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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
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
10 - TN Court of Appeals
02 - TN Court of Criminal Appeals
05 - 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.

PENNY FOREMAN v. AUTOMATIC SYSTEMS, INC. ET AL.

Court: TWCA

Attorneys:

Richard C. Mangelsdorf, Jr., Nashville, Tennessee, for the appellants, Automatic Systems, Inc. and Liberty Mutual Insurance Company.

Stephen K. Heard and Adam O. Knight, Nashville, Tennessee, for the appellee, Penny Foreman.

Phillip P. Welty and Mary Taylor Gallagher, Nashville, Tennessee, for the intervenor/appellee CIGNA HealthCare.

Judge: CLARK

In this appeal, we determine the extent of Employee's disability as a result of her June 24, 2004, work-related back injury. Prior to this work-related injury, Employee had been treated intermittently for back problems since 1995. The trial court determined that the June 24 injury caused only a temporary aggravation of Employee's pre-existing condition and that this aggravation had resolved itself by September 7, 2004. On appeal, the Special Workers' Compensation Appeals Panel agreed that Employee sustained only a temporary aggravation of her pre-existing condition. However, a majority of the Appeals Panel determined that Employee's temporary aggravation had not reached maximum recovery until November 2, 2005, and thus, Employer should be responsible for Employee's disability benefits and medical expenses until that time. Upon review of the record, we hold that the record does not preponderate against the trial court's findings. Accordingly, we reverse the Appeals Panel and reinstate the trial court's judgment.

http://www.tba2.org/tba_files/TSC_WCP/2008/foremanp_123108.pdf


JULIE A. BELLAMY v. CRACKER BARREL OLD COUNTRY STORE, INC. and PAUL LUDOVISSIE

Court: TCA

Attorneys:

Douglas B. Janney, III, Nashville, TN, for Appellant.

Robert W. Horton, Leslie Goff Sanders, Nashville, TN, for Appellees.

Judge: HIGHERS

In this appeal, we are asked to determine whether the trial judge erred by failing to exercise his role as thirteenth juror in denying Appellant's motion for a new trial. In support of her argument, Appellant urges this Court to consider comments the trial judge made in ruling on Appellees' motions for a directed verdict; the Statement of the Evidence, Response, Reply, and Surreply; and Appellees' proposed order, in which the trial judge struck certain language. Appellees, however, contend that this material is either not properly reviewable by this Court or does not bear on the issue of whether the thirteenth juror standard was met. We reverse and remand for a new trial.

http://www.tba2.org/tba_files/TCA/2008/bellamyj_123108.pdf


GREGG BOLES v. TIMOTHY MOORE and MOORE FAMILY MEDICINE, PLLC

Court: TCA

Attorneys:

Tony L. Maples, Murfreesboro, Tennessee, for the Defendant/Appellant Timothy Moore and Moore Family Medicine, PLLC.

C. Tracey Parks, Lebanon, Tennessee, and Larry K. Tolbert, Murfreesboro, Tennessee, for the Plaintiff/Appellee Gregg Boles.

Judge: KIRBY

This is a construction case. The plaintiff filed an action in general sessions court to collect money that he alleged that the defendants owed him under a construction contract. The general sessions court entered a judgment in the plaintiff's favor, and the defendants appealed to the circuit court. The circuit court also entered a judgment in favor of the plaintiff. After the circuit court denied the defendants' motion for a new trial, the defendants appealed. We affirm, finding that the evidence does not preponderate against the trial court's findings.

http://www.tba2.org/tba_files/TCA/2008/bolesg_123108.pdf


CHARLES EDWARD CARPENTER, SR. v. MARY ALICE BOBO CARPENTER

Court: TCA

Attorneys:

Robert L. J. Spence, Jr., Memphis, Tennessee, for the appellant, Charles Edward Carpenter, Sr.

Daniel Loyd Taylor and John N. Bean, Memphis, Tennessee, for the appellee, Mary Alice Bobo Carpenter.

Judge: KIRBY

This is a divorce case. The parties had a long-term marriage and enjoyed a high standard of living. The parties then filed for divorce. At the conclusion of the trial, the trial court adopted the wife's proposal for the distribution of marital property and ordered the husband to pay the wife substantial alimony in futuro and attorney's fees. The husband now challenges the distribution of marital property as well as the award of alimony and attorney's fees. Regarding the distribution of the marital estate, the husband argues that the trial court overvalued his law practice, undervalued the wife's counseling business, and failed to give the husband credit for several tax liabilities that he assumed. He further argues that the trial court awarded the wife an excessive amount of alimony and attorney's fees. We affirm in part as modified, determining that the facts as found by the trial court were supported by a preponderance of the evidence, and that the trial court did not abuse its discretion in the distribution of marital property and award of alimony. We reverse the award of attorney's fees.

http://www.tba2.org/tba_files/TCA/2008/carpenterc_123108.pdf


TAREQ DAJANI v. NEW SOUTH FEDERAL SAVINGS BANK
CORRECTION: on page one, attorney Salvador M. Hernandez is added as counsel for appellee


Court: TCA

Attorneys:

W.H. (Steve) Stephenson, II, Nashville, Tennessee, for the appellant, Tareq Dajani.

