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Thursday, August 21, 2008

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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
04 - TN Court of Appeals
02 - TN Court of Criminal Appeals
05 - 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.

STATE OF TENNESSEE v. ARIEL BEN SHERMAN
CORRECTION appears on pages five and eleven of the opinion.

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_CORR_082108.pdf

THE ESTATE OF ROBYN BUTLER, ET AL. v. LAMPLIGHTER APARTMENTS, ET AL.

Court: TCA

Attorneys:

Lorraine Wade, Nashville, Tennessee, for the appellants, the Estates of Robyn Butler and LaChrisha Buford, Alice Butler and as executor and mother, and Britt Ross.

Gerald D. Neenan and Aubrey B. Harwell, III, Eugene W. Ward, and Kent W. Cochran, Nashville, Tennessee, for the appellee, Nashville Electric Service.

Gary A. Brewer and Benjamin J. Miller, Nashville, Tennessee, for the appellees, Lamplighter Apartments, Raskin, Inc., d/b/a Edwin B. Raskin Company, Edwin Raskin, Trustee.

Judge: CLEMENT

This wrongful death and personal injury action arises from a fatal fire at an apartment complex. The defendants are Nashville Electric Service and the owner and operator of the apartment complex. A Complaint, filed on behalf of the plaintiffs, the estates of two deceased children, the decedents' mother, and her fiance', was filed on the anniversary of the fire, and the Clerk of the Circuit Court immediately issued the summons to be served on each defendant and handed them to the plaintiffs' counsel as requested. Counsel for the plaintiffs, however, made a deliberate decision to prevent service of summons on any of the defendants for more than eleven months after the Complaint was filed. Thereafter, the defendants filed motions for summary judgment on multiple grounds including the defense that the claims were barred by the one-year statute of limitations. The trial court granted the defendants' motions for summary judgment. We affirm finding the claims are barred by the applicable statutes of limitations due to the fact that counsel for the plaintiffs intentionally caused the delay of prompt service of summons, which rendered the initial filing of the Complaint ineffective.

http://www.tba2.org/tba_files/TCA/2008/butlerr_082108.pdf

JACKSON O'DELL, JR. v. JACKSON C. O'DELL, III, ET AL.

Court: TCA

Attorneys:

J.D. Lee and Travis E. Venable, Knoxville, Tennessee for the Appellant, Jackson O'Dell, Jr.

L. Caesar Stair, III and C. Scott Taylor, Knoxville, Tennessee for the Appellees, Jackson C. O'Dell, III and Calvin David O'Dell.

Judge: SWINEY

Jackson O'Dell, Jr., ("Plaintiff") sued Jackson C. O'Dell, III and Calvin David O'Dell ("Defendants") alleging civil conspiracy and outrageous conduct. Defendants filed a motion to dismiss, which the Trial Court granted. Plaintiff appeals to this Court. We affirm the dismissal of Plaintiff's claims for civil conspiracy and outrageous conduct, but hold that Plaintiff did state a claim for alleged violations of the Tennessee Limited Liability Company Act, Tenn. Code Ann. section 48-201-101 et seq.

http://www.tba2.org/tba_files/TCA/2008/odellj_082108.pdf

PARROTT MARINE SYSTEMS, INC., v. SHOREMASTER, INC., and GALVA FOAM MARINE INDUSTRIES, INC.

Court: TCA

Attorneys:

Christopher T. Cain, Knoxville, Tennessee, for appellants.

John O. Threadgill, Knoxville, Tennessee, for appellee.

Judge: FRANKS

In this breach of contract dispute, all parties appeal from the Trial Court's Judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2008/parrottmarine_082108.pdf

STATE OF TENNESSEE EX REL. MICHELLE STRICKLAND v. TERRY COPLEY

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, and Warren A. Jasper, Assistant Attorney General, for the appellant, State of Tennessee ex rel. Michelle Strickland.

Gregory W. Minton and Brandon L. Newman, Trenton, Tennessee, for the appellee, Terry Copley.

Judge: KURTZ

This appeal arises from post-divorce proceedings involving child support obligations. The original divorce and support orders were entered in Michigan. The mother subsequently moved to North Carolina, and the child support order was transferred to that state. The father moved to Tennessee and became delinquent in making his support payments. The mother began to receive public assistance and executed an income assignment assigning to North Carolina the right to receive the back child support owed by the father. Upon request by North Carolina, Tennessee then brought suit to enforce the North Carolina order. In the Tennessee proceedings, the trial court changed custody from the mother to the father and ordered the mother to pay the father child support. In the process, the trial court determined that the mother owed back child support to the father and then used this amount to setoff the obligation owed by the father to North Carolina. For the reasons stated herein, we determine that a setoff cannot be used to deprive North Carolina of recoupment of its public assistance. The judgment below allowing the setoff is therefore vacated, and this case is remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2008/stricklandm_082108.pdf

STATE OF TENNESSEE v. EARL MARION GRINDSTAFF

Court: TCCA

Attorneys:

