Opinion FlashMay 3, 2002
Volume 8 Number 077
What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.
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Howard H. Vogel
ARTHUR BLAIR v. MARILYN BADENHOPE Court:TSC Attorneys: Edward Kershaw, Greeneville, Tennessee, for the appellant, Arthur Blair. John T. Milburn Rogers, Greeneville, Tennessee, for the appellee, Marilyn Badenhope. Judge: BARKER First Paragraph: This case addresses the applicable standard to modify a child-custody order awarding custody to a non-parent. In 1993, the child's natural father agreed to give custody to the child's maternal grandmother, and a consent order was entered accordingly. The father later petitioned to modify that order, asserting that a material change in circumstances had occurred and claiming that he had a superior parental right to the custody of his daughter. The trial court denied the petition, finding that no material change in circumstances had occurred warranting modification, and a majority of the Court of Appeals affirmed. We granted the father's application for permission to appeal and hold that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of custody, even when that order resulted from the parent's voluntary consent to give custody to the non-parent. Instead, a natural parent seeking to modify a custody order that grants custody to a non-parent must show that a material change in circumstances has occurred, which makes a change in custody in the child's best interests. We also affirm the judgment of the Court of Appeals finding that the father has not shown a material change in circumstances that makes a change of custody in his daughter's best interests. http://www.tba.org/tba_files/TSC/blaira_opn.wpd ARTHUR BLAIR v. MARILYN BADENHOPE Court:TSC DROWOTA CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/blaira_condis.wpd ARTHUR BLAIR v. MARILYN BADENHOPE Court:TSC BIRCH DISSENTING http://www.tba.org/tba_files/TSC/blaira_dis.wpd
BILLY JOE CHILDRESS v. NATASHA BARNES CURRIE, et al. Court:TSC Attorneys: J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Billy Joe Childress. Charles W. Fowler and Adam F. Glankler, Memphis, Tennessee, for the appellee, Natasha Barnes Currie. Judge: ANDERSON First Paragraph: The issue presented in this case is whether a confidential relationship arises as a matter of law when an unrestricted power of attorney is executed but not exercised. The trial court held that a confidential relationship existed and that the resulting presumption of undue influence could only be rebutted by proof of independent advice to the decedent. Because there was no such proof, the trial court set aside the jury's verdict and found that the will was invalid. On appeal, the Court of Appeals concluded that since the attorney-in-fact was unaware of the power of attorney at the time the decedent executed her will, there was not a confidential relationship between the attorney-in-fact and the decedent and, therefore, no presumption of undue influence. After a thorough review of the record and the relevant authority, we hold that a confidential relationship does not arise as a matter of law when an unrestricted power of attorney is executed without being exercised. Accordingly, the judgment of the Court of Appeals is affirmed. http://www.tba.org/tba_files/TSC/childressbj.wpd
MARY JOHNSON, et al. v. LeBONHEUR CHILDREN'S MEDICAL CENTER, et al. Court:TSC Attorneys: Parke S. Morris, Robertson Morrow Leatherman, and Thomas R. Prewitt, Jr., Memphis, Tennessee, for the appellant, LeBonheur Children's Medical Center. Randall Loftin Kinnard, Nashville, Tennessee, and Steven Rand Walker, Memphis, Tennessee, for the appellee, Mary Johnson. Buckner Wellford and John H. Dotson, Memphis, Tennessee, for the amicus curiae, UT Medical Group, Inc. Catherine S. Mizell, Knoxville, Tennessee, and Rebecca P. Tuttle, Memphis, Tennessee, for the amicus curiae, University of Tennessee. Judge: HOLDER First Paragraph: We granted appeal to determine whether the vicarious liability of a private hospital may be based upon the acts or omissions of a state-employed physician resident. We hold that a private hospital may be vicariously liable under the doctrine of respondeat superior based solely upon the acts of a state-employed physician resident when the resident is acting as an agent of the hospital. The judgment of the Court of Appeals is affirmed, and the case is remanded to the trial court for proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/johnsonm.wpd
STATE OF TENNESSEE v. RALPH DEWAYNE MOORE Court:TSC Attorneys: Walter B. Johnson, II, Harriman, Tennessee, for the appellant, Ralph Dewayne Moore. Paul G. Summers, Attorney General and Reporter, Mark A. Fulks, Assistant Attorney General, J. Scott McCluen, District Attorney General, and Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: Ralph Dewayne Moore was indicted and tried on one count of disorderly conduct and two counts of aggravated assault. The jury was instructed that misdemeanor assault and felony reckless endangerment were lesser-included offenses of aggravated assault. Moore was subsequently convicted of disorderly conduct, one count of misdemeanor assault, and one count of felony reckless endangerment. The conviction was affirmed by the Court of Criminal Appeals. On appeal to this Court, Moore contends that: (1) felony reckless endangerment is not a lesser-included offense of aggravated assault; and (2) the evidence presented at trial is insufficient to support the conviction for felony reckless endangerment. We conclude that the offense of felony reckless endangerment is not included within the offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon; thus, we hold that the jury was improperly instructed. As a result of our holding, we find it unnecessary to address Moore's second contention. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to the trial court. http://www.tba.org/tba_files/TSC/moore.wpd
STATE OF TENNESSEE v. PERRY THOMAS RANDOLPH Court:TSC Attorneys: Charles L. Hardin, Cookeville, Tennessee, for the appellant, Perry Thomas Randolph. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; William Edward Gibson, District Attorney General; and David Patterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted review to determine whether a "seizure" within the meaning of the Fourth Amendment to the United States Constitution and article I, S 7 of the Tennessee Constitution occurs when a police officer activates the blue lights on his patrol car and orders a person to stop, but the person flees and does not submit to authority. The trial court suppressed evidence obtained from the defendant after determining that the officer lacked reasonable suspicion, supported by specific and articulable facts, that the defendant had committed a crime before seizing the defendant by activating his blue lights and ordering him to stop. The Court of Criminal Appeals concluded that there was no seizure because the defendant fled and did not yield to the officer's show of authority and reversed the judgment. After a thorough review of the record and the relevant authority, we hold that under the circumstances of this case, the defendant was seized when the officer activated the blue lights on his patrol car, ordered the defendant to stop, and pursued him for several blocks. Because the officer lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from the defendant was properly suppressed by the trial court. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court. http://www.tba.org/tba_files/TSC/randolphpt.wpd
IN RE: PROPOSED TENNESSEE RULES OF PROFESSIONAL CONDUCT Court:TSC - Rules ORDER SCHEDULING ADDITIONAL ORAL ARGUMENT http://www.tba.org/tba_files/TSC_Rules/conductamend.wpd
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