Campaign underway to honor Barker for service

Attorneys from across Tennessee are working together to honor Supreme Court Justice William R. "Mickey" Barker with a portrait that would be hung in the Supreme Court's courtroom in Nashville. Chattanooga attorney Charles Gearhiser is leading the fund-raising campaign to honor Barker for his many years of dedicated service as a trial judge, intermediate appellate judge and finally as a Supreme Court Justice. Download a letter from the Campaign Committee or make your donation to: Tennessee Judicial Conference Foundation, c/o Suzanne Keith, 1903 Division Street, Nashville, Tennessee 37203.
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.

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

WILLIS BRUCE AMOS ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Court: TSC

Attorneys:

C. Dewey Branstetter, Jr., Michael J. Wall, and David L. Raybin, Nashville, Tennessee, for the appellants, Willis Bruce Amos et al.

Sue Boyd Cain, James L. Charles, Lora B. Fox, and Matthew J. Sweeney, Nashville, Tennessee, for the appellee, the Metropolitan Government of Nashville and Davidson County, Tennessee.

Judge: WADE

Willis Bruce Amos and fifteen other individuals, each of whom was formerly employed in the police or fire departments of the Metropolitan Government of Nashville and Davidson County, filed suit, asking to have the lump-sum payments for unused vacation days paid at their retirement included in the formula determining the amount of their pension. Pursuant to applicable provisions of the Metro Code, the trial court granted a motion for summary judgment, holding that the lump-sum payments to Amos and the other individuals were not included in their "average earnings" for purposes of the calculations. The Court of Appeals upheld the judgment of the trial court. We affirm.

http://www.tba2.org/tba_files/TSC/2008/amosw_081508.pdf


STATE OF TENNESSEE v. ROBERT T. DOWNEY

Court: TSC

Attorneys:

Robert T. Bateman, Clarksville, Tennessee, for the appellant, Robert T. Downey.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General (on appeal); John Wesley Carney, Jr., District Attorney General; Dan Brollier, Assistant District Attorney General (at trial); for the appellee, State of Tennessee.

Judge: BARKER

The defendant in this case was convicted of conspiracy to commit especially aggravated robbery, especially aggravated robbery, aggravated burglary, and reckless endangerment. The Court of Criminal Appeals affirmed his convictions but remanded for re-sentencing. We granted the defendant's application for permission to appeal to consider the following issues: 1) whether the trial court erred in denying defendant's motion to suppress his written statement; 2) whether the trial court erred by overruling defendant's motion to dismiss the indictment when the State violated rules of discovery; 3) whether the State failed to prove the use of a deadly weapon; 4) whether there was sufficient evidence of conspiracy to use a deadly weapon; and 5) whether the verdict was contrary to the weight of the evidence. Neither party appealed the Court of Criminal Appeals' decision to remand for re-sentencing. After considering these issues, we conclude that the trial court properly denied the defendant's motion to suppress and motion to dismiss. We also hold that there was sufficient evidence to support all of the convictions. We therefore affirm the defendant's convictions, while remanding to the trial court for re-sentencing under the Court of Criminal Appeals' order.

http://www.tba2.org/tba_files/TSC/2008/downeyr_081508.pdf


STATE OF TENNESSEE v. ARIEL BEN SHERMAN

Court: TSC

Attorneys:

Donald A. Bosch and Ann C. Short-Bowers, Knoxville, Tennessee, for the appellant, Ariel Ben Sherman.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; and Russell Johnson, District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

A Loudon County grand jury indicted the defendant, Ariel Ben Sherman, and co-defendant, Jacqueline Crank, for child neglect. The trial court dismissed the indictment against Sherman. The Court of Criminal Appeals reversed and remanded. We granted Sherman's application for permission to appeal to consider the issues presented for review, and hold as follows: (1) When deciding a motion to dismiss an indictment, a trial court may consider undisputed facts that are clearly and unequivocally agreed upon by the parties; (2) a person standing in loco parentis to a child may have a legal duty of care, the breach of which may result in criminal culpability; and (3) the State is not bound at the outset of a trial by the legal theories espoused in its bill of particulars. Because the trial court erroneously dismissed the indictment, we affirm the Court of Criminal Appeals, reinstate the indictment against Sherman, and remand the case for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2008/shermana_081508.pdf


ELIZABETH BAILEY v. MARY TAYLOR, ET AL. and MARY TAYLOR v. ELIZABETH BAILEY, ET AL.

Court: TCA

Attorneys:

Mary Taylor Shelby, pro se.

James W. Cook, Germantown, TN, for Appellee, Elizabeth Bailey.

Judge: HIGHERS

These consolidated appeals arise out of two forcible entry and detainer suits filed in general sessions court and appealed to circuit court. For the following reasons, we have determined that one appeal must be dismissed for lack of a final order, and one appeal must be reversed and remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/baileye_081508.pdf


STEPHANIE CHRISTMON LEEPER v. KEITH ANTHONY LEEPER

Court: TCA

Attorneys:

Ricky A.W. Curtis, Blountville, Tennessee, for the Appellant, Stephanie Christmon Leeper.

Thomas C. Jessee, Johnson City, Tennessee, for the Appellee, Keith Anthony Leeper.

