Consideration of Tennessee Plan delayed

Consideration of legislation to renew the Tennessee Plan for selection, evaluation and retention of judges was deferred until next week in both House and Senate Government Operations committees today, while high-level discussions of the contours of the plan continue. Pressure to move a bill this week subsided somewhat when it became clear that the hoped-for May 9 adjournment would be extended another week so that budget officials can grapple with the state's growing fiscal woes. The TBA remains committed to the plan as it presently operates.
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Court: TWCA


Terry L. Hill and Lauren S. Disspayne, Nashville, Tennessee, for the appellant, Bridgestone/Firestone, Inc.

Herbert M. Schaltegger and D. Russell Thomas, Murfreesboro, Tennessee, for the appellee, Douglas Toalston.

Judge: SCOTT

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The Employee developed lateral epicondylitis as a result of his work activities, and the Employer provided medical treatment for the injury. The Employee's symptoms were not relieved, and he sought and received a second opinion through his Employer. Both authorized physicians concluded that the Employee had no permanent impairment. The Employee sought an evaluation from an unauthorized physician, who diagnosed carpal tunnel syndrome in addition to lateral epicondylitis. That physician performed surgery and assigned permanent impairment. The Employee sought permanent disability benefits, and the Employer denied liability. The trial court awarded 30 percent permanent partial disability to the right arm. The Employer has appealed arguing that the evidence preponderates against the trial court's findings. We affirm the judgment.


Court: TCA


Pam Warnock Green, Memphis, Tennessee, for the Defendant/Appellant, Waste Connections of Tennessee, Inc.

Brett A. Schubert and Christine W. Stephens, Memphis, Tennessee, for the Plaintiff/Appellee, James Carson

Judge: KIRBY

This is the second appeal of a damage award for negligence. The plaintiff owned a house with a detached carport. During a delivery, the defendant company's driver backed the delivery truck into one of the four columns supporting the carport structure, causing it to partially collapse. The plaintiff homeowner filed a lawsuit against the defendant company, alleging negligence and seeking damages. Liability was conceded and a trial proceeded on the amount of damages. There was disputed testimony on the condition of the roof structure of the carport before the defendant's driver hit it. After the trial, the trial court found that the carport did not have a "roof" at the time of the accident, and so it deducted the cost of the "roof" of the carport from the damage award. The defendant company appealed. In the first appeal, we found that the record did not clearly indicate the trial court's findings underlying the award of damages, and remanded the case for clarification. On remand, the trial court explained its damage award. The defendant company appeals again in light of the trial court's clarification of the record. Finding that the preponderance of the evidence does not weigh against the trial court's findings, we affirm.


Court: TCA


R. Dwight Foster, Oak Ridge, Tennessee, for the appellant, J.K.F.

James R. LaFevor, Knoxville, Tennessee, for the appellees, J.P.L. and M.J.L.

Dennis B. Francis, Knoxville, Tennessee, guardian ad litem.


This is a parental rights termination case. The Petitioners, the mother of the child at issue and the mother's husband, brought a petition to terminate the biological father's parental rights on the ground of abandonment. We hold that the evidence in the record supports, clearly and convincingly, the trial court's dual findings of (1) willful abandonment by the biological father and (2) that it was in the child's best interest to terminate father's parental rights. Accordingly, we affirm.


Court: TCA


James L. Curtis, Nashville, Tennessee, for the appellant, Wanda Jo Waddell Cole.

Karla C. Hewitt, Nashville, Tennessee, for the appellee, John Duane Cole.


In this divorce action, Wife contends the trial court inequitably divided the parties' marital assets, and she also contends her award of alimony in futuro was insufficient. After thirty-four years of marriage to Husband, Wife filed a complaint for divorce. The trial court granted Wife a divorce on the grounds of Husband's adultery, divided the parties' limited marital assets, and awarded Wife alimony in futuro of $600 per month. Wife appeals asserting two issues. One, that the trial court erred by not including Husband's $310,000 life insurance policy as a marital asset. Two, that the court's award of alimony was insufficient. We have determined that the life insurance policy was not a marital asset because it had no cash value. We also find no error with the award of alimony in futuro. Therefore, we affirm.


