House Judiciary Committee sets summer session

The House Judiciary Committee has set July 27-28 for its annual Summer Study Session to review legislation requiring more in-depth consideration. Proposals to be studied include (1) a bill providing for prevailing party attorney's fees, (2) legislation addressing the so-called "castle defense," (3) the Sorry Works! Bill and (4) several Public Records Act measures. The full list of bills may be obtained from the Judiciary Committee office at 32 Legislative Plaza, Nashville, TN 37243 or by calling (615) 741-1351.
TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. DELAWRENCE WILLIAMS

Court: TSC

Attorneys:

Charles M. Agee, Jr., Dyersburg, Tennessee, for the Appellant, Delawrence Williams.

Paul G. Summers, Attorney General and Reporter; Michael R. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee.

Judge: ANDERSON

We granted this interlocutory appeal to review (1) whether the information used to obtain a search warrant to search the defendant's residence was provided by a "citizen informant" and thus presumptively reliable; and (2) whether the information, if not provided by a "citizen informant," nonetheless established probable cause under State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). The trial court denied the defendan's motion to suppress after finding that the information had not been provided by a citizen informant but that it nonetheless established probable cause under Jacumin. The Court of Criminal Appeals concluded that the information was presumptively reliable because it had been given by a citizen informant and upheld the denial of the motion to suppress without applying Jacumin. After reviewing the record and applicable authority, we hold (1) that the trial court and the Court of Criminal Appeals properly granted the interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure and (2) that although the information used to obtain the search warrant for the defendant's residence was not provided by a "citizen informant," it established probable cause under Jacumin. The judgment is, therefore, affirmed for the reasons herein.

http://www.tba2.org/tba_files/TSC/2006/williamsd052306.pdf


MAE ELLEN WILLIAMS, ET AL. v. BAPTIST MEMORIAL HOSPITAL, ET AL.
Corrected Case


Court: TSC

Attorneys:

Mimi Phillips and R. H. "Chip" Chockley, Memphis, Tennessee, for the Appellants, Mae Ellen Williams, Percy Williams, and Mytina Singleton, Conservator for Mae Ellen Williams.

Harold W. McLeary, Jr., Kenneth O. Cooper, W. Bradley Gilmer, and M. Beth Rainwater, Memphis, Tennessee, for the Appellees, Becky Wright, M.D., and Metropolitan Anesthesia Alliance.

Judge: ANDERSON

We granted this appeal to determine whether the trial court erred in denying the plaintiffs' motion for an enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure and in granting summary judgment to the defendants. A majority of the Court of Appeals affirmed the judgment. After reviewing the record and applicable authority, we conclude (1) that the trial court did not abuse its discretion in denying the plaintiffs' motion for an enlargement of time because the plaintiffs failed to show excusable neglect under Rule 6.02 and (2) that the trial court properly granted summary judgment to the defendants. As a result, we affirm the Court of Appeals' judgment.

http://www.tba2.org/tba_files/TSC/2006/williamsm_corr052306.pdf


DEBORAH COLEMAN v. KELLOGG USA, INC.

Court: TWCA

Attorneys:

William Steven Taylor, Memphis, Tennessee, for appellant, Deborah Coleman.

W. Stephen Gardner, R. Joseph Leibovich, Memphis, Tennessee, for appellee, Kellogg Company USA, Inc.

Judge: WALLACE

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Tennessee Supreme Court of findings of fact and conclusions of law. The trial court granted summary judgment based upon notice, the statute of limitations, and the hernia statute. We find summary judgment in this case was inappropriate, reverse the judgment of the trial court, and remand the case for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC_WCP/2006/coleman052306.pdf


HARDING ACADEMY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

Court: TCA

Attorneys:

Leslie S. Newman and Jason D. Holleman, Nashville, Tennessee, for the appellant, Friends of Belle Meade Links, Inc.

J. Brooks Fox and John Kennedy, Nashville, Tennessee, for the appellant, Metropolitan Government, Board of Zoning Appeals.

Robert J. Walker and John L. Farringer, IV, Nashville, Tennessee, for the appellee, Harding Academy.

Judge: CAIN

The Zoning Administrator of the Metropolitan Codes Department of Nashville and Davidson County issued a permit to an elementary school to create a park on property adjacent to the school campus. The local neighborhood association appealed the issuance of the permit to the Metropolitan Board of Zoning Appeals. The Board revoked the permit on the basis that (1) the property would not remain in its natural state; (2) the school intended to use the property as athletic fields for the physical education of their students; (3) instructional activity is not allowed in a park; and (4) the requested use of the property would more likely be classified as a recreation center. The elementary school filed a common law writ of certiorari in Davidson County Chancery Court appealing the revocation. The chancery court reversed the decision of the Board and reinstated the permit finding that the Board acted arbitrarily, capriciously, illegally, beyond its authority, and without supporting evidence in the record. We affirm the decision of the chancery court in all respects.

http://www.tba2.org/tba_files/TCA/2006/hardingacademy052306.pdf


LORINE GOODWIN HINDMAN v. ALLEN MOORE and wife, JACKIE MOORE

Court: TCA

Attorneys:

Roger E. Jenne, Cleveland, Tennessee, for appellant.

