Join Arthur Miller as he explores privacy and technology

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https://www.tnbaru.com/CLE/catalog_course_details.php?course=5083

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

IN RE D.Y.H.

Court: TSC

Attorneys:

Jeanie M. Todd, Jackson, Tennessee, for the appellant, Shelly Bryant.

Bob C. Hooper, Jackson, Tennessee, for the appellee, Juan Hunt.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Douglas E. Dimond, Senior Counsel, for the amicus curiae, the State of Tennessee.

Judge: BARKER

The father was granted custody of his minor child in juvenile court after the court found the daughter to be dependent and neglected. Three years after the order was entered, the mother filed a petition for change of custody in juvenile court, which was denied. The mother appealed the juvenile court's order to circuit court. The circuit court dismissed the appeal concluding that it lacked jurisdiction to hear the appeal because the petition filed by the mother was not a part of the dependency and neglect proceeding. The Court of Appeals affirmed the circuit court. We reverse the judgment of the Court of Appeals and hold that the subsequent custody decision was a part of the dependency and neglect proceeding so that it is properly appealable to circuit court for a de novo hearing.

http://www.tba2.org/tba_files/TSC/2007/dyh_052407.pdf


IN RE B.S.G.

Court: TCA

Attorneys:

Scott A. Hodge, Morristown, Tennessee, for the appellant, G.G.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, General Civil Division, for the appellee, State of Tennessee Department of Children's Services.

Judge: SUSANO

The trial court terminated the parental rights of G.G. ("Mother") with respect to her minor child, B.S.G. (DOB: February 2, 2004) ("the child"), upon its finding -- said to be by clear and convincing evidence -- that grounds for termination existed and that termination was in the best interest of the child. Mother appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/bsg_052407.pdf


STATE EX REL. ED CUNNINGHAM v. REAGAN FARR

Court: TCA

Attorneys:

Michael H. Meares, Maryville, Tennessee, for the appellant, Ed Cunningham.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Brad H. Buchanan, Assistant Attorney General, for the appellee, Reagan Farr.

Judge: KOCH

This appeal involves a dispute between a taxpayer and the Tennessee Department of Revenue regarding liability for sales and use and business taxes. The taxpayer originally filed suit in Blount County, but the case was transferred by agreement to the Chancery Court for Davidson County. Thereafter, the taxpayer filed an amended complaint seeking either a writ of mandamus to require the Commissioner of Revenue to make an assessment of the taxes owed or a declaratory judgment that no additional taxes were owed. The Commissioner moved to dismiss the amended complaint. The trial court granted the motion after concluding that it lacked subject matter jurisdiction to grant declaratory relief and that the taxpayer's mandamus claim was not yet ripe. The taxpayer appealed. While the appeal was pending, the Commissioner issued an assessment seeking $358,997.07 in taxes, penalties, and interest. We have determined that this case is now moot because the Commissioner has provided the taxpayer with the assessment it sought.

http://www.tba2.org/tba_files/TCA/2007/cunninghame_052407.pdf


BANK OF AMERICA, N.A. v. MICHAEL J. DAROCHA

Court: TCA

Attorneys:

Michael James Darocha, Mountain City, Tennessee, for the appellant MICHAEL J. DAROCHA.

Karen S. Schnupp, Knoxville, Tennessee, for the appellee Bank of America, N.A.

Judge: LEE

The bank filed a complaint upon sworn account to collect a past due balance owed by defendant "Michael J. Darocha" on a credit card account. Mr. Darocha filed no responsive pleading to the bank's complaint, and the trial court entered default judgment against him. The trial court's judgment included findings that Mr. Darocha had a security interest in an entity designated "MICHAEL J. DAROCHA." Thereafter, a notice of appeal was filed on behalf of "MICHAEL J. DAROCHA." In the absence of any evidence that the entity "MICHAEL J. DAROCHA" was adversely affected by the trial court's judgment, the appeal is dismissed, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2007/darocham_052407.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. D.D.W.

Court: TCA

Attorneys:

Kimberly Falls Lentz, Clarksville, Tennessee, for the appellant, D.D.W.

Robert E. Cooper, Jr., Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney General, for the State of Tennessee, Department of Children's Services.

