Award-winning GP Summit returns with strong lineup

Recognized in 2007 as the state's top educational seminar, the TBA's General Practice Summit returns this summer with a strong lineup of speakers in practice areas central to the work of attorneys in solo or small practices. This year's program will again feature 15 hours of practical programming along with plenty of time for networking and learning from your colleagues. Register or find out more about this Nashville program, scheduled for Aug. 21-23.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5732

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.

02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - 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.

MARC ESKIN ET AL. v. ALICE B. BARTEE ET AL.

Court: TSC

Attorneys:

Warren D. McWhirter, Memphis, Tennessee, for the appellant, USAA Casualty Insurance Company.

J. Houston Gordon, Covington, Tennessee, and Irma W. Merrill-Stratton, Memphis, Tennessee, for the appellees, Karen Eskin and Logan Eskin.

Judge: KOCH

This appeal involves claims for negligent infliction of emotional distress made by two family members of a child who was seriously injured in an automobile accident. In their complaint filed in the Circuit Court for Shelby County, the injured child's mother and brother alleged that they had sustained severe emotional injuries after they observed him lying on the pavement in a pool of blood. The injured child's parents served a copy of the complaint on their automobile insurance company because the driver of the automobile that struck their son lacked adequate insurance. The insurance company moved for a partial summary judgment on the negligent infliction of emotional distress claim because neither the injured child's mother nor his brother had seen or heard the injury- producing accident. The trial court granted the insurance company's motion, and the injured child's mother and brother appealed to the Tennessee Court of Appeals. The appellate court reversed the summary judgment and remanded the case for further proceedings. We granted the insurance company's Tenn. R. App. P. 11 application for permission to appeal to determine whether the Court of Appeals correctly permitted these negligent infliction of emotional distress claims to proceed. We have determined that persons who observe an injured family member shortly after an injury- producing accident may pursue a claim for negligent infliction of emotional distress.

http://www.tba2.org/tba_files/TSC/2008/eskinm_081408.pdf


TAMMY RENEE MAGGART v. ALMANY REALTORS, INC. ET AL.

Court: TSC

Attorneys:

Arthur E. McClellan, Gallatin, Tennessee, for the appellant, Almany Realtors, Inc.

Jeffrey O. Powell, Nashville, Tennessee, for the appellee, Tammy Renee Maggart.

Judge: BARKER

In this personal injury case, the plaintiff was an employee of the defendant and was injured on the job. The trial court granted the defendant's motion for summary judgment concluding that the plaintiff had executed a general release of liability in favor of the defendant. The Court of Appeals reversed, holding that the release was invalid as against public policy. Upon thorough consideration of the record and of the applicable law, we hold that summary judgment was inappropriate because the release of liability only covered accidents occurring while the plaintiff was running errands off- premises and did not cover the particular accident at issue in this case. Therefore, we affirm the Court of Appeals' decision denying summary judgment, on alternate grounds, and remand this case to the trial court for further proceedings.

http://www.tba2.org/tba_files/TSC/2008/maggartt_081408.pdf


RONNIE BERKE v. CHUBB GROUP OF INSURANCE COMPANIES and PACIFIC INDEMNITY COMPANY

Court: TCA

Attorneys:

Andrew L. Berke, and Megan England Demastus, Chattanooga, Tennessee, for appellant.

William B. Jakes, Nashville, Tennessee, for appellees.

This action was filed on October 3, 1996 in the Chancery Court. The Final Judgment was entered in the Trial Court on September 13, 2007. On appeal, we vacate and remand for a new trial inter alia due to the unreasonable delay by the Trial Court in rendering judgment.

http://www.tba2.org/tba_files/TCA/2008/berker_081408.pdf


STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. J.C., ET AL.

Court: TCA

Attorneys:

Dana Lee Scott, Mount Carmel, Tennessee for the Appellant, B.C.

Gerald T. Eidson, Rogersville, Tennessee for the Appellant, J.C.