Brad L. Davidson, Newport, Tennessee, for the appellant, Earl Marion Grindstaff.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; James Dunn, District Attorney General; and Amanda H. Inman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Earl Marion Grindstaff, appeals from the order of the Cocke County Circuit Court dismissing his petition for post-conviction relief. He argues that the dismissal was error because he did not receive the effective assistance of counsel prior to pleading guilty to five counts of aggravated sexual battery, and because his sentencing hearing was held more than forty-five days after his guilty plea submission hearing. Following our review of the record and the parties' briefs, we affirm the post-conviction court's order of dismissal.

http://www.tba2.org/tba_files/TCCA/2008/grindstaffe_082108.pdf

STATE OF TENNESSEE v. THADDEUS EUGENE REID

Court: TCCA

Attorneys:

John G. McDougal, Chattanooga, for the appellant, Thaddeus Eugene Reid.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Thaddeus Eugene Reid, was convicted of three counts of aggravated rape and one count of aggravated burglary after a jury trial. In this direct appeal, the Defendant makes the 2 following claims that: (1) the evidence below was insufficient to support his convictions; (2) the presence of additional security at trial prejudiced the jury against him; (3) the trial court unconstitutionally increased his sentence because enhancement factors were not found by a jury; (4) the trial court improperly admitted certain evidence, including a CODUS report, a cleaning solution, a picture of the Defendant and his alleged accomplice, and a rape crisis center report; (5) the trial court improperly allowed the Defendant's previous convictions for criminal impersonation to be used for impeachment; and (6) the prosecution engaged in misconduct during closing argument which should have resulted in a mistrial. Each of his points of error either lacks merit or has been waived by lack of argument or citation. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/reidt_082108.pdf

Vacancy on Knox County Commission

TN Attorney General Opinions

Date: 2008-08-21

Opinion Number: 08-138

http://www.tba2.org/tba_files/AG/2008/ag_08_138.pdf

Vacancy in Office of General Sessions Judge

TN Attorney General Opinions

Date: 2008-08-21

Opinion Number: 08-139

http://www.tba2.org/tba_files/AG/2008/ag_08_139.pdf

Auction of Tracts of Real Property Prior to Approval of Subdivision Plat by Regional Planning Commission

TN Attorney General Opinions

Date: 2008-08-21

Opinion Number: 08-140

http://www.tba2.org/tba_files/AG/2008/ag_08_140.pdf

Operation of More Than One (1) Licensed Retail Liquor Store

TN Attorney General Opinions

Date: 2008-08-21

Opinion Number: 08-141

http://www.tba2.org/tba_files/AG/2008/ag_08_141.pdf

Applicability of Tennessee Diesel Tax to Transfers Between or Among Licensed Suppliers and Exporters

TN Attorney General Opinions

Date: 2008-08-21

Opinion Number: 08-142

http://www.tba2.org/tba_files/AG/2008/ag_08_142.pdf

TODAY'S NEWS

Legal News
Election 2008
Disciplinary Actions
TBA Member Services

Legal News

Appeals court weighs in on confederate flag ban

The 6th Circuit Court of Appeals ruled yesterday that William Blount High School in Maryville has the right to ban clothing depicting the Confederate battle flag. The court found that the school could "reasonably forecast" that allowing such symbols would disrupt education after several incidents involving racial graffiti and slurs occurred. Three students had sued saying the ban violated their free speech rights. The ruling comes as nearby Anderson County is defending a similar ban in a case that ended in a mistrial last week.

The News Sentinel has the story

Full-time deputies will continue court security

After much debate, the Shelby County Board of Commissioners has decided to use only full-time sheriff's deputies in courtrooms as security officers. The board had considered allowing the courts to use part-time retired deputies as a way to save money. The decision is a victory for the Memphis Bar Association, county sheriff and local judges who opposed the idea.

The Memphis Daily News reports

Several in mix for DA post

Court observers in the 13th Judicial District are wondering when a district attorney general will be chosen to replace Bill Gibson, who resigned last spring. Now comes news that at least four individuals have undergone background investigations by the TBI, and word from the governor's spokesperson that a decision is coming "soon."

The Herald Citizen has more

Brentwood Academy case over

Brentwood Academy has chosen not to appeal a decision by U.S. District Judge Todd Campbell, ending a decade-long court saga with the Tennessee Secondary School Athletic Association. The school had until Monday to file an appeal.

The Tennessean reports

Korean officials visit Tennessee courtrooms

A judicial contingent from the Republic of Korea is sitting through jury selection in several Davidson County courtrooms for a crash course on America's justice system. Korea, which only has known bench trials, is now beginning to establish jury trials. Four judges and staff traveled to Nashville to view the voir dire process first hand, reports the Tennessean.

Schledwitz promoted to deputy court administrator

Shelby County Circuit Court Clerk Bonnie Schledwitz, age 84, has been promoted to deputy administrator of the clerk's office. She has worked there since 1974 and says she has no plans to retire.

Read about her in the Memphis Commercial Appeal

Hatcher sentencing postponed

The sentencing of former Blount County Magistrate Dustin Hatcher on one count of sexual exploitation of a minor has been postponed until Oct. 6. He had been scheduled to be sentenced this week. On June 3 Hatcher pleaded guilty to the charge in an agreement reached with the prosecutor.

The Maryville Daily Times reports

Election 2008

No election for Duggan's successor

The state Election Commission has ruled that the Blount County Commission must pick a successor to General Sessions Judge David Duggan, who recently was elected circuit court judge. The new general sessions judge would not face voters until a special election in August 2010.