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Tuesday, June 19, 2007

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Senior counselors honored at TBA convention

The Tennessee Bar Association honored 56 senior counselors at its annual convention last week. Senior counselors are attorneys who have reached age 75 or completed 50 years of practice during the preceding bar year. Among other benefits, they are recognized at the Lawyers Lunch during convention, awarded a commemorative plaque and given complimentary TBA membership for the remainder of their life. For a list of the 2006-2007 senior counselors and pictures from the event visit:

http://www.tba.org/convention2007/seniorcounselors.html

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 http://www.tba.org/getpassword.mgi.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
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00 - TN Attorney General Opinions
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00 - Formal Ethics Opinions - BPR

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

STATE OF TENNESSEE V. TIMOTHY FLOOD
Corrected Opinion

Court: TSC

Attorneys:

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellant, State of Tennessee

Leslie M. Jeffress, Knoxville, Tennessee, for the appellee, Timothy Flood

Judge: BARKER

The defendant was convicted of four counts of rape of a child in violation of Tennessee Code Annotated section 39-13-522. At the trial, the defendant attempted to present testimony from the victim's father about statements made by the victim. The victim had made two statements to her father that the defendant argued rebutted the victim's testimony and suggested that a third party had committed the crimes. The trial court excluded the evidence because the testimony was hearsay and because the defendant had failed to question the victim about the statements during cross-examination. The Court of Criminal Appeals held that while the trial court properly applied the rules of evidence, the evidence was improperly excluded because the exclusion denied the defendant his right to present a defense. We hold that the trial court correctly excluded both statements as inadmissible extrinsic evidence of prior inconsistent statements even though one of the statements was non-hearsay. We also hold that the trial court's exclusion of the evidence in this case does not rise to the level of a constitutional violation because the excluded evidence was not critical to the defense. The judgment of the Court of Criminal Appeals is reversed.

http://www.tba2.org/tba_files/TSC/2007/floodt_corr_061907.pdf

JOANN A. BOYATT v. BOYCE WAYNE BOYATT, ET AL.

Court: TCA

Attorneys:

Max Huff, Oneida, Tennessee, for the Appellant, Boyce Wayne Boyatt

Johnny V. Dunaway, LaFollette, Tennessee, for the Appellee, Joann A. Boyatt

Judge: LEE

The issue we are confronted with in this case is whether the trial court properly dismissed a divorce case, thus leaving the parties married. Wife filed a complaint for divorce, alleging grounds of inappropriate marital conduct and irreconcilable differences. Husband filed a counter-complaint in which he requested a divorce based on inappropriate marital conduct, irreconcilable differences, and adultery. At trial, both parties admitted that they had committed adultery. The trial court continued the case for three weeks to give Husband and Wife an opportunity to divide the marital estate themselves, rather than having the trial court perform the task. However, the parties were unable to reach an agreement, and, at the next court date, Wife moved to dismiss both her complaint and Husband's counter-complaint. The trial court granted Wife's motion and dismissed the case. Husband appeals. After careful review, we find the trial court erred in dismissing the divorce action. We vacate and remand for entry of an order declaring the parties divorced on the ground of inappropriate marital conduct.

http://www.tba2.org/tba_files/TCA/2007/boyattj_061907.pdf

MICHAEL and SHERRY CLAWSON, individually and as the parents and next of kin of RACHEL M. CLAWSON, deceased, v. MICHAEL L. BURROW, individually and d/b/a BURROW MASONRY, and the TENNESSEE DEPARTMENT OF TRANSPORTATION, and SUMMERS-TAYLOR, INC.

Court: TCA

Attorneys:

Howard E. Jarvis and Robert L. Vance, Knoxville, Tennessee, for appellant

Richard Baker and James S. MacDonald, Knoxville, Tennessee, for appellee

Judge: FRANKS

Defendant who had been sued in tort sought summary judgment on the ground that plaintiffs had accepted Worker's Compensation benefits. The Trial Court refused to grant summary judgment and this Court granted an interlocutory appeal. We affirm the ruling of the Trial Court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/clawsonm_061907.pdf

MICHAEL ROWDY ECHOLS v. JOYCE BUTLER ECHOLS

Court: TCA

Attorneys:

