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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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
02 - 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. BRADLEY FERRELL

Court: TSC

Attorneys:

George A. Burke, Sr., Spencer, Tennessee for the appellant, Bradley Ferrell.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; and J. Ross Dyer, Senior Counsel; Lisa Zavagiannis, District Attorney General; and Larry Bryant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Bradley Ferrell, was convicted of misdemeanor escape. We granted review to determine whether the trial court committed prejudicial error by excluding expert testimony from a physician as to the defendant's ability to form the requisite mens rea for the offense. On direct appeal, the Court of Criminal Appeals affirmed, holding that the trial court did not commit prejudicial error by excluding the expert's testimony under the rule established in State v. Hall, 958 S.W.2d 679 (Tenn. 1997). After consideration of the record and controlling authority, we hold that the trial court erred by excluding the expert testimony offered to negate the mens rea for the offense. Because the error more probably than not affected the result, a new trial is the appropriate remedy. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand to the trial court for a new trial.

http://www.tba2.org/tba_files/TSC/2009/ferrellb_012909.pdf


U.S. BANK, N.A., as servicer for the TENNESSEE HOUSING DEVELOPMENT AGENCY v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court: TSC

Attorneys:

Michael F. Rafferty, Memphis, Tennessee, for the appellant, U.S. Bank, N.A., as Servicer for the Tennessee Housing Development Agency.

Charles L. Trotter, Jr., Huntingdon, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Michael R. Campbell and Kathryn M. Russell, Chattanooga, Tennessee, for the Amicus Curiae, Property Casualty Insurers Association of America.

Daniel W. Small, Paul Allen England, and Timothy L. Amos, Nashville, Tennessee, for the Amicus Curiae, Tennessee Bankers Association.

Robert V. Redding, Jackson, Tennessee, for the Amicus Curiae, Mortgage Bankers Association.

Judge: LEE

The issue presented in this case is whether the commencement of foreclosure proceedings constitutes an increase in hazard for notice purposes under a standard mortgage clause in an insurance policy. The parties to this dispute are the bank that loaned funds to a homeowner for the purchase of a house and the insurance company that issued a personal fire and extended coverage insurance policy on the premises. After the homeowner became delinquent on her payments, the bank began foreclosure proceedings by notifying the homeowner of its intent to foreclose on the house. No notification of the foreclosure was given to the insurance company which insured the house against fire loss. Before the foreclosure process was complete, the homeowner filed for bankruptcy, which stayed the foreclosure proceedings. Thereafter, the house was destroyed by fire. The insurance company refused to pay the insurance proceeds to the bank on the theory that the commencement of foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company under the policy. The bank filed suit against the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act. The trial court granted partial summary judgment to the bank, concluding that the bank's failure to give the insurer notice of the foreclosure proceedings did not invalidate the insurance coverage. The Court of Appeals reversed, finding that the bank's initiation of foreclosure proceedings amounted to an increase in hazard under the policy and the bank's failure to provide notice precluded coverage. After careful review, we conclude that commencement of foreclosure proceedings does not constitute an increase in hazard under the terms of the insurance policy or the applicable statutory provisions, and therefore, no notice was required to be given to the insurance company. Accordingly, we reverse the judgment of the Court of Appeals.

http://www.tba2.org/tba_files/TSC/2009/usbank_012909.pdf


STATE EX REL. RHONDA F. CORRELL v. RONALD D. CORRELL, JR.

Court: TCA

Attorneys:

Lance A. Evans, Maryville, Tennessee, for the appellant, Ronald D. Correll, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, Warren Jasper, Senior Counsel, General Civil Division, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Rhonda F. Correll.

