Register for convention before rate goes up Saturday

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. The rate goes up after May 30.

http://www.tba.org/Convention2008/index.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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00 - TN Supreme Court - Rules
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06 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
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00 - Formal Ethics Opinions - BPR

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.

JANET E. BILLINGSLEY-TRAVIS v. JAMES KENNETH TRAVIS

Court: TCA

Attorneys:

Bert W. McCarter, Murfreesboro, Tennessee, for the appellant, James Kenneth Travis.

Stephen W. Pate, Murfreesboro, Tennessee, for the appellee, Janet E. Billingsley-Travis.

Judge: CLEMENT

This appeal concerns an action to increase child support. The trial court ordered Father to pay child support in the amount of $900 per month, which is an upward deviation from the Child Support Guidelines, and $2,000 per year, at a minimum, for private school tuition. Father contends on appeal that the trial court erred in ordering an upward deviation of his child support obligation and that he should not be ordered to make yearly tuition payments. We find the trial court's upward deviation from the Child Support Guidelines to be supported by the record but find the additional requirement of $2,000 per year for tuition to be excessive. Therefore, we reverse in part and affirm in part the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2008/billingsleyj_052908.pdf


BRIM HOLDING COMPANY, INC. v. PROVINCE HEALTHCARE COMPANY

Court: TCA

Attorneys:

C. Mark Pickrell, Joseph A. Woodruff and R. Mitchell Porcello, Nashville, Tennessee, for the appellant, Province Healthcare Company.

Brigid M. Carpenter, Nashville, Tennessee, and Allen V. Farber, Washington, D. C., for the appellee, Brim Holding Company, Inc.

Judge: CLEMENT

The issue on appeal in this contract dispute is whether the defendant breached its indemnification obligations under the terms of a stock purchase agreement. The trial court found that the plaintiff was entitled to be reimbursed for payment of a claim specifically identified under the indemnification provisions of a stock purchase agreement. Significantly, the trial court found that the indemnity provisions in the stock purchase agreement anticipate the specific loss and assure that it will be paid by the defendant. The defendant contends that the plaintiff has already received reimbursement for that payment through the post-closing working capital adjustment and the plaintiff, therefore, is not entitled to reimbursement under the indemnification provisions. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/brimholding_052908.pdf


TABITHA ANN CAIN v. MARK EDWARD CAIN

Court: TCA

Attorneys:

Christine Brasher, Springfield, Tennessee, for the appellant, Tabitha Ann Cain.

Wende J. Rutherford, Nashville, Tennessee, for the appellee, Mark Edward Cain, Jr.

Judge: COTTRELL

Mother appeals trial court granting Father primary residential custody without making the findings about alleged abuse required by Tenn. Code Ann. section 36-6-106(a)(8). Based upon the circumstances of this case, including the fact that this was a divorce in which the court was required to adopt a permanent parenting plan, we conclude that the trial court was not required to make those findings. Applying the factors relevant to a determination of the residential schedule of minor children, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2008/caint_052908.pdf


JOEY CONNER v. CARMEN CONNER

Court: TCA

Attorneys:

Jennifer Twyman King, Jackson, Tennessee, for the appellant, Joey Conner.

Felicia Corbin Johnson, Memphis, Tennessee, for the appellee, Carmen Conner.

Judge: KURTZ

This appeal arises from a post-divorce proceeding wherein the minor child's mother, contending that there had been a material change in circumstances, sought a change of custody. After several days of hearings, the trial court transferred custody from the father to the mother. We find that the trial court applied an incorrect legal standard and also find that the final hearing below was prematurely terminated. We therefore vacate and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/connerj_052908.pdf


STACY CAGLE DAVIS v. ROBERT F. DAVIS

Court: TCA

Attorneys:

Kimberlee A. Waterhouse, Lenoir City, Tennessee for the Appellant, Robert F. Davis.

Robert H. Green and Catherine E. Shuck, Knoxville, Tennessee for the Appellee, Stacy Cagle Davis.