Judge: CLEMENT

The mother of two children appeals the termination of her parental rights. The trial court terminated her parental rights on the grounds of substantial noncompliance with the permanency plans. The trial court also found the termination of Mother's rights to be in the best interest of the children. We affirm.

http://www.tba2.org/tba_files/TCA/2007/ddw_052407.pdf


ALLEN SHAWN DYE v. AMANDA LAYNE FOWLER

Court: TCA

Attorneys:

Donald W. Schwendimann, Hohenwald, Tennessee, for the appellant, Amanda Layne Fowler.

Dana Dye, Centerville, Tennessee, for the appellee, Allen Shawn Dye.

Judge: CLEMENT

The primary residential parent of the parties' eleven-year-old child requested permission to relocate to Georgia because her husband accepted employment that provided a significant increase in pay and better opportunities for advancement. The father opposed the relocation. The trial court, which made no findings of fact, denied the request based upon the conclusion the relocation did not have a reasonable purpose. We have determined the evidence preponderates in favor of the finding that the mother had a reasonable purpose for relocating to Georgia. Therefore, we reverse the judgment of the trial court and remand with instructions to grant the requested relocation to Georgia.

http://www.tba2.org/tba_files/TCA/2007/dyea_052407.pdf


BASIL MARCEAUX v. BARRETT PAINTER, ET AL.

Court: TCA

Attorneys:

Basil Marceaux, pro se Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and P. Robin Dixon, Jr., Assistant Attorney General, Nashville, Tennessee, for the Appellee Jerry N. Estes, District Attorney General for Bradley County.

Robert G. Norred, Jr., Chattanooga, Tennessee, for the Appellees Chattanooga Publishing Company (Chattanooga Free Press), Comcast of the South (Comcast), Freedom Broadcasting of Tennessee, Inc. (Channel 9 News), and Sarkes Tarzian, Inc. (Channel 3 News).

Ronald D. Wells, Stacy Lynn Archer, and Matthew L. Dunn, Chattanooga, Tennessee, for the Appellee Danny Hickman.

Timothy L. Mickel and Caroline B. Stefaniak, Chattanooga, Tennessee, for the Appellee Charter Communications, Inc.

Alan D. Johnson and Alfred H. Knight, Nashville, Tennessee, for the Appellees The Tennesseean and USA Today.

Barrett T. Painter, Cleveland, Tennessee, for the Appellees Barrett Painter, D. Gary Davis, and Dan Gilley.

Judge: SWINEY

Basil Marceaux filed this lawsuit claiming, among other things, that he had the right to dictate what news was published or broadcast by local and national newspapers and television stations. The lawsuit was properly dismissed by the Trial Court. This frivolous appeal from the dismissal of the frivolous lawsuit followed. Several of the defendants request an award of damages pursuant to Tenn. Code Ann. Section 27-1-122 for having to defend this frivolous appeal. We affirm the judgment of the Trial Court and remand for a hearing pursuant to Tenn. Code Ann. Section 27-1- 122 as to those defendants who requested damages for the frivolous appeal.

http://www.tba2.org/tba_files/TCA/2007/marceauxb_052407.pdf


RUDOLPH POWERS V. TENNESSEE BOARD OF PROBATION AND PAROLES

Court: TCA

Attorneys:

Rudolph Powers, appellant, pro se.

Paul G. Summers, Attorney General, and Mark A. Hudson, Senior Counsel, for the appellee, Tennessee Board of Probation and Paroles.

Judge: KIRBY

This appeal involves a prisoner seeking parole. The petitioner was convicted in 1981 and is serving a life sentence. In 2004, he was denied parole based on the severity of his offense. He filed the instant petition for a common-law writ of certiorari, claiming violations of his constitutional right to equal protection and due process, and a violation of the ex post facto clause of the Constitution. The trial court dismissed the petition on its face, finding that it failed to state a claim upon which relief could be granted. The petitioner filed this appeal. We affirm, concluding that the petition does not state a claim for relief.

http://www.tba2.org/tba_files/TCA/2007/powersr_052407.pdf


STATE EX REL. PATSY M. YOUNG v. DANNY FISH

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, and Warren Jasper, Assistant Attorney General, for the appellant, State of Tennessee ex rel. Patsy M. Young.

Sue N. Puckett-Jernigan, Smithville, Tennessee, for the appellee, Danny Fish.

