Deadline for TBA Academy extended

A select group of Tennessee attorneys will soon experience the honor of being admitted to practice before the U.S. Supreme Court in a private swearing-in ceremony at the 24rd Annual TBA Academy. This year's Academy is scheduled for Jan. 21-23, with the ceremony to take place before the court on Jan. 22. Join TBA President Marcy Eason and other leaders in the Tennessee legal community for this exciting program. The deadline to register has been extended to Dec. 27. Sign up or learn more at TNBarU:

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5494

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.

LAWRENCE COUNTY EDUCATION ASSOCIATION ET AL. v. THE LAWRENCE COUNTY BOARD OF EDUCATION ET AL.

Court: TSC

Attorneys:

Richard L. Colbert and J. Christopher Anderson, Nashville, Tennessee, for the appellants, Lawrence County Education Association and Jerry Taylor.

Paul B. Plant and J. Christopher Williams, Lawrenceburg, Tennessee, for the appellees, Lawrence County Board of Education and Larry Morrow, Director of Schools.

Judge: WADE

Jerry Taylor, a tenured teacher in Lawrence County, and the Lawrence County Education Association brought this action against the Lawrence County Board of Education, primarily seeking the reinstatement of Taylor's additional role as head girls' basketball coach at Loretto High School but also asking for other relief. Both sides filed motions for summary judgment. After granting the motion filed by Taylor and the Education Association, the judge approved back pay for 2001-2002, ordered that Taylor should have been considered as the incumbent coach for 2002-2003, and directed pay for that year as well. The judge declined to reinstate Taylor as coach. The Court of Appeals affirmed the judgment but ruled that teacher transfers, including the reassignment of a coach to full- time teaching responsibilities, were within the exclusive authority of the director of schools and not a proper subject of the collective bargaining process. We granted review to determine what remedies, if any, were available to Taylor and the Education Association. We hold that the director of schools has the statutory authority to "transfer" teachers, including the re-assignment of a tenured teacher with coaching responsibilities to a full-time teaching position when necessary for the efficient operation of the system; however, the subject of teacher transfer may be addressed in the collective bargaining process under our statutes, and the powers of a director in that regard are subject to both the terms of any contract and to board policy. Nevertheless, the director retains the power to transfer a tenured teacher as to their coaching responsibilities, without regard to the terms of a collective bargaining agreement, so long as that transfer does not affect the employee's position as a teacher. This is because a coach does not fall under the statutory definition of a "professional employee." While Taylor, in his capacity as coach, was not entitled to an arbitration hearing on his transfer from coaching under the collective bargaining agreement, the board of education, by adopting the recommendations of the arbitrator, established a policy granting rights to Taylor which he would not have otherwise possessed. Because the binding nature of the arbitrator's decision is not in dispute, Taylor is entitled to a partial summary judgment in that he should receive the coaching supplement for the school year 2001-2002 and should have been treated as the "incumbent coach" for assignment purposes in 2002- 2003. In that regard, the judgment is affirmed. There are, however, genuine issues of material fact as to whether Taylor, despite his incumbency status, was properly transferred to a full-time teacher in 2002-2003 in accordance with statutory guidelines; therefore, the award of the coaching supplement for that school year must be set aside, and the cause is remanded for trial as to whether the transfer was arbitrary, capricious, or the subject of improper motivation, as prohibited by law. Any entitlement to the coaching supplement for 2002-2003 or other remedy depends upon the propriety of the transfer under the statute and under the collective bargaining agreement, as modified by the board's action.

http://www.tba2.org/tba_files/TSC/2007/lawrencecounty_122007.pdf


PATSY L. ALDRIDGE v. PAM ALDRIDGE, ET AL. IN RE: CONSERVATORSHIP OF BILL M. ALDRIDGE
Corrected Opinion: Attorney Bruce M. Smith added as attorney for appellees


Court: TCA

Attorneys:

Michael L. Robb, Justin N. Joy, Memphis, TN, for Appellant.

