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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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - 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.

STATE OF TENNESSEE v. DARRELL FRANKLIN

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; John H. Bledsoe, Senior Counsel; William L. Gibbons, District Attorney General; and Pamela D. Fleming, Assistant District Attorney General, for the appellant, State of Tennessee.

Robert Jones, Shelby County Public Defender; Phyllis Aluko (on appeal) and Lawrence R. White (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellee, Darrell Franklin.

Judge: CLARK

We granted this appeal to determine whether the admission into evidence of an automobile license tag number observed and written down by a bystander near the crime scene who did not appear at trial violated the defendant's right to confrontation under the federal and state constitutions. A few seconds after being robbed at her place of employment, the victim ran out of the business, told a bystander that she had been robbed, and asked the bystander to observe the tag number of the vehicle operated by the man who had just left the business. The bystander did so and then came inside the store to write the number down for the victim. The victim added other descriptive information about the robber to the same piece of paper and then turned it over to the police. The tag number was traced to a vehicle owned by the defendant, whom a jury ultimately convicted of one count of robbery. The Court of Criminal Appeals reversed the conviction, holding that the written tag number was "testimonial hearsay" within the meaning of Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), and concluding that the statement's admission was plain error. Based on our objective review of the circumstances surrounding the statement, we conclude that the written tag number was "nontestimonial hearsay" that did not implicate the defendant's right of confrontation and was admissible as an excited utterance. We reverse the judgment of the Court of Criminal Appeals and reinstate defendant's conviction.

http://www.tba2.org/tba_files/TSC/2010/franklind_042910.pdf


CHARLES C. BURTON v. BILL J. DUNCAN ET AL.

Court: TCA

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Charles C. Burton.

John H. Richardson, Jr., Fayetteville, Tennessee, for the appellees, Bill J. Duncan and Myrtle H. Duncan.

Judge: CLEMENT

The matter at issue is a sliver of land between an old established fence and the centerline of a rural road. The plaintiff and the defendants each contend they own the disputed property. The plaintiff claims his property, which lies west and southwest of the defendants' property, extends beyond an old established fence in a northeasterly fashion to the center line of Old Lincoln Road. The defendants, however, claim their property extends across the road to the old established fence which, the defendants insist, is also where the plaintiff's property ends. Following a bench trial, the trial court found that the "old established fence" referenced in the plaintiff's deed is the boundary line, as the defendants claim, not the centerline of Old Lincoln Road, as the plaintiff claims, and therefore, the defendants own the disputed property. We have concluded that the trial court correctly determined the plaintiff's property stopped at the "old established fence." Thus, we affirm that decision. We, however, have determined that the trial court erred by awarding the disputed property to the defendants. This is because the defendants' deed clearly states that their property stops at the center line of Old Lincoln Road and nothing in the deed suggests their property extends beyond that point. Accordingly, we reverse the trial court's finding that the defendants' property extends beyond the centerline of Old Lincoln Road. As a consequence, neither party has established that they own the disputed property. Furthermore, we have determined that others who are not parties to this action may have a claim to the disputed property; thus, ownership of the disputed property will need to be determined in a subsequent action in which others who are possibly indispensable parties are joined.

http://www.tba2.org/tba_files/TCA/2010/burtonc_042910.pdf


GREAT AMERICAN INSURANCE COMPANY OF NEW YORK ET AL. v. FEDERAL INSURANCE COMPANY ET AL.

Court: TCA

Attorneys:

Michael J. Vetter, Nashville, Tennessee, for the appellants, Great American Insurance Company of New York and The Ohio Casualty Insurance Company.

William B. Jakes, Nashville, Tennessee, for the appellees, Federal Insurance Company and The Chubb Corporation.

