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Monday, December 12, 2011

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Volunteer Attorney: The latest on pro bono activities

The fall edition of The Tennessee Volunteer Attorney is now available online. Along with news about the pro bono and legal aid work being done across the state by Tennessee attorneys, the newsletter reports on pro bono efforts at Tennessee law schools and provides advance information on the upcoming Corporate Counsel Pro Bono Initiative Gala.

Read or download The Tennessee Volunteer Attorney 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.

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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.

84 LUMBER COMPANY v. R. BRYAN SMITH ET AL.

Court: TSC

Attorneys:

John Murray Neal, Knoxville, Tennessee, for the appellant, 84 Lumber Company.

Rick Jay Bearfield, Johnson City, Tennessee, for the appellee, R. Bryan Smith.

Judge: HOLDER

The president of a company signed a commercial credit application. The application contained language immediately above the signature line stating that the individual signing the contract personally guaranteed amounts owed to the vendor. The company defaulted on the balance of the account, and the vendor filed suit against both the company and the president. The trial court granted summary judgment to the vendor, holding that the president had signed the contract both personally and in a representative capacity. The Court of Appeals reversed, holding that the president had signed the contract only in a representative capacity and granted summary judgment to the president. We hold that the application contained explicit language sufficient to bind the president as an individual guarantor of the contract. We reverse the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2011/84lumber_121211.pdf

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2011/certlist_121211.pdf

JAMES Q. HOLDER ET AL. v. WESTGATE RESORTS LTD.

Court: TSC

Attorneys:

John M. Lawhorn and Matthew A. Grossman, Knoxville, Tennessee, for the appellant, Westgate Resorts Ltd.,a Florida Limited Partnership d/b/a Westgate Smoky Mountain Resort at Gatlinburg.

James H. Ripley, Sevierville, Tennessee, for the appellees, James Q. Holder and Laura C. Holder.

James Bryan Moseley, Nashville, Tennessee, pro se, as amicus curiae.

Judge: HOLDER

During a trial of the plaintiffs' premises liability claim, the trial court excluded as hearsay a portion of the testimony of the defendant's expert. The expert would have testified that he consulted an authoritative source whose interpretation of the applicable building code was consistent with that of the testifying expert. The jury returned a verdict for the plaintiff, and the defendant appealed. The Court of Appeals held that the trial court erred because the expert's testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals concluded that the trial court's error was harmless, however, and affirmed the judgment. We hold that the Court of Appeals improperly applied an amended version of Rule 703 that was not in effect at the time of trial. We hold that the trial court properly excluded as hearsay portions of the proffered testimony of the testifying expert. We vacate the judgment of the Court of Appeals and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC/2011/holderj_121211.pdf

RAY BELL CONSTRUCTION COMPANY, INC. v. STATE OF TENNESSEE, TENNESSEE DEPARTMENT OF TRANSPORTATION

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; Melissa Ann Brodhag, Assistant Attorney General, for the appellant, State of Tennessee, Tennessee Department of Transportation.

Craig N. Mangum, Matthew J. DeVries (at the Court of Appeals), Gregory Lee Cashion, and Donald Capparella, Nashville, Tennessee, for the appellee, Ray Bell Construction Company, Inc.

Judge: HOLDER

A construction company entered into a contract with the State of Tennessee to restructure an interstate interchange. The contract provides that the contract completion date "may be extended in accordance with the Standard Specifications, however, no incentive payment will be made if work is not completed in its entirety by December 15, 2006." The Claims Commission found that the contract contained a latent ambiguity requiring extrinsic evidence to interpret the contract. The Claims Commission considered extrinsic evidence and concluded that the construction company was entitled to the maximum incentive payment and an extension of the contract completion date. A divided Court of Appeals affirmed the judgment of the Claims Commission. We hold that the contract is unambiguous and does not permit an extension of the incentive date. Accordingly, we reverse the Court of Appeals and remand to the Claims Commission for modification of the final judgment.

http://www.tba2.org/tba_files/TSC/2011/raybell_121211.pdf

MARK PATRICK JONES v. JENNIFER JONES SMTIH, ET AL.

Court: TCA

Attorneys:

K. Michelle Morris, Lexington, Tennessee, for the appellants, Harold and Maryann Jones.

Lanis L. Karnes, Jackson, Tennessee, for the appellee, Jennifer Jones Smith.

Judge: HIGHERS

Paternal Grandparents filed a motion to intervene in a divorce action between Mother and Father, seeking custody of the parties' two minor children. The trial court ultimately awarded custody to Mother and ordered Grandparents to pay a portion of Mother's attorney's fees and costs. Grandparents appeal, arguing that Tennessee Code Annotated section 36-5-103(c) only provides for awards of attorney's fees against spouses in a custody matter, and therefore, the trial court was not authorized to order them to pay Mother's attorney's fees. We affirm.

http://www.tba2.org/tba_files/TCA/2011/jonesm_121211.pdf

IN RE: MARIA A., RICKEY A., JR. and ANGEL A.

Court: TCA

Attorneys:

Matthew C. Rogers, Athens, Tennessee, for the appellant, RA.

Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua Davis Baker, Assistant Attorney General, Nashville, Tennessee, for the appellee, The Tennessee Department of Children's Services.