Charles W. Pope, Jr., Athens, Tennessee, for appellees.

Judge: FRANKS

Decedent executed a Power of Attorney document granting her son broad general powers to act on her behalf. The son executed a Trust Deed and Modification Agreement on Decedent's property. Decedent and later her Estate asked the Chancery Court to void these documents. The Court refused. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2006/hindmanl052306.pdf


HERBERT A. HOLCOMB, JUVENILE COURT JUDGE FOR HAWKINS COUNTY, TENNESSEE v. CROCKETT LEE, COUNTY MAYOR FOR HAWKINS COUNTY, TENNESSEE

Court: TCA

Attorneys:

R.B. Baird, III, Rogersville, Tennessee, for the Appellant Herbert A. Holcomb, Juvenile Court Judge for Hawkins County, Tennessee.

Thomas L. Kilday, Greeneville, Tennessee, for the Appellee Crockett Lee, County Mayor for Hawkins County, Tennessee.

Judge: SWINEY

This appeal involves six different lawsuits filed by Hebert A. Holcomb, the Juvenile Court Judge for Hawkins County, Tennessee. In each of these lawsuits, Judge Holcomb sued the Hawkins County Executive/County Mayor seeking additional funding for the salaries of various personnel positions. Each of the six petitions was met with a motion to dismiss claiming Judge Holcomb did not have standing to bring these lawsuits pursuant to Tenn. Code Ann. Section 8-20-101, the statute which authorizes court clerks to bring lawsuits seeking relief of this nature. In response to the motions to dismiss, Judge Holcomb argued he had the inherent power to bring these six lawsuits. The Trial Court disagreed with Judge Holcomb's analysis of the inherent powers doctrine and dismissed the lawsuits. We affirm the dismissal of the six lawsuits, but for reasons other than those set forth by the Trial Court.

http://www.tba2.org/tba_files/TCA/2006/holcombh052306.pdf


JULIA V. LEE, ET AL. v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Charles C. Burks, Jr., Knoxville, Tennessee, for the appellants, Julia V. Lee and Robert Joe Lee.

Ronald C. Leadbetter, Associate General Counsel, Knoxville, Tennessee, for the appellee, State of Tennessee.

Judge: SUSANO

This appeal focuses on a request for post-judgment interest. This litigation began when Julia V. Lee and Robert Joe Lee (the Claimants) filed a claim against the State of Tennessee seeking to recover damages associated with the personal injuries sustained by Ms. Lee as a result of her tripping and falling on the campus of the University of Tennessee - Knoxville. The Claims Commissioner entered judgment in favor of the Claimants in the amount of $37,000. The judgment was stayed pending an appeal by the State. This court dismissed the State's appeal predicated upon the fact that the State's notice of appeal was not timely filed. Subsequently, the State paid the judgment in full. The Claimants then filed a motion seeking an award of post-judgment interest. The Claims Commissioner denied the Claimants' motion. They appeal, arguing that the Commissioner erred in failing to award them post-judgment interest. We reverse the Commissioner's decision not to award post-judgment interest.

http://www.tba2.org/tba_files/TCA/2006/leej052306.pdf


STATE OF TENNESSEE EX REL. ZAYNE MCPEEK v. DONALD LONG
Corrected Case


Court: TCA

Attorneys:

Paul G. Summers, Attorney General & Reporter; and Juan Villasenor, Assistant Attorney General; for the Appellant, State of Tennessee ex rel. Zayne McPeek.

Donald Long, Soddy Daisy, Tennessee, Pro Se.

Judge: SWINEY

The State of Tennessee ex rel. Zayne R. McPeek (the State) filed a petition in the Juvenile Court for Sevier County (Sevier County Juvenile Court) seeking child support from Donald Long. The Sevier County Juvenile Court entered an order granting both current support and retroactive support for February 10, 2005, through May 31, 2005. The State appeals the Sevier County Juvenile Court order to this Court claiming that the Sevier County Juvenile Court erred by not awarding retroactive support from May of 2003. We vacate the order of the Sevier County Juvenile Court for lack of subject matter jurisdiction.

http://www.tba2.org/tba_files/TCA/2006/longd_corr052306.pdf


QUEBECOR PRINTING CORPORATION v. L & B MANUFACTURING COMPANY, ET AL.

