TBA Today

Wednesday, September 17, 2008

Search our Database for Opinions and News Items

Swearing-in ceremony highlight of TBA Academy

A select group of Tennessee attorneys will soon experience the honor of being admitted to practice before the U.S. Supreme Court in a private swearing-in ceremony at the 25th Annual TBA Academy. This year's Academy is scheduled for Dec. 14-15. Join TBA President Buck Lewis and other leaders in the Tennessee legal community in this exciting program.

Register or find out more now

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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
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.

LARRY RICHARD BRYANT v. BETH RACHELLE BRYANT

Court: TCA

Attorneys:

Irene R. Haude, Nashville, Tennessee, for the appellant, Beth Rachelle Bryant.

Mark R. Olson, Clarksville, Tennessee, for the appellee, Larry Richard Bryant.

Judge: CLEMENT

The mother of the parties' only child appeals the designation of Father as the primary residential parent and the division of marital property. She also contends there was evidence of possible child abuse and that the trial court failed to make specific findings of fact pursuant to Tenn. Code Ann. section 36-6-106(a)(8). We affirm the designation of the father as the primary residential parent and the division of the marital property. We also find that the trial court was not required to make findings of fact because the mother made no allegations of abuse in her pleadings and the record contains no evidence of abuse. We also find that the father is entitled to recover reasonable and necessary attorney's fees incurred on appeal pursuant to Tenn. Code Ann. section 36-5-103(c).

http://www.tba2.org/tba_files/TCA/2008/bryantl_091708.pdf

MELONY GORDON v. W.E. STEPHENS MANUFACTURING COMPANY, INC.

Court: TCA

Attorneys:

Justin S. Gilbert and Michael L. Russell, Jackson, Tennessee, for the appellant, Melony Gordon.

Anne C. Martin and Marshall T. Cook, Nashville, Tennessee, for the appellee, W.E. Stephens Manufacturing Company, Inc.

Judge: BENNETT

Employee appeals from a directed verdict in a sexual harassment action under the Tennessee Human Rights Act, Tenn. Code Ann. section 4-21-101, et seq. Employee sued her employer alleging that sexual harassment by her immediate supervisor created a hostile work environment. The case proceeded to trial before a jury. After the close of defendant's proof, the trial court granted a directed verdict in favor of defendant-employer. Employee appeals challenging the legal standard used to weigh the evidence at trial and arguing against employer's assertion of the Faragher/Ellerth affirmative defense. We find the material evidence presented at trial created fact questions by which a jury could reasonably find in favor of plaintiff-employee. Therefore, the trial court erred in taking the case from the jury on a directed verdict. Judgment of the trial court is vacated and the case is remanded for a new trial.

http://www.tba2.org/tba_files/TCA/2008/gordonm_091708.pdf

JAMES B. JOHNSON , ET AL v. CHARLIE B. MITCHELL, JR., ET AL.

Court: TCA

Attorneys:

James B. Johnson and Stephen H. Price, Nashville, Tennessee, for the appellants, James B. Johnson and Sylvia S. Johnson.

Stephen Andrew Lund and Thomas V. White, for the appellees, Charlie B. Mitchell, Jr., and CBM Enterprises, Inc.

Judge: DINKINS

Plaintiffs appeal the Chancery Court's grant of summary judgment in this breach of contract action. Finding no error, we affirm the Chancery Court's judgment.

http://www.tba2.org/tba_files/TCA/2008/johnsonj_091708.pdf

TONY MONROE v. JACQUELINE ZIERDEN, ET AL.

Court: TCA

Attorneys:

Bradley G. Kirk, Lexington, TN for Appellant.

Steven W. Maroney, Jackson, TN for Appellee.

Matthew R. West, Jackson, TN for Appellee.

Judge: STAFFORD

The trial court dismissed Appellant's complaint for specific performance of a contract for the sale of real estate, and granted Appellee reasonable attorney's fees as provided in the contract. Appellant appeals the award of attorney's fees; Appellee asserts error in the amount of fees awarded. We affirm.

http://www.tba2.org/tba_files/TCA/2008/monroet_091708.pdf

TERESA WALKER NEWMAN v. WAYNE WOODARD, ET AL.

Court: TCA

Attorneys:

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Teresa Walker Newman.

Steven B. Crain, Ripley, Tennessee, for the appellees, Wayne Woodard and Douglas Woodard.

Judge: FARMER

This case concerns the access rights of a landowner to a section of her property divided from the rest of her land by a steep bluff. The trial court held that the landowner did not have an implied easement through her neighbor's land to access her property at the bottom of the bluff because the there was insufficient evidence that the right-of-way preexisted severance of the properties. The trial court determined that Mrs. Newman did not have an implied easement by necessity because there was insufficient evidence that Mrs. Newman would be unable build a road down the bluff for a reasonable cost. Because the evidence does not preponderate otherwise, we affirm that Mrs. Newman does not have an implied easement or an implied easement by necessity over the right-of- way. The trial court also held that Mrs. Newman lacked a prescriptive easement over the right-or- way because she failed to prove that her use was exclusive; we affirm on the basis that Mrs. Newman failed to demonstrate that her use of the right-of-way was continuous.

http://www.tba2.org/tba_files/TCA/2008/newmant_091708.pdf

FRANK E. TEASLEY v. TENNESSEE BOARD OF PROBATION AND PAROLE

Court: TCA

Attorneys:

Frank E. Teasley, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and Joshua D. Baker, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole.

