Middle district proposes renumbering of rules

The United States District Court for the Middle District of Tennessee proposes renumbering of its local rules to conform with the numbering of the Federal Rules of Civil and Criminal Procedure. This change will not affect the substance of the rules, but will affect only their form. The proposed changes are to be effective June 1. To view the proposed changes, along with a conversion table to indicate where the current rules can be found under the new numbering scheme, download the pdf. Comment should be sent to Clerk of Court Keith Throckmorton by May 18.
TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. JERRY W. HAYES, JR.

Court: TSC

Attorneys:

Ardena J. Garth, District Public Defender; Donna Robinson Miller (on appeal) and Steven D. Brown (at trial), Assistant District Public Defenders, for the Appellant/Defendant, Jerry W. Hayes, Jr.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and David Denny, Assistant District Attorney General, for the Appellee/Plaintiff, State of Tennessee.

Judge: CORNELIA A. CLARK

After being stopped for an identification check at the street entrance to a public housing development, Defendant, Jerry W. Hayes, Jr., was charged with driving on a suspended license and being a minor in possession of alcohol. Defendant moved to suppress the evidence collected as a result of the stop, arguing that the stop was an unconstitutional seizure. The trial court granted Defendant’s motion to suppress, and the State obtained permission to appeal. The Court of Criminal Appeals reversed the trial court, and Defendant sought permission to appeal to this Court. We granted this appeal to answer a question of first impression: whether an entry identification checkpoint at which police officers stop and question persons attempting to enter a public housing development, whose conduct is unremarkable and free from suspicion, is an unreasonable seizure in violation of the United States Constitution and article I, section 7 of the Tennessee Constitution. Under the facts presented in this case, we answer that question in the affirmative. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the trial court’s judgment granting Defendant’s motion to suppress. The case is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2006/hayesj042006.pdf


LORITA BRACKETT v. STEVE BRACKETT

Court: TCA

Attorneys:

J. Reed Dixon, Sweetwater, Tennessee, for the appellant, Steve Brackett.

Randy G. Rogers, Athens, Tennessee, for the appellee, Lorita Brackett.

Judge: CHARLES D. SUSANO, JR.

This is a divorce case. The trial court granted Lorita Brackett (“Wife”) a divorce from Steve Brackett (“Husband”), set aside to the parties their respective separate property interests, divided the net marital estate, and awarded attorney’s fees to Wife. Husband appeals, claiming that the trial court erred in its classification and division of the marital residential property. Husband also challenges the propriety of the court’s award of attorney’s fees to Wife. The trial court’s award of fees is reversed. The court’s judgment regarding the division of the net marital estate is modified, and, as such, is affirmed.

http://www.tba2.org/tba_files/TCA/2006/brackettl042006.pdf


PARRISH JONES v. JAMES M. DAVIS, WARDEN

Court: TCA

Attorneys:

Tracey Robinson-Coffee, Nashville, Tennessee, for the appellant, Parrish Jones.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General, and Mary M. Bers, Senior Counsel, for the appellee, State of Tennessee.

Judge: FRANK G. CLEMENT, JR.

A former inmate, Parrish Jones, appeals the dismissal by the Claims Commission of his claim for compensation against the Tennessee Department of Correction. He contends he was incarcerated beyond his lawful sentence for which the State is liable pursuant to Tenn. Code Ann. § 9-8- 307(a)(1)(E) for negligent care, custody and control. While incarcerated in the state penitentiary, Jones contended he was being unlawfully detained as a consequence of an unlawful sentence. He filed a petition for declaratory relief with the Department of Correction pursuant to the Administrative Procedures Act. The Department timely responded to the petition, advising Jones it refused to issue a declaratory order on the basis it believed his sentence was legal, and dismissed his petition. Thereafter, and pursuant to a writ of habeas corpus filed by Jones, the Court of Criminal Appeals ruled the sentence was illegal and remanded for re-sentencing, after which Jones was released. Subsequently, Jones filed this claim with the Claims Commission, seeking compensation for the time he was unlawfully incarcerated. The Claims Commission dismissed Jones’ claim, finding the Department of Correction’s refusal to issue a declaratory order was not the result of negligence. We affirm.

http://www.tba2.org/tba_files/TCA/2006/jonesp042006.pdf


CATHERINE EMILE LANTHORN, A MINOR, ET AL. v. SOBIESKI, MESSER & ASSOCIATES, ET AL.

Court: TCA

Attorneys:

David C. Lee, Knoxville, Tennessee, for the appellant, Catherine Emile Lanthorn, a minor, by her next friend, Alpha Bridger, her guardian.

David T. Black, Maryville, Tennessee, for the appellees, Sobieski, Messer & Associates, Diane M. Messer, and Wanda G. Sobieski.

Judge: CHARLES D. SUSANO, JR.