Judge: SUSANO

Rhonda F. Correll ("Wife"), through the State of Tennessee, filed a petition for contempt against her former spouse, Ronald D. Correll, Jr. ("Husband"), for failing to make ordered child support payments. The court awarded Wife a child support arrearage of $16,496.20 as of February 25, 2008. The court also found Husband in civil contempt and ordered him jailed until he purged himself of contempt by making a payment of approximately $2,000 by noon on March 18, 2008. Husband appeals. We vacate the order finding Husband in contempt. Our action is based upon the failure of the trial court to make factual findings as to (1) whether Husband had willfully failed to pay support and (2) whether, at the time Husband was ordered incarcerated, he had the present ability to pay the purge amount of approximately $2,000. We also remand for a determination by the trial court as to whether Husband's petition to modify his child support obligation should be granted. In addition, we hold that, because there was no timely objection in the trial court to the admission of a Social Security Administration decision ("the SSA decision") finding that Husband was not disabled within the meaning of the Social Security Act, the trial court did not err in utilizing the SSA decision in reaching its own decision.

http://www.tba2.org/tba_files/TCA/2009/correllr_012909.pdf


ESTATE OF MARTHA S. FRENCH v. THE STRATFORD HOUSE, ET AL.

Court: TCA

Attorneys:

M. Chad Trammell and S. Drake Martin, Jackson, Tennessee, Richard C. May, Knoxville, Tennessee, and Brian G. Brooks, Greenbrier, Arizona, for the appellant Kimberly S. French, Administratrix of the Estate of Martha S. French.

Clifford Wilson, Nashville, Tennessee, for the appellees HP/Stratford House, Inc., and HP/Holding, Inc.

Alaric H. Henry and Thomas M. Horne, Chattanooga, Tennessee, for the appellees, OP Chattanooga, Inc., Tandem Health Care, Inc., Tandem Health Care of Ohio, Inc., and The Stratford House.

Judge: SUSANO

This case involves a complaint for personal injury and wrongful death filed by Kimberly S. French ("the Administratrix"), Administratrix of the Estate of Martha S. French ("the Deceased"), against the owners and operators of a nursing home ("the Defendants"). The Deceased was a resident of the nursing home - The Stratford House - from April 3, 2003, to July 23, 2003. The Administratrix claims that the Defendants failed to provide the Deceased with basic care such as filling her water pitcher, feeding her, cleaning her after incontinence, bathing her and turning her every two hours to avoid pressure sores. The Administratrix argues that, due to lack of care, the Deceased developed pressure sores that were not properly treated, became infected and ultimately caused her death from sepsis. The Administratrix, who is the daughter of the Deceased, brought suit, alleging claims for ordinary negligence, negligence per se under state and federal regulations of nursing homes, violations of the Tennessee Adult Protection Act ("TAPA"), Tenn. Code Ann. section 71-6-101 et seq. (2004 & Supp. 2008), and medical malpractice under Tenn. Code Ann. section 29-26-115 et seq. (2000 & Supp. 2008). The trial court held that the only cognizable claims against Stratford House were for medical malpractice. The court granted the Defendants summary judgment on all of the Administratrix's non-medical malpractice claims and on her claim for punitive damages. Two of the defendants sought summary judgment as to all of the claims; the court denied their motion. The Administratrix appeals and both sides raise issues. We affirm in part and vacate in part.

http://www.tba2.org/tba_files/TCA/2009/frenchm_012909.pdf


RURAL DEVELOPMENTS, LLC v. JOHN H. TUCKER, CLARA TUCKER, GENE CARMAN REAL ESTATE AND AUCTIONS FAMILY PARTNERSHIP, LP d/b/a GENE CARMAN REAL ESTATE AND AUCTION, GENE CARMAN AND BARRY WITCHER
CORRECTION


Court: TCA

Attorneys:

Christopher J. Oliver and Laura M. Williams, Nashville, Tennessee, for the appellant Rural Developments, LLC.

B. Keith Williams and James R. Stocks, Lebanon, Tennessee, for the appellees John and Clara Tucker.

Robyn Beale Williams and Derrick A. Free, Nashville, Tennessee, for the appellees Gene Carman, Barry Witcher, Gene Carman Real Estate and Auction, and Gene Carman Real Estate and Auction Family Partnership, LP.