John R. Jacobson and Salvador M. Hernandez, Nashville, Tennessee, for the appellee, New South Federal Savings Bank.

Judge: BENNETT

Consumer sued mortgagee-bank asserting a claim of negligence for mistakenly reporting to credit reporting agencies that his mortgage was in foreclosure. The trial court denied customer's second motion to amend his complaint based on futility and granted summary judgment in favor of bank. We affirm.

http://www.tba2.org/tba_files/TCA/2008/dajanit_Corr_123108.pdf


IN THE MATTER OF DERRICK B.

Court: TCA

Attorneys:

William J. Butler, Lafayette, Tennessee, for the appellants, Ethel B. and David B.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Preston Shipp, Assistant Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

Judge: SUSANO

The trial court terminated the parental rights of Ethel B. ("Mother") and David B. ("Father") to their son, Derrick B. (the "Child"), who was 11 at the time of trial. The trial court found, by clear and convincing evidence, that several grounds for terminating Mother's and Father's parental rights existed and that termination is in the best interest of the Child. Mother and Father appeal, challenging the trial court's finding that clear and convincing evidence of grounds to terminate were established at trial. Mother and Father also challenge the trial court's finding that clear and convincing evidence was presented that termination of the parents' rights is in the Child's best interest. We affirm.

http://www.tba2.org/tba_files/TCA/2008/derrickb_123108.pdf


JILL MICHELLE FLOYD v. JOHN STEPHEN FLOYD

Court: TCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the Plaintiff/Appellant, Jill Michelle Floyd.

Melanie R. Bean, Lebanon, Tennessee, for the Defendant/Appellee, John Stephen Floyd.

Judge: KIRBY

This is a divorce case. The parties were married for nineteen years and had three children, one of whom was a minor at the time of the divorce. The husband is a pilot with an irregular work schedule. On the first day of trial, the parties announced that they had reached an agreement concerning distribution of the marital property. On the third day of trial, the wife filed a motion to alter or amend the order distributing the marital estate, alleging that she had been mistaken about the value of the parties' interest in a piece of real property when she agreed to the division of property. The trial court denied the wife's motion to alter or amend. After granting a divorce to both parties, the trial court designated the wife as the primary residential parent and ordered that the husband would have a certain number of days of residential parenting time each month, to be selected by the husband at his discretion due to his irregular work schedule. The trial court denied the wife's request for alimony, finding that she did not need alimony and that the husband could not afford to pay it. The trial court also denied the wife's request for attorney's fees. The wife appeals. We affirm, finding that permitting the husband to choose his residential parenting days was not an abuse of discretion under the circumstances, that the trial court did not err in denying the wife's request for alimony or attorney's fees, and that the trial court did not err in denying the wife's Rule 60.02 motion to amend the order on division of the marital estate.

http://www.tba2.org/tba_files/TCA/2008/floydj_123108.pdf


NHC HEALTHCARE, INC. v. BETTY FISHER AND AISHA FISHER, AS POWER OF ATTORNEY FOR BETTY FISHER

Court: TCA

Attorneys:

D. Nathanial Spencer, Brownsville, Tennessee, for the appellant, Aisha Fisher, as power of attorney for Betty Fisher.

John B. Curtis, Jr., and Bruce D. Gill, Chattanooga, Tennessee, for the appellee, NHC Healthcare, Inc.

Judge: KIRBY

This is an appeal of the trial court's confirmation of an arbitration award. The respondents are a mother and daughter. The daughter sought to facilitate her mother's admission to the petitioner nursing home. As part of the admission process, the daughter executed both an admission agreement and an arbitration agreement on behalf of the mother as the mother's power of attorney. The mother incurred over $50,000 in charges during her stay at the nursing home. The nursing home filed an arbitration action against the mother and her daughter, as power of attorney, seeking an award for the amount owed. Neither the mother nor the daughter appeared at the arbitration. The arbitrator awarded the nursing home the full amount claimed. Later, the nursing home filed a petition in the trial court to confirm the arbitration award. The trial court confirmed the award. The daughter now appeals the trial court's decision insofar as it held her individually liable for the amount due for her mother's nursing home debt. We affirm the trial court's confirmation of the arbitration award, but we also note that neither the final arbitration decision nor the trial court's order held the daughter liable in her individual capacity.

http://www.tba2.org/tba_files/TCA/2008/NHC_123108.pdf


PSALMS, INC. d/b/a KIRBY PINES ESTATES. v. WILLIAM PRETSCH

Court: TCA

Attorneys:

C.J. Barnett, Memphis, TN, for Appellant.