Judge: SWINEY

After more than eighteen years of marriage, Stacy Cagle Davis ("Wife") sued Robert F. Davis ("Husband") for divorce. The case was tried and the Trial Court entered a Final Decree declaring the parties divorced, approving the parenting plan submitted with regard to the parties' minor child, ordering Husband to pay child support, dividing the marital property and marital debts, and denying Husband's request for alimony. Husband appeals the denial of his request for alimony to this Court. We reverse the denial of alimony to Husband, award Husband rehabilitative alimony of $800 per month for 36 months, award Husband attorneys' fees at trial and on appeal, and remand to the Trial Court for a determination of the proper amount of attorneys' fees. The remainder of the Trial Court's Final Decree is affirmed.

http://www.tba2.org/tba_files/TCA/2008/daviss_052908.pdf


SHERRIE ENGLER, ET AL. v. KARNES LEGAL SERVICES

Court: TCA

Attorneys:

Gregory W. Minton, Medina, TN, for Appellants.

Lanis L. Karnes, Marlene Simpson, Jackson, TN, for Appellee.

Judge: HIGHERS

This appeal involves the Tennessee saving statute, Tenn. Code Ann. section 28-1-105. The plaintiffs' lawsuit was dismissed without prejudice for failure to prosecute when their attorney failed to appear at a hearing. Three months after the dismissal, the plaintiffs' attorney filed a motion seeking relief from the order of dismissal, citing the saving statute, along with an amended complaint. The trial court considered the motion under Rule 60 but did not address the applicability of the saving statute. The court refused to set aside the order of dismissal upon finding that the attorney's failure to attend the hearing did not constitute excusable neglect. The plaintiffs appeal. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/englers_052908.pdf


DAVID GOFF, ET UX, ET AL. v. ELMO GREER & SONS CONSTRUCTION CO., INC.
CORRECTION


Court: TCA

Attorneys:

Linda J. Hamilton Mowles, Knoxville, TN, for Appellant.

John C. Knowles, Sparta, TN; John P. Pryor, Smithville, TN; Jon E. Jones, Cookeville, TN, for Appellees.

Judge: HIGHERS

This appeal involves a jury's award of punitive damages. The construction company entered into a contract with the State of Tennessee to widen a portion of a highway. The homeowners entered into a contract with the construction company allowing the construction company to place excess materials generated from the highway project on the homeowners' property. In exchange, the homeowners would receive compensation based on the cubic fill area, and the company would fill and grade that portion of the homeowners' property. The project required that the construction company conduct extensive blasting near the homeowners' house and vehicles. One of the homeowners became concerned when he witnessed the construction company placing various garbage items and tires on his property near the fill area. After three years, the construction company finished the project. The homeowners brought suit, alleging that the company failed to pay the amount due under the contract and caused damage to their house due to the blasting. The complaint also alleged that the company buried certain items, including tires, on the property which constituted an environmental tort. The homeowners' amended complaint stated a cause of action in nuisance and also sought an award of punitive damages in the amount of $1 million dollars. The jury returned a verdict in favor of the homeowners for the nuisance claim in the amount of $3,305.00 and found that punitive damages should be imposed on the construction company. The jury found in favor of the construction company for the environmental tort claim. After the second phase of the trial, the jury returned an award of $2 million in punitive damages. The trial court remitted the award to $1 million, the amount of the homeowners' ad damnum. The construction company appeals, and we reverse and remand in part and affirm in part.

http://www.tba2.org/tba_files/TCA/2008/goffd_CORR_052908.pdf


JAY S. GORBAN v. DAVID HARRIS

Court: TCA

Attorneys:

Donrua Barnes-Hulsey, Clarksville, Tennessee, for the appellant, David Harris.

Mart G. Fendley, Clarksville, Tennessee, for the appellee, Jay Gorban.

Judge: BENNETT

This is a dispute between a homeowner and the contractor he hired to build a sunroom onto his home. We have concluded that the evidence does not preponderate against the trial court's award of a judgment in favor of the homeowner for 60 percent of the requested damages, based upon its allocation of 40 percent of the fault to the homeowner.

http://www.tba2.org/tba_files/TCA/2008/gorbanj_052908.pdf


BILL F. GRINDSTAFF, ET AL. v. JOHN P. BOWMAN, ET AL.

Court: TCA

Attorneys:

Joe Costner, Maryville, Tennessee, for the appellants, Bill F. Grindstaff and Connie Grindstaff.

Kenneth W. Ward and Catherine E. Shuck, Knoxville, Tennessee, for the appellee, Hardee's Food Systems, Inc.

