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TODAY'S OPINIONS
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MICHAEL J. CALDERONE v. GLENN CHRISMAN, CHIEF OF POLICE, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY, THE MURFREESBORO CITY POLICE DEPARTMENT, THE CITY OF MURFREESBORO, TRUMAN JONES, SHERIFF, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY, RUTHERFORD COUNTY SHERIFF DEPARTMENT, AND RUTHERFORD COUNTY, TENNESSEE

Court: TCA

Attorneys:

D. Randall Mantooth, Nashville, Tennessee, for the appellants, Truman L. Jones, Jr. and Rutherford County, Tennessee.

James D.R. Roberts, Jr., Janet L. Layman, and Henry H. Carpenter, Jr., Nashville, Tennessee, for the appellee, Michael J. Calderone.

Judge: BENNETT

This appeal involves section 1983 claims against a county and its sheriff on the basis of injuries allegedly sustained by the plaintiff while in the custody of the sheriff's department. We conclude that the trial court erred in denying the sheriff's motion for summary judgment in his individual capacity because the plaintiff did not produce any evidence to rebut the sheriff's testimony that he had no involvement in or knowledge of the events in question. We further conclude that the trial court erred in denying the county's motion for summary judgment because there was no evidence of any causal connection between a county policy or custom and the plaintiff's alleged injuries.

http://www.tba2.org/tba_files/TCA/2009/calderonem_123009.pdf


JAMES T. HARVEY AND WIFE, MIRANDA HARVEY v. JAMES A. ELLIS AND WIFE, PATTY D. ELLIS, ET AL.

Court: TCA

Attorneys:

W. Timothy Harvey, Clarksville, Tennessee, for the appellants, James T. Harvey and Miranda Harvey.

Michael R. Jennings, Lebanon, Tennessee, for the appellees, James A. Ellis and Patty D. Ellis.

Tecia Puckett Pryor, Smithville, Tennessee, for the appellees, Elmer Lee Ellis, Jr. and Ada Sue Ellis.

Bratten Hale Cook, II, Smithville, Tennessee, for the appellees, Billy F. House and Susan House.

J. Hilton Conger, Smithville, Tennessee, for the appellee, DeKalb County Tennessee.

Judge: DINKINS

Landowners filed suit against predecessors-in-interest, adjoining landowners, and DeKalb County, asking, among other things, that title to their property be quieted in them according to a boundary survey done prior to closing and asserting a claim for breach of the Purchase and Sale Agreement against their predecessors-in-interest. The predecessors-in-interest filed a counterclaim, asking, among other things, for reformation of the deed on the ground of mistake in the boundary survey. The trial court dismissed landowners' claims, granted reformation of the deed, and denied predecessors-in-interest's request for attorneys' fees pursuant to a provision of the Purchase and Sale Agreement. Landowners and predecessors-in-interest appeal. Finding that the predecessors-in-interest were entitled to attorneys' fees, the trial court's finding is reversed and remanded. The judgment is affirmed in all other respects

http://www.tba2.org/tba_files/TCA/2009/harveyj_123009.pdf


NORMA LUTTRELL v. HIDDEN VALLEY RESORTS, INC., AKA MOUNTAIN PROPERTIES

Court: TCA

Attorneys:

James W. Greenlee, Sevierville, Tennessee, for the appellant, Norma Luttrell.

R. Alexander Johnson, Sevierville, Tennessee, for the appellee, Hidden Valley Resorts, Inc., aka Mountain Properties.

Judge: SUSANO

Elizabeth R. Doyle, who is not a party to this litigation, subdivided a parcel of property she owned in Jefferson County. Doyle sold "Tract #3" to the plaintiff, Norma Luttrell. Luttrell's deed to Tract #3 also granted an "easement upon adjoining Tract #2...for the existing septic system field lines servicing Tract #3." The defendant, Hidden Valley Resorts, Inc., aka Mountain Properties, eventually acquired Tract #2, but not directly from Doyle. The defendant began to use its property in a way that interfered with the plaintiff's easement, and the plaintiff filed her petition demanding that the defendant be enjoined from interfering with her easement rights. The case was tried without a jury, after which the trial court entered a judgment in favor of the defendant. The trial court found that the defendant had no actual notice of the easement prior to purchasing it, and further that the defendant had no constructive notice because a "standard title search of the chain of title for Defendant's Tract #2 would not reveal Plaintiff's easement." The plaintiff moved for a new trial on two grounds: (1) that easements which run with the land do not depend on notice, and (2) that the trial court went beyond the scope of the pleadings in holding that the easement was unenforceable. The trial court denied the motion. The plaintiff appeals. We reverse the judgment and remand for entry of a judgment in favor of the plaintiff.

http://www.tba2.org/tba_files/TCA/2009/luttrelln_123009.pdf


REGINOL L. WATERS v. GAIL RAY, Commissioner of the Tennessee Department of Correction, and GLEN TURNER, Warden HCCF

Court: TCA

Attorneys:

Appellant/Petitioner Reginol L Waters, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela S. Lorch, Nashville, Tennessee, for Appellee/Respondent Gail Ray, Commissioner of the Tennessee Department of Correction.

