Opinion Flash

February 12, 2003
Volume 9 — Number 025

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.

This Issue (IN THIS ORDER):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 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, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

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




Gregory D. Smith, Clarksville, For Appellant, John Van den Bosch, Jr.

No Brief Filed By Appellee                       


First Paragraph:

The appellant, an attorney, was sued by his client for legal
malpractice for failure to file a motion for post-conviction relief in
a criminal matter.  Appellant's Motion for Summary Judgment was denied
and he appeals.  We affirm.

ANDREW ROBERT DOWNS v. CRYSTAL BAILEY and JONI DOWNS Court:TCA Attorneys: J. Thomas Caldwell, Ripley, Tennessee, for the appellants, Crystal Bailey and Joni Downs. G. Christopher Kelly, Atlanta, Georgia, for the appellee, Andrew Robert Downs. Judge: LILLARD First Paragraph: This is a child custody case. The two children involved were born to the mother and father during their marriage. In 1998, the mother and father were unable to care properly for the children, so the mother's sister (the children's aunt) obtained temporary custody. The mother and father divorced in 1999. In 2000, the father filed a petition for custody, claiming that he and his common-law wife could provide a stable home for the children. The aunt sought to retain custody. The mother intervened, arguing that, if permanent custody were not granted to the aunt, then custody should be awarded to her. After a hearing, the trial court granted custody to the father. The mother and the aunt appeal, both claiming that they are entitled to custody. We affirm, finding that the father's rights are superior to those of the aunt, and that the trial court did not err awarding custody to the father rather than the mother. http://www.tba.org/tba_files/TCA/downsar.wpd
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. F. E. B. Court:TCA Attorneys: George T. Underwood, Jr., Knoxville, Tennessee, for the Appellant, F.E.B. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee Department of Children's Services Judge: GODDARD First Paragraph: This appeal from the Knox County Juvenile Court questions whether the Juvenile Court erred in terminating the parental rights of the Appellant, F.E B., with respect to his child, R.B., upon petition of the Appellee, State of Tennessee Department of Children's Services. We affirm the judgment of the Juvenile Court and remand for collection of costs. http://www.tba.org/tba_files/TCA/feb.wpd
HAL GERBER v. VIRGINIA STARR SEGAL Court:TCA Attorneys: Ed M. Hurley, Memphis, Tennessee, for the appellant, Virginia Starr Segal. James D. Wilson, Memphis, Tennessee, for the appellee, Hal Gerber. Judge: FARMER First Paragraph: This case addresses a fee dispute between an attorney and his client. The trial court granted the attorney summary judgment as to the reasonableness of his fee. We reverse the grant of summary judgment, and likewise the final judgment, as both were the direct result of an erroneous application of the doctrine of judicial estoppel. http://www.tba.org/tba_files/TCA/gerber_opn.wpd
HAL GERBER v. VIRGINIA STARR SEGAL Court:TCA HIGHERS DISSENTING http://www.tba.org/tba_files/TCA/gerber_dis.wpd
CHARLES LEATHERWOOD, et al. v. JOSEPH SCOTT WADLEY, et al. Court:TCA Attorneys: J. Houston Gordon and Kim E. Linville, Covington, For Plaintiffs-Appellants, Charles Leatherwood and Shelby Leatherwood Russell E. Reviere, Keely N. Wilson, Jackson, For Defendant-Appellee, Wayne Moore Wesley A. Clayton, Andrew V. Sellers, Jackson, For Defendants-Appellees, Joseph Scott Wadley and Garnertown Speedway Judge: CRAWFORD First Paragraph: Plaintiff spectator/invitee was struck and injured by wheel that broke and caromed from defendant driver's racing vehicle during a stock car race at defendant-owner's motor speedway. Plaintiff brought claims against defendants alleging negligence, gross negligence, and strict liability for failure to exercise the required degree of care in the operation of, or participation in, an ultrahazardous activity, and included an additional action against defendant-driver seeking recovery on strict liability grounds under the Tennessee Products Liability Act. Wife of spectator joined in suit against defendants, seeking recovery for loss of consortium. The circuit court granted defendants' individual summary judgment motions. We affirm. http://www.tba.org/tba_files/TCA/leather.wpd
DONALD C. MCCARY v. STATE OF TENNESSEE Court:TCCA Attorneys: Howell G. Clements, Chattanooga, Tennessee (on appeal), and Rich Heinsman, Assistant District Public Defender (at trial), for the appellant, Donald C. McCary. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The petitioner, Donald C. McCary, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, he alleges (1) that he was not competent to enter pleas of guilty; (2) that he did not knowingly, voluntarily, and intelligently plead guilty; (3) that the trial court impermissibly participated in plea negotiations; (4) that he did not receive the effective assistance of counsel; and (5) that he is entitled to post-conviction relief because a presentence report was not prepared before the sentencing hearing. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mccarydc.wpd
STATE OF TENNESSEE v. ALAN E. MONDAY, ALIAS Court:TCCA Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Alan E. Monday. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Alan E. Monday, was convicted by a Knox County Criminal Court jury of reckless homicide in violation of Tennessee Code Annotated section 39-13-215 (1997). He was sentenced as a career offender to twelve years incarceration in the Tennessee Department of Correction. On appeal, the appellant contends (1) that the evidence was insufficient to convict the appellant of reckless homicide; (2) that the trial court erred in failing to require the prosecution to identify the reckless act upon which it relied; and (3) that the trial court erred in sentencing the appellant. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mondaya.wpd

Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

See the intrsuctions at the beginning of this edition of Opinion Flash.

While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi


But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

HomeContact UsPageFinderWhat's NewHelp
© Copyright 2003 Tennessee Bar Association