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Friday, March 27, 2009

Search our Database for Opinions and News Items

Bill would boost funding for legal aid to poor

Legislation introduced Thursday by Sen. Tom Harkin (D-Iowa) would almost double the budget for the Legal Services Corporation and lift some restrictions on the kinds of cases its lawyers can bring. Following a decade of drooping support for the program, Harkins has proposed almost doubling its budget, bringing it back to what Harkin said it received in 1981, adjusted for inflation. The bill drew the support of ABA President H. Thomas Wells Jr. and is cosponsored by nine other senators. Read the bill. Read a summary of the proposal. Read Harkin's statement in introducing the legislation.

Read more in the Blog of Legal Times

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
00 - TN Court of Criminal Appeals
07 - 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.

IN THE MATTER OF M.L.P.

Court: TSC

Attorneys:

Arthur C. Walton, Memphis, Tennessee, for the appellant, M.G.P.

James F. Arthur, Memphis, Tennessee, for the appellees, Great Aunt and Great Uncle.

Kevin W. Weaver, Cordova, Tennessee, for the appellees, Petitioners.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Amy T. McConnell, Assistant Attorney General, for the appellee-intervenor, State of Tennessee.

Judge: HOLDER

This appeal involves an action to terminate the father's parental rights filed jointly by the prospective adoptive parents and the temporary guardians of the child. The Juvenile Court found that the father did not abandon his child because the child's temporary guardian interfered with the father's attempts to visit the child. The Court of Appeals reversed, concluding that the father abandoned the child pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i) by willfully failing to visit the child for over four months. We affirm the judgment of the Court of Appeals. The case is remanded to the juvenile court to determine whether termination of the father's parental rights is in the best interests of the child.

http://www.tba2.org/tba_files/TSC/2009/mlp_032709.pdf

IN THE MATTER OF A. T.

Court: TCA

Attorneys:

S. Craig Moore, Fayetteville, Tennessee, for the appellant, J.T.

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

Judge: CLEMENT

Father appeals the termination of his parental rights on the grounds of persistent conditions and abandonment by willful failure to make reasonable payments in support of his child. He contends the Department failed to make reasonable efforts to reunify the family, that the evidence was insufficient to establish any ground for termination, and that the evidence was insufficient to establish termination was in the child's best interests. Father also appeals contending the petition as illegally filed. We find no merit to any of Father's issues and affirm the termination of his parental rights.

http://www.tba2.org/tba_files/TCA/2009/at_032709.pdf

RANDY J. MANESS, JR. ET AL. v. KURT S. GARBES ET AL

Court: TCA

Attorneys:

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellants, Randy J. Maness, Jr., and Catherine Maness.

William L. Moore, Jr., Gallatin, Tennessee, for the appellees, Kurt S. Garbes and Darrell L. Garbes.

Judge: CLEMENT

The trial court dismissed this negligence action as being time barred due to the plaintiffs' failure to issue alias summons within one year after the issuance of the original summons. The plaintiffs contend the trial court erroneously failed to consider whether the delay in issuance of the alias summons was the result of excusable neglect. This action arose from an automobile accident that occurred on July 9, 2005. The action was timely filed on July 7, 2006, and summons were issued the same day; however, they were never served. On June 4, 2007, the plaintiffs mailed alias summons to the Circuit Court Clerk's office requesting that they be issued and served on the defendants, but the Clerk did not receive this envelope until four months later, on October 10, 2007. As requested, the clerk issued alias summons on October 10, 2007, and they were served on the defendants on November 6, 2007. The defendants then filed a motion to dismiss contending the action was time barred. The trial court granted the motion. This appeal followed. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/manessr_032709.pdf

EDWINA MONTGOMERY EX REL. THOMAS M. MONTGOMERY v. KALI OREXI, LLC ET AL.

Court: TCA

Attorneys:

Bryan E. Delius and Richard L. Burnette, Sevierville, Tennessee, for the appellant, Edwina Montgomery.

Dana C. Holloway and Joshua A. Wolfe, Knoxville, Tennessee, for the appellee, Kali Orexi, LLC.

Judge: SUSANO

In this wrongful death action, Edwina Montgomery ("the Plaintiff"), individually and as the surviving spouse of Thomas M. Montgomery ("the Deceased"), brought suit under the Tennessee Dram Shop Act ("the Dram Shop Act" or "the Act"), Tenn. Code Ann. sections 57-10-101 and 102 (2002). The Plaintiff also sued for negligence and negligence per se. The Plaintiff sued Kali Orexi, LLC, which operates under the trade name of Gondolier Italian Restaurant and Pizza ("Gondolier"). Gondolier moved for summary judgment, which was granted as to all theories of recovery. We affirm the summary judgment on what appears to be an issue of first impression. We hold that Tenn. Code Ann. sections 57-10-101 and 102 (2002) apply to third parties and do not authorize an action against a seller of an "alcoholic beverage or beer" by or on behalf of the supplied, or "first" party. Since the Dram Shop Act does not address first parties, its enactment leaves the law as to first parties as it existed before the Act's enactment. In addition, under the circumstances of this case, the trial court correctly held that the injuries to the Deceased were not foreseeable; thus, Gondolier owed the Deceased no duty. Furthermore, even if a duty were owed, it was not breached. The question whether the actions of the Deceased and a taxi driver, who was paid by Gondolier to take the intoxicated Deceased home, were intervening and superseding causes that relieve Gondolier of liability are not addressed since we hold that the Plaintiff had no cause of action under the Dram Shop Act or for common law negligence. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2009/montgomerye_032709.pdf

IN RE S.R.M.

