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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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
04 - TN Court of Criminal Appeals
03 - 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.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2008/certlist_022508.pdf


SARA HUTCHISON v. GREGORY L. RUTT, ET AL.

Court: TCA

Attorneys:

John E. Quinn, Nashville, Tennessee, for the appellants, Gregory L. Rutt and Dollar General Corp.

Randy Chaffin and Craig P. Fickling, Cookeville, Tennessee, for the appellee, Sara Hutchison.

Judge: CLEMENT

In this personal injury action arising from an automobile accident, the defendants, who conceded liability, contest the trial judge's award to plaintiff of $104,043.29 in damages. Having determined the evidence preponderates against the trial judge's determination that the accident caused the plaintiff's migraine headaches and the amount of the award, we modify the judgment by reducing the award of damages to $51,043.29.

http://www.tba2.org/tba_files/TCA/2008/hutchinsons_022608.pdf


KEENAN R. KEEN v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TCA

Attorneys:

Keenan R. Keen, Petros, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Kellena Baker, Assistant Attorney General, for the appellee, Tennessee Department of Correction, et al.

Judge: COTTRELL

A Prison Disciplinary Board found a prisoner guilty of two disciplinary infractions, fined him $5.00 for each infraction and sentenced him to two thirty-day terms in punitive segregation. The prisoner filed a petition for writ of certiorari, alleging that there were irregularities in the procedures followed by the disciplinary board and that its actions were arbitrary, capricious, and characterized by an abuse of discretion. The trial court granted the writ, and the department accordingly sent the administrative record to the court for review. The respondents then filed a motion for judgment on the record. The trial court granted the motion and dismissed the prisoner's claim. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2008/keenk_022608.pdf


MELANIE GAYLE KING (LYON), ET AL. v. JAMES DAVID KING

Court: TCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellants, Melanie Gayle King (Lyon) and Bradley N. Lyon.

William H. Bryson, Woodbury, Tennessee, for the appellee, James David King.

Judge: CLEMENT

The mother and stepfather of two minor children filed a petition against the father of the children to terminate the father's parental rights. The petitioners alleged, inter alia, that the father abandoned the children by failing to exercise any of the residential time and vacation time awarded to the father in the divorce and that he had willfully failed to visit the children during the four months preceding the filing of the petition. Following a bench trial, in which the mother and stepfather were represented by counsel, but the father was pro se, the trial court dismissed the petition to terminate based upon the finding that "due to the costs of transportation between the parties respective homes in Giles County and Cannon County and due to [the father's] limited income," the petitioners had failed to establish the ground of abandonment. The mother and stepfather have appealed, contending the trial court failed to correctly apply the law to the facts of this case and that the evidence clearly and convincingly proves that the father's failure to visit was willful due to the fact he had a vehicle, for which he could afford insurance, and the cost of driving the approximately sixty miles between their homes was within his financial means. We have determined that the trial court committed reversible error when it failed to appoint a guardian ad litem to represent the best interests of the minor children, which is mandated by Tenn. S. Ct. R. 13 section 1(d)(2) in proceedings to terminate a parent's rights when the petition is contested. We have also determined that if the father was indigent, which fact may be significant to the issue of willfulness, he had a constitutional right to appointed counsel. As Tenn. S. Ct. R. 13 section 1 (c) and (e) mandates, when the father appeared without counsel, the trial court had an affirmative duty to advise the father of his rights and to conduct an indigency hearing to determine if he was without sufficient means to pay reasonable attorney fees for representation in this case and, if so, to appoint counsel to represent him. We therefore vacate the judgment of the trial court and remand this matter to the trial court for further proceedings consistent with this opinion, including if necessary a new trial on the merits of the issues raised in the petition filed in this matter.

http://www.tba2.org/tba_files/TCA/2008/kingm_022508.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. LEIGH ANN MCALISTER, ET AL.

Court: TCA

Attorneys:

W. Ray Glasgow of Memphis, Tennessee for Appellant, Leigh Ann McAlister.

Robert E. Cooper, Jr., Attorney General and Reporter; Douglas Earl Dimond, Senior Counsel, for Appellee, Tennessee Department of Children's Services.

