Year-end CLE Fest can save you

If you are in danger of not getting your required CLE hours in before the end of the year, don't worry. On two more days -- Dec. 28 and 31, from 7 a.m. to 7 p.m. -- the TBA will offer four tracks of CLE programming shown continuously in four separate rooms in the Tennessee Bar Center, 221 Fourth Ave. North, in Nashville. You can come when you like and watch as many programs as you like. For more information, go to

https://www.tba2.org/tennbaru/clefest_2007.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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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.

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. NANCY JANE OLIVER AND BILLY WILEY, SR.

Court: TCA

Attorneys:

Gary Howell, Mt. Pleasant, Tennessee, for the appellants, Nancy Jane Oliver and Billy Wiley, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Diamond, Senior Counsel, for the State of Tennessee, Department of Children's Services

Judge: KIRBY

This is a termination of parental rights case involving mentally challenged parents. The mother and father had two children, one born in 2002 and the other in 2003. The mother and father were never married. The Department of Children's Services became involved with the family very soon after each child was born, providing several months of parenting services focused on basic child care. These efforts were largely unsuccessful, and the children failed to thrive. Psychological evaluations of the parents indicated that neither the mother nor the father were mentally or emotionally competent to raise a child. In February 2004, the children were found to be dependent and neglected and taken into protective custody. After removal of the children, parenting services were provided for several more months, with little success. In October 2005, the Department of Children's Services filed this petition to terminate the parental rights of the mother and the father. After a hearing, the juvenile court granted the petition, finding as grounds for termination mental incompetence, persistence of conditions, substantial noncompliance with permanency plans, failure to establish a suitable home despite reasonable efforts by the Department of Children's Services, and abandonment for willful failure to pay child support. Both the mother and father appeal this order. We affirm.

http://www.tba2.org/tba_files/TCA/2007/bdw_122707.pdf


CHARLES BURNETTE, ET AL. v. THE ESTATE OF RICHARD GUIDER, ET AL.

Court: TCA

Attorneys:

Douglas E. Taylor, Sevierville, Tennessee, for the appellants, Charles Burnette and Imogene Burnette.

Charles Dungan, Maryville, Tennessee, for the appellee, Brian Cupp.

James M. Moore, Knoxville, Tennessee, for the appellee, Fischl Enterprises, Inc., aka Lone Star Epoxies.

Judge: SUSANO

Charles Burnette and Imogene Burnette ("Homeowners") allege that their driveway was damaged as a result of the faulty repair work of Concrete Maintenance Specialists ("CMS"), a company that employed, among others, Brian Cupp ("Cupp"). The repairs by CMS made use of a product sold by Fischl Enterprises, Inc., aka Lone Star Epoxies ("Lone Star"). Art Fischl is the principal of this corporation. No defect in the product is alleged, only a faulty installation by employees of CMS. Homeowners sued CMS, Cupp, Lone Star and several others (collectively "Defendants") seeking damages, claiming that CMS is directly liable, Lone Star is liable because CMS was its agent, and Cupp is liable because CMS's corporate veil should be pierced and Cupp is a principal of CMS. Cupp and Lone Star each filed a motion for summary judgment. Cupp argues that he was only an employee of CMS, not a principal, and thus could not be liable even if CMS's corporate veil were pierced. Lone Star argues that CMS was not its agent. The trial court granted both motions. Homeowners appeal, arguing that they successfully demonstrated the existence of material factual disputes regarding the issues pertaining to Cupp and Lone Star, and also that the trial court should not have granted summary judgment before ruling on Homeowners' motion to compel. We affirm.

http://www.tba2.org/tba_files/TCA/2007/burnettec_122707.pdf


RALPH DAVIS, ET AL. v. DANIEL CUEL, ET AL.

Court: TCA

Attorneys:

Robert Asbury, Jacksboro, Tennessee, for the appellants, Ralph Davis and Jackie Davis.

Terry M. Basista, Jacksboro Tennessee, for the appellees, Daniel Cuel and Francine Cuel.

Judge: SUS

In this boundary line dispute, Ralph Davis and his wife Jackie Davis ("the Davises") sued Daniel Cuel and Francine Cuel ("the Cuels"), alleging that the Cuels had improperly claimed a portion of the Davises' property as their own. Existing surveys supported the Cuels' claim, but the Davises asserted that a prior agreement gave them the right to an additional 0.42-acre tract ("the southern disputed area") on the Cuels' side of the survey boundary. The Cuels, meanwhile, believed that they were entitled to more land than the existing surveys indicated, so they hired a surveyor, Dave Bruce, to conduct a new survey ("the Bruce survey"). The Bruce survey indicated that the Cuels are entitled not only to the southern disputed area, but also to an additional area north of it ("the northern disputed area"), on what the earlier surveys had regarded as the Davises' side. The Bruce survey further indicated that an additional tract claimed by the Davises, immediately north of the northern disputed area, is actually a county right-of-way. The trial court adopted the Bruce survey and awarded both the northern and southern disputed areas to the Cuels. As a consequence of this ruling, the Davises, the plaintiffs in this case, actually end up with less land than they started with. They appeal, claiming that the evidence preponderates against the court's factual findings, and also that they should have prevailed on a theory of estoppel or acquiescence. We hold that the evidence does not preponderate against the court's findings, and, even assuming that the Davises did not waive their alternative theories of recovery at trial, the evidence does not support those theories. We affirm.

