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Thursday, September 18, 2008

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Campaign underway to honor Barker for service

Attorneys from across Tennessee are working together to honor retired Supreme Court Justice William R. "Mickey" Barker with a portrait that would be hung in the Supreme Court's courtroom in Nashville. Chattanooga attorney Charles Gearhiser is leading the fund-raising campaign to honor Barker for his many years of dedicated service as a trial judge, intermediate appellate judge and finally as a Supreme Court Justice. Download a letter from the Campaign Committee or make your donation to: Tennessee Judicial Conference Foundation, c/o Suzanne Keith, 1903 Division Street, Nashville, Tennessee 37203.

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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
00 - 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.

MICHAEL DWAYNE EDWARDS v. STATE OF TENNESSEE, WAYNE BRANDON, Warden
With Dissenting Opinion

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and Leslie E. Price, Assistant Attorney General, for the Appellant, State of Tennessee, Wayne Brandon, Warden.

Dana Dye, Centerville, Tennessee, for the Appellee, Michael Dwayne Edwards.

Judge: BARKER

We granted the State's application for permission to appeal to consider whether the Court of Criminal Appeals erred in remanding this habeas corpus case to the trial court for a hearing on Michael Dwayne Edward's claim that his sentence is illegal. After careful consideration we conclude that, even assuming the trial court erroneously classified Edwards as a persistent offender for sentencing, this non-jurisdictional error renders the judgment voidable, not void, and does not entitle Edwards to habeas corpus relief. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court dismissing the habeas corpus petition.

http://www.tba2.org/tba_files/TSC/2008/edwardsm_091808.pdf

WADE dissenting
http://www.tba2.org/tba_files/TSC/2008/edwardsm_DIS_091808.pdf

DENISE R. CARDELLA v. VINCENT R. CARDELLA, JR.

Court: TCA

Attorneys:

Stephen W. Pate, Murfreesboro, TN, for Appellee.

Phillip M. George, Smyrna, TN for Appellant.

Judge: STAFFORD

This is a divorce and tort action. Wife filed a complaint for divorce against husband, alleging, as grounds, inappropriate marital conduct, adultery, and irreconcilable differences. Husband counter- claimed for an absolute divorce. In her amended complaint, Wife also claimed that Husband had negligently infected her with a sexually transmitted disease, and sought monetary damages. A full trial on the merits was held. The trial court awarded the divorce to Wife on the stipulated ground of adultery, approved the stipulated division of personal property and debts, named wife as primary residential parent, set shared parenting time, and awarded attorney fees and costs. In addition, the trial court granted alimony in solido and alimony in futuro to Wife and awarded her damages in the amount of $288,000.00 for the negligence claim. Husband appeals, asserting that the trial court erred in finding him liable for negligently transmitting a sexually transmitted disease to the wife and in awarding $288,000.00 to wife for the negligence. Husband also appeals the propriety of the trial court's awards of alimony in solido and alimony in futuro. We reverse the trial court's award of alimony in futuro. We affirm the trial court on all other issues.

http://www.tba2.org/tba_files/TCA/2008/cardellad_091808.pdf

J. DOE v. RICHARD L. DUNCAN, ET AL.

Court: TCA

Attorneys:

Dr. Cynthia Holmes, Sullivans Isd., South Carolina, Pro Se.

Stephen C. Daves, for the appellees, Richard L. Duncan, Meridith Bond, Sidney Gilreath and Gilreath & Associates.

Judge: COTTRELL

Since plaintiff in this legal malpractice case failed to refute defendants' affidavits that they were familiar with and complied with the applicable standard of care and that plaintiff was not injured by any violation of the standard, the trial court correctly granted defendants' motion for summary judgment. The trial court did not abuse its discretion in failing to revise its order based on affidavits filed after the final order since plaintiff gave no explanation why the affidavits should be considered and since the affidavits did not create a genuine issue of material fact as to whether the defendants committed legal malpractice or injured plaintiff.

http://www.tba2.org/tba_files/TCA/2008/doej_091808.pdf

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. MARGARET HUDSON

Court: TCA

Attorneys:

Joseph Howell Johnston and Marbut Glenn Gaston Jr., Nashville, Tennessee, for the appellant, Margaret Hudson.

