Commission OK's proposed Rule 23.08 amendment

The Tennessee Rules Commission today unanimously passed a proposed Rule 23.08 amendment prepared by the Tennessee Bar Association that would allow trial courts to direct residual class action funds to the Tennessee Voluntary Fund for Indigent Civil Representation (Cy Pres Trust). TBA President George T. Lewis praised the efforts of Memphis attorney Danny Van Horn in researching and preparing the proposed rule, which now goes to the Tennessee Supreme Court for possible action this fall. Read the proposed rule

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Court: TCA


Charles W. Cagle, Samuel L. Jackson and Emily R. Ogden, Nashville, Tennessee, for Appellant, Cannon County Board of Education.

Richard L. Colbert and Courtney L. Wilbert, Nashville, Tennessee, for Appellees, Goldy Wade and the Cannon County Education Association.


Plaintiff's employment contract as a probationary teacher was not renewed. He filed a grievance under the agreement existing between the local board of education and the local professional employees' association. As the last step in the grievance procedure, the teacher sought binding arbitration. The board filed an action seeking a declaratory judgment that it was not required to arbitrate the former employee's grievance. The trial court dismissed that action, and on appeal this court reversed and remanded for further consideration by the trial court. The trial court then ruled that the issues raised by the teacher were subject to arbitration, and the board again appealed to this court. We hold that a locally negotiated agreement cannot be interpreted to delegate to an arbitrator the decision of whether to renew a probationary teacher's contract because state statutes clearly give that decision to local school officials. Consequently, we reverse the trial court.


Court: TCA


Gary C. Shockley, Samuel T. Bowman, Nashville, Tennessee, for the appellants, BlueCross BlueShield of Tennessee, Inc., and Volunteer State Health Plan, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, Dennis J. Garvey, Deputy Attorney General, Jeremy E. Pyper, Assistant Attorney General, Nashville, Tennessee, as Amicus Curiae in support of appellants, BlueCross BlueShield of Tennessee, Inc., and Volunteer State Health Plan, Inc.

Robert L. Huskey, Jason L. Huskey, Manchester, Tennessee, for the appellee, Phyllis T. Craighead.


We reverse the trial court's finding that the immunity granted in the second sentence of Tenn. Code Ann. section 56-53-110 applied only where there was proof that actual malice was absent. With regard to the statute of limitations governing claims related to diminution in value to a business, where the gravamen of the complaint is for breach of contract, the six-year period of Tenn. Code Ann. section 28-3- 109 governs, but where the gravamen of the complaint is for injury to property, the three-year period of Tenn. Code Ann. section 28-3-105 governs.


Court: TCA


Will Myers, pro se Appellant.

Kirk Vandivort, Dickson, Tennessee, for the Appellees, Hidden Valley Lakes Trustees, Inc.

Judge: LEE

In this appeal, Will Myers, a property owner in the Hidden Valley Lakes subdivision in Hickman County, filed a petition for writ of mandamus requesting the trial court to order the Hidden Valley Lakes property owners' association to "conduct business in accordance with Title 48, Chapters 51- 68' of the Tennessee Code Annotated. Mr. Myers alleged that the property owners' association was not in compliance with applicable Tennessee statutes and its charter and bylaws. After the association provided Mr. Myers with requested financial documents and a list of property owners in the subdivision and after the trial court entered an order directing the association to conduct its meetings in compliance with its bylaws, charter, and applicable statutes, the trial court granted the association summary judgment. We affirm in part, vacate in part, and remand the case for the trial court to determine if Mr. Myers has standing to seek judicial relief to compel the association to have an independent audit conducted for the years 1996 through 2004.


Court: TCA


Deon D. Owensby, Nashville, Tennessee, Pro Se.

Fannie J. Harris, Nashville, Tennessee, for the appellee, Vanessa Davis.


