TBA Today

Tuesday, September 30, 2008

Search our Database for Opinions and News Items

Counseling small companies in a troubled economy

If you work with small to mid-sized companies, an upcoming CLE from the TBA's TennBarU and Young Lawyers Division may be for you. There is still time to register for this Oct. 3 program, which will focus on the current economy and how you can guide your business clients through a healthy birth, life or death of a company. The course is also a great value for TBA members, who can use the three prepaid CLE credits that come with their TBA Complete Membership to take the course for free.

Register now or find out more about this program

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
09 - TN Court of Appeals
07 - 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.

ALLIED BUSINESS BROKERS, INC. v. ABED AMRO, ET AL.

Court: TCA

Attorneys:

Aaron L. Thomas, Memphis, Tennessee, for the appellants, Abed Amro and Nida Amro.

J. D. Barton, Millington, Tennessee, for the appellee, Allied Business Brokers, Inc.

Judge: FARMER

This is the second appearance of the dispute between these parties in this Court. This lawsuit has its genesis in a 1995 general sessions court action wherein Plaintiff/Appellee Allied Business Brokers, Inc. ("Allied") sought damages for breach of contract. The facts and procedural history of the breach of contract action are recited in Allied Business Brokers, Inc. v. Abraham Musa, et al., No. W1999-00378-COA-R3-CV, 2000 WL 33191373 (Tenn. Ct. App. Nov. 22, 2000) (perm. app. denied May 14, 2001), and we find it unnecessary to repeat them here. In Allied Business, we held Defendant Abed Amro (Mr. Amro) was bound by the terms of a brokerage contract that he had signed on behalf of his friend, Defendant Abraham Musa. We remanded the matter to the trial court for entry of a judgment in favor of Allied. Id. at *4. In the meantime, in 1997 Mr. Amro conveyed certain real property to his wife, Nida Amro (Ms. Amro).

http://www.tba2.org/tba_files/TCA/2008/alliedbusiness_093008.pdf

CHRISTINA R. BRITT, ET AL. v. MAURY COUNTY BOARD OF EDUCATION, ET AL.

Court: TCA

Attorneys:

Rocky McElhaney; Aubrey Givens, Nashville, Tennessee, for the appellants, Christina Britt, by next friend and mother, Caroline J. Dale, and Caroline J. Dale, individually.

James P. Catalano, Catherine E. Cunningham, Nashville, Tennessee, for the appellees, Maury County Board of Education and Maury County, Tennessee.

Judge: COTTRELL

The trial court granted the Board of Education's Motion for Summary Judgment dismissing a cheerleader's two claims for personal injury under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. section 29-20-101 et seq. We affirm the judgment as to the claim that the Board negligently hired the sponsor of the cheerleading squad. Finding, however, that a genuine dispute of material fact exists as to the cheerleading squad sponsor's negligence, we reverse that portion of the judgment.

http://www.tba2.org/tba_files/TCA/2008/brittc_093008.pdf

WILLIAM BURSE and wife, JUNE BURSE v. FRANK W. HICKS, III, ET AL.

Court: TCA

Attorneys:

Andrew H. Owens, Memphis, TN, for the Appellants.

Bradford D. Box, Jackson, TN, for the Appellees.

Spencer R. Barnes, Jackson, TN, for the Appellees.

Judge: STAFFORD

This is a negligence action. Burse filed a complaint against Appellant alleging that Appellant had negligently injured him in an automobile accident. Appellant answered the complaint, in part, by alleging that the accident was caused by the negligence of Appellee. At the time of the accident, Appellee and Burse were standing next to each other while preparing for a Christmas parade. Appellee moved for summary judgment alleging that he owed no duty to Burse and that he was not the cause of the accident. The trial court granted Appellee's motion for summary judgment, and this appeal followed. We affirm the trial court's decision to grant summary judgment.

http://www.tba2.org/tba_files/TCA/2008/bursew_093008.pdf

STATE OF TENNESSEE EX REL CLAUDE CAIN, ET AL. v. CITY OF CHURCH HILL, TENNESSEE

Court: TCA

Attorneys:

K. Erickson Herrin, Johnson City, Tennessee, for the appellant, City of Church Hill, Tennessee.

Phillip L. Boyd, Rogersville, Tennessee, for the appellees, Claude Cain, Sandra Cain, Robert Fraley, Mary Fraley, Carl Bruner, Ollie Bruner, and A. J. Metler Trucking Company.