James I. Pentecost and Jon A. York, Jackson, Tennessee, for Appellee/Respondent Glen Turner, Warden HCCF.

Judge: KIRBY

This appeal concerns the reimbursement of criminal court costs. After a jury trial in June 2001, the petitioner/inmate was found guilty of various crimes. The judgments of conviction were entered in August 2001. The court costs from the criminal trial were billed in part to the state. In 2004, the State informed the petitioner that, in accordance with T.C.A. section 40-25-143, the department of correction would begin deducting amounts from his inmate trust fund account to reimburse the State for court costs associated with his criminal trial. T.C.A. section 40-25-143 became effective on July 1, 2001. The petitioner filed a petition for declaratory relief, arguing that T.C.A. section 40-25-143 was unconstitutionally applied retroactively to him, because the State was required to pay his court costs under T.C.A. section 40-25-129, which was in effect when his jury verdict was returned. The trial court granted summary judgment in favor of the respondents. The petitioner then filed a motion to alter or amend, which was ultimately denied. The petitioner now appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/watersr_123009.pdf


JOHN MARK WATKINS, SURVIVING SPOUSE OF AMY ROSE WATKINS, DECEASED v. AFFILIATED INTERNISTS, P.C., AND TRAVIS K. PARDUE, M.D.

Court: TCA

Attorneys:

David Randolph Smith and Richard A. Demonbreun, Nashville, Tennessee, for the appellant, John Mark Watkins.

Dixie Cooper and Brian Cummings, Nashville, Tennessee, for the appellees, Affiliate Internists, P.C., and Travis K. Pardue, M.D.

Judge: KIRBY

This is a medical malpractice wrongful death action. The plaintiff's decedent underwent surgery and developed an infection after the surgery. The decedent visited the defendant medical clinic, the office of the defendant primary care physician, to treat the pain from the infection. The defendant physician was the supervising physician at the clinic. The decedent was seen by a physician assistant at the clinic, but not by the defendant physician. The physician assistant prescribed the decedent nausea medicine and enough Demerol to take four pills a day for three weeks. The physician assistant did not schedule a follow-up visit. After about two weeks, the decedent called the defendant clinic complaining of nausea and vomiting. The decedent was told to go to the emergency room if she felt dehydrated; she did not go to the emergency room. That same day the decedent died as a result of acute combined drug intoxication. The decedent's husband filed this lawsuit against the defendant medical clinic and the defendant physician, alleging medical malpractice and wrongful death. During the pendency of the litigation, the defendant physician was disciplined administratively for failing to comply with medical regulations that required, inter alia, that the physician review the physician assistant's prescription of controlled medication to the decedent. The plaintiff then sought to amend the complaint to include a claim of negligence per se against the physician based on the regulatory infraction; his motion was denied. After much discovery, the defendants filed a motion for summary judgment, arguing that the expert testimony adduced by the plaintiff was insufficient to establish the standard of care or that the alleged negligence caused the decedent's death. The trial court granted the motion. The plaintiff now appeals. We affirm the trial court's decision in part and reverse in part. We find that the regulation requiring the physician to review the decedent's chart and data within a certain time period constitutes a standard of care, and that the trial court erred in denying part of the plaintiff's motion to amend the complaint to assert a claim of negligence per se. We affirm the grant of summary judgment on the remaining claims.

http://www.tba2.org/tba_files/TCA/2009/watkinsj_123009.pdf


BARBARA L. WOLF v. JOHN HOYLE CLACK, ET AL.

Court: TCA

Attorneys:

Barbara L. Wolf, Jupiter, Florida, appellant, pro se.

M. Edward Owens, Jr., Knoxville, Tennessee, for the appellee, First American Title Insurance Co.

Judge: SUSANO

This litigation followed a denial of Barbara L. Wolf’s claim for coverage under a title insurance policy issued by First American Title Insurance Company ("First American"). Initially, Wolf filed suit against a neighboring landowner, John Hoyle Clack, seeking to clear her title to approximately 20 acres of land after discovering that different surveys of their adjoining properties reflected an area of overlapping acreage. Wolf subsequently amended her complaint to add First American as a defendant. She argues that her claim with respect to the overlapping acreage is covered by the First American title insurance policy she purchased when she acquired the land that included the 20+ disputed acres. First American argues that Wolf's claim is not covered by the policy. As a consequence of that position, it moved for judgment on the pleadings. The trial court granted the motion and dismissed Wolf's complaint against First American. Wolf and Clack later entered into an agreement by the terms of which the disputed acreage was evenly divided between the two parties. Wolf appeals from the order granting First American judgment on the pleadings. We affirm.