Court: TCA


Ben H. Cantrell, Nashville, Tennessee, for the appellant, John David Franklin.

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellee, Olga DeKlein-Franklin.


This is a divorce case. John David Franklin ("Husband") challenges the trial court's judgment on several bases. He contends (1) that the award of transitional alimony to Olga DeKlein- Franklin ("Wife") was error; (2) that the court erred in treating the entirety of two stock brokerage accounts as marital property; (3) that the court erred in failing to treat Husband's disability insurance proceeds as his separate property; (4) that the special master erred in excluding evidence of the premarital value of Husband's medical practice; (5) that the division of marital property is not equitable; and (6) that he is entitled to a new trial because of irregularities in the proceedings below. Wife also argues that the division of marital property is not equitable. So much of the trial court's judgment as awards Wife transitional alimony is hereby reversed. In all other respects, the judgment is affirmed.


Court: TCA


Thomas O. Sinclair, Birmingham, Alabama, and Stephen A. Marcum, Huntsville, Tennessee, for the appellant, Brian E. Harris, M.D.

Steven A. Riley, Katharine R. Cloud, and Amy J. Everhart, Nashville, Tennessee, and Scott N. Davis, Chattanooga, Tennessee, for the appellees, Provident Life and Accident Insurance Company, UnumProvident Corporation, and Provident Life and Casualty Insurance Company.


Dr. Brian E. Harris ("Doctor"), the insured, brought this action for breach of contract and on the basis of various torts. He alleged that UnumProvident Corporation ("Insurance Company" or "the company") had wrongfully canceled his disability policy and retroactively rejected his disability claim. The trial court granted Insurance Company summary judgment. The court found that Doctor had filed his suit outside the applicable limitations periods. Doctor appeals, claiming that his suit was timely filed. We affirm.


Court: TCA


Russell S. Baldwin, Nashville, Tennessee, for the appellants, James A. Town and Business Evaluation & Appraisal, Inc.

Phillip B. Jones, Nashville, Tennessee, for the appellee, John Hohman.


This application for an extraordinary appeal concerns whether a trial court should consider matters outside the pleadings in ruling on a motion to dismiss for lack of personal jurisdiction and improper venue pursuant to Tenn. R. Civ. P. 12.02(2) and (3). The trial court declined to consider matters outside the pleadings and denied the defendants' motion to dismiss. Because the trial court should have considered the affidavits and other documents submitted by the parties in support of and in opposition to the motion to dismiss, we grant the application, vacate the trial court's order denying the motion to dismiss, and remand the case to the trial court for further proceedings on the motion.

IN RE J.D.C., J.Y.M.C., and A.M.C.

Court: TCA


Eric D. Reach, Johnson City, Tennessee, for the appellant, J.C.

Robert E. Cooper, Jr., Attorney General and Reporter, and Scott Edward Schwieger, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee Department of Children's Services.

Scotty Perrin, Johnson City, Tennessee, guardian ad litem.


This is a termination of parental rights case. The father of the three minor children at issue appeals an order terminating his parental rights. We hold that the evidence in the record supports, by clear and convincing evidence, the trial court's dual findings of (1) abandonment due to willful failure to provide support and (2) substantial noncompliance with permanency plans. The State concedes that the trial court's finding of "persistent conditions" is not supported by the evidence; accordingly, the judgment is modified to delete this finding. Father concedes that he has failed to provide a suitable home. Clear and convincing evidence supports the trial court's finding that it is in the best interest of the children to terminate father's parental rights. As modified, the judgment of the trial court is affirmed.


Court: TCA


Christopher D. Heagerty, Knoxville, Tennessee, for the appellants, TND Associates, L.P., and TND, Inc.