Sue B. Cain, Director of Law, Lora Barkenbaus Fox, and Paul Jefferson Campbell II, Nashville, Tennessee, for the appellee Metropolitan Government of Nashville and Davidson County.

Judge: KIRBY

This is an appeal from an award of discretionary costs. The defendant owned a rental house in an historic district. She violated the historic district's design guidelines by having vinyl siding installed on the house. The plaintiff filed a lawsuit to require the homeowner to remove the siding. The plaintiff was granted summary judgment, from which the defendant homeowner appealed. In the first appeal of this case, the grant of summary judgment was affirmed. After remand, the defendant homeowner failed to remove the siding, so the plaintiff filed a petition for contempt. After a hearing, the trial court found that the homeowner had the financial resources to have the siding removed, so it ordered the homeowner to (1) retain a contractor and (2) remove the siding. The homeowner was required to notify the court upon completion of both steps. The siding was removed. Once the house was brought into compliance, the plaintiff filed a proposed "order closing the file." The trial court granted the motion. Within thirty days after entry of this order, the plaintiff filed a motion for an award of its discretionary costs. The homeowner opposed the motion, arguing that the plaintiff's motion for discretionary costs was untimely, and that the order requiring compliance was the final order, not the "order closing the file." The trial court awarded the plaintiff its discretionary costs, and the homeowner appealed. We affirm, finding that the motion for discretionary costs was timely filed.

http://www.tba2.org/tba_files/TCA/2008/hudsonm_091808.pdf

IN RE K.E.D.M. a/k/a/ K.E.D.S
CORRECTION

Court: TCA

Attorneys:

Gerald T. Eidson, Rogersville, Tennessee, for the Appellant, A.E.S.

Robert E. Cooper, Jr., Attorney General and Reporter; Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: LEE

The issue presented in this parental termination case is whether it was shown by clear and convincing evidence that termination was in the best interest of the child. After careful review, we hold that the evidence preponderates against the trial court's finding that there was clear and convincing evidence that termination was in the best interest of the child. Accordingly, we reverse the judgment of the trial court and dismiss the petition to terminate.

http://www.tba2.org/tba_files/TCA/2008/kedm_CORR_091808.pdf

RODE OIL COMPANY, INC. AND LONG OUTDOOR ADVERTISING v. LAMAR ADVERTISING COMPANY (FORMERLY OUTDOOR COMMUNICATION, INC.)

Court: TCA

Attorneys:

David Hardee and Magan N. White, Jackson, Tennessee, for the appellant, Lamar Advertising Company (formerly Outdoor Communication, Inc.).

Larry A. Butler, Jackson, Tennessee, for the appellee, Long Outdoor Advertising.

Judge: KURTZ

At its core, this appeal presents a dispute over whether two parties had entered into an enforceable agreement for the lease of land to be used for the placement of a roadside billboard. The trial court held that there existed only an offer from the property owner which was revocable and that therefore the property owner could freely lease the same property to a third party. During the pendency of this litigation in the trial court, which took many years, a series of corporate asset transfers and acquisitions occurred -- the result of which raises the question of whether the same party is in fact now on both sides of this suit. The court below held that a live controversy still exists, and it subsequently proceeded to set damages. For the reasons stated herein, we conclude that the trial court erred in its initial decision regarding the existence of a binding lease agreement. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2008/rodeoil_091808.pdf

REGINOL L. WATERS v. TENNESSEE DEPARTMENT OF CORRECTION, GEORGE LITTLE, ROLAND COLSON, AND ERIC HARDISON, IN THEIR OFFICIAL CAPACITIES, AND GLEN TURNER, PATSY CLARK, SANDRA GATES, AND NINA MOSS

Court: TCA

Attorneys:

Reginol L. Waters, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua D. Baker, Assistant Attorney General, for the appellees, Tennessee Department of Correction, George M. Little, Roland Colson, and Eric Hardison, in their official capacities.

