TBA takes convention to the mountains: Register now

Lawyers from across Tennessee will be in the Smoky Mountains this summer as the Tennessee Bar Association convenes its annual convention in Gatlinburg June 11-14. Register now to take part in the Meeting in the Mountains -- a joint event with the Tennessee Judicial Conference, the Tennessee Attorneys for Justice and the Tennessee Lawyers Association for Women. You don't want to miss it.

http://www.tba.org/convention2008

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.

BMC ENTERPRISES, INC. d/b/a BOND MEMORIAL CHAPEL v. CITY OF MT. JULIET, ET AL.

Court: TCA

Attorneys:

William N. Bates and Beth L. Frazer, Nashville, Tennessee, for the Appellants, City of Mt. Juliet; City of Mt. Juliet Board of Zoning Appeals; and Bryan Grassmeyer, Jackie Heatherly, Roger Morse, Larry Searcy, and Alfred H. Williams serving in their capacity as members of the City of Mt. Juliet Board of Zoning Appeals.

Jere N. McCulloch and David H. Veile, Lebanon, Tennessee, for the Appellee, BMC Enterprises, Inc. d/b/a Bond Memorial Chapel.

Judge: SWNEY

Plaintiff has operated a funeral home on its property since 1997. In this zoning dispute, the City of Mt. Juliet Board of Zoning Appeals ("the Board") refused to allow plaintiff to establish a crematory as an expansion of plaintiff's funeral home services. The funeral home had been a legal non- conforming use of plaintiff's property since the City's zoning ordinance was amended in 1998. The Board refused to allow plaintiff to operate a crematory on the same property because crematories are not permitted in the zoning district for plaintiff's property. Plaintiff filed a Petition for Writ of Certiorari to the Trial Court for judicial review of the Board's decision. The Trial Court granted the writ and found that the Board's decision was arbitrary, illegal, and capricious. The Trial Court reversed the Board's decision and ordered defendants to allow plaintiff to build and operate the proposed crematory on its funeral home property. The Trial Court also granted plaintiff $10,000 in attorney fees and costs. Defendants appeal. We affirm. We also hold that BMC is entitled to its reasonable attorney fees and costs incurred during this appeal, not to exceed $10,000, pursuant to the Equal Access to Justice Act, Tenn. Code Ann. section 29-37-101, et seq. Therefore, we remand to the Trial Court for a determination of the proper amount of attorney fees and costs to be awarded to BMC and for collection of costs below.

http://www.tba2.org/tba_files/TCA/2008/bmc_032808.pdf


THOMAS E. BRADY v. KIMBERLY GUGLER

Court: TCA

Attorneys:

Dana C. McLendon, III, Franklin, Tennessee, for the appellant, Thomas Brady.

Clifton N. Miller and Christopher R. Moore, Tullahoma, Tennessee, for the appellee, Kimberly Gugler.

Judge: STEWART

Appellant ("Father") appeals the trial court's designation of Appellee ("Mother") as the primary residential parent of their minor child. In declaring Mother the primary residential parent, the trial court also awarded Mother attorneys fees. The issues raised by the father on appeal are threefold: (1) whether the trial court erred by failing to articulate analysis or make findings of fact with regard to the statutory factors guiding custody determinations pursuant to Tenn. Code Ann. section 36-6-106; (2) whether the trial court erred in applying the statutory factors; (3) whether the trial court erred in awarding attorneys fees to Mother pursuant to the parentage statute. Mother asks on appeal for this court to award damages pursuant to Tenn. Code Ann. section 27-1-122 due to a frivolous appeal. We have determined that the trial court is not bound to articulate its reasoning underlying a custody decision, the evidence is overwhelmingly in favor of Mother being the primary residential parent, and because this action involved the issue of Father's parentage, the trial court properly exercised its discretion to award attorney's fees to Mother. Further, we have determined that this appeal is not supported by the law or evidence, and thus, is a frivolous appeal. Accordingly, we have determined that Mother is entitled to damages arising from the expenses and costs associated with this appeal. We affirm and remand.

http://www.tba2.org/tba_files/TCA/2008/bradyt_032808.pdf


STEVEN L. FARMER v. SUSAN B. STARK

Court: TCA

Attorneys:

Tammy D. Wendt-Mahew, Nashville, Tennessee, for the appellant, Susan B. Stark.

Christina Ferrell Daugherty, Franklin, Tennessee, for the appellee, Steven L. Farmer.