http://www.tba2.org/tba_files/TCA/2009/wolfb_123009.pdf


STATE OF TENNESSEE v. TERRY BYINGTON

Court: TCCA

Attorneys:

Michael F. McClellan Carrico, Gate City, Virginia, for the appellant, Terry Byington.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Terry Byington, appeals his convictions by a jury in the Sullivan County Criminal Court for driving under the influence (DUI), fourth offense, a Class E felony; driving under the influence, a Class A misdemeanor; and driving on a revoked license, a Class B misdemeanor. The trial court merged the DUI convictions and sentenced the Defendant to four years for DUI and to six months for driving on a revoked license, to be served concurrently, for an effective four-year sentence in the Department of Correction. In this delayed appeal, the Defendant contends that the trial judge committed reversible error by refusing to recuse herself because she had formerly prosecuted the Defendant. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/byingtont_123009.pdf


STATE OF TENNESSEE v. JOSEPH BENJAMIN COMER, IV

Court: TCCA

Attorneys:

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the appellant, Joseph Benjamin Comer, IV.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Russell Johnson, District Attorney General; and Frank A. Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Joseph Benjamin Comer, IV, was convicted in the Loudon County Criminal Court on his guilty plea of reckless endangerment, a Class A misdemeanor, for which he received an eleven-month, twenty-nine-day sentence on probation. At issue in this appeal is the amount of restitution for damages caused by his crime. We affirm the judgment in part and remand the case to the trial court for entry of a corrected judgment reflecting that restitution is to be paid in monthly installments of $200.

http://www.tba2.org/tba_files/TCCA/2009/comerj_123009.pdf


STATE OF TENNESSEE v. JOSHUA ALLEN HUTTON

Court: TCCA

Attorneys:

Mack Garner (at trial), Maryville, Tennessee; and J. Liddell Kirk (on appeal), Knoxville, Tennessee, for the Appellant, Joshua Allen Hutton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General; Michael L. Flynn, District Attorney General; Tammy Harrington, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant pled guilty to driving on a revoked license, possession of an altered government issued ID, fraudulent use of a credit card, theft of property over $500, theft of property under $500, two counts of forgery, and two counts of identity theft, and he agreed to a four-year sentence, with the trial court to determine the manner of service of the sentence. The trial court ordered the Defendant's sentence to be served in the Tennessee Department of Correction, and it is from this judgment that the Defendant now appeals, asserting the trial court should have imposed an alternative sentence. After a thorough review of the record and relevant authorities, we conclude the trial court did not err when it imposed incarceration. As such, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/huttonj_123009.pdf


LIONEL R. LINDSEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Keith A. Hopson, Kingsport, Tennessee, for the appellant, Lionel R. Lindsey.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; H. Greeley Welles, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Lionel R. Lindsey, appeals from the Sullivan County Criminal Court's denial of post-conviction relief. He argues on appeal that his trial counsel was ineffective by failing to properly investigate his defense and by failing to object to certain inadmissible evidence. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/lindseyl_123009.pdf


STATE OF TENNESSEE v. XAVIER TYRONE NOLAN

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Adam Elrod, Knoxville, Tennessee (at trial), for the appellant, Xavier Tyrone Nolan.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha Monette Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Xavier Tyrone Nolan, was convicted by a Knox County Criminal Court jury of attempted voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony. The trial court merged the attempted voluntary manslaughter conviction into the aggravated assault conviction and sentenced the Defendant to a Range I sentence of five years in the Department of Correction. On appeal, he argues that the trial court improperly enhanced his sentence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/nolanx_123009.pdf


WILLIAM ARTHUR SHELTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kenneth L. Miller, Cleveland, Tennessee, for the appellant, William Arthur Shelton.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Steve Bebb, District Attorney General; and Wayne Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, William Arthur Shelton, appeals from the dismissal of his petition for post-conviction relief. In this appeal, he contends that he was denied the effective assistance of counsel at trial and on appeal. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/sheltonw_123009.pdf


JAMES H. SIMONTON, JR., v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James H. Simonton, Jr., Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and H. Greeley Wells, Jr., District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, James H. Simonton, Jr., appeals as of right from the Sullivan County Criminal Court's summary dismissal of his petition for post-conviction relief attacking his twelve-year sentence as a career offender for maintaining a dwelling where controlled substances were used or sold, a Class D felony. The Petitioner argues that the post-conviction court erred in (1) finding that his sentence was not imposed in contravention to State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), (2) summarily dismissing his post-conviction petition without the appointment of counsel or amendment of the petition, and (3) failing to recuse itself from the consideration of the petition. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/simontonj_123009.pdf


