TBA welcomes legislators at annual 'Big Shrimp' reception

Tennessee Bar Association members are coming together with legislators from across the state tonight in the annual TBA Big Shrimp reception. Each year the event gives TBA leaders and others the opportunity to meet with about 100 legislators and their staff members in a casual setting. This year, participants in the TBA's Leadership Law class will also be attending, speaking with legislators from their home districts and helping to devour more than a few pounds of really big shrimp.
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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

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

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

ALBERT BENDER ET AL. v. NASHVILLE ELECTRIC SERVICE ET AL.

Court: TCA

Attorneys:

Albert Bender, Antioch, Tennessee, Pro Se.

C. Dewey Branstetter, Jr., and Eugene W. Ward, Nashville, Tennessee, for the appellants, Nashville Electric Service, Bill Matheson and Preston Marsh.

Judge: BENNETT

In February 2005, Davidson County residents sued the Nashville Electric Service and two of its representatives for damages allegedly caused by the removal of trees from their property. As of May 2006, the case had not been set for trial as required by Local Rule 18.01 and the trial court dismissed the cause for residents' failure to prosecute pursuant to Tenn. R. Civ. P. 41 in October 2006. Residents appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2008/bendera_021908.pdf


JOHN S. BRIGHT v. CRYSTAL L. GUE, M.D., ET AL.

Court: TCA

Attorneys:

Douglas E. Taylor, Sevierville, Tennessee, for the appellant, John S. Bright.

Stephen C. Daves and Jeffrey R. Thompson, Knoxville, Tennessee, for the appellee, University of Tennessee Medical Center.

Heidi A. Barcus and Hillary B. Jones, Knoxville, Tennessee, for the appellee, Russell J. Smith, M.D.

Judge: LEE

In this medical malpractice case, the trial court granted summary judgment in favor of the hospital and a treating physician. Subsequently, the trial court denied the plaintiff’s motion to set aside the summary judgment in favor of the physician. We vacate the trial court's judgment denying the motion to set aside its summary judgment in favor of the physician upon our finding that the plaintiff was denied adequate notice of the hearing on the motion for summary judgment. We vacate the summary judgment against the hospital upon our determination that the hospital did not negate the claimed basis of the plaintiff's suit or demonstrate that the plaintiff's complaint was time barred under the applicable statutes of limitation.

http://www.tba2.org/tba_files/TCA/2008/brightj_021908.pdf


FEDERAL EXPRESS v. THE AMERICAN BICYCLE GROUP, LLC

Court: TCA

Attorneys:

C. Allen Ragle, Knoxville, Tennessee, for the Appellant, The American Bicycle Group, LLC.

Christopher W. Conner, Maryville, Tennessee, for the Appellee, Federal Express.

Judge: SWINEY

Federal Express ("Plaintiff") filed a Complaint on Sworn Account in the Knox County Chancery Court claiming that the defendant, The American Bicycle Group, LLC (the "LLC"), owed Plaintiff $121,619.32. The LLC filed a Tenn. R. Civ. P. 12.02(3) motion to dismiss based on improper venue. The LLC claimed that venue was improper in Knox County because: (1) Plaintiff's principal place of business was in Shelby County; (2) the LLC's principal place of business was in Hamilton County; and (3) the alleged cause of action arose in Shelby County. Following a hearing, the LLC's motion to dismiss was denied by the Trial Court because the LLC's registered agent for service of process was located and served in Knox County. Both the Trial Court and this Court granted the LLC's request for permission to file a Tenn. R. App. P. 9 interlocutory appeal. The sole issue on this appeal is whether the Knox County Chancery Court is a proper venue for Plaintiff's action. We affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/fedex_021908.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2008/fedex_CON_021908.pdf


IN THE MATTER OF J.O.M.

Court: TCA

Attorneys:

Randall D. Fleming, Kingsport, Tennessee, for the Appellant, J.S.

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

Judge: SWINEY

The Juvenile Court terminated the parental rights of J.S. ("Father") to his son, J.O.M. (the "Child"). The Juvenile Court determined that the Department of Children's Services ("DCS") had proven by clear and convincing evidence that grounds existed to terminate Father's parental rights. Specifically, Father had been confined in a correctional facility under a sentence of ten or more years and the Child was less than eight years old at the time the criminal sentence was imposed. The Juvenile Court also concluded that there was clear and convincing evidence that terminating Father's parental rights was in the Child's best interest. Father appeals raising various challenges to the Juvenile Court's judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2008/jom_021908.pdf


MBNA AMERICA BANK, N.A. v. CHARLES HENDRICKS

Court: TCA

Attorneys:

Charles M. Hendricks, Pleasant View, Tennessee, Pro Se.

Christine Bratten, Knoxville, Tennessee, for the appellee, MBNA America Bank, N.A.