Judge: BENNETT

The trial court modified father's child support based upon a decrease in his income that resulted in a significant variance under the child support guidelines. On appeal, mother disputes the trial court's failure to include in father's income withdrawals from retirement accounts and the personal benefit from a truck used in his business. Mother further argues that the trial court erred in failing to order an upward deviation from the child support guidelines for special expenses. In addition, mother assigns error to the trial court's rulings regarding tax exemptions and the reasonableness of father's business expenses. We have determined that the trial court should have considered as income any portion of the retirement account withdrawals representing an increase in the value of those accounts since the divorce. Otherwise, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2008/farmers_032808.pdf


WILLIAM H. LIGGETT, JR. ET AL. v. BRENTWOOD BUILDERS, LLC

Court: TCA

Attorneys:

Samuel P. Funk and Lisa K. Helton, Nashville, Tennessee, for the appellants, William H. Liggett, Jr., and Cynthia Liggett.

Kent E. Krause and Jason A. Lee, Nashville, Tennessee, for the appellee, Brentwood Builders, LLC.

Judge: BENNETT

Home buyers brought suit against home builder alleging fraud, breach of contract, consumer protection violations, negligent misrepresentation, and negligence. The trial court granted the builder's motion for summary judgment based upon the statute of limitations and statute of repose. We affirm.

http://www.tba2.org/tba_files/TCA/2008/liggettw_032808.pdf


FARRELL NESBITT V. PAULA NESBITT
CORRECTION


Court: TCA

Attorneys:

Lorraine Wade, Nashville, Tennessee, for the appellant, Farrell Nesbitt.

Tusca R. S. Alexis, Nashville, Tennessee, for the appellee, Paula Nesbitt.

Judge: ASH

This appeal arises from a dispute regarding the trial court's award of alimony in futuro to Paula Nesbitt. The trial court granted the parties' divorce, pursuant to Tennessee Code Annotated section 36-4-129, and ultimately awarded the divorce to the wife because the husband appeared to be at greater fault on the grounds of inappropriate marital conduct. Farrell Nesbitt challenges the trial court's alimony in futuro award, arguing rehabilitative alimony was the proper award. We affirm the trial court's ruling. Costs of this appeal shall be assessed to the appellant, Ferrell Nesbitt.

http://www.tba2.org/tba_files/TCA/2008/nesbittf_Corr_032808.pdf


GLEN COOK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Larry E. Copeland, Jr., Memphis, Tennessee, for the appellant, Glen Cook.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tracye N. Jones, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Glen Cook, appeals the denial of his petition for post-conviction relief and argues that he received ineffective assistance of counsel and that he was sentenced improperly. Specifically, he argues that counsel failed to interview witnesses, never discussed trial strategy with the petitioner, and failed to file proper motions. After careful review, we affirm the judgment from the post- conviction court.

http://www.tba2.org/tba_files/TCCA/2008/cookg_032808.pdf


STATE OF TENNESSEE v. CHRISTOPHER COOPER

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, District Public Defender (at trial), for the appellant, Christopher Cooper.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Tammy Harrington, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Christopher Cooper, pleaded guilty to a charge of theft of property worth $10,000 or more but less than $60,000 and was sentenced in the Blount County Circuit Court to a sentence of four years, with 30 days to be served incarcerated on consecutive weekends and the balance to be served through supervised probation. On April 16, 2007, the court revoked the probation and ordered the defendant to serve six months in confinement and extended his subsequent probation period by one year. From that order, the defendant appeals and claims a lack of evidence to support revocation. Upon review, we affirm the judgment below.

http://www.tba2.org/tba_files/TCCA/2008/cooperc_032808.pdf


STATE OF TENNESSEE v. ANTHONY DUSTIN DESANTO

Court: TCCA

Attorneys:

Amber D. Haas, Sevierville, Tennessee, for the Appellant, Anthony Dustin DeSanto.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General; James Dunn, District Attorney General; Jeremy Ball, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

The Defendant, Anthony Dustin DeSanto, pled guilty to burglary and theft over $10,000, and the trial court sentenced him to a period of confinement and then probation. After seven months in jail, the Defendant was placed on probation. A probation violation warrant was then issued less than two years later, and, after a hearing, the trial court revoked the Defendant's probation. On appeal, the Defendant alleges the trial court erred in this decision. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/desantoa_032808.pdf