Robert H. Green and Catherine E. Shuck, Knoxville, Tennessee, for the appellees, Donald W. McCutcheon and Sue K. McCutcheon.

Judge: LEE

A jury awarded the plaintiff homeowners judgment against their residential building contractor for damages sustained by the plaintiffs when the slope upon which their home was constructed failed. The defendant contractor appeals, arguing that the trial court abused its discretion by allowing an expert witness to testify outside his area of expertise and by allowing another witness to testify as an expert when the plaintiff had failed to identify him as a witness before trial. Upon careful review of the record, it is our determination that the trial court did not abuse its discretion in the admission of the testimony of these witnesses. Accordingly, we affirm the judgment of the trial court.


Court: TCA


Timothy A. Davis, Lebanon, Tennessee, for the appellant, Morris Properties, Inc., Realtors.

Eugene N. Bulso, Jr. and Laura F. Dudney, Nashville, Tennessee, for the appellees, Norris Johnson, Norman Nelson, Ann Williams, Brent Kozimor, Norris Johnson Co., LLC and Tennessee Investment Realty Co.


Morris Properties, Inc. ("Plaintiff"), a Tennessee real estate company, filed suit against four individuals and two corporations ("Defendants"), attempting to allege tortious interference by all defendants, and breach of contract, breach of fiduciary duty and negligence by some defendants. The trial court dismissed the complaint, in accordance with Tenn. R. Civ. P. 12.02(6), for failure to state a claim. Plaintiff subsequently filed simultaneous motions to 1) alter or amend the judgment and 2) amend the complaint. Both motions were denied. Plaintiff appeals. We affirm.


Court: TCA


Randy G. Rogers, Athens, Tennessee, for the Appellant, Kenneth E. Thomas.

Judith A. Hamilton, Athens, Tennessee, for the Appellee, Mina Sue Thomas.

Judge: LEE

The issue presented in this case is whether the trial court erred in dismissing a divorce complaint filed by the husband, a Tennessee resident, against his wife, a Washington resident, after a previous ruling by a Washington court granting the parties a legal separation and retaining jurisdiction of the case. Upon review, we conclude that it was within the trial court's discretion whether to exercise its jurisdiction and hear this matter, but that in order to have a factual basis for the exercise of its discretion, the trial court erred in summarily dismissing the case and should have conducted an evidentiary hearing.


Court: TCA


D. Mitchell Bryant, Cleveland, Tennessee, for the Appellant, Willard Frederick Williams.

Eric S. Armstrong, Cleveland, Tennessee, for the Appellee, Noelle Lesley Williams.

Judge: LEE

In this divorce case, the husband raises two issues: (1) whether the trial court erred in classifying as marital property an annuity purchased during the marriage with the husband's separate funds when the annuity listed the wife as the owner, and (2) whether the trial court erred by ordering him to pay an excessive amount of alimony. The wife argues that the trial court's alimony award was insufficient and that the trial court erred by awarding each party one-half of the annuity's value instead of the entire amount to her. We find no abuse of the trial court's discretion in its alimony award, its classification of the annuity as marital property, and its division of the marital estate, and consequently, we affirm the judgment of the trial court. We remand the case for the trial court to determine and award the wife a reasonable attorney's fee on appeal because of the wife's financial need and other equitable factors.


Court: TCA


Shannon A. Jones, Alamo, Tennessee, for the appellant, Rodney Howard Wright.

Robert E. Cooper, Jr., Attorney General and Reporter, and Michael B. Leftwich, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Peace Officer Standards and Training Commission.


Former police officer Rodney Howard Wright ("Wright") challenges the decision by the Tennessee Peace Officer Standards and Training Commission ("the POST Commission" or "the commission") decertifying him on the basis of his guilty plea in a domestic violence case that -- after his plea was entered -- was dismissed and expunged. Wright contends that the POST Commission's reliance on his guilty plea as the basis for his decertification violates his rights under the judicial diversion statute. We agree. Accordingly, we reverse.