Judge: CLEMENT

This is a dispute between two insurance companies, each of which provided liability insurance for a Captain D's restaurant in Mississippi. The defendant, Federal Insurance Company, provided the primary coverage for Captain D's with policy limits of $1,000,000. The plaintiff, Great American Insurance Company of New York, provided excess coverage for the benefit of Captain D's. When an action was filed against the insured in Mississippi for serious and permanent injuries sustained by a 15 year-old minor at a Captain D's, Federal provided the defense for Captain D's. The jury returned a verdict of $20.8 million against Captain D's. The next day, Federal sent a letter to its insured, Captain D's, and to the excess carrier, Great American, offering to pay its policy limits of $1,000,000 toward the judgment; however, Federal's "offer to pay" was not communicated to Foradori, the plaintiff in the Mississippi action. Federal appealed the $20.8 million Mississippi judgment on behalf of Captain D's, but the judgment was affirmed. Post-judgment interest of $2,269,169 accrued during the appeal. When the judgment became final, Federal paid its policy limits of $1,000,000, but no interest. Great American paid the balance of the judgment plus all of the post-judgment interest. Great American then filed this action against Federal seeking to recover the post-judgment interest it paid for the benefit of Captain D's. Great American contends it is equitably subrogated to the rights of Captain D's against Federal and that Federal is liable to Captain D's for all post-judgment interest based on the Supplementary Payments provision of Federal's policy of insurance. The Supplementary Payments provision provides that Federal will pay, with respect to any suit against an insured it defends, "all interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable Limit of Insurance." The Chancellor summarily dismissed all of Great American's claims against Federal finding inter alia that Federal's letter to Captain D's and Great American satisfied the "offer to pay" provision of its policy, which relieved Federal of any liability for the post-judgment interest. We have determined that Federal's so-called offer to pay did not satisfy the terms of its policy because the "offer" was not communicated to the plaintiff in the underlying action. Therefore, Federal was not entitled to summary judgment based on the offer to pay exception. Accordingly, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2010/greatamerican_042910.pdf


IN THE MATTER OF HAVEN A. B.

Court: TCA

Attorneys:

C. Michael Cardwell, Nashville, Tennessee, for the appellants, Angela B. and John B., Jr.

Jennifer L. Evans, Springfield, Tennessee, for the appellees, John S. and Karol S.

Judge: COTTRELL

The juvenile court granted emergency custody of a four-year-old girl to her paternal aunt and uncle and subsequently determined that the child was dependent and neglected. More than two years after obtaining custody, the aunt and uncle petitioned the trial court to terminate the parental rights of the child's mother and father. The court conducted a four-day hearing before terminating their parental rights on the grounds of abandonment and persistence of conditions. Only the mother appealed. We affirm the termination of her rights on the ground of persistence of conditions.

http://www.tba2.org/tba_files/TCA/2010/haven_042910.pdf


WATER AUTHORITY OF DICKSON COUNTY v. CHARLES B. HOOPER, GENE C. HOOPER, AND DICKSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Benjamin C. Regen, Dickson, Tennessee, on behalf of appellant, Water Authority of Dickson County.

Henry F. Todd, Jr., Dickson, Tennessee, on behalf of appellees, Charles B. Hooper, Gene C. Hooper, and Dickson County, Tennessee.

Judge: DINKINS

This is a condemnation case in which the Water Authority of Dickson County acquired an easement by eminent domain for the purpose of installing a subsurface water transmission line. The Water Authority's ability to take the land is not in question; this appeal only involves the amount of compensation to which the landowners are entitled. Following a trial without a jury, the court awarded $12,526.56 for the taking of the permanent easement and incidental damages. The Water Authority appeals. Finding error, we vacate the judgment of the court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/hooperc_042910.pdf


WATER AUTHORITY OF DICKSON COUNTY v. GENE C. HOOPER, VERA S. HOOPER, AND DICKSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Benjamin C. Regen, Dickson, Tennessee, on behalf of appellant, Water Authority of Dickson County.

Henry F. Todd, Jr., Dickson, Tennessee, on behalf of appellees, Gene C. Hooper, Vera S. Hooper, and Dickson County, Tennessee.

Judge: DINKINS

This is a condemnation case in which the Water Authority of Dickson County acquired an easement by eminent domain for the purpose of installing a subsurface water transmission line. The Water Authority's ability to take the land is not in question; this appeal only involves the amount of compensation to which the landowners are entitled. Following a trial without a jury, the court awarded $6,300.00 for the taking of the permanent easement and incidental damages. The Water Authority appeals. Finding error, we vacate the judgment of the court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/hooperg_042910.pdf


LEE MASONRY, INC. v. CITY OF FRANKLIN, TENNESSEE STANSELL ELECTRIC COMPANY, INC. V. CITY OF FRANKLIN, TENNESSEE

Court: TCA

Attorneys:

William N. Bates, Gregory L. Cashion, and Craig N. Mangum, Nashville, Tennessee, for the appellant, City of Franklin, Tennessee.