Court: TCA

Attorneys:

David W. Blankenship, Kingsport, Tennessee for the Appellants, L & B Manufacturing Company and Mac Manufacturing, Inc.

Robert L. Arrington, Kingsport, Tennessee for the Appellee, Quebecor Printing Corporation.

Judge: SWINEY

Quebecor Printing Corporation (Plaintiff) entered into a contract with L & B Manufacturing Company (Defendant) to purchase a machine (the Machine). A dispute arose after Defendant delivered the Machine to Plaintiff and Plaintiff had paid the majority of the purchase price, but before the Machine was set-up for use in production. Plaintiff and Defendant hired attorneys and entered into a second contract (Settlement Agreement) intending to settle their differences. Disputes arose in connection with the Settlement Agreement and Plaintiff sued Defendant seeking, in part, a refund of the money paid for the Machine. After a bench trial, the Trial Court held, inter alia, that the parties had entered into the Settlement Agreement and had undertaken to perform that agreement thereby extinguishing the underlying agreement for the purchase of the Machine; that Plaintiff was entitled to a judgment against Defendant in the amount of $75,000, which was the purchase price of the Machine; that Plaintiff had breached its duty as a bailee of the Machine entitling Defendant to an offset against the judgment for damage to the Machine while in Plaintiff's possession; and that this offset was to be decreased by $5,000, which was the uncontested amount of damages caused to the Machine by Defendant prior to Plaintiff's storage of the Machine. After additional hearings, the Trial Court entered an order finding and holding, inter alia, that Plaintiff was responsible for $10,000 of damages to the Machine, to be reduced by the $5,000 worth of uncontested damages as previously ordered resulting in a net judgment of $70,000. The Trial Court declined to award Plaintiff its discretionary costs. Defendant appeals raising issues regarding the interpretation of the Settlement Agreement, the amount of damages, and the exclusion of evidence. Plaintiff argues the Trial Court erred in not awarding discretionary costs. We reverse as to the issue of discretionary costs, modify the judgment to hold that Defendant is entitled to the Machine and to have the Machine shipped to Defendant at Defendant's expense, if Defendant so chooses, and we affirm the remainder of the judgment as so modified.

http://www.tba2.org/tba_files/TCA/2006/quebecor052306.pdf


STATE OF TENNESSEE v. TINO VERNELL RODGERS (A MINOR)

Court: TCA

Attorneys:

Roger Stanfield, Jackson, TN, for Appellant.

Paul G. Summers, Attorney General and Reporter, Brian Clay Johnson, Assistant Attorney General, Nashville, TN, for Appellee.

Judge: HIGHERS

In this case we are asked to review a juvenile's confinement following a juvenile court's finding that the juvenile violated the terms of his probation. The juvenile court found the juvenile to be delinquent after the juvenile entered a guilty plea to an assault charge, and the court placed the juvenile on probation. Thereafter, the juvenile was charged with other offenses, and the juvenile court entered a verbal directive placing the child on house arrest. When the juvenile violated this directive, the juvenile court entered an order finding that the juvenile violated the terms of his probation and committed him to the custody of the Tennessee Department of Children's Services. After being confined, the juvenile filed a post-commitment petition pursuant to the Juvenile Post-Commitment Procedures Act in the circuit court. The circuit court upheld the juvenile court's ruling. The juvenile appealed the circuit courtís decision to this Court. During the pendency of this appeal, the juvenile was released from custody. Accordingly, we hold that the present appeal is not justiciable under the doctrine of mootness, therefore, we dismiss the present appeal.

http://www.tba2.org/tba_files/TCA/2006/rodgerst052306.pdf


JACQUELYN TEAL SELLE, SURVIVING SPOUSE OF CURTIS MARSHALL SELLE, DECEASED v. FAYETTEVILLE AVIATION, INC., ET AL.

Court: TCA

Attorneys:

William S. Fleming, Columbia, Tennessee, and Daniel Barks, Arlington, Virginia, for the appellant, Jacquelyn Teal Selle.

Raymond W. Fraley, Jr., and Johnny D. Hill, Jr., Fayetteville, Tennessee, for the appellee, Eagle Creek Aviation Services.