Kevin C. Angel, Clinton, Tennessee, for the appellant, Michael Rowdy Echols

George T. Underwood, Jr., Knoxville, Tennessee, for the appellee, Joyce Butler Echols

Judge: LEE

In this divorce case, Husband argues that under the doctrine of judicial estoppel, the trial court was precluded from awarding Wife spousal support in excess of the amount she listed as the value of her divorce settlement in the bankruptcy schedules she signed under oath and filed over two years prior to the divorce trial. Husband also argues that the trial court erred in the division of marital property and in awarding Wife transitional alimony in the amount of $500 per month for one year and attorney's fees in the amount of $50,250. In the absence of evidence that the prior statement of value in Wife's bankruptcy schedules was willfully false, we hold that the doctrine of judicial estoppel is not applicable in this case. We further hold that the trial court's division of marital property and award of transitional alimony was equitable and was supported by the evidence. However, we hold that the grant of attorney's fees to Wife in the amount of $50,250 was excessive and should be reduced to $15,000. Accordingly, the judgment of the trial court is affirmed in all respects, except that the award of attorney's fees to Wife is reduced to $15,000.

http://www.tba2.org/tba_files/TCA/2007/echolsm_061907.pdf

KATHY WILLIAMS HICKS v. ROGER CARL HICKS

Court: TCA

Attorneys:

Charles C. Morrow, Brentwood, Tennessee, for the appellant, Roger Carl Hicks

Mary B. Langford, Nashville, Tennessee, for the appellee, Kathy Williams Hicks

Judge: CAIN

In an action for divorce, Husband appeals the trial court's divorce award, the division of the marital estate, and the award of attorney's fees and court costs. Husband also alleges that the trial court was prejudiced against his attorney. We affirm the decision of the trial court and find that Husband's appeal was frivolous, thus warranting the award of damages.

http://www.tba2.org/tba_files/TCA/2007/hicksk_061907.pdf

RASHAD JAMAL CHANDLER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Rashad Jamal Chandler

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: OGLE

The petitioner, Rashad Jamal Chandler, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his conviction for first degree premeditated murder and resulting life sentence. He contends that he received the ineffective assistance of counsel because his trial attorney (1) failed to interview witnesses who would have helped his case and (2) should have argued a different theory of defense. Based upon the record and the parties' briefs, we affirm the post-conviction court's denial of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/chandlerr_061907.pdf

CARRI CHANDLER LANE v. STATE OF TENNESSEE
With Dissenting Opinion

Court: TCCA

Attorneys:

Mark S. McDaniel, Memphis, Tennessee, for the Appellant, Carri Chandler Lane

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Carri Chandler Lane, appeals the Shelby County Criminal Court's denial of her motion to modify court-ordered restitution. The State responds that the denial of a request to modify restitution is not appealable under Tenn. R. App. P. 3(b), and, even if appealable, the trial court did not abuse its discretion in denying the motion. While we agree that Rule 3(b) does not provide for an appeal as of right from a trial court's denial of a motion to modify restitution, we, nonetheless, conclude that the Appellant's issues are entitled to a review as the appeal may be treated as a writ of certiorari. See T.C.A. section 27-8-101 (2006). After review of the Appellant's motion on the merits, we conclude that material changes in circumstances have occurred since the order and, further, that it would be unjust to require adherence to the restitution order currently in effect. Accordingly, the trial court's order denying modification is reversed, and this case is remanded for a hearing to determine, following consideration of the Appellant's present financial resources and her future ability to pay or perform, the proper amount and method of payment of restitution to be made. See T.C.A. section 40-35-304(d) (2006).

http://www.tba2.org/tba_files/TCCA/2007/lanec_061907.pdf

WEDEMEYER DISSENTING
http://www.tba2.org/tba_files/TCCA/2007/lanec_dis_061907.pdf

STATE OF TENNESSEE v. LATARSHA R. WHEELER

Court: TCCA

Attorneys:

Michael E. Scholl, Memphis, Tennessee (on appeal), and Claiborne Ferguson, Memphis, Tennessee (at trial), for the appellant, Latarsha R. Wheeler

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Pamela Fleming, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: TIPTON

