Opinion Flash

September 21, 2004
Volume 10 — Number 182

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):
01 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
08 New Opinion(s) from the Tennessee Court of Appeals
03 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


BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
v. EDWARD A. SLAVIN, JR.
CORRECTED OPINION

Court:TSC

Attorneys:                          

Edward A. Slavin, Jr., St. Augustine, Florida, and David A. Stuart,
Clinton, Tennessee, for the appellant, Edward A. Slavin, Jr.

Laura L. Chastain, Nashville, Tennessee, for the appellee, Board of
Professional Responsibility.

Judge: BIRCH

First Paragraph:

We have this case on direct appeal pursuant to Tennessee Supreme Court
Rule 9, section 1.3, from an order of the Chancery Court suspending
Edward A. Slavin, Jr., Esq., from the practice of law for three years.
 Slavin appeals, raising the following issues:  (1) whether Chancellor
Richard E. Ladd erred in refusing to recuse himself; (2) whether
Slavin's in-court speech is protected by the First Amendment; and (3)
whether the sanctions imposed by the Chancellor are excessive.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC/slavinedward.wpd

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0920.wpd

MICHAELA BABB v. HAMILTON COUNTY BOARD OF EDUCATION 

Court:TCA

Attorneys:                          

Jeffrey D. Boehm, Chattanooga, Tennessee, for the Appellant, Michaela
Babb

D. Scott Bennett, Chattanooga, Tennessee, for the Appellee, Hamilton
County Board of Education

Judge: LEE

First Paragraph:

This is a suit brought by a school teacher against the Hamilton County
Board of Education under the Tennessee Governmental Tort Liability Act
wherein the teacher alleges negligence on the part of the Board of
Education as a result of an assault on her by a student who was
re-enrolled in school and re-placed in her classroom despite the fact
the student had assaulted her the previous month and been suspended
from school. The trial court granted the Board of Education's motion
for summary judgment.  We hold that the decision to place the student
back in the teacher's classroom, despite the previous assault, was a
discretionary action for which the Board of Education was immune from
liability.  Accordingly, we affirm and remand to the trial court.

http://www.tba.org/tba_files/TCA/babbmich.wpd

SHEILA FRAZIER, ET AL. v. LEWIS COUNTY BEER BOARD

Court:TCA

Attorneys:                          

J. Todd Faulkner and K. Cody Allison, Nashville, Tennessee, for the
appellants, Sheila Frazier and  Dwight Frazier.

Wm. Landis Turner, Hohenwald, Tennessee, for the appellee, The Lewis
County Beer Board.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between the owners of a convenience
store and the Lewis County Beer Board over a permit to sell beer. 
After the Beer Board denied their application because their store was
within two thousand feet of a church, the owners filed a petition for
review in the Chancery Court for Lewis County asserting that the Beer
Board was selectively enforcing its distance rule.  The owners
appealed after the trial court granted the Beer Board's motion to
dismiss.  We have determined that this appeal is now moot because the
persons applying for the permit sold the store while this appeal was
pending.

http://www.tba.org/tba_files/TCA/fraziersheila.wpd

IN THE MATTER OF: J.J.S., O.J.S., A.L.S., AND C.M.S.

Court:TCA

Attorneys:                          

Janet D. Powell; M. Keith Siskin, Murfreesboro, Tennessee, for the
appellants, J.S. and M.S.

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond,
Senior Counsel, for the appellee, State of Tennessee, Department of
Children's Services.

Judge: COTTRELL

First Paragraph:

Because of questions regarding the trial court's denial of appointed
counsel in this proceeding that resulted in the termination of
parental rights, the Department of Children's Services has
acknowledged that the trial court's judgment must be vacated.  We
agree.

http://www.tba.org/tba_files/TCA/jjsojs.wpd

IN RE: THE ESTATE OF DILLARD PHILLIPS, Deceased, LEROY PHILLIPS, v.
CORA CHITWOOD

Court:TCA

Attorneys:                          

Brian J. Hunt, and Mark S. Cizek, Clinton, Tennessee, for Appellant.

Johnny V. Dunaway, LaFollette, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In this action to contest a Will, the Trial Court granted proponent
summary judgment.  On appeal, we vacate and remand.

http://www.tba.org/tba_files/TCA/phillipsdest.wpd

IN RE:  P.M. 

Court:TCA

Attorneys:                          

Dana Michelle Ausbrooks, Franklin, Tennessee, for the appellant, J.M.,
the father.

Paul G. Summers, Attorney General and Reporter; and Brent M. Hayes and
Richard M. Murrell, Assistant Attorney Generals, for the appellee,
State of Tennessee.

Robert H. Plummer, Jr., Franklin, Tennessee, Guardian Ad Litem.