Judge: KURTZ

This case involves allegations of intentional misrepresentation and associated causes of action all related to the sale of a spring for commercial development. Appellant contends that the output of the spring was misrepresented. The trial court granted summary judgment as to a number of causes of action, and the appellant then non-suited his remaining claims and appealed. For the reasons stated herein we affirm the trial court.

http://www.tba2.org/tba_files/TCA/2009/ruraldev_Corr_012909.pdf


IN THE MATTER OF RYAN B. & STEVEN B.

Court: TCA

Attorneys:

Clifford E. Wilson, Madisonville, Tennessee, for the appellants, Tammy B. and Steven B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

Judge: BLACKWOOD

The trial court terminated the parental rights of Tammy B. ("the mother") and Steve B. ("the father") to their minor child, Ryan B., based upon persistence of conditions that led to the removal of the child from the parents' custody by the Department of Children's Services, and upon a finding that termination of the parental rights was in the best interest of the minor child. The trial court declined to terminate the parents' rights to the minor child, Steven B., finding that termination was not in the best interest of the child. The parents and DCS appeal. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/ryanb_012909.pdf


MARSHA SALYER, ET AL. v. FELICIA McCURRY, ET AL.

Court: TCA

Attorneys:

Michael E. Large, Bristol, Tennessee, for the Appellants, Marsha Salyer and David Salyer.

S. Curtis Rose, Kingsport, Tennessee, for the Appellees, Felicia McCurry and Richard Chantry d/b/a Century 21 Pro Service Realtors.

Judge: SWINEY

Marsha Salyer ("Plaintiff") was interested in purchasing a house in Washington County, Tennessee. She was being shown a house by Felicia McCurry ("McCurry"), a real estate agent with Century 21 Pro Service Realtors ("Century 21"). Plaintiff and McCurry approached a closed door in the house, and Plaintiff asked McCurry what was behind the door. McCurry responded that it was a bedroom and then told Plaintiff to go on in. Plaintiff opened the door and took a step into what McCurry had told her was a bedroom. Unfortunately, the door led to a basement and Plaintiff fell down the stairs and was injured. This lawsuit followed. McCurry and Richard Chantry d/b/a Century 21 filed a motion for summary judgment claiming that Plaintiff was at least 50% at fault for her own injuries since she willingly stepped into a dark and unfamiliar area. Defendants claimed that because Plaintiff was at least 50% at fault, Plaintiff's case was barred by comparative fault principles. The Trial Court agreed and granted the motion for summary judgment. Finding a genuine issue of material fact as to whether Plaintiff was at least 50% at fault, we vacate the judgment of the Trial Court and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2009/salyerm_012909.pdf


LAUREN DIANE TEW v. DANIEL V. TURNER, ET AL.

Court: TCA

Attorneys:

Carl R. Ogle, Jr., Jefferson City, Tennessee, for the appellant, Edward Michael Turner.

S. Douglas Drinnon and Larry Ray Churchwell, Dandridge, Tennessee, for the appellee, Lauren Diane Tew.

Ronald J. Attanasio, Knoxville, Tennessee, for the appellee, Daniel V. Turner, Personal Representative of the Estate of Gregory R. Turner.

Judge: SUSANO

Lauren Diane Tew ("Wife") and Gregory R. Turner ("Husband") were co-owners of a one-half interest in two tracts of land located on the Clarence DeBord Farm ("the DeBord property"). The other one-half interest was owned by Edward Michael Turner ("Brother"), who is Husband's brother. Wife filed this lawsuit seeking to have the land sold. Following a mediation, attended by all the parties, an agreed judgment was entered, by the terms of which Brother was awarded what the parties refer to as Tract 1 and a $50,000 interest in what they call Tract 2. Brother later sought to have the agreed judgment set aside, claiming that no agreement had been reached at the mediation and that he did not give his attorney authority to sign the agreed judgment. Following a hearing, at which all of the parties testified, the trial court found that the parties, in fact, had reached an enforceable agreement and that the terms of their agreement were accurately set forth in the agreed judgment. Brother appeals, claiming the trial court erred in not setting aside the agreed judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2009/tewl_012909.pdf


DAN WADE, BUILDING COMMISSIONER FOR HAMILTON COUNTY, TENNESSEE v. WILLIAM J. PATTERSON, JR., ET AL.

