Solo and Small Firm Forum
May 13 - Tennessee Bar Center, Nashville

The TBA Solo and Small Firm Conference offers a unique opportunity for practitioners from all over the state to come together to focus on specific issues impacting them in the practice of law. CLE course offerings will include substantive sessions in practice areas most common to the solo and small firm practitioner including: PERSONAL INJURY AND WORKERS COMP LAW, JUVENILE & FAMILY LAW, WILLS, ESTATES & PROBATE, SOCIAL SECURITY UPDATE, CRIMINAL DEFENSE, and ETHICS. There will also be many opportunities for networking with your fellow practitioners during this conference — including a cocktail reception after the program.

Register at:
https://www.tba.org/onsiteinfo/solosmall_2005.html

Today's Opinions: April 28, 2005
Volume 11 — Number 80
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
09 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • 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. • 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. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


ALICE WILLIAMSON V. A.O. SMITH CORPORATION, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:

Richard Murrell, Nashville, Tennessee, for the appellant, The Second
Injury Fund.

Bruce E. Williams, Roane Waring, III, Memphis, Tennessee, for the
appellant, A.O. Smith Corporation.

T. J. Emison, Alamo, Tennessee, for the appellee, Alice Williamson.

Judge: MCCOY

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn.Code Ann.
S 50- 6-225(e)(3) for hearing and reporting findings of fact and
conclusions of law. In this appeal, the Second Injury Fund insists
that the trial court improperly allocated 90% of the disability award
to the Fund and further that the trial court erred in finding the
employee permanently and totally disabled. For the reasons set out
below, the panel has concluded that the evidence fails to preponderate
against the findings of the trial court. Judgment of the trial court
is affirmed with costs assessed against the Second Injury Fund.

http://www.tba.org/tba_files/TSC_WCP/2005/williamsona42805.pdf

J. STEPHEN AMISON, ET AL. v. JACK D. McCARTY, ET AL.

Court:TCA

Attorneys:

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellants, Jack
D. McCarty and wife, Bertha B. McCarty.

J. Michael Sharp and D. Mitchell Bryant, Cleveland, Tennessee, for the
appellees, J. Stephen Amison and wife, Pamela G. Amison.

Judge: SUSANO

First Paragraph:

J. Stephen Amison and wife, Pamela G. Amison ("the plaintiffs"),
purchased a house from Jack D. McCarty and wife, Bertha B. McCarty
("the defendants"). Thereafter, the plaintiffs sued the defendants for
damages and, in the alternative, for rescission of the contract of
purchase. The plaintiffs alleged that, unbeknownst to them when the contract was
signed and when the sale subsequently was closed, the house was
infested with termites; that the defendants had prior knowledge of the
termite infestation; and that the defendants intentionally or
negligently misrepresented the true condition of the house. Following
a bench trial, the court decreed rescission, awarded the plaintiffs
discretionary costs, and denied the plaintiffs' request for their
attorney's fees. Both sides raise issue on appeal. We affirm.

http://www.tba.org/tba_files/TCA/2005/amisonj42805.pdf

JAMES EDWARD DUNN v. KNOX COUNTY SHERIFF'S DEPARTMENT MERIT SYSTEM
COUNCIL, ET AL.

Court:TCA

Attorneys:

MaryAnn Stackhouse, Deputy Knox County Law Director, Knoxville,
Tennessee, for the appellant, Knox County Sheriff's Department Merit
System Council.

Herbert S. Moncier and David S. Wigler, Knoxville, Tennessee, for the
appellee, James Edward Dunn.

Judge: SUSANO

First Paragraph:

Following a hearing, the Knox County Sheriff's Department Merit System
Council ("the Council") voted to uphold Sheriff Tim Hutchison's
termination of the plaintiff, James Edward Dunn. Dunn filed a petition
for writ of certiorari in the trial court. He also filed a separate
complaint in the same court alleging that the Council had violated the
Open Meetings Act. Each side filed a motion for summaryjudgment on
this latter issue. The trial court denied both motions. The trial
court then held that the Council's decision to uphold Dunn's
termination was supported by material evidence; but the court remanded
the case to the Council, because the court held that the Council had
failed to follow one of its procedural rules. Both parties have raised
issues on appeal. We affirm.

http://www.tba.org/tba_files/TCA/2005/dunnj42805.pdf

WALKER GRAY HAUN v. LOUIS EUGENE HAUN, JR.

Court:TCA

Attorneys:                          

David T. Black and Justin R. Martin, Maryville, Tennessee, for
Appellant Louis Eugene Haun, Jr. David R. Duggan and Lee Kull,
Maryville, Tennessee, for Appellee Walker Gray Haun.