Judge: SUSANO

This litigation arises out of a collision between a vehicle operated by the plaintiff Bill F. Grindstaff and one driven by the defendant John P. Bowman. Mr. Grindstaff and his wife, the plaintiff Connie Grindstaff, timely filed suit against the defendant Bowman. Some 28 months after the accident, the plaintiffs sought to amend their complaint to add Hardee's Food Systems, Inc. -- the employer of the defendant Bowman -- as an additional party defendant. After an order was entered allowing the amendment, Hardee's filed a motion for summary judgment predicated upon the bar of the one-year statute of limitations. The trial court granted the motion. The plaintiffs appeal, contending that (1) the discovery rule saves their cause of action against Hardee's and, in any event, (2) the claim was timely filed pursuant to the provisions of Tenn. Code Ann. section 20-1-119(a) (Supp. 2007). We affirm.

http://www.tba2.org/tba_files/TCA/2008/grindstaffb_052908.pdf


SANDI C. HUBBARD v. MYRON L. HUBBARD

Court: TCA

Attorneys:

Eugene B. Dixon, Maryville, Tennessee, for the appellant, Myron L. Hubbard.

Sandra G. Olive, Knoxville, Tennessee, for the appellee, Sandi C. Groover, formerly Hubbard.

Judge: SUSANO

In this post-divorce case, Myron L. Hubbard ("Husband") filed a "Motion" asking the trial court to suspend his alimony obligation to Sandi C. Hubbard ("Wife"). Wife responded with a "Motion to Dismiss and to Increase Alimony," in which she asserted that: 1) Husband's "Motion" should be dismissed for failure to state a claim; 2) Husband's alimony obligation should be increased; 3) Wife should be awarded attorney fees; and 4) Husband should be held in contempt for a missed alimony payment. At the conclusion of a bench trial, the court denied Husband's "Motion," ruling that he had failed to prove a material change in circumstances that would justify suspending alimony. The court took no action on Wife's "Motion." Husband appeals. Wife argues that the trial court's judgment was not an appealable final order, as it "adjudicates fewer than all the claims." Tenn. R. App. P. 3(a). We agree with Wife. Accordingly, we dismiss the appeal.

http://www.tba2.org/tba_files/TCA/2008/hubbards_052908.pdf


GEORGE CAMPBELL JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

George Campbell, Jr., pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Lacy Wilber, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The Petitioner, George Campbell, Jr., appeals the trial court's denial of his petition for coram nobis relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State's motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2008/campbellg_052908.pdf


STATE OF TENNESSEE v. TREVOR FORD

Court: TCCA

Attorneys:

Robert Wilson Jones, Shelby County Public Defender; Garland Ergden, Assistant Public Defender; and Trent Hall, Assistant Public Defender, for the appellant, Trevor Ford.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Tiffani Taylor, Assistant District Attorney General; and Dean Decandia, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant was convicted of one count of second degree murder. On appeal, Defendant argues that the evidence used to convict him was insufficient to sustain a conviction for any offense greater than voluntary manslaughter. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/fordt_052908.pdf


JESSE FULFER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jesse Fulfer, Pro Se, Wartburg, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; J. Scott McCluen, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jesse Fulfer, pled guilty in Marion County to one count of second degree murder and one count of aggravated robbery. He subsequently filed a petition for writ of habeas corpus relief. The habeas corpus court summarily dismissed the petition based on the fact that Petitioner failed to adhere to the mandatory statutory provision found in Tennessee Code Annotated section 29-21-107. The habeas corpus court also found that Petitioner's issue that he entered his guilty plea involuntarily was not a cognizable issue for habeas corpus relief. After reviewing the record, we find that Petitioner failed to adhere to the statutory requirements for habeas corpus relief by failing to attach the underlying judgment. In addition, the involuntary entry of a guilty plea is not a cognizable issue for relief under habeas corpus because it would render the judgment merely voidable as opposed to void as is required to obtain habeas corpus relief. Therefore, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2008/fulferj_052908.pdf


TARKIS JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Larry Copeland, Memphis, Tennessee, for the appellant, Tarkis Jones.