James I. Pentecost and Jon A. York, Jackson, Tennessee, for the appellees, Glen Turner, Patsy Clark, Sandra Gates, and Nina Moss.

Judge: KIRBY

This is an appeal from the dismissal of a petition for common-law writ of certiorari. The appellant is an inmate with the Tennessee Department of Correction ("TDOC"). He was convicted by the prison disciplinary board of a disciplinary charge. He filed a grievance related to his disciplinary charge which was denied by the prison's grievance committee, and the denial was approved by TDOC. The inmate filed a petition for a writ of certiorari as to (1) his conviction on the disciplinary charge and (2) the denial of his grievance. TDOC filed a motion to dismiss the petition as it related to the decision of grievance committee, but consented to a grant of the writ and the filing of the administrative record of the proceedings on the disciplinary charge. The record on the disciplinary charge was transmitted to the trial court. Later, TDOC filed a motion for a judgment on the record with respect to the disciplinary board decision. The trial court entered an order dismissing the petition as it related to the grievance committee decision. The order did not adjudicate TDOC's motion for a judgment on the record as to the disciplinary board decision. Consequently, because the trial court did not adjudicate all of the claims raised below, the order on appeal is not final and is not appealable as of right. Therefore, finding that we lack subject matter jurisdiction, we dismiss the appeal.

http://www.tba2.org/tba_files/TCA/2008/watersr_091808.pdf

TODAY'S NEWS

Politics
Legal News
Upcoming
TBA Member Services

Politics

Barnes selected as party's Senate nominee

Last night Democratic executive committee members in Montgomery, Cheatham and Houston counties voted 61-4 to nominate Clarksville attorney Tim Barnes as the party's candidate in the race for state Senate District 22. Incumbent state Sen. Rosalind Kurita, who was stripped of her primary win, said today she has not decided whether to pursue a legal challenge.

Read about the vote in the Leaf Chronicle

Legal News

Knox judicial candidates meet with commission

Eight candidates vying for a spot on the Knox County General Sessions Court appeared before commissioners today to talk about their qualifications and answer questions. The applicants include Vice Mayor Mark Brown; Mary Evars-Goan with Slovis, Rutherford & Weinstein; Del Holley and Patricia Hall Long, both assistant district attorneys general; attorney Glenna Overton; John Owings, former Knox County law director; attorney Randall Reagan; and former county Republican Party Chairman Chad Tindell. They are seeking to fill the remaining two-year term of Bobby McGee, who was elected to the Knox County Criminal Court last month.

The News Sentinel reports

Hamilton magistrates face annual review

Hamilton County's four judicial commissioners, hired last year to handle tasks such as setting bonds and signing arrest warrants, must reapply and interview again for their jobs. In reforms enacted last year, magistrates' terms were reduced to one year. The current contracts expire Oct. 31 and commissioners tentatively have agreed to interview on Oct. 1.

The Times Free Press has more

Fact finding hearing commences for House

U.S. District Judge Harry S. Mattice ordered a fact-finding session today in Chattanooga to determine whether the state should re-try Paul Gregory House. Attorneys working to avoid a retrial subpoenaed state Criminal Court Judge Shayne Sexton of Jacksboro and two prosecutors in Huntsville to testify at the hearing.

Read about the proceeding in the News Sentinel

Baker wins lifetime achievement award

Former Tennessee senator and ambassador Howard H. Baker Jr. will be honored with American Lawyer magazine's 2008 Lifetime Achievement Award at a banquet in New York City on Oct. 29. The award recognizes Baker's contributions as a lawmaker, public servant and private practice attorney.