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

Judge: SWINEY

The State of Tennessee Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of J.C. ("Father") and B.C. ("Mother") to the minor children S.A.C., K.O.C., and J.S.C. ("the Children"). After trial, the Juvenile Court entered an order finding and holding, inter alia, that clear and convincing evidence existed to terminate Father's and Mother's parental rights under Tenn. Code Ann. sections 36-1-113(g)(1), (g)(2), and (g)(3), and that termination was in the best interests of the Children. Father and Mother appeal to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2008/jc_081408.pdf


MARILYN RUSSELL-JOHNSON v. THERON L. JOHNSON

Court: TCA

Attorneys:

Marilyn Russell Johnson, Chattanooga, Tennessee, pro se.

Daniel K. Habenicht, Chattanooga, Tennessee, for appellee, Theron L. Johnson.

Judge: FRANKS

Plaintiff's action to declare a common law marriage to defendant was rejected by the Trial Court. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2008/johnsonm_081408.pdf


STATE OF TENNESSEE v. TEDDY RAY MITCHELL

Court: TCCA

Attorneys:

Darren V. Berg, James C. Wright, and R. Deno Cole, Knoxville, Tennessee, for the Appellant, Teddy Ray Mitchell.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; C. Berkeley Bell, District Attorney General; Victor Vaughn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Hamblen County jury convicted the Defendant, Teddy Ray Mitchell, of one count of disorderly conduct, a class C misdemeanor. At the sentencing hearing, the trial court granted the Defendant's request for judicial diversion. The Defendant appeals, contending that: (1) the evidence is insufficient to sustain his conviction; (2) his conviction violates constitutional provisions protecting free speech; and (3) the trial court erred when it allowed testimony about the Defendant's conduct when parking his car, which was not the basis for his arrest. We conclude that no appeal as of right exists because the Defendant was granted judicial diversion and no judgment of conviction has been entered. Accordingly, we dismiss his appeal.

http://www.tba2.org/tba_files/TCCA/2008/mitchellt_081408.pdf


HARRISON MELVIN X. PEARISON v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Harrison Melvin X. Pearison, Jr., Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Harrison Melvin X. Pearison, was denied habeas corpus relief by the Johnson County Criminal Court from his 1997 conviction for aggravated arson and twenty-year sentence at 100 percent service. On appeal, he contends that the amended judgment with 100 percent service is void and that he is entitled to serve the sentence at thirty percent as originally imposed. Upon review, we hold that the trial court properly dismissed the petition and affirm its order dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2008/pearisonh_081408.pdf


MARTY W. THOMAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brandon D. Raulston, Chattanooga, Tennessee, for the Petitioner, Marty W. Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; William H. Cox, III, District Attorney General; Jason Thomas, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Hamilton County jury found the Petitioner, Marty W. Thomas, guilty of four counts of aggravated rape and one count of aggravated burglary. The trial court sentenced him to fifty-four years of incarceration. The Petitioner appealed, and this Court affirmed the judgments. The Petitioner then brought a post-conviction petition claiming that he received the ineffective assistance of counsel at his trial. The post-conviction court denied relief, and the Petitioner now appeals. After a thorough review of the record and the applicable law, we affirm the post-conviction courtís judgment.

http://www.tba2.org/tba_files/TCCA/2008/thomasm_081408.pdf


RODNEY L. TIPTON v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Rodney L. Tipton, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Rodney L. Tipton, was denied habeas corpus relief by the Johnson County Criminal Court from his 1992 judgments for jury convictions of aggravated rape and aggravated robbery and effective thirty-three-year sentence as a Range I offender. On appeal, he contends that he is entitled to habeas corpus relief because the trial court constructively amended the indictment for aggravated rape by including in its jury instructions modes of the offense which were not charged in the indictment and because the trial court erroneously amended the aggravated robbery indictment by allowing an amendment to include a car as an additional item taken in the course of the robbery. Upon review, we hold that the trial court properly dismissed the petition and affirm its order dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2008/tiptonr_081408.pdf


Authority of Legislative Committee to Suspend Agency Rules

TN Attorney General Opinions

Date: 2008-08-14

Opinion Number: 08-131

http://www.tba2.org/tba_files/AG/2008/ag_08_131

Constitutionality of De Facto Custodian Legislation

TN Attorney General Opinions

Date: 2008-08-14

Opinion Number: 08-132

http://www.tba2.org/tba_files/AG/2008/ag_08_132

Issuance of Handgun Carry Permits to Persons Suffering from Post Traumatic Stress Disorder