Judge: KIRBY

This case involves the modification of child support by a special judge. The parties divorced in 1994, and the father was ordered to pay child support for the parties' minor child. In 1998, the father filed a petition to be relieved from paying child support. A hearing on the father's motion was held in 1999 by the clerk and master of the trial court, sitting as a special judge. After the hearing, the special judge entered an order reducing the father's child support obligation. In 2004, the State, on behalf of the mother, filed the instant petition for child support arrears. In the motion, the State argued that the father's arrearage must be calculated using the original amount of his child support obligation because the 1999 order entered by the clerk and master acting as special judge was invalid. The trial court held that, although proper procedure may not have been followed, the clerk and master was a de facto judge acting under color of right. Therefore, the father's arrearage was calculated using the reduced amount of child support. The State now appeals, arguing that the 1999 order entered by the clerk and master was invalid and that the arrearage should be calculated using the original child support amount. We affirm, concluding that the clerk and master was acting as a de facto judge under the circumstances of this case, and that the 1999 order entered by him is the operative order from which the father's child support arrearage should be calculated.

http://www.tba2.org/tba_files/TCA/2007/youngp_052407.pdf


STATE OF TENNESSEE v. BILLY JOE CARTER

Court: TCCA

Attorneys:

David Neal Brady, District Public Defender; and Keith E. Haas, Assistant District Public Defender, for the Appellant, Billy Joe Carter.

Robert E. Cooper, Jr., Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; William Edward Gibson, District Attorney General; and James B. Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

A Cocke County jury convicted the defendant, Billy Joe Carter, of first degree premeditated murder, see T.C.A. Section 39-13-202(a)(1) (2006), first degree felony murder, see id. Section 39-13- 202(a)(2), and especially aggravated robbery, see id. Section 39-13-403. The jury sentenced him to life in the Department of Correction without the possibility of parole for the two first degree murder convictions, and the trial court sentenced him to 40 years in the Department of Correction as a Range II, multiple offender for the especially aggravated robbery conviction. The defendant is to serve this sentence consecutively to his life sentence. Aggrieved of his convictions, the defendant appeals on three grounds: (1) that there was insufficient evidence to convict the defendant of any of the charges; (2) that the trial court erred in allowing Ricky Reed, the victim's brother, to testify because Mr. Reed's name was not included on the indictment; and (3) that the trial court erred in admitting autopsy photographs. After reviewing the record, we hold that the evidence was sufficient to convict the defendant on all charges. We also hold that the trial court neither abused its discretion in allowing Mr. Reed to testify nor in admitting the autopsy photographs. Thus, we affirm the judgment of conviction of especially aggravated robbery and the verdicts of guilty of first degree murder. We vacate the judgments of conviction of first degree murder and remand for entry of a judgment on the merger-surviving first degree murder conviction and a notation of the merger of the other first degree murder verdict.

http://www.tba2.org/tba_files/TCCA/2007/carterbj_052407.pdf


STATE OF TENNESSEE v. TERRY D. JONES

Court: TCCA

Attorneys:

A. Philip Lomonaco, Knoxville, Tennessee, for the Appellant, Terry D. Jones.

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Terry D. Jones, appeals a certified question of law regarding a police officer's stopping the vehicle he was driving, resulting in his arrest and charges for possession with intent to sell more than 26 grams of cocaine (count one), see T.C.A. Section 39-17-417 (2006), possession with intent to deliver more than 26 grams of cocaine (count two), see id., evading arrest (count three), see id. Section 39-16-603, resisting arrest (count four), see id. Section 39-16-602, and public intoxication (count five), see id. Section 39-17-310. Considering our standard of review, we agree with the Knox County Criminal Court that reasonable suspicion supported by specific and articulable facts existed for the stop, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/jonest_052407.pdf


STATE OF TENNESSEE v. THOMAS C. RUSSELL

Court: TCCA

Attorneys:

Mart S. Cizek, Clinton, Tennessee, for the Appellant, Thomas C. Russell.

Robert E. Cooper, Jr., Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; David S. Clark, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Thomas C. Russell, appeals the Anderson County Criminal Court's order of confinement for the defendant's Range II, eight-year sentence for a conviction of aggravated assault. Because no reversible error occurred, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/russellt_052407.pdf


Qualifications for Individuals Seeking Commission as a Notary Public

TN Attorney General Opinions

Date: 2007-05-22

Opinion Number: 07-76

http://www.tba2.org/tba_files/AG/2007/ag_07-76.pdf

Regulatory Takings

TN Attorney General Opinions

Date: 2007-05-22

Opinion Number: 07-77

http://www.tba2.org/tba_files/AG/2007/ag_07-77.pdf

TODAY'S NEWS

Legislative News
Legal News
Court of the Judiciary Actions
BPR Actions
TBA Member Services

Legislative News
Committee to study death penalty passes Senate
The Senate today adopted the bill creating a Committee to Study Administration of the Death Penalty (SB1911). In the House, the bill is on the agenda of the subcommittee that reviews study committee requests, chaired by the deputy speaker.