http://www.tba2.org/tba_files/TCA/2007/davisr_122707.pdf


JERRY C. HARLAN v. CAROL L. SOLOMAN

Court: TCA

Attorneys:

Gregory H. Oakley, Nashville, Tennessee, for the appellant, Jerry C. Harlan.

David Scott Parsley, Nashville, Tennessee, for the appellee, Carol L. Soloman.

Judge: BENNETT

This is an action filed by both Appellant Harlan and Appellee Soloman for the sale for division of real property. The property was sold and all liens and costs associated with the sale were paid out of the proceeds. The remaining funds were distributed to Harlan and Soloman in proportion to their ownership interest. The trial court also required Harlan to bear his proportional share of the losses and denied his request to receive his proportional share of the fair market rental value of the property. Harlan appeals claiming that he is entitled to 16.79% of the net proceeds of the sale (his proportional share) prior to a deduction for the payment of Soloman's mortgage, that he should not be responsible for a pro rata share of the losses, and that he should be paid for the fair market rental value of his interest. We reverse the trial court on the first issue and affirm on the second and third issues.

http://www.tba2.org/tba_files/TCA/2007/harlanj_122707.pdf


LESTER P. LAMBERTH v. CONNIE M. LAMBERTH (YOUNG)

Court: TCA

Attorneys:

Larry Hayes, Jr., Nashville, TN, for Appellant.

M. Allen Ehmling, Gallatin, TN, for Appellee.

Judge: HIGHERS

This appeal involves post-divorce criminal contempt proceedings. The father and the mother of two minor children were divorced in 1991. The father filed a criminal contempt petition on April 21, 2006, alleging that Mother violated a court order pertaining to his visitation. The chancery court held a hearing but did not issue a ruling; instead, the court took the matter under advisement. Thereafter, the father filed a "motion" requesting that the court hold mother in contempt for subsequent violations of the same court order pertaining to his visitation. This motion did not indicate that the father sought to hold the mother in criminal contempt. At this hearing, the mother represented herself and was found guilty of criminal contempt. The mother appeals and we reverse.

http://www.tba2.org/tba_files/TCA/2007/lamberthl_122707.pdf


DAVID LAVY d/b/a DL CONSTRUCTION v. JOAN CARROLL

Court: TCA

Attorneys:

Charles G. Blackard, III, Brentwood, Tennessee, for the appellant, Joan Carroll.

Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee, David Lavy d/b/a DL Construction.

Judge: KURTZ

This is a home construction case in which the homeowner appeals the trial court's decision finding her liable to the contractor for the amount remaining due under their original agreement as well as for subsequently authorized modifications. The homeowner contended below that the contractor's work was defective, but the trial court ruled that she was required to have given the contractor notice of any defects in his work and then afforded him a reasonable opportunity to cure these alleged deficiencies. On appeal, the homeowner argues that the trial court erred both in finding that she had not done this and in holding that these actions were required of her as a matter of law. We affirm.

http://www.tba2.org/tba_files/TCA/2007/lavyd_122707.pdf


IN RE T.C.D.

Court: TCA

Attorneys:

L. Caesar Stair, III and Margo J. Maxwell, Knoxville, Tennessee, for the appellant, Brian Wesley Davis.

J. Kenneth Wright, Kingsport, Tennessee, for the appellee. Christine A. Stevens.

Judge: SUSANO

Brian Wesley Davis ("Father") filed a petition to modify a Final Parenting Plan that, with respect to the parties' child, granted primary residential parent status to Christine A. Williamson (now Stevens) ("Mother"). Father sought exclusive custody of the child or, alternatively, equal co-parenting time with him. Following a bench trial, the court held in favor of Mother, determining that Father had failed to show a material change in circumstances. Father appeals. We have determined that Father has provided sufficient evidence of a material change in circumstances and has demonstrated that the best interest of the child requires a modification of the existing parenting plan. Accordingly, we reverse the judgment of the trial court and designate Father as the child's primary residential parent. We remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/tcd_122707.pdf


CHATTANOOGA FIRE FIGHTERS ASSOCIATION LOCAL 820 and TARA WEAVER, vs. CITY OF CHATTANOOGA, TENNESSEE, CHATTANOOGA CITY COUNCIL, and CHATTANOOGA FIRE DEPARTMENT

Court: TCA

Attorneys:

Kenneth O. Fritz, Chattanooga, Tennessee, for appellants.