STATE OF TENNESSEE v. MICHAEL FINNELL

Court: TCCA

Attorneys:

Robert G. Morgan, Jasper, Tennessee, for the Appellant, Michael Finnell.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; J. Michael Taylor, District Attorney General; James W. Pope, III, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 1996, the Petitioner, Michael Finnell, pled guilty to two counts of aggravated rape and one count of aggravated burglary. For the aggravated rape convictions, the trial court imposed concurrent twenty-three year sentences, to be served at eighty-five percent. For the aggravated burglary conviction, the trial court imposed a five year sentence to be run at thirty percent, consecutive to the aggravated rape convictions. The Petitioner filed a petition for habeas corpus relief claiming the judgments were void because his two aggravated rape convictions should have statutorily been served at one-hundred percent. The habeas court agreed and granted relief as to the sentence. The Petitioner now appeals complaining that the eighty-five percent service was a "bargained-for" provision of his guilty plea, and, thus, his guilty pleas should also be set aside. After a thorough review of the record and applicable law, we affirm the judgment of the habeas court.

http://www.tba2.org/tba_files/TCCA/2008/finnellm_032808.pdf


STATE OF TENNESSEE v. MARTHA ANN FREEMAN AND RAFAEL DEJESUS ROCHA-PEREZ

Court: TCCA

Attorneys:

Richard McGee and Glenn Funk, Nashville, Tennessee, for the Appellant, Martha Ann Freeman. Peter J. Strianse and Ana Escobar, Nashville, Tennessee for the Appellant, Rafael DeJesus Rocha- Perez.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Katrin Miller and J.W. Hupp, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendants, Martha Ann Freeman and Rafael DeJesus Rocha- Perez, of the first-degree murder of Martha Freeman's husband. On appeal, Freeman alleges that the trial court erred by: (1) admitting a nude photograph of Rocha-Perez; (2) refusing to allow Freeman to play a recording of a 911 call; and (3) refusing to grant her motion to sever. Rocha-Perez alleges the trial court erred by allowing a police officer to testify concerning a statement Freeman made in violation of the Confrontation Clause. Both Defendants allege there was insufficient evidence to support their convictions. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/freemanm_032808.pdf


STATE OF TENNESSEE v. DAVID WAYNE JONES AND HELEN O. BONNER

Court: TCCA

Attorneys:

L. Scott Grissom, McMinnville, Tennessee, for the appellant, David Wayne Jones; and Phillip T. Clemons, McMinnville, Tennessee, for the appellant, Helen O. Bonner.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Dale Potter, District Attorney General; and Lillian Ann Sells, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendants, David Wayne Jones and Helen O. Bonner, entered pleas of guilty to one count of the attempted manufacture of methamphetamine. See T.C.A. section 39-17-417(a)(1), -12-101 (2003). Pursuant to Rule 37 of the Tennessee Rules of Criminal Procedure, each of the defendants reserved a certified question for appeal: "Did the Search Warrant and accompanying Affidavit that led to the search of the Defendant's residence violate the United States and Tennessee Constitutions, as well as Tennessee Rule of Criminal Procedure 41(c), so as to render all of the evidence seized pursuant thereto, illegal and inadmissible?". Because the warrant does not comply with the requirements of Rule 41, the judgment of the trial court is reversed, and the charges are dismissed.

http://www.tba2.org/tba_files/TCCA/2008/jonesd_032808.pdf


STATE OF TENNESSEE v. JAMES HAROLD NELSON

Court: TCCA

Attorneys:

Ronald C. Newcomb, Knoxville, Tennessee, for the Appellant, James Harold Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; James Dunn, District Attorney General; Steven R. Hawkins, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner pled guilty to rape of a child, leaving the length of the sentence to be determined by the trial court. Following a sentencing hearing, the court enhanced the Petitioner's sentence to twenty-five years based on a previous criminal conviction, previous criminal conduct, and abuse of a position of trust. The Petitioner appeals that decision, claiming the trial court should have mitigated his sentence because he pled guilty and allowed the victim and her family to avoid re- living the incident at trial. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/nelsonj_032808.pdf


TODAY'S NEWS

Legal News
Upcoming
Court of the Judiciary Actions
TennBarU CLE
TBA Member Services