Court: TCCA


Paul J. Springer, Memphis, Tennessee, for the appellant, Shakir Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; Reginald Henderson and Scott Bearup, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Shakir Adams, was convicted of premeditated first degree murder and sentenced to life with the possibility of parole. The defendant appeals his conviction and argues: (1) that there was insufficient evidence to sustain his conviction; (2) that he was prejudiced by the trial court's refusal to allow the defendant to administer a jury questionnaire; (3) that he was prejudiced by the trial court's denial of his motion for continuance; (4) that he was prejudiced by the court's comments both pre-trial and during trial; (5) that he was prejudiced by the admission of evidence that the defendant was a member of a gang; and (6) that he was prejudiced by the erroneous exclusion of evidence. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.


Court: TCCA


J. Colin Morris, Jackson, Tennessee, for the appellant, Torrie Perkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Torrie Perkins, appeals from convictions of first degree murder and attempted first degree murder rendered by a Haywood County Circuit Court jury, for which he was sentenced to concurrent terms of life without parole and twenty-five years. In his appeal, he challenges the sufficiency of the evidence. We affirm the judgments of the trial court but remand the case for correction of the judgment for the first degree murder conviction.


Court: TCCA


Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the Appellant, State of Tennessee.

James T. Powell, Union City, Tennessee, for the Appellee, Charlotte Yvonne Turner.

Judge: HAYES

The State of Tennessee appeals the decision of the Obion County Circuit Court suppressing evidence obtained as a result of a police search of the residence of the Appellee, Charlotte Yvonne Turner. Turner, a parolee, was convicted of drug related offenses in Kentucky, with her parole being subsequently transferred to Tennessee. Turner's vehicle was stopped by Union City police officers, who were familiar with her status as a parolee. After the stop, Turner and the vehicle were searched for drugs based upon one officer's suspicion that she was involved in drug activity. After a fruitless search for contraband of both her person and vehicle, the officer demanded that Turner allow a search of her home, pursuant to a condition of her parole. No drugs were found during the search of her residence; however, Turner directed officers to a handgun, which was located in a bedroom. The weapon was seized, and Turner was subsequently indicted for unlawful possession of a weapon by a convicted felon. Turner filed a motion to suppress the evidence, which the trial court granted. On appeal, the State argues that the search of the residence was lawful under the recent holding of the United States Supreme Court decision of Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006). After review, we conclude that the police search of Turner's residence was unreasonable and affirm the ruling of the trial court.


Court: TCCA


Paul E. Meyers, Jackson, Tennessee, for the appellant, Kamara L. Whittington.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.


Defendant pled guilty to simple possession of cocaine. Defendant properly preserved the following certified question of law for review, "Whether the informant's credibility was sufficiently set forth to establish probable cause in the affidavit which provided support for issuance of the search warrant in this case." After a thorough review of the record, the judgment of the circuit court is reversed and the indictment against Defendant is dismissed.

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TN Attorney General Opinions

Date: 2008-04-30

Opinion Number: 08-98


Legal News
Disciplinary Actions
TBA Member Services

Legal News
Holder to be state's first female chief justice
The retirement of Tennessee Supreme Court Chief Justice William M. Barker will clear the way for Justice Janice M. Holder of Memphis to become the state's first female chief justice. Justice Gary R. Wade told the Chattanooga Times Free Press recently that the justices selected Holder as Barker's successor when he announced plans to retire two years ago.
The News Sentinel reports
Commission to consider Court of Appeals vacancy
The Judicial Selection Commission will meet May 21 at the Doubletree Hotel in Jackson to initiate the process of filling a vacancy on the Tennessee Court of Appeals, western division. The vacancy was created by the death of Judge W. Frank Crawford.

Fourth candidate files for appeals seat
Jeff Mueller, an attorney with Mueller & Ellis in Jackson, is the fourth candidate to file for an appointment to the Court of Criminal Appeals, western division. The seat was vacated by the retirement of Judge David Hayes. The deadline to submit applications is May 9. The Judicial Selection Commission recently announced it will meet May 22 at the Doubletree Hotel in Jackson to hear from candidates.