Judge: SWINEY

Stephanie Christmon Leeper ("Mother") and Keith Anthony Leeper ("Father") were divorced on July 7, 2005. In the Final Decree of Divorce, Mother was designated the primary residential parent of the parties' two minor daughters. No appeal was taken from the Final Decree. Father filed numerous motions after entry of the Final Decree claiming Mother was in contempt of court for not following the mandates of the Final Decree. Nowhere in these pleadings did Father request a change in primary residential parent status. There were several hearings conducted on the various post-Final Decree motions. Following the latest of these hearings, the Trial Court changed custody and designated Father as the children's primary residential parent. Mother appeals raising numerous issues, including a claim that her due process rights were violated when the Trial Court changed custody without Father ever having filed a pleading requesting such a change. We agree with Mother and vacate the judgment of the Trial Court designating Father the children's primary residential parent.

http://www.tba2.org/tba_files/TCA/2008/leepers_081508.pdf


JEANETTE TACKER v. MICHAEL DAVIDSON
Correction on page 3


Court: TCA

Attorneys:

William T. Winchester, Memphis, Tennessee, for the appellant, Michael Davidson.

No appearance by the appellee, Jeanette Tacker.

Judge: KURTZ

This appeal concerns a contempt proceeding arising from the alleged failure of the appellant to pay child support and other expenses as required by a prior court order. Neither the appellant nor counsel for the appellant appeared at the hearing below held on the issue of his contempt. The trial court found the appellant to be in contempt for nonpayment of his court-ordered obligations; the appellant was also taxed with attorney's fees for the appellee. Because the trial court failed to find that the appellant possessed the present ability to pay and also failed to find that he was in willful noncompliance with the court's prior order, we reverse that part of the decision below finding the appellant to be in contempt as well as awarding attorney's fees, and we remand for further proceedings. We leave undisturbed the trial court's finding that the appellant was in arrears on his obligations to the appellee.

http://www.tba2.org/tba_files/TCA/2008/tackerj_CORR_081508.pdf


TPI CORPORATION, ET AL. v. JAMES (JASON) D. WILSON

Court: TCA

Attorneys:

James (Jason) D. Wilson, Whiteville, Tennessee, appellant, pro se.

Thomas C. Jessee, Johnson City, Tennessee, for the appellees TPI Corporation, Robert E. Henry, Sr., and Robert E. Henry, Jr.

Judge: SUSANO

In July 2004, TPI Corporation, Robert E. Henry, Sr., and Robert E. Henry, Jr. ("the Plaintiffs") filed a complaint against James (Jason) D. Wilson ("the Defendant") seeking a temporary restraining order ("TRO") as well as compensatory and punitive damages. The Defendant eventually agreed to the entry of a permanent restraining order and, with that agreement, the Plaintiffs nonsuited their remaining claims for monetary damages. The trial court entered a final judgment incorporating the parties' agreement on September 29, 2005. Almost two years later, the Defendant, pro se, filed a "Motion to Dismiss Plaintiff's [sic] Voluntary Non-Suit With Prejudice" and a separate motion requesting sanctions pursuant to Tenn. R. Civ. P. 11. The trial court denied the motions because they were untimely, having been filed almost two years after entry of the final judgment. The Defendant appeals, claiming the trial court erred when it denied his motions. The Plaintiffs claim that this appeal is frivolous. We affirm the judgment of the trial court and conclude that the Defendant's appeal is, indeed, frivolous. We remand this case to the trial court with instructions.

http://www.tba2.org/tba_files/TCA/2008/tpi_081508.pdf


Sheriff's Duty to Patrol within City Limits

TN Attorney General Opinions

Date: 2008-08-15

Opinion Number: 08-134

http://www.tba2.org/tba_files/AG/2008/ag_08_134.pdf

TODAY'S NEWS

Legal News
Election 2008
TennBarU CLE
TBA Member Services

Legal News
Confederate flag case ends in mistrial
The case of an Anderson County high school student who sued the school district because its dress code prohibited him from wearing a Confederate battle flag T-shirt to school ended today in a mistrial.
Read the Tennessean for more
Court upholds charges against cult leader
The Tennessee Supreme Court has upheld the neglect case against an alleged Loudon County cult leader accused of contributing to a 15-year-old girl's death from cancer. The case at issue involves whether Ariel Ben Sherman's role as "spiritual father" to 15-year-old Jessica Crank makes him criminally responsible for her death from a rare form of bone cancer for which her mother shunned medical treatment in favor of prayer.
Read more in the Knoxville News Sentinel
Metro Council will appoint interim PD
Filling the shoes of the late Metro Public Defender Ross Alderman will not be an easy task, but the Metro Council will begin the process of searching for an interim public defender at its next meeting. The Nashville City Paper looks at some local lawyers who might be considered.
Read the story
Blount County to name new General Sessions judge
Blount County Commission will soon be picking a successor to General Sessions Judge David Duggan, who was elected to the Circuit Court Division II seat in the Aug. 7 general election.
Read more in the Daily Times
Greene County making progress on jail crowing plan
Greene County may not meet a Sept. 12 deadline for having a plan for reducing inmate overcrowding, but Sheriff Steve Burns told county officials Wednesday that he thinks he can make a case to state officials that the county is making a "good faith effort" to move forward.
Read more in the Greeneville Sun
Election 2008
Recount unlikely in state Senate race
State Sen. Raymond Finney said he "probably" will drop his request for a recount of votes in Sevier County in last week's Republican primary, which he unofficially lost to Rep. Doug Overbey by 139 votes.
Read more in the Knoxville News Sentinel
TennBarU CLE
Getting paid a problem? TennBarU online ethics course can help
Collecting fees is not directly addressed in the Rules of Professional Conduct, however both the rules and malpractice carriers have something to say on the issue. This online course from TennBarU explores practice management strategies to help reduce the number of non-paying clients and discusses ethical obligations for collecting fees from such clients.
Register or learn more
TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
Find out more

 
 
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