A reminder that September is 'Recovery Month'

Even as September winds down, the TBA's Attorney Well Being Task Force reminds you that the month is designated as National Alcohol and Drug Addiction Recovery Month. National Suicide Prevention Week was also in September. President Marcy Eason addressed these issues in her last Tennessee Bar Journal column, "Lawyers especially at risk for depression, addition, suicide." You can also read the story of a Nashville attorney's struggle with addiction and how it has changed his life. Read the stories here:

http://www.tba.org/Journal_Current/tbj-2007_09.html

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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11 - TN Court of Appeals
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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.

EDWINNA RUTH BLACKBURN v. HEATH BRADLEY BLACKBURN
Corrected Opinion (correction on page 11)


Court: TCA

Attorneys:

John W. Cleveland, Sweetwater, Tennessee, for the appellant, Edwinna Ruth Blackburn.

Keith H. Grant, Dunlap, Tennessee, for the appellee, Heath Bradley Blackburn.

Judge: SUSANO

In this divorce case, Edwinna Ruth Blackburn ("Wife") challenges the validity of the judgment of divorce entered nunc pro tunc following the death of her spouse, Heath Bradley Blackburn ("Husband"). The trial court held that the divorce was granted on June 6, 2005, i.e., before Husband's death on October 30, 2005, when the parties announced their settlement to the court. Wife appeals and argues that this case was still pending when Husband died. She claims that his death abated her complaint for divorce. We affirm.

http://www.tba2.org/tba_files/TCA/2007/blackburne_corr_092607.pdf


IN RE: VICTORIA BOWLING

Court: TCA

Attorneys:

Wade V. Davies and Kimberly A. Pride, Knoxville, Tennessee, for appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the State of Tennessee.

Judge: FRANKS

Defendant was cited for criminal contempt by Judge. Another Judge found defendant guilty of contempt. We affirm.

http://www.tba2.org/tba_files/TCA/2007/bowlingv_092607.pdf


ANNA C. BURDEN v. HARRY DONALD BURDEN

Court: TCA

Attorneys:

Vivian Crandall, Oak Ridge, Tennessee, for the appellant, Anna C. Burden.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellee, Harry Donald Burden.

Judge: SUSANO

In this divorce case, Anna C. Burden (“Wife”) challenges the trial court’s award of joint custody and its adoption of the Permanent Parenting Plan submitted by Harry Donald Burden (“Husband”), which plan provides for equal parenting time with regard to the parties’ child, A.V. (“Child”). Wife contends that she should be the primary residential parent, with Husband having visitation rights. Wife also challenges the court’s division of the marital property and its denial of alimony. We reverse as to custody, affirm as to the division of property, and vacate the judgment as to alimony. This case is remanded for further proceedings on the issue of alimony.

http://www.tba2.org/tba_files/TCA/2007/burdena_092607.pdf


WILLIE L. HILL v. MARGIE L. SIMPSON

Court: TCA

Attorneys:

Lane Wolfenbarger, Knoxville, Tennessee, for appellant.

Brian H. Trammell, and Kevin C. Stevens, Knoxville, Tennessee, for appellee.

Judge: FRANKS

In this action for damages for injuries sustained in a motor vehicle accident, the Trial Judge approved a jury verdict for the defendant. Plaintiff appealed on grounds of jury misconduct. We affirm.

http://www.tba2.org/tba_files/TCA/2007/hillw_092607.pdf


EVELYN JONES v. ANGELA ANDERSON, IN HER OFFICIAL CAPACITY AS CLERK & MASTER OF MORGAN COUNTY

Court: TCA

Attorneys:

Billy P. Sams, Oak Ridge, Tennessee, for appellant, Evelyn Jones.

Joe R. Judkins, Wartburg, Tennessee, for appellee, Angela Anderson.

Judge: SUSANO

Evelyn Jones sued Angela Anderson, in the latter's capacity as Clerk & Master of Morgan County ("the Clerk & Master"). The plaintiff sought a writ of mandamus or, alternatively, "a declaration as to the rights . . . [the plaintiff] acquired by her act of redemption" with respect to a piece of property titled to the plaintiff"s uncle, Julian Jones. Mr. Jones was deceased when the subject property was sold at a tax sale. Based upon the pleadings and stipulated facts, the trial court dismissed the complaint. The plaintiff appeals, arguing that she is entitled to a writ of mandamus ordering the Clerk & Master to make a deed conveying to her the fee simple interest in the subject property. We affirm.

http://www.tba2.org/tba_files/TCA/2007/jonese_092607.pdf


IN RE J.W.L AND J.R.G.