Court: TCA

Attorneys:

Robert W. White, Maryville, Tennessee, for Appellant, J.W.J.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Douglas E. Dimond, Assistant Attorney General; Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: MCCLARTY

This appeal involves a petition filed by the State of Tennessee, Department of Children's Services, to terminate the parental rights of a biological father to his now ten-year-old daughter.The Juvenile Court granted the petition and the father has appealed. After carefully reviewing the record and relevant legal authority, we affirm the Juvenile Court's finding of abandonment and the judgment terminating the father's parental rights.

http://www.tba2.org/tba_files/TCA/2009/srm_032709.pdf

Validity of Pending House Bill 1549

TN Attorney General Opinions

Date: 2009-03-27

Opinion Number: 09-37

http://www.tba2.org/tba_files/AG/2009/ag_09_37.pdf

Referendum on Property Tax Freeze Act of 2007

TN Attorney General Opinions

Date: 2009-03-27

Opinion Number: 09-38

http://www.tba2.org/tba_files/AG/2009/ag_09_38.pdf

Statutory Caps and Conversion Charter Schools

TN Attorney General Opinions

Date: 2009-03-27

Opinion Number: 09-39

http://www.tba2.org/tba_files/AG/2009/ag_09_39.pdf

Confidentiality of Municipal Inspection Fee Information

TN Attorney General Opinions

Date: 2009-03-27

Opinion Number: 09-40

http://www.tba2.org/tba_files/AG/2009/ag_09_40.pdf

Sale of Beer to a Minor or Person Without Identification Not a Crime Involving Moral Turpitude

TN Attorney General Opinions

Date: 2009-03-27

Opinion Number: 09-41

http://www.tba2.org/tba_files/AG/2009/ag_09_41.pdf

"New Beds" - Developmental Centers - Tenn. Code Ann. section 71-5-105(b)(2)

TN Attorney General Opinions

Date: 2009-03-27

Opinion Number: 09-42

http://www.tba2.org/tba_files/AG/2009/ag_09_42.pdf

Effect of Expiration of Judicial Selection Commission and Judicial Evaluation Commission

TN Attorney General Opinions

Date: 2009-03-27

Opinion Number: 09-43

http://www.tba2.org/tba_files/AG/2009/ag_09_43.pdf

TODAY'S NEWS

Judicial Selection, Retention
Legal News
Upcoming
TBA Member Services

Judicial Selection, Retention

AG: Without legislative action, no mechanism in place to select judges

Tennessee's appellate judicial system faces serious problems if lawmakers do not extend or change laws regarding panels charged with evaluating and recommending judges, a just-released Tennessee Attorney General's opinion says. The opinion indicates that if nothing is done, there would be no new elections for appellate court judges in 2010 and 2014. Commenting on the opinion, TBA President Buck Lewis said, "This opinion reaffirms what we have said all year long -- that our constitution places in the hands of the legislative branch the power to determine by statute the method of filling judicial vacancies and that in order to govern responsibly, the general assembly must act and cannot simply let the present system expire June 30th."

Ramsey tells business leaders judicial elections 'probably not the best way to go'

Senate Speaker Ron Ramsey told the Tennessee Business Roundtable this week that he is looking for a way to keep the state's Judicial Selection Commission from expiring, the Tennessean reports. Ramsey's current proposal would continue the commission, but remove input from legal groups, who now provide the speakers of each chamber with candidates to serve on the judicial selection and retention panels.

Read the full story

Road Builders join in call for merit system for judges

The Tennessee Road Builders Association has joined the growing chorus of business leadership groups supporting efforts to keep the merit selection and retention of appellate judges -- so long as there is a greater opportunity for pro-business commissioners to be involved in the selection process. In commenting on the move, TRBA Executive Director Kent Starwalt said, "Our members believe that doing away with the merit selection and retention process would not be in the best interest of the state and that much needed balance, in the form of business representation, should be added to the judicial selection commission." TRBA is an 81-year-old, state-wide trade association that represents nearly 350 firms in the highway and bridge construction industry.

Legal News

Lawyers stepping up to meet legal needs

The Memphis Commercial Appeal today offered full coverage of upcoming TBA Pro Bono Public Service Day activities in Memphis, outlining the scope of the access to justice problem and how Tennessee lawyers are stepping up to help. TBA President Buck Lewis told the newspaper that across the state attorneys will be providing close to half a million dollars worth of free legal service on April 4.

Read the full story

New law school named for Duncan

Lincoln Memorial University today officially named its proposed law school in Knoxville for Tennessee Congressman John J. Duncan Jr. Upon accreditation by the Southern Association of Colleges and Schools' Commission on Colleges, LMU will admit about 75 part-time students and begin classes in August 2009. The full-time program, consisting of an additional 125 students, will begin Fall 2010.

Upcoming

Collegiate national mock trial competition in Memphis

Now that Memphis is out of the NCAA tourney, fans can turn their attention to another national competition taking place this weekend in Memphis. Rhodes College is host to the American Mock Trial Association semifinals at the Shelby County Court House. Rounds are free and open to the public. The schedule: Round 1, 4 p.m. today; Round 2, Saturday at 9:30 a.m.; Round 3, Saturday at 2 p.m.; and Round 4, Sunday at 9:30 a.m.

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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.