Judge: CLEMENT

First Paragraph:

Father appeals termination of his parental rights.  Father conceded
and the juvenile court found that grounds exist for termination of
Father's parental rights. The juvenile court also found that
termination of Father's parental rights was in the child's best
interest.  Father appeals the finding that termination was in the
child's best interest.  We affirm.

http://www.tba.org/tba_files/TCA/pm.wpd

DEBORAH LYNN (KATZ) SMITH v. STEVEN WHITE SMITH

Court:TCA

Attorneys:                          

Michael W. Edwards, Russell E. Edwards, Hendersonville, Tennessee, for
the appellant, Deborah Lynn (Katz) Smith.

Roger A. Sindle, Hendersonville, Tennessee, for the appellee, Steven
White Smith.

Judge: COTTRELL

First Paragraph:

Wife appeals the trial court's distribution of marital property as
inequitable in view of her contribution to the acquisition of the only
significant asset, the marital home.  The trial court clearly
recognized that without Wife's contribution from her separate
property, the parties would have been unable to buy the house.  We
modify the trial court's award of the equity in the house and affirm
as modified.

http://www.tba.org/tba_files/TCA/smithdeborahl.wpd

IN RE: T.A.R. AND D.F.R.

Court:TCA

Attorneys:                          

Kelli Barr Summers, Brentwood, Tennessee; J. Stephen Mills, Nashville,
Tennessee, for the appellants, V.R.H. and B.R.

Paul G. Summers, Attorney General and Reporter; Juan G. Villasenor,
Assistant Attorney General, for the appellee, Tennessee Department of
Children's Services.

Thomas H. Miller, guardian ad litem.

Judge: COTTRELL

First Paragraph:

The trial court terminated the parental rights of both Mother and
Father, and both appealed.  Because  statutory grounds were proved by
clear and convincing evidence and it was also shown by clear and
convincing evidence that termination of parental rights was in the
best interest of the children, we affirm the decision of the trial
court.

http://www.tba.org/tba_files/TCA/tardfr.wpd

SYLVESTER YOUNG, v. BANK ONE, N.A.

Court:TCA

Attorneys:                          

Sylvester Young, pro se.

William Timothy Hill, Nashville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court awarded possession to purchaser of property at
foreclosure sale and dismissed possessor's action to rescind
foreclosure.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/youngsilv.wpd

DORIAN SORIANO BAUTISTA v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

S. Jason Whatley, Columbia, Tennessee, for the appellant, Dorian
Soriano Bautista.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; William Michael McCown, District Attorney General; and
Michael David Randles, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Dorian Soriano Bautista, appeals from the Bedford
County Circuit Court's dismissal of his petition for post-conviction
relief from his conviction for theft over one thousand dollars, a
Class D felony.  He contends that he received the ineffective
assistance of counsel because his attorneys failed to explain to him
the adverse consequences that his guilty plea and conviction could
have on his resident alien status, which led to his deportation.  We
affirm the trial court.

http://www.tba.org/tba_files/TCCA/bautistadorians.wpd

RAYMOND MITCHELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jack Davis, Nashville, Tennessee, for the appellant, Raymond Mitchell.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Raymond Mitchell, was convicted in 1996 of two counts
of rape and one count of attempted rape.  He pled nolo contendere to a
third rape charge, which was reduced to sexual battery.  He received a
total effective sentence of fifteen years as a Range I, standard
offender, and his convictions were affirmed on direct appeal. 
Subsequently, he filed a petition for declaratory judgment in the
Chancery Court for Davidson County, alleging he was entitled to earn
sentence reduction credits and challenging his classification as a
"multiple rapist."  The trial court dismissed the petition and he
appealed.  The Court of Appeals held that the Department of Correction
("DOC") did not err by classifying the petitioner as a multiple rapist
and determining he was not eligible for sentence reduction credits.
The petitioner then filed a petition for post-conviction relief,
alleging ineffective assistance of counsel, prosecutorial misconduct,
improper jury instructions, double jeopardy violations, and again
challenging the sentence enforcement by the DOC.  Following a hearing,
the post-conviction court denied the petition, and this appeal
followed.  We affirm the order of the post-conviction court denying
the petition but remand for entry of corrected judgments in Counts 2
and 3 to reflect that the petitioner is a "multiple rapist," and his
sentences are to be served as such.

http://www.tba.org/tba_files/TCCA/mitchellraymond.wpd

THOMAS R. WARREN, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Thomas R. Warren, Jr., Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Lawrence Ray Whitley, District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Thomas R. Warren, Jr., appeals the Sumner County
Criminal Court's dismissal of his petition for post-conviction relief.
 He claims that the trial court erred by denying his petition to test
evidence pursuant to T.C.A. S 40-30-303 (2003), the Post-Conviction
DNA Analysis Act of 2001.  We affirm the trial court's dismissal of
the petition.

http://www.tba.org/tba_files/TCCA/warrenthomasr.wpd

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