Jimmy F. Rodgers, Chattanooga, Tennessee, for appellees.

Judge: FRANKS

Petitioner was disciplined by the Chattanooga Fire Department, which discipline was approved by the City Council. She then petitioned the Chancery Court for a Writ of Certiorari, and the Chancellor, upon conducting a hearing, held that the discipline exceeded that allowed by the City Code, in that the Department had forced her to take leave time against her accrued leave for the days in excess of the 30 days allowed. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/weavert_122707.pdf


STATE OF TENNESSEE v. JAMES PAUL HURT

Court: TCCA

Attorneys:

Jheri Beth Rich, Lewisburg, Tennessee, for the appellant, James Paul Hurt.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

James Paul Hurt, the defendant, was convicted of selling .5 grams or more of a Schedule II controlled substance and also of delivering the same substance. Both are Class B felonies. These convictions were merged, and the defendant was sentenced as a Range II, multiple offender to twenty years confinement. On appeal, the defendant avers that (1) the evidence was insufficient to support the guilty verdicts, and (2) the physical restraints placed on the defendant during trial violated his constitutional rights. After review, we have concluded that the evidence was sufficient and that the restraints and safeguards imposed were reasonable under the circumstances and constitutionally permissible. Accordingly, the conviction is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/hurtj_122707.pdf


TODAY'S NEWS

Legal News
Legislative News
Politics
Disciplinary Actions
TennBarU CLE
TBA Member Services

Legal News
Chattanooga bar plans online referral service
The Chattanooga Bar Association is preparing to launch a new online service that will provide the public with 24-hour access to lawyers and legal information, according to the Hamilton County Herald. The project, called Chattanooga Lawyers Information Provider Service or CLIPS, replaces the CBA's phone-based referral service, which it suspended in October to work on an alternative. For more information about CLIPS contact the CBA at (423) 756-3222.
Download the article written by Herald reporter David Laprad
Future of the state's death penalty debated
The Chattanooga Times Free Press looks at several Tennessee death penalty cases that are in flux, and what proponents and opponents of capital punishment are saying about its future in the state.
Learn more
Corker calls on Pakistani people to embrace rule of law
Tennessee Senator Bob Corker said today he was saddened by the assassination of former Pakistani Prime Minister Benazir Bhutto, whom he met with less than a month ago during a U.S. congressional delegation trip. In spite of the tragedy, Corker said he believes the Pakistani people "will stand together to reject extremist ideology and demand freedom and the rule of law."
Read more from Chattanoogan.com
Grisham takes position with civil rights commission
Memphis attorney Greg Grisham, a partner in Weintraub Stock & Grisham PC, recently was appointed to the advisory committee of the U.S. Commission on Civil Rights. The Memphis Daily News interviewed him for its most recent Law Talk column.
Learn more about Grisham
Peete to report to prison by Jan. 17
Former Memphis City Council member Rickey Peete has until Jan. 17 to report to the federal prison at Maxwell Air Force Base in Montgomery, Ala. U.S. District Judge Hardy Mays delayed Peete's original prison report date from Jan. 3, after Peete asked for more time to wrap up business and personal obligations, reports the Memphis Daily News. Peete pleaded guilty in June to one count of bribery and was sentenced by Mays in November to four years and three months in prison.

Kwanzaa celebration ends up in court
It all started when Shelby County Commissioner Henri Brooks announced he would hold a Kwanzaa program in the county commission chambers. Not everyone thought that was a good idea, including the probate court clerk who filed suit to stop the celebration. He argued that the holiday has enough religious aspects to raise separation of church and state issues.
Find out how the judge ruled in the Memphis Daily News
Legislative News
Lawmakers to take up selection commission renewal
The legislative act that created the state Judicial Selection Commission is up for renewal by legislators next month. The Memphis Daily News reviews the process for selecting judges in the state and interviews those who support and oppose the current system.
Read more
Politics
Long GOP ballot could cause delays
Election officials are worried that voting in the state's presidential primary may get bogged down in Republican-heavy districts by long lists of people who want to represent candidates in the GOP presidential convention. Voters in the Feb. 5 Republican primary will be asked to choose up to 15 delegates along with their preferred presidential candidate. Democratic voters will only select a presidential candidate.
The Commercial Appeal has more
Disciplinary Actions
Pennsylvania attorney reinstated
Mark Thomas Wade of Oakmont, Pa. has been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education.
View all attorneys suspended and reinstated for 2006 CLE violations
TennBarU CLE
Getting paid a problem? TennBarU online ethics course can help
Collecting fees is not directly addressed in the Rules of Professional Conduct, however both the rules and malpractice carriers have something to say on the issue. This online course from TennBarU explores practice management strategies to help reduce the number of non-paying clients and discusses ethical obligations for collecting fees from such clients.
Register or learn more
TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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