Sharpen your appellate practice skills

Experienced attorneys hoping to sharpen their skills in appellate practice will want to attend this year's Advanced Appellate Practice CLE program Sept. 26 at the Tennessee Bar Center in Nashville. Tennessee Supreme Court Justice Janice M. Holder, Appellate Court Clerk Michael Catalano, and attorneys George T. "Buck" Lewis, Michael Moore and Jeff DeVasher will focus on how to structure and present your appeal, including: planning the appeal and trial court strategy, perfecting the appeal, preparing the appeal, presenting the appeal, appellate oral argument, and practice pointers -- assessing the oral argument.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5111

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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.

IN RE: B.J.L. and K.M.L.

Court: TCA

Attorneys:

Keith H. Grant, Dunlap, Tennessee, for the Appellant, N.L.

Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

This is an appeal from an order terminating the parental rights of N.L. ("Mother") to her two children, K.M.L. and B.J.L., ages 5 and 6, respectively. Following the trial, the Juvenile Court held that: (1) there was clear and convincing evidence that grounds existed to terminate Mother's parental rights pursuant to Tenn. Code Ann. sections 36-1-113(g)(1) - (g)(3); (2) there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest; and (3) the Department of Children's Services ("DCS") had made reasonable efforts to assist Mother to reunite with her children. Mother appeals challenging most of these rulings. After a careful review of the record, we affirm the Juvenile Court's judgment in all respects.

http://www.tba2.org/tba_files/TCA/2007/BJL_092107.pdf


JASON DIGREGORIO v. C. GARY JACKSON, M.D., ET AL.

Court: TCA

Attorneys:

Michael C. Skouteris, Milton E. Magee, Jr., Memphis, Tennessee, for the appellant, Jason Digregorio.

C.J. Gideon, Jr., Nashville, Tennessee, for the appellees, C. Gary Jackson, M.D. and the Otology Group.

Judge: COTTRELL

The defendant otologist performed surgery on the right ear of a man who suffered from a congenital condition. The patient claimed that for more than nine years after the surgery he suffered from chronic infections and a foul-smelling discharge from that ear. Another otologist finally revised the earlier surgery and discovered a small piece of sponge-like material in the patient's mastoid cavity, which the patient alleged had caused his infections and had been left there by the defendant almost ten years earlier. The defendant filed a motion for summary judgment, contending that the patient's complaint was time-barred because of the passing of the one-year statute of limitations and the three-year statute of repose for medical malpractice. The trial court granted the motion. The plaintiff argues on appeal that the trial court erred because it failed to properly consider Tenn. Code Ann. section 29-26-116(a)(4) of the medical malpractice act, which sets out a separate statute of limitations "in cases where a foreign object has been negligently left in a patient's body . . . ." We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2007/digregorioJ_092107.pdf


CHARLES JONES, ET AL. v. KITE/CUPP LEGENDS GOLF DEVELOPMENT CO., ET AL.

Court: TCA

Attorneys:

Timothy L. Bowden, Goodlettsville, Tennessee, for the appellant, Charles Jones.

Wendy Lynne Longmire, Nashville, Tennessee, for the appellee, Kite/Cupp Legends Golf Development Co.

Judge: HARRIS

In this case, the plaintiff, Charles Jones, stepped onto a wooden bench while playing a round of golf at Vanderbilt Legends Club of Tennessee (Legends), a golf course owned by the defendant, Kite/Cupp Legends Golf Development Co. (Kite). The bench overturned and Mr. Jones fell sustaining significant injuries. Mr. Jones brought a premises liability suit against the golf course alleging that it was negligent by failing to have secured the bench to the concrete slab on which it was sitting or by failing to have warned players it was not so secured. Kite filed a motion for summary judgment which was granted by the trial court. We find there are genuine issues of material fact, and so we reverse.

http://www.tba2.org/tba_files/TCA/2007/jonesc_092107.pdf


DANIEL E. LONG v. ANDREA ELISE MILLER, ET AL.