Ford denies drug problem
Sen. Ophelia Ford denied any suggestion that she has a drug or alcohol problem, as her brother County Commissioner Joe Ford implied Wednesday. "Ms. Ophelia Ford is going to be here and there is nothing you can say or do to take me away. I don't care what the media says," Ford said in an interview in her Nashville office. "I will be here in the Senate and I will be here until my four years is up. I've got a long time to decide" about whether to run for re-election in 2010, she said.
The Commercial Appeal has more
Legal News
Ethics Commission will talk about open meetings ...
in the open
A discussion that the Ethics Commission intended to hold behind closed doors has been postponed until the next meeting, when it will be conducted in public. The item at issue is an attorney general's opinion on whether certain communications among the commissioners, commission staff members and commission attorneys can be withheld from the public. In January, commission Executive Director Bruce Androphy requested the informal opinion from state AG Bob Cooper.
The News Sentinel has the story
Springfield Judge Long resigns
Springfield City Judge Fletcher Long resigned last week after Tennessee's Judicial Ethics Committee ruled that his representation of a client in criminal court was a conflict of interest with his running of municipal court. The client was accused of shooting a Springfield police officer.
Read more in the Robertson County Times
Maddox Foundation to split money between states
Mississippi and Tennessee state officials have reached a settlement agreement with a disputed charitable trust to allow more than $50 million to be used for charitable projects in each state. The Maddox Foundation was moved to Hernando, Miss., just south of Memphis, in 1999, the year after the Maddoxes were killed in a boating accident. A legal battle ensued between Mississippi and Tennessee after the move. Tennessee courts have ruled the relocation was invalid while Mississippi courts claimed to have jurisdiction in the case.
Read the details in the Clarion Ledger
Maury justice center
one step closer
The Maury County Commission has unanimously approved spending up to $450,000 to purchase three properties for a new criminal justice center in downtown Columbia. County Architect George Nuber estimated in February the project would cost the county between $13 million and $18 million. Those funds have not been approved by the commission yet.
Read more in the Columbia Daily Herald
Papers about Scalia tape erasure handed over
A Mississippi newspaper has received documents it requested two years ago from the Justice Department about the erasing of a recorded speech by Supreme Court Justice Antonin Scalia. The documents reportedly detail the Marshals Service's investigation into the erasing of the speech, which Scalia gave to the Presbyterian Christian School in Hattiesburg in April 2004.
WMCT-TV carried this AP story
Townsend's practice took a turn with the war
Memphis lawyer Joe Townsend recounts how he handled his law practice while holding down the fort when partner Tommy Fullen was called up to serve in Iraq for 14 months.
Find out more about Townsend in the Daily News
Court of the Judiciary Actions
Jackson censured for actions while intoxicated
Judge A. Andrew Jackson of Dickson County was publicly censured by the Court of the Judiciary today. The censure followed an investigation that showed Jackson, while intoxicated at last fall's Juvenile Justice Conference, called two people by derogatory, inappropriate names and made a crude sexual remark to another. A public censure is the highest form of sanction that may be imposed absent the filing of formal charges.
Read the release from the Court of the Judiciary
BPR Actions
Nashville lawyer reinstated
Glenn Douglas Tackett of Nashville has been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education.
View all attorneys suspended and reinstated for 2005 CLE violations
Georgia lawyer reinstated
Lois Abney Harper Whitehead of Brunswick, Ga. has been reinstated to the practice of law in Tennessee after paying the annual BPR fee. She was suspended last year.
View all attorneys suspended for 2005 fee violations
Chattanooga lawyer suspended
Chattanooga lawyer Bruce H. Guthrie II was suspended on May 18 after not responding to the Board of Professional Responsibility concerning a complaint of misconduct. Guthrie may continue to represent existing clients for 30 days but must stop representing all clients on June 17, and may not accept new cases following that date.
Read the BPR's release
TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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