Todd E. Panther, Nashville, Tennessee, for the appellee, Lee Masonry, Inc.

Stafford F. McNamee, Jr., Brentwood, Tennessee, for the appellee, Stansell Electric Company, Inc.

Judge: BENNETT

Two trade contractors alleged that the City breached its contract with them by failing to take reasonable measures to guard against delays and disruptions by other contractors in the City's coordination, management, and scheduling of the contractors and by failing to pay the retainages they were due. The contractors sought damages for the delays. The City raised three defenses: (1) the "no damages for delays" provision of the contracts; (2) untimely notice of claims by the contractors; and (3) the contractors' acknowledgment and acceptance of time extensions without a reservation for increased compensation in the change orders they executed. The trial court concluded that all three of the City's defenses failed and awarded damages to the contractors. We affirm the trial court's decisions.

http://www.tba2.org/tba_files/TCA/2010/leemasonry_042910.pdf


RODNEY K. MATTHEWS v. SOPHIA D. MATTHEWS

Court: TCA

Attorneys:

Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Rodney K. Matthews.

Michael Kenneth Williamson, Clarksville, Tennessee, for the appellee, Sophia D. Matthews.

Judge: COTTRELL

The trial court granted the wife a divorce after a marriage of almost twenty years, divided the marital property, and awarded the wife temporary alimony. The husband argues on appeal that the court erred in the property division by impermissibly taking his fault into consideration and by dividing his military retirement between the parties without considering the effect of their long separation on the equities of that division. The husband also argues that the court impermissibly awarded the wife alimony in solido out of his future earnings rather than out of his separate property. After thoroughly examining the record, we have found no evidence that the trial court based its property division on the husband's fault, and we do not find that it abused its discretion in dividing the military retirement as it did. We also find no indication that the trial court intended its monthly alimony award to be considered alimony in solido. We accordingly affirm the trial court, but modify its decree to specify that the award of monthly alimony is in the form of transitional alimony and conversely that the award of attorney fees is alimony in solido.

http://www.tba2.org/tba_files/TCA/2010/matthewsr_042910.pdf


JEREMY WHITE v. COMMISSIONER GAYLE RAY, ET AL.

Court: TCA

Attorneys:

Jeremy White, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and Jennifer L. Brenner, Assistant Attorney General, Tennessee, for the appellee(s), Commissioner Gayle Ray, et al.

Judge: FARMER

This appeal arises out of the disciplinary conviction of a prisoner for drug possession. The prisoner filed a petition for writ of certiorari with the chancery court seeking to review the actions of the prison disciplinary board. The chancery court issued the writ and determined that the prisoner was not entitled to relief. We affirm.

http://www.tba2.org/tba_files/TCA/2010/whitej_042910.pdf


TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Disciplinary Actions
TBA Member Services

