TennBarU TeleSeminar: ABA Model Rules: A Practical Update on Ethics
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June 28 & 29 * Noon to 1 p.m. (Central Time) * Teleseminar Lawyer ethics rules are in a state of flux. This two-part program will provide listeners with an update on proposed changes to the ABA Model Rules of Professional Conduct and a broad-based review of developments in practical lawyer ethics. The Model Rules form the basis of the rules of professional responsibilities in virtually all states and the ABA Ethics 2000 Commission proposed a series of revisions rules. Fourteen states have adopted the revisions and at least 36 other jurisdictions are actively considering adopting them. In one form or another, these changes are coming to a jurisdiction near you.

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Today's Opinions: June 27, 2005
Volume 11 — Number 121
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
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

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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


RICKEY HOGAN v. DAVID G. MILLS, WARDEN, ET AL.

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Kathy Denise Aslinger, Assistant Attorney
General, for the appellant, State of Tennessee.

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellee, Rickey Hogan.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether habeas corpus relief is
available when: (1) the trial court imposed concurrent sentences for
two offenses committed by the petitioner while on parole; and (2) the
trial court failed to order these new sentences to be served
consecutively to the remaining sentence for the paroled offense. We
conclude that the sentences are not illegal under either claim and
that the petitioner is not entitled to habeas corpus relief.
Accordingly, we reverse the judgment of the Court of Criminal Appeals
and reinstate the trial court's judgment dismissing the petition for
writ of habeas corpus.

http://www.tba.org/tba_files/TSC/2005/hoganr62705.pdf

BRENDA MYERS v. KENNETH MYERS, JR.

Court:TCA

Attorneys:                          

Sidney R. Seals, Oneida, Tennessee, for the appellant, Kenneth Myers,
Jr. Charles B. Sexton, Oneida, Tennessee, for the appellee, Brenda
Myers.

Judge: SUSANO

First Paragraph:

Brenda Myers brought this action against her former husband, Kenneth
Myers, Jr., alleging that he had assaulted her on December 21, 1998.
The matter went to trial. The jury returned a verdict for the
plaintiff and awarded her compensatory damages of $500,000 - the full
amount she had sought in her complaint. The defendant filed a motion
for a new trial. In response to the motion, the trial court reduced
the jury's award to $150,000. The defendant appeals, raising an
evidentiary issue as well as two procedural issues. In addition, the
defendant contends that he should have been granted a new trial rather
than being burdened with a remitted judgment. We hold that the trial
court's decision to suggest a 70% remittitur effectively destroyed the
verdict of the jury. Accordingly, we vacate the trial court's judgment
and remand this case for a new trial, but solely on the issue of
damages.

http://www.tba.org/tba_files/TCA/2005/myersb62705.pdf

BEN POE v. JAMES G. NEELEY, ET AL.

Court:TCA

Attorneys:                          

Martha Lionberger, Morristown, Tennessee, for the appellant, Ben Poe.

Judge: SUSANO

First Paragraph:

The Tennessee Department of Labor and Workforce Development ("the
Department") denied the unemployment compensation claim of Ben Poe
("the plaintiff"). Following a decision of the Appeals Tribunal
favorable to the plaintiff, the Board of Review ("the Board") found
that the plaintiff engaged in work-related misconduct, thereby
disqualifying him from receiving benefits. Specifically, the Board
found that the plaintiff violated the work attendance policy of his
employer, Specialty Defense Systems ("SDS"), (1) by taking a week off
for a leg injury, but failing to turn in the paperwork that would have
qualified him for leave under the Family and Medical Leave Act ("the
FMLA"); and (2) by failing to call in on a daily basis as required by
SDS's policy. The Board also found that the plaintiff violated the
policy bywalking off the job on one occasion, and bycalling in sick
without a doctor's excuse on another. The plaintiff filed a petition
for judicial review in the trial court, which petition was denied.
Although the plaintiff did not complete the paperwork for the FMLA,we
hold that it was not his obligation to do so in the absence of written
notice from SDS per the requirements of the FMLA. Therefore, the
plaintiff cannot be penalized for a failure to comply with the FMLA.
Furthermore, he cannot be "docked" for those days that he called in
sick pursuant to the policy of his employer. Accordingly, we find that
when his absences are re-computed in light of our holding, he did not
have the requisite number of absences under SDS's policy to justify
his discharge. Therefore, the judgment of the trial court and that of
the Board are reversed, and the decision of the Appeals Tribunal,
which held that the plaintiff was eligible for unemployment
compensation benefits, is reinstated.