Legal News
Vandy moves up in magazine law school rankings
Vanderbilt Law School moved up a notch to No. 15 in the just-released U.S. News & World Report annual ranking of law schools. The University of Tennessee College of Law came in at number 52, while the magazine did not provide a ranking for the Cecil C. Humphreys School of Law at the University of Memphis or the Nashville School of Law.
Read more from U.S. News & World Report
AG stops illegal law practice targeting immigrants
A Rutherford County resident allegedly doing legal work without a license for members of the Laotian immigrant community in La Vergne has been ordered to stop the unlawful business and pay restitution to consumers. Chancellor Robert E. Corlew III granted the state's default judgment ordering Christopher Mountry, also known as Ott Mountry, to pay restitution, civil penalties and fees to the state. The state attorney general's office urges anyone who paid Mountry for services to contact it at (615) 741-1671 or toll-free at (877) 275-7396.

Democrat panel to pick judicial candidates
The Davidson County Democratic Executive Committee will hold a special meeting on April 2 to elect a Democratic nominee in the race for Davidson County Chancellor, Part IV, and a Democratic nominee in the race for Davidson County Circuit Judge, Part V. Committee Chair Billy Fields said the deadline for a February county primary to elect Democratic judicial nominees had passed by the time Chancellor Dinkins was elevated to the Court of Appeals and Judge Kurtz took senior status. Those recent departures mean the committee must select the nominees.
Read more in the Tennessean
Attorney files complaint against councilwoman
A Chattanooga attorney has filed a complaint with the Alternative Dispute Resolution Commission of the Tennessee Supreme Court against Chattanooga City Councilwoman Carol Berz, saying she "has held herself out to the public as an attorney," but is not licensed by the state as such.
Read more from the Chattanoogan.com
Task force offers reform proposals for Family Court
A family court task force set up by the Shelby County Board of Commissioners approved a series of recommendations this week to send to the full commission. Some of those proposals -- such as a "one family-one judge" plan in which a judge takes jurisdiction over the various cases involving the same family -- face an uncertain future with opposition already coming out of the Juvenile Court.
Read more from the Memphis Daily News
Term limits proposed for Shelby offices
A preliminary rewrite of the Shelby County Charter would put a two-term limit on five countywide offices - sheriff, register, trustee, assessor and county clerk. That would match the limit voters approved in 1994 for positions on the commission and for county mayor.
The Memphis Daily News has more
Firm to close office in Knoxville
Richmond-based Hunton & Williams LLP is closing its Knoxville office effective April 1. Two lawyers at the firm, John Lucas and John Winemiller, have announced they will be joining the Knoxville office of Merchant & Gould that same day. Merchant & Gould is an intellectual property firm with offices in Minneapolis, Seattle, Denver, Omaha, Atlanta, Knoxville and Washington, D.C

Upcoming
College names lecture series to honor Justice Henry; Judge Daughtrey to speak
Martin Methodist College's annual law lecture series is being christened as the Chief Justice Joe W. Henry Law Lecture to honor the Giles County attorney who served on the Tennessee Supreme Court from 1974 until his death in 1980. This year's speaker will be the Honorable Martha Craig Daughtrey, judge of the U.S. Court of Appeals, Sixth Circuit. The April 3 lecture will begin at 7 p.m. at Martin Hall Auditorium. A native of Lynnville, Justice Henry received his law degree from Cumberland University and served as president of the Tennessee Bar Association before being named to the bench.
Read more from the Giles NewspaperClips.com
Court of the Judiciary Actions
Court reprimands Kingston judge
The Tennessee Court of the Judiciary has issued a public reprimand to Judge Dennis W. Humphrey for ordering a man to be incarcerated where there was no statutory authority. The man spent 68 days in jail before being released.
Read the full letter of reprimand
TennBarU CLE
Labor & Employment Law Forum offers strong lineup
The TBA's Annual Labor & Employment Law Forum returns for its 12th year on April 3, featuring a program focused on the unique issues impacting labor and employment law, including bankruptcy, sports and entertainment law. It will also include an ethics panel of distinguished in-house attorneys from a Tennessee Fortune 100 company, plus recent case law developments and related issues.
Learn more or register now
TBA Member Services
Guide to pro bono assistance
The TBA YLD has released a new resource to help volunteer attorneys provide meaningful legal services to victims of natural disasters. The 83-page document addresses a wide range of legal and social service issues disaster victims most frequently face. And unlike other resources that have been used in the past, this manual is Tennessee specific.
Download a copy today

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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