Court: TCA

Attorneys:

Steven W. Grant and Catherine Giannasi, Chattanooga, Tennessee, for the appellants, William J. Patterson, Jr., and Alison B. Patterson.

David W. Norton, Chattanooga, Tennessee, for the appellee, Dan Wade, Building Commissioner for Hamilton County, Tennessee.

Judge: SUSANO

William J. Patterson, Jr., and his wife, Alison B. Patterson, own a house in Hamilton County. The house is in an R-1 zone (single-family residential district). After the Pattersons moved from this residence, they began renting it to vacationers on a daily/weekly basis. Dan Wade, the Building Commissioner for Hamilton County ("the Commissioner"), informed the Pattersons that such rentals were an impermissible use under the applicable zoning regulations; he instructed them to cease and desist renting their house for commercial purposes. After the Pattersons refused, this litigation ensued. The trial court eventually granted the Commissioner's motion for summary judgment, finding that the Pattersons' use of their house for commercial purposes violated the applicable zoning regulations. The trial court also rejected the Pattersons' argument that the zoning regulations were unconstitutionally vague as applied to them. After finding that the Pattersons knowingly violated the zoning regulations, the trial court imposed a penalty of $49.99 for each day of a knowing violation, which totaled $22,395.52. The Pattersons appeal. For the reasons discussed at length in this opinion, we find that the zoning regulations are unconstitutionally vague as applied to the Pattersons. The judgment of the trial court is, therefore, reversed and this case is dismissed.

http://www.tba2.org/tba_files/TCA/2009/waded_012909.pdf


JOSEPH ANGEL SILVA, III v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert T. Carter, Tullahoma, Tennessee (on appeal); and Donna Orr Hargrove, District Public Defender, and Andrew Jackson Dearing, III, Assistant Public Defender (at trial), for the appellant, Joseph Angel Silva, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Joseph Angel Silva, III, appeals the denial of post-conviction relief by the Circuit Court for Bedford County from his conviction for aggravated rape, a Class A felony, for which he received a sentence of twenty-two years in confinement. He contends that (1) he received the ineffective assistance of counsel at trial, (2) he received the ineffective assistance of counsel on appeal, (3) his conviction was based on evidence obtained through an unconstitutional search and seizure, (4) his conviction was based on an unduly suggestive photographic lineup that violated his rights to due process, (5) the State's use of perjured testimony violated his due process rights, (6) his conviction was based on evidence obtained through compelled self-incrimination, and (7) his due process rights were violated pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Concluding that the petitioner has waived issues (2) through (7) because he did not present them to the trial court and that the petitioner has not demonstrated he received the ineffective assistance of counsel, we affirm the trial court's denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/silvaj_012909.pdf


STATE OF TENNESSEE v. CURTIS WORD

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender, and Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, Curtis Word.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Charles Frank Crawford, Jr., District Attorney General; and Hollyn H. Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Curtis Word, pleaded guilty to one count of conspiracy to sell less than one-half gram of a Schedule II controlled substance, cocaine, and two counts of selling a Schedule III controlled substance, dihydrocodeinone. All three offenses are Class D felonies. He was sentenced as a Range I, standard offender to three years' confinement on each count, to be served concurrently. Appealing the manner of serving the sentences, the defendant contends the trial court erred in denying him an alternative sentence. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wordc_012909.pdf