Judge: FARMER

The trial court dismissed Petitioner's writ for certiorari on the grounds that it was untimely filed and insufficiently affirmed where it was not notarized. We vacate dismissal based on the limitations period and affirm based on the lack of sworn, notarized affirmation.

http://www.tba2.org/tba_files/TCA/2008/teasleyf_091708.pdf

DOUGLAS C. YORK, M.D. v. JOSEPH V. BATSON, ET AL.

Court: TCA

Attorneys:

Emily K. Moore, Franklin, TN, Appellant.

Douglas S. Hale, Franklin, TN, Appellant.

Thomas J. Elmlinger, Nashville, TN, Appellees.

Judge: STAFFORD

This is a summary judgment case. Appellant and Appellee entered into an oral agreement for the exchange of land. Appellee negotiated the purchase of the property with a third party which he then was to exchange with Appellant. When Appellee decided to keep the property for himself, Appellant filed suit, alleging agency, breach of contract, equitable estoppel, and wrongful inducement of a breach of contract. Appellees filed a counter-claim for wrongful inducement of a breach of contract. The trial court granted Appellees' motion for summary judgment, dismissing all of Appellant's claims, but declined to grant summary judgment in favor of Appellees on their counter-claim. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/yorkd_091708.pdf

STATE OF TENNESSEE v. TAMELA T. SCOTT
With Concurring and Dissenting Opinion

Court: TCCA

Attorneys:

Patrick T. McNally, Nashville, Tennessee (on appeal), and V. Michael Fox, Nashville, Tennessee (at trial), for the appellant, Tamela T. Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and David L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Tamela T. Scott, was convicted of vehicular homicide by intoxication, a class B felony, and three counts of vehicular assault, a class D felony. She received an effective sentence of eight years. The sentence was ordered to be served by one year in confinement and sixteen years on probation. Among the conditions of the defendant's probation were 200 hours of community service per year, and the defendant was also prohibited from driving for eight years. The defendant appeals the judgments, arguing that (1) the convicting evidence is insufficient; (2) the trial court erred in admitting expert testimony of "retrograde extrapolation" related to the defendant's blood alcohol level; (3) the trial court erred in its jury instruction regarding blood alcohol; and (4) the trial court erred in determining the conditions of her community service, the length of her probation, and that her driving privileges will be revoked for eight years. We affirm the judgments for the three counts of vehicular assault. We affirm the conviction of vehicular homicide by intoxication, but we modify the manner of service of the eight-year sentence to one year in confinement followed by eight years of probation.

http://www.tba2.org/tba_files/TCCA/2008/scottt_091708.pdf

WEDEMEYER concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCCA/2008/scottt_Con_091708.pdf

TODAY'S NEWS

Legal News
Politics
Upcoming
TBA Member Services

Legal News

New Nashville PD elected

Nashville's Metro Council last night overwhelming elected Dawn Deaner public defender for the next two years to fill out the term of Ross Alderman. Alderman died in August after nine years of service. Deaner received 26 of 39 votes, defeating four other candidates on the first ballot. She has worked for the public defender's office for 11 years. For the last five years she has served as an associate public defender.

The Tennessean reported the news

Ash reelected presiding judge of the Court of the Judiciary

Circuit Court Judge Don Ash of Murfreesboro has been elected to a second term as presiding judge of the Tennessee Court of the Judiciary -- the 15-member panel that receives complaints against judges and imposes sanctions for violations of the Code of Judicial Conduct. Ash has been a member of the court since 2003 when he was appointed by the Tennessee Supreme Court.

Read the court's news release

TJC elects new officers

The Board of Directors of the Tennessee Justice Center has elected new officers for 2008-2009. They are: Chair David R. Esquivel, member with Bass Berry & Sims PLC, Nashville; Vice-Chair Cynthia R. Wyrick, shareholder with Ogle, Gass & Richardson PC, Sevierville; and Treasurer Vic Alexander, chief manager of Kraft CPAs PLLC, Nashville.

Open records office adopts revised fee schedule

The state Office of Open Records has heeded suggestions from local government officials and residents to revise its fee schedule for copying public records. After holding a public hearing in which many complained that the original schedule was too complicated, the office announced a new simplified schedule. The fee schedule is required by legislation passed last session that updates the state's open records law.

The News Sentinel has details

Scott justice center to open Thursday

Scott County will officially open its new $9.2 million justice center in Huntsville tomorrow. The larger and more modern facility will relieve severe overcrowding in the county's current jail, which was condemned in 2005 by the state fire marshal.