Thomas R. Buckner, Bruce M. Smith, Lynn W. Thompson, Memphis, TN, for Appellees

Judge: HIGHERS

This is a case involving a petition for appointment of conservator and a request for attorney's fees by the non-petitioning spouse of the ward. The husband and wife were married, but lived apart. The husband lived with his daughter from a previous marriage. Unknown by the husband's children, he continued to see and financially support his estranged wife. The husband suffered from bipolar disorder requiring several hospitalizations. The husband, during a manic period, emptied his 401K account and purchased several vehicles and properties. The husband's daughter petitioned the court for appointment of a conservatorship for her father. The court found that the husband was disabled, and appointed the daughter as the conservator over his person and a third-party attorney as the conservator over his finances. The wife was represented by counsel during the proceedings. The court ordered the conservator to pay the wife spousal support in the amount of $2,000 a month out of the husband's $150,000 estate. The wife then petitioned the court for an award of her attorney's fees, which the probate court denied. Wife appeals, arguing that the lower court has the statutory authority pursuant to Tenn. Code Ann. section 34-3-109 to include in the award of financial support her attorney's fees. We affirm.

http://www.tba2.org/tba_files/TCA/2007/aldridgep_122007.pdf


LINDA CHERRY, ET AL. v. ROBERT M. CHERRY, ET AL.
Corrected Opinion: On page 7, pinpoint site changed to page 295 and "rebutting trust" changed to "resulting trust"


Court: TCA

Attorneys:

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 hcildren, rebecca Lynn Cherry, James Franklin Cherry, Bessie Lorraine Cherry, and Maggie Elizabeth Cherry.

Judge: CRAWFORD

In this appeal, the trial court determined that a deed to the involved property created a resulting trust We affirm.

http://www.tba2.org/tba_files/TCA/2007/cherryl_122007.pdf


CLINTON COBB v. STEWART TITLE GUARANTY CO.

Court: TCA

Attorneys:

Andrew L. Berke, Chattanooga, Tennessee, for the appellant, Clinton Cobb.

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellee, Stewart Title Guaranty Company.

Judge: SUSANO

In this breach of contract case, Clinton Cobb ("Insured") alleges that the title insurance company with which he had contracted -- Stewart Title Guaranty Company ("Insurance Company") -- has wrongfully failed to honor a claim filed by him, which claim arises out of restrictive covenants that he says make his property unmarketable. Insurance Company filed a motion to dismiss, arguing that the policy specifically and unambiguously excludes restrictive covenants from the ambit of its coverage. The trial court agreed and granted the motion. We affirm.

http://www.tba2.org/tba_files/TCA/2007/cobbc_122007.pdf


JUDITH ANN FORD v. JAMES W. ROBERTS, ET AL.

Court: TCA

Attorneys:

Gary D. Lander, Chattanooga, Tennessee, for the appellants, James W. Roberts and Martha C. Roberts.

Michele L. Coffman, Chattanooga, Tennessee, for the appellee, Judith Ann Ford.

Judge: SUSANO

Plaintiff sought to obtain an easement for access to her allegedly landlocked property via a gravel driveway on defendants' property, purportedly the only reasonable means for ingress and egress. Plaintiff's complaint prayed for relief by way of an easement by prescription or, in the alternative, by condemnation pursuant to Tenn. Code Ann. section 54-14-101, et seq. (2004). Following a hearing, the trial court denied plaintiff's request for a prescriptive easement. After amendment of plaintiff's complaint, her claim for statutory condemnation proceeded before a jury of view. Defendants appeal the trial court's action allowing plaintiff to amend her original complaint following the first hearing. We affirm.

http://www.tba2.org/tba_files/TCA/2007/fordj_122007.pdf


IN RE: ESTATE OF THELMA RUTH HARE, Deceased

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter and L. Vincent Williams, Deputy Attorney General, for the Tennessee Bureau of Tenncare.

Peggy D. Mathes, Administrator of Estate of Thelma Ruth Hare, Pro Se.

Judge: FARMER

The Tennessee Bureau of Tenncare filed a claim pursuant to Tennessee Code Annotated section 71-5-116(c) to recover medical benefits paid on behalf of Decedent from Decedent's estate. The trial court dismissed the action as time-barred under Tennessee Code Annotated sections 30-2-307 and 310. The Bureau appeals, asserting its right to recover is not subject to the limitations period prescribed in Title 30. We affirm.

http://www.tba2.org/tba_files/TCA/2007/haret_122007.pdf


FRAZIA McDONALD, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF FRAZIA LEE MCDONALD, KATHLEEN WALLACE, AND JOHN McDONALD v. TRAVIS CALHOUN, M.D., AND JENNIE STUART MEDICAL CENTER, INC.