TN Attorney General Opinions

Date: 2008-08-14

Opinion Number: 08-133

http://www.tba2.org/tba_files/AG/2008/ag_08_133

TODAY'S NEWS

Legal News
Election 2008
Passages
Upcoming
Practice Management
TBA Member Services

Legal News
ABA proposes new federal judge selection process
The ABA House of Delegates unanimously approved a resolution this week calling for a new federal judicial selection process. Under the plan, senators from each state would appoint bipartisan commissions to recommend nominees for the federal trial courts and the U.S. Court of Appeals. The names would be sent to the senators, who would then recommend individuals to the president, according to the ABA Journal.
Download the resolution
Bartlett OKs judicial pay hike schedule
The Bartlett Board of Mayor and Aldermen has unanimously approved a new salary structure for municipal judges' compensation. The Commercial Appeal has details on the plan.
Learn more here
New law clarifies patent judge appointments
President Bush has signed a bill giving the secretary of commerce authority to appoint patent judges. The legislation is intended to fix a possible constitutional flaw in a 1999 law that gave the appointment authority to the director of the Patent and Trademark Office. Legal scholars have suggested that the PTO director does not have constitutional authority to make such appointments and some argue that thousands of patent decisions made by PTO-appointed judges could be suspect.
Learn more in the New York Times
Bredesen administers oath to Helper
Governor Bredesen today administered the oath of office to Kim R. Helper in an investiture ceremony in Franklin. Bredesen appointed Helper as the district attorney general for the 21st Judicial District to fill the vacancy created by the death of District Attorney General Ron L. Davis in March.

Election 2008
Shelby County drafts new term-limit referendums
After much debate the Shelby County Commission yesterday gave tentative approval to two new voter referendums dealing with five crucial county offices. The ordinances establish the constitutionality of the offices and then ask voters to decide if the offices should be limited to two, four-year terms. The commission will give final consideration to the proposals next week.
The Commercial Appeal has more
Passages
Nashville lawyer and music industry insider dies
Nashville lawyer and CPA Gary Smith, 52, died Tuesday in a hunting accident in rural Middle Tennessee. Smith built a reputation for himself in the music industry with the founding of The Smith Wiles Co., through which he provided business management to recording artists, and Copyright Exchange LLC, which handled the transfer of musical compositions. Memorial Information -- A memorial service for Smith will be held Saturday at 1 p.m. at Brentwood United Methodist Church. Visitation will occur tomorrow (Friday) from 5 to 8 p.m. at the church. In lieu of flowers, donations may be made to the Gary Smith Trust Fund (which benefits several Nashville charities) at any Sun Trust Bank or to Gary Smith Trust c/o Diane Pearson, 1026 17th Ave. S., Nashville, 37212.

Upcoming
Memphis law alumni honor 'pillars of excellence'
The University of Memphis Law School Alumni Chapter will honor legal community leaders on Saturday during its "Striving for Excellence: Pillars of Excellence" ceremony at the Holiday Inn-University of Memphis. The evening will start with a reception at 6 p.m. followed by dinner and the ceremony at 7 p.m. U.S. Sen. Lamar Alexander will be the keynote speaker. For more information or to reserve your seat, contact Kelly Davis at (901) 678-4299.
Read about the honorees in the Memphis Daily News
Practice Management
Firms opening distressed assets groups
A number of law firms are reacting to financial problems in the banking sector and capital markets by opening distressed assets groups to help clients with foreclosures, restructurings and acquiring or disposing of distressed debt. The move is aimed at reaching clients who may not know they need a bankruptcy lawyer but understand the need for advice on the distressed assets they hold.
The AM Law Daily looks at the trend
TBA Member Services
First Tennessee is TBA's preferred provider
First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members. Find savings on merchant credit services, checking and savings, financial planning and more
on the TBA Web site

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

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.

© Copyright 2008 Tennessee Bar Association