray, P.C., Nashville, Tennessee, for the Appellant, Quebecor Printing, Inc. and Traveler's Property Casualty.

Ann Buntin Steiner, Law Offices of Steiner & Steiner, Nashville, Tennessee, for the Appellee, Keith Alan Jordan.

Judge: BIVENS

This workers' compensation appeal has been referred to 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 of findings of fact and conclusions of law. The trial court found that the employee had suffered a work-related back injury and awarded the employee permanent partial disability benefits of 57.5% to the body as a whole. The employer appeals, contending that the employee's back problems did not arise out of his employment. We affirm the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2007/jordank_043007.pdf

LINDA BUSH v. ADWORKS ADVERTISING OUTDOOR, LLC

Court: TCA

Attorneys:

Robert A. McLean, Memphis, Tennessee, for Petitioner/Appellant Linda Bush.

Robert E. Craddock, Jr., and Kristen Mistretta Wilson, Memphis, Tennessee, for Respondent/Appellee Adworks Advertising Outdoor, LLC

Judge: KIRBY

This is a property case involving a restrictive covenant. The homeowners in a subdivision entered into a restrictive covenant agreement with the original developer of a tract of land directly across the highway from the residential subdivision. The restrictive covenant prohibits the use of the developer's property for "billboards . . . not in place on December 1, 1995." On December 1, 1995, three billboard structures existed on the burdened property. Years later, the defendant billboard company purchased easements in the three billboard sites and the existing billboard structures were removed. The defendant billboard company then erected three new billboard structures. Subsequently, the plaintiff homeowner in the subdivision filed the instant lawsuit for injunctive and declaratory relief, alleging that the defendant billboard company's placement of new billboard structures on the burdened property constituted a violation of the restrictive covenant. The parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the defendant billboard company, and the plaintiff homeowner now appeals. We affirm, finding that the language of the restrictive covenant is unambiguous, and that it restricts only the use of the burdened property, limiting the use to the number of billboards on the property as of December 1, 1995.

http://www.tba2.org/tba_files/TCA/2007/bushl_043007.pdf

IN RE CHELBIE F.

Court: TCA

Attorneys:

Charles G. Wright, Jr., Chattanooga, Tennessee, for the appellant, Kenneth F.

Trisha L. Henegar, Shelbyville, Tennessee, for the appellees, Anita G. and Gary G.

Judge: KOCH

This appeal involves the termination of the parental rights of the biological father of a nine-year-old girl. The child's parents never married and eventually went their separate ways. The mother and her family wanted little to do with the father, and for approximately seven years the father neither visited nor financially supported the child. The father eventually filed a petition in the Chancery Court for Hamilton County seeking to establish visitation and support. This proceeding was preempted when the mother and her husband filed a petition in the Chancery Court for Bedford County to terminate the father's parental rights and to enable the mother's husband to adopt the child. Following a bench trial, the trial court in Bedford County found that the father had abandoned his daughter by willfully failing to support or visit her and that terminating the father's parental rights was in the child's best interests. The father has appealed. We have determined that the mother and the stepfather have failed to present clear and convincing evidence that the father has abandoned the child in light of the fact that he was actively pursuing a judicial resolution of visitation and support issues during the four months immediately preceding the filing of the termination petition.

http://www.tba2.org/tba_files/TCA/2007/chelbief_043007.pdf

JOSEPH C. CURTSINGER, JR., M.D. v. HCA, INC., ET AL.

Court: TCA

Attorneys:

Matthew B. Zenner, Nashville, Tennessee, for the appellant, Joseph C. Curtsinger, Jr., M.D.

C.J. Gideon, Timothy McIntire, Nashville, Tennessee, for the appellees, HCA Health Services of Tennessee, Inc. d/b/a Southern Hills Medical Center, Victor E. Giovanetti, Joseph A. Wieck, M.D., and Malcolm E. Baxter, M.D.

Judge: CAIN

Surgeon filed action against hospital and other related persons and entities seeking injunctive relief and monetary damages for the allegedly improper revocation of his hospital privileges and the false reporting of such to the State Medical Board and the National Practitioner Data Bank. The trial court granted Defendants partial summary judgment on all monetary claims asserted by surgeon pursuant to the Health Care Quality Improvement Act (HCQIA) and the Tennessee Peer Review Law. Having found that surgeon failed to show by a preponderance of the evidence that Defendants did not satisfy the four prong test for immunity provided under HCQIA, we affirm the decision of the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2007/curtsingerj_043007.pdf

FRANK T. DALTON v. LORIANN DEUEL

Court: TCA

Attorneys:

Loriann Deuel, appellant, pro se.

