Final applicants file for Court of Appeals seat

Applicants for the Court of Appeals vacancy created by the death of Judge Cain had until close of business today to file. The final eight applicants are: Smynra General Sessions Judge Keta J. Barnes; Nashville attorney Sara Meredith DeVault, senior counsel in the Attorney General's Office; Davidson County Chancellor Richard H. Dinkins; Bone McCallister Norton attorney William Joseph Haynes III of Nashville; Administrative Law Judge Andrei Ellen Lee with the State Board of Equalization in Nashville; Middle Division Claims Commissioner Stephanie Renee Reevers of Antioch; Brentwood attorney Leon Vincent Williams in the Attorney General's Office; and Legal Aid Society Managing Attorney Marla Kaye Williams of Cookeville. A total of 20 attorneys applied for the position. See a full list of the applicants:

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Court: TCA


Richard M. Smith, Nashville, Tennessee, for the appellant, Big Creek Landscaping, LLC.

Hugh C. Howser, Jr., Mary Ellen Morris and James A. Beakes, III, Nashville, Tennessee, for the appellee, Hudson Construction Company.


This appeal involves a dispute between a contractor and a landscaping subcontractor over the subcontractor's installation of undersized trees and the contractor's subsequent invocation of the take over clause upon the landscaper's failure to cure the defect. Both parties asserted breach of contract, and the trial court awarded damages to the defendant contractor for the cost of completing the job through a third-party landscaper and for attorney's fees and expenses. Concurring with the trial court that the subcontractor breached the contract when it installed undersized trees and, despite sufficient notice and opportunity to cure, failed to do so, we affirm the trial court's judgment.


Court: TCA


J. Thomas Caldwell of Ripley, Tennessee for Appellant, Robert M. Cherry.

T. D. Forrester of Covington, Tennessee for Appellees, Lindy Cherry, individually and as Next Friend of her minor children, Rebecca Lynn Cherry, James Franklin Cherry, Bessie Lorraine Cherry, and Maggie Elizabeth Cherry.


In this appeal, the trial court determined that a deed to the involved property created a resulting trust in favor of the family of the deceased grantor property owner. Grantee appeals. We affirm.


Court: TCA


Rebecca E. Byrd, Kenneth J. Sanney, Lauren M. Spitz, Franklin, TN, for Appellant.

Phillip R. Newman, Franklin, TN, for Appellee.


This appeal involves a mother's recovery of attorney's fees pursuant to a marital dissolution agreement ("MDA"). The father had filed a petition to modify his child support obligation, and the mother counterclaimed alleging that he had violated various provisions of the MDA and should be held in contempt. She also sought a restraining order against the father and alleged that he had intentionally, negligently, or recklessly inflicted emotional distress on her and the children, entitling them to compensatory and punitive damages. Following a hearing on a motion to strike, the trial court ordered that any tort claims be severed from this action. After another hearing, the court modified the father's child support obligation and found that he was in civil contempt of court for various violations of the MDA. The court granted the restraining order and awarded the mother a judgment for the unpaid support obligations and a portion of her attorney's fees. On appeal, the mother contends that the attorney's fee award was entered solely as punishment for the father's violations, and that she is entitled to an additional award of attorney's fees pursuant to a clause in the MDA. We affirm.


Court: TCA


Kevin C. Klein, John L. Kennedy, Nashville, Tennessee, for the appellant, The Metropolitan Government of Nashville and Davidson County.

Alfred H. Knight, A. Russell Willis, Nashville, Tennessee, for the appellee, Kathryn Montgomery.


On a petition for writ of certiorari, the trial court held that the Benefit Board misconstrued or failed to follow its policy when denying the petitioner's request for disability benefits. Consequently, the trial court granted petitioner's application for disability benefits. We reverse because we cannot conclude that the Benefit Board acted arbitrarily in how it construed and or applied its internal polity. We also conclude that the request for disability benefits is governed by Tenn. Code Ann. section 27-9-114, and, accordingly, the matter should be remanded to the Benefit Board to conduct a contested case hearing.


Court: TCA


Gerald E. Martin, Nashville, Tennessee, for the appellants, Nashville Post Company d/b/a NashvillePost.Com, and Kenneth S. Whitehouse.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M. Kleinfelter, Senior Counsel; and William N. Helou, Assistant Attorney General, for the appellees, Tennessee Education Lottery Corporation and Rebecca G. Paul.


The Nashville Post appeals the trial court's refusal to award it attorneys' fees and costs under the Public Records Act against the Tennessee Education Lottery Corporation for failure to produce a letter terminating an employee's employment. Finding the trial court did not abuse its discretion, we affirm.


Court: TCA


Charles Galloway Blackard, III and Robert Todd Jackson, Brentwood, Tennessee, for the appellant, Wade Patrick Schuerman.

Helen Sfikas Rogers and Lawrence James Kamm, Nashville, Tennessee, for the appellee, Kimberly Morgan Schuerman.


This is a divorce action. On appeal, Husband asserts the trial court erred by awarding Wife alimony where she did not request it in her complaint for divorce. Husband further asserts the trial court erred in awarding Wife the marital home and certain stock without considering the factors enumerated in Tennessee Code Annotated section 36-4-121(c). We vacate and remand.


Court: TCA


William B. Hubbard, Nashville, Tennessee, for the appellant, Universal Care of Tennessee, in Liquidation.

David L. Steed, Nashville, Tennessee, for the appellant, Quest Diagnostics.

Robert E. Cooper, Jr., Attorney General and Reporter; and Janet Irene M. Kleinfelter, Assistant District Attorney, for the appellee, State of Tennessee.


This appeal involves a dispute between a provider of pathology testing services and the Liquidator of a TennCare managed care company in liquidation over the timeliness of the filing of a proof of claim form. After the Liquidator found the creditor's claim to be untimely, the creditor filed an objection in the liquidation proceeding pending in Chancery Court. The Chancellor determined the late filing was the result of excusable neglect and directed the Liquidator to classify the claim as timely filed. The Chancellor had the authority pursuant to Tenn. R. Civ. P. 6.02 to excuse the late filing of the claim on the basis of excusable neglect, and we find no error with the Chancellor's decision. Accordingly, we affirm.


Court: TCCA


A. Phillip Lomonaco, Knoxville, Tennessee, for the appellant, Christian Fernandez.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Christian Fernandez, entered a conditional guilty plea to possession of cocaine, a schedule II controlled substance, in excess of .5 grams with the intent to sell or deliver, a Class B felony, possession of marijuana, a schedule IV controlled substance, a Class A misdemeanor, and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced to eight years total, to serve one year in jail and the remainder on supervised probation. As part of his conditional guilty plea, the defendant reserved and submitted the following certified question of law: whether the trial court erred in denying the defendant's motion to suppress because the continued detention of the defendant and the subsequent search of his vehicle were conducted without a finding of probable cause or reasonable suspicion of criminal activity. Upon review, we affirm the judgment of the trial court.


Court: TCCA


James E. Swiggett, Pro se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and Leslie E. Price, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Petitioner, James Swiggett, appeals the summary dismissal of his petition for the writ of habeas corpus. Swiggett is currently serving a sentence of life imprisonment as a result of his conviction for first degree murder. On appeal, he argues that the trial court erred in concluding that his petition failed to state a colorable claim for habeas corpus relief. After review, we affirm the judgment of the Johnson County Criminal Court dismissing the petition.


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