January 'Journal' features access to justice issues

The first Tennessee Bar Journal of 2009 should be on your desk soon, featuring information on how you can get involved with pro bono, as well as inspirational stories of those who do it all the time. The TBA Public Service Award winners are honored in this issue, as is an historic collaboration between the Supreme Court, the TBA and other bar groups, which is tackling the civil legal services crisis. President Buck Lewis gives a stirring call for help, asking "If not now, when? If not us, who?" Ron Turner explains the impact to people in prison of the Religious Land Use and Institutional Persons Act. There are two book reviews, along with regular columns by Don Paine, John Day and Bill Haltom.

Access the January Tennessee Bar Journal online now

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
06 - TN Court of Appeals
00 - TN Court of Criminal Appeals
00 - 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. KENNETH C. DAILEY, III

Court: TSC

Attorneys:

J. Carlton Drumwright, Brentwood, Tennessee, for the appellant, Kenneth C. Dailey, III.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Associate Deputy Attorney General; Victor S. Johnson III, District Attorney General; and Pamela Sue Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: CLARK

We granted permission to appeal the Defendant's certified question of law to determine whether the police violated the Defendant's constitutional rights by subjecting him to a custodial interrogation without first informing him of his constitutional rights as required by the Supreme Court's decision in Miranda v. Arizona. We hold that the Defendant's confessions, both obtained in violation of his federal and state constitutional privileges against self-incrimination, should have been suppressed. Accordingly, the Defendant's conviction must be vacated and the charge dismissed.

http://www.tba2.org/tba_files/TSC/2009/daileyk_010209.pdf


STEPHANIE CAPPS d/b/a STEPHANIE'S CABARET and SMITH INVESTMENT GROUP, L.P. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Bob Lynch, Jr., Nashville, TN, for Appellant Stephanie Capps d/b/a Stephanie's Cabaret.

George A. Dean, Nashville, TN, for Appellant Smith Investment Group, L.P.

Sue B. Cain, Director of Law; J. Brooks Fox, Elizabeth A. Sanders, Assistant Metropolitan Attorneys, Nashville, TN, for Appellee

Judge: HIGHERS

This appeal arises out of the issuance and subsequent revocation of a permit authorizing the use of property for adult entertainment. The appellant filed a complaint seeking declaratory and injunctive relief regarding her right to operate the business. In addition, she claimed that her due process, equal protection, and First Amendment rights had been violated. The trial court dismissed the case, finding that the appellant's arguments regarding the requested declaratory and injunctive relief had been rejected in a related case, and declaring that the remaining constitutional claims were moot. We affirm in part, reverse in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/cappss2_010209.pdf


STEPHANIE CAPPS d/b/a STEPHANIE'S CABARET and SMITH INVESTMENT GROUP, L.P. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Bob Lynch, Jr., Nashville, TN, for Appellant Stephanie Capps d/b/a Stephanie's Cabaret.

George A. Dean, Nashville, TN, for Appellant Smith Investment Group, L.P.

Sue B. Cain, Director of Law; J. Brooks Fox, Elizabeth A. Sanders, Assistant Metropolitan Attorneys, Nashville, TN, for Appellee

Judge: HIGHERS

This appeal involves a permit issued to the Nashville Union Rescue Mission for use as a "religious institution." An appeal was filed to the local zoning board by a neighboring landowner, who claimed that the Mission does not meet the definition of a religious institution. The local zoning board concluded that the Mission is a religious institution, and it denied the appeal. The appellant filed a petition for writ of certiorari in chancery court, and the chancery court affirmed the zoning board's finding. We affirm.

http://www.tba2.org/tba_files/TCA/2009/cappss3_010209.pdf


STEPHANIE CAPPS d/b/a STEPHANIE'S CABARET and SMITH INVESTMENT GROUP, L.P. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Sue B. Cain, Director of Law; J. Brooks Fox, Elizabeth A. Sanders, Assistant Metropolitan Attorneys, Nashville, TN, for Appellant

Bob Lynch, Jr., Nashville, TN, for Appellee Stephanie Capps, d/b/a Stephanie's Cabaret.

George A. Dean, Nashville, TN, for Appellee Smith Investment Group, L.P.

Judge: HIGHERS

This appeal involves a building permit that authorized interior rehabilitation of a building for eventual use as an adult entertainment establishment. A local zoning ordinance prohibits adult entertainment establishments from locating within five hundred feet of a church. The Nashville Union Rescue Mission is located directly across the street from the proposed adult entertainment establishment, and the Mission appealed the issuance of the building permit, claiming that it is a "church" within the meaning of the zoning ordinance. The board of zoning appeals concluded that the building permit was issued in error because the Nashville Union Rescue Mission is a church. The permit was revoked, and the landowner and lessee filed a petition for writ of certiorari in chancery court. The chancery court reversed the zoning board's decision and instructed the zoning board to re-issue the permit for adult entertainment use. We vacate the chancery court's order and reinstate the decision of the zoning board.

http://www.tba2.org/tba_files/TCA/2009/cappss_010209.pdf


JOHN DOE (a minor at the time of the incident), JOE AND JANE DOE, his parents, when he was a minor, v. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES

Court: TCA

Attorneys:

Alan Everett, Knoxville, Tennessee, for appellants.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for appellee.