http://www.tba.org/tba_files/TCA/2005/poeb62705.pdf

STEVEN B. SOEST v. JILL M. (MASON) SOEST

Court:TCA

Attorneys:                          

Tom McFarland, Kingston, Tennessee, for the Appellant Steven B. Soest.

Lance A. Evans, Maryville, Tennessee, for the Appellee Jill M. (Mason)
Soest.

Judge: SWINEY

First Paragraph:

Thisappeal involves the equitable division of the parties' marital
assets, includingthe Tier II railroad retirement benefits of Steven B.
Soest ("Husband"). When Jill M. (Mason) Soest ("Wife") and Husband
were divorced, the Trial Court stated its intent to divide Husband's
"retirement benefits" as equally as possible. Under federal law,
Husband's Tier I retirement benefits are not subject to division in
divorce proceedings, but TierII benefits have no such restriction. The
Trial Court entered an Order awarding Wife 100 %of Husband's Tier II
benefits, and Husband appeals. We vacate the judgment of the Trial
Court and remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/soests62705.pdf

STATE OF TENNESSEE v. PETER JAMES BATES

Court:TCCA

Attorneys:                          

William A. Kennedy, Blountville, Tennessee, for the appellant, Peter
James Bates.

Paul G. Summers, Attorney General and Reporter; William G. Lamberth,
II, Assistant Attorney General; H. Greeley Wells, Jr., District
Attorney General; and Kent Chitwood, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Peter James Bates, was convicted by a jury in the
Sullivan County Criminal Court of selling .5 grams or more of cocaine
within 1,000 feet of a school. He received a sentence of twentyfour
years incarceration in the Tennessee Department of Correction. On
appeal, the appellant challenges the sufficiency of the evidence, the
trial court's rulings on various suppression motions, and sentencing.
Upon our review of the record and the parties' briefs, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/batesp62705.pdf

EDWARD JEROME HARBISON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Rosemarie L. Bryan, Chattanooga, Tennessee, and Dana C. Hansen,
Knoxville, Tennessee, for the appellant, Edward Jerome Harbison.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
William H. Cox, III, District Attorney General; and H. C. Bright,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: OGLE

First Paragraph:

In 1983, a Hamilton County Criminal Court jury convicted the
petitioner, Edward Jerome Harbison, of first degree murder and
sentenced him to death. The supreme court affirmed the conviction on
direct appeal. See State v. Harbison, 704 S.W.2d 314 (Tenn. 1986).
Subsequently, the petitioner filed a post-conviction petition. The
trial court denied post-conviction relief, and this court affirmed.
See Edward Jerome Harbison v. State, No. 03C01-9204-CR-00125, 1996
Tenn. Crim. App. LEXIS 307 (Knoxville, May 20, 1996). Upon alleged
discovery of new evidence, the petitioner moved to reopen his
post-conviction petition. The trial court converted the motion to a
petition for writ of error coram nobis and denied relief. Upon review
of the record and the parties' briefs, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/2005/harbisone62705.pdf

RANDY OVERBAY v. HOWARD CARLTON, WARDEN and the
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Randy Overbay, Mountain City, Tennessee, Pro se.

Paul G.Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Randy Overbay, appeals from the trial court's order
dismissing his petition for writ of habeas corpus. The state has filed
a motion requesting that this court affirm the trial court's denial of
relief pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. The petition fails to establish a cognizable claim for habeas
corpus relief. Accordingly, the state's motion is granted and the
judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/overbayr62705.pdf


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