Paul C. Peel, Memphis, TN, for Appellant.

John S. Golwen, Memphis, TN, for Appellee.

Colleen D. Hitch, Memphis, TN, for Appellee.

Judge: STAFFORD

Appellant nursing home appeals the trial court's award of a portion of the damages it sought from Appellee, the son of one of its residents. The Appellee had previously signed a guaranty to cover expenses that his mother could not meet on her own. At the initial hearing, Appellant failed to meet its burden of proof concerning damages, and the trial court re-opened the proof on its own motion to allow Appellant more time to produce the missing evidence. Finding that the trial court abused its discretion in so doing, and that, in the absence of the new proof, Appellant failed to carry its burden, we reverse.

http://www.tba2.org/tba_files/TCA/2008/psalms_123108.pdf


IN RE ESTATE OF LUCILLE RAY HEIRS OF HOWARD RAY v. MAGDALENE LONG AND JOSHUA ("JOSH") TODD CREWS

Court: TCA

Attorneys:

Judy A. Oxford, Franklin, Tennessee, for the appellants, Heirs of Howard Ray.

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellees, Magdalene Long and Joshua Crews.

Judge: KIRBY

This is a will contest. The decedent had three children, two daughters who survived her and a son who predeceased her. Two months before the decedent's death, she executed a will that left all of her property to her daughters and some of their family members, but left nothing to any of the six children of the predeceased son. After the decedent's death, one of the daughters sought to probate the will. The deceased son's children filed this petition to contest the will, arguing that it was procured through undue influence. After a jury trial, the jury found that the will had not been procured through undue influence and was, therefore, valid. The son's children now appeal the jury verdict. We affirm, concluding that the evidence in the record supports the jury verdict.

http://www.tba2.org/tba_files/TCA/2008/rayl_123108.pdf


HENRY COUNTY, TENNESSEE, OPERATING THROUGH ITS ADULT ORIENTED ESTABLISHMENT BOARD v. CHARLES REDDEN, d/b/a "The Foxy Lady" and d/b/a "The Sugar Shack" and ROGER INMAN d/b/a "The Office"

Court: TCA

Attorneys:

A. Russell Larson, Jackson, TN, for Appellant Charles Redden d/b/a "The Foxy Lady" and d/b/a "The Sugar Shack."

Lee M. Greer, III, Paris, TN, for Appellee Henry County Operating Through Its Adult Oriented Establishment Board.

Judge: HIGHERS

In this appeal, we are asked to determine: (1) whether there existed sufficient evidence to support the circuit court's finding Appellant guilty of indirect criminal contempt; (2) whether the circuit court erred in finding Appellant "willfully attempt[ed] to circumvent the requirements of the Act and Injunction Order of the Court[;]" and (3) whether the circuit court erred in fining Appellant for fifty contemptuous acts when the exact number of such acts is uncertain. We affirm.

http://www.tba2.org/tba_files/TCA/2008/reddenc_123108.pdf


STATE OF TENNESSEE v. BOBBY JOE ROLLINS

Court: TCCA

Attorneys:

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Bobby Joe Rollins.

Robert E. Cooper, Jr., Attorney General and Reporter; Mary W. Francois, Assistant Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Defendant, Bobby Joe Rollins, was convicted of aggravated robbery. For this Class D felony, he was sentenced to twenty-eight years in the Department of Correction as a Range III, persistent offender. In this appeal, the Defendant argues that the evidence presented at trial is insufficient to support his conviction and that his sentence is excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/rollinsb_123108.pdf


TYRICE L. SAWYERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Tyrice L. Sawyers, Atlanta, Georgia, Pro Se.

