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:

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

Corrected Opinion

Court: TSC


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


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.


Court: TCA


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.

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


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

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


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.


Court: TCA


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.


Court: TCA


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.


Court: TCCA


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.

With Dissenting Opinion

Court: TCCA


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).



Court: TCCA


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


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.


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