Chad A. Massey, Murfreesboro, Tennessee, for appellee, Frank T. Dalton.

Judge: SUSANO

Loriann Deuel appeals an order of the Rutherford County Circuit Court ("the trial court"). The trial court held that it did not have jurisdiction to hear an appeal from an order of the juvenile court domesticating a foreign judgment pertaining to the custody of and visitation with the minor child of the parties. It dismissed Ms. Deuel's appeal. Before us, she argues that the trial court erred in failing to grant her motion that the appeal be transferred to the Court of Appeals. We conclude that the trial court erred in failing to grant the motion. Accordingly, we vacate the order of the trial court and remand for further proceedings pursuant to T.C.A. Section 16-4-108(a)(2) (1994).

http://www.tba2.org/tba_files/TCA/2007/deuell_043007.pdf

DAMON FIERRO v. MELITA FAE FIERRO

Court: TCA

Attorneys:

Larry Hayes, Jr., Nashville, Tennessee, for the appellant, Damon Fierro.

William Kennerly Burger, Murfreesboro, Tennessee, for the appellee, Melita Fae Fierro.

Judge: CLEMENT

In this appeal involving a marriage of a relatively short duration, the husband contends the trial court erred by not dividing the property in a way that, as nearly as possible, placed the parties in the same position they would have been in had the marriage never taken place. He also contends the wife dissipated the marital property to pay off her student loans. The trial court made a specific finding that the property had been transmuted in such fashion as to make it impossible to put the parties back in the same position they were in at the time of the marriage. The court also stated that it took into consideration the wife's use of marital property to pay off her student loans as it allocated the few marital assets that remained at the time of the divorce. We have concluded the evidence does not preponderate against the trial court's findings and, therefore, affirm.

http://www.tba2.org/tba_files/TCA/2007/fierrod_043007.pdf

GIRTMAN & ASSOCIATES, INC. v. STEPHEN ST. AMOUR, ET AL.

Court: TCA

Attorneys:

Phillip Byron Jones, Nashville, Tennessee, for the appellant, Girtman & Associates, Inc.

Gregory L. Cashion, S. Joseph Welborn, Nashville, Tennessee, for the appellees, Stephen St. Amour, and Isenhour Door Products, Inc.

Judge: COTTRELL

A commercial dealer in doors and associated hardware sued a former employee for breach of a noncompete agreement. The dealer asked the court to award it either injunctive relief or liquidated damages in the amount of $321,500. After a bench trial the trial court concluded that the noncompete agreement was unenforceable under the circumstances and dismissed the claim for liquidated damages. The court did, however, award the plaintiff nominal damages of $200 on its claim of unfair competition based on use of a proprietary form, as well as punitive damages of $3,000 on the same claim. The dealer appealed. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/girtman_043007.pdf

PAUL L. IVY v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TCA

Attorneys:

Paul L. Ivy, pro se Appellant.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Bradley W. Flippin, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Tennessee Department of Correction.

Judge: LEE

While an inmate at the South Central Correctional Facility ("SCCF"), Paul L. Ivy was found guilty by the prison disciplinary board of possession of security threat group ("STG") material. Mr. Ivy challenged the conviction by filing a petition for writ of certiorari in the Wayne County Chancery Court. The Tennessee Department of Correction ("TDOC") filed a motion to dismiss, which was granted by the trial court. After careful review, we vacate the judgment of the trial court and remand for entry of an order granting Mr. Ivy's writ of certiorari.

http://www.tba2.org/tba_files/TCA/2007/ivyp_043007.pdf

KENNETH JONES v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TCA

Attorneys:

Kenneth A. Jones, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Arthur Crownover II, Senior Counsel, for the appellee, Tennessee Department of Correction.