Court: TCA

Attorneys:

Geoffrey Coston, Franklin, Tennessee, for the appellant, Frazia McDonald, individually and as Executrix of the Estate of Frazia Lee McDonald, Kathleen Wallace, and John McDonald.

Michael F. Jameson and Renee Levay Stewart, Nashville, Tennessee, for the appellee, Travis Calhoun, M.D.

William S. Walton and Jeffrey Zager, Nashville, Tennessee, for the appellee Jennie Stuart Medical Center, Inc.

Judge: KIRBY

This appeal involves in personam jurisdiction over out-of-state defendants. The plaintiffs' decedent was a resident of Kentucky. She was admitted to a Kentucky hospital for a blood clot in her leg. Her treating physician was a Kentucky resident. The next day, the decedent fell in her hospital bathroom and hit her head, causing bleeding in her brain. Soon thereafter, the decedent was flown to a nearby hospital in Tennessee, where she soon died from excessive bleeding in her brain. The decedent's three children brought this action in Tennessee against the Kentucky hospital and the Kentucky treating physician for wrongful death due to medical malpractice. The defendants moved to dismiss based on, among other things, lack of in personam jurisdiction. The trial court granted the defendants' motions, finding that the plaintiffs had not established sufficient contacts so as to justify exercising personal jurisdiction over the defendants in Tennessee. The plaintiffs now appeal. We affirm, concluding that the plaintiffs failed to establish a prima facie case of in personam jurisdiction over the defendants.

http://www.tba2.org/tba_files/TCA/2007/mcdonaldf_122007.pdf


CITY OF RED BANK, TENNESSEE v. PETER H. PHILLIPS

Court: TCA

Attorneys:

Arvin H. Reingold, Chattanooga, Tennessee, for the appellant, Peter H. Phillips.

Arnold A. Stulce, Jr. and Angela C. Larkins, Chattanooga, Tennessee, for the appellee, City of Red Bank, Tennessee.

Judge: SUSANO

The City of Red Bank ("City") filed this declaratory judgment action against Peter H. Phillips ("Owner") alleging that his property at 217 W. Newberry Street was being utilized for multi-family purposes in violation of its single family zoning. Owner admitted to the use of the premises as a three-apartment rental property. He asserted, however, that the non-conforming use of the property was permitted as a "grandfathered" use. Following a bench trial, the court found in favor of the City. Owner appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/redbank_122007.pdf


TIMOTHY GILES TINNIN v. JENNIFER MICHELLE STAMPS

Court: TCA

Attorneys:

James H. Drescher, Nashville, Tennessee, for the appellant, Timothy Giles Tinnin.

D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellee, Jennifer Michelle Stamps.

Judge: FARMER

The trial court increased Father's child support obligation upon determining Father's earning capacity had increased from $75,000 in 1999 to $250,000 in 2006. Pursuant to Tennessee Code Annotated section 27-3-128, we remand for further findings.

http://www.tba2.org/tba_files/TCA/2007/tinnint_122007.pdf


STATE OF TENNESSEE v. DOROTHEA ANNETTE JONES

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Dorothea Annette Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and Robert Headrick, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Dorothea Annette Jones, appeals the Blount County Circuit Court's revocation of her probation. Jones entered guilty pleas in the general sessions court to the misdemeanor offenses of possession of a Schedule IV controlled substance, possession of a Schedule II controlled substance, and possession of drug paraphernalia. The court suspended the imposed eleven month and twenty-nine day sentences and placed Jones on supervised probation. The suspended sentences were subsequently revoked by the sessions court, and Jones appealed the revocations to the circuit court. At the circuit level, Jones entered into a consent order admitting to violations of her probation. The order of the circuit court further provided for reinstatement of Jones' probationary status and for extension of her probationary period. The case was then re-docketed in the circuit court, with the circuit court retaining supervision and control of Jones' probation. A second violation warrant against Jones was later filed in the circuit court. A subsequent revocation hearing was held in the circuit court, after which the court revoked the suspended sentences based upon Jones' continued use of cocaine, failure to report, failure to pay costs, and failure to maintain employment. On appeal, Jones asserts that the circuit court erred in revoking her sentences because the evidence was not sufficient to establish that she willfully violated the terms of her probation. Following plain error review, we conclude that the circuit court was without the authority to maintain supervision of, or jurisdiction over, Jones' probationary sentences, as it remained in the general sessions court. Accordingly, we vacate the circuit court's order of revocation and remand to the circuit court.

