TBA Today

Monday, March 23, 2009

Search our Database for Opinions and News Items

TennBaruU webcast: Advanced Accounting for Lawyers

Join Memphis attorney and CPA Miles Mason Sr. at noon Wednesday as he provides an overview of accounting practice and theories in this week's TennBarU webcast. Mason will offer help for business litigators and family lawyers who handle business valuation and income determination issues. The presentation includes specific discussion of information flow from transaction detail and general ledgers to financial statements.

Find our more about this webcast or register 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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
00 - TN Court of Criminal Appeals
02 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2009/certlist_032309.pdf

MIKE ELLIS v. PAULINE S. SPROUSE RESIDUARY TRUST ET AL.

Court: TSC

Attorneys:

G. Wendell Thomas, Jr., Rob Quillin, and Catherine E. Shuck, Knoxville, Tennessee, for the appellant, Mike Ellis.

W. Tyler Chastain and Margo J. Maxwell, Knoxville, Tennessee, for the appellees, Pauline S. Sprouse Residuary Trust and Kerry M. Sprouse.

Judge: KOCH

This appeal involves the exercise of an option to extend a lease that did not specify how or when the option should be exercised. Approximately two and one-half years after the lessee believed he had exercised the option to extend the lease, the lessor sold the property to a third party who was aware that the lessee was actively farming the property. Thereafter, the new owner trespassed on the property and ordered the lessee to vacate. The lessee complied but filed suit in the Circuit Court for Knox County seeking damages for the new owner's trespass and for the profits he would have earned had he been permitted to continue to farm the property for the remaining term of the lease. A jury determined that the lessee had effectively extended the lease and that the new owner had actual notice of the lease. Accordingly, the jury awarded the lessee $82,534 in compensatory damages and $30,000 in punitive damages. The owner appealed. The Court of Appeals upheld the jury's $534 award for damages caused by the owner's trespass but vacated the remainder of the award of compensatory damages after concluding that the lessee had not effectively extended the lease. The court also vacated the punitive damages award because it was excessive in comparison to the reduced compensatory damages award and remanded the case for a new trial on punitive damages. Ellis v. Pauline S. Sprouse Residuary Trust, No. E2006-01771-COA-R3-CV, 2007 WL 3121666 (Tenn. Ct. App. Oct. 26, 2007). We granted the lessee's application for permission to appeal. In accordance with Carhart v. White Mantel & Tile Co., 122 Tenn. 455, 123 S.W. 747 (1909), we have determined that the lessee effectively extended the lease by holding over and continuing to pay the rent required by the lease. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2009/ellism_032309.pdf

LUCY C. KIRBY, ET AL. v. ROBERT P. WOOLEY
Correction: On page 6 (page 7 in original opinion) "superceded" changed to "superseded"

Court: TCA

Attorneys:

Bradley A. Farmer and Steve E. Fox, Knoxville, Tennessee, for the appellants, Lucy C. Kirby and Roy Kirby.

James S. MacDonald, Knoxville, Tennessee, for the appellees, Robert P. Wooley, deceased, Carolyn Wooley, administrator of the estate of Robert P. Wooley, and Dennis A. Bradley, administrator ad litem of the estate of Robert P. Wooley.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, Prudential Property & Casualty Insurance Company.

Judge: SUSANO

This lawsuit arises out of an automobile accident. At the time of the accident, Robert P. Wooley ("the defendant") gave an address in Lexington, Kentucky. Lucy C. Kirby and her husband ("the plaintiffs") filed suit and also caused a summons to be issued and served on their automobile casualty insurance company, Prudential Property & Casualty Insurance Company ("the uninsured motorist carrier"). Unbeknownst to the plaintiffs, the defendant had died of unrelated causes some six months after the motor vehicle accident, and before the lawsuit was filed. Service on the uninsured motorist carrier was effected, but service of process on the nonresident defendant through the Secretary of State was returned marked "Moved No Forwarding Address." The plaintiffs proceeded against the uninsured motorist carrier; they did not learn until some two years after filing suit that the defendant was dead. When they learned of his death, the plaintiffs had alias process issued and successfully served on the administratrix of the estate of the defendant and subsequently on the administrator ad litem of the estate. The trial court granted summary judgment to both the defendant and the uninsured motorist carrier, predicated on the court's holding that the plaintiffs failed to comply with Tenn. R. Civ. P. 3. We hold that the resolution of the controversy in this case is controlled by Tenn. Code Ann. section 56-7-1206(d) and (e) (2008) and not by Tenn. R. Civ. P. 3 and that, under the applicable statute, service of process was properly and effectively made upon both the uninsured motorist carrier and the defendant. The trial court incorrectly granted summary judgment to both. Accordingly, we vacate the judgment below and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/kirbyl_corr_032309.pdf

EDWIN O. MARTIN, ET AL. v. CARL NASH, ET AL.