Court: TCA

Attorneys:

C. Patrick Sexton, Oneida, Tennessee, for the appellant, R & M Builders, Inc.

Brandon K. Fisher and Dail R. Cantrell, Clinton, Tennessee, for the appellee, Daniel E. Long.

Judge: SUSANO

This is a breach of contract action filed by Daniel E. Long against R & M Builders, Inc. ("R & M"), the successful bidder on a governmental project to demolish and rebuild the plaintiff's house. The plaintiff claims that R & M performed its services in an unworkmanlike manner and that the company failed to complete several of the contractual requirements. R & M filed a motion to dismiss asserting that the parties had agreed to binding arbitration. The trial court denied the motion and the case proceeded to trial. The jury found that R & M had breached the contract and awarded the plaintiff damages of $15,000. R & M appeals, claiming the trial court erred when it refused to order the parties to arbitration. It also asserts that the trial court erred in excluding certain evidence. The plaintiff argues that this appeal is frivolous. We affirm the judgment of the trial court and conclude that R & M's appeal is frivolous. We remand this case to the trial court with instructions.

http://www.tba2.org/tba_files/TCA/2007/longd_092107.pdf


QUINTIN G. MACDONALD, ET AL. v. BILL GUNTHER, d/b/a BJK PROPERTY INSPECTIONS

Court: TCA

Attorneys:

Christopher D. Cravens, Nashville, Tennessee, for the appellant Bill Gunther, d/b/a BJK Property Inspections.

Quintin G. MacDonald and Courtney L. MacDonald, Nashville, Tennessee, appellees, Pro Se.

Judge: COTTRELL

The plaintiff homeowners contended that the defendant licensed property inspector had performed a negligent or fraudulent home inspection on the house they subsequently purchased, and that as a result, they incurred many unanticipated expenses for repairs. The parties agreed to resolve their dispute through binding arbitration, which resulted in an arbitration award of nearly $100,000 for the homeowners. The trial court granted the plaintiffs' motion to confirm the award. The defendant argues on appeal that the court should have dismissed the plaintiffs' motion to confirm because of their failure to comply with the court's scheduling order. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/macdonaldq_092107.pdf


STATE OF TENNESSEE, v. TERESA MURPHY, and STATE OF TENNESSEE, v. DWIGHT BRIGHT

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, and Juan G. Villasenor, Assistance Attorney General, Nashville, Tennessee, for appellant.

Teresa Murphy, Madisonville, Tennessee, pro se.

Judge: FRANKS

This is an action by the State to require the defendant to pay to the State previously ordered child support payments. The Trial Court determined that the children were never in the physical custody of the State, but were in the custody of the grandparents and the mother, during the time period the child support payments had been ordered, and that the grandparents had received no child support payments from the State and waived any payments of child support. The Trial Court dismissed the State's action. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/murphyt_092107.pdf


DOT VAUGHN, ET AL. v. JOHN W. HARTON REGIONAL MEDICAL CENTER

Court: TCA

Attorneys:

James H. Threet, Manchester, Tennessee, for the appellants, Dot Vaughn and Janelle Lee.

Mark T. Smith, Lisa K. Helton, Nashville, Tennessee, for the appellee, John W. Harton Regional Medical Center.

Judge: HARRIS

Muriel Powers Davis was hospitalized in the John W. Harton Regional Medical Center for pneumonia. During the admission process, it was noted she had recently fallen and had difficulty ambulating without assistance. As a result, fall precautions were implemented. Two days later, during the evening hours, she was discovered lying in the floor. An X-ray revealed a fractured femur. The fracture was surgically repaired, but Ms. Davis died some twenty days after her fall. Her next of kin instituted a medical malpractice action against the hospital alleging that Ms. Davis's fall was the result of negligent care provided by the hospital. The hospital moved for summary judgment which was granted by the trial court. After carefully reviewing the record, we are of the opinion that the affidavit filed by the hospital in support of its motion for summary judgment failed to negate the plaintiffs' right of recovery and so we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2007/vaughnd_092107.pdf


DEBORAH ANN WHITE v. DEWEY WAYNE WHITE

Court: TCA

Attorneys:

Randy Hillhouse, Lawrenceburg, Tennessee, for Appellant.