Legal News
Palin jurors reach verdict on 3 of 4 charges
Federal court jurors reported today they have reached a verdict on three of four charges against former University of Tennessee student David C. Kernell, who is accused of illegally accessing the private e-mail account of Sarah Palin. But they also reported they are deadlocked on the first count of identity theft. In another development today, some jurors expressed concern that not all of their colleagues were following the jury instruction.
The News-Sentinel reports
Attorneys may pay professional tax online
With the June 1 professional privilege tax-filing deadline approaching, the Department of Revenue is reminding professional groups about the convenience of filing online. With the department's e-filing application, professional privilege taxes can be filed in minutes, and a new feature allows companies to file returns on behalf of multiple employees and make a single payment. Payments can be made via credit card or EFT transactions through checking accounts at the department's web site, www.TN.gov/revenue
Download the department's notice
Crowded courthouse causes frayed nerves
The Bedford County General Sessions Court is so crowded these days, only a certain number of defendants can be in the courtrooms at any given time, while another 100 or so wait in standing-room only halls. Add in the defense attorneys, prosecutors, bondsmen, probation officers, court reporters and police that accompany each case and the situation is causing many to question whether the courthouse is really safe. The Shelbyville Times Gazette looks at how local officials are responding.
Read the story
NAACP asks U.S. to investigate Chattanooga schools
The NAACP has asked the U.S. Department of Education to investigate allegations that the Hamilton County school system spends more money on suburban schools than inner city ones and that vocational offerings once located in inner-city schools have been moved.
Learn more in the Times Free Press
Federalist Society launches Supreme Court nominee site
The Federalist Society has launched a new website that is intended to serve as a one-stop destination for news, documents and "commentary from across the legal, political and philosophical spectrum" concerning U.S. Supreme Court nominations. The site, SCOTUSreport.com, is also intended to educate and promote public debate about the role of the nation's courts in a constitutional democracy.
Check it out here
Roundtable explores recession's impact on pro bono
At a recent ABA Business Law Section Spring Meeting, the section's Pro Bono Committee hosted a breakfast roundtable on the topic "Pro Bono for Business Lawyers: Is There Life After a Recession?" Roundtable members discussed the impact of the recession on corporate pro bono efforts and determined that even with increased demands on their time, corporate law departments and their law firms are making the time to do pro bono work.
Read more about the discussion
Youth Court teens meet with legislators
Wilson County high school students who participate in the state Youth Court Program met with legislators and state officials Wednesday as part of the annual Youth Court Day on the Hill.
See photos from the event on TBAConnect
Legislative News
Senate adopts new guns in bars bill
Senators voted 23-9 today to let handgun-carry permit holders go armed in all establishments that sell alcohol. The bill, however, prohibits the consumption of alcohol while armed and the carrying of guns into establishments that ban weapons. The new measure is intended to address a Davidson County judge's ruling last year that a previous law was unconstitutionally vague.
The Times Free Press reports
Lawmakers strike deal on independent contractors
According to the Tennessean, lawmakers have struck a deal on how to cover independent contractors for accidents on the job. Yesterday, a House committee passed a new bill that would let the owners of small construction firms opt out of Tennessee's workers' compensation insurance program if they can prove they have no employees other than themselves.
Learn more online
Health care suit bill has to wait for budget
The Tennessee House Budget Subcommittee yesterday determined that a measure sponsored by Rep. Mike Bell, R-Riceville, authorizing the state attorney general to file suit against the recently enacted health bill will have to wait until a budget plan is set. The panel voted to place the bill "behind the budget" because of its potential costs. Bell argued the action would not require specific funding because it should be part of the attorney general's regular duties.
The Tennessean has more
Supreme Court Report
Cross to stand at war memorial
The U.S. Supreme Court yesterday gave its approval to a cross on government land that has been honoring the sacrifice of World War I soldiers for almost 70 years. Saying the Constitution "does not require the eradication of all religious symbols in the public realm," Justice Anthony M. Kennedy argued the First Amendment calls for a middle-ground policy of accommodation toward religious displays on public land. By a 5-4 vote, the justices reversed lower courts that had ordered the U.S. Park Service to remove the 8-foot cross that stands in the Mojave National Preserve.
Read about it in the Tennessean
Disciplinary Actions
Four lawyers suspended for not responding to complaints
On April 22, the Tennessee Supreme Court temporarily suspended the law license of Lawrenceburg attorney Charles Matthew Bates, Tipton County attorney Jewel Guy Boozer, Knoxville lawyer Kristin Alyse Godsey and Nashville lawyer Matthew Fort Mayo for failure to respond to complaints of ethical misconduct filed against them.

Clarksville lawyer censured
On April 28, Clarksville attorney Joseph Weyant was publicly censured by the Board of Professional Responsibility for failing to act with competence and exercise independent professional judgment. Weyant was to handle a client's business while the client deployed overseas with the military, but he fell victim to fraud by entering into a proposed lucrative real estate deal without verifying the circumstances surrounding the transaction. The board also found that Weyant entered into a loan agreement on behalf of the client that was adverse to the client's interests.
Download the BPR notice
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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