Court: TCA

Attorneys:

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, N.G.G.

Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Judge: CLEMENT

Mother appeals the termination of her parental rights to her two children, J.W.L. and J.R.G. The trial court terminated Mother's parental rights on the grounds of mental incompetence and failure to remedy persistent conditions. The court also found that the termination of Mother's parental rights was in the children's best interest. We affirm the trial court's termination of parental rights based upon Mother's failure to remedy persistent conditions.

http://www.tba2.org/tba_files/TCA/2007/jwl_092607.pdf


HEATHER MCBRIDE v. SHERRY NEBEL WEBB

Court: TCA

Attorneys:

D. Scott Wilder, Nashville, Tennessee, for appellant.

M. Ben Moore, II., Nashville, Tennessee, for appellee.

Judge: FRANKS

In this action, plaintiff obtained a Default Judgment. Defendant moved to set aside the Judgment. The Trial Court refused, and we affirm.

http://www.tba2.org/tba_files/TCA/2007/mcbrideh_092607.pdf


MILAN BOX CORPORATION v. DONNA HARDY, ET AL.

Court: TCA

Attorneys:

C. Timothy Crocker, Michael A. Carter and Daniel E. King, Jackson, Tennessee, for the appellants, Donna Hardy and Billy Hardy.

M. Taylor Harris, Jr. And W. Kerby Bowling, Milan, Tennessee, for the appellee, Milan Box Corporation.

Judge: FARMER

Plaintiff Milan Box filed this lawsuit against former employee Donna Hardy and her husband, Billy Hardy, alleging fraud, embezzlement, conversion, and unjust enrichment. During discovery the Hardys submitted responses to written interrogatories, but subsequently asserted their fifth amendment rights against self-incrimination during deposition and moved the court to stay litigation pending criminal proceedings. The Hardys subsequently withdrew the motion to stay; nevertheless, the trial court denied the motion to stay when the Hardys failed to execute deeds of trust to real property in favor of Milan Box as security. The trial court granted Milan Box's motion for summary judgment, and the Hardys appeal. We affirm summary judgment against Donna Hardy but modify the award of damages, reverse the award of summary judgment against Mr. Hardy, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/milanbox_092607.pdf


BRANCE E. MYERS, III v. ROBERTA JILL MYERS

Court: TCA

Attorneys:

Tom Beesley, Crossville, Tennessee for the Appellant, Brance F. Myers, III.

Roberta Jill Myers, Crossville, Tennessee, Pro Se Appellee.

Judge: SWINEY

Brance E. Myers, III ("Father") filed a Petition to Modify Parenting Plan alleging a material change in circumstances and seeking to modify the parenting plan entered into when Father and Roberta Jill Myers ("Mother") divorced three years earlier. The case was heard by Judge Steven C. Douglas who entered an order on March 17, 2006, finding and holding, inter alia, that there was a material change in circumstances sufficient to require a modification. Mother filed a motion to alter or amend the judgment. Judge Douglas was defeated in the August election and never ruled on Mother's motion to alter or amend the judgment. The new judge, Judge Larry M. Warner, heard argument on the motion to alter or amend and granted a new trial. After the new trial, Judge Warner entered an order on March 6, 2007, finding and holding, inter alia, that there was no material change in circumstances that would warrant a modification of the parenting plan. Father appeals to this Court raising issues regarding the grant of a new trial and the finding of no material change in circumstances. We reverse the grant of a new trial, vacate the March 6, 2007 order, and reinstate the March 17, 2006 order.

http://www.tba2.org/tba_files/TCA/2007/myersb_092607.pdf


ROLLINS MARKET, INC. d/b/a ROLLINS MARKET v. METROPOLITAN BEER PERMIT BOARD

Court: TCA

Attorneys:

Margaret O. Darby, Nashville, Tennessee, for the appellant, Metropolitan Beer Permit Board of the Metropolitan Government of Nashville and Davidson County.

James Robin McKinney, Jr., Nashville, Tennessee, for the appellee, Rollins Market, Inc., d/b/a Rollins Market.

Judge: CLEMENT

The Davidson County Metropolitan Beer Board appeals the decision of the Circuit Court, which reversed the Board's revocation of a beer permit. The Board had revoked the beer permit issued to Rollins Market, Inc., based upon a finding the market had received four citations for unlawfully selling beer to minors. The corporation contended it only had one violation and that the previous citations the Board relied upon to revoke its permit were issued to a prior owner of the market, not the corporation. The record shows that the corporation was required by Board policies to obtain a new beer permit when it acquired the market and that only one citation had been issued subsequent to the corporation receiving its beer permit. Thus, the evidence does not preponderate against the trial court's finding that the citation at issue constituted the corporation's first violation for selling beer to minors. We therefore affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2007/rollinsmarket_092607.pdf


BRIAN L. VANBEBBER v. JON ROACH, ET AL.

