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):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
RONALD CRAFTON v. JOHN VAN den BOSCH, JR.
Gregory D. Smith, Clarksville, For Appellant, John Van den Bosch, Jr.
No Brief Filed By Appellee
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
J. Thomas Caldwell, Ripley, Tennessee, for the appellants, Crystal
Bailey and Joni Downs.
G. Christopher Kelly, Atlanta, Georgia, for the appellee, Andrew
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.
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. F. E. B.
George T. Underwood, Jr., Knoxville, Tennessee, for the Appellant,
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
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
HAL GERBER v. VIRGINIA STARR SEGAL
Ed M. Hurley, Memphis, Tennessee, for the appellant, Virginia Starr
James D. Wilson, Memphis, Tennessee, for the appellee, Hal Gerber.
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.
HAL GERBER v. VIRGINIA STARR SEGAL
CHARLES LEATHERWOOD, et al. v. JOSEPH SCOTT WADLEY, et al.
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
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.
DONALD C. MCCARY v. STATE OF TENNESSEE
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.
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.
STATE OF TENNESSEE v. ALAN E. MONDAY, ALIAS
Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Alan
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
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.
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