Judge: FRANKS

In this action, plaintiff charged that defendant had placed him on a "secret, government maintained 'indicated' perpetrator list", without affording him due process of law. The Trial Judge, responding to a Motion to Dismiss, held that plaintiff's action was not "ripe" for determination and dismissed the action. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2009/johndoe_010209.pdf


LATOYA KEATON v. WAL-MART STORES EAST, L.P., and DOYLE RAY ATKINS

Court: TCA

Attorneys:

Christopher D. Brown and P. Richard Talley, Dandridge, Tennessee, for appellant.

Steven H. Trent and Chad E. Wallace, Johnson City, Tennessee, for appellee, Wal-Mart Stores East, L.P.

Judge: FRANKS

Plaintiff alleged that she was robbed at knife-point on Wal-Mart's parking lot, and Wal-Mart was negligent in failing to provide security to protect her from the robbery. Wal-Mart filed a Motion for Summary Judgment and the Trial Judge ruled due to the paucity of crimes in the parking lot, Wal- Mart owed no duty to the plaintiff to provide security where the crime allegedly occurred. Plaintiff has appealed and we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/keatonl_010209.pdf


KIMBERLY POWELL v. COMMUNITY HEALTH SYSTEMS, INC., NATIONAL HEALTH CARE OF CLEVELAND, INC., d/b/a CLEVELAND COMMUNITY HOSPITAL

Court: TCA

Attorneys:

Cynthia D. Hall, Chattanooga, Tennessee, for appellant, National Health Care of Cleveland, Inc.

Timothy L. Warnock and John R. Jacobson, Nashville, Tennessee, for appellant, Community Health Systems, Inc.

Grace E. Daniell, P.C., Chattanooga, Tennessee, for appellee, Kimberly Powell.

Judge: FRANKS

We granted an appeal pursuant to Rule 9, Tenn. R. App. P., to determine the extent of discovery that would be allowed of an infection control nurse who had investigated the infectious rates at the hospital, because the investigation was prompted by the hospital's Quality Control Committee. Defendants argued that the investigation was confidential and privileged, pursuant to Tenn. Code Ann. 63-6-219. The Trial Court allowed discovery and we affirm, setting forth parameters of the discovery.

http://www.tba2.org/tba_files/TCA/2009/powellk_010209.pdf

SUSANO dissenting
http://www.tba2.org/tba_files/TCA/2009/powellk_DIS_010209.pdf


TODAY'S NEWS

Legal News
Legislative News
Correction
Passages
TBA Member Services

Legal News
Voting begins on Nashville English-only proposal
Early voting began today in Nashville, where voters will decide on an English-only measure and a proposal that would make it easier to change the metro charter. Officials reported a steady stream of voters at the Davidson County Election Commission office at 800 S. 2nd Ave. It will be the only site open until the Jan. 22 special election.
Read more in the Tennessean
Legal public interest groups suffering from Madoff affair
The collapse of Bernie Madoff's alleged $50 billion Ponzi scheme is hitting dozens of public interest legal organizations, whose donors saw their assets disappear when the scheme became public.
Read more from the National Law Journal on Law.com
New faces dominate Mississippi top court
Mississippi's Supreme Court will have a new look next week, when three newly elected justices are sworn in on Monday. Joining Justice-elects James W. Kitchens Jr., David A. Chandler and Randy Pierce will be Justice Ann H. Lamar, who was appointed in May and won election in November, the Commercial Appeal reports.

Legislative News
Photo ID voting bill coming back before legislature
An effort to change Tennessee law to require a photo ID for voting may see a better chance for passage this year after Republicans took control of both houses of the General Assembly. Opponents have argued in the past that the change could disenfranchise some senior citizens and others without photo IDs, but the biggest roadblock this year might be cost.
Read more from WSMV
Correction
An item in TBA Today on Wednesday reported an incorrect date for the Tennessee Bar Association's 2010 annual convention. If you are marking your calendar, please note that the 2010 convention will be held in Nashville on June 1-6, 2010.

Passages
Memphis judge dies at 55
Circuit Court Judge Rita Stotts of Memphis died today at 55. The Vanderbilt University Law School graduate was originally appointed to the bench on May 23, 2000. Arrangements are not available at this time.

TBA Member Services
New benefit provides communications solutions
PAETEC personalizes communications solutions for professional practices in Tennessee, offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE and managed services. The TBA has teamed up with the company to offer special products and pricing for members and their firms. For more information contact Sharon Joyce in Nashville at (615) 324-1845, Mark Priest in Memphis at (901) 312-1802, or Mark Morrell in Knoxville/Chattanooga at (865) 251-1765.


 
 
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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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