Court: TCA

Attorneys:

John T. Johnson, Jr. and William J. Carver, Knoxville, Tennessee, for appellant, Tennessee Farmers Mutual Insurance Company.

James S. MacDonald, Knoxville, Tennessee, for appellee, Brian L. VanBebber.

Judge: SUSANO

This case involves a personal injury claim arising out of a two-vehicle collision. The dispute on appeal is between the injured plaintiff, Brian L. VanBebber, and Tennessee Farmers Mutual Insurance Company. Their disagreement pertains to whether the plaintiff is covered under the uninsured motorist provisions of his mother's policy with Tennessee Farmers. This issue was tried to a jury. The plaintiff contends that he was a resident of his mother's household at the time of the accident. The trial court held that the policy language -- "resident of your household" -- is ambiguous. As a consequence of this ruling, the court instructed the jury that it should liberally construe this phrase "in favor of [the plaintiff]...and against [Tennessee Farmers]." The jury returned a verdict in favor of the plaintiff. We hold that the trial court committed error when it characterized the subject provision as ambiguous and that it further erred when it thereafter charged the jury that it should construe this language liberally in favor of the plaintiff and against Tennessee Farmers. Because we hold that these errors more probably than not affected the judgment in this case, we vacate that judgment and remand for a new trial.

http://www.tba2.org/tba_files/TCA/2007/vanbebberb_092607.pdf


MELVIN COFER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gary Antrican, District Public Defender, Covington, Tennessee, for the appellant, Melvin Cofer.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General,for the appellee, State of Tennessee.

Judge: SMITH

The petitioner, Melvin Cofer, was convicted of aggravated vehicular homicide and vehicular assault. As a result, the petitioner received concurrent sentences of twenty-one years and three years. The petitioner's convictions and sentences were affirmed on direct appeal. See State v. Melvin Cofer, No. W2002-01984-CCA-R3-CD, 2003 WL 21729450, at *1 (Tenn. Crim. App., at Jackson, Jul. 25, 2003), perm. app. denied, (Tenn. Nov. 24, 2003). Subsequently, the supreme court denied permission to appeal. The petitioner filed a pro se petition for post-conviction relief alleging, on numerous grounds, ineffective assistance of counsel. Counsel was appointed and several amended petitions were filed. The petition was denied by the post-conviction court after a hearing. This appeal followed. Because the post-conviction court properly denied the petition, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/coferm_092607.pdf


STATE OF TENNESSEE v. MARLOW WILLIAMS

Court: TCCA

Attorneys:

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Marlow Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General,for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Marlow Williams, was indicted in June of 2003 with six counts of aggravated robbery. In September of 2004, Appellant invoked the provisions of the Interstate Compact on Detainers to dispose of his charges in Tennessee. The Assistant Attorney General and Shelby County Criminal Court received the Request for Disposition of Indictment on October 4, 2004. Appellant was transported to Tennessee. A jury trial was held in September of 2005, where Appellant was found guilty of two counts of aggravated robbery. The trial court sentenced Appellant to concurrent ten- year sentences, but merged Count 2 for a single sentence under Count 1. On appeal, Appellant argues that: (1) the trial court improperly denied his motion to dismiss the indictment because his trial was held after the expiration of the 180 days provided for in the Interstate Compact on Detainers; (2) the trial court improperly admitted expert testimony on fingerprints; (3) the evidence was insufficient to support the convictions; and (4) the trial court improperly sentenced him. We determine that the trial was not held in violation of the Interstate Compact on Detainers and that the trial court properly admitted expert testimony on fingerprints. Furthermore, despite the improper application of enhancement factor (3), the offense involved more than one victim, we determine that the trial court properly sentenced Appellant. As a result, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/williamsm_092607.pdf