The father of the parties' minor child appeals the denial of his petition to reduce his child support obligation after losing his job. Father is licensed to practice law in Tennessee and possesses a Master's Degree in Business Administration. He was employed by a law firm earning $46,000 when child support was initially set in 2005. His employment with the law firm was involuntarily terminated the following year. After losing his job, he filed a petition to reduce his child support obligation. The trial court denied the petition finding that he was voluntarily underemployed. On appeal, Father challenges numerous aspects of the trial court's decision; however, the primary issue is whether the father was voluntarily underemployed. Finding that the evidence does not preponderate against the trial court's finding of voluntary underemployment, we affirm.


Court: TCA


Robert L. Huskey, Manchester, Tennessee, for the appellant, W.L.F.

Peter Trenchi, Sewanee, Tennessee, for the appellant, K.R.F.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.


Mother and Father appeal the trial court's termination of their parental rights. The trial court terminated Mother's parental rights on the ground of abandonment by failure to support. The trial court terminated Father's rights on the ground of being sentenced to more than two years' imprisonment for child abuse pursuant to Tenn. Code Ann. section 36-1-113(g)(5). Additionally, both parents' rights were terminated on the ground of substantial oncompliance with the permanency plan. The trial court also found that termination of both parents' parental rights was in the child's best interest. We affirm the trial court's termination of Father's parental rights based upon his substantial noncompliance with the permanency plan and the best interest of the child. However, we have determined that the order terminating Mother's parental rights must be vacated because the record does not contain clear and convincing evidence that the Department made reasonable efforts to reunite Mother with the child or that Mother abandoned the child by failure to support.


Court: TCA


Michael W. Binkley, Nashville, Tennessee for the Appellant, Bobby Hugh Young.

Irwin J. Kuhn, Nashville, Tennessee for the Appellee, Sara Evelyn Evans (f/k/a Young).


Sara Evelyn Evans ("Wife") and Bobby Hugh Young ("Husband") were divorced in 1992 at which time Husband was ordered, among other things, to pay $1,800 per month in alimony to Wife until Wife's death or remarriage or Husband's death. In January of 2006, Husband filed a petition seeking to modify his alimony obligation claiming a substantial and material change in circumstances as a result of financial difficulties in Husband's business, health problems impacting Husband's ability to work full-time, and his retirement. Wife opposed the petition and sought an increase in alimony. The Trial Court entered an order finding and holding, inter alia, that Husband did not show a sufficient change in circumstances to warrant a modification of alimony. Wife was awarded her attorney's fees. Husband appeals to this Court. We hold that although Husband showed a substantial and material change in his income, Husband did not show that he is entitled to a modification of the alimony. We, therefore, affirm the Trial Court's order.


Court: TCCA


Andrew Jackson Deering, III, Assistant District Public Defender, for the appellant, Lewis Jeffrey Cox.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Mike McCown, District Attorney General, and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Lewis Jeffrey Cox, was arrested for public intoxication. Appellant was a registered violent sex offender at the time of his arrest. He failed to inform the arresting officers or the facility where he was held that he was a registered violent sex offender. Subsequently, Appellant was indicted by the Bedford County Grand Jury for failure to inform the incarcerating facility that he was a registered violent sex offender under Tennessee Code Annotated section 40-39-204(e). Appellant pled guilty to the charge. In a separate sentencing hearing, the trial court sentenced Appellant to six years as a career offender. Appellant appeals his sentence to this Court. On appeal, he argues that Tennessee Code Annotated section 40-39-204 carries no penal provision, and the penal provisions included in Tennessee Code Annotated section 40-39-208 do not apply to his failure to inform the facility of his status as a registered violent sex offender. After a thorough review of the applicable laws, we affirm the judgment of the trial court.


Court: TCCA


Hershell D. Koger, Pulaski, Tennessee, for the appellant, Sarah Michelle Vinson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Ann L. Filer and Hollyn Hewgley, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Sarah Michelle Vinson, appeals her Lincoln County Circuit Court convictions of two counts of forgery. In this appeal, she contends that she was improperly denied alternative sentencing and that her sentences are excessive. The judgments of the trial court are affirmed.


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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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