Judge: LEE

First Paragraph:

This appeal involves a dispute between two brothers over the use of a
roadway that lies on their adjacent tracts of property. The issue
presented is whether Walker Gray Haun has an easement across the
property of his brother, Louis Eugene Haun, Jr. The trial court
granted Walker Gray Haun an easement either by prescription or by
implication which allowed him to use the roadway that had existed for
at least fifty years and provided the only vehicular access to a
rental house on his property. We hold that Walker Gray Haun did not
establish a prescriptive easement, but that his proof satisfied the
elements of an easement by implication, and therefore we affirm the
trial court's judgment.

http://www.tba.org/tba_files/TCA/2005/haunw42805.pdf

LEE KETCHERSID v. RHEA COUNTY BOARD OF EDUCATION

Court:TCA

Attorneys:                          

J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Lee
Ketchersid.

Robert G. Wheeler, Jr. and Deborah A.G. Smith, Nashville, Tennessee,
for the appellee, Rhea County Board of Education.

Judge: SUSANO

First Paragraph:

Lee Ketchersid, a tenured teacher in the Rhea County School System,
appealed her dismissal to the Rhea County Board of Education ("the
School Board"). Following a hearing, the School Board determined that
the evidence supported the charges against Mrs. Ketchersid of
insubordination, incompetence, and inefficiency under the Teachers'
Tenure Act, Tenn. Code Ann. S 49-5-501, et seq., and voted to
terminate Mrs. Ketchersid as a tenured teacher. Mrs. Ketchersid
appealed the School Board's decision to the trial court, which,
following a de novo review, held that her dismissal was supported by
sufficient evidence. Mrs. Ketchersid appeals, arguing that the trial
court erred in this determination. We affirm.

http://www.tba.org/tba_files/TCA/2005/ketchersidl42805.pdf

RICK KYLE v. EARL WILLIAMS, ET AL.

Court:TCA

Attorneys:

John A. Walker, Jr., Knoxville, Tennessee, and Van R. Michael,
Sweetwater, Tennessee, for the appellant, Rick Kyle.

H. Chris Trew, Athens, Tennessee, for the appellees, Earl Williams and
Michelle Williams.

Judge: SUSANO

First Paragraph:

Rick Kyle ("the plaintiff"), a contractor, entered into a contract
with Earl Williams and his wife, Michelle Williams (collectively "the
defendants") to build them a house. When the house was approximately
90% complete, a basement wall collapsed. The plaintiff proposed a plan
to remedy the problem. The defendants rejected the plaintiff's plan
and hired a new contractor to complete the construction. The plaintiff
brought this action for breach of contract. The defendants responded
with an answer, and coupled it with a counterclaim seeking their costs
incurred in connection with the completion of the project. The
defendants raised as an affirmative defense that the contractor was
not licensed during all of the time he was working on the house. On
interlocutory appeal to the Supreme Court, that court held that the
plaintiff was "unlicensed" under the provisions of Tenn. Code Ann. S
62-6-103(b) and was therefore only entitled to recover his "actual
documented expenses" under that statute. Followingremand, the trial
court, at a bench trial, awarded the plaintiff his "actual documented
expenses," less monies already paid to him by the defendants. It also
awarded the defendants the expenses incurred by them as a result of
the collapse of the wall. The plaintiff appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/kyler42805.pdf

DARRELL MASSINGALE v. YUNG GIL LEE, P.C., ET AL.

Court:TCA

Attorneys:

Dan Channing Stanley, Knoxville, Tennessee, for the Appellant, Darrell
Massingale.

Sharel V. Hooper and Timothy J. Millirons, Chattanooga, Tennessee, for
the Appellees, Yung Gil Lee, P.C. and Yung Gil Lee, M.D.

Judge: SWINEY

First Paragraph:

Rick Kyle ("the plaintiff"), a contractor, entered into a contract
with Earl Williams and his wife, Michelle Williams (collectively "the
defendants") to build them a house. When the house was approximately
90% complete, a basement wall collapsed. The plaintiff proposed a plan
to remedy the problem. The defendants rejected the plaintiff's plan
and hired a new contractor to complete the construction. The plaintiff
brought this action for breach of contract. The defendants responded
with an answer, and coupled it with a counterclaim seeking their costs
incurred in connection with the completion of the project. The
defendants raised as an affirmative defense that the contractor was
not licensed during all of the time he was working on the house. On
interlocutory appeal to the Supreme Court, that court held that the
plaintiff was "unlicensed" under the provisions of Tenn. Code Ann. S
62-6-103(b) and was therefore only entitled to recover his "actual
documented expenses" under that statute. Followingremand, the trial
court, at a bench trial, awarded the plaintiff his "actual documented
expenses," less monies already paid to him by the defendants. It also
awarded the defendants the expenses incurred by them as a result of
the collapse of the wall. The plaintiff appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/massingaled42805.pdf

IN RE: ESTATE OF LEWIS F. RHOADES

Court:TCA

Attorneys:                          

Hugh P. Taylor, White Pine, Tennessee, for the appellant, Donald L.
Rhoades, Executor.

No appearance on behalf of Geraldine Miller and Bobbie Matthews
Turner.