Court: TCA

Attorneys:

Frank F. Buck, Smithville, Tennessee, for the appellant, Edwin O. Martin.

Jon E. Jones, Cookeville, Tennessee, and John C. Knowles, Sparta, Tennessee, for the appellee, Carl Nash.

Judge: DINKINS

Members of family in whose name a cemetery was established brought suit against owners of property surrounding the cemetery seeking removal of a cloud upon their title to the cemetery, injunctive relief and damages. The trial court declared the boundaries of the original cemetery and limited those entitled to be buried therein to the family members; allowed that members of the general public were permitted to be buried in land added to the original cemetery tract; and appointed trustees to manage the cemetery as established under both conveyances. Family members appeal, contending that trial court erred in setting the cemetery boundary; in disregarding proof of cost of repairing fence which had been removed by one defendant; and in refusing to hear testimony as to the trust fund established for the maintenance of the cemetery. Finding no error, we affirm the decision of the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2009/martine_032309.pdf

PAUL L. MCMILLIN v. CRACKER BARREL OLD COUNTRY STORE, INC.

Court: TCA

Attorneys:

Paul L. McMillin, pro se.

John Thomas Feeney, Nashville, Tennessee, for appellee, Cracker Barrel Old Country Store, Inc.

Judge: FRANKS

Plaintiff brought an action against defendant in 2005 and another action, similar in nature, against the same defendant in 2006. The actions were assigned to two separate Judges and the 2005 action was first dismissed by one Judge and subsequently the 2006 action was dismissed by the other Circuit Judge. The plaintiff has appealed the 2006 action. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/mcmillinp_032309.pdf

NANCY M. SEARLE v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Allen Barnes, Nashville, TN, for Appellant

Sue B. Cain, Director of Law, Philip D. Baltz, James E. Robinson, Nashville, TN, for Appellee

Judge: HIGHERS

In this appeal, we are asked to determine whether the Metropolitan Government of Nashville and Davidson County owed or breached a duty to Nancy M. Searle when a sheriff�s deputy made a return of service indicating Ms. Searle had been served when, in fact, a warrant was simply left at Ms. Searle's place of employment. Additionally, we are asked to determine whether the deputy's representation that Ms. Searle had been served constituted a "constructive representation" such that Ms. Searle could recover under a fraud theory. Finally, we are asked to determine whether Ms. Searle suffered damages recoverable against the government. The order appealed did not adjudicate Ms. Searle's claims under the due process clause and Tennessee Code Annotated section 8-8-201. Thus, because the trial court did not adjudicate all of the claims raised below, the order on appeal is not final and it not appealable as of right. Therefore, we dismiss the appeal for lack of subject matter jurisdiction and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/searlen_032309.pdf

Senate Joint Resolution 127 � Abortion

TN Attorney General Opinions

Date: 2009-03-23

Opinion Number: 09-31

http://www.tba2.org/tba_files/AG/2009/ag_09_31.pdf

Constitutionality of House Bill 927

TN Attorney General Opinions

Date: 2009-03-23

Opinion Number: 09-32

http://www.tba2.org/tba_files/AG/2009/ag_09_32.pdf

TODAY'S NEWS

Politics
Legal News
Practice Management
Upcoming
TBA Member Services

Politics

Ingram to leave Alexander for Haslam campaign

U.S. Sen. Lamar Alexander's longtime chief of staff Tom Ingram says he will leave the senator and work as a general consultant for Knoxville Mayor Bill Haslam's bid for the Republican gubernatorial nomination in 2010.

The News Sentinel reports

Budget unveiled tonight

Gov. Phil Bredesen will reveal his budget tonight at 6 p.m. Central Time. He is expected to call for some cuts but no immediate layoffs. Read more about the budget address in The Tennessean or watch the

webcast of the address live

Campfield drops 'legislative privilege' in libel suit

State Rep. Stacey Campfield, R-Knoxville, is dropping a claim of legislative privilege as his defense in a libel lawsuit brought against him by Roger Byrge, an unsuccessful Democratic candidate for the state House last year.

Find out more from the News Sentinel

Legal News

Kids with guns on the rise

A Rutherford County Juvenile Court judge is hearing more cases of children carrying loaded firearms to commit crimes. "I fear for the safety of our children," Donna Scott Davenport said. "I'm afraid more children will be shot from their own weapons." And she fears for the safety of law enforcement officers who have no choice but to draw their service firearms when facing a child with a firearm.

The Murfreesboro Post has more

Miss. governor plans to veto ban on eminent domain

Mississippi Gov. Haley Barbour said today he will veto legislation that would bar governments from taking property through eminent domain and using it for developers or other private uses.