JOHN S. STEELE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John S. Steele, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, John S. Steele, filed in the Washington County Criminal Court a petition for post-conviction relief, alleging the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition as being time-barred, and the petitioner appeals. The State filed a motion requesting that this court affirm the post-conviction court's dismissal pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/steelej_123009.pdf


STATE OF TENNESSEE v. WILLIAM J. WILSON

Court: TCCA

Attorneys:

Timothy A. Deere, Signal Mountain, Tennessee, for the Appellant, William J. Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; J. Michael Taylor, District Attorney General; J. Michael Taylor, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, William J. Wilson, pled guilty to two counts of attempted aggravated sexual battery, a Class C felony, and the trial court sentenced him to two consecutive sentences of six years, one year to be served in prison and the remainder to be served on probation. After a warrant was filed, the trial court found that the Defendant had violated his probation by dating, befriending, residing or uniting with someone who had children under the age of eighteen, because the Defendant has filed for a marriage license with a woman who had "several" children under the age of eighteen. The trial court ordered the Defendant returned to probation for ten years and required that he not have any contact with his fiance, including telephone contact. The Defendant appealed, contending: (1) that the condition of probation requiring he not date or befriend a person with minor children had not been articulated to him by the trial court, as required by statute, and, further, is unconstitutional; and (2) that the condition that he refrain from telephone contact with his fiance is unconstitutional. For the reasons stated herein, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wilsonw_123009.pdf

THOMAS concurring
http://www.tba2.org/tba_files/TCCA/2009/wilsonw_CON_123009.pdf


TODAY'S NEWS

Passages
Legal News
TBA Member Services

Passages
Services tonight for Knoxville lawyer
Knoxville lawyer Ted H. Lowe Sr. died Sunday at age 78 from injuries sustained in an automobile accident this month. Lowe worked as a certified public accountant after graduating from the University of North Carolina at Chapel Hill. He later put himself through law school at the University of Tennessee while teaching accounting courses. He began practicing law in 1966 with lawyer Ray H. Jenkins and remained with that firm for nearly 20 years. He was in private practice at the time of his death.

Visitation was scheduled for today from 5 to 7 p.m. eastern time with the funeral following at 7 p.m. at Rose Mortuary Mann Heritage Chapel. In lieu of flowers, the family requests that donations be made to Home Federal Bank to endow a scholarship for an underprivileged student in Little Pine, N.C.
Read more about Lowe in the News Sentinel
Legal News
Judicial handbook urges use of independent experts
While all trial judges have the ability to call independent experts to assess the credibility of complex civil lawsuits, few do. In fact, records show that only 20 published cases across the country have involved independent experts. Hamilton County Circuit Court Judge Neil Thomas says he spearheaded a campaign to write and publish a handbook on the use of independent experts to help educate judges. The book is supported by the American Medical Association and the American Bar Association, although some plaintiffs' lawyers oppose the idea. The handbook will be distributed to trial judges nationwide. ABA past president Dennis Archer said the book "will peg Tennessee as the national model for more fairness at the trial court level."
Read more in the Times Free Press
Law school ready to open doors
The University of Memphis Cecil C. Humphreys School of Law will welcome students to its new downtown facility on Jan. 11 after a smooth move from the old campus during two weeks in December. The law library move was finalized Dec. 14, while the faculty, staff and student organizations moved Dec. 15, 16 and 17. An opening gala hosted by law school alumni will be held Jan. 16.
The Memphis Daily News has a detailed review of the new facility
County to lose funding for civil rights noncompliance
Tennessee's Lewis County faces the loss of millions of dollars in federal funding after the county commission failed to muster enough votes to affirm compliance with Title VI of the Civil Rights Act of 1964. That section prohibits discrimination on the basis of race, color, and national origin. Lewis County Mayor Jonah Keltner said he was shocked by the vote, but hopes it will pass when the commission re-examines the issue on Jan. 19. The Times Free Press reported the news.

Judges use 'offbeat' sentences for first time offenders
When probation and community service won't cut it, Davidson County General Sessions Court Judge Dan Eisenstein gets creative. He's among a growing group of judges who believe that first time offenders will be better rehabilitated if their punishment includes something that hits close to home. His sentences have included requirements that a shoplifter talk to his parents about why he stole, that a low-level drug possessor write an essay on the innocent lives lost in the drug trade, and that a young person spreading hateful messages about law enforcement stand on the street corner with a sign reading "Respect the police."
Read about these alternative sentences in the Tennessean
U of M prof honored with award
Andrew McClurg, professor of law and the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law, has received the Excellence in Legal Education Award from the law school's alumni board. The award is given each year to a professor who has excelled in classroom instruction; service to the profession, community, law school and university; and research, scholarship and publication. The Memphis Daily News reported the story.

TBA Member Services
CompuPay offers deals for TBA members
CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees.
Learn more about CompuPay's benefits

 
 
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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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