Judge: CLEMENT

An inmate appeals the Chancery Court's dismissal of his Petition for Writ of Certiorari based on improper venue and the court's decision to not transfer the case to the proper venue. Finding that the Chancery Court did not abuse its discretion, we affirm.

http://www.tba2.org/tba_files/TCA/2007/jonesk_043007.pdf

ELAINE M. LARSON, ET AL. v. TOMMY HALLIBURTON

Court: TCA

Attorneys:

Hugh Green, Lebanon, Tennessee, for the appellant, Tommy K. Halliburton.

Debra L. Dishmon, Lebanon, Tennessee, for the appellees, Elaine M. Larson and Larry J. Larson.

Judge: CAIN

Grandparents filed petition for contempt against Father for willfully denying Grandparents their court-ordered summer visitation and weekend visitation with grandchildren. Grandparents also requested a mental evaluation and counseling for both Father and the minor children. The trial court found Father in criminal contempt and ordered that the eldest child, B.H., undergo counseling. Father appeals arguing that the trial court erred in (1) holding him in criminal contempt of court and entering sanctions against him; and (2) ordering B.H. to undergo counseling. The judgment of the trial court is vacated in part, affirmed in part and remanded.

http://www.tba2.org/tba_files/TCA/2007/larsone_043007.pdf

ANTHONY ROBERTSON v. SHERIFF NORMAN LEWIS, CPT. TACKETT, LT. ARMSTRONG, SGT. WYNNE

Court: TCA

Attorneys:

Anthony Robertson, Clarksville, Tennessee, pro se.

Mark Nolan, Clarksville, Tennessee, for Appellees.

Judge: FRANKS

http://www.tba2.org/tba_files/TCA/2007/robertsona_043007.pdf

THE TENNESSEAN, ET AL. v. TENNESSEE DEPARTMENT OF PERSONNEL, ET AL.

Court: TCA

Attorneys:

Alfred H. Knight, Alan D. Johnson, Nashville, Tennessee, for the appellants, The Tennessean and Brad Schrade.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Janet M. Kleinfelter, Senior Counsel, for the appellees, Tennessee Department of Personnel, Deputy Commissioner Nathaniel E. Johnson and Assistant Commissioner and General Counsel Kae Carpenter.

Judge: COTTRELL

The Tennessean and one of its reporters requested employment harassment investigation files from the Department of Personnel pursuant to the Public Records Act. The Department withheld selected documents claiming that they were protected by the attorney client privilege and/or work product doctrine and, therefore, exempt from the Act's disclosure requirements. The Tennessean and its reporter petitioned the Chancery Court to require disclosure under the Act. The trial court found the selected documents were protected by the attorney client privilege and/or work product doctrine. We affirm.

http://www.tba2.org/tba_files/TCA/2007/tennessean_043007.pdf

JAMIE LOU HANELINE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Jamie Lou Haneline.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Hansel Jay McCadams, District Attorney General; and Jerry W. Wallace, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Jamie Lou Haneline, appeals the Decatur County Circuit Court's denial of his petition for post-conviction and error coram nobis relief. He contends that he is entitled to post-conviction relief because he received the ineffective assistance of counsel and that he is entitled to error coram nobis relief based upon newly discovered evidence. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/hanelinej_043007.pdf

TODAY'S NEWS

Election Notice
Legal News
Upcoming
Knox Term Limits
TBA Member Services

Election Notice

TBA election deadline Tuesday

Tennessee Bar Association election ballots must be turned in by the close of business tomorrow. Tim Warnock and Barbara Holmes are running for Middle Tennessee governor, and Cindy Wyrick and Frank Johnstone are competing for 1st district governor. Members in those two districts who did not vote electronically received paper ballots. Those ballots must be returned to the office of the TBA auditors by the close of business May 1.

See more election information

Legal News

Newspaper calls for Gibson's resignation

The Cookeville Herald-Citizen says it is time for suspended District Attorney Bill Gibson to resign. In its editorial, the paper cited last week's action by the Board of Professional Responsibility, which denied Gibson's request for reinstatement. The hearing panel said he "is either willing to lie under oath to protect himself or lacks even a rudimentary understanding of his ethical responsibilities as a lawyer."

Read the editorial

Court adopts new standard on patent litigation

In a major patent law development, the Supreme Court today adopted a new, flexible standard that will make it easier for patents to be denied or challenged on the grounds that the invention at issue is too obvious to deserve patent protection.