Judge: FRANKS

DCS filed a Petition to terminate the parental rights of the father. Following an evidentiary hearing, the Trial Court determined there were statutory grounds to terminate the father's parental rights, and that it was in the best interest of the children that his rights be terminated. The father appealed and did not question that statutory grounds existed for termination, but argued that the Department failed to make reasonable efforts to reunify the father with his children. We conclude the father failed to demonstrate that the Department did not make reasonable efforts for reunification. The evidence is clear and convincing that the Department made reasonable efforts for reunification. We affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2011/mariaa_121211.pdf

ORLANDO RESIDENCE, LTD. v. NASHVILLE LODGING COMPANY, NASHVILLE RESIDENCE CORP., AND KENNETH E. NELSON

Court: TCA

Attorneys:

Kenneth E. Nelson, Cary, North Carolina, pro se.

Eugene N. Bulso, Jr., Steven A. Nieters, Nashville, Tennessee, for the appellee, Orlando Residence, Ltd.

Judge: HIGHERS

This appeal centers on the effective date of a judgment against Appellant-2000 or 2004. Appellant argues that both the equitable estoppel and law of the case doctrines bar Plaintiff from arguing that the judgment was entered in 2004, and therefore, that it has not expired. The trial court found that the judgment had not expired, and we affirm.

http://www.tba2.org/tba_files/TCA/2011/orlandoresidence_121211.pdf

IN RE: ESTATE OF RAYMOND L. SMALLMAN, DECEASED, MARK SMALLMAN, ET AL., V. LINDA CARAWAY, ET AL.
With Dissenting Opinion

Court: TCA

Attorneys:

H. Scott Reams, Morristown, Tennessee, for the appellant, Linda Caraway.

Denise Terry Stapleton, Morristown, Tennessee, Douglas T. Jenkins, Rogersville, Tennessee, and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellees, Mark Smallman and Jeffrey Smallman.

Judge: FRANKS

The two sons of decedent asked the Court to declare that their father died intestate and that his marriage to appellant a few days before he died was void because he was neither competent to make a will or enter into a marriage contract. Upon trial, the jury determined that the deceased was not of sound mind when he executed a will, a copy of which was filed in evidence, and the will was obtained through undue influence of appellant. The jury also found that the marriage between the decedent and appellant was invalid as well. The Trial Judge approved the jury verdict and appellant has appealed. We hold that material evidence supports the jury verdict as approved by the Trial Judge and remand.

http://www.tba2.org/tba_files/TCA/2011/smallmanr_121211.pdf

SUSANO dissenting
http://www.tba2.org/tba_files/TCA/2011/smallmanr_DIS_121211.pdf

JERRY W. DICKERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jerry W. Dickerson, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Jerry W. Dickerson, filed in the Johnson County Circuit Court a petition for a writ of habeas corpus. The habeas corpus court summarily dismissed the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we conclude that the habeas corpus court properly dismissed the petition.

http://www.tba2.org/tba_files/TCCA/2011/dickersonj_121211.pdf

BRYAN KEITH GOOD v. JIM MORROW, WARDEN

Court: TCCA

Attorneys:

Bryan Keith Good, Pikeville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Bryan Keith Good, appeals as of right from the Bledsoe County Circuit Court's summary dismissal of his petition for writ of habeas corpus. The Petitioner contends (1) that the judgment against him is void because the State failed to include the name of the victim in the indictment and (2) that subsequent amendment of the indictment did not cure the alleged defect. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/goodb_121211.pdf

ERSKINE LEROY JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gerald D. Skahan, Memphis, Tennessee, and Jonathan I. Blackman, David E. Brodsky, Carmine D. Boccuzzi, Jr., David H. Herrington, and Elizabeth Vicens, New York, New York, for the appellant, Erskine Leroy Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Erskine Leroy Johnson, appeals the Shelby County Criminal Court's dismissal of his petition for error coram nobis relief from his 1985 conviction for felony murder. He contends that newly discovered evidence entitles him to a new trial. He also contends that the trial court improperly weighed the newly discovered evidence and failed to assess that evidence in the context of the evidentiary record as a whole in determining whether the result of the trial may have been different. We reverse the judgment of the trial court, vacate the Petitioner's felony murder conviction, and remand the case for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/johnsone_121211.pdf

TODAY'S NEWS

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TBA Member Services

Legal News

Knoxville Bar names new leaders

J. William (Bill) Coley of Hodges, Doughty & Carson assumed the presidency of the Knoxville Bar Association at the close of the KBA's annual meeting on Friday. Joining him in leading the bar will be President-Elect Heidi Barcus, Treasurer Wade Davies and Secretary Tasha Blakney. Filling open positions on the Board of Governors will be Leland Price, Adam Priest, Shelly Wilson and Douglas Blaze.

Memphis center to serve victims of family violence, others

The new Family Safety Center of Memphis and Shelby County is taking shape on Madison Avenue and should be fully operational this spring. The center, which brings together a host of services for victims of rape, domestic violence and other crimes, has already become home to the Rape Crisis Center and the Crime Victims Center. By the end of February, the Citizens' Dispute Center will be open. Offices for other services, such as police, sheriff's investigators, counselors and prosecutors will follow.