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

Judge: WITT

The petitioner, Tarkis Jones, sought post-conviction relief after pleading guilty to charges of second degree murder, unlawful possession of a weapon, and assault. The Shelby County Criminal Court denied relief after an evidentiary hearing. On appeal, the petitioner argues that his guilty plea was unlawfully induced and that he received the ineffective assistance of counsel. We affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2008/jonest_052908.pdf


GUILLERMO MATIAS JUAN V. VIRGINIA LEWIS, WARDEN, AND STATE OF TENNESSEE

Court: TCCA

Attorneys:

Guillermo Matias Juan, Pikeville, Tennessee, Pro se.

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

Judge: OGLE

The petitioner, Guillermo Matias Juan, pled guilty in the Hamilton County Criminal Court to second degree murder and received a sentence of sixty years incarceration in the Tennessee Department of Correction. Thereafter, the petitioner filed a petition for habeas corpus relief, alleging that his sentence was void because he did not have the requisite criminal history to qualify as a persistent offender. The habeas corpus court denied the petition, and the petitioner appeals. Upon review ofthe record and the parties' briefs, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2008/juang_052908.pdf


RICKY LEE NELSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ricky Lee Nelson, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Elaine Wilber, Assistant Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Ricky Lee Nelson, appeals the Johnson County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we conclude that the state's motion is well-taken, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/nelsonr_052908.pdf


TODAY'S NEWS

Legal News
Legislative News
Upcoming
TBA Member Services

Legal News
Ethics Commission drops 2 cases
The Tennessee Ethics Commission has dropped inquiries into two cases of lobbyist conduct. In the first case, Seigenthaler Public Relations was accused of acting as a lobbyist when it set up a web site to help lobby against a bill. The commission dismissed the complaint, saying the request had come through the wrong channel. Commissioners also dismissed an inquiry from a former governor's aide who had asked whether he could give advice to clients without registering as a lobbyist. After waiting months for a ruling on the case, he withdrew his request saying he no longer represented the clients in question.
This AP story from the News Sentinel has more
Bass Berry to add new staff
The Nashville office of Bass, Berry & Sims PLC has plans to beef up its staff this summer, adding 25 attorneys, for a total contingent of 245 lawyers. Many of the new hires will be working in the areas of corporate law or health care, reports the Nashville Business Journal.

Cash, drugs, gun missing from Athens PD
A state audit released today verifies information previously reported by the Roane County district attorney general that thousands of dollars in cash and drugs and a weapon valued at $1,000 are missing from the Athens Police Department. The audit also makes recommendations for changing procedures in the department, although city officials say many of the issues have been addressed. It is unclear at this time whether anyone associated with the department will be charged in the matter.
Read more in the News Sentinel
Boys State delegates attend Supreme Court session
American Legion Boys State delegates from high schools across the state participated yesterday in the Tennessee Supreme Court's SCALES program, which is designed to educate young people about the judicial branch of government. The 650 students attended a special court session and heard oral arguments in two cases. Circuit Court Judge John Maddux of Cookeville coordinated the program, according to the Administrative Office of the Courts.

AG tells law grads to make the tough calls
U.S. Attorney General Michael Mukasey told Boston College law graduates that a lawyer's job is to offer clients "dispassionate and reasoned analysis" of legal issues even when that advice seems imprudent, or even wrong. He acknowledged that lawyers face especially difficult decisions in cases involving national security where the stakes are higher and the pressures greater, but encouraged the group not to shy away from making tough calls in their career.
The Boston Globe has more on the speech
100 most creative moments in American law
Calling on as many legal history teachers as he could, a Valparaiso University law school professor has come up with an intriguing list of the "100 Most Creative Moments in American Law." Number one: the U.S. Constitution and the ratification debates.
View the full list
Legislative News
Prospects for Tennessee Plan debated
With the close of a legislative session that saw no action on renewal of the Tennessee Plan, observers are debating prospects for action next year. The Memphis Daily News predicts that political debate over the commission and its role in the selection of appellate judges will intensify over the next year. The paper also recaps the major issues at play and the players involved.
Learn more
Upcoming
O'Connor to address Tenn. Historical Society
Justice Sandra Day O'Connor will speak at the Third Annual Tennessee Supreme Court Historical Society Dinner, Oct. 27 at the Hilton Nashville Downtown. For more information, email Joy Day.

TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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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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