TODAY'S NEWS

Legislative News
Legal News
TennBarU CLE
TBA Member Services

Legislative News
General Assembly chief legal counsel Tewes to leave amid political juggling
Ellen Tewes, chief legal counsel for the Tennessee General Assembly and a 30-year plus employee of the state, stepped down from her post this week. Deputy Joseph Barnes has been appointed to take her place. According to multiple sources, a move to see Tewes leave was led by Lt. Gov. Ron Ramsey and eventually agreed to by new Speaker of the House Kent Williams. The reasons for the dismissal vary depending on political loyalties. Tewes's last day will be tomorrow.
Read the detailed account from NashvillePost.com [subscription fees have been waived for TBA members for this story]
Legal News
ACLU asks Obama to release Bush-era memos
In one of his first acts in office, President Barack Obama said he would increase the amount of information the government makes available to the public. Now the American Civil Liberties Union is holding him to that, and asking him to release dozens of memos under his control that could shed light on secret Bush-era interrogation, detention and surveillance activities.
NewsChannel9 carried this AP story
Law layoffs hit nearly 1,400 in January
The pace of attorney axings seems to be picking up, with a total of 1,381 legal industry layoffs reportedly being pursued by firms based in the U.S. and abroad during January, one law blog reports. This figure includes both attorneys and staff. "More firms are in a fragile condition than I've ever seen," legal consultant William Brennan of Altman Weil Inc. recently told the Wall Street Journal.
ABAJournal.com connects you to this story, including a list of BigFirms with layoffs
Tennessee prosecutor awaits fate of Guantanamo
Nashville-based federal prosecutor Lee Deneke had been regularly flying back and forth to the Naval base in Guantanamo Bay, Cuba, where he was overseeing 14 cases, including that of the infamous Khalid Shaikh Mohammed. Those cases are now on hold as the new Obama administration makes plans to close the detention center and determine how to deal with the 200-plus detainees. Deneke now works in Washington until his special assignment ends in 2010.
Read more in the Tennessean
Knox judicial commissioner appointments don't get the rubber stamp
Knox County General Sessions Court judges today rejected one judicial commissioner appointment -- that of Assistant Deputy Law Director David Creekmore -- and only "conditionally approved" the appointment of Knoxville Vice Mayor Mark Brown. The two were appointed by the County Commission earlier in the week. General Sessions Court Presiding Judge Andrew Jackson IV did not offer a reason for the decisions. Judicial commissioners are licensed attorneys who sign criminal warrants, conduct the initial court appearances of prisoners via closed-circuit television and are paid $64,000 annually.
The News Sentinel reports
Liquor-by-the-drink AG opinion in flux
An Attorney General opinion dealing with liquor-by-the-drink laws issued earlier this week was apparently unissued soon thereafter. "We are taking another look at it to address some questions that the requesters had," AG spokeswoman Sharon Curtis Flair told the Knoxville News Sentinel. The requesters were state Sens. Jamie Woodson and Tim Burchett.
Read more in The News Sentinel
DHS will not renew contract with Shelby juvenile court
The state Department of Human Services notified Shelby County officials late today that it will not renew its $14.8 million contract with Shelby County Juvenile Court for child-support collection and enforcement services. Instead of renewing it, DHS began moving Wednesday to put the next contract out for a competitive bid process open to private companies -- which provide the services in Tennessee's other three urban counties -- and other agencies.
Find out more from the Commercial Appeal
TennBarU CLE
CLE features top law tech bloggers
The TBA's annual "Law Tech" seminar returns Feb. 20 in Nashville with a day-long program filled with tips, trends, guidance for handling ethical dilemmas brought about by technology and more. Featured this year will be the authors of several well-known technology blogs including, Rick Borstein, author of Acrobat for Legal Professionals, Tom Mighell, co-author of Collaboration Tools and Technologies: Smart Ways to Work Together and "Inter Alia," and Ben Stevens, publisher of the well-known practice management blog, "The Mac Lawyer."
Learn more or register today
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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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