Judge: BENNETT

Bank filed suit to enforce an arbitration award for a debt owed by a former credit card holder. The trial court granted summary judgment against the debtor, who appeals based on alleged procedural improprieties. We affirm.

http://www.tba2.org/tba_files/TCA/2008/mbna_021908.pdf


RONALD A. BARKER a/k/a GEORGE N. BAILEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ronald A. Barker, a/k/a George N. Bailey, Blountville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Gene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Ronald A. Barker, a/k/a George N. Bailey, appeals the post-conviction court's summary dismissal of his petition for post-conviction relief. The petitioner fled the jurisdiction prior to his June 2004 sentencing hearing, was sentenced in absentia, and did not appeal the judgment of the trial court. He was later arrested in Florida and ultimately extradited to Sullivan County in April 2006. In January 2007, the petitioner filed a petition for post-conviction relief, making numerous allegations. The post-conviction court found the petition to be untimely in that it was filed beyond the one-year statute of limitations established in the Post-Conviction Procedure Act, Tenn. Code Ann. section 40-30-101 et. seq., and it dismissed the petition without a hearing. The petitioner appeals, arguing that the one-year of statute of limitations for his filing a post-conviction petition did not begin to run until he was returned to Tennessee in April 2006, and therefore his petition was timely filed. After reviewing the record, we conclude that the statute of limitations expired in July 2005, and that the trial court's filing revised judgments in August 2006 did not toll the statute of limitations. Thus, the petition was untimely filed and properly dismissed. We accordingly affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/barkerr_021908.pdf


STATE OF TENNESSEE v. BILLY JOE ELLIOTT

Court: TCCA

Attorneys:

Jerry J. Fabus, Jr., Gray, Tennessee (on appeal), and Eric Daniel Reach, Johnson City, Tennessee (at trial), for the appellant, Billy Joe Elliott.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Michael Rasnake, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Billy Joe Elliott, appeals from his conviction of obtaining or attempting to obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge, a Class D felony. The defendant, a Range I offender, was sentenced to two years, with ten days to be served in jail and the remainder on probation. In this appeal, the defendant claims that the evidence does not support his convictions and that the trial court erred in not granting judicial diversion. Upon review, we affirm the defendant's conviction.

http://www.tba2.org/tba_files/TCCA/2008/elliottb_021908.pdf


STATE OF TENNESSEE v. THOMAS HARVILLE, JR.

Court: TCCA

Attorneys:

George Todd East, Kingsport, Tennessee, for the appellant, Thomas Harville, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; William Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In October 2004, a Sullivan County grand jury indicted the defendant, Thomas Harville, Jr., on one count of violating his status as a habitual motor vehicle offender, a Class E felony. Following a June 2005 jury trial in Sullivan County Criminal Court, the defendant was convicted on the sole count of the indictment and sentenced to two years as a Range I, standard offender, with the defendant to serve eighty days in jail and the balance of his sentence on community corrections. The defendant appeals, alleging that the trial court: (1) improperly admitted the preliminary hearing testimony of a police officer when the state failed to show that the witness was unavailable at trial; (2) improperly determined that the state could impeach the defendant with a prior felony conviction for evading arrest; and (3) improperly sentenced the defendant. After reviewing the record, we conclude that the defendant has waived the first issue on appeal and that the trial court committed no error as to the other two issues. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/harvillet_021908.pdf

SMITH dissenting and concurring
http://www.tba2.org/tba_files/TCCA/2008/harvillet_dis_021908.pdf


EARL D. HOLLOWAY v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Earl D. Holloway, Mountain City, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel West Harmon, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Earl D. Holloway, was convicted of second degree murder and sentenced to twenty- two years in the Tennessee Department of Correction. Thereafter, the petitioner filed a petition for a writ of habeas corpus, contending that his sentence was void because the judgment reflected that he was ordered to serve eighty-five percent of his sentence in confinement, not one hundred percent as mandated by statute. The habeas corpus court dismissed the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we reverse the dismissal of the petition and remand with instructions for the habeas corpus court to grant the petition and transfer to the convicting court for correction of the judgment to reflect the correct release eligibility.

http://www.tba2.org/tba_files/TCCA/2008/hollowaye_021908.pdf


STATE OF TENNESSEE v. RICKY SHANE STANLEY

Court: TCCA

Attorneys:

C. Richard Hughes, District Public Defender; William C. Donaldson, Assistant District Public Defender, for the appellant, Ricky Shane Stanley.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Steven Bebb, District Attorney General; James H. Stutts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In 2005, while on probation, the defendant was arrested for possession of a weapon, possession of a Schedule II drug, driving on a revoked license, and two counts of aggravated burglary. Following these arrests, a probation revocation warrant was issued for the defendant. In February 2006, the defendant was determined to be incompetent to stand trial on the charges resulting from his arrests. In January 2007, the Monroe County Circuit Court held a probation revocation hearing and, despite the previous determination that the defendant was incompetent to stand trial, revoked the defendant's probation. The defendant appeals, arguing that the trial court erred in revoking his probation while he was incompetent to stand trial. After reviewing the record, we conclude that the trial court's revocation of the defendant's probation violated his due process rights under the state and federal constitutions. Therefore, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/stanleyr_021908.pdf