Paul A. Bates, Lawrenceburg, Tennessee, for Appellee.

Judge: FRANKS

This is an appeal from a judgment that was not final. This Court ordered that a final judgment be entered with a copy filed in the record before us, which the appellant has failed to do. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCA/2007/whited_092107.pdf


TERRANCE N. CARTER v. RICKEY BELL, WARDEN

Court: TCCA

Attorneys:

Terrance N. Carter, Nashville, Tennessee, Pro Se, and Peter D. Heil, Nashville, Tennessee, for the appellant, Terrance N. Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Terrance N. Carter, pro se, filed a petition for habeas corpus relief in Davidson County which was summarily dismissed. He appealed pro se and was appointed counsel by this court. His pro se filing challenges whether the trial court erred in dismissing his petition without an evidentiary hearing. His appointed counsel requests that his habeas corpus petition be treated as one for post-conviction relief and that this court order the Davidson County Court to transfer the matter to the Maury County Criminal Court to proceed as if the petition was for post-conviction relief. We conclude that, without express authority, we should not order a transfer in this case, and the summary dismissal is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/cartert_092107.pdf


STATE OF TENNESSEE v. MARIA A. DILLS

Court: TCCA

Attorneys:

Joseph L. Hornick, Dickson, Tennessee, for the appellant, Maria A. Dills.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; R. Stephen Powers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

A Dickson County jury convicted the defendant of one count of driving under the influence (DUI), second offense, a Class A misdemeanor, one count of violating the implied consent law, a Class A misdemeanor, one count of driving on a revoked license, a Class B misdemeanor, and one count of leaving the scene of an accident, a Class C misdemeanor. On appeal, the defendant contends that the trial court erred in denying her pre-trial motion to suppress statements made to police inside her residence because the statements resulted from custodial interrogation and were given without proper Miranda warnings. The defendant also contends that the evidence produced at trial was insufficient to support her convictions. After reviewing the record, we conclude that the trial court properly denied the defendant's motion to suppress her statements, and that the evidence produced at trial was sufficient to support the defendant's convictions. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/dillsm_092107.pdf


STATE OF TENNESSEE v. KIRBY STEPHENS

Court: TCCA

Attorneys:

Thomas Harding Potter, Nashville, Tennessee, for the appellant, Kirby Stephens.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William P. Phillips, District Attorney General; and John G. Galloway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Kirby Stephens, was convicted by a Fentress County jury of first degree murder and received a sentence of life imprisonment. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether statutory violations in the jury selection process resulted in prejudice to him; (2) whether the trial court erred in its method of polling the jury by a "show of hands"; (3) whether the trial court erred by not requiring the State's designated representative, investigating officer Detective Gary Ledbetter, to testify first, violating the rule of sequestration; and (4) whether the evidence was sufficient to support his conviction. The State responds that, other than the Defendant's challenge to the sufficiency of evidence, his issues are waived due to his failure to timely file a motion for new trial. After review, we conclude that the Defendant's motion for new trial was timely filed and that there was no reversible error. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/stephensk_092107.pdf


STATE OF TENNESSEE v. ANTONIO DEWAYNE WATERS

Court: TCCA

Attorneys:

Joseph E. Clifton, Nashville, Tennessee, for the appellant, Antonio Dewayne Waters.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Lawrence Ray Whitley, Jr., District Attorney General; and Dee David Gay, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, after denial of his motion to suppress evidence, entered a plea of guilty to possession with intent to sell more than one-half gram of cocaine, a Class B felony. The negotiated sentence was eight years as a standard offender. The defendant appeals pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(I). After review, we conclude that denial of the motion to suppress was error. Accordingly, we reverse the conviction and dismiss the charges.