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

Judge: MCMULLEN

The petitioner, Tyrice L. Sawyers, appeals from the Criminal Court for Davidson County's summary dismissal of his petition for post-conviction relief. Although he filed his petition more than fifteen years after his judgments became final, he argues that due process violations require that the statute of limitations be tolled. Upon review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/sawyerst_123108.pdf


Retention of Audio Recordings and Stenographic Notes of a Criminal Proceeding

TN Attorney General Opinions

Date: 2008-12-31

Opinion Number: 08-190

http://www.tba2.org/tba_files/AG/2008/ag_08_190.pdf

Constitutionality of 1978 Tenn. Priv. Acts Ch. 322

TN Attorney General Opinions

Date: 2008-12-31

Opinion Number: 08-191

http://www.tba2.org/tba_files/AG/2008/ag_08_191.pdf

State Contracts

TN Attorney General Opinions

Date: 2008-12-31

Opinion Number: 08-192

http://www.tba2.org/tba_files/AG/2008/ag_08_192.pdf

Maintenance of Effort: State Grants for Libraries and Emergency Communications Boards

TN Attorney General Opinions

Date: 2008-12-31

Opinion Number: 08-193

http://www.tba2.org/tba_files/AG/2008/ag_08_193.pdf

Constitutionality of Amendments to BEP's 'Maintenance of Effort' Provisions

TN Attorney General Opinions

Date: 2008-12-31

Opinion Number: 08-194

http://www.tba2.org/tba_files/AG/2008/ag_08_194.pdf

TODAY'S NEWS

Legal News
Passages
TBA Member Services

Legal News
TBA closes for holiday
The Tennessee Bar Association will be closed tomorrow, Jan. 1, for New Year's Day. The office will reopen at 8 a.m. on Friday, Jan. 2. TBA Today will resume publication on Friday as well.

Courts closed tomorrow
All federal and state courts and state government offices will be closed tomorrow, Jan. 1. State courts and government offices will reopen on Friday, Jan. 2. Federal district and bankruptcy courts in the Eastern District of Tennessee will be open Friday, as will the district court in the Western District. The district and bankruptcy courts in the Middle District and the bankruptcy court in the Western District will be closed on Friday.

Madison lawyer files for Davidson Co. circuit seat
Madison lawyer Philip E. Smith is the first applicant to file for the 20th Judicial District Circuit Court seat vacated by retiring Judge Muriel Robinson. The deadline to submit applications is Jan. 13.
Learn more on the AOC web site
First lawsuit filed in TVA spill
Four Roane County landowners filed the first lawsuit Tuesday against the Tennessee Valley Authority in the wake of the Dec. 22 coal ash spill, with environmental activists promising at least two more suits in federal court. The local suit seeks $165 million in damages on grounds of lost income and property values, mental anguish and possible future health problems.
The News Sentinel reports
Meanwhile, the U.S. Senate Committee on Environment and Public Works is planning a hearing Jan. 8 to investigate the coal ash spill at the TVA's Kingston Fossil Plant. Tennessee Sen. Lamar Alexander, R-TN, serves on the committee.
The News Sentinel has more
New laws take effect Thursday
Several new state laws will take effect on Thursday, Jan. 1. Among them are requirements that sex offenders released from nursing homes, assisted-living facilities or mental health institutions register with law enforcement within 48 hours of release; DUI cases involving injury or death of a child be subject to greater penalty; and new voting machines be able to create a paper trail for recounts and random audits.
Read more in the Tennessean
Judicial Conference cancels 2010 meeting
Due to tightening state budgets, the Tennessee Judicial Conference announced it would cancel its summer conference in 2010. The state's judges traditionally hold their summer meeting in conjunction with the Tennessee Bar Association's annual meeting and convention. The 2010 TBA convention will be held June 16-20 in Nashville at the Renaissance Hotel.

New blog for minority lawyers
Yolanda Young, the former Covington & Burling staff attorney who chronicled her experience there in the piece, "Law Firm Segregation Reminiscent of Jim Crow," offers a new forum for minority lawyers on her blog "On Being a Black Lawyer." Young says she started the blog after receiving strong feedback -- both positive and negative -- about the article and realizing minority lawyers need a forum to discuss what is happening in their professional lives. Young also is writing her second book, which will document the legal industry experiences of all 70 African-American graduates in her Georgetown University Law class. The ABA Journal reported the news.
Check out the blog
Passages
Lebanon court judge dies
Fifteenth Judicial District Criminal Court Judge James O. Bond died today. He was 70. Bond was elected to the court in 1990. He earned his law degree in 1971 from the YMCA Night Law School. Visitation will be held Friday, Jan. 2, from 4-8 p.m. at Sellars Funeral Home (313 W. Baddour Parkway, Lebanon, 615-758-8818). The funeral service will be held Saturday, Jan. 3, at 1 p.m. at the Cumberland Presbyterian Church (522 Castle Heights Avenue, Lebanon).

TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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