Judge: CRAWFORD

This is a termination of parental rights case. Mother/Appellant appeals the Order of the Shelby County Juvenile Court terminating her parental rights to her two minor children. Specifically, Appellant asserts that the grounds of persistence of conditions and failure to substantially comply with the permanency plans are not supported by clear and convincing evidence in the record, and that termination of her parental rights is not in the best interests of the children. Because we find clear and convincing evidence in the record to support termination on the grounds of failure to substantially comply with the permanency plans, and clear and convincing evidence that termination is in the best interests of the children, we affirm.

http://www.tba2.org/tba_files/TCA/2008/mcalisterl_022608.pdf


JOHN R. SHOMO ET AL. v. CITY OF FRANKLIN, TENNESSEE

Court: TCA

Attorneys:

M. Taylor Harris, Jr., Nashville, Tennessee, for the appellants, John R. Shomo and Sylvia J. Shomo.

Douglas Berry, Nashville, Tennessee, for the appellee, City of Franklin, Tennessee.

Judge: BENNETT

The Shomos owned several sewer taps on undeveloped property. The City of Franklin sold sewer taps on the property, offering lower prices than the Shomos. The Shomos sued Franklin asserting causes of action for breach of contract, unjust enrichment, conversion, and violation of the duties of a public utility. The trial court granted Franklin's motion to dismiss on the grounds that the complaint contained no set of facts that would entitle the Shomos to any relief according to law. We affirm.

http://www.tba2.org/tba_files/TCA/2008/shomoj_022508.pdf


IN RE: ESTATE OF LOYD R. SHULTS, deceased, ROBERT L. SHULTS, BARBARA GAIL SHULTS SMITH AND TERRY WAYNE SHULTS v. SUZANNE SHULTS

Court: TCA

Attorneys:

Bruce N. Oldham, Oldham & Dunning, LLC, Gallatin, Tennessee, and Paul A. Gontarek, Waller Lansden Dortch & Davis, LLP, Nashville, Tennessee for the appellant, Suzanne Shults.

John R. Phillips, Jr., Gallatin, Tennessee, Susan R. High-McAuley, Bone McAllester Norton, PLLC, Hendersonville, Tennessee, and Nathan Harsh, Gallatin, Tennessee for the appellees, Robert L. Shults, Barbara Gail Shults Smith and Terry Wayne Shults.

Judge: ASH

This appeal arises from a dispute regarding interpretation of Loyd R. Shults's last will and testament, which incorporated by reference his and his wife's antenuptial property agreement. The Chancery Court interpreted Mr. Shults' last will and testament, determining certain property ownership rights acquired by the decedent during his marriage to be his solely. The court also ordered reformation of the testamentary trust, contained within the will, to identify the biological children of the decedent as the remainder beneficiaries. The Decedent's widow, Suzanne Shults, now challenges the Chancery Court's orders, first, arguing her husband's property, while titled solely in his name, should be considered marital property because it was acquired during the marriage. Suzanne Shults also argues the antenuptial agreement between her and her deceased husband indicates his intent to leave the corpus of the trust to her because property acquired during their marriage was to be marital property. We disagree with the appellant's argument and affirm the ruling of the Chancery Court. Cost of this appeal shall be assessed to the appellant, Suzanne Shults.

http://www.tba2.org/tba_files/TCA/2008/shultsl_022508.pdf


IN RE: T. C. S. S.

Court: TCA

Attorneys:

A. Ensley Hagan, Jr., Lebanon, Tennessee, for the appellant, A.A.S.

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

Judge: CLEMENT

The father of an infant appeals the termination of his parental rights. The trial court found inter alia that his rights should be terminated pursuant to Tenn. Code Ann. section 36-1-113(g)(6) due to the fact the father was confined in prison as a result of a criminal act under a sentence of more than ten years imposed when the child was under eight years of age and termination was in the child's best interests, due in part to the child's numerous and serious medical complications and the fact the father had never met the child. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/tcss_022508.pdf


DERRICK BRYANT v. DAVID MILLS, WARDEN

Court: TCCA

Attorneys:

Derrick Bryant, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Jennifer L. Bledsoe and John Bledsoe, Assistant Attorneys General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Derrick Bryant, appeals the Morgan County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we conclude that the state's motion is well-taken, and the judgment of trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/bryantd_022508.pdf


PETER GRAVES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the Petitioner, Peter Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Associate Deputy Attorney General; Thomas A. Thomas, District Attorney General, for the State of Tennessee.