http://www.tba2.org/tba_files/TCCA/2007/watersa_092107.pdf


TODAY'S NEWS

Legal News
Passages
Upcoming
TennBarU CLE
TBA Member Services

Legal News
Blount judge subject of investigation for comments
Blount County Circuit Court Judge W. Dale Young appears to be the subject of a judicial conduct review by the Tennessee Court of the Judiciary, following an order of protection hearing during which he reportedly told a legal immigrant from Nicaragua who lives and works in Blount County that she had no rights in court and instructed her to go back where she came from.
Read more in the Daily News Times
Newspaper calls for comprehensive review of execution process
The Tennessean today calls on the state to take a message from U.S. District Judge Aleta Trauger's ruling and review the way the death penalty is carried out in Tennessee. "It is abundantly clear that Tennessee's death-penalty system is fraught with problems. It is not only that the methods of execution may be unconstitutional; there are much broader concerns: that death-row inmates are not adequately defended; that as many as 10 percent are mentally deficient, to the extent that they do not even know what is happening to them; and, in cases such as Workman's, some may not even have committed the crime they are convicted of," the Tennessean says in an editorial.
Read more in the Tennessean
Judicial election dispute sent back to Chancery Court
The Tennessee Supreme Court this week sent a complaint contesting an election for sessions judge back to Anderson County Chancery Court for trial, where it will be determined whether there were illegal votes cast, and if so, whether there was a sufficient number of these votes to void the election.
Read more in the Knoxville News Sentinel
Spring Hill judge steps down
Spring Hill City Court Judge Huntly Gordon resigned this week, citing concerns about a perceived conflict of interest and his desire to spend more time with his family, the Tennessean reports.
Read more about it
Passages
White House lawyer dies after illness
White House lawyer Bryce Ruth died at his home on Thursday, following a long illness. A member of the Tennessee Bar Association's House of Delegates, he was 58. Visitation will be held Sunday at the White House First United Methodist Church Gymnasium (on Highway 31W north) beginning at 1 p.m., with the funeral service to follow at 2 p.m. Burial will be Monday evening at Lehrton Cemetery in Ruleville, Miss. Memorial contributions can be made to: the Multiple Myeloma Research Foundation, 383 Main Street, 5th Floor, Norwalk, CT 06851; Alive Hospice, 1718 Patterson Street, Nashville, TN; the Fisher House Foundation, 1401 Rockville Pike, Suite 600, Rockville, MD 20852; the White House United Methodist Church Building Fund, P.O. Box 200, White House, TN 37188; or White House High School - football or soccer (boys and girls) programs, 508 Tyree Springs Road, White House, TN 37188.

Upcoming
International municipal lawyers group to meet in Nashville
At the invitation of Nashville Mayor and former Law Director Karl Dean, the International Municipal Lawyers Association (IMLA) will hold its 72nd Annual Conference in Nashville, Oct. 28-31. American and Canadian lawyers from private and public practice settings will discuss local government issues and enjoy social events at the Schermerhorn Symphony Center, the Wildhorse Saloon and other locales during the event, which will also include educational programming on land use, employment law, the ADA, telecommunications, mediation, ethics and climate change. Tennessee Supreme Court Justice Cornelia Clark will also address attendees. Tennessee lawyers can obtain a special rate of $150 for one day or $300 for the entire conference if they register by Oct.15, by calling (202) 466-5424.
Learn more about the conference
TennBarU CLE
Learn essentials of elder law from the experts
The best of TBA's Elder Law Essentials CLE program are now available as TennBarU online video programs. A distinguished faculty, including several national experts, provide the most up-to-date information on various areas of interest to the elder law practitioner or any attorney who deals with the issues of planning for old age. Programs include: Basics of Medicaid Planning, Medicaid Spousal Impoverishment, the Issues of Aging, Medicaid Eligibility: General Rules, Basic Long-Term Care Planning, Ethics and Elder Law Practice, Pension and Retirement Plans, and Planning for Incapacity: Powers of Attorney and Conservatorships.
Learn more or register now
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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