Judge: SUSANO

The State of Tennessee, proceeding on relation of six individuals and one entity (who, for ease of reference, will collectively be referred to as "the plaintiffs"), sought mandamus in 2002 to force the City of Church Hill ("the City") to extend a sewer line to the individuals' homes. The individuals are residents of a neighborhood in Hawkins County that was annexed by the City in 1988. They claim that the City failed to adhere to the plan of services adopted as part of the annexation process, and that the plaintiffs are therefore entitled to mandamus under Tenn. Code Ann. section 6-51-108 (2005). The plan of services adopted in 1988 states that "[a] sanitary sewer system will be provided as soon as economically feasible." The trial court granted the plaintiffs summary judgment, finding that the long delay in installing a sewer system, which continued at the time of trial, was unreasonable, and that there were no disputed issues of material fact preventing the court from granting mandamus under section 6-51-108. However, the court ordered a trial on the issue of how quickly the City could reasonably install the sewer line. At the conclusion of this limited-purpose trial, the court ordered the City to extend sewer service to the plaintiffs within 16 months. The City appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/cainc_093008.pdf

CYNTHIA DAWN JOHNSTON CLURE v. TREVIS DREW CLURE

Court: TCA

Attorneys:

James S. Smith, Jr., Rockwood, Tennessee, for the Appellant, Cynthia Dawn Johnston Clure.

R. D. Hash, Maryville, Tennessee, for the Appellee, Trevis Drew Clure.

Judge: LEE

In this divorce case, the sole issue raised on appeal is whether the trial court made a mathematical error in the final divorce decree dividing the property, resulting in an overpayment to the husband. After carefully reviewing and considering the trial court's divorce decree and its memorandum of findings of fact and conclusions of law, we remand to the trial court to clarify whether its intention in the final decree was to award, in its division of the equity in the marital estate, the Husband $38,000 more than the Wife instead of $19,000 more, or whether the trial court modified its findings and conclusions in its final divorce decree to correctly reflect its intention that Husband receive $38,000 more. In the event that the trial court finds it appropriate to amend its final judgment to correct the alleged mathematical error, the trial court's judgment is affirmed as modified. If the trial court determines that the divorce decree correctly effectuates its judgment that Husband should receive $38,000 more of the equity in the marital residence, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2008/cluret_093008.pdf

DENNIS B. GANN, ET AL. v. THE CITY OF CHATTANOOGA, ET AL.

Court: TCA

Attorneys:

John R. Anderson, Harry R. Cash, Robert S. Grot, and Catharine H. Giannasi, Chattanooga, Tennessee, for the appellants, Dennis B. Gann, Glenda Jean Gann, Clinton S. Ingram, Jr., and Berthell Ingram.

Phillip A. Noblett and Crystal R. Freiberg, Special Counsel, Office of the City Attorney, Chattanooga, Tennessee, for the appellees, the City of Chattanooga and the Chattanooga City Council.

W. Scott Parrish and Neil A. Brunetz, Chattanooga, Tennessee for the appellee, Wilwat Properties, Inc.

Judge: SUSANO

The plaintiffs, Chattanooga residents whose homes are adjacent to a tract of land that was rezoned to make way for the construction of a grocery store, sought a declaratory judgment that the zoning amendment was illegal. The City of Chattanooga, the Chattanooga City Council, and the developer, Wilwat Properties, Inc., were named as defendants. Plaintiffs argue that the rezoning did not comply with the Hixson-North River Land Use Plan; that the City Council's approval of the application is arbitrarily inconsistent with the council's prior denial of a similar application; and that the council impermissibly relied upon the recommendation of the Hixson North River Leadership Committee - a recommendation that was made at an informal meeting of which the plaintiffs claim to have had no notice. The trial court dismissed the case at the close of the plaintiffs' proof, finding that the plaintiffs had failed to prove that the zoning decision lacked a rational basis or was arbitrary, capricious or unconstitutional. Plaintiffs appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2008/gannd_093008.pdf

LISA DAWN HAINES HUDDLESTON v. LEE ALAN HAINES

Court: TCA

Attorneys:

James H. Snyder, Jr., Alcoa, Tennessee, for appellant.

Geri D. Spindel, Knoxville, Tennessee, for appellee.

Judge: FRANKS

In this custody dispute between parents, the Trial Judge awarded the mother attorney's fees against the father. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2008/huddlestonl_093008.pdf

IN RE ESTATE OF LAURA MAE ELDRIDGE McGLOTHIN

Court: TCA

Attorneys:

Browder G. Williams, Kingston, Tennessee, for the appellant, Estate of Laura Mae Eldridge McGlothin.

Gerald Largen, Kingston, Tennessee, for the appellee, Jonathan McGlothin.

Greg Leffew, Rockwood, Tennessee, for the appellees, Donald R. Collett and Anna F. Collett.