The defendant, Latarsha R. Wheeler, was convicted of theft of property valued at $1,000 or more, but less than $10,000, a Class D felony, for money stolen from her employer, Back Yard Burgers. See T.C.A. section 39-14-105(3). The defendant was sentenced as a Range I offender to three years with forty days of periodic confinement in the workhouse coupled with probation. In this appeal, we consider her claims of error due to insufficient corroboration of accomplice testimony, lack of a jury charge on facilitation, denial of judicial diversion, and error in imposing the amount of restitution. We hold that the trial court did not err and affirm its judgment.

http://www.tba2.org/tba_files/TCCA/2007/wheelerl_061907.pdf

TODAY'S NEWS

Legal News
Passages
Politics
BPR Actions
TBA Member Services

Legal News

Antitrust ruling welcomed by Wall Street

A Supreme Court ruling blocking investors from suing investment banks under antitrust laws means smaller awards for successful claims. Bringing suits under the antitrust laws would have opened up the possibility of winning treble or triple damages. The court struck down a lower court ruling allowing such suits saying they would pose too much risk to the securities market.

The Times News has this AP story

Warrantless e-mail searches ruled illegal

The 6th Circuit Court of Appeals ruled yesterday that federal investigators overstepped their bounds by searching stored e-mails without a warrant. In a case closely watched by civil-liberties advocates, a three-judge panel of the court found that e-mail users have a reasonable expectation of privacy. Learn more from this article in the News Sentinel

Download the opinion

Judge suspends Durham DA

A judge in Durham, N.C., suspended District Attorney Mike Nifong effective immediately after learning the prosecutor -- disbarred for his handling of the Duke lacrosse rape case -- intended to stay in office for another month. The sheriff immediately stripped Nifong of his badge and the keys to his office.

Read the Associated Press account

Peete may change bribery plea

Former Memphis city councilman Rickey Peete is scheduled to be in federal court on Wednesday for a change-of-plea hearing in his federal bribery case. Peete, who had pleaded not guilty, resigned earlier this month after being indicted for allegedly taking payoffs to approve a development. He said he was looking at his options and has not decided what he will do at the hearing.

The Commercial Appeal has more

Democrats seek probe of possible voter suppression

U.S. Senate Democrats urged the Justice Department to investigate the activities of former U.S. Attorney Tim Griffin of Little Rock after reports surfaced that he may have worked to suppress Florida voter turnout during the 2004 presidential election. Griffin recently resigned his post as U.S. Attorney after taking over the job from fired prosecutor Bud Cummins.

Read the AP's story in the Bristol Herald Courier

Lawyer admits child porn possession

A longtime Memphis lawyer pleaded guilty Monday to possessing and receiving child pornography over the Internet and will be sentenced to at least five years in federal prison. D. Beecher Smith II, who once was the attorney for the Elvis Presley estate, pleaded guilty to two counts of a seven-count indictment. He will be sentenced Sept. 18.

The Commercial Appeal has more

MADD: Judges must fight drunk driving

Laura Dial, executive director of Mothers Against Drunk Driving Tennessee, writes in today's Commercial Appeal that relaxing the charging of DUIs sends the wrong message about the seriousness of drunk driving and its consequences. Fayette County General Sessions Judge Mike Whitaker recently announced that police must get special permission from the courts to charge drivers with more than two offenses.

Read Dial's arguments

Washington Co. jail project to break ground

According to officials, construction crews are a little more than three weeks away from breaking ground on Washington County's jail expansion and new justice center. The justice center will feature eight courtrooms, with the largest seating as many as 160 people.

Read about plans for the space in the Johnson City Press

Sevier jail presents challenges

Inmates complain they have to sleep on the floor and that there is inadequate access to medical care and legal materials. Officials are pinning their hopes on a new minimum-security facility slated to break ground next week. In the long run, the county also is considering whether to build a justice center that would provide more space and allow for safer transport of prisoners. As localities around the state face the same issues, the Mountain Press looks at specific challenges facing Sevier County.

Read the article

Passages

Vanderbilt Law emeritus professor dies Friday

Vanderbilt University Law School Emeritus Professor Theodore (Ted) Smedley died of a heart attack on Friday. Professor Smedley, who joined the law school's faculty in 1957, was 94. Although he retired from the law faculty in 1978, he taught classes at Vanderbilt during the 1980s.