The plaintiff, a minor acting through a representative, filed this legal malpractice action against her1 former attorneys, alleging that the attorneys were guilty of negligence in their handling of a suit seeking damages for the wrongful death of the plaintiff’s father, Craig Wayde Lanthorn. Specifically, she claims that the defendants were negligent in filing the lawsuit outside the period of the applicable statute of limitations. The underlying wrongful death action was dismissed by the trial court because the court determined that the suit was time-barred. In the instant case, the plaintiff filed a motion to recuse, predicated upon the fact that the judge presiding over the trial court – the Honorable Thomas J. Seeley, Jr. – was the same judge who had earlier dismissed the wrongful death case. The trial court denied the motion to recuse. Later, the defendants filed a motion for summary judgment, contending that they had, in fact, filed the wrongful death action in a timely manner. They relied upon a recent decision of the United States Supreme Court. The plaintiff did not file a response to the motion. The trial court granted the defendants’ motion. The plaintiff appeals the trial court’s denial of her motion to recuse, but does not challenge the propriety of the grant of summary judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2006/lanthornc042006.pdf


WILLIAM B. McCULLEY and JEAN McCULLEY, n/o/k and Administrators of the Estate of ROBIN McCULLEY, v. DR. BRIAN GARBER, M.D.

Court: TCA

Attorneys:

Brandon K. Fisher, Clinton, Tennessee, for appellants.

Robert M. Stivers, Knoxville Tennessee, for appellee.

Judge: HERSCHEL PICKENS FRANKS

In this action based on defendant’s alleged medical malpractice, the Trial Court granted defendant summary judgment on the grounds the statute of limitations had run on the claim. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2006/mcculleyw042006.pdf


RICHARD S. PARKER v. MARGARET MARY BRENNAN

Court: TCA

Attorneys:

Charles J. Williams and Erik O. Thorngren, Nashville, Tennessee, for Appellant, Richard S. Parker.

Noel F. Stahl and Jeffrey Zager, Nashville, Tennessee, for Appellee, Margaret Mary Brennan.

Judge: DONALD P. HARRIS, SR.

On this appeal, the Appellant challenges the award by the trial court of expenses totaling $2,611.42, for videotaping discovery depositions and other related video services as discretionary costs pursuant to Rule 54.04, Tennessee Rules of Civil Procedure. This amount was awarded in addition to expenses for stenographic transcripts of the same depositions. Finding expenses related to videotaping and video related services not specifically identified as allowarule, we modify the trial court's award to delete those expenses.

http://www.tba2.org/tba_files/TCA/2006/parker042006.pdf


TODAY'S NEWS

Legal News
Legislative News
Election 2006
BPR Actions

Legal News
Jury says March stole from law firm
Jurors deliberated for less than an hour yesterday before convicting former Nashville lawyer Perry March of theft for stealing $23,000 in legal fees from his former law firm. The speedy verdict came after a day and a half of testimony and means the jury, which had been sequestered, did not have to spend a third night at a local hotel. Read more about the trial in the
Tennessean.
Bar exam results to be released Friday
The Tennessee Board of Law Examiners will release on Friday the list of candidates who passed the state bar examination that was administered in February. The list will be posted on the TBALink web site as soon as it is released, usually just after noon.
Watch here for bar exam results
AG files suit for tobacco money
Tennessee Attorney General Paul G. Summers filed suit yesterday against a number of tobacco companies that are parties to the landmark 1998 Tobacco Master Settlement Agreement. That national agreement placed specific marketing restrictions on the tobacco companies and also required substantial annual payments to the states. The dispute concerns how much the cigarette makers owe Tennessee this year under the agreement.
Read the attorney general's press release.
IRS still needs Tennesseans to apply for taxpayer panel
With only a week until the deadline, the Volunteer State has not lived up to its name when it comes to applying to serve on the Taxpayer Advocacy Panel. IRS Media Specialist Dan Boone says only a handful of people from Tennessee have applied to be on the panel that provides a forum for citizens from each state to make suggestions regarding IRS decision making. Find the application and read more about it
here.
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Election 2006
Hibbett announces as candidate for Criminal Court judge
Robert “Bobby” Hibbett, a lifelong resident of Wilson County, has announced he is a candidate for Criminal Court Judge 15th Judicial District. The 15th Judicial District includes Jackson, Macon, Smith, Trousdale and Wilson counties. Read more details in the
Macon County Times.
BPR Actions
Dyersburg attorney censured
Dyersburg attorney Charles Agee was censured by the Tennessee Supreme Court April 17 for borrowing $8,000 from the complainant that was protected by liens signed by his client and himself. Read the BPR's
news release.
Nashville lawyer suspended
Nashville lawyer Kathy A. Leslie was suspended by the BPR Feb. 28 for 36 months retroactive to April 6, 2004. Leslie misappropriated client trust funds in violation of DR 9- 102(A)(B) in two separate matters.
Read the news release.

 
 
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