Judge: SUSANO

Laura Mae Eldridge McGlothin ("the Decedent") was the paternal grandmother and later the adoptive mother of Jonathan McGlothin ("Son"). Because of the inability of the Decedent and Son to get along, the Decedent sent Son to live with Donald Collett and his wife, Anna Collett. When Son was sent to live with them, he was receiving social security benefits as a result of the death of his adoptive father. After the Decedent died, Son and the Colletts filed separate claims against the Decedent's estate claiming that the Decedent improperly retained Son's social security benefits, which federal law required the Decedent to use for the care and maintenance of Son. Following a trial, the court awarded the Colletts a judgment in the amount of $5,862, and Son a judgment in the amount of $10,238. The estate appeals, raising various issues. We modify so much of the judgment as pertains to the award to Son. As modified, the judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2008/mcglothinl_093008.pdf

ALAN C. ODOM v. JANIS B. ODOM

Court: TCA

Attorneys:

Lauren G. Strange-Boston, Knoxville, Tennessee, for the Appellant, Alan C. Odom.

John P. Konvalinka and Jillyn M. Pullara, Chattanooga, Tennessee, for the Appellee, Janis B. Odom.

Judge: SWINEY

In 2005, Alan C. Odom ("Husband") filed suit for divorce from Janis B. Odom ("Wife"). The parties married in 1970 and have two adult sons. Husband is a successful orthopedic surgeon in Chattanooga, Tennessee. With the assistance of the parties'sons, the parties were able to resolve several issues before trial, including how to distribute some but not all of the marital assets. Following a trial, the Trial Court distributed the remaining marital property in a manner which resulted in each party being awarded exactly one-half of the total marital assets. The amount awarded to each party totaled almost three million dollars. Each party raises several issues on appeal surrounding the property distribution and payment of various expenses. We modify the judgment of the Trial Court and affirm that judgment as so modified.

http://www.tba2.org/tba_files/TCA/2008/odoma_093008.pdf

STATE OF TENNESSEE v. JEROME DAVID BAILEY, ALIAS

Court: TCCA

Attorneys:

Leslie M. Jeffress, Knoxville, Tennessee for the appellant, Jerome David Bailey.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

This is an appeal of the manner of service of the sentence imposed by the Knox County Criminal Court. The Defendant-Appellant, Jerome David Bailey ("Bailey"), pled guilty to two counts of aggravated assault, a Class C felony. As a Range I, standard offender, Bailey agreed upon a five- year term of imprisonment for each aggravated assault conviction, to be served consecutively, for an effective sentence of ten years at thirty percent in the Department of Correction. The manner of service, however, was left to be determined by the trial court. Following a sentencing hearing, the trial court ordered Bailey to serve his sentence in confinement. Bailey appeals the trial court's denial of alternative sentencing and contends that he should have received full probation or a split sentence of confinement and probation. We affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2008/baileyj_093008.pdf

STATE OF TENNESSEE v. DENNIS EDDINS

Court: TCCA

Attorneys:

Karla D. Ogle, Fayetteville, Tennessee, for the appellant, Dennis Eddins.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles F. Crawford, District Attorney General; Hollyn Hewgley and Melissa Thomas, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

A Lincoln County jury convicted the defendant, Dennis Eddins, of one count of extortion and one count of harassment. The trial court merged the convictions and sentenced the defendant to two years in the Department of Correction as a Range I, standard offender. On appeal, the defendant argues that the evidence was insufficient to sustain his extortion conviction and that the trial court erred by failing to investigate or otherwise remedy the defendant's allegation of juror misconduct. The state contends that because the order denying the defendant's motion for new trial does not appear in the record, this appeal should be dismissed for lack of jurisdiction. After reviewing the record, we conclude that we are without jurisdiction to consider this appeal. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2008/eddinsd_093008.pdf

SHARON R. HURT v. REUBEN HODGE, WARDEN

Court: TCCA

Attorneys:

Sharon R. Hurt, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter, Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General; attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Sharon R. Hurt, appeals as of right the Davidson County Criminal Court's summary dismissal of her petition for a writ of habeas corpus. The petitioner seeks relief from her sentences of life imprisonment plus twenty-four years resulting from her convictions in Davidson County for first degree murder and conspiracy to commit first degree murder. The petitioner alleges that her convictions are void because she was sentenced in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The habeas corpus court summarily dismissed the petition. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2008/hurts_093008.pdf

MICHAEL LEE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mark M. Mizell, Franklin, Tennessee, for the appellant, Michael Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Michael Lee, appeals the denial of his petition for post-conviction relief by the Circuit Court for Williamson County from his convictions for aggravated burglary and theft of property valued over $1000 for which he was sentenced to fifteen years and twelve years, respectively, to be served consecutively for a total of twenty-seven years. The petitioner claims the trial court erred in concluding he was provided the effective assistance of counsel. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/leem_093008.pdf