Judge: WEDEMEYER

A Weakley County jury convicted the Petitioner, Peter Graves, of possession of both a schedule II and a schedule IV drug with intent to sell or deliver, and the trial court sentenced him to an effective sentence of fifteen years. The Petitioner filed a petition for post-conviction relief, which the post- conviction court denied. The Petitioner now appeals, claiming: (1) he was denied the right to a fair trial because the jury saw him in handcuffs and shackles; (2) he was denied the right to a fair trial because the trial court did not conduct a jury out hearing when jurors wanted to ask him questions; and (3) he was not afforded the effective assistance of counsel. Upon a thorough review of the record and applicable law, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/gravesp_022508.pdf


STATE OF TENNESSEE v. MARVIN RICHARD RAUHUFF

Court: TCCA

Attorneys:

Dan Channing Stanley (on appeal), Knoxville, Tennessee; L. Allison Dobbs (at trial), Sevierville, Tennessee, for the appellant, Marvin Richard Rauhuff.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Randall E. Nichols, District Attorney General; Marya E. Wilkerson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In April 2005, a Knox County grand jury indicted the defendant, Marvin Richard Rauhuff, on one count of driving under the influence (DUI), third offense. Following a jury trial in Knox County Criminal Court, the defendant was convicted of the sole count of the indictment and was sentenced to eleven months, twenty-nine days in jail, with the defendant to serve 120 days in jail and the balance of his sentence on probation. The defendant appeals, arguing that the evidence was insufficient to sustain his conviction, and that his due process rights were violated by the state's failure to turn over evidence of a blood alcohol test indicating that the defendantís blood alcohol content (BAC) was below .08 percent. After reviewing the record, we find no error and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/rauhuffm_022508.pdf


STATE OF TENNESSEE v. MITCHELL SIMPSON

Court: TCCA

Attorneys:

Brian J. Hunt, Clinton, Tennessee, for the appellant, Mitchell Simpson.

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

Judge: THOMAS

In August 2006, the McMinn County Circuit Court, after a hearing, revoked the probation of the defendant, Mitchell Simpson, and ordered that the defendant serve the remainder of his five-year sentence in the Department of Correction. The defendant did not file a direct appeal of the probation revocation order. In February 2007, the defendant filed a motion for reduction of sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. The trial court subsequently denied the defendant's motion. The defendant appeals, arguing that the trial court erred in denying the defendant's motion. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/simpsonm_022508.pdf


Biological specimens for DNA analysis

TN Attorney General Opinions

Date: 2008-02-26

Opinion Number: 08-33

http://www.tba2.org/tba_files/AG/2008/ag_08_33.pdf

Opinion ─ TELS ─ Eligibility Exception

TN Attorney General Opinions

Date: 2008-02-26

Opinion Number: 08-34

http://www.tba2.org/tba_files/AG/2008/ag_08_34.pdf

Effect of Statute Requiring Maintenance of Sanitary Sewer Connections

TN Attorney General Opinions

Date: 2008-02-26

Opinion Number: 08-35

http://www.tba2.org/tba_files/AG/2008/ag_08_35.pdf

TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Knox Term Limits
TBA Member Services