Carrying of Firearms on Public Parks, Playgrounds, Civic Centers and Other Public Recreational Buildings and Grounds

TN Attorney General Opinions

Date: 2008-02-19

Opinion Number: 08-26

http://www.tba2.org/tba_files/AG/2008/ag_08_26.pdf

Compulsory School Attendance and Truancy Statutes

TN Attorney General Opinions

Date: 2008-02-19

Opinion Number: 08-27

http://www.tba2.org/tba_files/AG/2008/ag_08_27.pdf

Drug Task Force Appropriations To Participating Law Enforcement Agencies

TN Attorney General Opinions

Date: 2008-02-19

Opinion Number: 08-28

http://www.tba2.org/tba_files/AG/2008/ag_08_28.pdf

Private attorneys selected to be Special Substitute General Sessions Judges under Tenn. Code Ann. section 16-15-209.

TN Attorney General Opinions

Date: 2008-02-19

Opinion Number: 08-29

http://www.tba2.org/tba_files/AG/2008/ag_08_29.pdf

TODAY'S NEWS

Legal News
Politics
Upcoming
TennBarU CLE
TBA Member Services

Legal News
Knox chancellor grants request to delay ouster
Chancellor Daryl R. Fansler this morning granted two Knox County commissioners' request to delay a hearing on their ouster, postponing a suspension hearing scheduled for Wednesday and clearing the way for Wednesday's meeting at which commissioners will fill a dozen vacant county offices.
The News Sentinel has more
FBI gun database increased after Virginia Tech shootings
More states are turning over records to a federal database of mentally ill people barred from owning guns, more than doubling the number in the system since the massacre at Virginia Tech last spring, the FBI says.
The Tennessean carried this USA Today story
Candidates line up for sheriff's job
Three law enforcement men have said they would like to have the Williamson County sheriff's job, now that former Sheriff Ricky Headley agreed to a plea deal that keeps him out of jail. Headley, 44, was facing 37 counts -- 21 felonies -- that he illegally obtained prescription drugs from a Nashville pharmacy. County commissioners will appoint an interim sheriff on March 10. That person will have control of the office until an election on Aug. 7 to fill the remainder of Headley's term, which expires Aug. 31, 2010.
The Tennessean has the story
Supreme Court to hear exclusionary rule case
The Supreme Court agreed Tuesday to consider whether evidence must be suppressed when authorities base an arrest on incorrect information from police files. The Alabama case involved a search that found methamphetamine in the suspect's pockets and an unloaded gun under the front seat of his truck. But it turned out that the warrant for his arrest had been recalled five months earlier.
The Associated Press reports
Muslim court cases tracked
An analyst with a Washington research group has scoured 888 court decisions involving Muslims and discerned the trends. The records show that the United States is winning many terrorism-related prosecutions against religiously inspired defendants and that Muslims frequently lose civil lawsuits. But experts disagree on what it all means.
The ABA Journal has the story
Are TV shows pushing negative lawyer image?
Are "Law & Order," "Shark" and "CSI" having a negative effect on how the public perceives lawyers? Michael Asimow, a professor emeritus of UCLA School of Law, wondered where all the nice TV lawyers have gone. "Why are they so nasty?" Asimow asked at an American Bar Association panel discussion about lawyers on TV. "There's a deep mistrust in the general public for our profession."
Read more on Law.com
Politics
Padgett will run for Senate
Former Knox County Clerk Mike Padgett said today that he will seek the Democratic nomination to the U.S. Senate seat now held by Republican Sen. Lamar Alexander. Padgett, 59, said he will make a formal announcement on March 4.
The News Sentinel reports
Upcoming
Bill of Rights duplicate to come to state museum
A replica of the original Bill of Rights will be presented to the Tennessee State Museum, at Fifth and Deaderick streets in Nashville, on Feb. 22 at 11 a.m. The document is an exact duplicate of one that President George Washington presented to each of the original 13 states and the federal government. Friday is Washington's birthday.

Felons' right to vote to be discussed on panel
A panel of speakers will address the issue of "Felony Disenfranchisement and the Right to Vote in Tennessee" in a discussion slated for 12:30 to 2 p.m. Wednesday in Room 121 of the Cason-Kennedy Nursing Building at MTSU. Among those on the panel is Gerald Melton, public defender for the 16th Judicial District of Tennessee. This event is free and open to the public. It is sponsored by the Tennessee Right-to-Vote Campaign, the American Democracy Project, and MTSU's Black History Month Committee.
Read more in the Daily News Journal
TennBarU CLE
Still time to register for LawTech program
An all-new lineup awaits attendees at this year's TBA Law Technology conference, set for Feb. 22. You'll find: legal technology trends for 2008; the latest technology in the courts; practical guides to marketing through webinars, blogs and podcasts from lawyer, author and marketing guru Greg Siskind; the argument for Macintosh computers for lawyers from Ben Stevens, publisher of the well known law office management blog, "The Mac Lawyer"; updates on the pluses and pitfalls of Microsoft Vista and Office 2007; door prize giveaways and more.
Register now or find out more
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
Visit the site

 
 
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