Judge: CAIN

Surviving spouse sued nine Defendants in Lincoln County Circuit Court under the doctrine of strict liability, negligence, and breach of warranty in the manufacture, sale, and maintenance of the aircraft her husband was operating at the time of his death. The trial court dismissed an Indiana corporate Defendant who sold the aircraft to Decedent's employer for lack of personal jurisdiction. Plaintiff appealed and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/sellej052306.pdf


Warrantless Arrest on Ex Parte Orders of Protection

TN Attorney General Opinions

Date: 2006-05-23

Opinion Number: 06-094

http://www.tba2.org/tba_files/AG/2006/ag_06-094.pdf

Constitutionality of SB 3256

TN Attorney General Opinions

Date: 2006-05-23

Opinion Number: 06-095

http://www.tba2.org/tba_files/AG/2006/ag_06-095.pdf

Constitutionality of Senate Bill 2512 as Amended by House Amendments Nos. 1 and 3

TN Attorney General Opinions

Date: 2006-05-23

Opinion Number: 06-096

http://www.tba2.org/tba_files/AG/2006/ag_06-096.pdf

Constitutionality of an Elected Solicitor General

TN Attorney General Opinions

Date: 2006-05-23

Opinion Number: 06-097

http://www.tba2.org/tba_files/AG/2006/ag_06-097.pdf

TODAY'S NEWS

Legal News
Legislative News
BPR Actions
Online CLE

Legal News
Judge orders case unsealed
U.S. District Court Judge Tom Varlan issued a rare order on Monday unsealing a case after learning he had sentenced a drug dealer in secret. The case, which had been kept off the public docket at the time of sentencing, is the first documented instance of secret docketing in that court. The Knoxville News Sentinel raised the issue of whether the secret docketing was intentional or an error. Varlan responded that he never authorized the secrecy and that it seemed to be the result of an unusual combination of factors.
Read about the circumstances of the case
Chancellor to decide who pays legal fees in suit against sheriff
Two attorneys sparred Monday over whether Knox County Commissioner Wanda Moody should recoup legal fees in her battle to access public records controlled by Sheriff Tim Hutchison. Knox County Chancellor Daryl Fansler said he would issue a written ruling on whether to award legal fees and, if so, how much. He said he also would direct who should pay the expenses, estimated at more than $700,000.
The News Sentinel has the story
Child support 'dead beats' given warning
Connie Bell, program manager of the 10th Judicial District Child Support Office, said anyone who owes past due child support can either pay now or be prosecuted. There are nearly 240,000 active child support cases with support orders in Tennessee. Approximately 200,000 child support checks, totaling more than $40 million, are mailed out every month. Read more about the difficulty in collecting child support in the
Cleveland Daily Banner
Clarksville court revenue decreasing
While Clarksville's population continues to grow, its revenue from city court is dropping. The court clerk thinks he knows the problem: people are not paying their citations. He has several ideas on how to improve the situation and generate additional revenue for the city.
Read more in the Clarksville Leaf Chronicle
Retiring judge speaks to Oak Ridge leadership group
Retiring Supreme Court Justice Riley Anderson spoke to alumni of the Leadership Oak Ridge program last week. He reflected on his service, addressed the issue of live courtroom coverage and death penalty cases.
Read about his comments in the Oak Ridger
Event in Clinton looks at criminal justice, mental health
The Criminal Justice and Mental Health Liaison Project was established in 1999 as a community project to examine issues affecting adults with mental illness who become involved in the criminal justice system. Its goal is to assist jail personnel in providing appropriate services to these individuals. A luncheon discussion to explore these issues will be held Thursday, June 1, from 11:30 a.m. to 1 p.m. at the Clinton Community Center. Call 276-1206 for more information.

Chief Justice Roberts seeks greater consensus
In an address to Georgetown University law graduates over the weekend, U.S. Supreme Court Chief Justice John Roberts said he is seeking greater consensus on the court, arguing that more consensus among justices is likely if hot-button issues are decided on the "narrowest possible grounds."
Read about his comments in the Bristol Herald Courier
UT Law hosts reception at Bar Center
Admitted candidates to the University of Tennessee College of Law get a chance to talk with alumni and school officials during a reception tonight at the Tennessee Bar Center. The reception is being hosted by Dean Thomas C. Galligan Jr. and Associate Dean John L. Sobieski Jr.

Legislative News
Murder prompts DNA legislation
The unsolved murder of a 21-year-old Knoxville woman prompted the state Senate to vote unanimously today in favor of creating six new positions to process DNA evidence. The authorization of additional state employees is designed to reduce the current backlog on processing DNA evidence, reports the Associated Press.
Read more in the News Sentinel
Lawmakers hold 'secret' budget meeting
Legislative leaders from both chambers met in secret Monday in the office of House Speaker Jimmy Naifeh to discuss the state budget, reports the Associated Press. Some participants took issue with the characterization though; saying the door to Naifeh's office was open.
Read more in the News Sentinel
BPR Actions
Memphis lawyer censured
Paul J. Springer Sr. was publicly censured by the Board of Professional Responsibility on May 19 for grossly neglecting three appeals, being exceedingly dilatory in filing briefs and failing to pay fines assessed against him.
Read the BPR's press release
Online CLE
Online CLE course looks at lawyer advertising
ABA and state ethics rules have not kept up with the daily challenges that the Internet presents to lawyer advertising. This new TennBarU online CLE course will shed light on familiar and not-so-familiar activities regarding Internet advertising.
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