Constable Rescinding Resignation

TN Attorney General Opinions

Date: 2007-09-24

Opinion Number: 07-136

http://www.tba2.org/tba_files/AG/2007/ag_07_136.pdf

Polk County Employee Bill of Rights

TN Attorney General Opinions

Date: 2007-09-24

Opinion Number: 07-137

http://www.tba2.org/tba_files/AG/2007/ag_07_137.pdf

Constitutionality of Statutory Provisions Increasing Governor's Salary

TN Attorney General Opinions

Date: 2007-09-25

Opinion Number: 07-138

http://www.tba2.org/tba_files/AG/2007/ag_07_138.pdf

Expansion of the Lebanon Special School District

TN Attorney General Opinions

Date: 2007-09-25

Opinion Number: 07-139

http://www.tba2.org/tba_files/AG/2007/ag_07_139.pdf

TODAY'S NEWS

Legal News
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Tennessee may have to delay three executions
Tuesday's decision by the U.S. Supreme Court to consider the cases of two Kentucky death row inmates is likely to halt lethal injection executions across the nation for months, legal experts say. In Tennessee, the executions of Pervis Payne (scheduled to die in December) and Paul Dennis Reid and Edward Jerome Harbison (both scheduled to die in January) may have to wait while the court considers the Kentucky cases.
The Tennessean reports
Ford ordered to Texas prison
Former state senator John Ford, convicted of bribery, must report Oct. 17 to the federal prison in Anthony, Texas, according to an order of surrender issued this week. On Oct. 1, however, Ford will ask the court to let him remain free while he litigates an appeal and faces corruption charges in a separate Nashville case.
The Commercial Appeal has more
Mukasey subject of complaints from some U.S. marshals
In a complaint against two federal judges, including attorney general nominee Michael Mukasey, U.S. marshals say they were treated like servants: ordered to empty the trash, carry groceries and tote golf clubs while on security detail. In 2005, based on that accusation, the Marshals Service stopped providing security for Mukasey and Judge Kevin Thomas Duffy. Other marshals who served Mukasey dispute those claims.
Law.com has this AP story
Jena backlash prompts Justice Department review
Days after African-American demonstrators protested perceived racial injustices in Jena, La., the U.S. Justice Department says it is looking into allegations that white supremacists are targeting black teenagers and families at the center of the controversy. White extremist web sites and blogs reportedly have exploded with activity over the last few days, urging counter demonstrations and even vigilante action.
Read more in the Chicago Tribune
Lipscomb launches law and justice major
Nashville's Lipscomb University is offering a new major this fall. The Law, Justice, and Society program will explore how laws impact society, cover historical perspectives of the law and critically analyze issues of equality, justice and fairness. The program will be based on a multi-disciplinary curriculum and will require an internship and trips to Washington D.C. and London. For more information contact the department at (615) 966-6242 or read more from
the school's press release
Anderson again studying expansion of jail
Anderson County just completed an expansion of its jail, and it's already experiencing overcrowding. Costs for a 70-inmate addition and other improvements are conservatively pegged at $3.6 million, members of the jail planning subcommittee were told this week.
The News Sentinel has the story
Little Rock Nine mark 50 years of integration
The Little Rock Nine returned to Arkansas' Central High School Tuesday, 50 years after breaking its color barrier, and found a campus that is racially mixed but far from integrated. Read about the celebration in the Memphis Commercial Appeal.
The paper carried this AP story
Upcoming
ABA Health Section to meet in Nashville
The ABA Health Law Section will hold its annual leadership meeting at the Union Station Hotel in Nashville starting Friday. The section chair selected Nashville for this meeting based on the area's large number of health care related businesses and high concentration of health lawyers and leaders in the health law bar. On Friday, the chairs and vice chairs of the section's 12 interest groups as well as other section leaders will spend the day in orientation and training. On Saturday and Sunday, the section council will conduct its first full meeting of the bar year.
For more information about the section visit its webpage
Event highlights upcoming Supreme Court term
The Nashville Chapter of the American Constitution Society will host a discussion of significant cases to be considered during the U.S. Supreme Court's 2007-2008 term this coming Monday, Oct. 1 from 4:30 to 6 p.m. at Vanderbilt University Law School's Flynn Auditorium. The event, which is free and open to the public, will feature scholars from Stanford Law School and Vanderbilt Law School. For more information contact Juan G. Villasenor at (615) 479-0383.

Retired Justice Birch to be honored next week
The Supreme Court of Tennessee will host a ceremonial session for the unveiling and presentation of a bust of retired Justice Adolpho A. Birch Jr. next Wednesday, Oct. 3, at 2:30 p.m. at the Supreme Court building in Nashville. A reception will follow the ceremony. For more information call (615) 726-7367.

Disciplinary Actions
Brentwood attorney reinstated
Beatrice Chan Hubbard has been reinstated to the practice of law in Tennessee after paying the annual BPR fee.
View all attorneys suspended and reinstated for 2007 fee violations
Kentucky lawyer pays BPR fees
David Vance Oakes of Paducah, Ky. has paid his annual fees for 2005, 2006 and 2007, but remains suspended for CLE non-compliance.

TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at 1-800-368-2734
or get an online rate quote

 
 
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