Legal News
Convicted lawyer killer sticks with conspiracy theory
A man convicted of killing his lawyer in 2002 will get no further medical tests to evaluate his claim that authorities have implanted tracking devices in his body to monitor and control his thoughts. Recent X-rays of Harold Don Noel turned up no evidence of such devices, but he told U.S. District Judge Bernice Donald Monday he was not convinced the findings were valid. Noel was convicted of voluntary manslaughter in the June 2002 shooting death of Robert M. Friedman, a longtime Memphis attorney who represented Noel in a divorce case.
The Commercial Appeal has more
Defense Department general counsel Haynes resigns
The Defense Department's longest-serving general counsel, William J. Haynes II, is resigning to return to private life next month, the Pentagon said Monday. He has been criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists. He was confirmed as general counsel by the Senate in May 2001.
Law.com has this AP story
U of Georgia wins National Moot Court Competition
The University of Georgia topped 34 other teams from around the country in the 18th Annual National First Amendment Moot Court Competition, sponsored by the First Amendment Center and Vanderbilt University Law School. The Feb. 21-22 competition involved questions regarding First Amendment protections for groups who seek specialty license plates to advance their causes. The two teams argued before a panel of seven judges: Cornelia Clark, Tennessee Supreme Court justice; Steven M. Colloton, 8th U.S. Circuit Court of Appeals; Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals; Robert L. Echols, district judge for the Middle District of Tennessee; Julia Smith Gibbons, 6th Circuit; Gilbert S. Merritt, 6th Circuit; and Reggie B. Walton, U.S. district judge for the District of Columbia.
Read a detailed account of the competition from the First Amendment Center
Survey: most voters don't understand 'Tennessee Plan'
More than 80 percent of Tennessee voters say they don't understand how the state's Supreme Court and appellate judges are chosen, according to a survey commissioned by the Federalist Society, a conservative organization dedicated to a literal interpretation of the constitution. Pollster Kellyanne Conway says a full quarter of those surveyed thought the elections were used to choose judges, not just to retain them.
Find out more from WPLN
Courthouse bomb threat was to be 'revenge'
A woman who called in a bomb threat to the Scott County Courthouse on Monday morning will face a felony charge with a possible 10-year prison term. "She said she was mad at the Scott County judicial system and this was her way of taking revenge," Gate City Police Chief Jason Cox said. The courthouse was evacuated when the call came in around 11 a.m. An explosives-sniffing dog was brought in and a search of the courthouse was done. By 2 p.m. the building was reopened to the public.
The Kingsport Times-News reports
Hair samples can pinpoint where a victim has been
Scientists can now tell where in the United States a person may have been by analyzing a single strand of hair, offering a new tool for crime investigators trying to identify a body or track criminals. Variations in hydrogen and oxygen isotopes found in hair can be matched to the regional tap water people drank, providing clues about where a person had been living, scientists say. The journal Proceedings of the National Academy of Sciences published the findings on Monday.
Reuters reports the story
$645K median salary for some in firms with 25 or more
Chief legal officers and general counsel in legal departments of more than 25 lawyers made a median of $645,000 in total cash compensation in 2007, according to a survey by Altman Weil. The median cash compensation for new law grads going into an in-house legal department was $70,000.
The ABA Journal connects you to the survey
Former sheriff indicted on 28 counts
A federal grand jury has returned a 28-count indictment against former Hamilton County Sheriff Billy Long. In addition to possession with intent to distribute cocaine, the 55-year-old is charged with extortion, money laundering, providing a gun to a felon and possessing a firearm in furtherance of drug trafficking.
WBIR reported this AP story
Legislative News
Abortion resolution to change constitution fails
A resolution that would change the state's constitution to allow more limits on abortion has failed again in a House subcommittee. The resolution, sponsored by Rep. Dolores Gresham, a Somerville Republican, was voted down 6-3 today in the House Public Health and Family Assistance Subcommittee. The bill has repeatedly failed in the Democrat-controlled subcommittee. "I will try every avenue I can to bring it back up," Gresham said.
The Tennessean has the story
Odom sponsors border bill
House Majority Leader Gary Odom on Monday filed legislation "to address a recent threat by the Georgia General Assembly to encroach upon the southern border of Tennessee." The resolution, HJR 919, is in response to a measure passed by the Georgia General Assembly recently that forms a "Georgia-Tennessee Boundary Line Commission," which would discuss ceding Tennessee property to Georgia.
Read more on Chattanoogan.com
Senate Judiciary hears from agencies, takes no action
Much of the time of today's Senate Judiciary Committee was taken with budget presentations by judicial branch agencies. Concerned about the deteriorating weather conditions, the committee did hear a couple of out-of-town witnesses but then adjourned without taking any action on legislation.

Supreme Court Report
When is money laundering money laundering?
The U.S. Supreme Court considered yesterday whether hiding money under the floorboards of a car headed for the Mexican border was a violation of the money laundering law.
Read about this in The New York Times
Knox Term Limits
Knox Commission will put 7 of 9 amendments on ballot
Knox County commissioners agreed to put seven of nine proposed charter amendments on the August ballot by the end of their monthly meeting in the wee hours this morning. But a group called Knox Charter Petition, has pledged a petition drive to put all the items before voters if commissioners don't.
The News Sentinel has the story
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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