Judge: SUSANO

First Paragraph:

Donald L. Rhoades ("the Executor") filed to probate the will of Lewis
F. Rhoades ("the Testator"). The Testator was survived bythree
children - the Executor, Geraldine Miller, and Bonnie Matthews Turner.
Shortly after the death of the Testator in 1999, the Executor
"informally" distributed the Testator's property by dividing the
proceeds from a certificate of deposit held jointly in the names of
the Executor and the Testator, and by dividing the balance in a
checking account held jointly by the Testator and his two daughters.
Title to both assets was held in the joint names indicated with "right
of survivorship." It was not until 2003 that the Executor offered the
Testator's will for probate. At that time, he also sought a
declaration as to the ownership of the certificate of deposit and the
checking account, and further asked the court to order that the
previously-distributed proceeds from these assets be returned to the
estate. The trial court held that the proceeds could not be recovered
since the certificate passed to the Executor in his individual
capacity outside of probate. As for the checking account, the trial
court ordered that the distributed proceeds be returned to the estate
to satisfy the claims of creditors. The Executor appeals. We agree
with the trial court that the certificate of deposit passed by
operation of law to the Executor in his individual capacity and,
hence, passed outside of probate. Consequently, the proceeds
previously distributed by the Executor could not be recouped in the
probate court proceedings. However, we disagree with the trial court's
judgment that the checking account proceeds should be returned to the
estate, as we hold that this account also passed by operation of law
to the joint owners of the account and, consequently, cannot be
returned to the estate of which it was never a part. Accordingly, we
affirm in part and reverse in part.

http://www.tba.org/tba_files/TCA/2005/rhoadesl42805.pdf

STEPHANIE ANN TROGLEN v. VINCENT LAMAR TROGLEN

Court:TCA

Attorneys:                          

Christine Mahn Sell, Chattanooga, Tennessee, for the Appellant,
Vincent Lamar Troglen.

Richard B. Teeter, Chattanooga, Tennessee, for the Appellee, Stephanie
Ann Troglen.

Judge: LEE

First Paragraph:

The issues presented in this divorce case are whether the trial court
erred in calculating Mr.Troglen's child support obligation; and
whether the trial court erred in awarding Ms. Troglen transitional
alimony. The trial court established Mr. Troglen's monthly child
support obligation at $755. Additionally, the trial court ordered Mr.
Troglen to pay to Ms. Troglen transitional alimony in the amount of
$400 per month for a period of five years. We hold that the child
support was properly calculated at $755 per month and that the trial
court properly awarded Ms. Troglen alimony. However, we modify the
alimony award from $400 per month transitional alimony for five years
to $400 per month rehabilitative alimony for five years.

http://www.tba.org/tba_files/TCA/2005/troglens42805.pdf

JAY B. WELLS, SR., ET AL. v. STATE OF TENNESSEE

Court:TCA

Attorneys:

Dan C. Stanley, Knoxville, Tennessee, for the appellants, Jay B.
Wells, Sr., and others similarly situated.

Paul G. Summers, Attorney General; Michael E. Moore, Solicitor
General; Mary M. Bers, Senior Counsel, Nashville, Tennessee, for the
appellee, State of Tennessee.

Judge: SUSANO

First Paragraph:

The issues presented in this divorce case are whether the trial court
erred in calculating Mr.Troglen's child support obligation; and
whether the trial court erred in awarding Ms. Troglen transitional
alimony. The trial court established Mr. Troglen's monthly child
support obligation at $755. Additionally, the trial court ordered Mr.
Troglen to pay to Ms. Troglen transitional alimony in the amount of
$400 per month for a period of five years. We hold that the child
support was properly calculated at $755 per month and that the trial
court properly awarded Ms. Troglen alimony. However, we modify the
alimony award from $400 per month transitional alimony for five years
to $400 per month rehabilitative alimony for five years.

http://www.tba.org/tba_files/TCA/2005/wellsj42805.pdf

STATE OF TENNESSEE v. KENDRICK LAMONT BROOKS

Court:TCCA

Attorneys:

George Morton Googe, District Public Defender; and Stephen P.
Spracher, Assistant Public Defender, Jackson, Tennessee, for the
Appellant, Kendrick Lamont Brooks.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Jody S. Pickens, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Kendrick Lamont Brooks, appeals the revocation of his
probation by the Madison County Circuit Court. On appeal, Brooks
argues that the trial court was without authority to revoke his
probation because the violation warrant was issued after his sentence
had expired. Finding this argument without merit, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/brooksk42805.pdf

STATE OF TENNESSEE v. ROBERT WAYNE PRYOR

Court:TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal) and Andrew
Jackson Dearing, III., Assistant Public Defender (at trial),  for the
appellant, Robert Wayne Pryor.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Michael Randles and Ann Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The Appellant, Kendrick Lamont Brooks, appeals the revocation of his
probation by the Madison County Circuit Court. On appeal, Brooks
argues that the trial court was without authority to revoke his
probation because the violation warrant was issued after his sentence
had expired. Finding this argument without merit, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/proyorr42805.pdf

With Memo Explaining Correction
http://www.tba.org/tba_files/TCCA/2005/pryorr42805_memo.pdf


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