http://www.tba2.org/tba_files/TCCA/2007/jonesd_122007.pdf


STATE OF TENNESSEE v. SCOTT ERIC MCDONALD

Court: TCCA

Attorneys:

Christopher D. Brown and P. Richard Talley, Dandridge, Tennessee, for the Appellant, Scott Eric McDonald.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Victor Vaughn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Scott Eric McDonald, presents for review a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(A). McDonald pled guilty to driving under the influence (DUI), second offense, and, as a condition of his guilty plea, reserved a certified question of law challenging the denial of his motion to suppress evidence, arguing that there was no reasonable suspicion to support the initial stop of his vehicle. On appeal, the State asserts that McDonald failed to properly reserve his certified question, and, as a result, this court is without jurisdiction to hear the appeal. Following review, we agree that the certified question of law was not properly reserved. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2007/mcdonalds_122007.pdf


TODAY'S NEWS

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TBA Member Services

Legal News
Congress clears court security bill for president's desk
The U.S. House of Representatives yesterday approved legislation to combat violence against judges, courthouse officials and witnesses. The U.S. Senate had passed the bill earlier in the week. The measure, which authorizes $20 million annually for the protection of federal judges and courthouses, bars dangerous weapons from federal courthouses and increases criminal penalties for threatening or killing witnesses and informants, now goes to the president for his signature.
CQ Today reported the news
New assistant DA in Lauderdale County
Joni R. Livingston was sworn in this week as a new assistant district attorney general for the 25th Judicial District. She will work primarily in the Lauderdale County office. A native of Dyersburg, Livingston earned her law degree in 2002 from the University of Mississippi School of Law. She previously served with Spicer, Flynn & Rudstrom in Memphis; Jones, Hamilton & Lay in Dyersburg; and Bryant, Dukes & Blakeslee in Gulfport.
The Fayette County Review reported the news
Butler receives Sam A. Myar Jr. Award
Memphis lawyer Lara E. Butler, a partner at Thomason Hendrix Harvey Johnson & Mitchell PLLC, was awarded the Sam A. Myar Jr. Memorial Award at this month's annual meeting of the Memphis Bar Association. The Memphis Daily News interviews Butler in today's edition of the paper.
Read more
Judicial district elects officers
The 15th Judicial District Bar Association has elected its officers for 2008. They are: Melanie Bean with Lannom & Williams, president; Adam Parrish, vice president; Probate & General Sessions Judge Robert P. Hamilton, secretary; and Byron Gill with Rochelle, McCulloch & Aulds, treasurer. All are from Lebanon.

Sculpture to raise awareness of child abuse
Court Appointed Special Advocates (CASA) of East Tennessee, which serves abused and neglected children in Knox, Blount, Sevier and Hamblen counties, has commissioned a sculpture to raise awareness of the problem of child abuse. The sculpture will be placed in front of the Knox County Juvenile Court and carry a tribute to former juvenile Judge Carey E. Garrett. The organization is soliciting donations from the legal community to help fund the initiative. Contact CASA at (865) 329-3399 for more information or
download an informational sheet
Do lawyers have free speech rights?
A Florida attorney is facing possible ethics charges for critical comments about a judge he posted on a blog. Some constitutional experts claim attorneys give up the full force of the First Amendment when they join the bar. Others disagree, saying lawyers have every right to speak their mind. An article from the Daily Business Review explores what the experts are saying.
Read it on Law.com
Upcoming
Judicial bar assocation to hold annual party
The 12th Judicial District Bar Association will hold its annual party March 27 at Cravens Hall on the campus of the University of the South. Social hour will begin at 5 p.m. to be followed by dinner. Contact Joseph Ford with McBee & Ford at (931) 967-1715 for more information.

TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
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