Opinion Flash

May 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.

This Issue (IN THIS ORDER):
 
05 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
00 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
 

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


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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