MARCO PENA MEDINA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeremy W. Parnham, Nashville, Tennessee, for the appellant, Marco Pena Medina.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy H. Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In March 2007 the petitioner, Marco Pena Medina, pled guilty to one count of conspiracy to sell more than three hundred grams of a Schedule II controlled substance, a Class A felony. The trial court sentenced the petitioner to a term of twenty years in the Department of Correction as a Range I, standard offender. The petitioner subsequently filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that his guilty plea was not entered voluntarily and knowingly. After a hearing, the post-conviction court denied the petition, and the petitioner appealed. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/medinam_093008.pdf

JONATHAN KEITH PRICE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brian O. Bowhan, Antioch, Tennessee, for the appellant, Jonathan Keith Price.

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

Judge: WITT

The defendant, Jonathan Keith Price, pleaded guilty in the Rutherford County Circuit Court to aggravated burglary, see T.C.A. section 39-14-403 (2003), solicitation of a minor, see id. section 39-13-528, and two counts of statutory rape, see id. section 39-13-506. The trial court sentenced the defendant to an effective sentence of six years, as agreed by the parties, and following a hearing to determine the manner of service, the trial court placed the defendant on probation. The defendant then moved the court for leave to withdraw his guilty pleas, and the defendant now appeals from the trial court's denial of that motion. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/pricej_093008.pdf

STATE OF TENNESSEE v. CHARLES T. ROGERS

Court: TCCA

Attorneys:

Leif Jeffers, Oneida, Tennessee (on appeal) and James S. Smith, Jr., Rockwood, Tennessee (at trial) for the appellant, Charles T. Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William Paul Phillips, District Attorney General; and John W. Galloway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

This is an appeal of the sentence imposed by the trial court. Defendant-Appellant, Charles T. Rogers ("Rogers"), pled guilty to: (1) possession of methamphetamine, a Class B felony; (2) possession of marijuana, a Class E felony; (3) possession of a Schedule II drug, a Class C felony; (4) possession of a Schedule III drug, a Class D felony; (5) the sale of methamphetamine, a Class B felony; (6) theft of property over $1000, a Class C felony; (7) felonious possession of explosives, a Class B felony; and (8) the promotion or manufacture of methamphetamine, a Class D felony. He agreed upon terms of imprisonment of nine, two, six, four, eight, four, eight, and four years, respectively. All sentences were to be served concurrently for an effective sentence of nine years as a Range I, standard offender. The manner of service, however, was to be determined by the trial court. The trial court accepted the terms of the plea agreement but after the sentencing hearing ordered Rogers to serve the sentence in confinement. The sole issue presented on appeal is whether the trial court erred in denying probation or any other form of alternative sentencing. For the reasons that follow, we affirm the judgment and sentence of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/rogersc_093008.pdf

TODAY'S NEWS

Legal News
Disciplinary Actions
Upcoming
TBA Member Services

Legal News

Lee to be sworn in Thursday

Newly appointed Supreme Court Justice Sharon G. Lee will be sworn into office by Gov. Phil Bredesen at 2:30 p.m. Thursday, Oct. 2. The ceremony will be held in the old Supreme Court Chambers on the first floor of the state Capitol building in Nashville. A formal investiture will be held at a later date in Knoxville, reports the Administrative Office of the Courts.

Ford given 14 more years

Barring a successful appeal, former state senator John Ford will pay a $600 fine, serve an additional 14 years in prison, and face three years of post-prison supervised release in a sentence handed down yesterday. The sentence comes in addition to the 51/2 years he is serving on a separate bribery conviction in Memphis. Assistant Federal Public Defender Isaiah S. Gant said the latest sentence is too harsh and that he plans to appeal.

The Commercial Appeal reports

Status of Anderson County juvenile court in doubt

Anderson County commissioners are deadlocked over proposed locations for the county's juvenile court system having rejected proposals to move the court to larger space within the courthouse, build a justice center or renovate the administrative building. Two commissioners on opposing sides now will sit down Monday to try and work out a compromise.

The Oak Ridger has details

McGannon receives public service award

The International Municipal Lawyers Association (IMLA) recently honored Murfreesboro City Attorney Susan Emery McGannon by giving her the Joseph I. Mulligan Distinguished Public Service Award for 2008. The award is given to honor a local government attorney for "significant and surpassing achievements in the field of local government law."

Trial consultants use Internet for jury research

The Los Angeles Times reports that the Internet is transforming the way trial consultants and other jury experts do their jobs. Through the use of MySpace, Facebook, blogs and other online resources, jury experts can discover how a prospective juror thinks, votes and spends money. One expert goes so far as to say that, "Anyone who doesn't make use of [Internet searches] is bordering on malpractice."