PREVENTING LEGAL MALPRACTICE CLE
Nov. 17 - Nashville
Nov. 18- Knoxville

This three-hour seminar taught by Thomas P. Sukowicz, director of
Lawyers Risk Management Services at Hinshaw & Culbertson in Ft.
Lauderdale, Fla., is designed to help lawyers identify common
situations that give rise to malpractice claims and violations of the
Rules of Professional Conduct, and to provide practical suggestions to
help minimize or avoid claims and bar grievances. Effective risk
management has three benefits in addition to avoiding claims. It
enables firms to improve the quality of services provided to clients,
enhances law firm profitability and improves the firm’s insurability.
The first part of the seminar is a presentation by a lawyer whose
practice is entirely devoted to advising and defending lawyers and law
firms. Using examples from actual cases and experiences, the
presentation identifies many of the common pitfalls of lawyering, the
consequences to lawyers and law firms and practices and procedures
that will help avoid those errors and omissions.

Today's Opinions: November 16, 2004
Volume 10 — Number 221
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.
01 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
03 New Opinion(s) from the Tennessee Court of Appeals
01 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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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

STATE OF TENNESSEE v. STEPHEN L. DENTON

Court:TSC

Attorneys:                          

D. Mitchell Bryant, Cleveland, Tennessee, and Victoria B. Eiger, New
York, New York, for the appellant, Stephen L. Denton.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; Jerry N.
Estes, District Attorney General; and William W. Reedy and Amy Reedy,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: BARKER

First Paragraph:

The defendant, a physician, was charged in three separate indictments
with a total of twenty sexual offenses involving eleven different
victims.  The counts charged in the indictments were alleged to have
occurred over a time span of six years.  The trial court denied the
defendant's pre-trial motion to sever the counts for separate trials
and granted the State's motion to consolidate all three indictments
for a single trial.  The defendant was subsequently found guilty of
one count of sexual battery by an authority figure, six counts of
sexual battery, and three counts of assault.  He was acquitted on
three counts of rape and three counts of sexual battery.  The
defendant then presented several issues on appeal, including: (1) that
the trial court erred in denying the motion to sever the offenses; and
(2) that the defendant was improperly convicted of sexual battery by
an authority figure.  The Court of Criminal Appeals held, among other
things, that the trial court erred in denying the motion to sever.
However, the Court found this error to be harmless and therefore
affirmed the convictions.  The Court of Criminal Appeals also held
that the defendant's conviction for sexual battery by an authority
figure was proper as a physician fell within the ambit of the
applicable statute.  For the reasons stated herein, we hold that the
failure to sever the counts against the defendant was reversible
error, and therefore we  reverse the convictions.  Further, we hold
that a physician is not an authority figure as contemplated under
Tennessee Code Annotated section 39-13-527 (2003) and therefore the
defendant's conviction under this statute was improper.  Accordingly,
the judgment of the Court of Criminal Appeals is reversed, and the
case remanded for new trials.

http://www.tba.org/tba_files/TSC/dentonstephenl.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JENNIFER
SIMPSON BLACKWELL IN THE MATTER OF J.S., Jr. (DOB 6/21/96)

Court:TCA

Attorneys:                          

Jim L. Fields, Paris, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Juan G. Villasenor,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves the termination of Mother's parental rights.  The
trial court found clear and convincing evidence to terminate Mother's
parental rights on the grounds of (1) persistent conditions and (2)
substantial noncompliance with the permanency plan.  Additionally, the
trial court determined that termination of Mother's parental rights
was in Child's best interest.  Mother appeals the decision of the
trial court.  For the following reasons, we affirm.

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

RICHARD H. DEVAUGHN v. FAYETTE MULLINS, ET AL.

Court:TCA

Attorneys:                          

Richard H. DeVaughn, Pro Se.

James H. Bradberry, Jeffery T. Washburn, Dresden, Tennessee, for the
appellees, Fayette Mullins and Brenda Mullins.

Judge: FARMER

First Paragraph:

The trial court determined that the boundary line separating the
parties' properties was established by an old fence line.  We affirm.

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

CLARK DUNLAP, ET AL. v. CITY OF MEMPHIS

Court:TCA

Attorneys:                          

Rex L. Brasher, Jr., Memphis, For Appellant, Clark Dunlap

Louis P. Britt III and David P. Knox of Memphis For Appellee, City of
Memphis

Judge: CRAWFORD

First Paragraph:

Eight full-time Memphis police officers, all of them former officers
with the Memphis Police Reserve, sued for declaratory judgment finding
that time they served in the Memphis Police Reserve should be credited
toward the thirty years of service required in order to receive an
automatic promotion to the rank of Captain under Section 67 of the
Memphis Charter. Plaintiffs argued that designation of reserve
officers as "part-time employees" in Article III, Section 28-56 of the
Memphis Code, entitles them to receive such service credit. The Shelby
County Chancery Court denied their request for declaratory judgment.
Plaintiffs appeal. We affirm.

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

MICHAEL S. HOLMES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mike Mosier, Jackson, Tennessee, for the appellant, Michael S. Holmes.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Al Earls, Assistant District Attorney General, for the
appellee, State of Tennessee

Judge: GLENN

First Paragraph:

The petitioner, Michael S. Holmes, was convicted in 1997 of aggravated
robbery, aggravated assault, aggravated kidnapping, felony escape,
burglary of a vehicle, and theft of property over $1000.  His
convictions were affirmed on direct appeal.  Subsequently, he filed a
petition for post- conviction relief alleging ineffective assistance
of counsel and improper jury instructions on lesser- included
offenses.  After a review of the affidavits submitted by the
petitioner, the post-conviction court denied the petition, and this
appeal followed.  We affirm the order of the post-conviction court
denying the petition.

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

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