Three law firms make best employer list
Business TN magazine has named the state's best employers -- including three law firms -- in its May issue. In the large employer category (250 employees or more), Baker, Donelson, Bearman, Caldwell, & Berkowitz PC is ranked third. In the small and medium company category (25-249 employees), Kramer Rayson is ranked third and Stites & Harbison is ranked 11th.
See the full listing
Kentucky judge receives 6th Circuit award
Retired Kentucky Supreme Court Justice Martin E. Johnstone has been selected to receive the American Inns of Court's 2008 Professionalism Award for the Sixth Circuit. The award honors a judge or lawyer whose life and practice display character and integrity, coupled with dedication to the highest standards of the legal profession. The award will be presented to Johnstone by Danny J. Boggs, Chief Judge of the U.S. Court of Appeals for the Sixth Circuit, at the court's judicial conference in Chattanooga next week.
Read more about Johnstone from the American Inns of Court
Hamilton grand jury calls for sentencing reforms
Members of the Hamilton County grand jury say they are astounded by the number of repeat offenders in their communities, and are calling on the state to increase the level and length of incarceration for these criminals. In a letter to Criminal Court Judge Rebecca Stern, the jurors also call for a new county jail and juvenile correctional facility.
The Times Free Press has a copy of the letter
Memphis law grads face off in terror trial
Two University of Memphis School of Law graduates will face off in an upcoming Guantanamo Bay terrorism trial. TBA Today previously reported that 1996 Memphis law school grad Army Maj. Jon S. Jackson will defend Mustafa Ahmed Adam al Hawsawi. He will face 1977 Memphis grad and retired Army colonel Robert L. Swann, who will serve as chief prosecutor.
The Commercial Appeal has more
Child advocacy center seeks private funds for repairs
The 23rd Judicial District's Child Advocacy Center is sorely in need of repairs and officials are hoping the community will help raise funds. The Dickson County Commission recently voted to match up to $10,000 in private funds. The center says repairs are estimated to cost between $19,200 and $21,000. The first of several fundraisers will be held Memorial Day weekend on the town square.
The Tennessean has details
Students participate in Supreme Court program
Students from high schools in the 8th Judicial District will hear arguments in three state Supreme Court cases May 8 in Jacksboro as part of the court's SCALES program. The program educates young Tennesseans about the judicial branch of government. Teachers attended a three-hour session April 4 conducted by Court of Criminal Appeals Judge D. Kelly Thomas and Criminal Court Judge Shayne Sexton. The session included a review of the cases and accompanying classroom materials.

'Thurgood' opens on Broadway
Laurence Fishburne is Thurgood Marshall in a one-man play, which opens today and runs through the summer at the Booth Theatre in New York City. For 90 minutes Fishburne recounts Marshall's life story through anecdotes and humor. The highlight, according to one reviewer, is his reenactment of Marshall's Supreme Court appearance as NAACP lead counsel in Brown v. Board of Education.
Read more about the play
Disciplinary Actions
Nashville lawyer suspended
On April 17, the Supreme Court suspended Nashville attorney Merrilyn Feirman for a period of two years retroactive to a temporary suspension imposed on Jan. 10, 2006. The discipline was imposed on Feirman for failure to keep a client informed, respond to a client's request for information and respond to the Board of Professional Responsibility.
Read the BPR's notice
Memphis lawyer Williams dies
Ernest Bland Williams III with Williams & Prochaska PC died April 20 at the age of 79. He graduated from Vanderbilt University Law School in 1954 and began his law practice in Memphis at Chandler Sheperd Heiskell & Williams, a law firm founded by his father, which is now known as Baker Donelson Bearman Caldwell & Berkowitz PC. He later served as a managing partner of the firm and founded its first commercial law group. Williams was active in the American Bar Association, was a past president of the American College of Commercial Finance Lawyers and taught commercial law at the University of Memphis School of Law from 1962 to 1965.

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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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